text:
    INSURANCE.
    [Hamilton (1st) Circuit Court,
    October, 1909.]
    Giffen, Smith, and Swing, JJ.
    Sarah C. Menear, by E. B. Rogers, Grdn., v. Aetna Life Ins. Co. of Hartford, Conn.
    1. Evidence of Waiver of Condition of Policy Inadmissible on Pleading Averring Definite Performance of alt, Conditions.
    An allegation that conditions of a life policy were definitely performed on a designated date and an allegation that a condition as to proofs of death was subsequently waived are inconsistent; and, in the absence of express allegations in, or any inference deducible from, the petition excusing nonperformance thereof, evidence on the question of waiver is incompetent and inadmissible.
    3. Requirements that Proof of Death of ¡ Insured be Made in- Writing, Deceased IdentiÉíEó;. as : Insured, -‘Existence of Beneficiary are Reasonable.
    Conditions in a policy of life insurance requiring proof of death to be made in writing, identification of deceased as insured. and proof that beneficiary is living are reasonable requirements.

      3. Notice of Defect in Proof of Death not Required if Repeated Notices are Given that no Proofs of Death are Piled.
    Notice of defect in proof of death is not necessary if repeated notices have been given by the' insurance company that no proof of death has been filed with it.
    Error to Hamilton common pleas court.
    Andrews, Harlan & Andrews, for ..plaintiff in error:
    Failure to file proofs of death. Hamden v. Insurance Co. 164 Mass. 382 [41 N. E. Rep. 658; 49 Am. St. Rep. 467]; Travelers’ Ins. Co. v. Edwards, 122 TJ. S. 457 [7 Sup. Ct. Rep. 1249; 30 L. Ed. 1178] ; Bowen v. Life Association, 63 Conn. 460 [27 Atl. Rep. 1059]; Taylor v. Insurance Co. 79 Mass. (13 Gray) 434; Kingsley v. Insurance Co. 62 Mass. (8 Cush.) 393.
    Defective proofs of death and notice. Welsh v. Assurance Corporation, 151 Pa. St. 607 [25 Atl. Rep. 142; 31 Am. St. Rep. 786]; Gould v. Insurance Co. 134 Pa. St. 570 [19 Atl. Rep. 793; 19 Am. St. Rep. 717]; Globe Ins. Co. v. Boyle, 21 Ohio St. 119.
    Identity of beneficiary. Sperry v. Tebbs, 10 Dec. Re. 318 (20 Bull. 181); Friend v. Thompson, Wri. 636; Hazzard v. Nottingham, Tapp. 160; Brotton v. Allston, 2 Dec. Re. 393 (2 W. L. M. 588) ; Gates v. Beckwith, 2 Dec. Re. 394 (2 W. L. M. 589).
    Unsatisfactoriness of proofs. Travelers’ Ins. Co. v. Sheppard, 85 Ga. 751 [12 S. E. Rep. 18]; Welsh v. Assurance Corporation, 151 Pa. St. 607 [25 Atl. Rep. 142; 31 Am. St. Rep. 786]; Gould v. Insurance Co. 134 Pa. St. 570 [19 Atl. Rep. 793; 19 Am. St. Rep. 717] ; Globe Ins. Co. v. Boyle, 21 Ohio St. 119..
    Waiver of proofs. Dun v. Insurance Co. 10 Dec. 667 (8 N. P. 612) ; 29 Am. & Eng. Enc. 1092; Providence Washington Ins. Co. v. Wolf, 168 Ind. 960 [80 N. E. Rep. 26; 120 Am. St. Rep. 395]; Mutual Life Ins. Co. v. French, 30 Ohio St. 240 [27 Am. Rep. 443] ; Okey v. Insurance Co. 29 Mo. App. 105; American Express Co. v. Express Co: 7 Dec. Re. 51 (1 Bull. 85).
    Transmitting, proof of death to the company. Dun v. Insurance Co. 10 Dec. 667 (8 N. P. 612) ; Germania Fire. Ins. Co. v. Stewart, 13 Ind. App. 627 [42 N. E. Rep. 286]; North Brittish & M. Ins. Co. v.
      Crutchfield, 108 Ind. 518 ,[9 N. E. ¿Rep. 458]; Hamden v. Insurance Co. 164 Mass. 382 [41 N. E. Rep. 658; 49 Am. St. Rep. 467]; Travelers’ Ins. Co. v. Edwards, .122 U. S. 457 |7 Sup. Ct. Rep. 1249; 30 L. Ed. 1178]; Welsh v. Assurance Corporation, 151 Pa. St. 607 [25 Atl. Rep. 142; 31 Am. St. Rep.,786]; Insurance Co. of N. A. v. McLimans, 28 Neb. 653 [44 N. W. Rep. 991],
    Authority to waive. Travelers’ Ins. Co. v. Harvey, 82 Ya. 949 [5 S. E. Rep. 553]; American Fire Ins. Co. v. Sisk, 9 Ind. App. 305 [36 N. E. Rep. 659]; Franklin Fire Ins. Co. v. Ice Co. 36 Md. 102 [11 Am. Rep. 469]; Blake v. Insurance Co. 78 Mass. (12 Gray.) 265; Bokes v. Insurance Co. 51 Md. 512 [34 Am. Rep. 323]; Carson v. Insurance Co. 43 N. J. Law (14 Yroom) 300 [39 Am. Rep. 584]; Virginia F. & M. Ins. Co. v. Mica Co. 102 Ya. 429 [46 S. E. Rep. 463; 102 Am. St. Rep. 846]; Indiana Ins. Co. v. Capehart, 108 Ind. 270 [8 N. E. Rep. 285]; Tits-worth v. Insurance Co. 62 Mo. App. 310; Stevens v. Insurance Co. 69 Iowa 658 [29 N. W. Rep. 769] ; Berry v. Insurance Co. 3 Fed. Cas. 288.
    Outside of the pleadings. 2 Bates, PI. & Pr. 1254; Moody v. Insurance Co. 52 Ohio St. 12 [38 N. E. Rep. 1011; 26 L. R. A. 313; 49 Am. St. Rep. 699].
    Evidence that beneficiary was living. 2 Bates, PI. & Pr. 1254; Moody v. Insurance Co. 52 Ohio St. 12 [38 N. E. Rep. 1011; 26 L. R. A. 313; 49 Am. St. Rep. 699].
    Tender. Jennings v. Mendenhall, 7 Ohio St. 257; Fuller v. Felton, 16 Ohio 457; Huntington v. Ziegler, 2 Ohio St. 10. ■
    W. K. Maxwell and Shotts & Millikin, for defendant in error.
   GIFFEN, J.

It is averred in the petition that proofs of death were furnished on March 8, 1906, and that the plaintiff performed every condition required to be performed by the policy; then it is averred that the defendant waived the furnishing of proofs of death. The whole question, therefore, hinges upon whether the proofs of death were furnished on March 8, 1906, or whether they were waived.

The averment in the petition, that the conditions were performed, first definitely performed on March 8, 1906, and then the general averment that all conditions precedent were performed, and the averment that this condition was waived, are wholly inconsistent.

The Supreme Court has decided, in a very late case, List & Son Co. v. Chase, 80 Ohio St. 42:

“Waiver of the performance of conditions in a contract by the party in whose favor the conditions are to be performed, is not performanee but must be alleged as an excuse for nonperformance, before proof of such waiver can be received; and in tbe absence of such an allegation it is error to charge the jury that certain facts appearing in evidence constitute such a waiver.”

There is no averment here, and there is no inference to be drawn from the petition, that there was an excuse for nonperformance, because there is a positive averment that there was a performance.

It is,' therefore, manifest that no evidence could be offered on the waiver, because the petition avers there was a performance of this condition, ’ and any error that is complained of with reference to the waiver is of no consequence — the petition averring, or requiring rather, proof of performance of condition precedent — that proofs of death had been furnished.

Many other errors are urged in the petition in error, and some of them perhaps are well'taken — especially that one which required the plaintiff to offer proof that she was living, before she could recover. But if from the pleadings and the undisputed facts the court can draw a legal conclusion in accordance with the verdict — the judgment of the court — it is immaterial what errors the court committed in its charge to the jury.

Counsel, however, insist that if not permitted to prove waiver, that there was actual performance of that condition, that the proofs of death were actually made on March 8, 1906; therefore, the policy would have been payable on June 8, 1906.

But in form two of the proof of death, question five required the identification of the deceased to be the person mentioned in the policy.

Proof of death would be of little avail if it did not show the death of the particular party insured. This was not an unreasonable requirement.

Mr. Rogers, who signed this form of the proof of death, was mentioned in the application, which was made a part of the policy, as an intimate friend of the insured; he had paid the premium from time to time, and was therefore particularly qualified to answer this question; yet it was answered, was not even filled out, the number of the policy given or otherwise.

However, it is .claimed that Mr. Rogers did answer this question, but by failure of the agent of the company, or of the notary employed by him, that it was not filled out as he had answered it.

Proofs, of death were to be made in writing; that was not an unreasonable requirement. Proofs of death were made for the purpose of being forwarded to tbe home office of the company, and it was in compliance with a reasonable requirement on part of the company to furnish that in writing.

Besides, to hold that to be sufficient would be to hold that the agent representing the company had waived this right, and we have already said the pleadings do not warrant proof of waiver of the condition.

The proofs of death were finally furnished in May, 1907, as required by the company. Mr. Rogers voluntarily did this, and thereby tacitly acknowledged that the proofs of death pretended to be furnished on March 8, 1906, were not sufficient.

Within thirty days after proofs of death were furnished in May, 1907, the company tendered a check for $2,000, which was refused solely upon the ground of not being sufficient, and upon no other ground. The Supreme Court has held that such a tender, although in the form of a check, is sufficient.

The whole difficulty arose from the fact that on April 20, Mr. Rogers informed the company that the beneficiary was incompetent to receive the money and it would be necessary to appoint a guardian.

Counsel in their brief admit that any defect in proofs of death could be taken advantage of by the company, but that they should have reasonable notice.

Well, of course, they were never notified as to the defect in the proofs of' death attempted to be made out in March, 1906, but they were notified repeatedly that no proofs of death had been furnished, and still delay continued for fourteen months — until May, 1907.

If they have been deprived of the use of the money, it was wholly on account of their neglect, and not that of the company, who constantly expressed a readiness and willingness to pay the face of the policy— $2,000.

It is, therefore, thé opinion of the court that upon the pleadings and undisputed facts, the verdict of the jury was right, and that the judgment of the court of common pleas should be affirmed.

