text:
    THE NEW LAW AS TO BILLS OF EXCEPTIONS AND THE NEW LAW AS TO MECHANICS’ LIENS.
    [Circuit Court of Lucas County.]
    George F. C. Kloeppinger v. Joseph Grasser.
    Decided, July 3, 1903.

      Bills of Exceptions — Under Section 5201 as Amended, — The Filing, Examination and Allowance of — May Be Signed Before the Fifty-second Day, hut Not Later than the Fifty-fifth Day — An Entry of Filing, etc., Not Evidence as to These Steps — Bills of Exceptions Before Justices of the Peace — Under Section 6565 — Mechanic’s Lien Law — Act of May 18, 1902, May Be Applied to Contracts Previously Entered Into, When — Its Partial Retroactive Operation Defensible — Sub-contractor’s Remedy at Law Saved — The Section Construed — Pleading—Parties.
    1. Where.the record does not disclose whether a bill of exceptions was filed with the clerk before it was signed by the trial judge, both filing and signing having occurred on the same day, it will be presumed the proceedings in that regard were regular and the bill valid.
    2. The evidence as to what was done with reference to the filing, examination and allowing of a bill of exceptions must, under the present law, appear upon the bill itself; an entry reciting these facts (as under the statute before amendment) can not be con- ■ sidered.
    3. The amended section (5201) does not deprive the trial judge of jurisdiction to sign a bill of exceptions before the expiration of fifty-two days from the overruling of the motion for a new trial; but, all parties to the bill being satisfied therewith, he may in his discretion sign it before the expiration of the fifty-second day, and such action will be valid and not premature.
    4. A statute acts upon the state of facts at the time existing. Hence, it does not give a retroactive effect to the act of April 18, 1902 (95 O. L., 210), to apply its provisions to a building contract, entered into between the owner and the principal contractor and between the principal contractor and a sub-contractor prior to the passage of this act, where the indebtedness of the owner to the head contractor and the notice were of a date later than the passage of this act.
    5. But granting that by applying this act to such a case would make it in some respects retroactive, it would not necessarily be unconstitutional for that reason, and it would not necessarily he wrong to give it that operation.
    6. Section 3197 has the effect of saving to the sub-contractor his remedy by an action at law against the head contractor.
    Parker, J.; Haynes, J., and Hull, J., concur.
   This is a proceeding brought to obtain the reversal of a judgment of the court of common pleas of this county. The parties stood upon tire. record in the court belhw. as they do here. A petition was filed in which Kloeppinger undertook to recover a judgment against Grasser on account of certain transactions, under favor of the provisions of the mechanics’ lien law of Ohio. To this petition an answer was filed, making up certain issues. A jury was impanneled and a witness sworn on behalf of the plaintiff, and then objection was made to the introduction of any evidence on the ground that a cause of action was not stated in the petition and the objection was sustained, -the trial judge taking that view "•of the matter. Thereupon the .court. instructed the jury to return a verdict in favor of defendant, which was done, and upon that verdict a judgment was entered, a motion for a new trial having been overruled.

The first question presented is as to the validity of the bill of exceptions; it being apparent that a bill of exceptions is necessary to bring up the questions which the plaintiff in error seeks to present.

The motion for a new trial was overruled on the 12th day of March, 1903, and judgment was entered upon the same day, so that it is apparent that the case, as to the bill of exceptions, comes under the provisions of the statute found in Yol. 96, O. L., at page 16. That statute, passed October 22, 1902, amends Section 5301, adds Section 5301a, 5301&, and also amends Section 5302, repeals former Sections 5301 and 5302, and contains a provision that after January 1, 1903, it shall.apply to pending eases.

The bill of exceptions was signed upon the 23d day of March, 1903, which was eleven days after the overruling of . the motion for a new trial and the entering of judgment. It' is contended by counsel for defendant in error that tire bill of exceptions should be stricken from the files and not regarded:

First. Because it was not filed with the clerk before it was signed by the judge, as required by this act of October 22, 1902.

Second. Because it was signed'by the judge before the time had. arrived within which he might sign it, that is to s'ay, that it was signed prematurely.

It is alleged that the judge was without jurisdiction in the premises until the arrival of a certain period provided by the statute; that he was as clearly without jurisdiction as he would have been had he undertaken to act' after the expiration of the period.

Now as to the first point: That it was not filed before it was presented to the trial judge. Without passing upon whether that is important or essential, we observe' that the bill of exceptions was signed on the 23d of March, 1903, and was filed upon the 23d day of March, 1903, and we have no .evidence in the record, or otherwise, as to which event first transpired, but the presumption in favor of the legality and regularity of the proceedings, would, therefore, save the bill of exceptions. against that objection. It would require us to assume that it was first filed, if it' were necessary to indulge any presumption upon this question.

The other question arises upon the provisions of 5301, R. S. After providing that the party excepting must' reduce his exceptions to writing and file the same within forty days after the overruling of the motion for a new trial, or the decision of the court where a motion for a new trial is not filed, it provides that “thereupon the clerk shall forthwith notify the adverse party, or his attorney, of the filing of such bill.” And it then proceeds: “Within ten days after such forty days, any other such party may file in the cause any objection or amendment he may propose to the bill. The clerk of said court, at a time not less than twelve, nor more than fifteen days, *after forty days from the overruling of the motion for a new trial shall transmit to the trial judge or judges, the bill together with all objections and amendments, if any, -filed thereto.” And that', counsel insists, means that not less than fifty-two -days after the overruling of the motion for a new trial, nor -more than fifty-five days after that time, the bill of exceptions must be transmitted by the clerk of the court to the trial judge.

And then Section 5301a provides that the trial judge, upon receipt of the bill, shall endorse thereon when it was received by him, “and within five da3rs after the receipt of the bill, and the objections or amendments thereto, if any, to -correct the bill, if necessary, and allow and sign the bill 'and immediately transmit the same or canse to be transmitted to the office of the clerk of of the court.” And there are certain other special provisions in the event of. the absence of the judge.

I find in a journal entry of the date of the allowance and signing of the bill, to-wit, the 23d of March, 1903, the following:

“This day came the plaintiff and presented to the court his bill of exceptions herein, and it being shown to the court that the same has been presented to counsel for the defendant within the time limited by law and that the same has been approved by defendant’s counsel, and the court being satisfied that the same, is in all respects true and correct, allowed, signed and sealed the same, and orders that it be made a part of the record herein, but not to be spread at large thereon.”

But, with respect to that, counsel for defendant in error urge that no such journal entry being necessary — it not being provided for by the statute — we can not consider it as evidence of the facts recited therein. The statute upon that subject is very different now from what it was before the-act of October 22, 1902. Formerly it was necessary to have the allowance of the exceptions appear upon the journal. Whereas now,-by Section 5302 it is provided:

“It shall not be necessary-to cause an entry to be made upon the journal of the' court of the settling, allowance and signing of any bill of exceptions; but the signature of the trial judge, or other judge mentioned in Section 5301a, allowing, settling and signing such bill, shall be sufficient evidence of such fact.”

And we are inclined to think that the objection to the consideration of -this journal entry as evidence of the facts stated in it, is well taken; that the evidence of what was done about filing it, presenting it to the counsel and -to the court, and about allowing it, etc., should now 'appear upon the bill of exceptions itself. But, upon this bill of exceptions we find this endorsement, which it is conceded by counsel for defendant in error was placed there by them upon the date there stated: “Approved March 23, 1903. Seney & Johnson, attorneys for defendant.”

■Still it is urged that that does not meet the objection here; that though counsel may have waived a limitation of time provided for in the statute for their examination of the bill of exceptions, they could not make any waiver that would be binding upon the court and they could not-malte, any -indorsement which would confer jurisdiction upon the court, 'and they insist that it is a jurisdictional question and that the court could not act upon the matter until after fifty-two days after the overruling of the motion for a new trial.

