author: Washburn, J.

text:
    DETERMINATION AS TO WHO DIED FIRST IN A COMMON DISASTER.
    Court of Appeals for Cuyahoga County.
    Liberty B. Ware, Executor, v. Joseph Kinch et al.
    Decided, January, 1919.

      Victims of the Sinlcing of the Lusitana — Descent of Property Dependent on the Order of Death — No Presumption Arises m Such a Case —Burden of Proof Upon the Party Dependent on Survivorship — • Degree of Proof Necessary for Finding — All a Question of Evidence.

    1. Where in an action involving a determination as to which died first of two persons who perished in a common distaster at sea, the issue must rest on the evidence unaided by any presumption. If the evidence fails to establish a probability of survivorship', the party having the burden fails. Conflicting evidence necessitates a higher degree of proof than meagerness of evidence, but such as it is the evidence must give rise to something more than mere conjecture and rise to a degree of probability which will enable a fair minded man to come to a conclusion.
    2. Where the question as to which outlived the other lies between a . mother and her son, and the evidence is' to the effect that the mother was last seen in her state room of the sinking ship, and a few moments later the son was seen on the upper deck after the ‘ part of the vessel in which the mother’s room was located had sunk beneath the water, and there is no further testimony and no conflict, a court will conclude that the son outlived the mother and took under her will.

      L. B. Ware, for plaintiff.

      D. M. Bacler, contra.
   Washburn, J.

Appeal from the Court of Common Pleas.

Mrs. Eunice Kinch, in contemplation of a trip to England, executed her will on April 29th, 1915, and, together-with her son, William Mustoe Kinch, sailed on the Lusitania from New York about May 1st, 1915.

The Lusitania, while off the coast of Ireland, was torpedoed by a German submarine on May 7th, 1915, at a little after two o’clock p. m., and sank in about twenty minutes, and both Mrs. Kinch and her son perished in the disaster.

By the will of Sirs. Kinch she bequeathed live thousand dollars to Liberty B. Ware, as trustee for her said son, directing said trustee to invest said sum and pay the income, after deduction of expenses, to said son in annual installments until he arrived at the age of thirty-five years, and then to pay the principal to him.

Liberty B. Ware, who is also executor of the estate of Eunice Kinch, brought this action, requesting the direction of the court as to the disposition of said five thousand dollars, and also requesting the construction of another item of the will, which has been disposed of by agreement of the parties.

Liberty B. Ware, as trustee, filed an answer praying also for the instruction of the court as to said matters.

. William IT. Chapman is the administrator of the estate of said son, and by proper pleading is claiming that said son survived his mother, and that he, as said administrator, is entitled to said bequest.

Legatees under the residuary clause of said will of Eunice Kinch, claim that said son did not survive his mother, and that said .bequest lapsed and passed to them under the residuary clause of the will.

Other defendants, brothers and sisters of Eunice Kinch, filed answers claiming said bequest lapsed and that it did not pass to the residuary legatees, but became intestate property and should be distributed, one-half to them and one-half to the brother of the deceased husband of Eunice Kinch from whom she inherited the property, under General Code, Section 8574.

The record is largely made up of the testimony of survivors of said disaster, for it is recognized that if said son survived his mother, the estate vested and the bequest should go to his administrator.

As said son did not leave issue surviving his mother, the common law rule applies, and no estate vested in him unless he survivecl bis mother. It therefore follows that the burden of proving survivorship of the son is upon his administrator. We do not feel that the fact that this legacy was given to a trustee for the son changes the rule as to the burden of proof, for the trustee could not take a beneficial interest for the son unless the son was alive at the time of the death of his mother, and the foundation of the claim of the son’s administrator in this case is that the trustee took a beneficial interest for the son, which by his death passed to such administrator.

To state the proposition in another way: While there is no presumption that two persons who perish in a common disaster die at the same time, still if there is no evidence which establishes by the degree of proof required that one or the other died first, then the fact of survivorship can not be ascertained and the law is applied as if they both died at the same time. In other words, the impossibility of proving which died first, so far as the question of burden of proof is concerned, leads to the same conclusion as a presumption that they both died at the same time.

If the mother and son both died a't the same time, the administrator of the son has no interest in the funds in question, and if he has any such interest it is because the son survived the mother, therefore the burden of proving survivorship is upon the administrator.