Swing and Smith, JJ., concur.


source: Caselaw Access Project

author: KINKADE, J.

license: Public Domain

text:
    RAILROADS.
    [Lucas (6th) Circuit Court,
    June 14, 1909.]
    Parker, Wildman and Kinkade, JJ
    Carl E. Powers v. Hocking Val. Ry. and Lake Shore & M. S. Ry.
    1. Defect in Engine not Proximate Cause of Injuries Received by Fireman Carelessly Stepping from Engine.
    Where a fireman is injured in stepping off his engine backwards and in the dark, and without making any effort to discover where he was stepping, the fact that his reason for getting off was that the engine was out of repair and needed attention does not constitute the proximate cause of his injury or render the railway company liable therefor.
    2. Failure to Light Bridge or Provide Guard Rails Imposes no Obligation upon Railroads for Injuries to Servants.
    Nor does the fact that the engine happened to be standing at the time on a bridge which was unlighted and not provided with guard rails add to the responsibility of the company or eliminate the element of plaintiff’s own negligence as to his safety.
    3. Servant of Lessee of Railroad Cannot Maintain Action of Negligence against Lessor.
    Section 3305 Rev. Stat., relating to the lease of railroads, covers obligations of the lessor and lessee to the public; hence, does not' apply to an action for negligence by an employe of lessee against the lessor and lessee.
    Error t,o Lucas common pleas court.
    Harvey Scribner and J. H. Southard, for plaintiff in error.
    King, Tracy, Chapman & Welles and Richard Ingles,, for defendant in error.
   KINKADE, J.

The court of common pleas directed a verdict in favor of both defendants at the close of the plaintiff’s evidence. Referring to the negligence charged against the Lake Shore & M. S. Railway, we think it very doubtful whether the amended petition stated a cause of action, and if the trial court had sustained the demurrer which was filed by the Lake Shore we probably would have affirmed its action in this regard. There is no evidence of any lease of the Lake Shore tracks to the Hocking Company. True, there is an admission in the record that the Hocking Company at the time of the injury to plaintiff was using that part of the Lake Shore property with the knowledge .and consent of the Lake Shore. We do not think the section of the statute (3305) cited, has any application to the case at bar. Even if a lease were shown, the provisions of this section are to cover obligations of the company to the public as was said by Judge Taft in Hukill v. Railway, 72 Fed. Rep. 745 and 753, and do not apply to a case such as is here presented. The plaintiff was in no sense an employe of the Lake Shore Company and that company did not owe to him the duty of exercising ordinary care in furnishing him a safe place to work. Upon careful consideration of the record we fail to find any evidence tending to show that the Lake Shore Company omitted any duty owing by it to the plaintiff, and our conclusion is that the trial court was correct in directing a verdict in favor of that company. '

As to the Hocking Valley Company, the negligence charged was a defective engine, failure .to light the bridge and failure to place guard rails on the bridge. It is entirely clear that the defective grate bars cannot in any way be regarded as the proximate cause of the plaintiff’s injury. At most they merely explain why the plaintiff left his engine when he did. He might have left the engine for any one of many purposes, and if he had alighted as he did in this case the result would have been precisely the same. If a man jumps off an engine in the dark and in so doing goes over the side of a high trestle or bridge, it is not very material just what particular duty he was intending to perform. The plaintiff had a right to get off his engine whenever he so desired in the performance of any act connected with his work which might be proper for him to perform. Had he left the cab to oil some part of the engine or for any other purpose the same thing which happened here must have befallen him. As to the lighting and the guard rail: It is too clear to need comment that had the bridge been lighted as plaintiff claims it should have been, then the absence of guard rails would have been known to the plaintiff and in that event he would have assumed the risk of using the bridge in that condition. Hence the only complaint is the failure to light the bridge. Taking plaintiff’s own story as to how he was hurt, and we have read the evidence with care, it is certainly difficult to comprehend how he could have possibly been more reckless of his own safety. No one can read his evidence and reach any other conclusion than that he stepped down out of the cab in the dark backwards without the slightest concern for his own. safety. The company is not charged with negligence in not furnishing lanterns for the use of its men when in dark places, but the charge and claim is that places of this kind should be lighted so that the railroad men may go without the aid of lanterns, and if the company does not light all places along its track, and especially places near a railroad yard, then trainmen may assume that whenever and wherever the train or engine chances to stop, that is a safe place to step off backwards in,' the dark, without taking any precaution to learn what the real surroundings are. It scarcely seems necessary to do more than to state such a proposition in order to make manifest the unreasonableness of it. Railroading is hazardous work,' and it is common knowledge that railroad property is not generally lighted. Switch and signal lights are not intended to light up the yards, but are intended to indicate the position of switches and targets. They are no more intended to illuminate railroad property generally than the signal lights on vessels are intended to light up the lake or the ocean. The railroad business in this country is not in its infancy and the manner of moving trains and ears is thoroughly known. The fact that railroad tracks and trestles. are not commonly lighted is well known, and it is also common knowledge that the bridges and trestles are not provided with guard rails to keep the men from falling off. Neither are there guard rails on the tops of freight cars to keep brak'emen from falling off while running along the top of the train in the dark. As has been said railroading is dangerous work at best, and no one engaged in it is warranted in going heedlessly about the discharge of duties requiring great care.

No system of fixed lights along a railroad property could afford the protection to the men, with the constant changing of positions of both men and cars, that is furnished by the individual lanterns in the hands of the men. The universal custom on all well-managed railroads is sufficient proof that the way the work is being done is the practical way to do. The legislature of Ohio has enacted a great many laws for the protection of railroad employes and the safety of persons and property being transported over railroads, embracing the lighting and heating of cars, air brakes, safety appliances, blocking of frogs, and a great many other things which might be enumerated, and it is certainly worthy of note that with all the attention this important subject of railroading has been given by the legislature, no one has ever thought it necessary to require that railroad bridges and trestles must be lighted and equipped with guard rails so that train men who thoughtlessly step off the train in the dark at such points will not get hurt.

The Hocking Valley Company had no right to light this bridge or to place guard rails upon it, as it was the property of the Lake Shore Company. It will be said that this being true, then the Hocking Company had no right to use it in that condition. Had the bridge and the tracks been upon the property of the Hocking Valley Company, we do not think any obligation would have rested upon that company to light the bridge and erect the guard rails as contended for by plaintiff.

That plaintiff alighted from the engine entirely of his own motion is evidenced from what he says he did and said at the time. He told the engineer what he was going to do and proceeded to do it. The record does not show what the engineer said. If the plaintiff had been allowed to leave in the bill of exceptions what was first printed there and afterwards erased (bnt still is in such form as it can be read), we think it would fall very far short of the effect claimed for it in argument concerning this conversation. At any rate, it is not now a part of the record, and we see no prejudicial error in the rulings of the court in this regard. Our conclusion is that the record discloses no' omission of duty on the part of the Hocking Valley Company, hence the action of the court of common pleas in directing a verdict for that 'Company was correct and the judgment entered thereon will be affirmed.

Parker and Wildman, JJ., concur.


author: SMITH, J.

text:
    DAMAGES — EVIDENCE—REPLEVIN.
    [Hamilton (1st) Circuit Court,
    March 6, 1909.]
    Giffen, Swing and Smith, JJ.
    Sadie Arnold v. Rudolph Wurlitzer Co.
    Probable Darnings of Musical Instruments Replevined to Fix Damages for Unlawful Retention.
    On replevin, evidence oí the probable earnings of certain musical instruments for the period retained is admissible to fix damages for the wrongful retention thereof.
    Error to Hamilton common pleas court.
    The jury on the trial below fixed the damages for the wrongful retention in replevin of one piano and one harp at $150. It was claimed that the testimony, offered by the plaintiff below, Wurlitzer Company, as to the probable earnings of these instruments during the period of wrongful detention, was improperly admitted.
    M. C. Lykins, for plaintiff in error.
    W. S. Little, for defendant in error.
   SMITH, J.

We do not think the evidence objected to by the plaintiff in error was erroneously admitted on the question of damages, and the judgment of the court below will be affirmed.

Giffen and Swing, JJ., concur.


author: SULLIVAN, J.

text:
    JUVENILE COURTS — PARENT AND CHILD.
    [Franklin (2nd) Circuit Court,
    October 22, 1909.]
    Sullivan, Dustin and Allread, JJ.
    Lewis Travis v. State of Ohio.
    1. Probate Judge in Franklin County Properly Designated Judge of the Juvenile Court.
    Under Sec. 3 of act 98 O. L. 314, in counties having three or more common pleas judges sitting regularly and concurrently, the probate judge is properly designated to act as judge of the juvenile court.
    2. Juvenile Court Act not Void for Indefiniteness in Stating Offenses Proscribed.
    Definiteness with which an offense should be charged against a person accused as a requisite of the bill of rights is not intended to apply to statutes declaring certain acts to be criminal. Hence, act 96 O. L. 314, creating juvenile courts and establishing procedure therein, is not void for lack of definiteness in stating the offenses therein proscribed.
    8. “Delinquent” and “Dependent” as Applied to Children under'Jurisdiction of Juvenile Court Sufficiently Distinguished by Act.
    “Delinquent” and “dependent” children as defined by act 96 O. L. 314, the regulation and control of which is reposed in juvenile courts, are sufficiently distinguished by the act to avoid such confusion in management and control after they become wards of the court as will invalidate the act for indefiniteness.
    4. Act 98 O, L. 314 is not Penal as to Regulation and Treatment of Children to which: it Applies.
    Act 98 O. L. 314, regulating the treatment and control of delinquent and dependent children by juvenile courts, is not penal in its operation to children; the punishment for its violation is imposed upon the parents and guardians contributing to the delinquency. Therefore the act is not invalidated for indefiniteness in description of the classes of children to which it is made applicable.
    5. Parental Custody of Children is Subject to Interests of Society and Good Government.
    The custody, education and moral training of children is naturally in the parent but this right is subservient to the police power of the state to prevent children from engaging or indulging in criminal practices and, in the interests of society and good government, remove them from degrading, immoral and vicious influences.
    [Syllabus approved by the court.]
    Error to Franklin juvenile court.
    M. B. Earnhart, for plaintiff in error.
    K. T. Webber, Pros. Atty., for defendant in error.
   SULLIVAN, J.

The judges of courts having like original jurisdiction may arrange for a proper distribution of the business coming before said courts.