Lately we had a like question before us in Wood county, under Section 6565 of the Revised Statutes, as it appears in Vol. 93, O. L., p. 104, which is a statute providing for the taking of a bill of exceptions before justices of the peace. It reads as follows:

“In all cases before a justice of the peace, whether tried by jury or by the justice, either party shall have the right to except' to the decisions of the. justice upon 'any matters of law arising in- the case. The party objecting to the decision must except at the time the decision is made, and if requested by the party objecting, time shall be given to reduce the exceptions to writing, but not more than ten days, rnior less than five beyond the date of overruling of the motion for a new trial, or from the date on which the decision of the justice is rendered.”

In the ease presented to us the bill of exceptions was prepared and approved by opposing counsel and allowed by the justice before the expiration of five days; it was not done between the fifth and the tenth day, and. it was insisted that that was premature, -that the justice, was without jurisdiction; that he must wait until the expiration of five days since it was provided that the time fixed was not more than ten n-or less than five days after certain action by the justice. ' We overruled that objection, being of the opinion that it was a limitation that the court allowing the bill of exceptions might insist upon or might' not, at' his pleasure; that it was not a jurisdictional matter at all. And we entertain the same view of the statute here under consideration, that the trial judge in his discretion, all the parties to the bill of exceptions being satisfied with it, may sign it before the expiration of the fifty-second day after the overruling of the motion for a new trial and the entry of judgment, -and his action in the premises will be valid. The case is not like one of the expiration of the limitation of time, for instance, after the expiration of the fifty-fifth day, which, under the rulings under the old law left the court without jurisdiction.

So we overrule the motion to strike the bill of exceptions from the files.

This brings us to the consideration of the main question presented, i. e., whether the court erred in refusing to allow plaintiffs to submit evidence in support of the cause of action which they have undertaken to state in their petition-

In order that' -the question may be understood it will be necessary to read the petition:

“Plaintiff alleges that on or about the 17th day of February, 1902, the defendant, Joseph Grasser, entered into a written contract with one John Y. Arnsman, as principal contractor, for the furnishing of material and the construction by s’aid Arnsman of the building known as the Bellview Park Pavilion, in the city of Toledo;, Ohio-, for which the said defendant was to pay the sum of thirteen thousand five hundred and forty-one dollars.
“And in addition thereto, 'afterwards, at the request of the said defendant, said Arnsman did extra work and furnished extra material of the value of about four hundred dollars.
“That on or about the first day of March, 1902, said John Y. Arnsman, as such principal contractor, entered into a written contract with tiffs/ plaintiff, by the terms of which this plaintiff agreed to furnish the material and to do the tin and galvanized iron work on said building, and for which said Arnsman agreed to pay this plaintiff the sum of fourteen hundred dollars as soon as said work was completed, or in progress.
“That tiffs plaintiff did, within a reasonable time thereafter, perform said' contract npon his part in a good and workmanlike manner and to the full satisfaction of the architect of said building. That during the progress of said work, some time in the month of May, 1902, tiffs plaintiff demanded of said Arnsman an estímate of the work done by him and the money due therefor. That said Arnsman in pursuance of such demand secured from the architect -of said building an estimate of the material furnished and labor performed by this plaintiff, to the amount of about one thousand dollars, and on said estimate the money was paid by said defendant to said Arnsman for this plaintiff, but no part of it was paid to tiffs plaintiff. Thereupon, about the 12th day of June, 1902, this plaintiff notified tilre defendant in writing of all the facts above stated relating to the contract of this plaintiff with Arnsman, the demand made by the plaintiff, the estimate, the payment of the money to said Arnsman and the fact that this plaintiff had received no part of it; and then in the same writing notified said defendant to withhold from the money remaining unpaid upon his said contract with said Arnsman, the contract price for this plaintiffs labor 'and material on said building, the sum of fourteen hundred dollars, the same being for the tin and galvanized iron work.
“That said Arnsman, the principal contractor, did not within ten days thereafter, nor at any other time, in writing or otherwise, notify this defendant'that he intended to dispute the claim of this plaintiff, hut upon the other hand acquiesced in and consented to the correctness of the same. That said Arnsman was then wholly insolvent, as the said defendant well knew. That said defendant had at the time of receiving said notice remaining in his hamds unpaid on said contract the sum of thirty-five hundred dollars. That the work on the contract of this plaintiff was completed on June 25th, 1902; and that on June 19th, 1902, there was paid to this plaintiff on said contract, by virtue of said notice; the sum of five hundred dollars, and that no other or further sum has been paid thereon.
“That there remains due to this plaintiff thereon the sum of nine hundred dollars, together with interest thereon from June 25, 1902.
“That on the 23d day of October, 1902, said Arnsman gave to this plaintiff a written order on said defendant for the sum of nine hundred dollars, to be paid out of the money due on the contract price of said building. That the same was then duly presented by this plaintiff to said defendant for payment and payment thereof was refused by said defendant, although said contract with said Arnsman was fully performed and more than enough money remained in defendant’s hands due on said contract to pay plaintiff’s claim.
“Wherefore, said plaintiff prays judgment against said defendant for said sum of nine hundred dollars, with interest thereon from June 25, 1902, and for costs of suit, -and for such other and different relief as is just and equitable.”

Now it will he observed that the action is by a sub-contractor who undertakes to recover from the owner of the building >a part of the money due to the head contractor — a proceeding under the mechanic’s lien law of the nature of a garnishee process.

To this petition an answer was filed, denying liability upon various grounds. This answer need not be noticed because of the form in which the question is presented. The ruling of the court below proceeded upon the theory that an affidavit to the statement furnished by the sub-contractor was required by the statute upon the subject. That Section 3193 of the Revised Statutes, as amended April 13, 1894, or as it stood prior to that day, required a sworn, itemized statement and applied to the plaintiffs ease. It will he observed that the petition does not aver that the statement furnished was sworn to. But the statute in force did not require a sworn statement. The statute in force was passed on April 18, 1902, and is found in Vol. 95, O. L., pp. 210 and 211. But the theory of the court and of counsel for defendant' seems to have been that since the contract between Grasser and the principal contractor and between the plaintiff and the ¡principal contractor were of earlier date than April 18, 1902, therefore, the act of April 18, 1902, did not apply. They seem to have proceeded upon the theory that if it were made to apply it would be given a retroactive effect that would not be admissible and would make it unconstitutional. Though the contracts were of earlier date than April 18, 1902, the notice was of later date; the indebtedness of the owner to the head contractor was of later date, •and so this statute of April 18, 1902, would not act upon the contract' if given the effect .asked for by the plaintiff. It acts upon the state of facts at the time existing. In effect it is not retroactive. Giving to it that' effect does not make it obnoxious to the constitutional provision on the subject of retroactive laws. As I have said the statute provides for a remedy in the nature of a garnishee process — finding A indebted to B and B indebted to C, it -enables O to reach a fund due to B in the hands of A. That is the result of the process of garnishment and it is the effect of these provisions of the mechanic’s lien law with respect to the remedies of sub-contractors.

But even assuming that' the giving of the statute this effect and malting it applicable to this case would make it in some respects retroactive in its operation, it would not necessarily be unconstitutional for that reason, and it would not necessarily be wrong to give it that operation. In Trustees, etc., v. McCaughy, 2 O. S., p. 153, it is said:

“Retrospective laws that violated no principle of natural justice, but that, on the contrary, were in furtherance of equity and good morals, were not forbidden by the Constitution of 1802.”

And the same, of course, may be stated of the Constitution of 1852, In support of this is cited 16 Ohio, 47, and 16 Ohio, 97, and Acheson v. Miller, decided by the Supreme Court at the same term. Another case -which has been referred to on this subject is Batugher v. Nelson, 9 Gill (Md.), 299, where it-is said, among other things:

“But the vested rights thus guarded are -those only to w-hich a party may adhere, '-and'upon which he must insist without violating any principle of sound morality; there can be no- vested right to do a wrong, or violate a moral duty, or resist the performance of a moral obligation.”

Cooley’s Constitutional Limitations, at page 358, contains some discussion upon this subject, and the case of Railroad Co. v. Commissioners, 35 O. S., at page 1, lays down this rule:

“The Legislature can not create a liability for acts as to which there was no liability when they were committed; but where a remedy exists, the Legislature may change it', as well as to acts theretofore as those thereafter done.
“The act of Marcn 7, 1873, which provided a new remedy against -those who placed obstructions in public highways, applied as well to existing obstructions -as to those subsequently placed therein.”

