author: Hamilton, J.

text:
    EVIDENCE OF PRIVATE INSTRUCTIONS TO CHAUFFEUR' CHARGED WITH NEGLIGENCE.
    Court of Appeals for Hamilton County.
    Rad, Jr., by etc., v. Gamble.

    Decided December 13, 1920.

      Liability of Owner of Machine for Negligence of Chauffeur — Scope.of Employment — Private Instructions to Chauffeur — Evidence.
    1. Although a party may not impeach his own witness, he can not be , held to vouch for his truthfulness and may introduce evidence by other testimony showing a different state of facts from that given by a prior witness.
    2. In an action for damages for injuries alleged to have been sustained by being struck by defendant's automobile, driven by his chauffeur, evidence of private instructions given by defendant to his chauffeur the day before the accident is admissible for the purpose of showing the general scope of employment and whether the negligent • .. act was Committed while the chauffeur was acting within the scope of his employment.

      Nicholas Klein and W. W. Symmes, for plaintiff in error.

      DeCamp. Sutphin & Brumleve, for defendant in error.

      Motion to certify record overruled by the Supreme Court, Apr.'26, 1921.

   Hamilton, J.

This is an action for damages for personal injuries sustained by Simon Rad, Jr., a lad about six years of age. The action was brought in the name of his next friend.' The boy was struck by an automobile while crossing a street in the city of Cincinnati, on July 3, 1917, about eight o’clock in the evening. The automobile was traveling at a high rate of speed and did not stop after the accident, but continued on its way at an increased speed and was lost in the traffic. There were several eye witnesses who gave testimony at the trial of the case.

At the close of plaintiff’s evidence the court sustained a mo-lion to instruct the jury for the defendant on the ground that there was no evidence to sustain the allegations of the petition. This is the chief ground of error complained of and will be first considered.

If there is any evidence, no matter how slight, tending to prove the allegations of the petition, the case should have gone to the jury under the authority of Gibbs v. Village of Girard, 88 Ohio St., 34. The evidence introduced by plaintiff tended to show that one Jacob Sheid Avas the regularly employed chauffeur for the defendant; that the defendant was the owner of three automobiles; that the chauffeur Sheid had complete charge of these automobiles, looked after their repairs, kept them supplied with oil and other necessary appliances, had the key to each and all of the automobiles, as well as the key to the garage in which the ears were kept, and, as stated by defendant, called for cross-examination, the chauffeur Sheid had complete charge of all the automobiles “at all times.” The evidence not only tended to shoAv a general employment of the chauffeur Sheid, but established that fact.

■There was testimony of several witnesses to the fact that Jacob Sheid Avas the driver of the automobile which struck the plaintiff hoy, and that the license tag, No. 10096, Ohio, was the automobile license tag of the defendant, Cecil Gamble.

It is the law that for the master to be liable for the negligent act of his servant the negligent' act must have occurred ■ within the scope of the employment. Further, if it is established by proof that the automobile at the time of the accident was in charge of a servant Avhose duty it was to operate the automobile, a!nd who was regularly in the possession and use of the same, -with the consent, knoAvledge and authority of the owner, a presumption is raised that the servant at the time is acting Avithin the scope of his employment. Lima Ry. Co. v. Little, 67 Ohio St., 91; White Oak Coal Co. v. Rivoux, Admr., 88 Ohio St., 18, and Klunk v. Hocking Valley Ry. Co., 74 Ohio St., 125.

This presumption,. however, is. overcome if the evidence. offered for that purpose counterbalances the evidence by- which- the presumption is made out or established. It .is argued in the brief of defendant in error that the preemption,,if • raised by the other evidence adduced, was counterbalanced by the .evidence of the chauffeur Sheid, who -was called by ■ the1 plaintiff and thereby made plaintiff’s witness; in other words, that where evidence introduced by the plaintiff, which makes out a case to go to the jury, is overcome by other evidence offered by plaintiff in making out his case, a question is raised as to how far-a party to an action vouches for the truthfulness of his own witness. The testimony of Sheid, the chauffeur, and the other evidence adduced by the plaintiff, could not both be true. Sheid testified that the automobile that struck the plaintiff boy was not the automobile belonging to the defendant, that he was not in charge of and did not drive the automobile which caused any such accident, denied his presence at the place of the accident, and claimed to have been at his home and not away that evening; although other witnesses testified that he was the man in charge of the automobile which struck the boy, and that the license tag was that of the defendant.

We do not think that the plaintiff can be held to vouch for the truthfulness of the chauffeur. While the rule is that a person may not impeach his own witness, the rule does not go to the extent that he may not introduce evidence showing a different state of facts by other testimony. There was a time in judicial annals when a party was held to have vouched for the truthfulness of statements of witnesses called by him. This rule was departed from as early as 1811, when in the case of Alexander v. Gibson, 2 Camp., 555, L. C. J. Ellenborough, said:

“If a witness is called on the part of the plaintiff, who swears what is palpably false, it would be extremely hard if the plaintiff’s case should for that reason be sacrificed. But I know off-no rule of law by which the truth is on such an occasion to.be:shut out and justice is to be perverted.”.

!.:.dn tlie, case of Bradley v. Ricardo, 8 Bing., 57, 21 Eng. C. L. 220, decided by Tindal, C. J., in 1831, it was held:

■ “The object of all the laws of evidence is to bring the whole truth of a case before a jury; * * * (but if this contadle ting evidence .were excluded) that would no longer be -the just ground on which the principles of evidence would proceed.’,’

In Brown v. Bellows. 4 Pick. (21 Mass.) at page 194, it was held:

,-“A party is not obliged to receive, as unimpeached truth, everything which a witness called by him may swear to. If his witness has been false, or mistaken in his testimony, he may prove the truth by others. ’ ’

In Whitaker v. Salsbury, Jr., 15 Pick. (32 Mass.), 534, at page 545, it was held:

• - ■ “It would be evidently a rule that would operate with great .injustice, that a party calling a witness should be bound by the Gact. which was sworn to. No one would contend for a rule so i nexpedient. ’ ’

• •••Many cases arc cited in Wigmorc on Evidence supporting the proposition that while a party may not impeach the character of liiS own witness, by evidence introduced for that purpose, he is ehtitled-to have the jury consider other evidence that may contradict'such witness. 2 Wigmore on Evidence, Section 897 et seq.

'•T’h fíe case under consideration it was the question for the iury:as to whether or not they would believe the evidence of tlie defendant's servant. They might have disregarded his testimony altogether ■ and believed that- of the other witnesses. The plaintiff 'adduced sufficient evidence to entitle him to have the consideration oE the jury, and the court erred in granting the motionvfpr. an instructed verdict. , .

¡The ¡second claim of error pointed out by plaintiff in error is ■thát>the court admitted evidence of private instructions of de'fehdffnt to the chauffeur before leaving the city on the day before the injury. The evidence objected to was properly admitted for the purpose of showing the general scope of the employment and as bearing on the question whether or not the negligent act ivas committed by the servant within the scope of his employment. ' ''

"■ ' For error in granting the motion to instruct the jury for the defendant, the judgment will be reversed and the: eaiis" '*«- •niánded for a new trial.

Shore. P. J., and Cushing, J., concur.


source: Caselaw Access Project

author: Houck, J.

license: Public Domain

text:
    DEED RENDERED INVALID BY CONCEALMENT FROM GRANTOR OF HIS RIGHTS.
    Court of Appeals for Knox County.
    Donald C. Sheffer v. May M. Sheffer.
    Decided, March 25, 1922.

      Parent, and Child — Disclosure of Legal Rights and Property Interests —Required to Give Validity to a Conveyance — Made by a Son'Immediately upon Attaining His Majority — Concealment and Undue Influence by a Foster Mother.

    Where the evidential facts and outstanding circumstances clearly lead to the conclusion that a deed given by an adopted son to h’» foster mother the day after he became of age, was executed without knowledge of his rights in the estate of his late foster father and because of unquestioning confidence in his foster mother, a case is presented which requires a court of equity to set the deed aside for undue influence and fraud on the part of the foster mother who remained silent as to the son's rights but was active in securing the execution of the deed.

      Rwalt & Blair, for plaintiff.

      (J. L. Bermont and R. L. Carr, contra.
   Houck, J.

This ease comes into this court on appeal from the .common pleas court of Knox county.

The-plaintiff's action is to set aside a deed given by him to the’defendant. The deed in question was executed by the plaintiff the. next day after he arrived at the age of twenty-one years. The plaintiff is the-adopted son of the defendant and her husband, James Berry Sheffer, now deceased.

iWp'do not-.think-it necessary to set out the allegations of the petition, but deem it sufficient to say that the question raised by the pleadings, the answer being a general denial, is: did the defendant obtain the deed to the real estate described therein from the plaintiff by means of fraud and undue influence ? — the plaintiff relying upon his claim of fraud and undue influence, which is denied by the defendant. Upon this issue the question was submitted to this court upon the testimony which was taken in the court below, and is here in the form of a typewritten transcript.

This case is an important one, and we have given it careful, thoughtful and laborious consideration.

The question here involved, and upon which this lawsuit must be determined, is one of fact, namely: did the defendant obtain the deed for the real estate in question by means of fraud and undue influence practiced by said defendant upon plaintiff ? This question must and will be answered in the light of the proven facts, as found in the transcript of the testimony. The burden of proof is upon the plaintiff, and he must satisfy a court of equity that the claim he makes is true.

