author: Scribner, J.

text:
    (Sixth Circuit — Lucas Co., Circuit Court,
    January Term, 1896.)
    Before Haynes, Scribner and King, J. J.
    THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY, v. STILLMAN BROWN AND DANIEL A. BROWN.

      Railroad lowering track at street crossing under authority of resolution of City Council — Railroad’s liability for damages to abutting property owners.

    Where a railroad under a resolution by the city council authorizing it, lowered its traca at a street crossing, necessitating the building of a bridge in the street at such crossing and of approaches thereto, such railroad cannot avoid liability for damages to abutting property owners sustained by such act of the railroad company, upon the theory that the city would not be liable to the extent to which a private corporation would be liable, and, thus acting under the authority of the city, be relieved from liability except to the extent the city would be liable. By no arrangement with the municipal authorities can the railway company in any manner impair the value of property abutting upon a highway or a public street of the city on the strength of the proposition that the city itself for its uses might taKe the property and not be liable to compensation such as would be required at the hands of a private corporation.
    Error to the'Court of Common Pleas of Lucas county.
   Scribner, J.

It appears from the pleadings and the testimony in this case which is contained in a bill of exceptions, that the defendants in error —■ plaintiffs below • — ■ are the owners of two certain parcels of land situate in East ¡Toledo, within the corporate limits of the city of Toledo, and lying one upon either side of the line of railway of the defendant company, and also lying along and upon Fassett street, in that portion of the city. One parcel of these lands contains about 2.88 acres, and the other parcel about two acres of land. Upon one of these parcels there was at one time erected,and in use for many years, a hotel. This building, several years since, was destroyed by fire, and nothing remains of it except the foundations, constructed of stone, as I remember. There is situate upon the s.ame parcel a stable —'a small barn; upon the other parcel is located what was formerly used as a slaughter-house; it is now used for other purposes. As the grade of Passett street, along which both of these parcels are situate, was originally established by the municipal authorities, its grade line was about on a level with the line of railway of the Lake Shore Company, and also with the surface of these parcels of land, which have been for many years owned by the plaintiffs.

In the yaer 1889 the city council of the city of Toledo passed a resolution to which I will here refer:

“Resolved, by the common council of Toledo, that permission be, and is hereby, granted to the Lake Shore & Michigan Southern Railway Company to change the grade of their tracks where they cross Passett street, so that they shall be seven feet lower than the present elevation; provided, that said company shall put up and maintain suit«ble and substantial bridge and approches over their tracks -on said Fassett street; and provided further, that they shall hold the city harmless against any cost or expense that may be occasioned by said changes, or for claims for damages that may be made by owners of contiguous property,on account of the change of grade herein contemplated.
“Adopted, May 6, 1889.
“Approved, May 13, 1889.”

On the 30th of June, 1890, the common council of the city of Toldo passed this additional resolution:

“Resolved, by the common council of Toledo, that the Lake Shore and Michigan Southern Railway Company be, and they are hereby,directed that in constructing the bridge over said company’s track at Fassett street, it is necessary that said bridge be built of iron, and that it be made not less than 24 feet wide center to center of trusses, with a sidewalk on each side not less than five feet wide, and that when said Fassett street-is graded so as to conform to said bridge, the street shall be graded its full width, and that said grading be done to the satisfaction of the committee on streets and the city civil- engineer. ”

This was adopted June'30th, 1890, and was approved on the 3d of July, 1890.

The railroad company, acting under the terms of this resolutions' of the council, proceeded to and did lower their tracks across Fassett street for a considerable distance, including that strip on which these parcels of real estate were situate which belonged to the plaintiffs below. That work was completed in the spring of 1891. The grade was 'lowered some seven feet below the original grade line of the ■street as established by the city authorities, an approach was constructed across the cut by the railway company, but at such a hight above the original surfacce as to render it proper and necessary for the railway company to provide approaches to the bridge for persons passing along the street and desiring to cross the bridge. The plaintiff below having made application to the company for compensation, their application being denied, on the 16th of January, T892, brought their action against the railway company in the court of common pleas of Lucas county, claiming damages to a large amount for the injuries which they insisted they had sustained in the depreciation in the value of their property by reason of the lowering of this track, the construction of this railway, and the erection of a bridge with the approaches thereto, as shown in the proceedings. It was also claimed and it appears in the testimony in the case, that in making the improvement at that point the railway company had appropriated to its own use, and had taken and used, a small portion of the private property of the plaintiffs below, . and compensation was claimed for the value of that property, in addition to their claim for damages on account of the injuries done to the property not actually taken by the company in the making of its improvement.

The case was tried in the court of common pleas at the April term, 1893, and was closely contested, and it resulted in a verdict and judgment for the plaintiffs below in the sum of $2775. The Usual motion for a new trial was filed in the case, and this was overruled, and judgment rendered upon the verdict, A bill of exceptions was taken embodying all the testimony which had been given in the case, and also all the questions which had been passed upon and determined by the court during the progress of the trial. And this petition in error has been submitted to us upon certain questions which are raised, upon the record.

The principal point of contention is in regard to the proper measure of damages which should be applied in ascertaining and determining the rights of the plaintiffs below to recovery and the amount of the recovery. Certain requests were submitted after the evidence had been concluded, on the part of the plaintiffs, which were given, and certain requests were submitted on the part of the defendant, two of which were given and two of which were refused. The principal questions arise upon the action of the court below in refusing requests Nos. 2 and 3 of the defendant-below; and they was these:

“2. The plaintiffs are entitled to recover of the defendant for the injury which the improvements upon said property sustained, if any, in consequence of the fill or change in the grade of Fassett street, in front of said premises.”

This request is limited, to the injury which the improvements upon the property have sustained. It was refused.

3, (And it is upon this request that the principal question made in the case is clearly and directly presented:)

“The plaintiffs in this case are not entitled to recover of the defendant by reason of the fill or change of grade of Fassett street, a larger sum than they would be permitted to recover of the city, was this action against it; and the amount of recovery in such case against the city, by reason of the fill or grade of Fassett street, would be limited to the injury or damage which the improvements upon said premises sustained in consequence of such fill or change of grade of Fassett street.”

In connection with these requests of the defendant which were refused, it may be proper to read request No. 9 of the plaintiffs, which was given:

“In estimating the damages to be awarded to the plaintiffs for injury to any part of the property under the foregoing instructions, the jury will find and determine how much less the property so injured or damaged was worth after the acts of the defendant causing such injury or damage had been done, than it was before such acts were done by the defendant company; and, in addition to the total amount which the jury may find the plaintiffs entitled tó under the foregoing instructions, it will add interest from the time of the completion of the work by the defendant to the first day of the present term of this court, April 4, 1893.”

It will be proper also to read request No. 2 of plaintiffs below, which was given:

“In addition to the compensation thus assessed by the jury for the value of the land taken by the defendant, if" the jury find that the remainder of the plaintiffs’ pioperty on the southwesterly side of said railroad was made less-valuable by reason of such part of same having been so-taken, in the manner and for the uses and purpose for which it was taken, you will also include in your verdict, as a part of the amount found in favor of the plaintiffs, the amount of such depreciation in value.”

It will be observed that the claim made on the part of the plaintiffs below, the owners of the property, was, that they were entitled to substantially the same measure of compensation as they would have been entitled to had the railroad-company, instead of acting by and under the authority of the city, instituted proceedings for the appropriation of' such property as they saw proper to use, and such interest in Fassett street upon which this property abutted, which they desired to use; while on the part of the defendant, the-railway company, it was claimed that the proceeding was to be regarded and treated substantially and in law the same as if.the improvement had been made by and under the-authority of the city for municipal purposes, in which event, if the city had proceeded to make the improvement in question here for its own purposes, for the convenience and benefit of the municipality, it might be still claimed, perhaps, that a different rule of damages should apply in measuring- and estimating the compensation that the two owners would be entitled to demand and receive, than should be applied in a case where a private corporation, — -quasi public, it is true, but nevertheless a private corporation — had proceeded ■to make use of property in the streets and other property abutting upon the property of plaintiffs below in part, and belonging to the plaintiffs below in part, for its private uses- and purposes.

Bo far as the amount of the damages returned by the jury is concerned, if the plaintiffs are right in their claim as to» the rule of compensation that should be applied, it would scarcely be proper for us to interfere with the verdict of the jury upon the question of fact as to the amount of the injury which the plaintiffs had sustained — us to the extent of the depreciation and the diminution in value, and the inconveniences to which the plaintiffs were subjected. Upon these questions of fact evidence upon both sides was submitted to the jury, and we should scarcely feel warranted in undertaking to interfere with the conclusion reached by the jury upon a full consideration of the testimony adduced on both sides. So far as this court is concerned, we feel that our whole duty is discharged when we determine the legal proposition which is presented, as I have already stated.