On the question of survivorship, the party having the burden of proof is not aided by any presumption and has no presumption to overcome. It is purely a matter of evidence. If there is no evidence on the subject, or if the evidence does not establish a probability, the party having the burden fails. In cases where the evidence is conflicting or where the inferences to be deduced from different proven facts are conflicting, the degree of proof to sustain the burden is greater than where the uncertainty results from merely the inoagerness of the evidence. In the latter ease very slight evidence may be sufficient to sustain the burden of proof, for courts settle questions of fact upon probabilities rather than upon certainties, although mere possibilities will not sustain a legitimate inference of the existence of a fact. Cincinnati, H. & D. Railway Co. v. Fry, 80 O. S., 289; Davis v. Guarnieri, 45 O. S., 471.

If there is no evidence in this record beyond the fact that the mother and son perished in a common disaster, we can make no finding as to survivorship, but there is some evidence in the record on that subject, from which, it is claimed, the natural inference is that one probably survived the other. It was not an unknown calamity or one of instantaneous operation, nor yet one to which there were no surviving witnesses. It is clearly a ease to be determined by the evidence, although the conclusion we reach may not be a certainty, and there may remain some obscurity and doubt; still, if the evidence gives rise to not merely conjecture, but is such as creates a probability and leads a fair-minded man to a conclusion in which he can honestly say he is convinced, that is all that is required.

The evidence discloses that the Lusitania was a passenger vessel, slightly more than 750 feet long and about 88 feet in breadth, and that it had six decks for the accommodation of passengers, known as A, B, C, D, E and F; decks A, B and C. being farthest up from the water, were open decks, while there was no open promenade on decks D, E and F. Mrs. Kinch, who was forty-five years of age, occupied cabin D-92, and her son, twenty years old, occupied cabin D-90), both on D deck and close together, and both were second-class cabins. There were over 1,250 passengers in all and only approximately thirty-five per cent, of the passengers were saved.

The vessel was near the coast of Ireland. The day was clear, and the ocean calm. The torpedo struck the vessel on the starboard, or right-hand side, somewhat forward of midships, tearing a hole in her side, but the explosion was not loud and the officers of the boat acted for a time, at least, upon the theory that there was no immediate danger.of the vessel sinking, but very soon after the explosion — almost immediately — the vessel started to list to starboard and to sink by the bow, the stern raising somewhat, and she continued to sink in that manner, bow first and listing to the right, until she disappeared gradually and with comparative little or no suction, about twenty minutes after being torpedoed. Tbe listing 'of the vessel prevented use of the lifeboats on the port side, but a few boats were launched from the starboard side, some of which were overturned in the launching. Some passengers jumped into the water before, and just as the vessel went down, and many went down with the vessel. As has been said, Mrs. Kinch occupied cabin D-92 on D deck and her son occupied cabin D-90 on D deck. These cabins were in the stern of the boat, the end of tbe vessel last to go under water.

The testimony is conflicting as to when the water reached the part of D deck where these cabins were, but the evidence establishes that these cabins were under water an appreciable time before that part of A deck, which was above these cabins, was under water.

Mrs. Kinch was not seen after the torpedo struck, but there is in the record the testimony of a witness who was with the son at the time the torpedo struck, and who saw him on A deck, 28 feet above D deck, at the time the boat disappeared. He was on A deck on the part of the vessel last to go under the water.

If at that time his mother was in her cabin on D deck, it is certain that she perished before the son. The testimony as to her whereabouts, is as follows:

Arthur Gasden, a survivor, testified that he knew Mrs. Kinch; that he occupied cabin D-90 with the son, which was close to cabin D-92 occupied by Mrs. Kinch; and three times in his testimony he swears positively that Mrs. Kinch was in her cabin on D deck when the boat went down. How he knows that, does not appear from the evidence. His testimony was taken by deposition and was given in answer to interrogatories, and there were no cross-interrogatories or cross-examination. There is testimoney that it was the custom of Mrs. Kmch to take a nap after the noon-day meal, and that the son put in the time after the torpedo struck looking for his mother and did not find her. Mr. Gasden testifies that he was with the son on A deck at the time the torpedo struck, and that he and the son started to go to the cabins in question on D deck, and that when they got part way down between C and D decks they turned back on account of water being on D deck.

The testimony of other witnesses is such that if this trip was undertaken immediately after the torpedo struck, or at any time within a few moments before the vessel disappeared, the probabilities are that there was no water on D deck at that time, so that there was ample time for Mrs. Kinch to leave her cabin and go up higher on the boat. The testimony of Gasden is that he and the son turned back, and he secured a lifebelt from a cabin on C deck, and that they then separated, the son having said on the way down that he would try to get to and save his' mother; and that later on he met the son on A deck, and that he said-that lie had tried and could not find his mother; that this statement was made very shortly before the vessel disappeared, and while the son and the witness were on A deck, above D deck, that being the part of the vessel last to disappear under the water, and that the witness jumped into the water and last saw the son standing on said part of A deck just before the vessel disappeared. The testimony of this witness is not contradicted in any particular except that there was not water on D deck until shortly before the vessel disappeared.