The plaintiff was the adopted son of the defendant. He had been under the parental roof of the defendant since his, adoption when a mere child. They had lived together in peace, harmony and good will, until a few months after the plaintiff made the deed to the defendant. The evidence clearly satisfies us that plaintiff had every confidence in the defendant, and always, by act, deed and thought seemed to love his mother and respect her wishes. The relationship of parent and child existed, and the law required of the parent the fullest protection and care from her' td her - minor son, not only in a moral and social way, but likewise in her business transactions with him.-

From the evidential facts and outstanding circumstances.in' the case we are led to but one conclusion which is that, from the death -of James Berry Sheffer, the defendant had in mind to secure for herself the interest and legal rights of the plaintiff in the estate of his foster father, James .Berry Sheffer. ,Tbis commenced the day of the funeral of James Berry Sheffer, just after they returned from the cemetery to the home of defendant, where, said defendant produced an unexecuted will of her husband, and read only certain parts thereof. This continued, by conversations and aets and statements, and what to us appears to have been a plan on the part of the defendant to- secure from plaintiff his rights in said estate, and without giving any "valuable consideration therefor. Her acts, conversation and general demeanor, as shown by the evidence, and the influence exerted over the plaintiff, were not such as would impress a court of equity that the mother was putting a protecting arm around her minor son, in such a way and manner as to protect his property ■interests in the estate of his foster father, James Berry Sheffer; but, upon the other hand, were of such a character as to .fully establish the truthfulness of all of the material facts and allegations set forth and stated in plaintiff’s petition.

If -the testimony is to be relied upon, the real mischief in this ease was not done after the plaintiff arrived, at full age, but before. At the time of the execution of the deed he 'did not know the value and extent of his interest in the estate he conveyed, as all this time, and from the death of his father, his mother had full knowledge of it, but did not disclose the same to him. This, we think, was not only her moral but her legal duty as well— to have disclosed to her son full knowledge of the extent 'and value of his interest in his father’s estate. The relationship that existed between plaintiff and defendant was that of parent and child, and the aets and conduct of the mother in this case are certainly not such as would satisfy a court of her good faith prior to and at the time of the execution of the deed now sought to be set aside.

A court of equity must and does guard with extreme jealousy such transactions between parties standing in the relationship that appears in this case. It is the duty of chancellors to protect the’ weak as against the strong, and to see that equity and justice is done all part ies when not only legal but equitable rights are to be determined.

'• It is shown by the evidence contained in the transcript of testimony that the benefits obtained by the defendant in the transfer of plaintiff’s interest in the estate of his father were not conveyed understandingly, and with a full knowledge of all his rights therein. However, his mother had full knowledge of this, and we find by her silence, together with all of the other facts disclosed, that it clearly indicates such conduct on her part as warrants the granting of the relief prayed for in plaintiff’s petition.

We can not free ourselves from the close moral ’and legal relationship that existed between plaintiff and defendant, the motherly influence that was exerted by defendant over plaintiff, and the failure of the defendant in the end to properly use same at the very time in the life of her son when he most needed the guidance and protection of a mother, is such as to fully establish the claim of the son that he parted with his interest in his father’s estate, not of .his own free will and accord, but by reason of the power and undue influence and fraud practiced on- him by his mother.

■ Further comment is unnecessary, and it follows that the judgment of this court is that the deed in question be set aside, and plaintiff is hereby granted all the relief prayed for in his petition.

Shields, J., and Patterson, J., concur.


text:
    DISMISSAL ON APPEAL FOR DEPARTURE FROM ORIGINAL CAUSE OF ACTION.
    Court of Appeals for Holmes County.
    R. L. Marquis v. The Millersburg, Wooster and Orrville Telephone Company.
    Decided, March 14, 1922.

      Departure — Cause of Action before a Magistrate — So Changed on Appeal as to Take it Out of the Magistrate’s Jurisdiction — Duty of Trial Court in such a Case.

    Where an action is brought before a justice of the peace against a telephone company for $145 as rental of land upon which the company was maintaining poles, and upon appeal to the common pleas court the claim was stated to be $300 as damages for land alleged to have been appropriated, the action of that court in dismissing the petition and giving judgment for the defendant was not only justified, but it would have been the duty of the trial court to have taken said action on its own motion had counsel for the defendant not challenged the jurisdiction.

      G. W. Sharp aucl Mel Marquis for plaintiff in error.

      Ojiarles B. Ga/ry, contra.
   Houck, J.

The parties here stand in the same position as to each other as they stood in the court below. The plaintiff commenced an action in the court of a justice of the peace of Prairie township, Holmes county, Ohio, and the bill of particulars alleged and set forth that the defendant was indebted to plaintiff for land rental for the use of certain lands upon which defendant had erected telephone poles, and prayed judgment against the defendant in the sum of $145 with interest.

The cause was tried in said justice court and judgment rendered for the defendant, whereupon plaintiff appealed said cause to the common pleas court of Holmes county. A petition was filed in said common pleas court and summons issued thereon. The parties prayed for judgment in the sum of $300, claimed to be due plaintiff by reason of the appropriation of certain lands described in said petition, by defendant, and used by the said defendant for its telephone poles.

The prayer in said petition, in the common :pleas court reads as follows:

“Said defendant is, a corporation organized under the laws of West Virginia, operating a telephone company, and says that said company forcibly took possession of said lands hereinbefore described, without any authority in law, and have refused compensation in damages, and have refused to condemn said lands for the erection of said, poles and wires thereon, and now refuse to condemn the same, to the damage of the plaintiff in the sum of $300, for which she asks judgment, interest, and costs.”

• Counsel for defendant challenged said petition in writing filed in said common pleas court, upon the ground that there was a departure from the cause of action stated in the bill of particulars, and that stated in the petition. We have examined the paper writing filed by counsel for defendant and in our judgment it savors not only of a demurrer but of a motion, and we therefore treat it as such.

The trial judge in the common pleas court sustained the contention of counsel for the defendant and dismissed said petition of plaintiff and entered a judgment in favor of defendant. Question: Did the trial judge commit prejudicial error in dismissing said petition of plaintiff?

An inspection of the bill of-particulars in the court of the justice of the peace and the petition filed in the common pleas court discloses the fact that they were of a different character and nature, setting forth different causes of action and grounds for recovery.

Before the justice of the peace, the action was for rental, but that set out in the petition filed in the common pleas court was for damages for property alleged to have been appropriated. Hence it will be seen that there was a clear departure from the cause of action in the justice court and the cause of action in the common pleas court.

A departure in pleading is the statement of matter in a subsequent pleading as a cause of action or defense which is not pursuant to or does not savor of the previous pleading of the same party.

Therefore an inspection of the allegations contained in the Jill of particulars and the ones set out in the petition filed in the common pleas court clearly show a departure, or, in other words, a new and different cause of action is set out in the petition filed in the common pleas court from that contained in the bill of particulars filed in the court of the justice of the peace.

We are of the opinion that the Supreme Court of Ohio has fully .determined the question here raised and we need but cite counsel to the case of Van Dyke v. Rule, 49 O. S., page 530, where the following rule of law is laid down in the second syllabus :

“Where an action, begun before a justice of the peace, is appealed to the' court of common pleas, the latter court has no power to substitute, by amendment, another cause of action not within the jurisdiction of the justice of the peace, though it is within the original jurisdiction of the court of common pleas, unless the defendant consents to the substitution, or waives his right to object to the action of the court.”

Further discussion of the question here raised seems to us unnecessary; and it follows from what we have already said that we find no prejudicial error in the record now before us .for review.

We are further .of the opinion that even though counsel for defendant had not challenged the jurisdiction of the court in the premises, yet upon an inspection of the record presented in the -common pleas court, it would have been the duty of the trial judge upon his own motion to have stricken the petition of plaintiff from the files upon the grounds that there was" a departure in the cáuse of action set out in the petition of plaintiff in the common pleas court from that contained in the bill of particulars in the justice court, and for the further reason that' the justice of the peace -had no jurisdiction over the subject matter- set out in- the petition of plaintiff filed in the common pleas court.

Finding no prejudicial error in the record the judgment of the common pleas court must be affirmed.

Shields, J., and Patterson, J., concur.


author: Allread, J.

text:
    VENUE IN CASE OF DEATH OF ONE STRUCK BY A MOTOR VEHICLE.
    Court of Appeals for Franklin County.
    Harvey Rinehart, Admr., v. The Wellston Iron Furnace Co.
    Decided, October, 1922.

      Summons — Judgment on Motion to' Quash Subject to Review — Validity of Service on a Negligent Automobile Owner in his Home County— Venue of Action Brought by an Administrator — Construction of Section 6308.
    1. The granting of a motion to quash finally disposes of a case and is subject to review.
    2. The statutory provision that an action for injury to person or property, caused by the negligence of an owner of a motor vehicle, may be brought by the person injured against the owner in the county where the injured person resides, is in case of -the death of such injured person available to his administrator, and where the owner is resident in another county of the state a motion does not lie to set aside service had upon him in his home county.

      ]<\ s. Monnett and G. B.'Doll, for plaintiff in error.
    Arnold, Game & Wright and Joseph McGhee, for defendant in error.
   Allread, J.

• The court of' common' pleas sustained a motioii to quash service of summons upon the ground of' improper venue.

• -This- 'judgment, finally disposed of the action below and is therefore subject to review. Gorey v. Black, 100 O. S. 73.

The'action below was to recover' damages for injuries and wrongful death of the decedent occasioned by the alleged negligence of the defendant in driving an automobile. The decedent survived the accident nearly one month. The decedent was a resident of Franklin county ánd the accident occurred in Franklin county; upon her death an . administrator 'was appointed in Franklin county.