The Revised Statutes of Ohio, sec. 3283, is as follows:

“If it be necessary, in the location of any part of a railroad, to occupy any public road, street, alley, way, or ground of any kind, or any part thereof, the municipal or other corporation, or public officers or authorities, owning or having charge thereof, and the company, may agree upon the manner, terms, and conditions upon which the same may be used or occupied; and if the.parties be unable to agree thereon, and it be necesary, in the judgment of the directors of such company, to use or occupy such road, street, alley, way, or ground, such company may appropriate so much of the same as may be necessary for the purposes of its road, in the manner and upon the same terms as is provided for the appropriation of the property of individuals; but every company which lays a track upon any such street, alley, road, or ground, shall be responsible for injuries done thereby to private or public property lying upon or near to such ground, which may be recovered by civil action brought by the owner, before the proper court, at any time within two years from the completion of such track.”

And sec. 3284 bears upon the same subject:

“A company may, whenever it is necessary in the construction of its road to cross a road or a stream of water, divert the same from its location or bed; but the company shall, without unnecessary delay, place such road or stream in such condition as not to impair its former usefulness; and any or all railroads hereafter constructed, which shall cross any avenue or public highway leading from a city of the first or second class, to a public cemetery of such city, situate within or without the limits of any such city, shall be constructed so as either to pass under or over such avenue or public highway, at such elevation or depression, as the case may be, as will allow the unobstructed passage of all wagons,carriages, or other vehicles which it may be necessary for any person to use upon such avenue or public highway.”

There is another section bearing upon the question arising in this case, which I will not stop to read, which I think is sec. 3324.

In the ease of R. R. Co. v. O’Hara, 48 Ohio St., 343, the court in the opinion, delivered by Minshall, J., uses this language, after referring to some of the statutes bearing upon the subject:

‘‘It is apparent from its terms, that this case does not come within the provision of this statute. (Sec. 3283, R. S.) It is not a suit for injuries done to-any property lying upon or near the roadway, and to which the statute only by its terms applies; it is a suit brought by one claiming to be the owner in fee simple of the roadway itself, to compel -the company to appropriate and pay for the land as provided in sec. 6448, R. S. The fact that the road was occupied by the company under an agreement with the commissioners of the county, as provided in sec, 3283, does not in any way affect the right of the owner in fee of the soilcf the road to be compensated for the appropriation of h's property. The distinction is properly stated in R. R. Co. v. Williams, 35 Ohio St., 168, 172, where it is said, ‘In such case, the rights of the public, and the rights of the owner, are entirely distinct; and the consent, express or implied, of one to the appropriation, would not bind or affect the rights of the other.’ Where, however, the highway is occupied by the company under an agreement with the public authorities having control of it, the owner may compel the institution of proceedings for its condemnation under sec. 6448, R. S. Railroad Co. v. Robbins, 35 Ohio St., 531, supra.”

The proposition that we deduce from this language of the court although the case is not strictly analogous to the facts of the case at bar, is this: that by no arrangement with the municipal authorities can the railway company in any manner impair the value of property abutting upon a highway or a public street of the city on the strength of the proposition that the city itself for its uses might take the property and not be liable to compensation such as would be required at the hands of a private corporation. The railroad company should not be permitted to shelter itself from a liability to compensate a private property owner for damages which he has sustained by reason of the acts of the railway company, such as are complained of here, upon the theory and doctrine that the city would not be liable to the extent which a private corporation might ordinarily be made liable, and thereby this corporation, in the making of this improvement and the making of this change, acting by and with the authority of the city, be protected except to the extent that the city would be liable.

We have not been able to find any authority directly determining this proposition, other than some cases in the circuit courts which seem to sustain the doctrine of the plaintiffs below, and which are really against the proposition submitted on behalf of the railway company. In the second case of R. R. Co. v. O’Harra, 50 Ohio St., 667, the court there rule that the owner of lands along which a public highway passes, which has been used by a railway company, may bring his action against the railway company ordinarily during his lifetime; yet upon his death his title descends to his heirs, and they must institute and maintain the action for damages arising by reason of the construction and operation of the railway in the highway passing by the lands of the owner, on the ground that the title of the lands used by the railway company, under such circumstances, ■remains in the owner of the abutting property, and upon his death, passes to his heirs; but the court say:

E. D. Potter, Jr., for Plaintiff in Error,

Predi & Wilson, for Defendant in Error.

“The administrator cannot recover the land, nor compel compensation to be made, for, as shown in R. R. Co. v. Perkins, this can only be done by the ‘owner’of the property taken. But as to the damages which accrued in the life-time of the decedent from the wrongful use made of her lands, the interruption of her easement, and the consequential injuries to her other lands, and for which she could have maintained a personal action, the case is different.’’

Recognizing very clearly, as we undersrand the doctrine, 'that where a railroad company is making use of the public highway the legal title to which is in the owner of the abutting real estate, while no action can be maintained by an administrator of a deceased owner of the lands to recover the value of the interest in the public highway taken,that nevertheless, so far as the deceased owner has suffered personally any inconvenience from the use made of the public highway, the administrator may recover.

These are the principal questions presented in this case, as we understand it, and all we deem it necessary to support an opinion upon, We have gone carefully through the briefs of counsel and the authorities cited, and our conclusion is that there is no error in the record, and that the judgment of the court of common pleas must be affirmed; and it is so ordered,


source: Caselaw Access Project

license: Public Domain

text:
    ((Sixth Circuit — Lucas Co., Circuit Court,
    January Term, 1896.)
    Before Haynes, Scribner and King JJ.
    ARMINA D. ISHERWOOD, v. LIBBIE M. ISHERWOOD

      Devise of the proceeds of all testator’s real estate, equivalent to -devise of the real estate itself—
    Where a will disposes of all the property of the testator, the last disposition being a gift to his wife of “all the proceeds of his real estate’’, not the real estate itself, but the proceeds thereof —that is equivalent to a devise of the corpus of. the real estate itself.
    .(Affirmed by the Supreme Court without report November 30, 1897, 2 38 Bull., 280.)
    Appeal from the Court of Common Pleas of Lucas county.
   Scribner, J.

On the 7th of June, 1894, the plaintiff filed her petition ■in the court of common pleas, in which she set forth that she was the owner in fee simple and in possession of certain real estate described therein, and that the “defendant Libbie Maria Isherwood claimed some interest adverse to plaintiff’s rights, the nature of which is to plaintiff unknown, and she asks that defendant may be compelled to disclose the same;’’ that the claim so adjudged may be adjudged void, and that the plaintiff’s title to the premises described in the petition might be quieted; and for other proper relief.

To this petition an answer was filed, and afterwards an amended answer, which, in order to enable us to have a proper'understanding of the question presented, it may be ■proper to read, it being somewhat brief:

“The defendant Libbie M. Isherwood says that she is the ■adopted child and heir of the plaintiff and Francis P. Isher-wood, who died in August, 1893, and whose will was proved on the 7th of said month. This defendant was and is the ■sole legal -’heir of said decedent. She says that she has never claimed any interest in the real estate ad verse to plaintiff’s rights. She has no knowledge as to whether plaintiff is in possession of the real estate in the petition described, but says that she is informed the executors of her father’s estate ever since his death have been and now are in possession thereof, and collecting the rents thereof. She denies that the plaintiff is the owner in fee simple of said real estate. The defendant says that at the time of his death her father Francis P. Isherwood was seized of said real estate, and left a will, a copy of which is attached hereto, marked ‘Exhibit A.’ Said will has been duly proved, and the plaintiff, as defendant is informed, makes her claim to be the owner in fee simple of said real estate under and by virtue of the provisions of said will. This defendant says that her father at the time of the making of the will and for many years both before and after, was a dealer in real estate, and would often have on hand notes and mortgages given to him as part purchase price of real estate, and there were among the assets on hand at the time of his death notes and mortgages amounting, as defendant is informed, to about $7500, which were in fact proceeds of real estate, to-wit: notes and mortgages given for part purchase price of real estate. Defendant says that by the terms ‘also the proceeds of my real estate’ at the end of the third clause of his will, her father, said Francis P. Isherwood, intended to give and did give plaintiff only such proceeds resulting from the sale of real estate as might be on hand at the time of his death. She says, however, that the plaintiff had at the time of the making said will a large amount of valuable and productive real estate which was given to her by said Francis P. Isherwood in his life-time, and avers that her father never intended to give the plaintiff the fee simple of the real estate in the petition described.”

The will, a copy of which is attached to the amended' answer, is very brief, and the questions presented in this case necessarily call for a construction of its terms. I will read it:

‘‘I, Francis P. Isherwood, of the city of Toledo, county of Lucas, state of Ohio, do make and publish this my last will and testament.
‘‘1. All of my funeral expenses and just debts shall be first paid by my executors out of my real estate.
‘‘2. I hereby give and bequeath to-my (adopted) daughter Libbie Maria Isherwood the sum often thousand dollars, to be paid by my executors out of my estate in installments as my executors may think best or the situation of circumstances may require.
“3, I hereby give ánd devise to my dear wife Armina D. Isherwood in lieu of dower in my real estate and in-full of all rights of any kind in my personal and real estate, all of my personal estate of any and every kind remaining after the payment of my just debts and funeral expenses and the bequest of ten thousand dollars to my daughter Libbie Maria Isherwood, and also the proceeds of my real estate.
“4. I hereby nominate and appoint my friends W. L. Lamb and Leander Burdick as guardians of my daughter Libbie M. Isherwood, with full power to manage and control or invest at their own discretion the ten thousand dollars that I will her from my estate.
“•5, I hereby nominate and appoint W. L. Lamb and Leander Burdick of the city of Toledo as executors of this mv last will.
“6. I do hereby revoke and annul all former wills by me made.
“In testimony whereof I do hereby set my hand this 13th “F. P. Isherwood.”