There is testimony of other survivors who occupied cabins on D deck near Mrs. Kinch, who left their cabins after the torpedo struck and survived, and of course there is the possibility that Mrs. Kinch was some place else in the boat, or that she left her cabin and escaped to the top deck and either got into some of the lifeboats that were wrecked or went down with the boat, or that she jumped overboard before the final disappearance of the vessel, but the testimony is that the son was looking for her' and did not find her, and that Gasden, the witness, knew her and did not see her; that both of them were moving about in different parts of the ship and that she was not seen.

Gasden was in a position where he would likely know something about the whereabouts of Mrs. Kinch. He occupied a cabin with her son and in close proximity to her cabin. He knew of her habits and condition. He started with the son to her cabin. He knew that he did not see her any place, and he knew that the son was looking for. her and did not see her, and he testified positively that she was in her cabin. Cross-examination might have weakened or strengthened his statements, but we are of tbe opinion, considering all the facts and circumstances disclosed by the record, that the evidence preponderates in favor of the claim that the mother was in her cabin and that the son survived her.

It follows that a decree may be drawn directing the executor' to pay said bequest with interest from May 7, 1916, to William II. 'Chapman, administrator of said son, less general taxes on said bequest and less all unpaid costs in common pleas court and in this court in this action, and in ease No. 2208 in this court, which costs shall include a fee of $500 hereby allowed Liberty B. Ware.

Judgment accordingly. Case No. 2208 dismissed, no record.

Grant, J., and Dunlap, J., concur.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    FINANCIAL TRUST RELATIONSHIP BETWEEN HUSBAND AND WIFE.
    Court of Appeals for Tuscarawas County.
    Richard v. Parsons et al.
    Decided, August 18, 1916.

      Husband and Wife — Income of Wife Invested by Husband in Hill Own Name — Rules Governing the Engrafting of a Trust on Real Property and on Personalty — Presumption Where Possession is in the Husband.

    1. A trust engrafted on an absolute deed may be shown by parol evidence; but the declaration of such trust must be contemporaneous with the deed, and the evidence beyond a reasonable doubt as to the existence of the trust, and clear, certain and conclusive as to its terms and conditions.

      2. A different rule prevails as to a trust in personal property, and the owner thereof can impress it with a trust by means and acts that would be wholly insufficient to impress a trust upon the title to land.
    3. Whenever a husband acquires possession of the separate prop- < erty of his wife, whether with or without her consent, he must be deemed to hold it in trust for her benefit, in the absence of any direct evidence that she intended to make a gift of it to him.
    4. The mere possession of the separate property of the wife by the husband does not prove that the title has passed from the wife to him, and in such case it lies upon one who asserts it to be the' property of the 'husband to prove a transmission of the title, either by gift or contract for value.

      B. N. Wilkin and T. J. Bussell, for plaintiff.

      J. G. Patrick and J. P. Stephenson, for defendant Parsons.

      W. I. Kinsey, for administrator.
   Powell, J.

The plaintiff in this case is the widow of James A. D. Richards, late of this county, and is one of the legatees named in his will. The defendant Frances A. Parsons is the daughter of said decedent, and his only child, to whom he devised and bequeathed the entire residue of his estate after making a special provision in his will for the plaintiff, his widow. The defendant Kinsey is the administrator with the will annexed of said decedent, and files answer herein.

The plaintiff for a cause of action seeks to have a trust declared in her favor in the entire estate, real and personal, of which the said testator died seized; and in her amended petition, on which the case was tried, sets out in great detail the claims she makes with reference thereto, and describes the property, real and personal, to which she avers such trust attaches.

With the evidentiary matter set out in the amended petition eliminated, it presents but a single issue or question of fact for the adjudication of the court, and that issue is whether or not there was a financial trust relationship existing between the plaintiff and her said husband during almost the whole of their married life, and still existing at the time of his death, in which the said decedent was the trustee and the plaintiff was the beneficiary or cestui que trust. If this issue should be resolved in the affirmative, then there would arise other questions, incidental thereto, relating to the terms, conditions and extent of such trust, and the amount of all of the property to which such trust attaches.