The defendant was a resident of Jackson County, Ohio,

The action below was brought in Franklin county and the summons was issued and served upon the defendant in Jackson county.

Plaintiff below claims jurisdiction in Franklin county by virtue of Section 6308 G. C., which provides:

“An action for injury to a person or property, caused by the negligence of an owner of a motor vehicle, may be brought by the person injured, against the owner in the county wherein siich injured person resides.”

Counsel for defendant in- error contends that this statute should be strictly construed and applied only to an action brought in person by the party injured or killed.

Our Supreme Court in the case of Gorey v. Black, supra, construing this identical statute says: ‘ ‘ The reasons for its enactment are manifest, and being a remedial statute it should be liberally construed to accomplish its laudable purpose.” We feel, therefore, bound to give the statute a liberal interpretation to accomplish the manifest purpose of its enactment. To so construe this statute, as to apply only to actions by the party actually injured by the motor vehicle, would have the effect of limiting its application to the lesser injuries, leaving the more serious to fall entirely outside of the statute.

We think the Legislature did not contemplate so narrow a construction. of the law nor do we think the court would be justified in so construing it. By the general statutes, causes of action for personal injuries do not abate but may be prosecuted by the personal representative. The personal representative therefore, stands in the place of the decedent and is entitled to prosecute the action. The “injured person” would in our judgment include the personal representative of a deceased party, and the venue would be the residence of the deceased and the forum of the administratorship.

Judgment of the court below reversed and cause remanded with instructions to overrule the motion to quash the summons and for further proceedings.

Ferneding and Ktjnkdb, JJ., concur.


author: By the Court.

text:
    FAILURE TO CONSULT A PHYSICIAN.
    Court of Appeals for Hamilton County.
    Devou v. Searles.
    Decided, 1920.

      Negligence — Defenses—Right of Action by One Injured — Not Defeated by Failure to Consult a Physician — Special Findings by Jury.

    1. Where one has suffered injury because of the negligence of another, the fact that such injured person did not consult a physician at once, but cared, for the wounds himself, does not bar a recovery from such negligent person.
    2. The court is not bound to instruct the jury to find upon particular questions of fact where the request does not contain the condition that the questions should be answered in case a general verdict should be rendered.
    IF. F. Chambers and Thos. L. Michie, for plaintiff in error.

      Dennis J. Ryan and F. J. Wendeln, for defendant in error.
   By the Court.

This is a proceeding in error to review the judgment rendered in favor of the plaintiff below for injuries alleged to have been caused by the negligence of the defendant below in maintaining an unsafe lid over a coal-hole in a public street. The jury returned a verdict against the defendant in the sum of $1,0(00. and judgment in that amount was entered. Plaintiff’s hand was injured, apparently only slightly, but later there developed a stiffening of two fingers that left his hand permanently distorted. The evidence was conflicting as to whether he had consulted a physician.

The principal errors complained of are the failure of the court to give the special charge as follows:

“The court charges the jury that if you believe from the evidence in this case that the plaintiff was injured as alleged in Ins petition, and that sometime after his injuries, if you find from the evidence that he was injured, the plaintiff found that the fourth and fifth fingers of his left hand were affected and were beginning to contract, then I charge you that it was the duty of the plaintiff to use ordinary care and prudence under all the circumstances, to take care of himself and his wounds; and I further charge you that if a reasonably prudent man under the same or similar circumstances would have consulted a physician or surgeon, and if you find from the evidence that the plaintiff did not consult a physician or surgeon, then I charge you that the plaintiff failed to use that degree of care and prudence to take care of himself and his injuries, which the' law which I have already stated required him to do; and I further charge you that the defendant in this case can not be held responsible for the failure of the plaintiff in this respect, if you find from the evidence in this ease that there was such failure, on the part of the plaintiff.”

The charge is inconsistent with the rule laid down in Toledo v. Radbone, 3 C. C. (N. S.), 382, affirmed 68 Ohio St., 687, and the refusal to give, it was not error.

Counsel for the defendant requested the court to submit to the jury the following special interrogatory:

‘‘What act or acts of negligence on the part of the defendant, if any, you find, have been proved by the evidence in this case, proximately- caused the injuries complained of by the plaintiff?”

The request for the instruction did not contain the condition that the questions should be answered in case a general verdict should he rendered. The court, therefore, was not bound to give it. (Gale v. Priddy, 66 Ohio St., 400.) It was not the character of question intended by Section 11463, General Code, to he submitted. That section does not require the submission lo the jury of questions whose purpose is only to ascertain the mental processes by which the jury may arrive at the conclusions of fact. Cleveland & Elyria Elec. Rd. Co. v. Hawkins, 64 Ohio St., 391.

The judgment will be affirmed. .

Sttohl, P. J., Hamilton and Cushing, JJ., concur.


text:
    TECHNICAL IRREGULARITIES IN CRIMINAL PROSECUTIONS.
    Court of Appeals for Coshocton County.
    State of Ohio v. Tunis Elson.

    Decided, February 10, 1922.

      Prosecution Under the Orabbe Act — Having Intoxicating Liquor in Possession — Not Necessary to Allege it was tor Beverage Purposes — ■ Mayor’s Failure to Attach His Seal to the Affidavit not a Fatal Omission.

    1. An affidavit charging possession of intoxicating liquor is not rendered defective by reason of failure to affirmatively charge that the liquor so possessed was for beverage purposes.
    2. An averment of purpose to do an unlawful act is not required in a prosecution under the Crabbe aet, which makes the possession of ‘ intoxicating liquor an offense; nor need the kind of liquor had in possession he alleged.
    3. Under the latter day rule, which lessens the importance of technical requirements in a criminal prosecution and only requires that substantial justice be done between the accused and the state, the failure of the mayor or magistrate to attach his official seal to the affidavit or warrant of arrest will be treated as an irregularity only and not as ground for reversal of a judgment of conviction.
    J. A. White, Charles M. Earhart and Lloyd 8. Leach, Pros.. Atty., for plaintiff in error.

      C. Homer Durand, contra.

       Motion to certify record of the Court of Appeals overruled by the. Supreme Court, October 10, 1922,

   Houck, J.

Shields, J., and Patterson, J., concur.

This case is here on error to a judgment of tbe common pleas court of Cosbocton county, Obio, reversing tbe judgment of conviction by Mayor Tisb of tbe defendant in error here.

In the mayor’s court Elson was convicted of possessing intoxicating liquors in violation of Section 6212-15 G-. C. of Ohio, being Section 3 of what is known as the “Crabbe Act.”

The common pleas court reversed the judgment of conviction by -the mayor for the following reasons:

1. That the affidavit did not charge the defendant with the commission of an offense.

2. That the affidavit did not allege intent.

3. That the charge in the affidavit was not laid with sufficient certainty.

4. That the mayor’s official seal was not upon the • affidavit and warrant.

5. That the judgment of conviction by the mayor was not sustained by the evidence. ’

The question for this court to pass upon is: Did the common pleas court commit prejudicial error in reversing, the judgment of conviction in this case by the mayor?

The affidavit, omitting the dates, is as follows:'

‘ ‘ State of Ohio, Coshocton .County, ss:
“In the Mayor’s Court of the city of Coshocton, County of Coshocton, Ohio.
“Before 'me, W. S. Tish, mayor of the city of Coshocton, county of Coshocton, Ohio, personally came J. R. Maple, who being first duly sworn according to law deposes and says:
“That on or about the .... day of .............., A. D., 192.., in the county of Coshocton, state of Ohio, one. Tunis Elson did then and there possess intoxicating liquors: that the possessing of intoxicating liquors as aforesaid by the said Tunis Elson was then and there prohibited and unlawful and eontrary to Section 3 (Section 6212-15, General Code) of an Act entitled ‘An Act to prohibit the liquor traffic and to provide for the administration and enforcement of such prohibition and repeal certain sections of the General Code’ (106 Part 2, O. L., 1182), approved at the general election held November 2, 1920, and that the possessing of intoxicating liquors as aforesaid was . not in accordance with the provisions of Title II of the' Act of Congress known as the ‘National Prohibition Act,’ passed October 28, 1919, said possessing not having been in a Iona fide private dwelling, and against the peace and dignity of the state of Ohio.
“Further deponent saith not.”

Was said affidavit defective because it did not affirmatively state that said intoxicating liquors, so possessed, were for beverage purposes?

It will be observed that the offense defined in said Section 6212-15 consists in possessing intoxicating liquors, and when the proof establishes that fact it is all that is required under said statutory provision. It follows that it is not necessary to allege in the affidavit that said intoxicating liquor was for beverage purposes. If the intoxicating liquor is possessed lawfully, that may be shown as a matter of defense.

We do not think it necessary to aver in the affidavit that said intoxicating liquor was for beverage purposes for the further reason that the “Crabbe Act” simply outlaws intoxicating liquor for beverage purposes, and the force and effect of said act is that one who possesses it is guilty of an offense, unless such possession comes within the exceptions thereto, and which exceptions must be affirmatively established as a defense. Nowhere in said act do we find that intoxicating liquor is permitted to be used for beverage purposes, save and except as found in paragraph 2 of Section 6212-14, General Code, which provides: “the term possess shall not apply to intoxicating liquor in a bona fide private dwelling.”