And attested by two witnesses. -There is a codicil attached which provides as follows:

“Whereas, by my last will and testament, dated November 18th, 1882, I nominated and appointed my friends W. L. Lamb and Leander Burdick as guardians of my adopted daughter Libbie M. Isherwood and executors of my estate, owing to the death of my friend William L. Lamb I hereby revoke articles 4 and 5, and at this present writing appoint Walter J. Chase and Eugene W. Gage as executors of my estate and guardians of my adopted daughter Libbie M. Isherwood, and I hereby ratify and confirm my aforesaid will in all respects except so far as changed or altered by this codicil. ”

This was duly attested.

To this answer of the defendant Libbie M. Isherwood a general demurrer'was interposed. The case came on for hearing in the court of common pleas upon the demurrer to this answer, and the court of common pleas, at its January-term, 1895, sustained it, rendered final judgment in behalf of plaintiff, and decreed to her the title and possession of the premises described in the petition, confirming her right to the property under the provisions of the will, and in the-usual form giving her a decree, not only finding the title .and possession to be in her, but quieting her title and possession, and rendering judgment for the costs of the case against the defendant. The defendant appealed from the decree so rendered to this court, and the case has been heard by us upon the same pleadings passed upon in the court below — -that is, upon the general demurrer to the answer filed by the defendant in the court below.

Before the filing of the petition to quiet the title and possession of the plaintiff, a proceeding was instituted by the executors of the last will and testament of F. P. Isherwood for the purpose of obtaining a construction of that instrument, and for such a ruling on the part of the court as would determine the respective rights of the parties under the terms of the will, to the property in question. That proceeding was heard in the court of common pleas, and the application was dismissed, on the grounds stated in the syllabus contained in the report of the case. The case is entitled “Walter J. Chase, et al., v. Armina D. Isherwood, et al.” 1 Ohio Nisi Prius Reports, 31. It is held—

“1; An action can be maintained by a executor under sec. 6202 R. S., to obtain the judgment of the court as to the true construction of a will, only in cases where a trust is invoked or where the executor has duties to perform, in carrying out the provisions of the will, which require the guidance or direction of the court.
“2. A testator devised to his widow ‘the proceeds of his real estate.’ The will contained no residury clause and made no other disposition of his real estate and gave no directions, in relation thereto, and no authority or control over the real estate was given to the executors. Held, that no trust was created by the will, and no duties of the executors required the guidance or direction of the ccurt, and that a petition filed by the executors under sec. 6202, R. S., should be dismissed for want of jurisdiction.”

And judgment was rendered in conformity with the views declared in the syllabus which I have just read. The views of the court, however, as expressed in the opinion in the case, were based largely upon the conclusion of the court, in giving a construction to the will, that by its terms it devised the property to Mrs. Isherwood, one of the defendants in that action.

Thereupon this petition to quiet title was filed, and on that petition, as stated, the court found in favor of the plaintiff, Mrs. -Isherwood, in a very brief opinion that was filed with the papers in the case, giving a construction to the terms ©f the will.

Now we have to say, in view of the arguments that have been presented to us and the authorities that’have been submitted and considered, that we are quite content with the view and judgment expressed by the court of common pleas in the case.

In the first place, a brief reference to some of the authorities cited in the argument.show this: that our supreme court in Collier v. Grimesey, 36 Ohio St., 17, make this declaration of a principle which is entirely applicable here. Without going into an analysis of the case or of the various questions presented by the report, at page 21 we find this language employed by the court:

“We do not question (says White, J., in delivering the opinion) that a devise of the rents and profits, .or of the-‘profits and benefits' of lands, without qualification or limitation, will impliedly carry the fee. B.ut in order to determine whether there is such qualification or limitation, we ' must look into the whole will, with the view of ascertaining the sense in which the terms were used by the testator; and When such sense is ascertained, to give it the effect intended. Such terms cannot be held to carry the fee when it appears from other parts of the will that the fee is otherwise disposed of. ”

Looking for a moment to the terms of the will itself, which are more noted for brevity than anything else, we find in the first place that the testator, after declaring that he makes and publishes this as his last will and testament, says that all his funeral expenses and just debts are to be paid; and second—

“I hereby give and bequeath to my adopted daughter Libbie Maria Isherwood the sum of ten thousand dollars, to be paid by my executors out of my estate in installments, as my executors think best, or the situation of circumstances may require.”

That is the bequest he makes to his daughter — so much money.

‘‘8, I hereby give and devise to my dear wife. Armina D. Isherwood, in lieu of dower in my real estate and in full of all rights of any kind in my personal and real estate, all of my persona] estate of any and every kind remaining after the payment of my" just debts and funeral expenses, and the bequest of ten thousand dollars to my daughter Libbie Maria Isherwood, and also the proceeds of my real estate.”

He provides for the payment of his debts, gives 110,000 to his adopted daughter,and all the balance of his estate he gives to his wife. That is ip express language the terms of the will. Then he nominates and appoints his executors and the guardians of his daughter.

The controversy appears to have arisen over the use of the terms “the proceeds of my real estate.” Everything is disposed of, everything is devised which the testator possesses, according to the terms of his will. The last disposition is in the form of a gift to his wife of the proceeds of his real estate — not in language the real estate itself, but the proceeds of the real estate. Now, according to the language used by Judge White which I have quoted from 36 Ohio St.,that is equivalent to a devise of the corpus of the real estate itself; and such is the language of many courts is passing upon the question so presented. In the case of Davis v. Williams, 8 Tenn., at page 646, we find the court declaring this doctrine:

“A devise of the rents and profits or, income of land ■operates as a devise of the land itself; and if 'limited to the devisee’s lifeA vests in him a life estate in the land but, if unlimited, it vests in him an absolute fee simple title to the land, without the use of the term ‘heirs’ or other words of inheritance, and notwithstanding the will may confer upon the devisee no express power of alienation.”

1 will not stop to read from the authorities, except one other — a case in 10 Watts (Pa.) Rep., page 348, Bennett v. Robinson. The syllabus reads thus:

“A testator by his will says, ‘I allow my wife one-third •of the profits arising off of my real estate,only so long as ■she remains my widow:’ Held to be a devise of the one-third of the land itself, and strictly a conditional limitation marking the extent of interest given, against the terms of which equity cannot relieve. Such estate is consequently determinable by her subsequent' marriage, even without entry by the heir, or devise over.”

The opinion in this case, which is quite brief, as opinions by the former Chief Justice Gibson are always — this being by Chief Justice Gibson — says among other things:

‘‘A devise of profits is a devise of the land from which they accrue; and what is the nature of the estate given by the terms of this will? ‘I allow my wife,’ says the testator, ‘one-third of the profits arising off all my real estate only so long as she remains my widow.’ Now this is not a devise upon condition, but a plain and distinct condition, which was spent by the contingency of her marriage, even without entry by the heir or a devise over, That is not contested.”

Then the learned chief justice proceeds to argue or to consider another point presented in the case by counsel, which was that the marriage of the widow did not ipso factoterminate her estate, as was .claimed by counsel, but required some other action on the part of the parties interested. The chief justice overruled that proposition, and held-that her estate ends and determines by her marriage,

This is the view of the law, as defined by many authorities. Some of them are these: 63 Pa., 170, already cited by counsel for plaintiff; 121 Ind., 175; 14 Eq. Ca., 451; 3 Rawle, 497; 114 N. Y., 307.

The Revised Statutes of Ohio contain a provision pertinent in this action:

.“Sec. 5970. Every devise of lands, tenements, or hereditaments, in any will thereafter made, shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it shall clearly appear by the will-that the devisor intended to convey a less estate.”

There is in 1 Nisi Prius, 31, a printed copy of the opinion of the learned judge in the court of common pleas-to which I have already referred, in the case of Waiter J. Chase and Eugene W. Gage v. Armina D. Isherwood and Libbie M. Isherwood, in disposing of the demurrer to the petition filed by the executors calling for a construction of the will,in which are reviewed all the authorities bearing.upon the proposition involved in the case.

This substantially determines all the principal matters involved in this controversy, and as a result of our examination of the case, it follows that the judgment here will be-for the plaintiff, as in the court below, finding in her favor, and quieting her title to the lands described in the petition. There will also be a judgment for costs in her favor.


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court,
    January Term, 1896.)
    Before Haynes. Scribner and King, J.T.
    JOHN J. ROCHFORD AND CAROLINE E. ROCHFORD, v. DAVID ROTHSCHILD, FERDINAND BENDING AND MARTIN JONES, co-partners in business under the firm name of ROTHSCHILD, BENDING & COMPANY.