As an illustration the court of common pleas of Franklin county is presided over by several judges. They are authorized to establish rules to facilitate the disposition of the business coming before the court. One of these provides for a division of the business among the several judges.

The act in question (98 O. L. 314, Sec. 3) authorizes the judges of the several courts of equal original jurisdiction to designate the one that shall hear and dispose of the business in which each is given equal original authority. Jurisdiction consists of the power to hear and determine. The source of this power resides in the legislature. In this act it is conferred upon the several courts named by that authority, and the mere selection of one to dispose of the business by the several judges is not conferring jurisdiction. For, without such designation, either of the courts named could'entertain jurisdiction of the matter specified in the act; whilst if the authority was conferred upon the judges, neither of said courts could exercise the power to hear and determine unless authorized by the judges beforehand.

The court first acquiring jurisdiction would hold it until the action was finally disposed of.

The constitutionality of the act was challenged in the case of Giltman v. State, before this court in Clark county. We were then of the opinion that the act did not contravene any of the provisions of that instrument. A re-examination of the act does not convince us that our opinion in the Giltman case was wrong; and it is, therefore, adhered to here. This would dispose of all the points presented by plaintiff in error, and render it unnecessary for further discussion and comment.

But it is perhaps well to give a more extended consideration of the points made by plaintiff in error. It is claimed that the act is void for lack of definiteness; that, under the provisions of the bill of rights, an accused is entitled to have the matter charged against him stated with such definiteness that he may be advised as to what he must meet. No one can dispute this.claim, but this requisite could not have been intended to apply to statutes declaring certain acts to be criminal. Such statutes must be general in terms for the reason that a violation of the statute would depend in many cases on a different state of facts. The requisite of the bill of rights respecting definiteness would be complied with if the affidavit or indictment set forth the facts claimed to constitute the offense.

As an illustration, take the crime of perjury; the statute defining this offense is familiar. It would not be claimed that an affidavit which simply asserted that John Doe, in a certain action, naming it, testified falsely in a matter material to the issue in the action. The statements claimed to have been false would have to be stated. This illustration might be further shown by other statutes defining criminal offenses. In the act before us, the several acts and conduct to constitute a delinquency in a child has a common, accepted meaning. In each instane'ewhether an act of delinquency has been committed depends- upon the ■ particular facts of the case. These facts must be stated with such, definiteness that the claimed delinquent and those having charge and control of the child may be advised as to what they must meet. We-think the sections of the statutes naming acts of delinquency and what-shall constitute a neglected and dependent child are expressed with-sufficient definiteness.

It is contended by counsel for plaintiff-in error that the acts constituting delinquencies under the act and a dependent child are so intermingled with the provisions for the education of tbe delinquent or dependent when either becomes a ward of the court that they cannot be distinguished.

We think a careful reading of the entire act successfully refutes-this claim.

There are two classes of minors under the age of seventeen years to which the act applies; first, delinquent children; second, dependent children. After it has been judicially determined by the proceedings-provided in the act that a child under the above age is either a delinquent or dependent, then the court is authorized to commit the custody to one of the persons or institutions of the state, named for its education, moral training, etc. This seems clear enough and the claim of confusion seems to have no foundation, at least in this statute.

It is not the purpose- of the act to punish the child, but to take it. out of environments, which, if continued, would result disastrously to-it as well as to society, and thereby become a standing menace to the-state; and to supply it with opportunities for good moral training and physical comforts and support. The parent, guardian, or anyone having the custody and control of either, who in any way contributes to-the delinquency, or in any respect is responsible for the neglect of any such child, may at the same time be brought into cojirt under arrest. If the charges against sucb person are sustained, he may be punished,, but not the child.

Counsel for plaintiff in error, with more than usual feeling, pathos, and oratory, and with some force, urged that the legislature exceeded the limits of its constitutional power in authorizing minors to be taken from their homes in spite of the protest and objection of the parents, though it was for the purpose of removing the minor from evil influences and further indulgence in vicious habits and practices tending to the ultimate degradation of the child.

That the natural right of parental dominion over the child during minority cannot be made subordinate to any on the part of the state; that during this period the conduct of the child, however injurious it may be, however vicious it may be, does not make him amenable to the police power of the state at common law. When the custody, education and moral training of the child is claimed by contending parents, the courts, in determining the quéstion, keep in view solely the interests of the child; and when the interests of the child require it, commit the custody to strangers in face of parental appeal. If the interests of society and good government require the removal of children up to a certain age from evil influences, the state in doing so is in the exercise of its police power.

At common law, when the custody, education and moral training of children became a question between the parents, the courts. disregarded the appeals of either or both and looked simply to the interests of the child.

The right to the custody and society of children in the parent is a natural one and one which the state claims no right to take away except the interests of society require it.

Two interests require such intervention on the part of the state, that of the child and that of society. The interest of the latter is the interest of all of its members. It is the latter interest which authorizes the state to invoke its police power to the end that the children of the state shall not be permitted to engage or indulge in practices and habite that in adults are criminal until they are graduated as hardened and unredeemable criminals.

We find no error of record prejudicial to plaintiff in error and the judgment is, therefore, affirmed at costs of plaintiff, and cause remanded to probate court to carry into execution said iudgment.

Dustin' and AHread, JJ., concur.


author: TAGGART, J.

text:
    FORFEITURES — INJUNCTIONS—LANDLORD AND TENANT.
    [Cuyahoga (8th) Circuit Court,
    November 17, 1909.]
    Henry, Marvin and Taggart, JJ.
    (Judge Taggart of the fifth circuit court sitting in place of Judge Winch.)
    William Beckenbach v. Henry Harlow, as Grdn., et al.
    Injunction against Forfeiture of Lease Covenanting against Underletting Previously Waived.
    Injunction will lie to restrain lessors of premises from declaring a forfeiture of a lease, covenanting against underletting, for past violations on the part of lessee made with the knowledge of and without objection by lessees; but such injunction will hot operate to prevent lessors from seeking to secure such premises for future violations after' notice that lessors intend to stand upon the covenants therein.
    Frank Butler and J. -J. Hogan, for plaintiff.
    Berkeley Pearce, for defendant.
   TAGGART, J.

The plaintiff, as tenant of the premises described in the petition, seeks an injunction restraining the defendant from ouster proceedings and declaring a forfeiture of the leasehold. The pleadings and testimony disclose that he has been in the occupation of the premises about ten years; has expended about $12,000 in improvements thereon; that unless this relief is granted he will be subjected to suits in forcible entry and detention; be dispossessed of the property, and will suffer great loss and damage, and that he will be without any adequate remedy at law.

The defendant in his answer admits many of the averments of the petition, and avers the facts to be that the plaintiff has sublet a suite of rooms to a tenant, and has received rent therefor. The defendant further admits that neither Abbie J. Harlow nor Sarah J. Harlow nor the defendant as guardian, have ever actually made any objection to the plaintiff subletting any portion of said premises until February, 1909; that on or about said date defendant notified plaintiff that he was violating the covenants of his lease and elected to forfeit said lease for said underletting, and refused to receive any further rents from plaintiff, and intends to and will insist on such forfeiture, and will adopt and pursue any legal measures to obtain possession of said premises, unless restrained by the courts.

It appears from the evidence that Abbie J. Harlow was the owner of these premises from the year 1899 to the year 1902; that she then ■conveyed the same to Sarah Harlow, who thereafter, until the year 1906, managed and looked .after the premises in controversy; that in the year 1906, a guardian was appointed for Sarah Harlow, so that for seven of the ten years during which the plaintiff has been in the occupation of these premises, the owners of the property have had every means of ascertaining how the premises were used and occupied. There is no evidence that any means were employed by the plaintiff to prevent them from knowing fully and completely everything concerning said property. On the contrary, everything that was done was open, visible and capable of ascertainment, and without any complaint or protest on the part of either of these owners, but all of the time % their apparent acquiescence, and acceptance of the rent from the occupying tenant.

This situation continued until February, 1909, when the guardian of Sarah saw fit to elect to forfeit this lease and dispossess the plaintiff, or threaten to dispossess him.

The principal ground of complaint is that one or more of the suites of rooms over the livery barn are or were rented to persons other than the employes of the plaintiff, without the consent in writing of the lessors, and that in consequence he, as such guardian, so elected to forfeit said lease and determined to secure the possession of the premises.

In the case of Union Cent. Life Ins. Co. v. Pottker, 33 Ohio St. 459 [31 Am. Rep. 555], the court stated the rule in respect to forfeittures, as follows:

“Forfeitures are odious, and there must be no cast of management or trickery to entrap a party into a forfeiture.”

It would seem from this entire testimony that the conduct of Abbie J. Harlow and Sarah J. Harlow fairly led the plaintiff into the belief that this covenant in respect to underletting would not be insisted upon, and that in consequence he continued to sublet these suites of rooms, and also the portion of the premises that had been sublet for a feed business without protest or objection, and the first protest came in February, 1909, in the shape of a declaration of forfeiture and a notice to vacate the premises.

We are of opinion that to permit the defendant to now prosecute' a suit either in forcible detention or a suit in equity to declare a forfeiture, would be a gross injustice, savoring of a fraud on the rights of the plaintiff.

“Where the enforcement of the forfeiture would operate as a fraud, courts of equity have granted relief though the forfeiture was incurred for other reasons than the nonpayment of rent. Thus, relief has been granted where the lessee’s breach was caused by conduct of the lessor which naturally induced him to believe that a performance of the conditions of the covenants would not be exacted.” 18 Am. & Eng. Enc. Law (2 ed.) 391.