And the ease itself presents a very good illustration of the doctrine. I read from the -opinion -on pages 7 and 8:

“The Legislature, it has been said, can not create a liability for act's 'as to which there was no liability when they were committed. But eA party has no vested right in a defense based upon an informality not -affecting his substantial rights’ (Cooley’s Con. Lim.) At least, it is perfectly clear that if a liability exists, the form of the remedy may be changed, or the existing provisions supplemented by other legislative enactments. Such an obstruction -as that created, in this ease is, by the act -of 1857 (54 O. L., 130), re-enacted in 1877 (74 O. L., 240), declared to be a nuisance, and the person erecting or maintaining it is liable to indictment,- chargeable with the expense of removing it, and moreover liable to the suit of any person injured by such nuisance in his health, comfort', property or the enj-oyment of Ms estate.
“It is clear, therefore, that for this -obstruction there was, at the time it was created, a remedy provided by law; -and we think the General Assembly might well provide, as it did by the amendment of 1873, this new and. additional remedy, and that the amended act applied to obstructions already created. Nor can the statute -of limitations 'apply to such a case as this f-or reasons stated in the opinion in Little Miami R. R. Co. v. Commissioners of Green Co."

Now, as I have pointed out, the old act contained substantially the same remedy for the sub-contractor, but it required that the itemized account should be sworn to. The new aot differs from that only in omitting the requirement that the statement shall be sworn t'o. But even if this were an entirely new remedy given to the sub-contractor, we can not see how this principle underlying the constitutional provision on the subject of retroactive laws can be invoked. The defendant can not insist that' he had constitutional rights to pay his money to the head contractor after it had been earned rather than to the sub-contractor to whom the head contractor had become indebted, even though the sub-contractor pursued the methods provided by law for reaching the fund. The law requiring payment to the sub-contractor lays no new obligation upon the head contractor and it imposed no new burden upon him. He is not required to pay any -more or to pay in a more burdensome way — he is only required to pay the same amount in such a way as to work out a natural equity in favor of the sub-contractor to whom the money is due. We do not regard this provision of the statute as remedial in the sense in which the word is used in Section 79 of the Revised Statutes, and therefore, it may very well apply to the state of facts which then existed although arising upon contracts theretofore entered info.

But it is said that under this new act the plaintiff has no such remedy as he invokes. The law as it stood before contained this provision, in Section 3201:

“If a head contractor or sub-contractor neglect or refuse to pay, within five days after his assent to or adjustment of any claim, the amount thereof, and costs ■ incurred, to the sub-contractor or material man, laborer, mechanic, or person furnishing materials, the owner, board, officer or clerk or agent thereof, shall pay when due, the whole or a pro rata amount thereof as the case may be as above provided out of subsequent payments, and on his failure so to do, within fen days thereafter, the sub-contractor or material man, laborer, mechanic or person furnishing material may recover against the owner, in an action for money had or received, when due, the whole or a pro rata amount, as the case may be, of his claim or estimate, not exceeding in any case the balance due to the principal contractor.”

Now that' gives a specific remedy by an action at law to recover the amount in very clear and exact language, but by the act of April 18, 1902, which, modifies a great many of the provisions of the mechanic’s lien law, Section 3201 is repealed and there is no corresponding section in the new law, that is to say, there is no section having that number and there is no provision in the new l'aw in the same language; but we do find in the new law various provisions upon the subject of the remedy of the subcontractor. We find in Section 3184, this provision:

“The owner, part owner, or lessee shall not be Bable to the subcontractor, or material man, or laborer for any greater amount than he contracted to pay the original contractor, but the risk of all payments made to the original contractor, after such owner, part owner, or lessees shall have received the notice before mentioned, shall be upon such owner, part owner, or lessee, and no payments made to any contractor after receiving said aforesaid notice shall defeat any lien of any sub-contractor, material men, or laborers.”

And in Section 3194 is this provision as to the-effect of the notice and the failure t:o. dispute the .claim:

“And -thereupon subsequent payments under -the contract shall be applied by such owner, his agent or attorney, pro rata among the lien holders, and all such payments made by the owner, agent or attorney shall be considered as part' payment on said contract between the owner -or contractor.”

Then Section 3195 provides specifically for a sub-contractor’s lien upon the premises. It is urged that these provisions which I have read all pertain to the lien that' a sub-contractor may obtain, and they are o-pen to that construction, but, in- Section 3197 we have a provision which we think is not open to that construction and that indieates, as we think, the purpose of -the Legislature to save to the sub-contractor the remedy of -an- action at law, which was given to him under the old law:

“The owner of property on which a lien has béen taken under the foregoing sections may notify in writing the owner of a lien or his agent' or attorney, to commence suit thereon; and if he fails to commence the suit within sixty days after receiving such a written notice, the lien shall be null and void; but nothing herein contained shall prevent the claim from being collected 'as other (¿‘aims are collected -by law.”

Wmiman & Dickey, for plaintiff in error.

Seney & Johnson, for defendant in error.

And we think that has the effect of saving to the sub-contractor his remedy by an action at law against the head contractor. Entertaining that view of the matter, we hold that the court of common pleas erred in not allowing the plaintiff to introduce his evidence in support of his claim.

It.is said that the petition is defective in that it fails to aver that there are no other claims on the fund; but we think that if there are other claims, the defendant might interpose that by way of defense, or by requiring an interpleader to bring in all parties having an interest' in the fund.

It is said that the head contractor should have been made a party. The petition avers that the head contractor has surrendered all right to this fund; that he has made an assignment of it to the sub-contractor, so that his presence does not appear to be necessary; but, if the defendant still entertains the opinion that the head contractor should be brought in, he can have him brought in by interpleader.

It is said, tod, that it appears by the petition that the claim of the plaintiff has been paid because of the payment of the $500 to him and the payment of $1,000 by defendant to Arnsman for the plaintiff. But' we do not think the petition is fairly open to that construction. It is quite evident that the pleader does not mean to aver that the $1,000 was paid to one authorized to receive payment for plaintiff. He is simply reciting the fact that the $1,000 should have been paid to the plaintiff but never came into bis hands, and that .there is still enough money in the hands of Arnsman to discharge his claim. We think the petition states a good cause of action, and on account of the error which we find in the record, the judgment of the court of common pleas will be reversed ‘and the cause remanded.


source: Caselaw Access Project

license: Public Domain

text:
    THE BAR. OF BANKRUPTCY PROCEEDINGS AS AGAINST UNSCHEDULED CLAIMS.
    [Circuit Court of Summit County.]
    Catharine Knapp v. Charles B. Harold.
    Decided, April Term, 1903.

      Bankruptcy — Unscheduled, Indebtedness — Bar of a Discharge Operates Only as to Creditors 'Without notice — V^hat Constitutes notice— How Proved.

    1. A discharge in bankruptcy operates as a bar against a given claim which was not included in the bankrupt’s schedule of liabilities, if it appear that the holder of the claim had notice or actual knowledge of the proceedings in- bankruptcy.
    2. All facts, whether occurring before ,or after the commencement of the proceedings in bankruptcy, tending to establish notice, are competent as evidence as to whether the creditor had notice or actual knowledge of the proceedings.
    3. Where one who holds a note signed by husband and wife is told that they are both going into bankruptcy, and he replies- that he has a claim against the husband, but says nothing about the wife, and the husband’s schedule of indebtedness includes this claim but the wife’s does not, the owner of the note will be held to have had notice of the proceedings in bankruptcy, and a subsequent judgment against the wife on the note will- be reversed.
    Hale, J.; Marvin, J., and Winch, J., concur.
    Error to the Court of Common Pleas of Summit County.
   Error is prosecuted in this court' to reverse a judgment of the court of common pleas. We think this judgment should be reversed.