The following authorities are decisive of the question here raised:

“Negative averment to the matter of an exception or proviso in a statute is not requisite in an indictment, unless the matter of such exception or proviso enter into and become a part of the description of the offense, or a qualification of the language defining or creating it.” Hirn v. State of Ohio, 1 Ohio State, page 16.
“A negative averment to the matter of a proviso in a statute is not requisite in an information, unless the matter of such proviso enters into and foecomes a part of the description of the offense,'or is a qualification of the language defining or creating it.” Billigheimer v. State, 32 Ohio State, page 435.
“If the acts complained of in this case were within the ex-eeption, the defendant’s rights were fully protected by permitting him to set them up in defense. These were matters as to which he had particular and special knowledge, and no harm can come to him nor to the state by imposing upon him the duty of bringing himself within such exceptions. Had the Legislature intended the exceptions mentioned to be made a part of the description of the offense, the presumption certainly is that it would have included them in the statute that created the offense.” Brinkman v. Drolesbaugh, 97 Ohio State, 178.

Was it necessary for the affidavit to allege intent? We answer this in the negative.

An examination of Section 6212-15, General Code, under favor of which said affidavit was drawn, clearly shows that an averment or allegation of knowledge, or unlawful purpose, or an intention to do an unlawful act, is not necessary. Nothing in this provision of the statute requires any such averment, and, therefore, not being, made a part of the offense by said statute, it is not required to be set forth in the affidavit.

As to whether or not the affidavit fully advised the accused with the alleged offense, will say: That it is urged on the part of the accused that the affidavit is faulty because it does not charge that the intoxicating liquor possessed was of a certain kind, viz, whiskey, gin, rum, beer or other liquor named in Section 6212-14, General Code. This claim is not well taken, and we are supported in this conclusion by a recent decision of our Supreme Court. We refer to the case of State of Ohio v. Harry Marcinski, Cuyahoga county. Judge Wanamaker speaking for the court says:

“In an indictment for keeping a place where intoxicating liquor is sold in violation of law, the name of the person to whom it was sold need not be alleged.
“From the foregoing it clearly appears that where the offense charged is 'keeping a place where intoxicating liquor is sold in violation of law,’ etc., it is unnecessary to the sufficiency of an indictment to allege the kind of liquor sold. If this were true when intoxicating liquors were licensed to be sold for beverage purposes, surely greater particularity • would hardly be required, when the sale of intoxicating liquors, or the possession of intoxicating liquors as a beverage, are totally outlawed or prohibited.”

Does it invalidate the affidavit and warrant in the present case by reason of the fact that the official seal of the mayor was not attached to them?

We are aware of the provisions of Section 4549, General Code, and yet we can not and will not bring ourselves to hold this statute is so far-reaching that it renders the process issued by the mayor of no force and effect in law. The omission of the seal was a clerical error — one of form and not of substance. It in no wise changed, or in any way added to or took from the accused any of his legal rights, or prevented him from having his ‘ ‘ day in court. ” If it was such an omission as would in any way work an injustice to him, or in effect prejudice him, or prevent him from having a fair trial, or from obtaining substantial justice, we might hold otherwise.

While we find the failure to attach the seal to be an irregularity, yet as it does not in any way, in fact or law, change the charge made against him in said affidavit, and does not jeopárdize his legal rights, we must and do hold that the absence of said seal does not invalidate said proceedings in the mayor’s court.

We are fully satisfied that the validity of the proceedings is not affected by the fact that the mayor failed to attach the seal of his office to the affidavit and warrant. On its face it is simply in the nature of an irregularity, and does not invalidate the proceedings. The state having done all it could do in the premises, by causing an affidavit to be filed, in due and legal form, which was properly verified, it follows that all the law required was done, and the mere fact of the omission of the mayor’s seal is not material to the validity of the affidavit or the warrant.

We believe that in principle as well as in law, that in error proceedings where it is apparent from the record (as in the instant case) that the judgment of conviction by the mayor was right, a technical error intervening in the procedings or trial in the lower court should not avail to disturb the judgment entered below, and that a reviewing court would not be warranted in doing so.

The time was, in criminal trials, that the least technicality in the indictment or affidavit, as well as the proof, worked an acquittal, of the accused. But we are now living in a new day and age, when the rule to be applied must be that substantial justice should be done as between the state and the accused. Courts should follow the rule to disregard that which is simply formal and of a technical nature. This can be done, and at the same time protect and preserve, from the commencement to the end of the case, all those matters of substance necessary and essential to afford the accused a full, fair and impartial hearing and trial, so that justice may be meted out, not only to the accused, but that the rights of the state may be fully protected, that in the end justice and that only will be the result.

- A careful reading of the testimony offered at the trial in the mayor’s court, as found in the bill of exceptions, fully convinces us that the evidence was sufficient to warrant the judgment of conviction as entered in said mayor’s court.

. We have made a careful examination of the record now before us for review; also read with much interest and benefit the able briefs submitted by learned counsel in the case; and it is the unanimous judgment of the members of this court that the judgment of conviction in the mayor’s court was right. It follows that the judgment of the common pleas court in reversing the mayor’s court was erroneous, and prejudicial to the state — the plaintiff in error here-^and that said judgment should be reversed, which is now done.

Judgment of the common pleas court reversed, and that of the mayor’s court affirmed.


author: Mauck, J.

text:
    RIGHT TO BRINGISUIT EXCLUSIVE IN ONE SUBROGATED TOj ALL RIGHTS OF THE INJURED PARTY.
    Judges Mauck, Sa'vke and Middleton sitting in place of the Judges • of the First Appellate District.
    Court of Appeals for Hamilton County
    Caroline Cox v. The Cincinnati Traction Company and Edward W. Edwards.

    Decided, July 11, 1922.

      Only the Actual Claimant for Relief May Sue — Indemnification by One Who ERas Thereby Become Subrogated to All Rights of th& Party Compensated.

    1. The provisions of Section 11241, General Code, requiring an action to he brought in the name of the Teal party in interest are mandatory, except as expressly limited by the three succeeding sections.
    2. Where one who has suffered an injury has been fully indemnified by a liability insurance company and the insurer has become subrogated to all the rights of the insured, the party so fully indemnified cannot prosecute an action against those whose negligence caused the injury. Such action must be brought in the name of the subrogated insurer.

      Buchwalter, Headley & Smith and Frank L. Leonard, attorneys for plaintiff in error.

      Sawyer & Faxon, attorneys for defendants in error.

       Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, November 28, 1922,

   Mauck, J.

Tbe plaintiff brought her action in the municipal court of Cincinnati alleging that an automobile owned by her was dam- ■ aged by being struck by an automobile owned by the defendant Edwards, which in turn was struck by a street car of the traction company, and that the injury was due to the negligence of both of the defendants.

One of the defenses interposed in the trial court was as follows :

; “For his second defense this defendant adopts all of the allegations contained in the first paragraph hereof as fully as if set forth herein and says that at the time of said collision the automobile of the plaintiff herein was insured by the Fidelity and Casualty Company of New York against loss and damage resulting from collision between said automobile and any other object; that by the terms of said policy of insurance it was agreed thát said the Fidelity & Casualty Company of New York was entitled to be subrogated to any claim that the plaintiff as holder of said policy might have against any person or corporation for damages sustained by reason of any such collision in .the event that said the Fidelity & Casualty Company of New York should pay to the plaintiff the loss sustained by said collision. This defendant further says that said the Fidelity & Casualty Company had fully paid and indemnified the plaintiff for the loss she has sustained by the collision alleged in the bill of particulars, and is subrogated to any and all claims which the plaintiff may have against this defendant by reason of said collision, and that by reason thereof the plaintiff has no further interest in said claim and is not the real party in interest in this action.”

A demurrer was interposed to this defense, and the demurrer being overruled judgment was entered thereon and error was prosecuted to the court of common pleas. In that court the judgment of the municipal court was affirmed, and the case now comes into this court, where the sole question is the sufficiency of the defense pleaded.

Under, the old procedure an action to enforce the subrogated rights of an insurer could only be brought in the name of the 'insured. Under the code, however, “an action must be prosecuted in the name of the real party in "interest.” (G. C., 11241.)

Widely "divergent constructions have been given to similar provisions in those states where the code has been adopted requiring an action to 'be brought in the name of the party really interested, some of such states holding that the action may be brought in the name of either the insured or insurer; some that it must be brought iu the name of the insured, and others that inasmuch' as the insured has been wholly compensated and can have no actual interest in the litigation the action must be brought in the name of the indemnifying insurer, who alone stands to be benefited by the successful result of the action.

This case is one wherein the loss suffered by the insured was wholly satisfied by the insuring company and iw not to be confused with those cases where the insurance paid is less than the loss, for in such case the authorities uniformly require the action to be brought in the name of the insured as otherwise a splitting of the cause of action would result with a duplication of litigation that is never tolerated. (Notes to L. R. A., 1918, F., 145; 23 L. R. A. (N. S.), 870; Ann. Cases, 1918 A, 834). Of such a statute as that under consideration it has been said:

“The real party in interest, within the meaning of this provision of the code, is the person who will be entitled to the benefits of the action if successful; one who is actually and substantially interested in the subject-matter, as distinguished from one who has only a nominal, formal or technical interest in or connection with it.” 15 Ency. Pl. & Pr., 710.

And

‘ ‘ It follows that if it appears that the plaintiff is not the real party in interest, and is not within any of the exceptions, such fact will constitute a defense to the action.” Ibid, 712.

The editor of Ruling Case Law.thus states the law.