      Guaranty of payment of goods to be furnished to third party “on open account” — Continuing guaranty — Liability of guarantor — Notice of acceptance—

    Where a party guarantees the payment of goods to be furnished on credit to a third party, to the sum of $500, on an open account upon the order of such third party, no notice of the acceptance of such guaranty to the guarantor is necessary, and such guaranty is a continuing guaranty and not limited to the payment of the goods, to the amount of $500, furnished first next after the execution of snch guaranty.
    Error to the Court of Common Pleasof Lucas county.
   Scribner, J.

On the I6th of March, 1894, the defendants in error commenced an action in the court of common pleas of Lucas county, upon an alleged guaranty said to have’been executed by the plaintiffs in error, to secure to them the payment for certain goods which they agreed to advance to the defendant John J, Rochford. The petition below set up the guaranty or undertaking upon the part of defendants below, and it is in the following terms:

“Know all men by these presents, that we, John J. and Caroline E Rochford, of Toledo, Ohio, as principals, and as sureties,' are held and firmly bound unto Rothschild, Bending & Company, of Chicago, Illinois, in the sum of five hundred dollars, for the payment of which sum to the said Rothschild, Bending & Co. we hereby bind ourselves, our heirs,executors and administrators. The condition of this bond is such that whereas the said Rothchild, Bending & Co. will furnish to said John J. Rochford merchandise and credit to the sum of five hundred dollars, on open account and shipment of cigars upon the order or. requisi■'tiori of said John J. Rochford at Toledo, Ohio. Now, if Baid obligors, or either, or legal representatives of all or either, shall fully indemnify against arid save harmless the said Rothschild, Bending & Co. from loss and make payment to the said Rothschild, Bending & Co. for the sum of credit given, not, exceeding five hundred dollars, then this obligation shall be void, otherwise to remain in full force and effect in law.
“Witness our hands and seals, this 24th day (of March, A. D. 1893.
(Signed:) “John J, Rochford, (Seal,)
“Caroline E. Rochford. (Seal,)’’

After setting forth the execution and delivery of his obligation, the petitionjlalleges^that the plaintiffs furnished to the defendants, the Rochfords, goods at various times, to the amount of $1262.71;((and also that there had been paid upon the indebtedness so created the sum of $400, or thereabout,leaving due a balance(of $851.91.§ There is attached to this petition and made a part((thereof^byNeference,a statement of the account for the goods so furnished. And the plaintiff prayed judgment against the defendants for this sum of $861.91.

The defendant Caroline E. Rochford answered, The defendant John J. Rochford, who was the(husband of Caroline, was in default forjan swer.(T The wife((for her answer to the petition filed herein, answered and(denied each and every allegation in the petition contained.

When the case came on¡¡for trial,(it appears from the record that the defendant John J. Rochford offered to confess judgment for the sum^of $500 — the balance prayed for in the petition being $361.91. This(offer cn^the part of John J. Rochford was accepted, and a judgment rendered accordingly. The defendant Caroline E. Rochford offered to confess judg.ment for $99.00 with interest from the 27fh of October, 1893, with cos"ts'(to date. This offer "was rejected.

Thereupon the case was tried to the court — a jury being waived — and the court found that there was due to the plaintiff from the defendant Caroline — the amount of the balance claimed in the petition, with interest. The amount-claimed in the petition herein, that is guaranteed, was $500 without interest. For the excess of the amount really due from the husband, no claim was made as against the husband, the plaintiffs in the action being content to accept the-offer to confess judgment for the sum of $500, which was the amount claimed to be due from the wife upon the bond.

There was a motion for a new trial of the case, which was overruled. A bill of exceptions was taken, embodying all-the testimony in the case, which was made a part of the record, and this petition in error was filed by the plaintiff’s, creditors in a proceeding by the defendant, Mrs. Rochford, to reverse the judgment which had been rendered against her in favor of the plaintiffs who were the creditors in the proceeding, and this petition .in error and the questions arising upon it have been argued before us upon áuthorities.

Several questions are made, argued orally, and presented-in a brief by counsel. One of these touches and bears upon the question of the nature of the guaranty; and it is insisted in the presentation of that point, that the guaranty was.of such a character that the wife-was a mere surety in the obligation,and was entitled to notice of the fact that the guaranty executed and delivered by her was accepted- by the creditors. That claim was based largely upon an early case reported in 10 Ohio St. Reports, and which seems to bear out that proposition. But this case was afterwards considered in a case reported in 12 Ohio St. Reports — Powers & Weightman v. Bumcratz, page 273, and there the court hold:

“When, upon a fair construction of the terms of a written obligation the party executing it binds himself to be responsible for goods to be sold -to a third person, it is to be-regarded as an absolute guaranty, and when acted on, in accordance with its terms, the liability of the guarantor attaches, and no notice to him of the acceptance of the guaranty, or of its having been acted on, is necessary.”

The guaranty itself as it was executed, is set out in the report of the case, and it reads as follows.

“Whereas, Otto H. Hoeller, of Somerset, is desirous of purchasing goods of Powers & W-eigktman, of Philadelphia, Pennsylvania, on a credit; now, in consideration of. the premises, and for divers other good and valuable considerations, the receipt of which is hereby acknowledged, I, John M. Bumcratz, of Perry county, Ohio, for myself, my* heirs and assigns, do hereby convenant and guarantee with said Powers & Weightman that the said vendee shall punctually and promptly pay all sums of money which shall become due and payable to them, on account of said purchases, whether in notes, acceptances or book accounts, or whether the obligations originally given therefor shall have been changed, extended, renewed or the amount thereof redrafted for, and that if the said vendee shall neglect so to pay the same, I will, and my heirs and assigns shall, pay the amount thereof, on demand, with all costs and expenses which said vendors shall incur by reason of non-payment thereof. This guaranty is for an amount not exceeding twelve hundred dollars indebtedness, which may exist at any one time.”

There were authorities tending to support the vievps laid down in that case, which have been examined by us, and we are satisfied that under the current of authority and the doctrine established by that case in 12 Ohio State Reports, the defendant, Mrs. Rochford, was not entitled -to direct notice from the plaintiffs in the case that her guaranty was accepted. That guaranty I have already called attention to,and have read its terms as they are stated in the record in this case. She there stipulates that she is so firmly bound unto Rothschild, Bending & Co., of Chicago, Ills, in the sum of $500, “for the payment of which sum to the said Rothschild. Bending'& Co. we hereby bind' our■selves, our heirs, executors and administrators.” “The -condition of this bond is such that whereas the said Rothschild, Bending & Go. will furnish to said John J. Rochford merchandize and credit to the sum of $500, on open account and shipment of cigars upon the order or requisition of said John J. Rochford, at Toledo, Ohio.” Now it will be observed that it is recited in the condition of the obligation that the creditors will furnish Rochford merchandize and credit to the extent of $500, “on open account and shipment of cigars upon the order or requisition of said -John J. Rochford”. That is to say, these dealers, as it is •stated in the obligation executed by the defendant, have undertaken to furnish to Rochford merchandize and credit in the sum of $500 on open account and shipment of cigars to the order of said Rochfod; and if the obligors or their representatives shall indemnify and save harmless these parties for a sum not exceeding $500, then this obligation 'is to be void, otherwise to be in full force. *

If in the case in 12 Ohio State Reports, the creditors are not required to give notice to the surety that they accepted the terms of the offer on the part of that surety, we see no reason why they were bound to give notice in this case. We think that is quite clear.

Then it is urged again that the guaranty was not a continuing guaranty, or, rather, that it does not appear by the terms of the guaranty that it was to be treated and regarded'as a continuing guaranty; and it is insisted that by ■ the terms of this agreement the dealers were to furnish the goods to the husband for which the wife as surety would be liable for the payment to the^extent that goods were so furnished, not exceeding $500 in value; so that if the husband had been furnished with a bill of goods to the^amount of $500, and he had paid that bill of goods, airfliability upon the part of the wife was at an end, If afterwards’he odered ¡an additional bill of goods, there was nonliability on the part of the wife under this contract to pay for the goods so. furnished in addition to the sum of $500.

It appears to us, applying the general rule which is applied in such cases, with such parties, the object had in view in entering into this arrangement, the purpose for which credit was furnished and the goons were furnished — ■ that that would be a very unnatural construction to give to-this transaction, and not at all in line with what might be deemed to be the clear purpose and intention of the parties in entering into the arrangement. That is to say — the husband proposed to enter into business, the selling of cigars and articles of that character. He applies to these plaintiffs and seeks to obtain from them the goods with which to enable him to embark in this business, and to obtain these goods upon credit. The dealers say,“We will furnish these goods to you upon credit on a running account” — as they stated in the bond itself — “provided you give us security to the extent of $500 for the goods that we so furnish you on account.” And the arrangement is entered into. It does not contemplate, as it appears to us, that this husband shall be furnished with goods,on credit, to the extent of $500,and' that the parties shall there stop,and that the moment he has purchased and disposed of goods to the amount of $500, that his line of credit shall be at an end. That would practically result, in all probability, in stopping the business after he had got fairly started in it. The construction of this agreement, as we think- — -especially in view 'of the authorities that have been brought to our attention bearing upon the question, is,that the creditors shall furnish goods; they accommodate this husband who proposes to embark in business, with a line of credit to the extent of $500 “on open account”,as the article says, “and shipment of cigars upon the order or requisition of said John J. Rochford.”