We think the language of Andrews, J., in speaking for the court of appeals in the case of Smith v. Church, 107 N. Y. 610 [14 N. E. Rep. 825], and particularly on page 618, is peculiarly fitted to this ease:

“The lease contained a covenant by the lessee, his executors, administrators, or assigns, that he or any of them ‘shall not, or will not at any time or times hereafter, during the term, hereby granted, lease, let or demise all or any part of the said premises, nor assign, transfer or make over the same or the present lease, or any of the renewals of his or their term, to any person or persons whomsoever without the consent of the parties of the first part, their successors or assigns, in writing under their seal, for that purpose first had and obtained.’ It was. shown on the trial that the house erected by the plaintiff was an apartment .house and that the plaintiff occupied one range of rooms and let. the other apartments to tenants by the month, by verbal lease, the rent being exacted each month in advance. It further appeared that the house had been occupied in this manner from the time it was built in 1876, and that in November of each year down to and including November, 1884, the plaintiff paid to the defendant the rent due under the lease, which was at all times received without objection, and the evidence justifies the conclusion that it was received by the defendant with full knowledge of the character of the house, and that it was occupied as an apartment house. Subsequent to the commencement of this action-rent fell due, which was not received, and it is claimed by the defendant that it is entitled to insist that the lease was forfeited by the under-letting of apartments in the house after November 1, 1884, and that, the receipt of rent up to that time did not operate to waive a subsequent breach of the condition. Forfeitures are not favored and Dumpor’s Case (2 Coke’s [Littleton] 119) is a notable instance of the strong leaning of courts against enforcing them. Following the principle of that: case it was held in Brummell v. Macpherson (14 Ves. [Jr.] 173), that a condition against assignment in a lease was determined forever by the consent of the lessor to an assignment, although ‘to one particular-person subject to the covenants in the original lease.’ The defendants on the fourteenth of December, 1863, consented' in writing that Kiernan, the original lessee, might assign the lease to the plaintiff upon the conditions that the assignee should perform the covenants in the lease.

“But passing the question of the effect of this consent upon the rights of the parties, we are of opinion that the conduct of the defendant in receiving for a series of years without objection, the rent due on the lease, with knowledge of the actual situation, should, if necessary, be construed as a license to use and occupy the building as an apartment house, and not as a mere waiver from time to time of a particular antecedent breach of the covenant. The construction of the house indicated that it was designed for permanent use as an apartment house. It is consistent with the circumstances and with fair dealing to construe the acts and silence of the defendant as an assent that the somewhat peculiar interest created by the letting of the apartments from time to time for brief periods, was not an underletting or parting with any interest in the demised premises, within the meaning of the covenant.”

We are of opinion that the plaintiff is entitled to an injunction restraining the defendant from declaring a forfeiture for the past violations of the covenants of this lease and from beginning any forcible entry and detention suits, or any suits to declare a forfeiture of said lease for said past violations, or for permitting his employes to occupy said suites of rooms when such occupancy is a part of the' compensation or wage of said employes, or permitting plaintiff to continue to lease said part of said premises for a feed business as now and heretofore conducted, but this injunction is not to operate or prevent the defendant from declaring a forfeiture or seeking to secure the occupation of said premises for any violations of said lease subsequent to December 1, 1909.

■Henry and Marvin, JJ., concur.


author: MARVIN, J.

text:
    DIVORCE AND ALIMONY — PROCESS.
    [Cuyahoga (8th) Circuit Court,
    May 10, 1909.]
    Henry, Marvin and Winch, JJ.

      Cleveland & Buffalo Trans. Co. v. Kathryn Beeman. (And 5 other cases.)
    Constructive Service upon Nonresident Stockholder in Divorce Gives Jurisdiction to Order Transfer of his Stock to his Wife for Alimony.
    Constructive service by publication upon a nonresident stockholder in a proceeding for divorce and alimony brought by his wife, together with actual service upon the corporations in which he held stock, enjoining them from transferring any stock standing in his name, gives the court sufficient control of such stock to decree the transfer of ownership therein to plaintiff by way of alimony.
    Error to Cuyahoga common pleas court.
    Goulder, Holding & Masten, for plaintiffs in error:
    Cited and commented upon the following authorities: McGill v. Deming, 44 Ohio St. 645 [11 N. E. Rep. 118]; Weidman v. Weidman, 57 Ohio St. 101 [48 N. E. Rep. 506]; Massey v. Stimmel, 8 Circ. Dec. 237 (15 R. 439) ; Pennoyer v. Neff, 95 U. S. 714 [24 L. Ed. 565]; Cooper v. Reynolds, 77 U. S'. (10 Wall.) 308 [19 L. Ed. 931]; Fame v. Mooreland, 15 Ohio 435 [45 Am. Dee. 585]; Cook, Corporations Secs. 480, 481; Williams v. Reynolds, 7 Ind. 622; Disborough v. Outcalt, 1 N. J. Eq. 298; Enuin v. Oldham, 6 Yerg. (Tenn.) 185 [27 Am. Dec. 458]; Lowell, Trans, of Stock Secs. 6, 7; Fisher v. Bank, 71 Mass. (5 Gray) 373; Neiler v. Kelley, 69 Pa. St. 403; Wildman v. Wildman, 9 Ves. Jr. 114; Ross v. Ross, 25 Ga. 297; Foster v. Potter, 37 Mo. 525; Barnard v. Insurance Co. 4 Mackey (D. C.) 63; Deutschman v. Byrne, 64 Ark. Ill [40 S. W. Rep. 780]; Kennedy v. Radltvay, 93 Ala. 494 [9 So. Rep. 608]; Lipscomb v. Condon, 56 W. Va. 416 [49 S. E. Rep. 392; 67 L. R. A. 670; 107 Am. St. Rep. 938]; Goss Mfg. Co. v. People, 4 111. App. 510; National Bank v. Railway, 21 Ohio St. 221; Norton v. Norton, 43 Ohio St. 509 [3 N. E. Rep. 348];' Ball v. Manufacturing

      Co. 67 Ohio St. 306 [65 N. E. Rep. 1015; 93 Am. St. Rep. 682]; Railway v. Brennan, 50 Ohio St. 589 [34 N. E. Rep. 1089]; Cin. N. O. & T. P. By. v. Bank, 56 Ohio St. 351 [47 N. E. Rep. 249; 43 L. R. A. 777]; First Nat. Bank v. Lanier, 78 U. S. (11 Wall.) 369 [20 L. Ed. 172]; Cook, Corporations See. 415; Stone v. Elliott, 11 Ohio St. 252; Warren Co. v. Marcy, 97 U. S. 96 [24 L. Ed. 977]; Leitch v. Wells, 48 N. Y. 585; Holbrook v. Zinc Co. 57 N. Y. 616; American Press Assn. v. Brantingham, 75 App. Div. 435 [78 N. Y. Supp. 305]; Davis v. Signal Co. 105 111. App. 657; Krebs v. Forbriger, 10 Dee. Re. 506 (21 Bull. 313); 1 Pomeroy’s Eq. Jurisp. Sec. 428; Shepherd v. Boss Co. (Comrs.) 7 Ohio (pt. 1) 271; Jelke v. Goldsmith, 52 Ohio St. 499 [40 N. E. Rep. 167; 49 Am. St. Rep. 730]; Boswell v. Otis, 50 U. S. (9 How.) 336 [13 L. Ed. 164]; Black, Judgments Sec. 232; High, Injunctions See. 33; Western Union Tel. Go. v. Telegraph Co. 49 111. 90; Hazlehurst v. Railway, 43 Ga. 13; Spelling, Injunction Sec. 8; Columbus v. Phil-brick, 18 Dec. 145 (5 N. S. 449); Huling v. Railway & Improv. Co. 330 U. S. 559 [9 Sup. Ct. Rep. 603; 32 L. Ed. 1045]; Hart v. Smsorn, 110 U. S. 151 [3 Sup. Ct. Rep. 586; 28 L. Ed. 101]; Arndt v. Griggs, 134 U. S. 316 [10 Sup. Ct. Rep. 557; 33 L. Ed. 918]; Wesner v. O’Brien, 56 Kan. 724 [44 Pac. Rep. 1090; 32 L. R. A. 289; 54 Am. St. Rep. 604]; Ward v. Ward, 63 Ohio St. 125 [57 N. E. Rep. 1095; 51 L. R. A. 858; 81 Am. St. Rep. 621]; Pennoyer v. Neff, 95 U. S. 714 [24 L. Ed. 565].
    C. L. Shaw and A. D. Licey, for defendant in error:
    Cited and commented upon the following authorities: Ball v. Manufacturing Co. 67 Ohio St. 306 [65 N. E. Rep. 1015; 93 Am. St. Rep. 682]; Bail-way v. Brennan, 50 Ohio St. 589 [34 N. E. Rep. 1089]; Benner v. Benner, 63 Ohio St. 220 [58 N. E. Rep. 569]; National Bank v. Railway, 21 Ohio St. 221; Norton v. Norton, 43 Ohio St. 509 [3 N. E. Rep. 348]; Harpold v. Stobart, 46 Ohio St. 397 [21 N. E. Rep. 637; 15 Am. St. Rep. 618]; Herrick v. Wardwell, 58 Ohio St. 294 [50 N. E. Rep. 903]; Randall v. Turner, 17 Ohio St. 262; Turner v. Turner, 17 Ohio St. 449; Spangler v. Brown, 26 Ohio St. 389; Cin. N. O. & T. P. By. v. Bank, 56 Ohio St. 351 [47 N. E. Rep. 249; 43 L. R. A. 777].

      Kathryn L. Beeman brought separate actions in the common pleas court against the plaintiff in error herein and the St. Clair St. Ry. Co., Erie Building Co., Guardian Savings & Tr. Co., Citizens Savings & Tr. Co. and Alva Realty Co.
      Judgment affirmed in all these cases on authority of Benner v. Benner, 63 O. S. 220. See Cleveland & Buffalo Trans. Co. v. Beeman, no op., 81 O. S. 509.

   MARVIN, J.

This ease (No. 4258) together with the cases following, up to and including No. 4263, all raise the same questions and the determination of one is the determination of all.

Suit was brought in the court of common pleas by Kathryn L. Beeman against her husband, Lester A. Beeman, for a divorce and alimony. Later, the prayer for divorce was abandoned and the ease prosecuted for alimony alone. The defendant in that action, Lester A. Beeman, was a nonresidént of the state of Ohio at the time the action was begun, and the only service had upon him was the constructive service by publication as provided for in the statute.

Each of the several plaintiffs in error in these cases is a corporation for profit. When the suit was begun in the court of common pleas, Lester A. Beeman was a stockholder in each of these corporations, and •each of the corporations was made a defendant in that action, and each was served with summons.

On the motion of the plaintiff in that action a restraining order was allowed against each of these corporations, forbidding the transfer of any of the stock standing in the name of Lester A. Beeman, on their books, to any other person. Upon final hearing the court awarded all of the stock standing in the name of Lester A. Beeman in these several corporations to Kathryn L. Beeman, as alimony, and ordered each of said corporations to deliver to the said Kathryn L. Beeman the original certificates for such stock, and in case of the inability of said corporations, or any one of them, or the refusal of any one of them to deliver such certificates, that the decree of the court should operate as a conveyance of the several shares of stock in each of the corporations to the said Kathryn L. Beeman. To this judgment and order of the court error is prosecuted here, and a carefully prepared brief is furnished in behalf of the several plaintiffs in error, contending that the judgment was erroneous, and giving many plausible reasons for such contention. But whatever doubt might exist in our minds, (were it not for the case of Benner v. Benner, 63 Ohio St. 220 [58 N. E. Rep. 569]), is resolved by the judgment in that case in favor of the defendant in error.