“Under the,code practice, however, where an action is required to be brought in the name of 'the real party interested, if the loss does not exceed the insurance, the insurer must sue in its own name and the insured is not a proper party to the action, but where the loss exceeds the insurance the insurer cannot maintain an action in its own name; however, the assured may bring an action in his own name against the wrong-dóer, and recover the full amount of the loss, 'holding the. proceeds so far as the insurer is subrogated, as trustee, and it would seem that the insured is the only proper party to recover damages from the wrong-doer.” 14 R. C. L., 1410.

The Supreme Court of North Carolina thus states the rule:

“An insurer who has paid a loss caused by another’s negligence must bring the action against the wrong-doer to compel him to make good the loss, under a statute requiring suits to be brought by the real party in interest, since, being subrogated to the rights of the insured, he is such party. ’ ’ Cunningham v. Seaboard, etc., Ry. Co., 139 N. C., 427; 2 L. R. A. (N. S.), 920.

In Illinois Central Rd. v. Hicklin, a Kentucky case reported in 23 L.R.A.(N.S.), 870, it was held that the tort-feasor could not raise the question of insurapce where the action was brought by the. insured rather than by the insurer. To like effect are other authorities, but the editor of that series adheres to the doctrine that where the insured has been satisfied, the insurer is the real party in interest and alone can maintain an action on the claim to which he has been subrogated.

“But under the statutes requiring suits to be brought by the real party in interest, it has been held that the insurer must bring the action against the wrong-doer if the whole value of the property has been paid by it, or must be joined with the insurer if only a part has been paid.’,’ Note to Hicklin case supra.

Supporting the same principle are: British-Amer. Assur. Co. v. Col. Rd., 52 Col., 589, 41 L. R. A. (N. S.), 1202; Southern Ry. Co. v. Blunt, 165 Fed., 258; Allen v. Ry. Co., 94 Wis., 93.

The Ohio statute fixing the right to bring an action is as follows :

“Sec. 11241. An action must be prosecuted in the name of the real party in interest, except as provided in the next three succeeding sections.”

It would be difficult to imagine a more imperative, affirmative statement than this. It says what it means and means what it says. It is not directory, but mandatory. Its purpose was to'bring the actual claimant for relief before the court, and was a proper and necessary part of the reformed procedure which sought to abolish the fictions obtaining under the old practice. The statute quoted made certain exceptions contained in three subsequent sections. One of these succeeding sections is 11244, which provides among other things that a person in whose name a contract is made for the benefit of another may bring an action on such contract. If the principal section (11241) were to be given a directory interpretation there would be no occasion for the exception just noted. It was because Section 11241 requires the real party interested, that is, the party for whose benefit the contract-was made, to bring an action that it became necessary to create the permissive power under 11244 for the nominal party to such contract to sue thereon. If either party could have sued under 11241 there could have been no reason for authorizing the nominal party to sue under 11244.

Can there be any question as to who the real party in interest is? Mrs. Cox has no grievance. She is suffering no wrong. For. her injuries, she has been fully compensated. The contract with the insurer provided that when she was compensated the insuring company was to be subrogated to any claim she might have against others for the damages sustained by her. When the insurer fully indemnified her she no longer had a claim. She parted with her claim, and the insuring company was subrogated thereto. Having no claim she had no cause to be heard, and another who has such claim can not borrow her name and gain a possible advantage by leading a fiction.

We fully recognize that eminent courts in other jurisdictions adhere to the old practice, but we feel at liberty to follow that equally eminent line of authority that stands for a literal interpretation of the plain, unambiguous language'of the code that insists on truth and simplicity in pleading.

Judgment affirmed.

Sayre and Middleton, JJ., concur.


author: Cushing, J.

text:
    ACTION FOR AN INJURY SUFFERED IN I ANOTHER j STATE. ¿J
    Court of Appeals for Hamilton County.
    Yeazel v. The Louisville & Nashville Railway Co. et al.
    Decided January 17, 1921.

      Negligence — Railwdy Conductor — Sues in Ohio for Injuries Sustained in Kentucky — Application of the Doctrine Lex Loci Delicti and Lex Fori — Defective Operation of Safety Oates — Not Available to One Who Did Not Rely on the Oates for Safety — Competency of E-vi* dence.

    1. The refusal of a trial court to admit evidence with reference to the negligent operation of safety gates at a railroad crossing is not error in an action for personal injuries sustained by being struck by a train, where undisputed facts show that the plaintiff did not rely in any way on the safety gates as a warning. In such case it is not material whether the plaintiff was within the class- for whose protection the gates should be -maintained.
    2. The law of a foreign jurisdiction is a matter of fact and should be pleaded and proved.
    3. Evidence tending to impose a liability® relates to the right of action and is -governed by the lex loci delicti.

    4. An action for an alleged tort committed in Kentucky, being tried in Ohio, in the absence of proof of the laws of that state, the presumption arises that the rule of negligence in Kentucky is the common-law rule.

      Edgar M. Cist and Walter M. Schoenle, for plaintiff in error.

      E. Kenneth Rogers, for defendant in error, Tbe Louisville & Nashville Ry. Co.
   Cushing, J.

Plaintiff in error, Charles N. Yeazel, was in the employ of the Big Four Railroad Company as freight conductor. On January 17, 1917, he was taking a cut of freight cars from the company’s yards, north of Cincinnati, to those of the C. & 0. railway beyond Covington, Kentucky. After crossing the C. & 0. bridge over the Ohio river his train stopped for orders. The engine was about 200 feet from the intersection of Johnson street and the railroad. At this point Yeazel left the train, walked east on Fifth street, and as he was about to enter the saloon at Fifth and Johnson streets observed that his train had started south. He walked rapidly south on Johnson street to catch his train before it crossed that street. It was moving about two miles an hour. The double-track railroad at this point ran from northwest to southeast. Johnson street extended nor th and south. As Yeazel approached the railroad the safety gates at its right of way were partially down. He passed beyond these gates. Before reaching the outer rail of the northbound track he claims to have looked to the south to see if a train was approaching, and to have listened for an approaching train. He stepped on to the northbound track. Before he had crossed he heard a click, looked to the south and saw a train backing, within thirty feet of him, and before he reached the space between the two tracks he was struck by the train, knocked under his own train and received the injury of which he complains.

The amended petition, on which the case was tried, charged negligence in the following particulars: Failure to properly operate the safety gates, or to give plaintiff warning of the approach of the train by ringing a bell or sounding a whistle; and the operation of the train at a street crossing at a dangerously high rate of speed, thirty miles per hour.

After admitting its corporate capacity, the operation of its train, and that Yeazel was injured about January 17, 1917, the Railroad Company denied all the allegations of the petition, charged that plaintiff was negligent, and pleaded and relied upon the contributory negligence of the plaintiff as a bar to his right of recovery.

On the issue made the testimony of the plaintiff disposes of two questions that were argued at length at this hearing. First: Was the plaintiff one of the class of persons for whose protection the law requires safety gates to be maintained? Second: Was the failure to maintain the gates in a working condition, or to operate them, the proximate cause of the accident and injury ?

The testimony to which reference is made is that Yeazel knew that the southbound track was occupied by his own train, so that the gates were not a warning to him that the crossing was being used for railroad purposes at that time; that on reaching, or after he had passed, the gates, and was within three or four feet of the northbound track, he did not rely upon the gates, but looked and listened for an approaching train from the south. The gates could not have been a warning to him. He not only disregarded them, but relied on his own sense of sight and hearing before going upon the track. The refusal, therefore, of the court to admit evidence with reference to the safety gates was not error, and whether he was within the class for whose protection the gates should be maintained is not material in view of the undisputed facts in this case. He did not rely in any way on the gates or on his knowledge that the southbound track was being used by the railroad company for railroad purposes.

The trial court refused to admit evidence as to the speed ordinance of Covington, and also as to whether or not the negligence of the defendant was wilful and wanton. These questions will be determined by the conclusion as to whether the law of Kentucky or the law of Ohio fixes the plaintiff’s rights and the defendant’s liability, if any, in this case. The rule is that where an action is brought in one jurisdiction for a tort committed in another, all matters relating to the right of action a.re governed by the lex loci delicti and all matters relating to the remedy by the lex fori. 5 Ruling Case Law, 1036.

It was admitted in argument that the ordinances of the city of Covington would not be admissible in evidence if the case were tried in ilie-Mate of Kentucky. Evidence tending to impose a liability relates to the right of action and in this case is determined by the law of Kentucky. The attempt to offer in . evidence the ordinance in question, sought to bring the ease within the rule of Pennsylvania Co. v. McCann, 54 Ohio St., 10. In offering the ordinance in evidence it was sought by applying the rule in Pennsylvania Co. v. McCann to bring the case within the rule announced by the supreme court in Schell v. DuBois, Admr., 94 Ohio St., 93, namely, that the violation of an ordinance passed for the protection of the public is neglegenee per se. It would not be error to exclude this ordinance if the law of Kentucky is as stated. In the McCann case the supreme court was passing on an act of the general assembly which prescribed the circumstances that shall constitute prima' facie evidence of a fact in issue in an action on trial in the courts of this state. The 'general assembly of Ohio has not passed such a law with reference to the speed of trains, and the holding in the McCann case, that the statute therein questioned was applicable to all cases tried in Ohio, if part of the line extended into this state, is not applicable to this case. Applying the rule lex loci delicti, if there was a cause of action in Kentucky was the defense valid, and did the facts in evidence give rise to a valid cause of -action, or establish a valid defense? These questions could only be determined by the law of the state of Kentucky. (Alexander v. Pennsylvania Co., 48 Ohio St., 623.) Neither the statutes, if there are any, nor the decisions of the courts of Kentucky were offered in evidence, and as the trial court could not take judicial notice of such law there was a failure of proof to establish any action against the defendant company.

