text:
    INTEREST OF A CORPORATION IN A POLICY ASSIGNED TO IT BY ONE OF ITS FORMER OFFICERS.
    Circuit Court of Coshocton County.
    The Coshocton Glass Company v. The Northwestern Mutual Life Insurance Company and Mary M. Gainor.
    Decided, May Term, 1910.

      Life Insurance — Policy on the Life of a Corporate Officer Assigned to the Corporation — Insurable Interest of the Corporation — Assignment May Be Predicated Upon Intention.

    G having declined to accept a policy issued upon his life with his wife named as beneficiary, it was thereafter agreed that on account of the interest which the corporation of which G was an officer had in a continuance of his life, that the policy in question should be delivered to the corporation, which should pay the premiums coming due thereunder and should become the payee thereof.

      Held: That the corporation had an insurable interest in the life of G, and that the intention of the insurance company to deliver the policy to the corporation and of the corporation to accept it operated under the circumstances as an assignment of the policy to the corporation without the formality of a written contract of assignment.
    This case was tried in the court of common pleas upon the issues made in -the pleadings and evidence, resulting in a finding and judgment in favor of the plaintiff, the Coshocton Glass Company. Appeal was taken to this court, and was submitted to the court upon the pleadings and evidence. By the agreement of the parties, the testimony, evidence and exhibits that were introduced in the court below by the plaintiff and defendants respectively were introduced and used by the parties respectively as evidence, being all the evidence that was offered or submitted to the court on the trial of this cause in the circuit court.

      Thereupon, the court upon request of the parties separately-stated its finding of facts and conclusions of law as follows, to-wit:
    Í. That the Coshocton Glass Company is a corporation under the laws of Ohio, having been incorporated in March, 1904, for the purpose of manufacturing, selling and dealing in glass bottles, glass jars and all other forms and binds of glassware, and of doing all other acts and things incidental to or connected with said business.
    2. That said the Coshocton Glass Company was organized by said decedent, Thomas J. Gainor, E. K. Sober and E. C. Yan Horn; that said three men were the principal stockholders of said company, owning and holding all of the common stock from the time of its organization until about January 12, 1906, and at the time of the application for and issuance of the policy sued on in the petition, said three men owning all of the common stock, and were executive officers of the company — that is, E. K. Sober Ayas the president; Thomas J. Gainor the vice-president and general manager, and E. C. Yan Horn the secretary and treasurer; and further, that during all of said time from the organization of the company to January 12, 1906, the said Thomas J.- Gainor was the vice-president and general manager of said company.
    3. That at the time of the organization of said company and at the time of the application for an issuance of the policy set forth in the petition, the said Thos. J. Gainor Avas a man of wide experience in the practical management and conduct of the glass manufacturing and bottle blowing business; that he was devoting his entire time to promoting said -company and building up its business; that his life was of great importance and financial value to said company, and that he was the only man in the executive force of said company who had experience in business of the nature for which this company was organized; and that said Gainor continued in such position and relation to said company until about September 1/1906.
    4. That prior to the 26th day of August, 1904, said Thomas J. Gainor, E. K. Sober and E. G. Yan Horn entered into an arrangement wherein each Avas to take out insurance upon his own life in the sum of $10,000 for the benefit of the Coshocton Glass Company; and that in pursuance of said arrangement, said three men, to-wit, Thos. J. Gainor, E. K. Sober and E. G. Van Horn, each did procure and take out insurance on his own life in the sum of $10,000 for the benefit of said the Coshocton Glass Company.
    5. That tire policy sued on in this action,- being No. 592,236, was one of two policies, each of the sum of $5,000 taken in pursuance of that arrangement, in the Northwestern Mutual Life Insurance Company; that on or about the 26th day. of August, 1904, said Gainor applied to said insurance company for a $5,000 policy, naming his wife, Mary M. Gainor, as beneficiary thereof; that at the request of the agent of the insurance company soliciting said insurance, the said insurance company issued two policies on that application, each for the sum of $5,000; that said agent sought to deliver both of said policies to said Gainor in an effort to have said Gainor take out $10,000 of insurance for the benefit of his said wife; that said Gainor accepted only one of said policies and refused to accept or pay for the other — the one refused being the same policy sued on in this action; that later on, and about the 13th of September, 1904, the said Gainor in pursuance of the arrangements entered into by said three men, to-wit, Thomas J. Gainor, E. K. Sober and E. G. Van Horn, made application to the insurance company for a $5,000 policy with the Coshocton Glass Company as beneficiary, and at the same time directed the agent to deliver both of said policies, to-wit, that numbered 592,236 and 595,029 to the plaintiff as a part of said arrangement with said Thomas J. Gainor and said irisuraance company for-taking out $10,000 of insurance on his own life for the benefit of the Coshocton Glass Company; that said policy No. 592,236 was delivered to and accepted by said plaintiff with the understanding and arrangement that the beneficiary named therein was to be changed, and the plaintiff to be named as and to'become the real beneficiary; 'and that said -policy was never delivered either to the assured, Gainor, or to the beneficiary named therein, -to-wit, Mary M. Gainor, his wdfe, but was delivered to, the Coshocton Glass Company as a part of the arrangement above set forth.

      6. That said policy and another policy for like amount, the latter being No. 595,029, and being the same policy sued on in the case of The Coshocton Glass Company v. The Northwestern Mutual Life Insurance Co. and William T. Giffen and Jasper M. Kechley, as executors of the estate of Thomas J. Gainor, decreased, being case No. 4,256 in the Court of Common Pleas of Coshocton County, Ohio, were together delivered to the Coshocton Glass Company by the Northwestern Mutual Life Insurance Company on or about September 13,1904, and that said glass company paid the first premium of $233.41 on each of said policies and continued to pay an annual premium thereon of like amount, on the 13th day of September for the years 1905, 1906 and 1907; that neither said Thomas J. Gainor nor said defendant, Mary M. Gainor paid any part of said premium, but all premiums on said policy falling due in the lifetime of said Thomas J. Gainor were paid by this plaintiff:
    7. That said Gainor represented to- creditors of said glass company and to banks, from which he was seeking to procure and did procure loans of money for said the Coshocton Glass Company, and.to persons whom he sought to induce and did induce to become purchasers of stock in said glass company, that said two policies of insurance on his life belonged to and were assets of said glass company.
    8. That on or about January 12,1906, said Gainor, Sober and Yan Horn sold and transferred to Hyppolyt Liewer and Charles A. Liewer all of the stock and all of the interest they had in and to said the Coshocton Glass Company, and from that time ceased to have any pecuniary interest therein, but said Gainor continued in the employ of said glass company as vice-president and superintendent of its business in the manufacturing of glass bottles, until the first day of September, 1906, at which time on account of ill health he resigned his position, which resignation was accepted by said company, and thereafter said Gainor ceased to have any connection with said glass company as servant, employe or otherwise; that at the time said Gainor sold his said stock in the Coshocton Glass Company to said Hyppolyt Liewer and Charles A. Liewer he represented to said purchasers that said, two policies of insurance on his life belonged to and were assets of the Coshocton Glass Company.
    9. That after said Gainor, Sober and Van Horn had transferred all of their interest in said glass company to said Liewers, said” glass company permitted the policies upon the lives of Sober and Van Horn to lapse, but the two policies hereinbefore mentioned on the life of said Gainor, who by September, 1906, had become in ill health, were kept in full force by the payment of the premiums thereon by said the Coshocton Glass Company.
    10. That on delivery of said policies, being Nos. 592,236 and 595,029, said two policies together with the policies on the lives of Sober and Van Horn were placed in the safe of said glass company, and there remained in the possession of said glass company until surrendered to said insurance company when the proceeds thereof were paid'into court. Said glass company understood that said policy No. 592,236 had been assigned to it as beneficiary at the time same was delivered, to-wit, on September 13, 1904; that on or about the 20th day of January, 1906, said policy of insurance was assigned to Hyppolyt Liewer and Charles A. Liewer as collateral security for indebtedness owing to said Hyppolyt Liewer and Charles A. Liewer by said glass company — • said assignment being executed by both Thomas J. Gainor and Mary M. Gainor; that thereafter and about November, 1906, said policies were taken to the attorney of said glass company for the purpose of securing a release of said policy from said Liewers to said glass company, at which time the discovery was made by the attorney of said glass company that said policy had never been assigned and transferred to the glass company in accordance with the arrangement and understanding had on or about the 13th day of September, 1906, when said policy was delivered to and accepted by said glass company; that thereupon for the purpose of carrying out the arrangements aforesaid, said assignment of November 16, 1906, for the considerations therein mentioned (a copy of which is attached to the petition and marked “Exhibit 1” and here referred to and made a part hereof) was executed and delivered to said glass company by said Thomas J. Gainor and Mary M. Gainor and the said Hyppolyt Liewer and Charles A. Liewer; that no money or other consideration of value other 'than as set forth in said assignment of November 16, 1906, was paid to Mrs. Gainor at the time of executing said assignment.
    11. That at the time said Mary M. Gainor executed the assignment of November 16, 1906, there were no false or fraudulent representations made to said defendant Mary M. Gainor by either ITyppolyt Liewer, Charles A. Liewer or the plaintiff, or by any one representing them or either of them, and that in executing said assignment said defendant Mary M. Gainor did not rely upon false or fraudulent representations made either by said Liewers or said plaintiff, or any one representing them, or either of them.
    12. That said Thomas J. Gainor died testate on the 11th day of April, 1908, leaving the defendant, Mary M. Gainor, his widow, and his last will and testament which has been duly admitted to probate and record in the Probate Court of Licking County, Ohio, and that Jasper M. Keckley and William T. Giffen have been duly appointed and qualified by said probate court as executors of said last will and testament.
    13. That on or about the 18th day of April, 1908, said plaintiff gave to the defendant, the Northwestern Mutual Life Insur anee Company, due notice and proof of the death of said Thomas J.. Gainor in conformity with the requirements of said policy and demanded payment thereof; that on or about the-day of April, 1908, said defendant, Mary M. Gainor, gave like notice to said insurance company and demanded payment of said policy, and. thereafter and on or about the 23d day of November, 1908, said defendant, the insurance company, acknowledged its liability on said policy and paid the proceeds of said policy into the Court of Common Pleas of Coshocton County, Ohio, where the same is now being held awaiting final disposition by the court.
    14. That no relation of debtor and creditor existed between said decedent Gainor and said the Coshocton Glass Company, and said policy was not issued as collateral security for a debt.
    Conclusions op Law.
    1st. That said contract of insurance was taken out by said decedent, Thomas J. Gainor, on his own life in favor of said the Coshocton Glass Company in good faith, and that said contract was in no sense a speculative or wagering one; that no gambling element enters into said contract of insurance, and that the payment of the premiums thereon was not a speculative investment.
    2d. That under the facts disclosed by the evidence and found as hereinbefore set forth, said Thomas J. Gainor had full right to make application for and to take out said policy of life insurance on his own life for the benefit of said the Coshocton -Glass Company, and it is immaterial whether or not the glass company had an insurable interest in the life of said Gainor at the time of issuing of said policies, or that said insurable interest continued until the time -of his death; and that the interest of said glass company in and to said policy did not lapse and said policy did not become void at the time said Thomas J. Gainor left the employ of said glass company.
    3d. That under the facts disclosed by the evidence and found as hereinbefore set forth, said defendant, Mary M. Gainor, never acquired or had any interest in said policy as beneficiary or otherwise; that the right as beneficiary under this policy passed to and vested in this plaintiff, the Coshocton Gláss Company, upon the delivery of said policy to said glass company by said insurance company on September 13, 1904, that having been -done under the arrangement of said decedent Gainor, Sober and Van Horn and the assent thereto and acceptance of said policy by said glass company.
    4th. That under the facts as disclosed by the evidence and found as hereinbefore set forth, neither said decedent, his estate, nor said defendant, Mary M. Gain-or, had any interest, legal or equitable, in said policy at the time of the death of said Thomas J. Gainor; and further, at the time of said death of said Thomas J. Gainor, said pl-aintiff company was and still is the absolute owner of said policy and the proceeds thereof.
    5th. That the full amount of the money due on said policy and which has heretofore been paid into Court of Common Pleas of Coshocton County, Ohio, by said the Northwestern Mutual Life Insurance Company, and is now held subject to the order of this court, except thereof so much as is necessary to pay the costs of this action, belongs to said plaintiff, the Coshocton Glass Company, and it is entitled to receive the full amount of said policy, except the amount of the costs herein and that said defendant, Mary M. Gainor, is entitled to receive no part of said amount.