Without consuming time in the elaboration of this,. I will'simply refer to some cases to which our attention has been called in argument.

The first is Birdsall v. Heacock, 32 Ohio St., 177. This is a case cited in behalf of defendants. There the guaranty was a letter addressed to some lumber merchants, and was in the following language:

“Please send my son the lumber he asks for and it will be all right.” And the syllabus says that this language: “is a guaranty that the lumber sold and delivered to the son at the time of its presentation will be paid for.” And it seems to me that the construction which the court gave to that guaranty so made was reasonable.

We understand by the stipulation that the goods were to be furnished upon open account as ordered,imports fairly that there is to be a running account entered into between the parties, by the terms of which the husband here is to be furnished goods as he may order them, and that the wife will be liable, as guarantor, to an extent not to exceed $500.

A case in 39 Ohio St. is referred to, Morgan v. Boyer, page 324, and there the court applies the proper principle, we think the doctrine that contracts of this character are to be construed strictly ;and undoubtedly they should be. The court say: “A guarantor, like a surety, is bound only 'by the express terms of his contract. ” But we cannot see, under the language of that syllabus, that the stipulation that the goods should be furnished on an open account to the extent of $500, would imply that there was to be no liability upon the part of the guarantor for the goods furnished up to the line of $400.

There is a case reported in 14 Nebraska, 158, Tootle & Maule v. Morris Elgutter, which seems to be in point. There the guaranty was in this form:

“Please let Mr. John Newman have credit for goods to the amount of $100, and for the payment of which I hold myself responsible."

Hurd, Brumback & Thatcher, for Plaintiffs in Error.

Moses Bloch, for Defendants in Error.

This was signed by the defendant. The court held that this was a continuing guaranty; and, in their opinion, quote the case of Ringe v. Judson, 24 N. Y., 64, where the guaranty was as follows:

“Mr. Ringe: Sir: I will be accountable to you that Mr,. Butler will pay you for credit on glass, paints, etc., which he may require in his business, to the extent of fifty dollars. ’!

The court say:

“This was held to be a continuing guaranty, and the-limitation was, as to the extent of the guarantor’s liability, and not of the credit to be given."

It is hardly necessary to follow this matter farther. Our-conclusion is that the judgment of the court of common-pleas was right and it should be affirmed, and it is ordered; accordingly.


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court,
    January Term, 1896.)
    Before Haynes, Scribner and King. JJ.
    THE METROPOLITAN LIFE INSURANCE COMPANY, v. MARTHA GIERL.

      Life Insurance — Provision that suit may be brought within six-months from death of assured — When court will not set aside verdict' for plaintiff, in an action brought after lapse of six months—
    Where a life' insurance policy provided that suits thereon should, be “brought within six months from, the death of the assured, and where any suit is brought after six months, the lapse of time shall be taken to be conclusive evidence against any claim”, and where an action is brought on the policy,after the. six months from the death of the insured, but at the trial of-the case a verdict was rendered for the. plaintiff, a, reviewing-court will not disturb the verdict, unless reasonable ground appears on the record therefor. The doctrine of waiver is a harsh rule, and will not be applied to give the defendant a second chance to set up an unconscionable and harsh defense.
    '(Affirmed by Supreme Court without report January 4, 1898, Judge Shauck dissenting. 89 Bull., 47.)
    Error to the Court of Common Pleas of Lucas county.
   Scribner, J.

This action was brought in the court below by Martha (Gierl against the Metropolitan Life Insurance Company, to recover upon two policies of insurance, so-called, issued by •said insurance company upon the life of Cresant Fox. One of these policies of insurance was issued on the 1st of June, 1891, and the second policy on the ‘22nd of July, 1891. The party whose life' was insured — -Cresant Pox — died on the 15th of August, 1892, and suit upon these two policies was brought by Martha Gierl,the beneficiary named in these policies, on the 11th of November, 1893. The proofs of 'death,as they appear in the case, were furnished on the 27th •of August, 1892 — less than two weeks after the date of the •death. On the trial in the court of common pleas, there was a verdict for the plaintiff, the beneficiary, Martha Gierl, for the amounts payable by the terms of the policies, with interest after the date when they became due. There was a motion for a new trial in the case,which was overruled by the court and exceptions taken. The testimony given in ■the case was embodied in a bill of exceptions, duly signed and filed, and this petition in error is filed for the purpose ■of reversing the judgment rendered by the court of common pleas. The assignments of error in the case are as follows:

1. Said court erred in not directing a verdict for plaintiff in error.

2. Said court erred in overruling the motion of plaintiff In error for a new trial.

3. Said court erred in his charge to the jury in the trial, -of said action.

4. The facts set forth in the petition are not sufficient in. law to maintain the said action against plaintiff in error.

5. Said court erred in the admission of evidence offered by the defendant in error, to which the plaintiff in error objected.

6. Said judgment was given for said defendant in error when it should have, been given for said plaintiff in error.

The principal questions arising in the case for our consideration may be somewhat briefly stated, though, perhaps-a little time may be required in order to state our views of the rules of equity and the rules of law governing the case upon the testimony in the bill of exceptions and the action of the court as it there appears.

It appears from the testimony in the case, that the beneficiary named in the policies, Martha Gierl, was not in any manner related to Oresant Fox, the party whose life was insured. It does appear that she was the wife of a foster son (as he is called) of Oresant Fox. He was not her real son, but he had been taken by Oresant Fox in infancy and cared-for, raised and treated as her son. It is contended by plaintiff in error here that the plaintiff below had no such insurable interest in the. life of said Oresant Fox, the foster mother, as entitles her to become a beneficiary in a policy issued upon the life of Oresant Fox. It is not denied but that the woman herself, Oresant Fox, might, under her own-application, take out a policy upon her life for the benefit of any person whom she might see proper to name; -and it is contended on the part of Martha Gierl that, as the application was made, not by her, but by Oresant Fox; that the premium was paid for the benefit of the beneficiary, Martha Gierl — in short, that the beneficiary was not the applicant' for the policy, but that the foster mother, Mrs. Fox, was the applicant and obtained the policies for the benefit of Martha. Gierl. It is also claimed that upon the death of the decedent, Mrs. Fox, the contract of insurance limited the time-within which an action should be brought upon the policies-to six months. The action, in point of fact, was not brought ■until the expiration of about thirteen months from the •death of the decedent.

Upon the allegations of the answer — to which I will ■briefly call attention — these contentions are a principally raised. Both policies are set out in the petition. In both* •of them is contained this provision:

“No suit shall be brought nor action commenced against said company under this policy until ten days shall have expired after the filing of proofs of death upon all the forms prescribed by the company in its home office, nor ■after six months from the date of death of the insured, it being understood and agreed that if any suit or action be commenced after said six ' months, the lapse of time shall be taken to be conclusive evidence against any claim, the provisions of any and all statutes of limitation to the contrary being hereby expressly waived.”

In the answer the company admits many of the material matters alleged in the petition, and proceeds to assert, as I 'have stated:

* * “That applications for said insurance were vnot made or signed by .said Cresant Fox, and said insurance was procured by and solely for the use and benefit of •said Martha Gierl. The said Martha Gierl is and was at the time of the procurement of said policies of insurance in no way related by kinship or blood ties to the said Cresant Fox, and said Martha Gierl had at said times and now has no interest in the life of said Cresant Fox- either pecuniary or otherwise, and said insurance was fraudulent and void.”

The policies and the applications were ■ attached. ■ The ‘latter appear upon their face to bear the signatures' of Cresant Fox,and to be made for the benefit of Martha Gierl. Upon the testimony introduced in the case there was some controversy as to who these applications were signed by. Naturally they were not signed by Cresant Fox, because she was not able to write. But the testimony upon the part of the plaintiff is, that they were signed by the agent of the insurance company who was taking the application; that he subscribed her name, by her authority, to these applications; and it was utterly denied on the part of the plaintiff below that Martha Gierl had had anything to do with the affixing of the signature of the old lady to the applications, and her testimony is that the application was made in the presence of Mrs.....

The answer proceeds to allege:

“Defendant further says that said insurance was procured by the said Martha Gierl upon representations made to this defendant for the purpose of procuring this insurance that said Oresant Fox was but sixty-three years of age when in truth and in fact the said Oresant Fox was at the time of the procurement of said policies nearly eighty years of age. Said Martha Gierl and said Oresant Fox well knew that said Oresant Fox was more than sixty-three years of age, and was nearly eighty years of age at the time said policies of insurance were applied for and were issued, but for the purpose of» defrauding this defendant said Martha Gierl and said Oresant Fox willfully and falsely represented said Oresant Fox as sixty-three years old.’’