The action was prosecuted to enforce the payment of a promissory note signed by Mr. and Mrs. Knapp. After the execution of the note each filed a petition in bankruptcy, and in due process of such proceedings received their discharge in bankruptcy. Knapp placed this note on his schedule of indebtedness, the creditor received the proper notice under the bankrupt act, and, it is conceded, he is ‘released from the payment of the. note by that proceeding. Mrs. Knapp did not schedule this claim among her indebtedness, amid the bolder of the claim received no written notice under tbe provision of the bankrupt iaet. The question is, Was she discharged by that proceeding from the payment' of this note? The regularity of the proceedings in the bankruptcy court is not questioned. This indebtedness -was not scheduled and Harold had no written notice under the bankrupt 'act of its existence. The true answer is found in a proper construction of a clause of the bankrupt act which reads:

“A discharge will not release a bankrupt from debts which have not been duly scheduled in time for proof and allowance with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.”

Where the court has jurisdiction and claims have been placed upon the schedule, or if omitted from it, the creditors have notice or actual knowledge of the proceedings, the debt, if provable, is released by the discharge. Counsel for defendant in error insist that the notice referred to in this clause of the bankrupt act refers to the written notice required by another section of the bankrupt act. We think otherwise. Manifestly it provides for a ease in which the debt has not been scheduled and in which no notice under the bankrupt act had been served upon the creditor. In such case the bankrupt is discharged if the creditor had notice within the meaning of this act, or actual knowledge of the bankrupt proceedings. It is simply a fact whether he had notice or whether he had actual knowledge of the proceedings. There is no iron-clad rule that the fact of notice can only be proved by fact's and circumstances transpiring after the bankrupt proceedings. All facts, whether occurring before or after the commencement of the proceedings, tending to'establish notice, are competent to be given in evidence. There is nothing peculiar in establishing notice to a creditor in bankruptcy proceedings. If facts exist such as should reasonably put the creditor upon inquiry, he should make the inquiry, and whether he makes it or not he is charged with notice of all facts concerning which he was bound to inquire.

The court adopted the theory of the defendant in error, and, upon this question of notice, said to the jury:

“If you find from the evidence that she (that is, Mrs. Knapp) knew of the name of the plaintiff as one of her creditors at the time this schedule was made out, and you find that his name (the creditor’s) was not placed in the schedule — that, however, is admitted; but if you find further that he did not know of the bankruptcy proceedings so' far as she is concerned, had no actual knowledge ■of the fact, then those proceedings would not bar him from recovering in this action.”

No reference is made in that’charge to the effect of notice. The language of the statute is, “had notice or actual knowledge.” The •court here says, unless he had actual knowledge the verdict should be for the defendant.

The court was then interrupted by Judge Tibbals, “If he had tíiat notice, then, Your Honor, what?”

The Court: “Certainly, the converse.is if he had that knowledge — if he had knowledge of those proceedings; that is, actually-knew of those proceedings going on at any time preceding the 25th day of February, 1899, that would be a complete release. That date is all wrong. It limits the time in which knowledge might have been given to him shorter than the time fixed by the statute.”
Then Mr. Parsons said: “May I ask the court to further charge that notice of the expectancy or probability of the defendant, Catherine Knapp, availing herself of the bankruptcy act, would not be notice of her actually doing so?”
The Court: “I don’t just get your meaning.”
Mr. Parsons: “That is to say, before these proceedings were brought if some one, an agent of Catherine Knapp or Frank J. Knapp, or both of them, should call up and say that both or either •of them expected to go into 'bankruptcy, ¿that «would not be notice of the fact they had so done, if at that time they hadn’t filed their petition in bankruptcy ?”
The Court: “In other words, gentlemen, on the subject of notice, it means this: The burden is on the defendant to show that the plaintiff in this case actually had notice 'that these proceedings were going on at some time prior to the 25th day of February, 1899. If he didn’t have that notice, and the burderf is on the de.fendant to show that fact, then that would be no b'ar to the plaintiff’s right to recover. Now, you are the sole judges of the weight to be given to this testimony and of the credibility to be given to witnesses. Those are matters for you and for you only.”
Mr. Parsons: “Do I understand the court to mean by that, if “the jury should find a certain notice was given and this notice was given, before the..proceedings were actually had or entered into and the petition filed, that that was not notice?”

B. 31. Smith and N. D. Tibiáis, for plaintiff in error.

G. F. Grant and Patrsons & Burch, for defendant in error.

The Court: “No, it means that after the proceedings were commenced.”
Mr. Parsons: “Any statement that might have been made before the proceedings were commenced was not notice ?”
The Court: “I mean to say, after the proceedings in bankruptcy were commenced, and not until after they were commenced, when it reached a point that it devolved upon the creditors who were notified to file their claims, if at any time between that time and the time the discharge was handed out to her, the plaintiff had actual notice or notice and actual knowledge of these proceeding that had thus far been instituted, that would amount to notice so that he would not be entitled to recover so far as that proposition is concerned. Now, I think I have made myself as plain upon the matter as I could.”

This charge manifestly was misleading. There was evidence tending to show that while the schedules were being prepared this very “creditor was told that both the Knapps were going into bankruptcy. He was asked if he had any claim and he replied he had a claim against' Mr. Knapp, but said nothing about Mrs. Knapp. We think that that was competent testimony as one step towards bringing notice home to this defendant in error, and, taken in connection with the investigations and circumstances that followed it, the jury may have found, under a proper charge, that defendant in error had knowledge or notice of the proceedings in bankruptcy. Indeed, we think the finding of the jury should, under a proper charge, have been that the defendant in error had such notice of the proceedings in bankruptcy 'as is contemplated by the bankrupt act, and that she ■was, in fact, discharged from that indebtedness by that proceeding.

We find no other error in this record.

The question of payment, the question of estoppel were properly disposed of by the court and jury in the court' below.

For the error in the charge of the court as misleading, and because the verdict of the jury was not sustained by sufficient evidence, this judgment is reversed and the cause remanded.


text:
    PARTITION OF LAND COVERED BY LIFE ESTATE OF WIDOW WITH REMAINDER. TO CHILDREN.
    [Circuit Court of Lucas County.]
    The Toledo Loan Company v. Catherine Larkin et al.
    Decided, October 3, 1903.

      Partition — Bights of Life Tenant — Of Remaindermen — Of One Acquiring Interest of Life Tenant and of One Remainderman — Widow may Dispose of Life Estate — Clause'in Will Against Alienation of No ■ Effect. ■

    1. The owner of a life estate, who joins -in a mortgage by one of the remaindermen, and upon suit being brought in foreclosure flies no answer and makes no defense, is barred from setting up in a subsequent suit in partition that she had no interest in the loan secured by the mortgage.
    2. A widow has the right in Ohio to dispose of her life estate, or a portion of it, by releasing her right to the use of that portion.
    3. Where property is devised to the widow for life with the remainder to children, with the proviso that the property shall not be sold during the life of. the widow, the clause against alienation is repugnant to the devise to the children, and of no effect.
    4. One who acquires from a remainderman his interest in land and who' also acquires the interest of the life tenant, has a title in fee with the right to immediate possession and to have his portion set off. But whether he has a right to a sale of the premises— , Quaere?

    Haynes, J.; Hull, J., and Parker, J., concur.
   This is an action in partition. William Larkin died possessed of certain real estate in this county, being farm land and about sixty-nine acres in extent. He had made a will and willed, that t'he widow, Catherine, should have the use of the property during her life, and the remainder was to be divided among his seven children. He also made a proviso in this will that the property should not be sold during the life of his widow. One of the sons, desiring to raise money, made a mortgage to the Toledo Loan Company, his mother joining in the mortgage, by which he mortgaged t'o the loan company a one-seventh interest in said premises. The lo’an was not paid and the loan company brought suit to foreclose the mortgage, making, of course, the mortgagor and also Mrs. Larkin, the widow, parties to the suit; and sucb proceedings were bad in the case that a decree was taken for the sale of one undivided óne-seventh of the property. the widow in that •case did not answer or set up any defense. After the purchase was made by the loan company, it brought a suit in partition to have a part of it set off to it,"being one undivided one-seventh of the property, in severalty. Now the defense is made by the heirs and by the widow also, or, rather, they set up the claim that a partition can not be bad at the present time. She sets up further that she bad no inteest in the loan, received no portion of it' and that it was a loan by her son; that she had been told that it was necessary for her to sign the mortgage in order to enable her son to borrow the money. There is some color to that claim in the language that is used in the mortgage itself; but in the suit to foreclose the whole matter is set up, and it is claimed by the plaintiff that it is entitled to an undivided one-seventh, and the widow makes no objection to that. If she bad set up in that suit what she sets up in this, the matter could have been litigated there; but she having failed to do anything of the bind, we think that bars her from setting it up in this suit; the case must be disposed of here as upon the fact that the loan company has a right to one-seventh of that property, in fee, and the right- to possess it.