      Pomerene & Pomerene, for plaintiff, in addition to the authorities cited in the previous case, cited the following:
    Crittenden v. Phoenix Mut. L. I. Co., 41 Mich., 442 (2d N. W., 657); Travelers Ins. Co. v. Grant, 54 N. J. Eq., 208 (33 Atl., 1060) ; Lord v. N. Y. Life Ins. Co., 93 A. S. R., 827.
    Policies of life insurance may be assigned by parol: Baron v. Williams, 79 A. S. R., 840; State v. Tomlinson, 59 A. S. R., 335 (16 Ind. Ap., 616) ; Haini v. Germania Life Ins. Co., 80 A. S. R., 819 (197 Pa. St., 276).
    An insurable interest is not necessary in the assignee of a valid life policy: California, 25 A. S. R., 14; Colorado, 36 Pac., 310; Georgia, 109 Ga., 1; 46 L. R. A., 424; Illinois, 59 A. S. R., 335; Maryland, 20 Atl., 137; 43 Atl., 795; Massachusetts, 138 Mass., 31; Mississippi, 64 Miss., 614; 1 So. R., 761; New York, 85 N. Y., 593; 20 N. Y, 32; 27 N. Y, 282; 134 N. Y., 423; Rhode Island, 11 R. I., 439; 20 R. I., 570; 40 Atl., 497; Vermont, 51 Vt., 613; Wisconsin, 95 Wis., 583; 70 N. W., 819; 67 Wis., 75; 58 Am. R., 848; 86 Wis., 1; 21 L. R. A., 746; South Carolina, 51 S. C., 103; 28 S. E., 200; Eckel v. Renner, 41 O. S., 232; St. John v. Am. Mut. Life Ins. Co., 13 N. Y., 31 (64 Am. Dec., 529).
    If a policy of insurance on the life of another is issued to a person having an insurable interest in such life, an assignment of such policy to a person having no insurable interest does not render the assignment void: Mutual Life Ins. Co. of New York v. Allen et al, 138 Mass., 24 (October 24, 1884).
    Assignment of policy and principles controlling: Steinbeck v. Diepenbrock, 37 N. Y. Sup., 279; St. John v. Insurance Co., 13 N. Y., 13-39; Valton v. Assurance Co., 20 N. Y., 32; Olmstead v. Keyes, 85 N. Y., 593; Hogle v. Guardian Life Ins. Co., 29 N. Y. Sup. Ct., 567; Palmer v. Merrill, 6 Cushing (Mass.), 282; Mut. Life Ins. Co. v. Allen, 138 Mass., 24; Tateum v. Ross, 150 Mass., 440; Dixon v. Nat’l Life Ins. Co., 168 Mass., 48; Brown v. Greenfield Life Assn., 172 Mass., 498; King v. Cram, 185 Mass., 103; Rittler v. Smith, 70 Md., 261 (16 A., 890) ; Souder v. Home Friendly Soc., 72 Md., 511 (20 Atl., 137); Robinson v. Hurst, 76

      Md., 67 (44 A. S. R., 266); Clogg v. McDaniel, 89 Md., 416 (43 Atl., 795) ; Bursinger y. Bank, 67 Wis., 75 (30 N. W., 290); Foster v. Gile, 50 Wis., 603 (7 N. W., 555; 8 N. W., 217); Amick v. Butler, 111 Ind., 578 (12 N. E., 518) ; Milner v. Bowman, 119 Ind., 448 (21 N. E., 1094; 5 L. R. A., 95); Fitzgerald v. Hartford, L. & A. Co., 56 Conn., 116 (7 A. S. R., 288); Bowen v. Natl. Life Assn., 63 Conn., 460 (27 Atl., 1060); Martin v. Stubbings, 126 Ill., 37 (9 A. S. R., 620); F. & T. Bank v. Johnson, 118 Iowa, 282 (91 N. W., 1074); Chamberlain v. Butler, 61 Neb., 730 (87 A. S. R., 478) ; Union Fraternal League v. Walton, 109 Ga., 1 (77 A. S. R., 350) ; Mechanics Natl. Bank v. Comins, 72 N. H., 12 (55 Atl., 191); Harrison’s Admr. v. Northwestern Mut. Life Ins. Co., 78 Vt., 473 (63 Atl., 321) ; Clark, Admr., v. Allen, 11 R. I., 439 [1878], (23 Am. Rep., 496); Bowen v. Natural Life 63 Conn., 460 (27 Atl., 1059) ; Dixon v. Nat. Life Ins. Co., 168 Mass., 48 (46 N. E., 430) ; Murphy v. Reed, 64 Miss., 614 (60 Am. Rep., 68); Rylander v. Allen (Georgia), 53 S. E., 1032; N. Y. Mut. Life Ins. Co. v. Armstrong, 117 U. S., 591; Warnick v. Davis, 104 U. S., 775; Gordon v. Ware Natl. Bank, 132 Fed. R., 444; McNevins v. Prudential Ins. Co., 108 N, Y. Sup., 745 (Supreme Court, 1908).

      Flory <& Flory, for defendant.
    Voorhbes, J.; Taggart, J., and Donahue, J., concur.
    Appeal from Common Pleas Court of Coshocton County.
   This cause and the one preceding, heard on error at this term, in many respects are similar as to the facts, yet the issues as made up by the pleadings are quite different. Mary M. Gainor in her amended .answer and cross-petition alleges that the plaintiff, the glass company, had no insurable interest in the life of Mr. Gainor, her husband, at the time the insurance policy sued on in this case was issued; but that the alleged assignment of the policy on November 16,1906, to plaintiff company was procured through the false statements and representations made to her by Hyppolyt and Charles A. Liewer and the plaintiff, said the Coshocton Glass Company. The plaintiff by reply denies these charges of fraud and false representations.

There is a failure of proof of these averments of fraud or false representations contained in the amended answer and cross-petition of Mary M. Gainor. By her testimony it is conclusively shown that no representations of any kind were made to her by either of the Liewers or any one acting for them or for the plaintiff company.

The questions of law in this case are ’substantially the same as those in the error case of The Coshocton Glass Co. v. The Northwestern Mutual Life Insurance Co. et al, and it will not be necessary to repeat what was said by the court 'in its decision on the questions of law that are common to these two cases. Proceeding to consider the questions not raised or involved in the preceding case, and which are pertinent to the issues of law and fact in this case, the additional questions presented are:

1. What interest, if any, did the defendant, Mary M. Gainor, acquire or have in policy No. 592,236, sued on in this case?

2. Did the defendant, Mary M. Gainor, assign her interest in said policy to the plaintiff company ? If so, what is the effect of the assignment?

3. Is an insurable interest in the life of the insured in favor of the assignee of a valid life policy necessary to enable the assignee to recover the amount of the policy upon the death of the insured? "

The evidence shows that policy No. 592,236 was issued by the insurance company at the request of the agent, McConnell, at a time when Mr. Gainor was getting insurance for the benefit of wife, Mary M. Gainor, and shortly before he took out policy No. 595,029 on his own life for the benefit of the plaintiff, the Coshocton Glass Company. McConnell testifies he asked his company to send him two $5,000 policies instead of one, believing that he could get Mr. Gainor to take out $10,000 of insurance for the benefit of his wife.