In Alexander v. Pennsylvania Company, supra, Bradbury, J„ says in the opinion, at page 636:

“If the acts of the parties impose no obligations on the one hand and confer no rights upon the other, where they occur, no good reason is apparent why they should spring into active existence the moment the parties pass into another jurisdiction, where, if they had occurred therein, such relative rights and obligations would have resulted.”

The law of a foreign jurisdiciion being a matter of fact should be pleaded and proved. See also Chandler v. St. L. & S. F. Rd. Co., 127 Mo. App., 34.

In Baltimore & O. S. W. Ry. Co. v. Reed, 158 Ind., 25, the court says at page 28:

“Unless the alleged wrong was actionable in the jurisdiction in which it was committed, there is no cause of action which can be carried to and asserted in any other jurisdiction.”

But one point remains for consideration, that is, in the absence of proof of the statute or laws of the state of Kentucky in the trial of an action for an alleged tort committed in that state the' presumption arises on the trial of the case in Ohio that the rule in Kentucky is the common-law rule of negligence. Plaintiff’s evidence does not establish that he was guilty of contributory negligence as a matter of law. Whether his statements were true was for' the jury, and the trial court erred in directing a verdict for the defendant.

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

Shoi-il, P. J., and Hamilton, J., concur.


text:
    LEAVES OF ABSENCE UNDER THE CLASSIFIED SERVICE.
    Court of Appeals for Stark County.
    Elek Hartman v. Milton J. Braucher, Director of Public Safety, and William F. Gauchat, Chief of Police of the City of Canton and The Civil Service Commission of said City
    Decided May 31, 1921.

      Civil Service — Patrolmen Within the Classified Service — Leaves of Absence Extending Over More than One Year Terminate All Connection With the Department.

    1. Where a police officer of a city in the classified service, under a leave of absence from duty in which no limit of time was set by the director of public safety granting the same, remained off duty for a period of two years or more, such absence worked a separation from the service as contemplated by G. C. Section 486-16 (Civil Service Act).
    2. The limitation of one year specified in Section 486-16, G. C., clearly defines the period for which a leave of absence may be granted, and any leave of absence granted in excess of such period constitutes an actual separation from the service.
    3. A voluntary resignation from the service might not place one beyond the pale of restoration to the same or similar position, with the consent of the civil service commission, under an application properly made, within the period of limitation, to-wit, one year; hut where that was not done, separation from the service- for more than one year worked a forfeiture of the position.

      Rice & Souers, for plaintiff in error.

      Clarence A. Fisher and Milton J. Braucher, for defendants in error.
   By the Court. (Shields, Houck and Patterson, JJ.)

The judgment of the court below is sought to be reversed in this case on the ground that said court erred in sustaining a General demurrer to the petition of the plaintiff in error.

In his petition after alleging the official relation of the defendants to said city and his appointment as patrolman in the police division of said city and his service therein long prior to February 3, 1919, aud having then served as such patrolman, for more than six months, the plaintiff alleges that on said February 3, 1919.

“By reason of ill health unfitting him physically for duty at the time, he was on said day granted by E. W. Hamaker, then director of public safety of said city a leave of absence from duty as a patrolman until such time as the plaintiff should become physically fit to resume his duties in the public service, such leave of absence being made effective February 1, 1919; that thereupon the plaintiff, under such leave of absence, temporarily discontinued active service in said police department of the department of public safety of said city and went and continued upon the leave of absence granted as aforesaid until April 7, 1921, at which time it was certified by the examining physician of the civil service commission of said city that the plaintiff had become again physically fit for police duty; that thereupon the defendant on April 7, 1921, reported to the defendants Milton J. Braucher as director of public safety and William F. Gauchat as chief of police, for active duty, and requested that he-be forthwith assigned to duty as a patrolman in the police division of said city, but that notwithstanding the plaintiff on said April 7, 1921, and on each and every date since that time has duly reported for duty and has tendered his services as a patrolman and requested assignment to duty the said defendants have failed and refused to accept the services of the plaintiff or to assign him to duty, but on the contrary have prevented him from performing his duties and have excluded and declared their intention of continuing to exclude the plaintiff from his office and employment as patrolman in said police division. ”

He further alleges that he has never resigned or been removed from his office or employment as such patrolman, nor has he ever been in any manner separated or retired from such office and employment, except upon said leave of absence and that he is entitled to be restored thereto, and to receive the emoluments thereof, and that the action of the said defendants in excluding the plaintiff therefrom is wholly without warrant or authority of law and contrary to the laws regulating the employment and removal of officers and employees ■ in the classified civil service of said city. He further says that he was appointed to and employed in the classified civil service without definite tenure of office, but to serve during good behavior, and was and is removable only for cause. Reference is also made to the adoption by the civil service commission of said city under the civil service act of the rule that whenever any employee in the classified civil service is discharged, laid off, reduced or suspended, he shall be furnished with a copy of the order -of discharge, lay off, reduction or suspension with the reasons therefor, and be given a reasonable time in which to make and file an explanation, all of which was denied the plaintiff, and that the defendants have gone forward and wrongfully appointed another to take the plaintiff’s place and position in said police division.

The prayer of the plaintiff is that the defendants, the civil service commissioners, herein named, be enjoined during the pendency of this cause from certifying or approving the pay roll of said police division until the name of the plaintiff has been placed thereon and the name of the person wrongfully appointed to the plaintiff’s position has been excluded therefrom ; that the said director of public safety and the said chief of police be enjoined from further interfering with or preventing the plaintiff from discharging the duties as said patrolman, or excluding him therefrom, and be commanded and enjoined forthwith to restore and assign the plaintiff to duty in said police division and to the pay roll thereof.

A demurrer was filed to said petition by the defendants on the ground that the same does not state a cause of action in law or equity, which demurrer was by the court sustained, and the plaintiff not desiring to further plead, judgment was rendered against him for costs, to all of which the plaintiff excepted, and now files his petition in error in this court to reverse said judgment.

Without stopping to comment on the object or public benefits of the civil service act and the classification of the positions or employments embraced in what is termed the classified and unclassified service in said act, it is conceded that the plaintiff in error was in the classified list. Going directly to the question raised by the demurrer, Was or was not the plaintiff in error in the service of the city of Canton on April 7, 1921, when he recovered from his ill health and when he reported for duty and tendered his services and requested to be restored to the position as patrolman in the police division of said city! If he .was, he is entitled to the relief prayed for, otherwise such relief should be denied him.

Subdivision 16 of Section 486 of said act (Generaal Code, Section 486-16) provides in part that

1 ‘ Any person holding an office or position under the classified service who has been separated from the service without delinquency or misconduct on his part may, with the consent of the commission, be re-instated within one year from the date of such separation to a vacancy in the same or similar office or position in the same department, etc. ”

It is upon the construction of this portion of said section that the question made depends. On behalf of the plaintiff in error it is contended that the provisions of said section do not apply to the ease at bar, but ‘ ‘ relate to complete and permanent separation from the service such as results from resignation or the abolition of a position.” We do not so construe the statute. If the view urged was in contemplation by the Legislature when the Act was passed, the inquiry might well be made why it is that one “may be re-instated within one year” who has not been guilty of delinquency or misconduct. True, a voluntary resignation from the service might not place one beyond the0pale of restoration to the same or similar position, with the consent of the commission, under an application, properly made, within the period of limitation named in .said section but such a case is not before us. Here the case made is as if by mandatory injunction to require the director of public safety and the chief of police of said city to restore the plaintiff in error to the position o,; patrolman in the police division of said city, and to the emoluments of said position, after an absence of two years or more under an alleged indefinite leave of absence granted by the then director of public safety. No application for an extension of leave of absence appears to have been made to or granted by the commission or other proper authority during this time. As held by the Supreme Court in Green v. Commission, 90 O. S., 252, the civil service commission has power to make, amend and enforce rules and regulations for carrying into effect the provisions of the civil service act, but we apprehend it will not be contended but that such delegation of administrative power is subject to the provisions of the legislative will as contained in the provisions of said act, and that the exercise of such power can not exceed the authority expressly conferred by said act. Hence, we naturally turn back to examine the contents of the leave of absence granted the plaintiff in error upon which his counsel contend that he is justified in law and equity in relying, and by reason of which the plaintiff in error is entitled to the relief here sought. No reference was made in argument of counsel to the rules of the municipal commission, but Section 47 of the provisions of the city ordinance relating to the payment of three months regular salary to disabled policemen was referred to, which was perhaps passed pursuant to the authority conferred by Section 468-14. That'a temporary leave of absence for sickness or other cause may be granted under General Code, Section 486-16 we entertain no doubt, and that such leave of absence would within the limitation of time named therein not be a separation from the service as contemplated by said section is equally apparent, but we find no warrant in said section or elsewhere authorizing the granting of an indefinite leave of absence to any officer or employee in the classified service.