The testimony shows that the plaintiff when she was inquired of as to her age — -that they asked her when she was born, and she said she didn’t know when she was born; but when.asked how old she was, she stated that she was somewhere from sixty-three years old, and said: “My last birthday is sixty-three.’’ Now, there is' testimony tending to show that these applications were written, both of them, by the agent who'was taking the application, and the testimony of the witness is that she gave her best opinion to the agent, that she must be from 61. to 68 years of age. The pith of the matter is, that the agent of the company who was present wrote upon the application what her age was, and that-the answer that she gave to the inquiry of the agent, was rather an expression of her opinion,or judgment, or guess, • as to what her age was, she having stateddhat she couldn’t say when she was born, and the agent, in order to make short work of the matter, just simply stated that she was sixty-three years old. That is one of the points relied upon he;re — that there was misrepresentation as- to her age. The defendant pleads, in his answer, this limitation of six months, and, upon three propositions: (1). That the plaintiff had no insurable interest in the life of said Cresant Fox;

(2) . That there was misrepresentation as' to her age; and

(3) . As to the six month’s limitation, which had elapsed long before the action was brought, that the plaintiff was not entitled to recover.

The case was submitted to the jury upon instructions by the court upon all tksee propositions- — -it having been tried before Judge Pugsley. The judge in his charge to the jury states the questions that a/e involved, and says:

“The defendant in its answer admits the issuing of these two policies as alleged in the petition.- Jt admits the-death of Cresant Fox as alleged, and that the proofs of her death were duly furnished, .as required by the terms of the-policies; and also the defendant admits that all the premiums upon the policies were duly paid, as alleged; but the defendant alleges as a defense to the action, that both of these policies are void, and that no action can be maintained thereon, for the following three reasons: First, that the plaintiff, Martha Gierl, was not related to the deceased, Cresant Fox, and that she had no insurable interest in the life of Cresant Fox, and that therefore she ought not to be permitted to maintain this action upon these policies. That is the first of these three defenses. The second defense is, that in the written application for the insurance, which by the terms of the policies is made a part of the policies, it was represented that Cresant Fox was only 63years of age; whereas, the defendant alleges, she was in fact nearly or about eighty years of age at that time. ' Therefore, by the second defense it is claimed that a false and fraudulent representation was made in the applications, which, under the terms of the policies, vitiated and voided them. The third of these three defenses is, that by a condition of the policies it was provided that no suit or action can be maintained on them unless brought within six months after the death of Oresant Fox. She died, as is alleged, in the month of August, 1892, and this action was begun before the justice of the peace in the month of November, 1893, or a period of fourteen months after the death of Cresant Fox. And therefore it is claimed, under these defenses, that no action can be maintained.”

And then the judge proceeds to give to the jury the rules applicable to the rights of the parties upon these three aspects of the case, and he instructs them very fully and very fairly as to the law bearing upon the propositions submitted. It is hardly necessary to read the instructions of the court to the jury in regard to these points; but the case was fairly submitted so far as the rights of all parties were concerned, and the jury rendered a'verdiot for the plaintiff below. A motion for a new trial was submitted and overruled and judgment rendered upon the verdict. Now,I would hardly be justified in stopping to read from the testimony in the case. The question here is — -the motion for a new trial having been overruled — whether or not we find error in this action of the court in its disposition of the case in its rulings upon the testimony, instructions to'the jury, and overruling of the motion for a new trial. Certainly we find no ground for reversing the case on any ruling in the course of the trial,or upon any instructions to the jury upon the questions which concern the rights of the parties.

The only question that could be insisted upon was that relating to whether or not the verdict was-supported by the evidence, and, upon that point, upon all the testimony submitted in the case and the rules that should govern it, we do not feel that we ought to disturb this verdict. The doctrine of waiver, which is insisted upon here and pressed with a great deal of force, is a harsh and hard doctrine,and courts are inclined to apply it for the benefit of the assured where there is reasonable ground appearing in the record for its application, as stated by May in his work on Insurance, vol. 2, sec. 188. And I might say that in a case reported in the 5th Ohio State Reports, at page 266, the court re-, fused to disturb a verdict, although in their judgment- it was not supported by the evidence, for the reason that the defense which was insisted upon there sought the avoidance -of a debt sued upon the ground that it was usurious, the plaintiff being one of the state banks of Ohio, and the defense being that in discounting some notes the bank had extorted usury. The jury having found against the defense, the court overruled a motion for a new trial and rendered judgment upon the verdict. The defendant below having .gone to the supreme court upon a proceeding in error to reverse the judgment, upon the ground that it was not sustained by sufficient evidence, the objection was made by' counsel representing the defendant in error that the court •should not grant a new trial for the purpose of allowing a harsh defense to be made. It was said in the argument: “Courts never grant a new trial in order to give a second chance to the defendant to set up an unconscionable and harsh defense. ”

In this case, the defense, although perfectly legitimate,, insisted upon a short statute of limitations, and, as upon all ■of ,the evidence admitted the jury have found against the defendant, it seems to us that the same rule might be applied properly to the motion, to reverse the judgment on the ground that it was not supported by the evidence. Upon 'the whole, our conclusion is that this judgment should be ¡affirmed, and that without penalty,


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court,
    January Term, 1896)
    Before Haynes, Scribner and Kiüg, JJ.
    MARGARET CLOWRY v. THOMAS CLOWRY.

      Divorce — Not to be granted lohere defendant is insane—
    Where in a proceeding for a divorce on the ground of gross negligence it appears that the defendant is insane, no divorce can be-granted.

      Same — Appointment of guardian ad litem in such case not admiss- - ible—
    In such case a prayer for the appointment of a guardian ad litem, on the ground of the^insanity of the.defendant, is not admissible.

      Same — Review of judgment of dismissal, where not authorized— The judgment of the common pleas dismissing the petition in. such case on the ground of the insanity of the defendant, ■ is not such a “dismissal of the petition without final hearing” as would authorize a review of such judgment on error by the’ circuit court..
    Error to the Court of Common Pleas of Lucas county.
   Scribner, J.

This is a petition in error, by which the plaintiff in error' seeks to reverse the judgment of the court of common pleas in a case brought in that court for divorce, the court of' common pleas, upon the showing made in the record, having refused to proceed with the consideration of the case.

It appears by the record that the plaintiff filed . her petition for divorce, setting out the marriage of the parties in the year 1879, and that while the plaintiff in error was conducting herself in a proper and dutiful manner, the defendant had been guilty of extreme cruelty towards her; and setting out also that there were four children born of the-marriage still living, which she was compelled to maintain and support. She also alleges gross negligence on the part of the husband. Then she makes this averment:

“Said plaintiff further says that said defendant is now, and has been, since September, 1891, an inmate of the Toledo asylum for the insane, Wherefore said plaintiff asks that a guardian ad Mem for said defendant may be appointed, and that, on the final hearing hereof, she may be adjudged to be divorced from said defendant,- and to have: the care, custody and control of said minor children.”

It appears from the record that a summons was issued, upon this petition for divorce in due form, and delivered to-the sheriff, who made return that he ‘‘received this writ on June 1st, 1895, and pursuant to its command summoned on the 5th day of June, 1895, the within named defendant Thomas Clowry.” The record of the proceedings in the case contains the following transcript from the journal off the court:

‘‘Margaret E. Clowry v. Thomas Clowry. Cn the 2d day of April, A. D., 1895, among other proceedings had by- and before said court on the 1st day of July, A. D. 1895, being the 77th day of said term, as appears by its journal of that day, were the following, viz: This day came the-plaintiff by her attorney and made application to the court for the appointment of a guardian ad liieni for the defendant,, who is insane; the court, on consideration thereof, overruled the said motion, and said petition is dismissed at plaintiff’s costs, for the reason that it shows the defendant to be now insane. To which ruling and order of the court plaintiff' excepts.”

The plaintiff filed her petition.in error, and assigned as-grounds of error:

‘‘1. Said court erred in rendering judgment dismissing-the petition of said plaintiff, because and on the ground that. the defendant was then an insane person,, and as such said-' action could not lie against him.
‘‘2. Said court erred in overruling the motion of said' plaintiff for the appointment of a guardian ad litem of said' defendant, an insane person; and for other errors apparént' of record. ”

Upon the matter so assigned, appearing u-pon the-record, the plaintiff asks 1 His court to reverse the judgment of the: . court of common pleas, and remand the. case for further, proceedings in the divorce case.

The question presented upon this record is, first, whether or not this court has jurisdiction to consider the action of the court of common pleas in dismissing the petition for divorce, and whether by a proceeding in error this court •may review and revise the action of the court of common ■pleas; in the second place, whether or not the court of common pleas had any jurisdiction and power to proceed in a divorce proceeding against an insane person.

It might be said that the court of common pleas was perhaps a little bit hast}'- in declaring as it did in the order of dismissal that it appeared by the record in the case that the husband was insane. The court declares in its entry in dismissing the petition that it overruled the motion for the appointment of a guardian, and that the petition “is dismissed ■at plaintiff’s costs, for the reason that it shows the defendant to be now insane. ” If we1 go to the petition of the plaintiff in the case, we find the allegation to be this, and ■the only allegation upon the subject, as I now remember: “Plaintiff further says that said defendant is now, and has been since September, 1.891, an inmate.of the Toledo asylum for the insane.” Well, if we are to take it for granted, if we are to assume, that every person who is an inmate of :the Toledo asylum for the insane is insane, there might be ■cause for divorcing a good many individuals, perhaps, who might be found domiciled there. It is not an allegation ■that the defendant is insane, but nevertheless]jit was. undoubtedly meant for that. But proceeding upon the assumption that it is equivalent to an allegation that] the] defend•ant is insane, and as such is confined in an insane asylum, how stands the case.