When the two policies were received by McConnell, the agent, he offered them to Mr. Gainor, who declined to accept the second policy, and the policy was returned to the home office of the company and was never delivered to or accepted by Mr. Gainor.’ At the time Mr. Gainor was getting the insurance for the benefit of his wife, he (Gainor), Sober and Van Horn were considering a proposition to take out insurance on their lives respectively, each in the sum of $10,000 for the benefit off the plaintiff company. Mr. Gainor conducted the negotiations for the contemplated policies and in connection therewith asked the agent, McConnell, if they conld not use the said policy which had not been delivered to him (Gainor), being said policy No. 592,236, which had Mary M. Gainor’s name therein as beneficiary, by assigning it to the glass company, plaintiff herein. Mr. McConnell advised him that could be done, and thereupon, on Gainor’s application, two policies, namely, No. 592,236, the one sued on in this action, and No. 595,029, the policy mentioned in the preceding error ease in this court, were delivered to the plaintiff company, with the understanding that policy No. 592,236 was to be assigned to the said plaintiff company. These facts appear in the testimony of Mr. McConnell and are not disputed.

Upon the delivery of these policies to the plaintiff company, it paid the initial or first premiums on both. This is a circumstance tending to corroborate the testimony of Mr. McConnell in his statement that policy No. 592,236 was to be issued in favor of the plaintiff company. These two policies- together with the policies taken on the lives of Sober and Van Horn were placed in the safe of the plaintiff company and there remained until Mr. Gainor sold his interest in the company, when they were taken out for the purpose of assigning and transferring them to the Liewer Brothers as collateral security for a loan they had made to the plaintiff company; an assignment was made, Mr. Gainor and his wife, Mary M. Gainor, both joining in the assignment. It was then, about November, 1906, discovered that this policy, 'No. 592,236, had not been transferred to the company, but contained the .name of Mary M. Gainor as beneficiary. Thereupon, on the 16th day of November, 1906, for a good and valuable consideration said Thomas J. Gainor and Mary M. Gainor executed and delivered to the Coshocton Glass Company the instrument in writing which was offered and received in evidence in this case; being plaintiff’s “Exhibit No. 1” as shown in the transcript of the evidence given in the trial of this case.

As we have found from the testimony, there was no delivery of this, policy No. 592,236, to Thomas J. Gainor, or to the defendant, Mary M. Gainor, and neither he nor she had any interest therein at the time of the death of Thomas J. Gainor. At the time of his death, both the legal and equitable title to said policy was in the plaintiff, the Coshocton Glass Company.

We find from the testimony it was the intention of the insurance company to deliver this policy to the plaintiff company, and of the plaintiff company to accept the same. Therefore, we . hold that a delivery of the policy under such circumstances operates as an assignment without the formality of a written contract. Crittenden v. Phoenix Mutual Life Insurance Co., 41 Mich., 442; Travelers Ins. Co. v. Grant, 54 N. J. Eq., 208; Lord v. N. Y. Life Ins. Co., 93 Am. St. R., 827.

The contention of the defendant, Mary M. Gainor, that the plaintiff company had no insurable interest in the life of the assured, Thomas J. Gainor, when the policy was issued, and therefore this policy is void, is not a correct statement of the law; and the decided weight of the modern adjudicated cases in this country show to the contrary. Many of the cases which hold that an assignment without interest is void, will upon examination be found to rest on the fact that the transaction in question was merely colorable and an attempt to obtain speculative insurance (Eckel v. Renner, 41 O. S., 232). We find policy No. 592, 236, sued on in this case, was a policy issued in good faith in the lifetime of Thomas J. Gainor; he and said Mary M. Gainor for a good and valuable consideration, on the 16th day of November, 1906, sold, assigned and transferred absolutely said policy to the said the Coshocton Glass Company, and at the frimp of the death of said Thomas J. Gainor neither he nor said Mary M. Gainor had any interest, legal or equitable in said policy. And further, at the time of said Thomas J. Gainor "s death, said plaintiff company was, and still is, the absolute owner of said policy and the proceeds thereof, and entitled to recover the same.

It is therefore ordered, adjudged and decreed that said plaintiff recover the amount of said policy and interest as prayed for in said petition; and it is further ordered that the costs of this action be paid out of said proceeds arising on said policy; and the alleged claims of said Mary M. Gainor to said policy or its proceeds, are adjudged to be invalid, null and void.

Motion for a new trial is overruled; exceptions; twenty days for finding of fact and statutory time for bill of exceptions.


source: Caselaw Access Project

license: Public Domain

text:
    JURISDICTION OF COUNTY COMMISSIONERS OVER NATIONAL ROADS.
    Circuit Court of Guernsey County.
    Samuel Black v. Commissioners of Guernsey County.
    Decided, April Term, 1909.

      Roads — Negligence—Action Lies Against County Commissioners — For Injuries Resulting from Failure to Keep National Toll Road in Repair.

    An action will lie against a board of county commissioners, under the provisions of Section 845, Revised Statutes (2408, General Code), for damages for personal injuries resulting from negligence in the repair of a national road upon which they exact tolls and exercise control by virtue of Section 4931, Revised Statutes (7524, General Code), et seq.

    Error to Guernsey Common Pleas Court.

      J. S. Black, for plaintiff in error cited and commented upon the following authorities:
    Yunker vs Sandusky County, 11 C.C.(N.S.), 527; Morgan County v. Transfer & Storage Co., 75 Ohio St., 244; Ebert v. Pickaway County, 75 Ohio. St., 474; Salt Creek Val. Tpk. Co. v. Parks, 50 Ohio St., 568; State v. Wood County, 17 Ohio, 184; 11 Enc. Law (2d. Ed.), 353, 354, 355, 356; Faucher v. Tutewiller, 76 Ill., 194; Palatka & I. Ry. v. State, 23 Fla., 546; 1 Story, Construction (3d Ed.), Section 454; Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) 1, 16 Oyc, 561; Hardin County v. Coffman, 60 Ohio St., 527; Hardin County v. Coffman, 18 C. C., 254; Alexander v. Brady, 61 Ohio St., 174; Low v. Leichty, 1 C.C.(N. S.), 431; Mahoning County v. Railway, 45 Ohio St., 401; Durnell v. Traction Co. 7 N.P.(N.S.), 136.

      G. 8. Sheppard, contra.
    Metcalfe, J.; Laubie, J., and Cook, J., concur.
   This action was brought to recover damages for injuries claimed to have been received in consequence of the alleged negligence of the defendant, the board of county commissioners. An amended petition was filed to which a demurrer was sustained, and the plaintiff not desiring to amend permitted judgment to be taken against him on the pleadings, and the only question here is whether the facts averred in the amended petition state a cause of action against the defendant under favor of Section 845, Revised Statutes (General Code, 2408).

The facts averred and admitted to be true are, in substance, that the national road is a public highway under the care and control of the defendant, the board of county commissioners of Guernsey county, and upon which said board collects toll; that a culvert crossing said road had been permitted by the defendant board to become so out of repair as to cause a hole or depression five or six feet deep and four or five feet wide on one side of the road; that the plaintiff was driving along said road with a single horse and buggy; that the horse became frightened at an automobile and was partially unmanageable, and in endeavoring to get control of the horse the wheels of his buggy went into the hole in the culvert and the buggy was overturned, causing the injuries of which the plaintiff complains.

By the provisions of Section 845, Rev. Stat. (Gen. Code, 2408), it is provided that, “any such board of county commissioners shall be liable in its official capacity for any damages received by reason of its negligence or carelessness in keeping any such road or bridge in repair. ’ ’ The roads and bridges referred to in this section are such as the board of commissioners is by law required to have in its charge and to keep in repair.

Section 4931, Rev. Stat. (Gen. Code, 7524, 7525), provides that the commissioners of counties through which any part of the national road passes shall take under their care and control in behalf of their respective counties so much of said road as lies within the limits of their counties respectively, and to beep them in such repair as .is contemplated by the acts of Congress ceding to the state the jurisdiction and control of such part of the national road as lies within the limits of the state; and limits the amount of tax which the county commissioners may raise for the repair or preservation of the road to the amount provided in the general statutes for the repair and preservation of county and state roads. The same section also gives to the corinty commissioners the power to order the trustees of any township through which the road passes to take under their care the portion' thereof lying in their respective townships.

Under Section 4932, Rev. Stat. (Gen. Code, 7527-7528), the commissioners are authorized to erect toll gates- within their respective counties, to collect tolls, appoint collectors and remove them at pleasure, and fix the compensation for their services. They are also required to pay the tolls collected into the treasury of their respective counties each month “and the commissioners shall apply such money to the keeping in repair of said road within their respective counties. ’ ’ By the provisions of these sections it will be seen that the county commissioners are given by law complete jurisdiction over the national r-oad in their several counties, and are required by law to keep said road in repair, and the national road is made a part of the highway system of the state, governed by the laws of the state, as completely as any state or county road.

We are unable to see any distinction in principle or in fact between a highway constructed by the national government and ceded by it to the state and placed completely under the control of the state, and any other highway under the control of the state. It is not the character of the road that renders the county commissioners liable for its negligence, but the fact that the board has jurisdiction over it, and that the duty is imposed upon it by law to keep it in repair. We do not think the ease of Younker v. Sandusky County, 11 C.C.(N.S.), 527, and the other cases cited bear out the contention of the defendant that the provisions of Section 845, Rev. Stat. (Gen. Code, 2408), do not apply in this case. We agree with all that is said in the cases cited that the provision of Section 845, Rev. Stat. (Gen. Code, 2408), which makes the commissioners liable for acts of negligence is in derogation of the common law, and that its terms can not be extended beyond their plain meaning. But we think it would be placing too strict and narrow a construction upon the statute to hold that it applies only to a part of the highway system of the state, when its plain meaning seems to be that the commissioners shall be liable for any dereliction of duty in failing to keep in repair all roads under their jurisdiction, and which the laws of the state require them to keep in repair.