The argument in brief on behalf of the plaintiffs in error is that as no personal service was made upon the defendant, Lester A. Beeman, no personal judgment could be rendered against him for alimony, and that the only way in which, in such case, his.property could be reached, is by such proceedings as puts the property in the custody of the court, ,and makes the case, to that extent, a proceeding in rem only, and that an injunction allowed against the custodian of such property, (for the several corporations are the custodians of the stock of the several stockholders: see Ball v. Manufacturing Co. 67 Ohio St. 306 [65 N. E. Rep. 1015; 93 Am. St. Rep. 682]) is not such taking of the property by the -court as will authorize a .decree that the ownership of the property be transferred from the owner of said stock before the injunction, to another party in the suit.

In the case of Benner v. Benner, supra, nothing was done to take the property of the defendant in that action into the custody of the court except the allowance of an injunction against the defendant prohibiting him from disposing of his property. The defendant in that .action was a nonresident and there was no service other than constructive service by publication upon him. No injunction was allowed against anybody but him. True, the property there was real estate situated within the jurisdiction of the court. Here the property is intangible, but it has a situs and that situs is where the custodian of the property is, to wit, the corporation. See the opinion in Ball v. Manufacturing Co. supra, page 314.

The distinction between the case of Benner v. Benner, supra, and the present case, sought to be shown in the brief of plaintiffs in error, fails to convince us that the principle in that case must not apply to this. Indeed, the reason for its application here seems stronger than its application in that case, for each of the parties here enjoined by the order •of the court was actually served with summons in the action, while the property was in the possession and under the control of the corporations. and we reach the conclusion, therefore, that the judgment of the court of common pleas was right and in each of the several eases the judgment is affirmed.

Henry and Winch, JJ., concur.


author: GIFFEN, J.

text:
    DAMAGES — NUISANCE—TRIAL.
    [Hamilton (1st) Circuit Court,
    February 3, 1909.]
    Swing, Giffen and Smith, JJ.
    Cincinnati (City) v. Patrick McLaughlin et al.
    1. Consequence not Negligence of Flooding Premises Gist of Damages.
    The consequences and not the manner of causing an increased flow of water upon premises of another constitute the wrong for which damages lie, and it is immaterial whether done negligently or otherwise.
    3. Measure of Damages for Increased Flow of Surface Water upon Premises.
    The measure of damages to property accruing from an increased flow of surface water thereon is the cost of repairs necessary to preserve the property during the period complained of and the further cost of restoring the property to its former condition, not exceeding the difference in value thereof; but recovery cannot be had twice for the same injury.

      3. Discretion in Order of Admission of Testimony.
    Admission of evidence out of order, the court stating at the time that opposing counsel may offer evidence to meet it, is not an abuse of judicial discretion.
    Error to Hamilton common pleas court.
    ,D. V. Sutphin, assistant city solicitor, for plaintiff in error:
    Cited and commented upon the following authorities. Valley By. v. Frans, 43 Ohio St. 623 [4 N. E. Rep. 88]; Crawford v. Bambo, 44 Ohio St. 279 [7 N. E. Rep. 429] ; Tootle v. Clifton, 22 Ohio St. 247 [10 Am. Rep. 732]; Blue v. Wentz, 54 Ohio St. 247 [43 N. E. Rep. 493] ; Butler v. Peek, 16 Ohio St. 334 [88 Am. Dee. 452]; Buffner v. Land & Bldg. A.ssn. 6 Dec. Re. 1065 (10 Am. L. Rec. 51); Sheldon v. Cole, 3 Dec. 473 (2 N. P. 307) ; Cincinnati v. Wright, 14 Dec. 600 (2 N. S. 53) ;■ Toledo v. Lewis, 9 Circ. Dec. 451 (17 R. 588), afSrmed, without report, Toledo v. Lewis, 52 Ohio St. 624; Cummings v. Toledo, 5 Circ. Dec. 495 (12 R. 650) ; Toledo v. Crasser, 6 Circ. Dec. 782 (12 R. 520).
    Peck, Schaffer & Peck, for defendant in error ;
   GIFFEN, J.

The consequences of the acts of the defendant in causing an increased flow of water upon plaintiff’s property,-and not the manner of performing such acts, constitute the wrong inflicted and it is immaterial whether the acts were done negligently or otherwise.

The admission of evidence out of order is not reversible error, unless abuse is shown, and none appears in allowing the deposition of Mr. Critchell to be read. The court at the time stated to counsel for defendant that he might offer such evidence as he had to meet anything-contained in the deposition.

The refusal to give special instruction No. 1 requested by defendant, if erroneous, was cured by giving special instruction No. 3 requested by defendant, and by the general charge of the court upon the subject of extraordinary and unprecedented storms.

Special instructions Nos. 2 and 4 requested by the plaintiffs correctly state the law of the case. The evidence discloses no necessity for emptying the eight-inch pipe on the hillside back of plaintiffs’ premises;, but on the contrary at least two of defendant’s witnesses testify that with little expense such pipe could have been connected with an existing-sewer.

These two charges restrict the liability of the city to damage directly caused by its own wrongful acts.. As said in the case of Hamilton v. Ashbrook, 62 Ohio St. 511, 518 [57 N. E. Rep. 239]:

“A city may be held in damages for failure to perform its contracts, for wrongs which it perpetrates and for omissions of duties imposed upon it by law.”

The wrong in this case consists in unnecessarily collecting and casting upon plaintiffs’ premises more surface water than would naturally flow thereon.

The objection to that part of the general charge beginning in the middle of page 374 of the bill of exceptions was afterwards answered and satisfied by the court at the request of counsel for plaintiffs, as appears on page 377.

It is further claimed that the court did not limit the right to recover for injury resulting from the acts complained of in the petition, but included all acts within twenty-one years that tended to increase the flow of water upon plaintiff’s premises; but it does not so appear in the charge, as the court expressly refers to damages “resulting from” or “by reason of” the acts complained of, which excludes necessarily all other acts. The plaintiffs were entitled to use and enjoy their property in its natural state, unless changed by contract or prescription, and if the acts set forth in the petition increased the flow of water over the natural flow, and damage resulted thereby, they were entitled to recover.

Of course if other acts of the city or of a third party caused the increased flow of water, and the acts complained of were not the direct cause, there could be no recovery, and we do not understand the charge to be open to any other construction.

The charge of the court, on the measure of damages, that plaintiff® could recover cost of necessary repairs between February 19, 1906, and April 11, 1907, and the cost of restoring the property to the condition it was in at the time the injuries they complain of began, would seem to permit a recovery of the cost of restoration in double measure, first, under the head of repairs; second, under the general head of restoration* If the court had told the jury to allow all repairs necessary during the period named to preserve the property and also the further cost of restoring the property to its condition before the injuries were sustained, not exceeding the difference in value of the property, there could be no. objection; but the charge reads as follows:

“You have a right to take into consideration the age of the building and repairs necessary to place it in the condition the house was at the time before the acts from which it suffered occurred. The sound rule to guide you as to damages is, he is entitled to the cost of restoring the property to the condition it was in at the time that the injuries, he complains of began.”

The cost of repairs necessary to place the house in its former condition, and the cost of restoration to that condition are one and the same thing. If both are allowed, then a recovery is twice had for the same injury.

The special findings of the jury indicate that they were misled by this charge, as they found the cost of restoration to be $525, while the difference in the market value of the property on February 19, 1906, and on April 11, 1907, was only $400, and rendered a general verdict for $925. They probably included in the cost of restoration repairs necessary to preserve the property from further injury; and we think the amount of the verdict should be reduced to $525, the cost of restoration found by the jury, and unless such reduction be consented to by defendants in error the judgment will be reversed. The evidence as to the proximate cause of the injuries sustained is conflicting, but not to that extent that would justify us in holding that the verdict in favor of plaintiffs is not sustained by sufficient evidence.

The remarks of counsel for plaintiffs in his argument to the jury charging the suppression of a deposition and deception in reading only half of an answer in a deposition are not justified by the evidence, and therefore reprehensible; but we think that justice in this case does not. require a reversal of the judgment on that ground.

Swing and Smith, JJ., concur.


author: HIFFEN, J.

text:
    EVIDENCE — FRAUDULENT CONVEYANCE — HUSBAND AND WIFE.
    [Hamilton (1st) Circuit Court,
    1909.]
    Giffen, Smith and Swing, JJ.
    Edward H. Van Ingen v. Gus J. Peterson et al.
    Burden of Proof Rests on Plaintiff in Action against Husband and Wife' to Set Aside Fraudulent Conveyance but Less Evidence is Required to-Raise Presumftion in his Favor.
    The relation of husband and wife does not shift the burden of proof resting upon plaintiff in an action to subject to payment of the husband’s debts property conveyed to his wife, but, the defense being susceptible of direct and positive proof peculiarly within the knowledge of defendants, less evidence is required to raise a presumption or establish a prima

      facie case in favor of plaintiff; hence, notwithstanding absence of direct evidence that the husband paid the purchase price of such property with his own money, circumstances of fact and admission of evidence of the wife’s previous, conflicting statements concerning the use of her money in the purchase thereof, may raise the presumption of the husband’s purchase which will require evidence of the wife to rebut; and the fact, that in face of such presumption she remains silent during the trial, is sufficient to sustain a decree against her.
    Appeal from Hamilton common pleas court.
    C. B. Wilby, for plaintiff.
    C. W. Baker and Thorne Baker, for defendant.
   HIFFEN, J.

The plaintiff avers that the real estate described in the petition was purchased by the defendant, Gus J. Peterson, and the title taken in the name of his wife with intent to hinder, delay and defraud his creditors.

The burden of proof rested upon the plaintiff and did not at any time by reason of presumptions in his favor, or by a prima facie ease made, shift upon the defendants.

In Klunk v. Railway, 74 Ohio St. 125 [77 N. E. Rep. 752], the third proposition of the syllabus is as follows:

“The rule is that he who affirms must prove, and when the whole of the evidence upon the issue involved leaves the case in equipoise, the party affirming must fail.”

There is no good reason why the rule thus stated should not apply to a case of this kind, although the relation of husband and wife may with less evidence raise a presumption or establish a prima facie case in favor of plaintiff.