The first question made is, that the widow could not transfer •or release a portion of her life estate; that therefore her son did not take a full fee, and that the loan company standing in his shoes, simply has his interest in the property, subject to the right of possession in the widow during her lifetime. To this contention we are unable to agree. We understand the law to be — and. the matter is recognized, we think, by the courts of this state— that the widow would have the right to dispose of her life estate, .and if so, we see no reason why she can not dispose of a portion •of it by releasing her right to the use of a portion of the estate and retain her remainder of that portion.

The next question that came up was in regard to the clause in the will, that the property should not be sold during the life of the widow. The testator bad willed the use of the property to .the widow during her life. We may take it for granted that that conveyed to her a life estate, and that in the enjoyment of that property she would be entitled to possession of the property. It did not create a trust, but she was entitled to possession; and the remainder, subject to that, was given to these heirs. We are clearly of the opinion that that clause of the will — the clause against aliention — is repugnant to the devise made to the children of this property, and is therefore void, and that that clause has no force or effect and can not have in any decision we may mate in this case.

It is true that the Supreme Court of this state has held, in the case of Tabler v. Wiseman et al, 2 O, S., 208, that where there is a vested life estate in property, no one of the remaindermen can have a partition. That proceeds upon the theory that a partition does not create a title, but simply separates the property and gives to each one who is entitled to possession the right to possess a certain part of the property as his own. There is in this case 'cited a very full and earnest discussion of the question by Judge Ranney, wherein it is shown that the right of possession, as well as the right to the land must exist in order to enable the party to maintain possession. There are two cases in this state that have a bearing on this question. This whole ease of Tabler v. Wiseman has a bearing, and should be read in order to fully understand the views of the court upon that question. But there was a case in 11 Ohio, 389 (Morgan v. Staley), which was discussed by Judge Ranney in this Tabler case, at page 216. That was a case where a man died and his property descended to his heirs. The plaintiff in that ease had one-sixth interest in the estate, subject to the widow’s dower, and he was also the owner, by purchase, of the widow’s dower. Now he had the widow’s dower and had -one-sixth of the estate by virtue of his heirship, and the court held that so far as the one-sixth of the land was concerned, he had a title to it in fee simple with a right of possession, and so decreed.

There is a decision found in Vol. 1 Ohio Circuit Court Decisions, 38 (Elrod v. Bass), rendered by Judge Smith. This was a case in which there had been a will made of the property^ under divers and sundry conditions, -and a life estate had been bought in -by one of the persons who owned the reversion or remainder, and the question there came up- whether that party might maintain an action in partition, and this is the syllabus:

“One of several remaindermen, if he is also the owner of the life estate, may- maintain partition, but no division -among the other reversioners -ought to be made unless by their consent, nor ought there to be a sale subject to the life estate if division is possible; -but if t'he life tenant agrees to -a sale free of the life estate-, it may' be h-ad if mo-t prejudicial to the -other parties.
“Remaindermen, or reversioners owning no interest in the life estate, can not maintain partition until the estate expires.”

They hold:

“1. That if there be an outstanding life estate on the whole of a particular tract -of land, hel-d by a qierson who is not an owner of any reversionary interest' or estate in remainder in said premises, an action for -the partition thereof can not be maintained by any -owner -of any interest in reversion or remainder therein.” (And then cite the Tabler case).
“2. But if -one -of the remaindermen, or -a reversioner, is also the owner of the life estate- in the whole premises, he may maintain such an action, and if his interest therein can be set off to him without injury to the value of the residue of the estate, it may be done. This -m-fiy be necessary t'o- enable such' owner of the life estate -and an interest in remainder, properly to enjoy and improve his share of the estate. But (unless by consent of the owners of' the remainder), there ought not to be a partition of the residue -among -them, for the reason that, if it should be done, they -could acquire thereby no present right in the possession of their shares so set off, and the value of such shares, on account -of depreciation of the buildings or improvements thereon, or for -other reasons, may greatly change, before the termination of the -outstanding life estate-. Nor ought there to be a sale of t'he premises; subject to- s-aid life estate, if it can not be so divided without such consent; for in such ease the owner of the life estate manifestly would have a great advantage over the other parties in interest', -or persons proposing to be purchasers thereof. If the owner -of -the life estate agrees to the sale of the premises free of'his life estate therein, and consents to- take the value thereof in m-oney, to be fixed and ascertained by the court, we are of the opinion that such sale may be had, if it appear to the court that it will not be to th-e prejudice of the other parties in interest.” (Citing Tabler v. Wiseman, 2 O. S., 208, and Morgan v. Staley, 11 Ohio, 389).

That case -we think good law, and in the case 'at bar we- think the loan company have a title in fee with the right to immediate possession.. of one-seventh-of this land,-under'.this decision which we have cited, and to- have that portion set off. Whether they had a right to- have 'a sale of the premises, if ■ partition could not be made, is a question which, perhaps, is not necessary to- decide here, because the plaintiff only seeks a portion of that life estate and the balance remains in the remaining, portion .of the land, and, as said by Judge Smith in that case, a partition -ought not to be made, because the conditions may.be greatly changed by the time of the death .of -the, widow. But for these reasons we hold that a partition be ordered of .the premises. setting off a one-seventh - interest, and that is.-,a.s,.,far;.as,our order goes at present.

King &, Tracy, for plaintiffi

Frank M. Sala, for defendants.


text:
    CLAUSES OF EXEMPTION IN ACCIDENT INSURANCE POLICIES.
    [Circuit Court of Mahoning County.]
    The North American Accident Insurance Co., Chicago, Ili., v. Ida Paine Gulick.
    Decided, October Term, 1903.

      Accident Insurance — Clauses of Exemption — Limitations Thereon — The Burden on the Company.

    1. An accident insurance company, relying on the exemption clause in its policy, must show by a preponderance of evidence that the ■insured unnecessarily and voluntarily exposed himself to a known danger, resulting in the accident on account of which suit is brought.
    2. A proviso exempting the company from liability in the event of an accident due to an “unnecessary or negligent exposure to obvious dangers,” -does not include voluntary .exposure to a necessary danger or involuntary exposure to an unnecessary danger; and if the accident was one as to the circumstances of which fair-minded persons may differ, a finding against the company should not be disturbed.
    Cook, J.; Laubie, J., and Burrows, J., concur.
   Ida Paine Guliek was the beneficiary in an accident policy upon the life of Horatio F. Guliek. Mr.. Guliek was lulled at Woods Rum station in Allegheny county, Pa., close to Allegheny City. At the time he was killed he held, this accident policy. And the controversy arises upon the proper construction of the language of the policy, but 'as we take it' more particularly in the ascertainments of the facts as to his death.

We have examined! the evidence of John R. Yeagley with 'a good deal of care; been over it several times. In the first instance, possibly, it would ibe somewhat difficult to understand Mm, or his testimony, in it's entirety. He was the only man that saw Mr. Gulick immediately before tire accident, and is the only witness that throws any light upon the actual manner of death.

At Woods Run station there were four tracks. There was a platform, according to the testimony, between tracks 1 and 2 and trades 3 'and! 4. These tracks ran parallel with the railroad trades. These platforms were 100 feet 'long, 'and there was another platform that ran at right angles, or a passage way or crossing, called a platform, five feet wide that ran across the tracks.

Gulick went to the station house that night, or evening, for the purpose of taking passage home, going to the west, on the accommodation train. At the time the train went west, the express train coming east came 'along; they met at the station, or passed there, or at least did that night. Gulick was going to. take passage as I have said, on the west bound train, and is supposed to have been killed, 'and indeed we think the evidence shows almost conclusively that he was killed by the express train going east.