The demurrer to the amended petition is overruled and the case is remanded.


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    NEGLIGENCE RELIEVED BY INTERVENING ACTS.
    Circuit Court of Lucas County.
    Hattie Krause v. Toledo Urban & Interurban Railway.
    Decided, December 4, 1909.

      Negligence — In Leaving a Trolley Pole in the Street — Accident Because of the Pole Due to Intervening Agencies.

    A. railway company is not liable for an injury sustained by a person falling over a trolley pole, which, was left by servants of the company upon a grass plot near the sidewalk, and was subsequently carried by children into an- adjoining field and was afterward returned to the street, and then thrown by a third person upon the. sidewalk where the injury complained of was sustained.
    O. S. Brumback, for plaintiff in error.

      Harry W. Lloyd and King, Tracy, Chapman & Welles, contra.
    Wildman, J.; Kinkade, J., and Parker, J., concur.
    Error to Lucas Common Pleas Court.
   This is a proceeding to reverse the judgment of the court below in which Hattie Krause, now plaintiff in error, sued the defendant company upon a claim for damages for personal injury. She claims that the defendant company was negligent in leaving a trolley pole, which came from one of its cars, upon a grass plot near a sidewalk upon one of the streets of the city. The evidence discloses, or tends to disclose at least, that the pole was lying there for some time, and children in playing with it took it out of the street into a field, from which it was subsequently brought back, -and finally, as testified to by one lady, a man driving an automobile struck it as it was projecting into the street, and then himself took it and threw it partly upon the sidewalk. Subsequently this lady, walking along the sidewalk, stumbled and fell over it, and received the injuries which make the basis of her -claim against the company.

We are unanimously of the opinion that the court below properly arrested the' case from the jury at the close of the plaintiff’s evidence. There is no claim of error in the case relied upon, except that the court erred in this one respect. It is insisted that the evidence was such as to justify its submission to the jury as an issue of fact, and that the court usurped the province of the jury in directing a verdict. We think it bears little analogy to the case of Harriman v. Railway, 45 Ohio St., 11, where so dangerous a thing as a torpedo was left where children might play with it or others interfere with it, and where there was a certain element of danger which might be anticipated by the person leaving a, thing of that kind to be meddled with and cause mischief.

There is nothing peculiar about a trolley pole, any more than the branch of a tree or anything which may fall upon a grass plot near a sidewalk, which should induce the belief on the part of one leaving it in such a position that it may subsequently be thrown upon the sidewalk, and that persons traveling along the sidewalk may receive injuries therefrom. The court below, we are informed, arrested the case from the jury upon the ground that there was an intervening cause, the act of the children in removing the pole from the grass plot and carrying it into the adjacent field, and that the company after that! would be relieved from responsibility in any event. We are inclined to think that the court was right in that view of it. It makes no difference whether it is carried into an adjacent field or carried into China and brought back again. The remoteness of the place to which it is carried by some intelligent agency is not of the slightest consequence. The principle is the same and is not affected by the extent of the distance which it travels.

The other act to which I have already referred as testified to by one witness, the act of the chauffeur of the automobile in placing it upon the sidewalk, recklessly and carelessly perhaps, is still another efficient intervening cause, the intervening act of an intelligent agency which could hardly be anticipated by the company when it left the pole in its first place.

The trial judge properly instructed the jury, and the judgment of the court below is affirmed. We have examined the authorities cited by counsel for plaintiff in error and while some of them may have some tendency to sustain his contention, we think that they hardly bear it out in its fullness, and we think that they should not be relied upon.


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    AS TO NEGLIGENCE OF A CARRIER IN FAILING TO AID AN INJURED PASSENGER.
    Circuit Court of Hamilton County.
    John Knepfle v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Co.
    Decided, April, 1910.

      Negligence — Question of, Where a Passenger Fell from a Train, and the Train was not Bached up to Give Him Aid — Oases Involving Liability of Carrier for Failure to Succor one Injured by a Train, Distinguished.

    A young man fell from a passenger train, one-fourth of a mile from the station to which he was being carried, and both of his legs were cut off. Upon the arrival of the train at the station, the conductor was informed of the accident', but he did nothing in the way of providing assistance, and ordered that the train proceed to its destination. Friends of the lad ran down the track, and at the end of fifty minutes succeeded in getting a physician to him. He was carried eight hundred feet to the nearest point an ambulance could approach to the place of the accident, and the ambulance transferred him to his home, where he died a few hours later from loss of blood. An action was brought against the railway company, based on the theory that if the train had been backed and the young man removed to the depot immediately, his life could have been saved. Held:

    That under the circumstances the railway company was not guilty of negligence in failing to back up the train and render aid.

      C. B. Matthews and G. B. Goodhart, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, contra.
    G-iffen, P. J.; Swing, J., and Smith, J., concur.
   Tbe plaintiff in error, as plaintiff in the Superior Court of Cincinnati, commenced an action to recover, under the Indiana statute, for the wrongful death of his son, John M. Knepfle, about eighteen years of age, who, while a passenger on one of defendant’s trains, stepped or fell-therefrom and had both legs cut off below the knee. The accident occurred at a point about 1,350 feet from the station at West Harrison, at about 4:35 p. m., the train, after stopping at the water stank, arriving at the station at about'4:40 p. m., when for the first time the conductor and brakeman were informed of the accident by two passengers.

A brother of the injured boy and other passengers residing at Harrison, were informed .of the accident, before the train arrived at the station, by the only eye-witness, William Herbert, who, as soon as the train arrived at the station, ran for a doctor to care for the injured.boy and for an ambulance to convey him to his home. At about 5:20 p. m. Doctor Huber arrived and took charge of the case, in the meantime other parties having tied handkerchiefs around the legs of the injured boy. He was then taken to the ambulance, a distance of about 800 feet (that-being -the nearest point to which it could be driven), and conveyed to his home. A surgical operation was performed about 6 p. M. and he died about 11 p. m.

The conductor left with his train, immediately after being informed of the accident, without affording any relief.

The claim is made that, although the accident occurred through no fault of the company, and probably through the negligence of the deceased, the defendant is nevertheless liable, because the conductor failed to back the train to the place of the accident and bring the boy to the station where surgical aid could be summoned, and failed to do anything else for his comfort and safety. It is further claimed that the delay in procuring surgical aid and appliances for cheeking the flow of blood caused a great loss of blood, which was the proximate cause of his death. The court instructed the jury to return a verdict for the defendant, to which action of the court error is now alleged.

It is well settled in this state that when a passenger through his own negligence falls from a moving train onto the track, where he is exposed in a helpless condition to the.danger of.injury from another of the railroad company’s trains, it owes him, upon notice, the duty to- adopt some reasonable precaution to avoid-injury to him. Railroad Co. v. Kassen, 49 O. S., 230.

Unlike that ease, the injured passenger in this case- was not lying on the track, and therefore not exposed to the danger of injury by other trains of the defendant; and Williams, J., says in the opinion:

‘ ‘ Though the defendant may not have been under any obligation to use care to prevent his injury by others, it owed him the duty of observing ordinary care to avoid injuring him -in the use of its own property.”

In the case of Northern R. Co. v. State, 29 Mo., 420, it appears that a person, run over and thought to be dead, ivas placed upon some rubbish in a railway warehouse by the station master, and then left over night, during which time he had revived and dragged himself some distance along the floor, when he was found dead the next morning with his body yet warm, in a stooping posture, pressing his hand upon his leg to stop the flow of blood from a severed artery, it ivas held that, even though the accident was caused by the negligence of the deceased, still it might go to the jury whether his death did not result from the subsequent negligence of the railway employes.

It is easy to subscribe to the doctrine of this case, not only as applied to the facts recited, but also as applied to any like state of facts. It .may also be conceded that the editorial note at page 533, 2d column, in 69 Lawyers Reports Annotated, where the case of Union Pac. Ry. Co. v. Cappier, 66 Kans., 649, is reported, states a sound proposition of law; but the facts in the ease before us clearly distinguish it.

Neither the conductor of the train, the brakeman, nor the station agent had any reason to anticipate that the brother of the injured boy and his friends, living in the same town and Ioioaving his condition would be less able than -they could be in procuring surgical aid and in ministering to his wants; hence what would otherwise have been a legal duty' resting upon one or all of such employes of -the company ceased to be even a moral duty. It is said, however, that the means at the disposal of the conductor for fetching the boy to the station were more available, to-wit, by -backing the train to the scene of the accident and returning Avith the boy; but this Avould have tended to increase, rather than diminish the flow of blood and would have laid the foundation for the very claim made in the petition that the additional loss of blood occasioned by the defendant was the proximate cause of the death. A surgeon or other competent person with suitable appliances was essential for the purpose of checking the flow of blood, and these were procured within a reasonable time. Even though the means, employed by those who did take charge of the case, proved less effective than those which might have been used by the defendant, still it would not be liable, unless the employes having knowledge of the accident, had reasonable grounds.to anticipate such result.

Counsel for plaintiff admits that the standard of duty owing by the defendant shifted according to the facts and circumstances developed at the trial. The undisputed facts are that a brother and friends not only knew of the accident before the employes of the defendant did, but were taking active measures for the relief of the unfortunate boy. We are of the opinion therefore that the court did not err in directing the jury to return a verdict for the defendant.

Judgment affirmed.