It is seldom possible to prove a conveyance to be fraudulent by other than circumstantial evidence, and yet the defense is susceptible of direct and positive proof, peculiarly within the knowledge of the defendants.

While some of the cases seem to hold that the burden of proof is cast upon the defendant wife, yet they really go no further than the above stated rule, and only require her to meet the case made by plaintiff’s evidence.

The insolvency of the husband, his relation to the purchase and subsequent management of the property, called for an explanation by the wife which she attempted to give in her examination before a notary public, at another time before a referee in bankruptcy, and at the trial of this ease in the court of common pleas.

The plaintiff offered at the trial in the court her declarations thus made for the purpose of showing the improbability of her claim, that at the time of the first purchase she had $1,000 in currency which she-had earned and saved before her marriage and carried on her person or kept in bureau drawer for several years. Neither the husband or the-wife testified in this court; but his declarations were offered by the plaintiff.

It is claimed by counsel for the defendants that plaintiff is bound* by the declarations thus offered whether for or against him.

The true rule, however, would seem to be as stated in the case of Bearss v. Copley, 10 N. Y. 93:

“Where the declarations of a party are proved against him, what, he says in his own behalf at the same time is competent, but not conclusive evidence in his favor.”

In this case Mrs. Peterson’s testimony that she had $1,000 in currency, and where and how long she kept it, was offered for the very purpose of showing by her own declarations its improbability and inconsistency.

Her failure to testify in this hearing, although present, gave additional force to her former contradictory and inconsistent statements, to wit:

First.' That the cash payment was $300, and subsequently when-the receipt was found, that it was $100.

Second. That her husband did not know that she had the $1,000 until the purchase was made, and yet before that time her husband had-scolded her for leaving the money in her room.

Third. That although she had $1,000 in currency, which was earning nothing, she made a cash payment of only $100 and gave interest bearing obligations for the rest of the purchase money.

It is true as claimed by counsel for defendants that, there is no> direct testimony that the husband paid the purchase money out of his-, own means, but the circumstances are such as have in like cases, been held to raise a presumption that it was so paid.

It works no hardship to the defendant wife to require her to rebut this presumption, and we are constrained to hold that she has failed to do so, although the evidence for that purpose, if available at all,, was within easy reach.

Decree accordingly.

Smith and Swing, JJ., concur.


author: WILDMAN, J.

text:
    INSURANCE — PLEADING—TRIAL.
    [Lucas (6th) Circuit Court,
    June 12, 1909.]
    Parker, Wildman and Kinkade, JJ.
    James A. Dailey v. John H. Chappell.
    1. Answer Failing to Aver Rebate Defense to Action on Notes .Given eob Insurance.
    An answer, in an action on notes given for life insurance, alleging: (1) that the notes were executed upon an express agreement that they should be discounted with a certain brokerage firm of which insured was a member and brokerage allowed such firm, otherwise the insurance should be void and the policy cancelled; (2) that upon notice of failure to carry out said brokerage agreement, the policy was returned to the agent, cancellation demanded and return of notes requested; and (3) that insured became the beneficiary of a rebate, illegal and contrary to Sec. 1 of act 90 O. L. 345 (Lan. Rev. Stat. 5802; B. 3631-4), is defective in that it fails to bring insured within the terms of the statute so as to invalidate the notes or make them fail for want of consideration.
    2. Judgment of the Pleadings, not Prejudicial.
    Judgment on the pleadings without testing the sufficiency of the answer by demurrer is not prejudicial error, no motion being made by defendant for leave to amend his answer or file some other pleading.
    [Syllabus approved by the court.]
    Error to Lucas common pleas court.
    J. J. Keenan, for plaintiff in error:
    Cited and commented upon the following authorities. Columbus v. Reinhard, 1 Cire. Dec. 159 (1 R. 289); Jones v. Procter, 24 O. C. C. 80 (3 N. S. 649); Weaver v. Carnahan, 37 Ohio St. 363; Markley v. Mineral City (Vil.), 58 Ohio St. 430 [51 N. E. Rep. 28; 65 Am. St. Rep. 776]; Kahn v. Walton, 46 Ohio St. 195 [20 N. E. Rep. 203]; Tilling-hast v. Craig, 9 Cire. Dee. 459 (17 R. 531) ; Roll v. Raguet, 4 Ohio 400 [22 Am. Dec. 759].
    Lloyd & Rettig, for defendant in error.
   WILDMAN, J.

This is a proceeding in error to reverse a judgment rendered in the court below in a suit in which the present defendant in error, Chappell, was plaintiff, and Dailey was defendant. Chappell “brought suit upon promissory notes given in payment of a premium for a life insurance policy. Judgment was first obtained before a justice of the peace, and appeal taken to the court of common pleas. A petition, answer and reply were filed in the court of common pleas, but shortly before the filing of the reply by the plaintiff Chappell, a motion was made for judgment on the pleadings, and the court sustained the motion, rendering judgment in favor of Chappell.

Chappell’s answer is somewhat peculiar. It seeks to assert rights, arising under Sec. 1 of act 90 O. L. 345 (Lan. Rev. Stat. 5802; B. 3631-4), the section being applicable to life insurance. It contains three prohibitions, as we analyze the section, against attempted favoritism practiced sometimes by life insurance companies in favor of particular policy holders. The statute is intended in the interest of the people, to-require life insurance companies to treat alike' all persons seeking the benefits of insurance.

The section reads:

“No life insurance company doing business in Ohio, shall make or permit any distinction or discrimination in favor of individuals between insurants of the same class and equal expectation of life in the amount or payment of premiums, or rates charged for policies of life or endowment insurance, or in the dividends or other benefits payable thereon,, or in any other of the terms and conditions of the contract it makes.”' That, is one of the prohibitions.

“Nor shall any such company, or agent thereof, make any contract of insurance or agreement as to such contract, other than is plainly expressed in the policy issued thereon.” That is the second prohibition, and the third is:

“Nor shall any such company or agent pay or allow, or offer to-pay or allow, as inducement to insurance, any rebate of premium payable on the policy, or any special favor or advantage in the dividends- or other benefits to accrue thereon, or any valuable consideration or inducement whatever not specified in the policy contract of insurance.”'

The pleadings here concede that these notes were given for a. premium in consideration of the issuance of a policy by the Phoenix Mutual Life Insurance Company. The answer, as I have said, attempts to assert that the terms of this statute were violated, and the question is whether the answer sufficiently asserts anything of that kind. It is alleged by the answer, among other things, that the promissory notes-were executed and delivered to plaintiff, and

“Said life insurance policy was issued to defendant upon the express agreement that said notes be discounted with the firm of H. S. Walbridge & Company of Toledo, Ohio, and a brokerage allowed to-said firm, and that otherwise said promissory notes were to be returned to defendant, and said policy of life insurance cancelled. That pursuant to said agreement and upon notice of failure of plaintiff to carry out the terms of said brokerage agreement, the policy of life insurance was returned on or about October 28, 1908, to the Toledo agency of said The Phoenix Mutual Life Insurance Company of Hartland, Connecticut, for which plaintiff was then the duly authorized agent, with request that the said life insurance policy be immediately cancelled and said promissory notes set forth in plaintiff’s petition be returned to defendant. That defendant is and was at the time he entered into said brokerage agreement a member of the insurance firm of H. S. Walbridge & Company, of Toledo, Ohio, who were to brokerage said promissory notes set forth in plaintiff’s petition, and thereby becoming a beneficiary of a rebate illegal and contrary to Sec. 3631-4 Ohio Rev. Stat., 86 & 90 O. L. pp. 220, 345.”

These are all the material averments essential to an understanding of the question. The terms of the policy are not recited in the answer, nor do they appear elsewhere in the record.

I might indulge in a considerable discussion as to the various clauses of this statute and a critical examination of this answer to determine whether or not the ease as stated in the answer is brought within the inhibitory provisions of the statute, but I wish to be as brief as possible consistently with a clearness of statement, and it perhaps suffices, in the first place, to say that as to these three prohibitions, the defendant surely does not bring his case under either the first or the second. He does not show that if a special privilege or benefit is sought to be extended to him as a member of the firm of H. S. Walbridge & Co., that a like privilege is not extended to all members of firms soliciting insurance where policies are issued to the members of such firms. For aught that appears in this answer, he is not favored as against others of the same class; nor does he say that it is not the custom of the company to make precisely the same favorable propositions to all of its policy holders of every class. There is nothing in this answer that excludes that idea, and of course the answer to present a defense must embody in it terms which show the transaction to be violative of the provisions of the statute. If it were clearly in violation of the statute, it is our judgment that the notes would not make a basis of action in favor of the party holding them.

Now the third provision of the statute is

“Nor shall any such company or agent pay or allow, or offer to pay or allow, as inducement to insurance, any rebate of premium payable on the policy, or any special favor or advantage in the dividends or other benefits to accrue thereon, or any valuable consideration or inducement whatever not specified in the policy contract of insurance.”

Nowhere does his answer allege that the insurance was induced in any way by this agreement as to “brokerage.” For aught that appears in the entire answer, Walbridge & Company may have been soliciting insurance from other people for the Phoenix Mutual Life Insurance Company, and the transaction may have been a method of paying them, not a rebate to one of their members who was taking out insurance, but a brokerage or compensation for services which they had performed or might perform for the insurance company named in the soliciting of insurance from such other people. There is nothing in this answer to exclude that idea, and we feel quite clear that the defendant has not brought himself so within the terms of the statute as to make invalid the notes which he has given, or to make them fail for want of consideration. As to the latter matter, as to whether they might fail for lack of consideration, it is to be noted that the pleader nowhere says that the contráct, whether legal or illegal, has been violated. He says that pursuant to such agreement, and upon notice of the failure of plaintiff,to carry out the terms of said brokerage agreement, the policy of life insurance was returned. He does not allege that in fact plaintiff did violate his agreement. His statement amounts to little more than that he received notice of such violation. In other words, he says that he is informed that the plaintiff refused to carry out the terms of the brokerage agreement. The answer is rather vague in its terms, and while the pleader may have intended to express a good deal more than he has expressed, in our judgment he has not made such an answer as would have justified the holding of its sufficiency by the trial court. We think the court of common pleas properly rendex-ed a judgment in favor of the plaintiff upon the pleadings.