Now, what were the facte of his killing as detailed, by Yeagley ? Yeagley says, by a proper construction of has testimony, that he first saw him upon the platform — -that is, the platform of the station house; that he went from the five-foot passageway to the platform running parallel between the tracks, 1 and 2, and that he was standing upon the platform 'as he -passed it, about 18 feet below the station, as I take it, about 18 feet between or south possibly, or below, or whichever -direction it was, this passageway of five feet. Wheni he was standing -there, -or as he went to that point, Mr. Yeagley said to -him, take care, he would get injured -or killed, or something to- that effect; he said he knew -his 'business, or words to that effect.

Now Yeagley says he was standing there upon the platform as the express-was-coming towards him, coming in.fihafc direction; that the headlight could be seen, -and of course Guliek could see it if it was coming in that direction; how far off, as Guliek estimated the distance, we -do not know — -mo 'one knows. There he is left upon that platform between tracks 1 and 2, -he having to go over track number 2, that the express train was coming on going east, in order to get to his platform between- tracks 3 and 4 to take his train going west. No one knows what was done afterwards, except that he was struck by the express train going east, and was killed.

Now the pod-icy provides- — -the clause -in controversy: “The sum of one-twentieth of the -amount named in the clause T)’ in the case of accidental death,” this amount being for $3,000; or one-fifth o-f the -amount named in -clause ‘A’ per week for a period not exceeding five consecutive weeks, in event of non-fatal injuries causing total ¡disability -or loss of hands, feet, or eyes, shall be the maximum limit of the company’s liability under -the policy; should the accident, injury, -disability, death, o-r Ires of limb, or sight result wholly or partly, -directly -or indirectly, from voluntary over-exerti-on; from lifting; from unnecessary or negligent exposure to obvious danger ; from intoxication or while intoxicated; from or while violating law; 'from -altercation, fend or quarrel;” -and so forth. It is not necessary to read further “from unnecessary or negligent exposure to obvious danger

No-w, it is claimed by counsel for the insurance company that this was -an unnecessary or negligent exposure to obvious danger; that Guliek could see tbe train approaching; that he must have known it was -approaching, and -hence if he undertook to go 'across the track in front of the train, it came under the provision of this clause <of the policy, and -the beneficiary can not recover except as to the one-twentieth part. Now, what does it mean? It is said that there is no clause in any form of the policy, reported in the reports, that is precisely like this -one. It -does not- certainly mean the s-ame as what would be commonly understood as contributo-ry negligence; it -could not mean that. There would be no use in taking out a policy in an accident insurance company if it meant simply that the party was1 to use the ordinary care which would he required in boarding a railroad train; it must mean more than that; indeed, ■ this clause'-says more than'that: “From unnecessary or negligent exposure to obvious danger;” It must be something, as I take it, more than miscalculation as to the' 'distance the train was off, which might have been this case.

Now, in a case against the railway company — if-this was an action against'the railway company for negligence — the party would be required to 'ascertain and know how much time would be required to get over that track. But that is not this case. It must be a danger, as we take it, which he actually realizes and knows to be existing; that he goes voluntarily, and; if you please, willfully in front of it. If that was not so, 'as I have said, there would be no sense in an accident policy.

Now, this in the 56 Ohio State (U. S. Mutual Accident Assn. v. Hubbell), throws some light upon it:

“The term ‘voluntary exposure to unnecessary danger’ in an accident policy does not embrace every exposure of the assured that might have-been avoided by the exercise of due-care -on his part. It relates to dangers of' a substantial character of which the assured at the' time had knowledge, and to which he purposely and consciously exposed himself,- intending at- the time to 'assume 'all the risk.”

There is a difference between that clause- and the one that is on trial. There it reads, “voluntary exposure to unnecessary danger.” Here it reads “from unnecessary and'negligent exposure to obvious danger.” But not very much difference when you put the two clauses together; the same -principle would apply, that is, he must intentionally expose himself to danger to be apprehended.

Judge Speár, -who,--I think it was, -decided the above case, says:

“It. is clearly pot enough in such case .to show that the deceased was negligent. Negligence in its usual legal signification has no place in measuring the liability of a company under an ordinary accident -insurance-, policy; fof .'its presence would overturn the primal theory of the contract.-. Accidents are the result very largely of the failure to observe due, care, and yet toe..contract,is intended as a remuneration in case of accident, and it is to procure the obligation of the company to pay this remuneration, that"the assured pays the premium * * * Accidents are the result very largely of the failure to observe due care; and yet the -contract is intended as a remuneration, in case of accident, and it is to- procure the obligation of the company to pay this remuneration, that the assured pays the premium.”

Referring to the case in the Massachusetts reports, copied from that case, the court says:

“By taking a policy of insurance against accidents, one naturally understands that he is to be indemnified against accidents resulting in whole or part from his own inadvertence.”

And in a ease that is referred to by counsel, the court says:

“Looking them at' the policy with reference to the subject of the contract of insurance, the first proposition relied on in defense is against, ‘A voluntary exposure to unnecessary danger, hazard, or perilous adventure/ A voluntary exposure to necessary danger is not forbidden, nor 'am involuntary exposure to unnecessary danger. The policy recognizes that there are some dangers which it is necessary to encounter, as for example, where there is a chance to rescue persons in deadly peril. There are other 'dangers which one usually need not encounter, if he knows of their existence long enough beforehand, as for example, the danger of a runaway horse, or coming oar; and a merely inadvertent 'and unintentional exposure loa danger of this kind is not voluntary, but involuntary. A voluntary exposure to unnecessary danger implies a conscious, intentional exposure; something which one is consciously willing to^ take risk of. By taking a policy of insurance against accidents, one naturally understands that he is to -be indemnified against accidents, resulting wholly or partly from his own inadvertence. Great negligence .will not necessarily defeat a fire policy. And in the present policy against accidents, upon the evidence, although the jury might well find a voluntary exposure to danger, we can not say that it would be bound, as matter of law, to do so.”

The caste in the 127 Michigan, also submitted by counsel, comes nearer to this case:

“A condition in am accident policy of insurance against liability caused by 'voluntary or unnecessary exposure to obvious danger* is limited to cases of intentional exposure to recognized danger, and does not include acts of mere thoughtlessness' on the part of the insured** (Irwin v. Accident and Sick Benefit Assn., 127 Mich., 630).

Now, as I have said, if Mr. Gulielt miscalculated the distance of the train, which he ought to have calculated, possibly, more accurately, and under that supposition he intentionally went across the track, and did not use such care -as would be required in ai case for personal injuries through the negligence of the company, yet without he knowingly and intentionally exposed himself to the danger, the company would be liable. The question was submitted to the court, who tried the case in place of a jury, 'and the court found that the deceased did not violate the provision of the policy, which provided “That one-twentieth could' be recovered when death ensued ‘from unnecessary or negligent exposure to obvious danger.’ ”

Arrelj McVey & Taylor, for plaintiff.

Thos. W. Sanderson, for defendant.

If the question had been fairly presented to a jury under proper instructions, whether because of the negligence of Gulick that this provision of the policy had been violated, and the jury had found against the company, we would not disturb the verdict without we felt or thought it was clearly otherwise, or at least that the jury bad no right to assume otherwise. If honest persons, fair minded persons, would differ as to the circumstances of this accident, then the verdict of the jury should stand, and so also the finding of the court.

Furthermore, it was the duty of the insurance company to show by a preponderance of the evidence that the death came within the exception; as said by our Supreme Court, the burden devolved upon the company to show by a preponderance of the evidence that he exposed himself to a known danger — unnecessarily and voluntarily exposed himself. Who says Gulick did so ? Did he trip and fall on the platform before the train came along? Did he attempt to go over at all ? Did he cross the track ? Or dad'he trip and fall off the platform on the track ? Did he stumble ? Had he a fit ? Was he stricken down? Of course we can assume that he went over the platform; we might also assume that he went over the platform directly-in front of the locomotive; hut we have no right to assume that he would necessarily and negligently expose himself to a known danger or to an obvious danger, and the facts -being foir the court, we thi-nik the court -might well find that there was no evidence tending to show that he did so expose himself. It was the duty of the company to- make -out the exception as set forth in its policy; it failed to do so; therefore upon that theory particularly the judgment of the court below must he affirmed.


author: IiAUBIE,. J.

text:
    RATIONAL DOUBT AS TO CONTRIBUTORY NEGLIGENCE.
    [Circuit Court of Cuyahoga County.]
    The Cleveland Electric Railway Co. v. Charles Wadsworth.
    Decided, March 23, 1903.