In the first place, insanity is not a ground of divorce ■under the statutes of Ohio. Sec. 5689 provides for what causes the court of common pleas may grant a divorce, and we do not find the insanity of either party provided as one ■of the grounds for divorce — that the insanity of either the husband or of the wife shall entitle either of the parties to the-marriage relation to divorce. And, with perhaps one exception, the only causes for which divorce may be granted, are enumerated in that statute. There is this held by the supreme court of Ohio in Waymire, guardian, v. Jetmore et al., 22 Ohio St., 271: that the court of common pleas, in the exercise of its chancery powers, may declare a pretended marriage null and void upon grounds which touch, the capacity of the parties to enter into the contract; but no such power may be exercised by the court of common pleas under its chancery or equity powers, by way of annulling a marriage or divorcing the parties who have already entered into a valid contract of marriage. The court state, here in the syllabus of this case:

”1 The marriage contract of one affected with congenital imbecility of mind to a degree rendering him incapable of consent, is void ab initio.
”2. A court of chancery, in the exercise of its ordinary powers, will entertain jurisdiction, at the suit of the imbecile’s guardian, to declare such marriage a nullity.”

Not to avoid a marriage, and divorce the parties, but to-determine and adjudge that a ceremony purported and intended -to be a marriage contract was not a marriage contract, because the parties did not possess the mental capacity to enter into such a contract. And the same doctrine was-held by the district court of Hamilton county in the case of Meyer v. Meyer, in 4 Bul., 368, where the court, passing upon a question of like character, reached the same conclusion: that it was competent for a court of equity to determine whether or not parties were competent to enter into the marriage relation, and whether what purported to be a marriage contract was in fact such a contract; and if the-parties did not possess sufficient mental capacity to enter into the marriage relation, to declare or adjudge what purported to be a marriage contract between them to be void.

In this proceeding there is no power conferred by statute,•as we understand it, upon the court of common pleas, to ,pronounce a decree of divorce upon the ground that one of ■th£ parties has become insane since the marriage contract was entered into; and in addition to that, it seems to us -that where it appears, if it do appear in a divorce proceeding, that one of the parties to the proceeding, especially the defendant, is insane, that the power and authority of the • court to adjudge a divorce is entirely gone. No such power iis possessed or may be exercised by the court of common pleas, under its jurisdiction conferred by the statute to .grant a divorce. It would be an assumption of jurisdiction -and authority upon the part of the court, in such a case as that, to proceed.

We do not find any method in the statute for protecting rnn insane party proceeded against in a proceeding for divorce. We find in the general statutes — section 5000 and following — - that a guardian may be appointed in ordinary proceedings •or actions at law instituted in the courts of common pleas, to protect the interests of an insane person who is proceeded against in that court; but no such provision is made in respect to an insane person who is proceeded against for a divorce.

Another thing: this proceeding is brought before us up-en petition in errr. We doubt very much whether such proceeding as this may be brought into the circuit court upon error. It is a proceeding for divorce. There is no appeal allowed in proceedings for divorce. There may be an appeal taken where a proceeding for alimony is carried on, but not where there is a proceeding for a divorce. A proceeding in error is in the nature of an appeal proceeding, -although it is not by the usual method of appeal, by bond «taken, which vacates the judgment of the court below.

We find collected in a note some few of the decisions of H;he supreme court bearing upon this subject of appeal, to which I shall call attention. Section 5706 of the code as it now stands, provides:

“No appeal shall'be allowed from any judgment or order of the court of common pleas under this chapter, except from an order dismissing the petition without final hearing, or from a final order or judgment granting or refusing alimony, or in cases under sec. 5705; when judgment is rendered for both divorce and alimony, the appeal shall apply only to so much of the judgment as relates to the alimony; and when an appeal is taken by the wife, she shall not be required to give Dond.”

In a note added here by the editor, it is said, “Appeal lies in cases of divorce if the petition is dismissed without • hearing. 4 Bulletin.” And that is the case to which I have referred. It did not lie in 1846,15 Ohio; nor in 1856,6 Ohio St., 64; nor in 1859, 10 Ohio St., 369. In the case in 6 Ohio St. — pp. 64 and 65 — we find it said in the syllabus:

“The district court has no jurisdiction to review, on petition in error, the proceedings of the court of common pleas, in cases of divorce and alimony. The decree of the ■court of common pleas in such a ease, is not, by the law of this state, subject to judicial revision. ”'

Now, here the question arises as to how far, under the •statute permitting appeals, the words “Petition is dismissed without final hearing” applies. There was no final hearing here upon the merits of the controversy. That is true enough; but the court adjudged that because the defendant was insane there could be no divorce, and for that reason dismissed the petition. That is in substance the result of the ruling of the court. That was equivalent to a. 'holding by the court of common pleas'that there could be no divorce where there was insanity of the defendant in the proceeding, because that is the ground upon which the petition for divorce is dismissed — 'because it so appears by the ■ application of the plaintiff that the defendant is insane. And because the defendant is insane, there can be no decree for divorce in the case. So that there is, in one sense-of the term, strickiy, a decree upon final hearing, though not upon final hearing of the ground” alleged for divorce, but on the final hearing.of the merits of the case; becaúse the judgment of the courHiere is, that upon the facts stated in the petition of the plaintiff, there can be no divorce decreed in the case, and the petition must be dismissed.

The question is a very interesting one; but it occurs - to us, upon the facts disclosed in this record, that the action of the court of common pleas cannot be reviewed here by this court — we cannot undertake to determine whether or not the court-of common pleas erred, because we cannot entertain jurisdiction of this petition in error, to pass upon the case.

The petition in error must therefore be dismissed, and' it is so ordered.


author: SCRIBNER, J.

text:
    (Sixth Circuit — Lucas Co., Ohio, Circuit Court
    Jan. Term, 1896)
    Before Haynes, Scribner and King, JJ.
    THE CITY OF TOLEDO v. CELESTIA CENTER.

      Charge of contributory negligence in answer — Failure to reply— When not ground for new trial—

    (1) .Where in an action for damages for injury through defendant’s negligence the answer charges contributory negligence, and no reply theretp is filed, but defendant, without objecting, proceeds to tryj the ease as if the charge of contributory negligence were denied by a reply, and there is verdict for plaintiff, plaintiff’s failure to reply will not be considered a ground for granting a new trial.

      Defect in street — Presumption of notice to city—
    (2) . Where a defect in the side walk is of such character and existed for so long a time that the city should have had notice-of it, jury is justified in presuming that the city had notice-of it.

      Seeing defect, no bar to recovery of damages—
    (3) . The mere fact that plaintiff saw a hole 'or® depression in the walk would not of itself be sufficient to prevent her from recovering, unless she knew, or by the exercise of reasonable care, might have known that it was dangerous to pass over it.
    [Affirmed by Supreme Court without report, Minshall, C. J., and Shauok, J., dissenting, see 34 Bulletin, 209; see also same case,in Notes of Oases decided by Supreme Court without Report, 34 Bulletin, 213.]
   SCRIBNER, J.

In the case of Toledo against Celestia Center, proceedings are had to reverse the judgment of the court of common pleas.

It appears by the record in the case, which contains a bill of exceptions embodying all the testimony and proceedings had before the court in the trial of the case, that on the trial of the case below, the defendant in error here recovered a judgment against the city of Toledo for certain injuries sustained by falling upon the streets of the city. It appears by the record that on January 80, 1892, the defendant in error, while walking-along the sidewalk on Monroe street, between Tenth and Eleventh streets, met with a depression or sort of a gutter, as is described by some of the witnesses, in the sidewalk which she undertook to step across, but failing to get clear across,she slipped and fell and broke her thigh bone. She was taken home in a hack, being unable to walk, and according to the testimony, was unable to sleep in a bed for some seven weeks thereafter, and she suffered a great deal of pain and incurred a good deal of expense in the way of medical attendance and nursing, and she insisted that the city was in default in permitting the depression or gutter which was the cause of the injury, to remain in the condition which it was in for quite a long period of time, she being ignorant of it..

At the conclusion of the testimony on the part of the plaintiff, the defendant submitted a motion to take the case from the jury, alleging as grounds that:

First. The plaintiff had filed a petition in which she alleged that the injury occurred through no fault of hers,to which defendant h.ad answered averring that the plaintiff' was guilty of contributory negligence,and no reply had been advanced.

Second. For the reason that the undisputed evidence showed that the defect alleged to have caused the injury, was not occasioned by the negligence of the city, but by water flowing across the sidewalk and property over which the city had no control, and—

Third. Because the proof failed to disclose that the city had either actual or constructive notice of said alleged defect; and—

Fourth. Because the testimony of the plaintiff herself disclosed the fact that she had met with the injury by reason of her own negligence and want of proper care.

This motion was overruled by the court, and the defendant' below excepted to such ruling, The jury returned a verdict for the plaintiff below, assessing her damages at two thousand dollars. The motion for a new trial filed by the city was overruled,after which judgment was rendered1 upon the verdict. To this action of the court the defendant below, the city of Toledo, excepted, aud this petition in error is filed to reverse the judgment so rendered by the’ court.