To say the least, such exercise of power would render nugatory and defeat the action of the commission in filling vacancies as provided by General Code, Section 486-14, independent of the express provision contained in General Code, Section 486-16. But counsel for plaintiff in error add “since Officer Hartman neither resigned nor was removed but still continues on the roster, under leave of absence, as shown by the civil service commission, which is admitted by the demurrer, therefore he is still in the service and entitled to be restored to duty and to the pay roll.” That is to say, that under the leave granted, said officer, although off of duty for more than two years and who might by the same logic have remained off of duty two years or even ten years more, may still claim the right to be restored to duty and to the pay roll at the end of such period. Sickness naturally awakens sympathy and it appears that the ease here presented is one which appeals to humane consideration, and however much we might naturally be inclined to listen to such appeal, we can not disregard our obligations of duty to the law by giving a construction to the statute in question which in our judgment is unwarranted by its terms. As already stated, the plaintiff in error was off of duty in said service for two years and more, and made no application for a renewal of a leave of absence during that time. Did such absence work a separation from the service as contemplated by General Code, Section 486-16? We think that the limitation of one year specified therein clearly defines the period for which a leave of absence may be granted, and any leave of absence granted in excess of such period constitutes an actual separation from the service, and is unauthorized by the terms of said section.

In its charity the civil service law, impliedly at least, indulges a reasonable allowance in point of time as fixed by the Legislature for disability occasioned by sickness or other cause, but the observance of public interest forbid an indefinite and unlimited leave of absence from official duty and compensation therefor. “Public office is a public trust,” and while conditions are liable to overtake the incumbent of an office which he can not control, and for which due allowance should be made, still after the lapse of a reasonable time, personal disability must yield to public convenience, and quoting from counsel’s brief, “a city government must function; a police department must exist, vacant offices must- be filled and no man has the right to claim a lien on an office unto infinity. ’ ’

For the reasons given, we are of the opinion that the action of the court of common pleas in sustaining said demurrer to said petition was proper, and the judgment of said court is affirmed . , i


text:
    LIABILITY OF A PHYSICIAN FOR MALPRACTICE.
    Court of Appeals for Hamilton County.
    David Montgomery v. Samuel E. Eagon.
    Decided, December 22, 1922.
    Judges Ferneding, Kunlsle and Allread, of the Second District sitting in place of the Judges of the First District.

      Malpractice — Degree of Skill and Care Required of a Physician — Child Loses an Dye by Getting Lye Into It.

    A physician in general practice is not responsible for the same degree of skill and care which would be exercised by a specialist or one equipped with -hospital service, but is responsible only for such care and skill.as an ordinary physician would exercise under like circumstances.

      George A. Hcmrna, for plaintiff.

      Bwchw alter, Headley <& Smith, for defendant.
   Allread, J.

This is an action against a physician for malpractice. There was an instructed verdict for the defendant in the court below.

The plaintiff in error, a child about five or six months of age, had spilled lye upon its face and in its left eye. About one-half hour thereafter the defendant in error was called to administer relief. After a few day’s treatment the child was taken to the hospital and the eye was removed.

This is a most unfortunate case — indeed a very sad case— but it does not follow from the accident alone and the result, that the physician is liable unless he fails to use the skill and care which an ordinary physician in the general practice is accustomed to employ under like circumstances. It would be unjust to the defendant to hold him to the standard of a specialist or one equipped with hospital service. The only specification of neg-. ligence in the petition sought to be sustained by the evidence is that the defendant, “failed to wash the lye out of the said eye.”

The undisputed evidence is that the lye would be completely slacked by the tears from the eye in five minutes and that the burning of the eye would occur only during the process of slacking. The undisputed evidence is that the physician did not arrive until twenty or thirty minutes after the accident and had only to deal with the slacked lye — the process of burning having been completed.

Doctor Ayer’s testimony as to the proper treatment relates to the time of the accident. He says, page 34, “The physician should wash the eye out immediately.” He also says as to the wash, “water is the most handy and is the thing most people use; it is what I would use at first, at the very start, until I could get something to counteract the lye.” Doctor Sykes’ opinion also refers to treatment at the time of the injury and while the lye is still burning. So that we have in fact no medical testimony as to the proper treatment after the burning of the lye has subsided and the presumption is in the absence of evidence to the contrary that the physician was not negligent.

The claim that the defendant was negligent in not having the child removed to a hospital or other more favorable location is not supported by the pleadings.

We are, therefore, of opinion that the evidence was not complete as to all the essential facts necessary to sustain a cause of action. It does not appear that any evidence tending to complete the cause of action was rejected by the court. The other alleged errors presented by plaintiff in error in his argument and brief would not be prejudicial in the present situation.

Finding no prejudicial error therefore the judgment is affirmed.

Ferneding, J., and Kunkle, J., concur.


author: Vickery, J.

text:
    RIGHT TO SHOW AGREEMENT TO HOLD OVER FROM YEAR TO YEAR.
    Court of Appeals for Hamilton County.
    John Haggerty v. Charles T. Maley.
    Decided May 9, 1919.

      Landlord and Tenant — Lease Expires Without Privilege of Renewal being Exercised — Competency of Testimony as to an Oral Agreement for a Year to Year Tenancy — Payment of Taxes by Tenant Through Mistake.

    1. “A” was in possession oí real estate as lessee under a lease for five years containing a privilege of renewal upon the lessee’s giving ninety days’ notice prior to the expiration of the term, the additional term to he at an advanced rental. No notice of an intention to exercise the privilege was given. “A’.’ held over, paying the advanced rental for two and a half years and then vacated the property. Held: “A” may show an agreement for a year to year tenancy made after the expiration of the first year.
    2. When the lease is for a term of years and the tenant stays beyond the term o'f the lease, he becomes, at the election of the landlord, a tenant from year to year where there has been no renewal provided for in the lease itself.
    2. Where, upon abandonment, the landlord sues lessee, alleging that on the date of the new term, by virtue of an agreement between parties. the lease was extended a year, and that a like agreement was entered into for a second year, and then dismisses the suit, and “A” in a second suit offers the bill of particulars filed in the prior suit which was objected to and was excluded. Held: error.
    .4. The lease, making no provision for the payment of taxes, the fact that while ignorant of his rights, the tenant reimbursed the landlord upon his demand for taxes paid on the leasehold premises, confers no legal right on landlord to recover taxes which tenant did not pay.
    Vm. F. Fox, for plaintiff in error.

      Williams & Ragland, for defendant in error.

   Vickery, J.

This cause comes into this court on error to the common pleas court of Hamilton county, in which court Charles T. Maley was plaintiff and John Haggerty was the defendant. It seems that in the year 1908, on the 3)1 day of October, plaintiff in the court below made a lease of certain premises, situated in the city of Cincinnati, to Herbert L. Freeman for a term of five years, beginning the 1st day of November, 1908 and ending the 1st day of November, 1913, together with a privilege of renewal for a further period of five years under certain conditions set forth in the lease, and that on the 17th day of September, 1909 said Herbert L. Freeman, with the consent of the plaintiff below, assigned said lease to the defendant, John Haggerty, which assignment and consent were in writing, and that said assigment went on record on the 18th day of September, 1909, and is recorded in the records of leases of' Hamilton county. Thereafter, said Haggerty entered into possession of the premises paying as a rental per year the sum of $420 in installments of $35 per month, on the first day . of each and every month, and continued in possession and paid the rent as provided in the lease up until the 1st day of November, 1913.

The provision in the lease as to the renewal was in effect that when the lessee or his assignee should desire renewal, he was to make known his election ninety days prior to the end of the lease, and that under the renewal the rental should be at the rate of $50 per month, or $600 per year.

The lease contained a provision whereby the defendant could erect a building upon said premises, and certain provisons as to how to arrive at the value of the building, and for the fixing of the compensation or the payment for the building upon the termination of the lease. -

The defendant, Haggerty, did not notify the plaintiff of his desire for an extension or renewal of the lease ninety days prior to the ending of the lease, nor at any other time, but the record shows by the proffer of certain evidence that there was some conversation or communication between them which indicated a desire of Haggerty tp vacate the premises, and asked for an adjudgment of the rights between the plaintiff and defendant as to proper compensation for the building that Hlaggerty had erected on the property, but' nothing was done by the owner of the property, the plaintiff, in this respect. On the 1st day of November, 1913, Haggerty was in possession of the property, and, the agent of the plaintiff appeared with a bill made ont for the month’s rent at the rate of $50 per month, which, it is claimed, Haggerty refused to pay, saying that he did not want to stay for five years. But, upon a statement made by the collector, that he should see the plaintiff and arrange about that he paid the $50. From that time on, he paid at the rate of $50 per month for two years and a half and then vacated the property.

This action was brought to recover the rent at the rate of $50 per month for two and a half years, of the remainder of the full term of five years, if there had been a renewal of the lease for that period of time.

The second cause of action.is a claim for the taxes that the owner of the property had paid and which he sought to recover from the defendant, Haggerty.

Issues were joined on these causes of action, and a trial to a jury was had, but before the case was submitted to a jurjy it was agreed by both parties that a jury should be waived and the case tried to the court. Whereupon, the case was submitted to the court, which rendered a judgment for the plaintiff against the defendant on both causes of action, amounting to something over $1,800. This proceeding was brought by the said Haggerty to reverse that judgment.

The petition in error is predicted upon several alleged errors. Perhaps it will not be necessary to consider all of these.

One of the first errors claimed is that certain testimony was sought to be introduced by the defendant below, which tended to show that when the collector called on the 1st day of November, 1913, for the rent and he first declined to pay the rent saying that he did not want the property for a period of five years, but, upon being told by the agent that he would have to see the landlord, the plaintiff, about that, he thereupon paid the rent and then went to see the landlord. The admission of this evidence was refused by the court upon objection, to which an exception was taken.

We think this was clearly erroneous. The court apparently based his ruling upon the fact that inasmuch, as the tenant was holding over beyond his term and accordingly paid the rental provided for in the lease, if it had been renewed;, amounted to an irrebuttable presumption that the lease had been renewed.