      Negligence — Failure to Look for Danger in Crossing a Street Car Track —The Ruling as to Rational Doubt Applied.

    Where it appears from the testimony of the plaintiff himself and from all the testimony in the case, that upon alighting from a street ear the plaintiff passed around the rear end and onto the track used by cars running in the opposite direction, without paying any attention to his surroundings, or looking in the direction from which cars approached on that track, or checking his pace, and was struck by a ear and injured, there can be no rational conclusion save that his own negligence contributed to the injury. In such a case there, is nothing to submit to the jury, and it is error for the court to refuse to enter judgment for the plaintiff.
   IiAUBIE,. J.

This is a proceeding in error brought to reverse judgment of the court belotw, rendered in favor of Wadsworth against the company for personal injuries received while crossing the tracks of the company 'at Auburndale avenue, in East Cleveland.

On the trial at the conclusion of the evidence, counsel for thie railway company made a motion to take the case from the jury and for the court to enter judgment’ for defendant, which the court refused to do, and in this respect we think the court erred.

The evidence on the part of the plaintiff differed in no great respect from the evidence introduced on the part of the defendant as to the accident, and the whole evidence showed -beyond any rational -doubt that Wadsworth was himself guilty of contributory negligence. He was on the car going east, amid he notified the conductor that he desired to get off at Auburndale avenue. The conductor gave the signal to the m-otorman -and the ear began to slow up. Wadsworth was on the rear end of the car, and as the ear slowed up and just before it reached the crossing, he notified the conductor that he -might go ahead, and he stepped off. Immediately the conductor gave the motorman the signal to go ahead, and the car started at an increased rate of speed. As Wadsworth stepped off, he stepped off facing east. He says he turned around and walked around the end of the car -across the first track and onto the devil strip toward the second track at 'an ordinary gait, and as he was still stepping forward 'and was about to touch the south rail of the westbound -track, he saw the west-bound -car and its headlight' in front -of him, -and some portion of the oar struck him and knocked him down and injured Mm. He had -been living at Aubumdale avenue f-or some -considerable time, and bad been using the cars- of the street railway company -daily; he knew of -the situation, the surroundings, -and he knew that -ears were in the habit of running there on those tracks substantially every three minutes; that he was not up-on the cross-walk, or where the cross-walk should be, but that -he got -off just before he reached the cross-walk. He testified that' he remembered all that to-ok place unti-l he was struck, and after that he remembered nothing until after he was at the hospital. On this trial he claimed -he remembered everything -that' occurred up to the time he was struck, although he did not on- a former trial; but he admitted that' while upon the car he was thinking -of some matters of business that he had to- attend to. the following day. He could not remember, as -he walked across the trades, what he was thinking of then. -So that, so far as his mind was concerned, it was -not upon Ms surroundings at all; he had not in Ms mind the fact that Cars were running as frequently as he named, westward •upon'the west-bound track wMeh he had to cross, and he -did not look to see; he neither stopped to observe nor did he 1-ook eastward upon' the west-bound track. That was the only direction from which danger could be apprehended, and he was not required to 1-ook in both directions, as no cars ran eastward upon the west-bound track. With ail this knowledge of the surrounding circumstances and the danger to be apprehended, his mind was mot upon the danger, n'o-r upon the question of Ms own safety, no-r whether any car that might he coming from the east might injure Mm. Without regard at any time to the surroundings-, he was simply going, as he s-ays, at an ordinary gait, and as some of his own witnesses testify at a very lively, quick gait, and .he stepped right forward 'and was in the. act of.still stepping forward when he was struck. He just had time, he said, to throw up his hands. It was somewhere between 10 and 11 o’clock at night and the head-light on the west-bound car was burning brightly.

Now, under such circumstances, even upon his own testimony, which was in no sense different from that of all-the other witnesses, it is evident that there could be no rational conclusion save that his own negligence contributed to his injury.

There can be no question about the negligence of the railway company, of the men who were in charge of the west-bound ear; they were running at too great a rate of speed, in passing a oar that was stopping at this crossing. But it is evident, from his own testimony, and from all the testimony in the case, that as the plaintiff was himself guilty of negligence contributing to his injury, he could not recover.

There was no question to submit to the jury; it was simply a question of law for the court to determine, whether or not he had a right to recover.

The case is entirely different from the case referred to in the 54 O. S., of The Cincinnati Street Railway Company v. Snell; and is precisely the same character of case referred to by Judge Spear, in the majority opinion) in the Snell case when he said, page 201:

“The ground upon which the common pleas directed a verdict was that the plaintiff’s evidence disclosed contributory negligence of such a character as to preclude recovery. In other words, the holding was that, as a matter of law, the plaintiff was guilty of contributory negligence. If the plaintiff’s conduct, as shown by undisputed facts, left no rational inference but that of negligence, then the ruling was right, but if the question of contributory negligence depended npon a variety of circumstances from which different minds might arrive at different' conclusions as to whether there was negligence or not, then the ruling was wrong.”

The recovery was affirmed in the Snell case because the plaintiff himself testified that he looked in both directions at the time for an approaching car.

The testimony here was precisely the opposite, and it was the duty of the court under the circumstances, to take the ease from the jury and render judgment for the defendant.

Squire, Sanders <&■ Dempsey, for plaintiff in error.

J. W. Taylor, W, H. Boyd and T. H. Garry, for defendant in error.

Proceeding to render, therefore, the same judgment that the court below should bare rendered, tbe judgment below will be reversed and judgment entered for the railway company for its costs, and the pettitaon of tbe plaintiff dismissed.


text:
    THE DISCRETIONARY POWERS OF BOARDS OF EDUCATION IN THE CENTRALIZATION OF TOWNSHIP SCHOOLS.
    [Circuit Court of Clinton County.]
    The State of Ohio, ex rel Thaddeus A. Haines, et al, v. The Board of Education of Chester Township Centralized School District, Clinton County, Ohio, et al.
    Decided, November 28, 1903.

      Schools — Centralisation' of — Mode and Manner of, Discretionary with Board — Hostility of Board — Dilatory Action — Change of Plan from One to Two Schools — Mandamus—Injunction.
    1. While the centralization of township schools may be made imperative upon a board of education, it is only when the board deems it necessary to purchase a site and erect a school building thereon, that it is required so to do by the provisions of the act of April 16, 1900, found in 94 O. L., at page 317.
    2. Either the original board or its successor, acting in good faith before the building is erected or commenced, may reconsider the first action taken in that behalf, and decide to centralize the schools of the township in two places instead of one, and its discretion as to the mode and manner of' centralizing the schools can not be controlled by mandamus, notwithstanding its judgment may be at fault; if at the time of such reconsideration there is a contractor holding a valid contract for the erection of the building, his remedy is at law.
    3. Hostility of a board to centralization, dilatory action in effecting it, and the appropriation of $1,000 for expenses of litigation, would not warrant a finding that the board acted in such bad faith as to require a court to interpose by a writ of mandamus.

      4. Injunction will not lie to restrain a board of education from maintaining separate schools in joint sub-districts after a vote for centralization.
    Gifken, J.; Swing, J., and Jelke, J., concur.
   As we construe the act of April 16, 1900 (94 O. L., 317), we think counsel for relators lay too great stress upon the imperative duty of the board of education to purchase a site and erect a suitable building thereon. It is only when the board deems it necessa/inj to purchase a site .and erect a building thereon that the act requires them to do so, .and there is nothing in the act’ itself preventing the original board, before the building is erected or commenced, from reconsidering the action taken, and resolving to centralize the schools not in one but in two places. It may have made a mistake in the first instance, and the very discretion vested in it by the act carries with it the power and duty to,correct that mistake.