There were no exceptions taken (o the action of the-court during the progress of the trial — none at least, that were regarded of any- consequence, and no exceptions to the-introduction of testimony.

The defendant' below excepted to one portion of the’ charge of the court which I will notice:
Thereupon the defendant, by its counsel, excepted to> that part of the charge of the court wherein the court instructed the jury, ‘that the-mere fact that the plaintiff saw a hole or depression in the walk would not of itself be sufficient to prevent her from recovering, unless she knew, or by the exercise of reasonable care, might have known that it was dangerous to pass over it.”

This paragraph of the court’s charge was excepted to by the city; but it appears to us to be entirely in accordance with the rules of law; that is, the mere fact that the plaintiff saw the hole or depression in the walk, would not of itself be sufficient to prevent her from recovering unless she knew, or, by the exercise of reasonable care might have known that it was dangerous to pass over it.

We think the exception to that instruction of the court is not well taken.

Again, the plaintiff in her petition, alleged that the accident occurred without any fault on her part. The defendant averred that she was guilty of negligence contributing to her injury. This was set forth in the answer,and to that allegation of the answer, there was no reply.. But there was the averment in the petition that she was not guilty of negligence contributing to her injury, and these respective averments in the respective pleadings were all that was said in the pleadings upon the subject. But the case went onto trial without objection or exception,and all the testimony of the plaintiff was submitted showing, as she claimed, that the allegations of her petition were true, and that she was entitled to recover against the city; and the plaintiff’s proof submitted by her, bore directly upon the averment upon her part, that she was not guilty of negligence in crossing-the defective place in the sidewalk. Not only her own personal testimony,but that of one of her witnesses at least, bore upon the question as to whether or not she was at fault-in undertaking to step across the depression which appeared to be the cause of her fall; and one other witness at least, was examined and cross-examined upon that subject,and testified in regard to it.

We do not think that it lies in the mouth of the city*after having gone to trial upon the pleadings as made up, and after haviug permitted the plaintiff to give in her full testimony — her own testimony and that of her witnesses, bearing upon the question of the liability of the city,and after having cross-examined her witnesses, then to say that there was nothing to be tried to the jury for the reason as explained — that the averment in the petition that the plaintiff was not guilty of negligence in the matter, was improperly there and should not be considered or regarded,and that the averment in the answer that she was guilty of negligence was not denied by any reply of the plaintiff Of course, if the proposition of the plaintiff in error here was well taken, there was nothing to try. If the statement in the answer that the plaintiff had been guilty of negligence contributing to her injury, was to be taken as true, there was no.issue to go to the jury- — -none whatever. No matter what might have been the extent of theinju^r or no matter show defective the sidewalk might have been with the knowledge of the cit3^ — if it were to be taken as true that negligence on the part of the plaintiff contributed to her injury, -she had no right of action upon the issues as they stood, and there was no reason for empaneling a jury, and it was not proper to examine and receive testimony upon matters alleged pro and con by the parties. But the city elected to go to trial; elected to aásume that the question of contributory negligence upon the part of the plaintiff was properly put in issue,and was oue of the issues to be tried to the jury, because the witnesses of the plaintiff, and the plaintiff herself, were cross-examined upon all questions arising in the case.

We are brought, then, simply to the main proposition submitted as to whether or not the verdict of the jury in behalf of the plaintiff is sustained by sufficient evidence, ■and it is claimed here that there was not sufficient proof to ■establish that the city had knowledge of the defect, or that the city was in default in the matter; and that the testimony of the plaintiff herself established the fact that she had been guilty of contributory negligence in meeting with an accident resulting in the injury.

This lady was about sixty-five years old at the time this accident occurred. She says she was going along the sidewalk. It was a brick sidewalk, and in response to a question by the court, she says: ‘‘I fell; it was on a defective sidewalk; the bricks were thrown up,and of course, their being thrown up, caused a place for me to step into.”

Further on she makes this additional statement:

Question: “Now under what circumstances' did you come to fall that day or morning,if you recollect” Answer: “AH I recollect is, as I said, the bricks were misplaced.” Question: ‘‘How did you come to fall?” Answer: ‘‘I undertook to step, just as I say — to walk or step across, and I stepped on to one of the highest bricks, and my foot came back in down below that, and I fell over back. That is as near as I can remember.” Question: ‘‘Before you attempted to go over that brick walk, did you have any knowledge that there was a hole there?” Answer: ‘‘No, sir, I didn’t. I wasn’t looking for any such place, although years before I had been along there when it was uneven; it used to be quite uneven from that corner out to Ontario street, but I was not looking for anything unusual.”

Mr. Burns was called as a witness for the plaintiff. He owned property abutting on Monroe street near the place where this plaintiff fell. He had a carpenter shop near there, and in giving a description of it, he says,

‘‘I was walking down Monroe street from Eleventh street towards my shop. I was just, about Eleventh street and I saw a lady walking ahead of me, and I saw her fall. I had my boy in my wagon,and I says to him, ‘there is a bad fall.’ We picked the lady up and carried her to the' steps of the shop.” Question: ‘‘Describe any of the circumstances, if any, how she fell?” Answer: ‘‘She was walking along,and about ten feet from the line that divided my yard and a vacant lot there, the water had run across the sidewalk and had washed the sand out and formed a gutter sloping into the sidewalk,and when she stepped onto that, it being slippery, her two feet seemed to go from under her and she fell upon her hip; that is about the situation of the fall. The lady could not speak when we picked her up. We put her upon the steps, and I got a hack and sent her home.” Question: “This depression in the sidewalk was caused by what?” Answer: “It was caused by the ground. On the southeast side of Monroe street the ground is high,and Mr. Hoyt had graded away up to the corner, and had put in a catch basin at the curbing, and had put in sewer connections, and the gravel around the catch basin was always escaping into it,and when that would fill up, it would overflow scross the sidewalk and carry sand out from under the brick,” Question: “How did that affect the brick walk?” Answer: “At this place there was a dent in the sidewalk,and the brick? had sunk down at this place.” Question: “How did that leave the brick as to whether they were loose and whether they would remain in the same position where they were at that time?” Answer: “The bricks, of course, were loose, and some of 'them were out.” Question: “What do you say about how far was the lowest part of this depression where she fell b&low the level of the sidewalk?” Answer: “The depression across the sidewalk, I should judge, was about four inches, clear across. I didn’t measure it, but I know it was quite a depression.” Question: “At that particular locality, whereabouts would you say, with reference to the edges of the walk, that is, the part of the walk she fell — whether it was near the inside or the outside or the middle? Answer: “It was near the outside, She lay quite close to .the curbing when she was picked up.” Question: “You may state to the jury how long that particular part of the sidewalk had been in that condition which you have described, before that accident?” Answer: “It was in that condition from the time I had moved there.”

What I have read is sufficient to indicate the condition of sidewalk at that place,-and the manner in which the accident occurred.

The testimony of these witnesses is not contradicted in any particular by any other testimony introduced. According to the statement of this last witness — ’he states a little more particularly —■ this depression was about two feet across, and the depth in the lowest part was about four inches. It was a. sort of shelving depression, ór of that nature.

There is no dispute but that the accident occurred in the manner stated by the plaintiff herself and by Mr. Burns who saw her fall. There was this depression; sortie bricks were loose, and lying in an uneven condition, and the plaintiff, in attempting to-step across this distance of two feet over this depression in the sidewalk — in placing her foot down upon the far side, slipped and fell,and the injury resulted from that fall,

Now, it appears quite satisfactory from the testimony ■sf the witness Burns as to what was the cause of this depression in the sidewalk. The lot lying next to. it was flooded a good portion of the time with water, and that water flowed down from the lot across the sidewalk in under the brick,and carried away a portion of the sand in which the brick was laid,washing the sand out from under the brick,thereby allowing the brick to settle down so that this depression came there,

It seems that about the year 1890, that portion of this •sidewalk in this vicinity had also been badly cut to pieces by teams being driven with loaded wagons across this pavement. Mr. Burns testified that he called the attention of the street commissioner to these defects in the sidewalk,and after much importunity,succeeded in getting them corrected, The places cut by the wheels were repaired, and this place ■caused by the overflow of the water was also repaired; but he •says, the cause remaining right along, the flow of water continuing — that was open and obvious to the street commissioner as well as to others — caused the same defect to re-appear in the sidewalk; that he had notice of this,but he was unable to state how long he had actual notice of the second depression, but that it was open and obvious that the water was^flowing down under the sidewalk at that point all the time. The testimony in that regard, it seems to us, shows sufficiently to warrant the jury in finding that the city had knowledge of that defective condition, and we can not say, in the face of the verdict of the jury, that the-plaintiff was guilty of negligence in undertaking to step-across a depression of that character- of about two feet in width, in the sidewalk, and we see no reason therefore for disturbing thej_verdict of the jury,and the judgment will be affirmed. -

Charles F. Watts,\_iox Plaintiff in Error.

Ashton N. Coldham and J. Kent Hamilton, for Defend-’ ant in Error.