It is said that a motion for a judgment upon the pleadings was not the proper remedy of the plaintiff; that demurrer should have been filed to the answer,- and thereby its sufficiency tested, and a decision of one of the circuit courts of the state in which the opinion of Judge Shauck, who was at that time a member of that court, is cited as authority for this claim, Columbus v. Reinhard, 1 Circ. Dec. 159 (1 R. 289). Judge Shauck in this opinion disapproves of the practice of rendering a judgment upon the pleadings without testing the sufficiency of an answer, but we do not think that the rendering of such a judgment is prejudicial error, because if the answer is insufficient, no judgment in favor of the defendant could have been rendered upon the basis of the statement therein alleged. The pleader had precisely the same power |nd right to appeal to the trial court for the exercise of its judicial discretion in permitting him to amend his answer or to file some other pleading, if he saw fit, as he would have had if a demurrer to his answer had been sustained. No request seems to have been made for leave to amend, or if one was made, it is not shown in the record.

Parker and Kinkade,. JJ., concur.


text:
    FORCIBLE ENTRY AND DETAINER — INJUNCTION—QUIET TITLE.
    [Hamilton (1st) Circuit Court,
    December 4, 1909.]
    Giffen, Smith and Swing, JJ.

      Seth C. Foster et al. v. Edward Ellison.
    1. Injunction Lies to Restrain Execution of Judgment in Forcible Entry and Detainer.
    Injunction lies against execution of a judgment in forcible entry and detainer pending determination of title, such judgment under Sec. 6601 Rev. Stat. not being a bar to any after action.
    2. Title Quieted of Lessee of Permanent Leasehold upon Election to Renew and Payment of Rent Arrearages.
    A lessee under a lease for three and one-half years renewable forever, holding over twenty days before notice to vacate the premises is served upon, thereby elects to renew; and, having offered to pay all arrearage of rent due on the lease, conditions upon which forfeiture could be declared for nonpayment of rent not having been complied with by lessor, the lessee is entitled to a decree quieting his title to a permanent leasehold.
    J. L. Stettinus, for plaintiff in error.
    Galvin & Bauer, for defendant in error.

      Affirming Ellison v. Foster, 19 Dec. 849.

   GIFFEN, J.

Upon a rehearing of this case, See. 6601 Rev. Stat. was urged as authority for affirming the judgment under review. It provides that a judgment in forcible entry and detainer shall not be a bar to any after action brought by either party. The judgment is thereby limited in its effect, and seems to furnish an exception to the general rule that equity will not enjoin the enforcement of a judgment where a defense at law was available. In this case the defense before the justice, if any-had been made, would have been that a controverted question of title existed as shown by the lease under which Ellison was in possession,, and while the justice could not determine the ultimate question of title,, he could adjudge that such disputed question existed and that it was. a good defense in an action of forcible detainer.

It seems to be conceded that Ellison could maintain an action wherein the title could be determined, but it is claimed that he seeks only to enjoin the enforcement of the judgment, and has misconceived his remedy. The prayer of the petition is for an injunction and general relief, and if the facts alleged entitle him to a decree quieting his title or fixing the extent of his title, it is difficult to see why he may not, under See. 6601 Rev. Stat., have a temporary restraining order until the question of title is determined.

The fact that the judgment is not a bar to any after action between the same parties and concerning the same subject-matter is a strong reason why the execution of the writ should be stayed until the higher court, competent to determine all questions involved, has decided the case. The injunction is ancillary to the main issue of title, and; must be dissolved if that issue is determined against the plaintiff.

Is such main issue well pleaded?

The term under the lease is for three and a half years, renewable foRever, without any express notice required of the intention of lessee to renew. .He held over the term,of three and one-half years for a period of twenty days before notice to quit the premises was served upon him, and thereby elected to renew. He was at the time in arrears, for rent due, but under the terms of the lease a forfeiture could be declared only after demand made according to law, and no demand other than the notice to quit was ever made. He offers to pay all arrearages, and further avers that he has made lasting and valuable improvements upon the premises, in the belief that he had a perpetual lease with a privilege of purchase.

We are of opinion that the facts stated entitle him, upon payment of rent due, to a decree quieting his title to a permanent leasehold, and that the court did not err in overruling the motion to dissolve the restraining order.

Judgment affirmed.

Smith and Swing, JJ., concur.


text:
    INJUNCTION — PROCESS.
    [Hamilton (1st) Circuit Court,
    March 28, 1908.]
    Swing, Giffen and Smith, JJ.
    Pittsburgh, C. C. & St. L. Ry. v. S. P. Copenhaver, Admr., et al.
    1. Service toon Chief Clerk of Superintendent op one Railway Company upon Petition against Another Company not Effective.
    Service upon the chief clerk of a superintendent of a railway company is not service upon a chief officer within the meaning of Sec. 5041 Rev. Stat.; and summons having been served on such officer upon a petition in which a controlling company is named as defendant instead of the operating company, the substitution of the name of the proper company and the amendment of the return of summons to conform thereto are unauthorized to effect appearance of the proper defendant into court.
    2. Injunction against Bringing Six Actions by Same Plaintiff against Sam* Defendant.
    Injunction lies to prevent the bringing of six actions by the same plaintiff as administrator of as many estates against the same defendant of which the court has no jurisdiction, when it appears they can result only in void judgments, this to prevent a multiplicity of suits and vexatious litigation.
    Error to Hamilton common pleas eonrt.
    The plaintiff railway company brought an action in the court below to enjoin the defendant, Copenhaver, administrator, from prosecuting six different actions against the said company on account of the deaths of six different members of the same family, who were killed by being struck by a train at one of the company’s crossings. These actions were brought against the Pennsylvania Company for the reason, as was stated in the court below, that the cars which composed the train which struck the decedents were marked “the Pennsylvania Lines” and employes of the road had declared to the administrator or his counsel that they were employes of the Pennsylvania Company. The actions were filed in August, 1903, six weeks after the accident. Summons was issued upon the Pennsylvania Company, but was served on "W. B. Folger, assistant or chief clerk of the Pitts. C. C. & St. L. Ry. Co., which was the company operating the line upon which the accident occurred, under the control of the Pennsylvania Company. The month following the Pitts. C. C. & St. L. Ry. Co. filed an answer, but did not set up that the Pennsylvania Company was not the proper party defendant. Nearly three years intervened before it was discovered by the plaintiff that the wrong company had been made defendant. A motion to correct the name of the defendant was thereupon filed, which was granted over the objection of the Pitts. C. C. & St. L. Ry. Co., and entries were made correcting the name and also amending the summons and also the return thereon.
    Five months thereafter the petition in the present ease was filed, the prayer of which was that the administrator be restrained from proceeding to trial or from taking judgment in any of said cases until the company had been properly brought into court, the allegation being that if judgment and levy were taken in these cases as they then stood, it would be without due process of law and contrary to the fourteenth amendment of the constitution of the United States.
    In contesting this action it was claimed on behalf of the administrator that notwithstanding the mistake in the name the right party was served with summons; that one of the first maxims of. equity had, been violated by the railway company, to wit, that he who seeks equity must do equity, the violation being in the fact that nothing was' said in the answer of the said company, filed three years before, which would give the plaintiff information that he had not sued the right party; and further, that the company had a complete and adequate remedy at law, and that irreparable injury would result to the administrator by granting an injunction, for the reason that it would prevent the prosecution of cases for six wrongful deaths.
    Maxwell & Ramsey, for plaintiff in error.
    A. H. Morrill, L. W. Goss, Cogan & Williams and Renner & Renner, for defendant in error:
    As against the right of the railway company to an injunction. Fisher v. Hotel & Amuse. Co. 7 Dec. 67 (4 N. P. 329); Walker v. Railway, 8 Ohio 38; Stewart v. Railway, 14 Ohio 353; McCord v. Iker, 12 Ohio 387; Goss v. Mansfield Lodge No. 56 B. & P. O. E. 24 O. O. C. 36 (4 N. S. 11); Wood v. Pleasant Ridge {Vil.), 5 Cire. Dec. 516 (12 R. 177); Gladwell v. Hume, 9 Circ. Dee. 767 (18 R. 845); Northern Pac. Ry. v. Cannon, 49 Fed. Rep. 517; Atkinson v. Allen, 71 Fed. Rep. 58; Burhaus v. Jefferson, 76 Fed. Rep. 25 [22 C. C. A. 25]; 16 Am. & Eng. Ene. Law 359; Mullen v. Jennings, 9 N. J. Eq. 192; North v. Kershaw, 18 Fed. Cas. 331 [4 Blatchf. 70]; New York & H. Ry. v. Haws, 56 N. Y. 175; High, Injunctions Par. 51.
    As to the service of summons on the wrong party, it was contended that the weight of authority, is to the. effect that if a party is actually served, though served under a wrong name, the error will not be fatal, a proposition sustained by the following authorities. 20 Enc. PI. & Prac. 1131; Parry v. Woodson, 33 Mo. 347; Langmaid, v. Puffer, 73 Mass. (7 Gray) 378; Shackman v. Little, 87 Ind. 181; Kronski v. Railway, 77 Mo. 362; State v. Burtis, 34 Mo. 92.
   GIFFEN, J.

The chief clerk of the superintendent of a railroad corporation is not a chief officer upon whom service of summons is authorized by Sec. 5041 Rev. Stat., and service upon such person as an officer of the Pennsylvania Company is not even an attempt to serve the Pitts. C. C. & St. L. Ry. Co.; hence, the substitution of the latter company for the former as defendant upon motion of the plaintiff and the amendment of the return of the sheriff are unauthorized to effect the appearance of such defendant.

Where it appears that the court has no jurisdiction of the person of the defendant in six separate actions growing out of the same alleged negligent act of the defendant, which are prosecuted by the same plaintiff, as administrator of six estates, a court of equity will intervene by injunction to prevent a multiplicity of suits and vexatious litigation which can result only in void judgments. Scofield v. Railway, 43 Ohio St. 571 [3 N. E. Rep. 907; 54 Am. Rep. 846]; Greene v. Railway, 62 Ohio St. 67 [56 N. E. Rep. 642]; High, Injunctions Sec. 12.

The injunction prayed for will therefore be granted.