If the original board may reconsider its 'action in this respect, then its successor, being clothed with all the powers of the old board, may exercise them, with a like discretion, subject, however, to the rights of a party to any contract the former board may have made: It may be said that successive boards may thus undo all that their predecessors have done, prevent the centralization of the schools, 'and ultimately defeat the will of the people; but it is only the natural result of our elective system of government and is in reality the expression of the will of the people through its chosen representatives. Such boards can not legally refuse to centralize the schools because the law makes this duty imperative, but the mode land manner of performing it is discretionary, and if the duty is not performed by the old board such discretion is vested in its successor.' If the building contractor has a valid contract, his remedy is an action at law, and so long 'as the present board of education is proceeding in good faith to centralize the schools of the township, its discretion with respect to the manner of doing it can not be controlled by the extraordinary writ of mandamus, although its judgment' may be faulty. While the purchase of a site is .an incident of the centralization of the schools, it is not necessarily included in that' term as defined by the first section of the act of the General Assembly, 'and being effected by the predecessor of the incumbent board, each possessing like authority in the premises, it does mot come within the principle announced nor the statute construed in the case of Moss v. The Board of Education, 58 O. S., 354. We are of the opinion, therefore, that the action of the present board in proceeding to centralize the schools in two places within the township district, whether wise or unwise, if done in good faith, can not be prevented by mandamus.

D. B. Van Pelt and Smith & Clevenger, for the relators.

Thorpe & Miller, A. E. Clevenger and L. J. Walker, for defendants.

The hostility of the board to centralization, its dilatory action in effecting it, and the appropriation of one thousand dollars for the expenses of litigation, may be open to just criticism, but do not warrant a finding that it’ acted in such bad faith as to require this court to interpose by writ of mandamus. The relators, by an amendment to the position, seek to enjoin the defendant board from maintaining separate schools in the joint sub-districts which are under the control of the Board of Education of Chester Township. In the case of Elias D. Harlan et al, v. The Board of Education et al, it was not necessary, nor did this court' decide, that such joint sub-districts were abolished by the vote for centralization. Section 3927-1, Revised Statutes, provides in express terms for the abolishment of sub-districts only, and whatever doubt may have existed as to whether joint suib-districts were, by implication, included in the term sub-districts has been removed by Section 3927-5, Revised Statutes, as amended May 12, 1902. Besides, if the board of education is required by law t'o include joint sub-districts in centralizations, they could -be compelled to do so by mandamus under the original petition, and injunction would not be an appropriate remedy. The object of mandamus is to compel performance, while the office of injunction is to restrain.

'The -injunction and mandamus will each be refused.

Judge Giffen does not concur in the finding .that the joint suibdistricts are not abolished.


text:
    JURISDICTION TO ORDER AN ELECTION UNDER THE BEAL LAW.
    [Circuit Court of Logan County.]
    In the Matter of the Local Option Election in the Village of Huntsville, Logan County, Ohio.
    Decided, March, 1903.

      Beal Law — Proceedings by Council — For the Ordering of an Election— Jurisdiction so to do Must Affirmatively Appear — Proclamation by Acting Mayor.

    1. Authorized jurisdiction is a condition precedent to the ordering by council of a vote under the Beal Municipal Local Option Law, and such jurisdiction must affirmatively appear from the record.
    2. But where the record shows that a petition for an election under the Beal Law was presented to council, and that body took action by appointing a committee to investigate the matter, and the report of the committee was to the effect that more than forty per cent, of the voters had signed the petition, and this report was adopted, and by a unanimous vote of council an election was ordered and held, the fact that there was no formal finding that forty per cent, of the voters had signed the petition, and objection that there was in substance and effect no finding by council of the jurisdictional fact, does not go to the essence of the matter, but is technical, and will not lie.
    Day, J.; Norris, J., and Mooney, J., concur.
   On the 4th of August, 1902, an election -was held in the village of Huntsville, Logan county, Ohio, under the provisions of the Beal Municipal Local Option Law, by the returns of which the proposition to prohibit the sale óf intoxicants was carried by a majority, slightly attenuated but sufficient, if valid and in effect.

A contest was instituted in the 'probate court of said election to have it' adjudged void 'and invalid on the grounds: First, that there was no mayor of said village qualified to make a proclamation of said’election, as required by law; second, that forty per cent, of the qualified electors of said village 'did not petition the council for the privilege of determining by ballot whether the sale of intoxicating liquors as a beverage should be prohibited in said village, and that the council never found nor determined that forty per cent, of said electors had signed such petition; third, that a majority of the votes east at said election were not against tíie sale of intoxicating liquors as a beverage; and, fourth, that the statute under which said election was held is contrary to the Constitution of the state of Ohio and invalid.

On the 20th of August, 1902, the probate court of this county after hearing all of the evidence and argument, gave judgment against the oontestors and in favor of eontestees, sustaining the election, and held said election in all respect's according to law and valid; and the court overruled tire motion to set aside the finding and judgment and for a new trial. The contestants prepared a bill of exceptions, containing all of the evidence had on the hearing and containing the rulings of the court on hearing. Error was prosecuted in the common pleas court, and upon the hearing there the finding and judgment of the probate court was affirmed. Error is prosecuted here to reverse the judgment of both the lower courts.

There is a general assignment of error in the petition in error, viz., that the lower court erred in affirming the findings and judgment of the probate court.

In the lower court the unoonst'itutionality of the so-called Beal Local Option Law, and that there was no qualified mayor to make the proclamation to the voters was insisted on, but in this court while they are not abandoned entirely, they are waived so far as this court is concerned, with the statement that the Supreme Court has upheld the same law as against the charge of invalidity, and that 'the mayor of the village of Huntsville, did, in fact, make the necessary proclamation.

This court has not had much success in overruling decisions of the Supreme Court and therefore is not desirous, at this time, to engage in that kind of enterprise. We prefer to 'accept the out-givings of that exalted court, as authority for us to follow, until that court in its wisdom may see proper to 'change ife rulings. Counsel did well in waiving the proposition in this court, amid! saving it for the Supreme Court, in event the case finds it way there; also in view of the fact that Huntsville had an acting mayor, he did well to waive the question as to no qualified mayor to make the necessary proclamation of the election.

The single question relied on, for this court, is that forty per cent, of the electors did not petition for a ballot, and that the council did not so find before ordering an election to be held. Forty per cent, of the electors must make and sign a petition to council, asking the submission of the question to a vote, before council can have any 'authority or right to order a vote. Authorized jurisdiction is a condition precedent to the exercise of power to order a vote by the council; and if not true, if forty per cent, of the electors did not so petition, the election 'must be held of mio effect. This jurisdictional fact may not be presumed from the fact that an election was ordered by council, but must affirmatively appear in the record. If it' does so appear, then the presumption arises that the order made was properly made and is valid unless the proceeding was so irregular and erroneous as to invalidate; such was the holding of this court in the ease of Smith v. Frenzer et al, in 12th Circuit Court' Reports, at page 250. That case was affirmed by the Supreme Court and may be considered the law on that subject.

The only question we have here is- the one: Does if 'appear from the record affirmatively that forty per cent, of the electors petitioned for the submission of the question of prohibition in Huntsville to the electors of the municipality ? We are all of the 'opinion that such fact does 'dearly appear of record. The record of council shows that a petition for an election was presented to the council under the Beal Law and the council took action by appointing, on motion to that purpose, a committee to investigate the petition and report the facts to the 'Council. The committee did investigate and report to the council that forty per cent, of the voters of Huntsville have signed the petition. This report was accepted and acted upon by the council by unanimous vote and an order made appointing August 4th. as the date that an election should be held.

There is no formal finding of the fact of forty per cent, of the voters signing the petition, but 'by the fairest inference it appears that such fact was then acted upon by the council and by each and every member thereof present and participating in the proceedings. This .objection appears to us to be not at all of the essence, but purely and merely technical. There is in substance and' effect a finding by the council of the jurisdictional fact, and if there -is any doubt of that, it is made to' appear on the trial of the contest in the probate court, teat ini fact more team forty per cent, of the voters did sign tee petition. We are of tee opinion teat tee fact teat forty per cent, of tee electors signed tee petition is quite apparent on the record and teat the council so found is also apparent. This gave jurisdiction and uo prejudicial thing being made to appear, the presumption is that tee order made was properly made, and tee judgment is affirmed with costs but without penalty.

Judgment for costs, execution is 'awarded and remanded for execution.