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    STORING DYNAMITE WHERE IT BECOMES A PUBLIC MENACE.
    Circuit Court of Lucas County.
    Cincinnati, Hamilton & Dayton Railway v. Stanislaus Tafelski, Administrator.
    Decided, January 22, 1910.

      Explosives — Negligence in the Storing of, Where Lives and Property •are Endangered — Beneficiaries May Sit Within the Bar During the Trial of a Negligence Case — When Counsel May Renew a Proposition. Once Overruled — Pleading—Presumption as to Contributory Negligence — Charge of Court.

    1. A railroad company does not have an unquestionable right to store dynamite cartridges wherever and however it pleases on its own property, but such dangerous substances must be so cared for that they will not injure the property and lives of others.

      2. It is within the discretion of a trial court to permit.a widow and her children — beneficiaries of the trust represented by the nominal • plaintiff' — to sit within the bar and within view of the jury during the trial, and the overruling of a request to exclude them therefrom is not error.
    3. There may well he cases where counsel may properly renew the discussion of some proposition to the court, even after a ruling has been made against him, if he has reason to believe he can throw new light upon the matter, and his action in so doing is not misconduct.

      Julian Tyler, for plaintiff in error.

      O. S. Brumbach, contra.
    Wildman, J.; Parker, J., and Kinkade, J., concur.
    Error to Lucas Common Pleas Court.
   This is a proceeding to reverse a judgment rendered in favor of Tafelski in the court below upon a verdict of the jury for $5,500 damages. Tafelski is the representative of the estate of one John Bugaj,. who was killed by an explosion of dynamite in the yard of the defendant company, the dynamite being stored so as to be ready for use in breaking up and dislodging frozen iron ore. The occurrence was on January 30, 1905, and this dynamite and fulminating caps were stored in one of two “shanties,” or unused freight cars which had been taken from their trucks and were kept upon the company’s grounds adjacent to .some of their tracks.

The claim of the petition is, in one respect at least, that the company was negligent in storing dynamite and caps in this car, in a certain cupboard therein and at the same time providing these cars as places for rest for employes when awaiting their call to work, or, at least, in permitting the workmen to congregate in these cars. In that season of the year, in extremely cold weather, the car in which the dynamite and fulminating caps were stored was warmed by a stove, supplied with fuel presumably owned by the company.

It is claimed on behalf of the plaintiff in error that the decedent, Joseph Bugaj, who was killed by the explosion, was at best a mere licensee of the company in the occupancy of this car or in being in its immediate vicinity at the time of the explosion; that he was not at that time in the prosecution of any work for the company, and that he was not directed by the company to be upon the car or about it. Some of the dynamite sticks or cartridges were taken from the cupboard where they were stored and placed upon a shelf, very close to the stove, which was evidently heated to an extreme heat. There is testimony in the ease that it was very commonly heated “red-hot.” The grease or .oil on the dynamite took fire by reason of its proximity to the stove, which fire finally seems to have reached the cupboard where the caps and other dynamite cartridges were stored.

A man by the name of Tomas, another employe of the company, whose duty it was to explode the cartridges, having the key to the cupboard, removed some of the boxes of dynamite cartridges therefrom, and threw out from the car some of those which had been put upon the shelf, but he was unable to remove all that were in the cupboard. The men who were in the car took fright when the fire started, removed themselves from the ear and in doing so knocked- Tomas down, and he was finally obliged to abandon the effort to rescue the remaining cartridges from the cupboard. The explosion seems to have caught Bugaj when he was in the neighborhood of this car and in a sort of a passage-way between another box .car used for a similar purpose and a car containing coal, or at least one of a train of freight cars situated upon another track ,and but a few feet from the one of the box cars which it is not claimed contained dynamite cartridges and which was not fired. The side door of that car which I have last mentioned was swung open -and extended as it swung open so close to the car which was standing upon the other track that it is claimed on behalf of the plaintiff below it apparently barred escape — and the claim is that probably in his effort to run away, he ran into this sort of a blind alley and was stopped there; at any rate, that is where his body was found.

Numerous reasons are assigned by the plaintiff in error for the setting aside of this judgment. It would not be profitable to review them all in detail, but I will refer very briefly to some of those which have been most prominently mentioned and discussed.

In the first place, it is said that at the close of plaintiff’s evidence and perhaps at the close of the whole evidence, motions were made to arrest the ease from the jury upon two grounds: one, that the petition did not state facts to constitute a cause of action; the other, that there was no proof to justify a verdict for plaintiff. The court overruled these motions, and, of course, the first question which would address itself to our minds is the question of the sufficiency of the petition itself.

We deem the petition sufficient. It clearly charges that it was the duty of the company to store the dynamite and caps in some place at a distance from that in which the men were permitted to congregate when waiting for their call to work; that that duty was violated; that the caps and cartridges were in this cupboard; that plaintiff’s decedent was not aware of their being there; that he was not aware of the dangers arising from their being so stored; that the company did have knowledge of their being so stored and knew the danger and negligently permitted them to remain. We think that the petition is sufficient and that the court did not err in overruling the motion upon that ground.

We think, further, that there was evidence justifying the leaving of the matter to the jury to determine whether or not the company was negligent in these respects. We are not inclined to agree with counsel for plaintiff in error that a presumption arose from the evidence in the case that the decedent was guilty of contributory negligence so that it became essential to remove such presumption. He is not here to testify and no one is able to describe his conduct specifically. We have the evidence as to the general conduct of the persons who were in the car and attempting to escape, but very little is known as to what plaintiff’s decedent did, except that he died there very near the burning car. He may have been struck by some of the flying objects from the car and there is no question, indeed, that his death was caused directly by the explosion. It is claimed, however, in behalf of the plaintiff in error, that if anyone was negligent it was Tomas in taking the dynamite sticks from the cupboard and placing them upon the shelf where they caught fire. It may be that there was negligence of Tomas; it may be true, as claimed by counsel, that he was a fellow-servant of plaintiff’s decedent; but we do not think, whether that be so or not, it settles the inquiry. If the accident was due to the negligence of Tomas without the concurrence of any negligence of the defendant company, it would, of course, at once raise the question as to whether he was a fellow-servant. There is not much doubt in our minds that he was such, and the court below probably took the view that he was so, although there is some argument by counsel for plaintiff in error that he was not at the moment so engaged in the service as to come within the rule of fellow-servant. We are not inclined to adopt this position of counsel for plaintiff in error, but we rather base our judgment upon the view that there was evidence tending to show that there was only concurrent negligence in the act of Tomas.

Now, addressing ourselves to the question whether the plaintiff’s decedent was there by the invitation of the company, we think it may fairly be inferred from all the circumstances of the ease that these cars were placed upon the company’s grounds, or permitted to remain there with the trucks removed, to be used in the manner in which they were used. It appears from the evidence that that had been so done for a long time. The stove in this ear from which came the conflagration which destroyed it, was manifestly the stove of the company; the fuel, the fuel of the company. The dynamite cartridges and caps were used there by authority of the company. Not only Tomas had a key to it, but another person, said to have'been a foreman, had a key to the same cupboard. The dynamite was stored there tor the company’s purpose and we can hardly come to any other view than that the company intended that the cars should be used for the purpose for which they were used, that is, as a sort of congregating place for the men in cold we'ather to remain comfortably until such time as they were to do their work. We think then that the evidence tends to sustain the petition of the plaintiff as to the company’s making this sort of a provision to enable the company to conduct its business and for the storing of dynamite.

And now, without dwelling upon the claims remaining, I will consider for a moment the claim of the plaintiff in error as embodied in several requests to charge prior to the argument to the jury.

Proceeding upon the theory that the company had an unquestionable right to store its dynamite cartridges wherever it pleased upon its own property, it substantially asked the court, in several varying forms, to give such instructions to the jury, and counsel argue to us that the court was in error in refusing these requests. Some of them may embody abstractly correct principles of law, but, granting that, the court was not required to give them without such qualification or further instruction to the jury as might safeguard the jury against being misled. If these instructions had been given to the jury as requested by the plaintiff in error, they would have remained in the minds of the jury through the entire course of the argument and until, under the rules of procedure, the court gave its general charge serious injury might result to the rights of the plaintiff below by reason of such misconception being permitted to remain in the minds of the jury during this time. A man may not keep a vicious dog upon his premises at such time as persons, by his invitation or permission are liable to come upon the grounds, without chaining up the dog or taking care of it in some way to protect such persons from injury; and the authorities are very numerous that in the storing of dangerous substances or articles upon one’s own property they must be so taken care of that they will not imperil the property and lives of others. So we think that the court was justified in refusing these several instructions since they were not coupled with some sort of additional instruction as to the storing of dynamite and caps in close proximity to, or in a car which was liable to catch fire from such causes as we have disclosed in this case.

I will not dwell longer upon this phase of the case. Some complaint is made that counsel for defendant in error caused the widow and a number of the children of decedent to come within the bar of the court and sit in view of the jury during the progress of the trial against the objection of defendant below, that the sympathy of the jury might thereby be aroused and the defense of defendant be prejudiced thereby. A request was made of the court to exclude the widow and the children from the court room or from the view of the jury and the court overruled the request and it is said that the court thereby committed error. It is not contended but that ordinarily such matters are within the discretion of the court, but it is claimed that there was an abuse of that discretion such as to justify a reversal. We are not inclined to agree with counsel in this regard. The widow and children, while not parties to the suit, are beneficiaries of the trust represented by the administratrix, who is the nominal plaintiff. The widow’s presence might be essential to the proper trial of the case; she might have knowledge of circumstances which would affect the issue as to the conduct of the case in the interest of herself and children such as might almost necessitate her presence in court; we are not inclined to think that it was advisable or that it would have been proper to exclude her from the trial. It might, in some instances, be proper enough to send out little children, whose presence could afford no special aid, but I think it may be said that in suits of this character, in view of some of the decisions under this statute, where suits are prosecuted by an administratrix and where the right to recover for the widow and next of kin depends somewhat upon their condition and necessities and the extent to which they would be liable to derive support from the decedent had he lived, under these circumstances it might be even proper to exhibit to the jury the children, for the purpose of enlightening the jurors as to their age, as to their condition of health and necessities as requiring the support that might have been afforded by the decedent.