Swing and Smith, JJ., concur.


author: QIFFEN, J.

text:
    CRIMINAL LAW — VENUE.
    [Hamilton (1st) Circuit Court,
    November 14, 1908.]
    Swing, Giffen and Smith, JJ.
    Harry Enderes v. State of Ohio.
    Absence oe Averment and Prooe of Venue Insufficient to Sustain Conviction fob Criminal Offense.
    An affidavit charging the offense of suffering a game of chance on the premises, in violation of Sec. 6933 Rev. Stat., “within four miles of the corporate limits” of Cincinnati and Hamilton county, in the absence of averment or proof that the offense was committed in Hamilton county and state of Ohio, is insufficient to sustain a conviction therefor.
    Error to police court of Cincinnati.
    Harry Enderes was convicted in the police court of the city of Cincinnati, Hamilton county, Ohio, on the charge of suffering a game of chance on the premises. The alleged offense was committed on the Island Queen, an Ohio river steamer, lying at “Coney Island,” a pleasure resort on the Ohio side of the river, near Cincinnati. The affidavit charges:
    “H. T. Harrison, being first duly cautioned and sworn, deposes and saith that one Harry Enderes, on or about the twenty-ninth day of August, 1906, within four miles of the corporate limits of the city and county aforesaid, did unlawfully suffer a certain game of chance, the name of which is to the affiant unknown, to be played for gain, to wit, for money, to wit, for the sum of five cents, by means of a certain gaming device and machine, to wit, a ‘nickel slot machine,’ by one Louis Wien, in a certain erection, to wit, an apartment upon the main deck of the steamer Island Queen, the said apartment being then and there in the care of him, the said Harry Enderes.”
    The court of common pleas affirmed the judgment of the police court on error.
    M. C. Lykins, for plaintiff in error.
    J. M. Thomas, for the state.
   QIFFEN, J.

It is not charged in the affidavit that the offense was committed at the city of Cincinnati and county of Hamilton, but “within four miles of the corporate limits of the city and county aforesaid. ’ ’ Under this averment it may have been in the state of Kentucky. It is admitted in the record that Coney Island is within four miles of the city of Cincinnati, but there is no proof that it is within the county of Hamilton and state of Ohio.

Judgment reversed.

Swing and Smith, JJ., concur.


text:
    EXECUTORS AND ADMINISTRATORS — PARTIES.
    [Hamilton (1st) Circuit Court,
    May 21, 1907.]
    Swing, Giffen and Smith, JJ.
    Rosa Segal v. Eagle Building Co.
    Idiots Made Parties to Record bt Answer of Guardian.
    In a proceeding to sell, real estate to pay debts, brought by an administrator, heirs who are idiots are made parties to the record by their guardian’s filing an answer and cross petition, waiving issuance and service of summons, admitting the allegations of the petition and asking that its prayer be granted.
    Error to Hamilton common pleas court.
    Phares, Gusweiler & Phares, for plaintiff in error.
    Bates & Meyers, for defendant in error.
   GIFFEN, J.

As appears from the findings of fact the only question involved is whether, in a proceeding to sell real estate by an administrator to pay debts of decedent, heirs, who are idiots, are parties to the record' when not made parties to the petition but their legal guardian filed an answer in which she as such guardian expressly waived the issuing and service of summons upon her wards — admitted the allegations of the petition to be true and ask that the prayer of the petition be granted? We think they are such parties and bound by the sale made. Ewing v. Hollister. 7 Ohio (pt. 2) 138; Section 6143 Rev. Stat.

Judgment reversed and judgment for plaintiff in error.

Swing and Smith, JJ., concur.


author: SWING, J.

text:
    ERROR.
    [Hamilton (1st) Circuit Court,
    June, 1909.]
    Giffen, Smith and Swing, JJ.
    Louis Loeb v. Kent & Kaufhold.
    Dismissal of Proceedings in Error for Failure to File Transcript.
    Failure to file transcript of final record or transcript of docket or journal entries until after four months of rendition of judgment complained of and filing of petition in error gives the appellate court no jurisdiction to review judgment.
    Bates & Meyer, for plaintiff in error.
    Klein & Stagman and J. R. Jordan, for defendant in error.
   SWING, J.

No transcript of the final record or transcript of the docket or journal entries in this ease was filed in this’court until long after the four months from the rendition of the judgment complained of, and not for more than four months after the petition in error had been filed. This court therefore has acquired no jurisdiction to hear and determine whether the judgment is correct or not. Second Nat. Bank v. Moderwell, 59 Ohio St. 221 [52 N. E. Rep. 194]; Falconer v. Martin, 66 Ohio St. 352, 356 [64 N. E. Rep. 430].

The action in this court should be dismissed.

Giffen and Smith, JJ., concur.


author: DONAHUE, J.

text:
    ASSAULT AND BATTERY — CARRIERS—DAMAGES.
    [Richland (5th) Circuit Court,
    1909.]
    Taggart, Donahue and Voorhees, JJ.
    Baltimore & Ohio Ry v. William Reed.
    Assault by Conductor upon a Passenger Renders Carrier Liable tom Punitive Damages.
    A conductor of a railway train is required by his duty to the railway company employing him, to protect passengers and carry them to their destination and as an aid to the performance of this duty the state • has by statute, Secs. 3433, 3434 Rev. Stat., invested him with special police powers; hence, an assault by a conductor upon a passenger in his train is governed by a different rule than injuries inflicted by servants acting in other capacities, and where the conduct of the passenger assaulted is peaceful and he is not violating any rules of the carrier, the conductor will be deemed to have acted within the scop* of his authority for which punitive as well as actual damages may he assessed against the company.
    [Syllabus approved by the court.] .
    Error to Richland common pleas court.
    Cummings, McBride & Wolfe and F. A. Durban, for plaintiff in error.
    Douglass & Mengert, for defendant in error.
   DONAHUE, J.

This proceeding in error is brought to reverse the judgment of the common pleas court in an action brought by William Reed against the Baltimore & Ohio Railway Company for damages inflicted upon his person by the conductor of one of the railway company’s trains, while he was en route as passenger on said train from one station to another, and for delaying him in his journey and compelling him to leave his car against his will before the termination of his journey. The trial in the common pleas court resulted in a verdict for Reed; the motion for new trial was overruled and judgment entered upon the verdict.

The plaintiff in error contends that there was error in the admission of evidence of William Reed as to what occurred at Chicago Junction, but looking to the petition we find that it not only charges damages for the injuries received in the assault which he claims the conductor made upon him, but also for being compelled to leave the train at that point. So that we think that evidence was pertinent to the issue and was properly admitted.

It is also contended that there was error committed by the trial court in permitting the plaintiff’s wife to testify as to what plaintiff was going to do with the poeketboob. Turning to page 45 of the record, we Ind the following:

“Q. What was he going to do with it? A. Why, give it to the conductor. ’ ’

To which question defendant objected and moved that the answer he excluded, which objection and motion the court sustained and instructed the jury not to consider the answer.

“Q. Do you know where he went to putting the pocbetbook. in his pocket ? A. He told me he was going—

“Court: You must not testify to anything he may have said to you. The jury will not consider the answer.”

It is apparent that this evidence was not admitted and that this contention of the plaintiff in error is not sustained by the record.

The next contention, and a more serious one, is that the charge of the court is erroneous. It is claimed that it violates the doctrines announced in Baltimore & O. Ry. v. Lockwood, 72 Ohio St. 586 [74 N. E. Rep. 1071], but with that contention we do not agree. In fact, we think the only serious question raised upon this charge is in reference to that part of it wherein the court charges as follows:

“An obligation rested on the defendant on the twenty-fourth day of March, 1906, being then and there' a common carrier of passengers, to carry the plaintiff, if he was then a passenger on said train, safely and promptly from the city of Mansfield, Ohio, to his destination on this road, and if the defendant entrusted this duty to servants, the law holds the defendant responsible for the manner in which it executes it. A earrier is bound to protect its passengers from violence from its own servants in charge of its trains while in transit.”

If that portion of the charge is correct, then there was no error in refusing the special request of the plaintiff in error nor is the charge open to the other objection raised against it. We are of the opinion that a different rule applies to assaults by a conductor in charge of a train upon passengers in transit upon their train, than in the ordinary case of injuries inflicted by servants in other capacities. That is to say, as a matter of law, it is a part of the duty of that conductor, who is a servant of the company, to carry out the contract made by the company with the passenger to carry the passenger to his destination and to protect him as far as possible from injuries, either from accidents or assaults from other passengers or from servants upon the train.

In Voorhies, Pers. Inj. Cas. Sec. 100, p. 194, this doctrine is announced :

“It is among the implied provisions of the contract between the passenger and the railroad company that the latter has employed suitable servants to run its trains, and that passengers shall receive proper treatment from, them, and a violation of this implied duty and contract is actionable in favor of the person injured by this breach, although the •act of the servant was willful and malicious, as for malicious assault upon a passenger, or by any of the train hands, whether in the line of his employment or not. The duty of a carrier towards a passenger is contractual, and among the implied obligations is that of protecting the passenger from insults or assaults from other passengers or by their ■own servants.”

In support of that doctrine the author cites a great many authorities and in the foot notes copies very largely from those authorities and, unless the law in this respect be different in Ohio than in other ■states, we think the doctrine is correctly stated in the text.

The legislature of this state seems to have recognized this duty of the railroad company and in aid and furtherance of the company in performing that duty, have conferred police powers upon the conductor. Section 3433 Rev. Stat. invests conductors of steam and intterurban railroad companies with powers, duties and responsibilities of police officers while on duty on their train and authorizes such conductors to wear the badge of a special policeman. Section 3434 authorizes them to eject any passenger guilty of disorderly conduct or of any obscene language, etc.

We think the provisions of these statutes were not solely for the purpose of enabling the railroad companies to protect their properties, but also for the purpose of enabling them to protect passengers from assaults of fellow passengers or from the servants of the road, and in other respects to preserve and secure the peace, safety and convenience of passengers. And if a conductor, while in charge of his train, makes an assault upon a passenger who is then in the peace of the state and not violating any rule of the company, as a matter of law, he would be held to be acting within the scope of his authority and the master would be liable.

It is also insisted that punitive damages cannot be allowed in this character of eases, and that the charge in that behalf is erroneous. In the case of Western Union Tel. Co. v. Smith, 64 Ohio St. 106, 117 [59 N. E. Rep. 890], the court quotes with approval the following:

“That ‘a corporation may be subjected to exemplary or punitive damages for tortious acts of its agents and servants done within the scope of their employment, in all cases where natural persons, acting for themselves, if guilty of like tortious acts, would he liable for such tortious damages.’ ”

We are of the opinion that there is no prejudicial error apparent upon this record and, therefore, the judgment of the common pleas court is affirmed with costs but without penalty. Exceptions of plaintiff in error' noted and ease remanded for execution.

Taggart and Voorhees, JJL, concur.