We recognize from the authorities that where a lease provides'for a renewal under a different rental than that of the original term, and the tenant stays in and voluntarily pays the increased or different rental, without any explanation, or anything being said, it operates as a renewal for the new term. But, here, the profferred evidence tended to show that this was not the situation; that the rent was paid under a different and distinct understanding, and surely under such circumstances it would be error not to permit testimony, which would explain the payment.

We think the law is well settled in Ohio that ordinarily when a lease is for a term of years and the tenant stays beyond the term of the lease, he becomes a tenant from year to year, that is, where there has been no renewal provided for in the lease itself. This was decided in Ohio, in 57 O. S., page 161, where many of the authorities are collected and cited as a basis for the judgment in that case. We know that this is a different rule from that recognized in many other states, where the rule is that the staying beyond the term extends the leáse for a further term equal to .that provided for in the lease. But we do not understand that to be the rule in Ohio. In fact the •rule is the other way, and we, therefore, think the court erred in keeping this evidence out of the record. Of bourse, we do not know what governed the court in the final decision when it was submitted to him, but we do know that this evidence legally was not before him, and the party had the right to have that evidence properly before the court. Inasmuch as this evidence was proper, and the court ruled it out, we think error was committed.

We think it was error likewise for the court to refuse the ■ admission of the evidence contained in the bill of particulars, that was filed by the plaintiff below against the defendant below, in the municipal court of Cincinnati, wherein it was set up that on November 1st, 1913, by virtue of an agreement between the parties, the lease was extended for a year, and thence on the 1st day of November of the second year a like agreement was entered into between the parties. This tended to corroborate the theory of the plaintiff in error that the lease had not been renewed, but a new contract from year to year had been made, and it served as admission against interest, which, we understand, always to be admissible. Therefore, the court erred in ruling this out.

Coming now to the second cause of action on the question of taxes. We find nothing in the lease which compelled the tenant to pay the taxes, and there being no agreement for the tenant to pay the taxes, we do not understand upon what basis the right to recover from him could be predicted. The mere fact that the tenant may have paid some of the taxes without being aware of his rights, would not confer a legal right upon the plaintiff to recover the taxes which the tenant did not pay. We, therefore, think' the court erred in rendering judgment upon the second cause of action, and the judgment was erroneous in this respect.

For these errors, the case is reversed and remanded to the court of common pleas for a further proceeding according to law.

Dunlap, P. J. and Washburn, J., concur.


text:
    DETERMINATION OF INTEREST PASSING BY WILL.
    Court of Appeals of Hamilton County.
    Hudson v. Kellerman et al.

    Decided January 12, 1920.

      Wills — Vested Remainder — Divested by Death — Life Estate to Widow —Fee to Children — Remainder to Grandchildren — Partition.
    1. Where testator devises realty to his wife during her lifetime and upon her death to his children, share and share alike, and the will provides that “If any of my children shall have died leaving children surviving them, then the children of said deceased child shall take the share that the parent would be entitled to if living,” the phrase “shall have died” relates to the death of the testator’s wife, since the testator in another item of his will, bequeathing personalty, shows his intention by providing “If any of my children shall have died before my decease.”
    2. Such will creates in each of testator’s children a vested estate in the realty, subject to be divested upon the death of his child prior to that of his widow; and a'conveyance by one of testator’s children ol his interest in the testate property, transfers a defeasible right or title to the property that is divested when such child dies before • the termination of the life estate.
    .Appeal from Court of Appeals for Hamilton county.

      Walter M. Locke, for plaintiff.

      Williams & Ragland, for defendants.

      Motion to certify record of the Court of Appeals overruled by the Supreme Court, April 20, 1920.

   By the Court.

This cause was heard on appeal and was submitted on an agreed statement of facts.

John Kellermann died testate in March 1903, and his will was probated the next month. He left surviving him a widow, Philomena Kellermann, and nine children. On December 24, 1908, one of his sons, Joseph Kellerman, executed and delivered a general warranty deed purporting to convey to the plaintiff, John Hudson, an undivided one-ninth interest in certain real estate which had been owned by his father, John Kellermann. Joseph Kellerman died intestate June 5, 1913, leaving surviving him a widow and four children, three of whom are minors, and all of whom are now living. Philomena Kellermann, widow of John Kellermann, and mother of Joseph Kellermann, died September 12, 1918.

The most important items of the will are as follows: .

Item 2. I give, devise and bequeath to my beloved wife, Philomena Kellermann, all of my real estate wheresoever situated, to have and to hold the same, during the period of her natural life.

Item 3. At the death of my said wife, Philomena Kellermann, I give, devise and bequeath all my real estate wheresoever found to my children share and share alike. If any of my childern shall have died leaving children surviving them, then the children of said deceased child shall take the share that the parent would be entitled to if living.

Item 5. The proceeds of the $2,000.00 life insurance policy which I hold from The People’s Mutual Benefit Society of Elk-hart, Indiana, shall be divided as follows: One-third to my wife, Philomena Kellermann, and the remaining two-thirds among my children then living share and share alike, but if any of my children shall have died before my decease leaving children surviving them, then the share that such deceased child would receive shall go to and be divided among the children of said deceased child, share and share alike.

The plaintiff brought an action in partition claiming to own an undivided one-ninth of one parcel of real estate. The children of Joseph Kellermann filed an answer and cross-petition, denying that Hudson had any interest in the real estate, and claiming ownership of the one-ninth under the will of their grandfather. They prayed that the plaintiff’s petition should be dismissed, and asked for partition of the property. •

Both parties are claiming under the will of John Kellermann, and the question that is decisive of this suit is: What interest did Joseph Kellermann have under the will of his father?

The plaintiff contends that upon the death of John Kellermann, his son was immediately vested of an indefeasible remainder in one-ninth of the real estate. The children of Joseph ' Kellermann claim that the remainder which their father took was defeasible and subject to being divested by the death of Joseph. Kellermann prior to the death of his mother.. The language of the will is: “If any of my children shall have died leaving. children.” Does the phrase “shall have died” mean “shall have died prior to the death of the testator,” or “shall have died prior to the death of the widow?” The intention of the testator, if it can be ascertained, must govern. An examination of .Item 5 of the will shows that when the testator said ‘! if any of my children shall have died before my decease,” he knew and understood how to make clear his intention that the contingeney of death .referred to related to his own death. He used a different form of statement in Item 3.

If the contingeney related to the death of. the testator, the gift to his children under Item 3 would have been contingent and not vested. The court is of opinion that the phrase “if any of my children shall have died” means “shall have died prior to the death of Philomena Kellermann.” This creates in each of his children an estate vested, but subject to being divested upon the happening of the contingency therein provided. McArthur v. Scott, 113 U. S., 340; Stark, Trustee, v. Marsh, 29. O. C. A., 417; LaRoche v. LaRoche, 10 Ohio App., 242, and McCarthy v. Hansel, 4 Ohio App., 425.

The estate which Joseph Kellermann transferred to the plaintiff was a defeasible remainder in' fee. The death of Joseph Kellermann prior to the death of his mother divested the estate and caused it to divest in his four children.

The plaintiff, therefore, has no right in the property.. His petition will be dismissed and an order will be entered on the cross-petition of Lawrence Kellermann and others for a partition of the property.

Shohl, P. J., Hamilton and Cushing, JJ., concur.


author: By the ■ Court.

text:
    MISDESCRIPTION OF A BEQUEST.
    Court of Appeals for Hamilton County.
    Walsh v. Walsh et al.
    Decided December 20, 1920.

      Wills — Bequests of Bonds Which Were Wrongly Named — Extrinsic Evidence Admissible to Show Intent of the Testator.

    A misdescription in a will of property wbicb is tbe subject of a bequest gives rise to a latent ambiguity where the misdescription is not apparent until facts are shown concerning the property which testator intended to bequeath, and extrinsic evidence is admissible to apply the will to its proper subject-matter.

      John T. Thorndyke, for plaintiff in error.

      Powell & Smiley, for defendants in error.
   By the ■ Court.

This is a proceeding in error to review the judgment of the court of common pleas in an action for the construction of. the will of' the late Bridget Walsh.

The will in question provided for a bequest to each of the two sisters of the testatrix of “the sum of $1,000 of Louisville & Nashville Railroad bonds, belonging to my estate.” It appears that Bridget Walsh did not own any Louisville & Nashville Railroad bonds. She did, however, own two bonds of $1,-00Q each of the Newport. & Covington Bridge Company, which owned and leased to the Louisville & Nashville Railroad the bridge over which the trains of that railroad were operated. The decedent was an ignorant woman. She signed her will with a mark. She often spoke of the bonds in question as “L. & N. bonds” and “bridge bonds.” The ease falls within the rule that extrinsic evidence may be given to apply the will to its proper subject-matter. The facts concerning the estate of the testatrix show a latent ambiguity, one that does not appear until the facts concerning the property which she intends to give her beneficiaries are shown. Such an ambiguity arises when the will contains a misdescription of the object or subject, as when there is no such person or thing in existence; or, if in existence, the person is not the one intended or the thing does not belong to the testator. Patch v. White, 117 U. S., 210. See 3 Jones Commentaries on Evidence, Section 476.

The facts in the case at bar bear a close resemblance to those in Flood v. Flood, 1 Law Reports, Ireland (1902), 538.

The judgment of the court of common pleas finding that the intention of the testatrix was to give the Newport and Covington Bridge Company bonds to her two sisters was correct and will be affirmed.

Si-iohl, P. J., Hamilton and Cushing, JJ., concur.