In viewing the whole matter, we can not say that the court abused its discretion in overruling the request.

It is said that counsel for the plaintiff below was guilty of misconduct in argument to the jury in using, ,as an illustration, perhaps, a stick of dynamite from which the fuse had been removed, or something of the kind, in order to explain to them the nature of the transaction and the uses which were made of dynamite and fulminate caps. Objection was made to this and the court directed counsel not to proceed with the illustration. Counsel insisted to the court that he had a right to do this, saying once or twice to the court that he thought he had such right. It appears, however, that he was addressing himself to the court and was perhaps eVer-earnestly insisting upon his right. It is not always wise for counsel to persist after a court has decided adversely, but still counsel in his zeal for his client may very well renew some proposition to the court even after it may have ruled against him, if he thinks he can throw any new light upon the matter and we can not say that there was any misconduct in his so doing.

There are some other points which arose during the progress of the trial, but, without further comment, it is sufficient to say that we find no error in the case which operated to the prejudice of the plaintiff in error justifying a reversal and the judgment of the court below will be affirmed.


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    TITLE TO CORPORATE STOCK.
    Circuit Court of Hamilton County.
    The Provident Savings Bank & Trust Company v. W. L. Voight.
    Decided, July 16, 1910.

      Corporations — Lost Certificate of Stock — Proceedings for a Reissue— Evidence as to Title, Legal und Equitable.

    While the fact that a lost certificate of stock, standing in the name of the plaintiff seeking a reissue thereof, would in the absence of other evidence be conclusive as to his title, an order of court for such a reissue will be reversed as against the weight of the evidence, where it appears that the evidence upon which the order was‘based showed that while the naked legal title was in the plaintiff the equitable title was in a corporation of which he was a member.

      Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.

      Scott Bonham, contra.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   The original action was brought by W. L. Yoight under favor of Section 3254-1-3, Revised Statutes, to compel the Provident Savings Bank & Trust Company to reissue to the plaintiff a certificate for 350 shares of the stock of that company, the original having been lost.

The only evidence that plaintiff was the owner of the certificate was that it was originally issued in his name, which in the absence of, other evidence would be conclusive of his title; but it was also shown, that the stock was paid for out of the funds of the Lewis Yoight & Sons Company, a corporation; that the transaction was, under the direction of the plaintiff, entered in the books of the company as a jrarehase of stock by the company; that at a stockholders’ meeting, as shown by the minutes, the stock was treated as that of the company; and by admissions of the plaintiff made to counsel for the receivers of the company, the title of the company is reaffirmed. It follows therefore that, while he had the naked legal title to the certificate and the stock of which it was evidence, the real ownership was in the company.

The judgment is not sustained by the evidence and will be reversed, the cause being remanded for a new trial. _


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    ADMISSIBILITY OF ENTRIES MADE FROM MEMORANDA SUPPLIED BY ANOTHER..
    Circuit Court of Lucas County.
    V. M. Falardeau v. W. H. H. Smith Co.
    Decided, November 20, 1909.

      Evidence — Entries Based on Memoranda Furnished by Another — How Made Competent — Copy of Statement not Admissible, Where Original is in the Hands of-the Adverse,Party, Unless Notice Has Been Served to Produce the Original.

    1. An impression book in which are copied bills for lumber drawn off from a yard book is not competent evidence as a book of original entries, when identified only by the person keeping this book but who took no part in keeping the yard book.
    2. An impression copy of a statement sent to the opposite party in the case is not competent as evidence, when no notice has been served upon such party to produce the original; and the fact that the said party had turned the original over to a third person connected with him in the transaction does not excuse a failure to serve such notice.

      Ralph Emery and Rhodes & Rhodes, for plaintiff in error, cited:
    Kennedy v. Dodge, 19 C. C., 425; Breinig v. Meitzler, 23 Pa. St., 156; Swan v. Thurman, 112 Mich., 416; Welsh v. Barrett, 15 Mass., 380; Nicholls v. Webb, 21 U. S. (8 Wheat.), 326; Livingston v. Tyler, 14 Conn., 493; Price v. Earl of Torrington, 1 Smith L. C., 344; Jackson v. Evans, 8 Mich., 476; Merrill v. Sullivan, 68 Fed. Rep., 509; Paine v. Sherwood, 21 Minn., 225; Baxter v. Leith, 28 Ohio St., 84; Heller v. Beal, 3 C.C.(N.S.), 268; Greenleaf, Evidence, Section 560; Scioto Val. Ry. v. Cronin, 38 Ohio St., 122; Choteau v. Raitt, 20 Ohio, 132.

      B. S. Holbrook, contra.
    Wildman, J.; Kinkade, J., and Parker, J., concur.
    Error to Lucas Common Pleas Court.
   The W. H. H. Smith Company sued Falardeau in the court of common pleas upon an account for lumber said to have been sold and delivered to him. The ease was tried and a verdict rendered in favor of the plaintiff for $949.24, and to reverse the judgment rendered upon that verdict the proceeding is instituted here by Falardeau. It is not necessary to go into the details of the case, except to a very limited extent, for their bearing upon the two questions which have addressed themselves to the court as vital.

It is claimed by the plaintiff in error that the court erred in the admission of prejudicial evidence against his objection. One item of this evidence was a certain book of original entry as described or claimed by the plaintiff below, but which the defendant insisted was not of the character of original entries, or was not so authenticated as to justify its admission. The court, however, took the view that it was competent and permitted it to be given in evidence to the jury. This book seems to have been made up from the evidence afforded by certain bills which themselves had been copied from so-called yard books. The book offered in evidence is an impression book — receiving copies by letter press impression- — of the so-called bills, which one of the witnesses says were themselves copied from the yard book. As nearly as we can understand the evidence, they were a sort of orders or lists of the lumber required by purchasers, placed upon the books perhaps before the lumber was in fact, delivered upon the orders, and then as fast as the lumber was delivered, the various items of it were checked off upon the so-called yard books, and it seems that these yard books themselves, so far as the evidence in this record discloses, might be the books of original entry. But whether or not'that is so, we have arrived at the conclusion that there is not sufficient evidence to justify the, admission of the book which was received, and we think that the court in its admission erred to the prejudice of the plaintiff in-error.

It does not appear that the person who kept the books had personal knowledge of the deliveries of the various items of lumber which were placed therein with the values of the same. It does not appear that he had knowledge of any part of the transaction, but it does appear that all the information that he had was derived from the entries that had been made in the other books to which I have referred, or the bills which were copied therefrom. These bills as nearly as we can understand them may have contained the values, which did not appear perhaps upon the yard books. We are somewhat in the dark as to just what was in the yard books themselves, they not having been offered in evidence and not appearing in the record. It is probable that the yard books show simply the amount of the lumber required, and then after the deliveries were checked off upon the yard books values were computed at the regular or agreed price, and the amounts were so as to put the entries somewhat in the form of an account which thereafter was copied by letter press in the book which comes to us as an exhibit and which was received in evidence. The persons who made the yard books, or the persons cheeking, the deliveries of the lumber upon the yard books, did not testify so as to authenticate the book which was prepared as the result of the information derived therefrom, and in this connection, without dwelling longer upon it, I will cite a paragraph from 17 Cye, on page 394, which seems to have some pertinence. It was not one of the authorities, I believe, cited in argument, but in our examination of the question and discussion of it, we find the language, which seems to us to have a legitimate bearing:

“Effect of co-operation in making entry,' where one person makes an entry from memoranda or information furnished by another, or two or more persons have otherwise co-operated in making an entry, the entry will be admissible in connection with the testimony of all the parties participating. Indeed it is held that where the clerk who makes the entries has no knowledge of their correctness, but makes them as the items furnished by another, as for instance where entries are made by a bookkeeper from reports made by a foreman, it is essential that in addition to the oath of the party making the entry, the party furnishing the items should testify to their correctness, or that satisfactory proof thereof — such as the transactions are reasonably susceptible of — from other sources should be produced. If the person furnishing the information or memoranda for the entries is dead or can not be produced, the entries are admissible when supported by the testimony of the person making them, especially if supplemented by proof of the correctness of the memoranda. ’ ’

We think that the court erred in the admission of this book, and for this error the judgment should be reversed.

We think also that consideration should be given to the ruling of the court, admitting in evidence the impression copy of a statement sent, as alleged by the plaintiff below, to the defendant Farlardeau in September of 1907, and other statements. I refer to this one because it seems of especial importance. It is found on page 50 of a book which is a sort of letter book, and contains the impressions of various communications from the plaintiff below to the defendant. No notice had been served, as seems to be conceded, upon the defendant below to produce the original of this or the other statements, and yet the court permitted the book containing the copies to be given in evidence. The defendant in court testified that lie had not considered these statements, although they bear his name, Falardeau, at the top, as intended to be charges against him, and that he had handed them over to the party whom he seems to deem the real debtor, the W. H. H. Smith Company. He says that the statement at any rate was not in his custody at the time of the trial, and upon this fact it. is urged that he not being able to produce the original, the copy became competent evidence. On page 534 of 17 Cyc, supra, we find this language:

“It makes no difference that the instrument is in'the actual possession of some third person, if it is still within the control of the adverse party, but under such circumstances the latter is held to his obligation to produce the writing on notice, and upon his failure to do.so secondary evidence is admissible. And the same rule applies where the document is in the custody of another court from which it may be withdrawn, or is out of the jurisdiction. On the other hand, if the document is held by .a third person and is not in the adverse party’s control, the notice is inoperative, and the party’s failure to produce the document will not warrant the admission of secondary evidence, but the party seeking to introduce the evidence must summon the third person or show that with due diligence the document can not be obtained. ’ ’

So far as we are apprised there was no effort to bring into court by subpoena duces tecum the party who had the actual possession of the originals of the statements copied into this letter book, and we think under this authority and also upon principle and in harmony with the rules which have been applied as to the .admission of secondary evidence under some circumstances and its rejection under others, that the court should have rejected this book. The court erred in its admission, and for this error the judgment should be reversed. We find no other prejudicial error in the record.


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    OBSTRUCTIONS IN THE AISLES OF STREET CARS.
    Circuit Court of Hamilton County.
    The Cincinnati Traction Co. v. Amelia Hamburger.
    Decided, July 16, 1910.

      Street Railways — Passengers Properly Permitted to Carry Packages and Bundles Into the Cars — No Recovery for a Passenger Who was Injured by Falling Over Such an Obstruction.

    It is not negligence on the part of a street railway company to permit passengers to carry packages and bundles into the cars; and no recovery can be had by a passenger for injuries sustained in attempting to get around and over a basket and box which had been placed in the aisle by other passengers, where the injured passenger had made no request to the conductor or otherwise that the obstructions be removed.
    Plaintiff recovered a judgment against the traction company of $1,350 in the court below.

      Miller Outcalt and J. W. Heintzman, for plaintiff in error.

      Horstman & Horstman, contra.
    Swing, J.; Giffen, P. J., and Smith, J., concur.
   This is an action in this court on error to the judgment of the Superior Court of Cincinnati. In the latter court the defendant in error recovered a judgment against the plaintiff in error for personal injuries received while a passenger on plaintiff in error’s car. The gist of plaintiff’s action is thus stated in her petition:

“That defendant * * * negligently permitted passengers who were seated in the same seat with plaintiff and in such position that she was required to pass by them to get out of said car; to place in front of them between the seats and in the space through which plaintiff was required to pass to get out of said car a very large basket and a very large box, which basket and box were placed upon the floor of said car .at the feet of the respective passengers who had carried the same into said car; that the defendant thereby caused the passage-way out of said car, which plaintiff was required to use to get out of the same, to be negligently obstructed;. further, that as plaintiff was about to leave said car, after having signaled the conductor to that effect and while such basket and box were obstructing her exit, the conductor in charge of the operation of said car negligently called to the plaintiff to hurry up and get out of said car, and that such obstruction was so negligently placed therein with the knowledge and consent of said conductor, and further, by reason of the negligent conduct of said conductor in unduly hastening her exit from said car, the plaintiff as she was attempting to get around said basket and box and over the same twisted her right leg at the knee so that she sustained a very severe injury.”

The defendant company answered setting up a general denial, and further alleging that if plaintiff was injured that she negligently contributed -to her injury.

During the argument in this court counsel stated to the court that the allegations in the petition as to the conductor having negligently hurried the plaintiff to get out of the car was withdrawn from the jury, when the plaintiff in her testimony testified that the conductor called to her to hurry up when she was on the running board of the car in the act of stepping off, and this evidence would not support the charge in the petition. No journal entry was made to this effect, but if necessary this could be remedied by a nunc pro tunc entry on suggestion of a diminution of the record.

The case therefore was submitted to the jury on the allegation of the negligence of the company in permitting passengers to place a large basket and a large box between the seats of the ear in which plaintiff was riding. It is evident that no direct injury was inflicted on the plaintiff by the placing of these articles between the seats; the injury, if any, was caused by plaintiff in attempting to pass around or over these obstructions. In her evidence plaintiff says the injury was caused in passing by the basket. The evidence shows that the plaintiff saw these obstructions and that she did not request the owners of the parcels or the conductor to remove them so that she could pass out, but took the chance of her passing by them with safety. There is no positive evidence that shows that the conductor knew that these parcels obstructed the exit of the plaintiff; the evidence does tend to show that the conductor had knowledge that, the passengers took these parcels.with them when they boarded the car.

It is a matter of common knowledge that passengers on street cars take with them parcels of different kinds which they commonly carry on the streets. This is evidently a reasonable and proper use of the cars, and' if passengers were prohibited from so using the cars it would deny to the public a right for which the cars were created. And one entering a car must be held to do so with knowledge that other passengers may have with them parcels of the character mentioned.

There is evidence in the record to the effect that these parcels were very large, both basket and box — the basket as large as a large clothes basket and the box from to 3 feet wide. The plaintiff was seated in the fourth seat.

It is a matter of common knowledge that the distance between the seats of these summer cars is very limited, not to exceed 17 or 18 inches, and therefore no basket which could properly be called a very large basket and no very large box, or 3 feet wide, could be placed between these seats, and it is certainly self-evident that no large clothes basket could’ possibly be placed between these seats,, and therefore it is evident that the size of these parcels can not be correctly described as being very large, but on the • contrary, they must be deemed as being of ordinary size.

The syllabus in the case of Van Winkle v. Railroad Co., 46 Hun., p. 564, is as follows:

"A street railroad company is not chargeable with negligence for permitting passengers to place baskets between their feet; passengers attempting to pass over the .obstruction assume the risk and danger of so doing.”

In the opinion the- court say:

"Neither do we conclude that the defendant or its agents were chargeable with negligence or inattention for permitting one passenger to carry his basket in the ear and place it on the floor between his feet and another to take with him his umbrella. It is quite usual and customary for passengers to carry with them' hand bags and baskets and umbrellas and other small parcels, and no rule is shown for their exclusion. It may become the duty of conductors to cause their removal upon complaint of inconvenience or annoyance or obstruction to other passengers, but without some such complaint or request we are unaware of any rule which would require their removal. If this plaintiff had requested the conductor to clear the passage-way for her exit from the car, it would have been his duty to comply with her request, and so far as the ease discloses the facts the conductor of the car was without knowledge of any obstruction in the passage-way between the seats. Our examination fails therefore to disclose any negligence of the defendant, and it is unnecessary to make any examination respecting the contributory negligence of the plaintiff. Yet upon this point it is to be said that the plaintiff, with full knowledge of the obstruction in her pathway, undertook to pass unassisted between the two men over the basket and umbrella, and by that act plaintiff .assumed all the dangers and risks of such a passage, and the disastrous results of such hazardous undertaking can not be charged against the defendant.”

We regard this as sound law, and as the facts in that case are very similar to the facts in this case, we are of the opinion that the law as thus stated clearly, applies to the case at bar. If we are correct in this view the plaintiff can not recover under the pleadings and the evidence. And the defendant having moved the court to direct the jury to return a verdict for the defendant at the conclusion of all the evidence, it should have been granted. The judgment will therefore be reversed and judgment rendered for plaintiff in error.


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    AS TO CHARGES FOR. LIGHTING SHERIFF’S RESIDENCE.
    Circuit Court of Wood County.
    State of Ohio, ex rel The L. E., B. G. & N. Railway Co. v. F. W. Toan, Auditor.
    Decided, May 13, 1910.

      Counties — Sheriff’s Residence — Lighting of, Can Not he Included, in Charge for Lighting Jail — What Constitutes a Jail — Furnishing Supplies for — Sections $850 and 8111, General Code.

    County commissioners are without authority to provide for the expense of lighting that part of the county jail which is used by the sheriff as a residence.

      Brief of William Dunipaee,. Prosecuting Attorney of Wood County.
    This is a suit in mandamus brought by the L. E., B. G. & N. Railway Co. for the payment of $94.92 on a bill for electric lights, furnished to the Wood county court house,, jail and sheriff’s residence. The bill was ordered paid by the commissioners but the auditor refused to issue his warrant therefor, claiming that the sheriff’s residence was not a part of the county jail and therefore it would be illegal to pay this bill.
    This case was submitted to the common pleas court on an agreed statement of facts and the mandamus was sustained.
    This question was first brought to the attention of the county in the reports of the inspectors sent out by the state bureau of accounting on March 1, 1906, of which the following is a copy:
    “Section 2850, General Code (1235, Revised Statutes), provides that ‘the sheriff shall be allowed by the county commissioners not less than forty-five cents (45c) nor more than seventy-five cents (75c) per day for keeping and feeding prisoners in jail,’ etc., and Section 3177, General Code (7378, Revised Statutes), provides that ‘the county commissioners, at the expense of the county, shall provide suitable means for warming the jail .and its cells and apartments, frames and sacks for beds, night buckets, fuel, bed clothing, washing, nursing when required, and such fixtures and repairs as may be required by the court. ’ Hence any supplies for the jail other than those specifically mentioned in said sections, even light and water, should have been supplied by the sheriff and not by the county. In Wood county water is furnished the court house and jail -under yearly contract, hence your examiners could not show how much of the cost should have been borne by the sheriff. This water is- furnished the court house and jail at $600 per year. ’ ’
    In support of the contention of the defense, we have the following opinion by Attorney-General Kohler, which is direct upon the subject:
    “Your favor of yesterday to hand. I have carefully examined the inquiry you have presented, and can find no statute or decision in any court in this state making it obligatory upon the county to furnish light and fuel for the residence of the sheriff of the county.

      “The statutes provide for the keeping and support of the prisoners in the custody of the sheriff, and the expense thereof, with the limitations prescribed, must be at the expense, of the county; but the supplies therein provided for can not be used in the residence proper of the sheriff.
    “I, therefore, give it as my best judgment that county commissioners are not authorized in paying expenses incident to the lighting and heating of the residence of the sheriffs in the state.”
    There is no statute authorizing the building of a residence for the use of the sheriff in connection with the jail. The only reference we have to this is in the 93d O. L., 465, which was a special act passed by the Legislature authorizing Lucas county to build a sheriff’s residence in connection with its jail. It has been argued that for the convenience and proper discharge of his duties, a residence in connection with the jail is necessary. But in answer to this we have the well known rule that where duties are imposed upon a public official and there is no provision made for the payment of such services, it is presumed to be gratutious by such public official. See In re Lease, 4 C. C., 3.
    Section 2850, General Code (1235, Revised Statutes), is for services required under Section 7379, Revised Statutes, and no other or further .compensation for such services is provided for or contemplated by the latter.
    As to what is a jail, 23 Cyc., 372, which cites Burroughs v. Lowder, 8 Mass., 372:
    “Where the sessions had assigned certain apartments in the jailor’s house, which was in the limits of the jail-yard, his chambers and lodgings, of debtors having the liberty of the yard and such debtor had passed his evenings in chamber of the same house with the permission of the sheriff and jailor, but had always slept in one of the rooms assigned by the sessions, he was held to have committed an escape in the condition of his bond. ’ ’ Affirmed, Clap v. Coffner, 10 Mass., 372.
    The jail is a place of confinement used for detaining prisoners. Welsh v. State, Texas App., 8 S. W., 657.
    Here we see the strictness with which other states have ruled upon the question of what constitutes a jail.

      There is no authority in the law for the eouifty to build a residence proper for the sheriff. All supplies for his residence such as light, water, heat, furniture and furnishings should be supplied by the sheriff; otherwise if it were proper for light to be furnished, it would be proper to provide all of the above mentioned furnishings. It is not any more lawful to provide conveniences for the sheriff’s residence than it would be to provide conveniences for other county officials, whose work and time keeps them in the court house continuously.

      B. F. James and J. E. Kelley, for the relator.
    Kinkade, J.; Parker, J., and Wildman, J., concur.
   In this action the relator, the Lake Erie, Bowling Green & Napoleon Railway Company, on January 26th, 1910, filed its petition and made application for the allowance of a writ of mandamus against Fred W. Toan, as auditor of Wood county, Ohio, and an alternative writ was issued and the defendant was required to show cause why a warrant should not be issued by the auditor upon the treasurer of said county for the sum of $94.82 in favor of said relator.

The respondent filed his answer and set up that while the bill for lighting was correct in other respects, it was not correct in respect to the ten dollars, in that it covered the lighting of the entire jail building, and inasmuch as a considerable portion of the jail building was occupied by the sheriff as a residence, that that portion of the jail building should not be included in the bill, and that this ten dollars so charged made the bill erroneous, and for that reason the auditor should not be required to draw his warrant for the amount of the bill as presented.

To this answer a demurrer was filed, and the demurrer was sustained, and the defendant not caring to plead further, the case was submitted, and the court of common pleas held in favor of the relator and ordered the auditor to draw his warrant for the full amount of the bill, $94.82.

It was stated that when the case was to be submitted it would be submitted on a brief furnished by the prosecuting attorney on behalf of® the auditor, and that the relator would rest his ease on the opinion of the court of common pleas. Counsel for the relator was not able to get the written opinion of the court of common pleas, nor was the court able to find it, so we simply-heard from Judge Baldwin himself the grounds- upon which this order was entered. No authorities were cited in support of the opinion rendered.

Judge Baldwin treated the term “jail” as described in the statute as being broad enough — comprehensive enough in its proper definition — to include that portion of the jail building used as the residence of the sheriff, and consequently the statutory authority for furnishing light for the jail was broad enough to justify furnishing light for the residence portion of the jail, and that being his view of the situation, he ordered the writ to issue.

There is no case in Ohio that we know of in which this question has been directly raised and decided. We do not know of any authority under the statute for authorizing the lighting of any portion of the jail, other than that which is properly designated as a jail, and while we might be in accord with Judge Baldwin’s opinion as 'to what the definition of “jail” is, at the same time we are inclined to think that the decision reached in this ease is not warranted under the statute. As I have said, we know of no statute, no authority that would justify the lighting of the sheriff’s residence. It is true, that in most counties the jail buildings are so built as to furnish a residence for the sheriff, and so far as our information goes in no county is the sheriff expected to pay anything as a rental for the building which he occupies. It is furnished to him by the county in that way, but we can see no reason why the county should -pay for the lighting of the residence part of the jail simply because it happens to be under the same roof, any more than the county should pay for it if it were in a separate building.

It might be wise for the Legislature to s-o provide, but they have not done so, and without some authority upon the subject we do not feel warranted in entering the order here that the auditor should issue his warrant for the full amount of the bill.

We think the plaintiff should have leave to reply to this answer if it wishes to and present the question as to whether the amount set up here in the answer is applicable to the residence portion of this jail is in fact the correct amount or not. It is .not apparent to us whether it is or not because there is no reply to the allegation.

The demurrer will be overruled and the plaintiff can file a reply.


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    RESPONSIBILITY OF TRACTION COMPANY FOR. COLLISION OF CAR. WITH AUTOMOBILE.
    Circuit Court of Hamilton County.
    The Ohio Traction Co. v. Louise Breitholle

    Decided, June, 1910.

      Negligence — Collision Between Electric Gar and Automobile Results in Injury to Passengers on the Car — Motorman Exonerated from Blame.

    Weight of evidence as to responsibility for a collision between an elective car and an automobile, resulting in injury to passengers on the car.

      George H. Warrington, for plaintiff in error.

      S. A. West and Frazier & Hicks, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.

       For opinion in another case growing out of the same accident, see 13 C.C. (N.S.), 67.

   The plaintiff, Louise Breitholle, was a passenger on one of the cars of the defendant company, and after describing a collision between an automobile and a car operated by the Cincinnati Traction Co. while both were descending Vine street hill, which as alleged left the automobile across the track upon which the defendant’s ear was ascending, and about one hundred feet in front of the car, charges negligence as follows:

“That after said automobile had been so thrown on and near the track upon which defendant’s car was being run, all of which the defendant then and there had the means of knowing and did know, the defendant then and there carelessly and negligently failed and neglected to control and operate its said ear so as to avoid coming in contact with the said automobile, but carelessly ran said car into said automobile.”

This is a clear cut charge of negligence concerning which there ought not to be much conflict of testimony, yet there is such conflict not only between the testimony offered by the plaintiff and that offered by the defendant, but also in the testimony of the witnesses on either side.

Mrs. Fiscus, a witness called by the plaintiff, testified that while standing on the steps in front of her house on the east side of Vine street she saw the automobile collide with a Nor-wood car; that defendant’s ear was at the time about seventy-five feet south of the automobile, and continued slowly up the hill until stopped about fifteen feet south of the automobile, from which the burning gasoline flowed down the hill and set fire to the car. This testimony does not support plaintiff’s theory of the case, and is discredited by the testimony of her sister, who was next called by the plaintiff, and said that they were both in the house when the - Collision took place and when them came out the ear was burning.

The Nulsen sisters (called by plaintiff), who were in the automobile, were unable to state whether the Millereek Valley car operated by the defendant collided with the automobile, although very close to it when stopped. One of them testified that defendant’s car “was just turning the curve” when the collision between the Vine and Norwood car happened, which she estimated to be seventy-five or eighty feet away, whereas by actual measurement it was more than seven hundred feet. Her inability to accurately state the distance is excusable, but her statement that the car “was just turning the curve” is "not supported by any other testimony.

The motorman on the Vine-Norwood car testified that after the automobile struck his car he looked around and the automobile and the other car “hit while I was looking.” And again, “but the ears were so close together that the other crash came almost instantly.” The witness, Keys, called by the defendant, was a passenger on the Millcreek Valley car, sitting in the second seat from the front on the left hand side, and testified upon cross-examination as follows:

“Q. Then if there was a collision between the automobile and the Vine-Norwood car, you didn’t see it? A. Well I saw it just as that happened, but I didn’t see the car before.
“Q. I see. The first that you really knew was when your car, that is, the Millcreek Valley ear, was within five feet of the automobile? A. Yes, sir.
‘‘ Q. And your car, you think, ran up and touched the automobile? A. Well rather the automobile ran down and touched the car.
“Q. The .automobile was still running, was it? A. The car stopped first according to my recollection.”

The natural explanation of this testimony from all the evidence is that the automobile was thrown against the Millcreek Valley car by the Vine-Norwood car which the witness did not, at that moment, see.

There is, however, very little conflict in the testimony of the passengers on the Vine-Norwood car, which, being open, afforded a better opportunity for accurate observation, and is in substance that the automobile in the attempt to pass in front of the Vine-Norwood car struck it near the front part, and that the collision with the defendant’s ear, if any, was almost instantly thereafter. There is of course testimony tending to sustain the charge of negligence; but the great weight of the evidence is against it.

The attempt of the driver of the automobile to pass in front ' of the Vine-Norwood ear was wholly unnecessary and so reckless that the motorman on defendant’s car could not reasonably anticipate that he would make such attempt.

The defendant offered in evidence an ordinance of the city of Cincinnati providing that vehicles shall keep to the right hand side of the street and near the curb, so as to give those moving at greater speed the use of the central part of the street. Why this ordinance was introduced by the defendant does not appear; but counsel for plaintiff seek to thereby excuse the chauffeur for his failure to pass the defendant’s car on the left hand side of the street. The proper observance of a city ordinance is in itself, of course, commendable; but we fail to see how the motorman could anticipate that, while the- chauffeur would duly obey the city ordinance, he would at the same time violate every rule of common sense, and thereby risk not only his own life but a score of other lives. The verdict of the jury appears to have been the result of sympathy with the plaintiff, or prejudice against the defendant, and ought not to stand. The judgment will therefore be reversed and the cause remanded for a new trial.