Each of the defendants filed an answer in which certain admissions of fact are made as well as a general denial of all the other averments in the petition, the first defense being in legal effect a general denial of the material averments of the petition. For a second defense, the bar of the statute of limitations is interposed. A reply was filed by the plaintiff to each of said answers, denying some matters set out therein, and denying also that the action of plaintiff as set out in her amended petition is barred by the statute of limitations. Upon the issues thus joined the case was tried in the court of common pleas, resulting in a finding and judgment in that court for the plaintiff in the sum of $2,500. From this finding and judgment an appeal was taken to the court of appeals for this county, where the ease was sent to a referee with instructions to hear the testimony, have the same reduced to writing and report it together with his findings of fact and conclusions of law to this court for judgment. The referee, upon a hearing had 'by him, found in favor of the defendants, and found that no such trust relationship existed as was set out and alleged in the amended petition. The case is now before us on motion of the plaintiff to set aside the report of the referee, and for judgment on the testimony offered; and also on motion of defendants to confirm the report of the referee. " .

The record, in brief, discloses that shortly after the marriage of plaintiff and the said James A. D. Richards she studied medicine and was admitted to practice, and that she was a practicing physician for many years prior to the death of her said husband; that she acquired a large and lucrative practice from which she secured a good income; that a large amount of the money so earned by her was placed in a common or joint fund with the money of her husband, or was expended by her in the payment of household expenses.

Plaintiff’s claim is that there was an understanding or agreement between her and her husband that whatever property they had or acquired after she became a practicing physician was the joint property of both in equal shares, notwithstanding the title to the same was taken in the name of her husband. It is contended by her that, for reasons that appeared to her satisfactory, the title of all the real estate acquired, although paid for with their joint funds, was placed in -the name of her husband to avoid suits for .malpractice which might be brought by unscrupulous or designing patients, although it was understood and agreed between her and her husband, that she was the real owner of the one-half of all such property.

First, as to the real estate described in the petition, standing in the name of James A. D. Richards at the time of his death. It is held in Russell et al v. Bruer el al, 64 Ohio St., 1, that:

“A trust engrafted on an absolute deed may be shown by parol evidence; but the declaration of such trust must be contemporaneous with the deed, and the evidence beyond a reasonable doubt as to .the existence of the trust, and must be clear, certain, and conclusive as to its terms and conditions.” See, also, Boughman v. Boughman, 69 Ohio St., 273.

If this rule is applicable to the case under consideration, no trust would attach to any of the real estate described in the petition. The evidence in the case, which we have carefully examined, does not show any declaration of trust at the time any of the deeds w'ere made to the said James A. D. Richards, nor are the terms and conditions of any such trust shown by the evidence, nor is the evidence of the existence of a trust of that degree of certainty required by this rule. Neither does the record show any evidence of fraud on the part of said decedent in the purchase of any part of said real estate that would justify the finding by a court that said decedent was the agent or trustee of his wife in the procurement of such real estate; in other words, there was no direction on the part of the plaintiff that any money -which she acquired in her own right was given to her husband with instructions to invest the same in her name. S’o far as the prayer of the petition asks for a decree of a share of the real estate described therein, it will have to be denied because not sustained by such evidence as is required by law.

A different rule, however, prevails as to a trust in personal property, and the owner thereof can impress it with a trust by means and acts that would be wholly insufficient to impress a trust upon the title to land. (Bruer et al v. Johnson et al, 64 Ohio St., 7.) In Stickney v. Stickney, 131 U. S., 227, toy the Supreme Court of the United States, under the laws of the District of Columbia relating to the property rights of married women, which are practically the same as the statutes of this state relating to the same subject, it is said, at page 238:

“Whenever a husband acquires possession of the separate property of his wife, whether with or without her consent, he must be deemed to hold it in trust for her benefit, in the absence of any direct evidence that she intended to make a gift of it to him. * * * It is impossible for us to declare that the mere possession of “it toy the husband is proof that the title has passed from the wife to him. After it has been shown, * # * that the property accrued to the wife by descent from her father’s and brothers estates, the presumption necessarily is that it continued hers. In such case it lies upon one who asserts it to be the property of the husband to prove a transmission of the title, either by gift or contract for value. ’ ’

These rules apply to personal property, or to cases where the wife’s money has been turned over to the husband with directions to invest it in the wife’s name, tout which the husband has failed to do, or has invested in his own name. In such case the fraud of the husband in not following the directions of the wife is the basis of the trust. A familiar example of the latter class of cases is the case of Newton v. Taylor, 32 Ohio St., 399.

Money once 'earned by the wife for professional services, or otherwise acquired by her, as ¡between her and her husband, remains her separate property unless a gift be proved, or that the title has been transmitted from her to him by contract for value received. Bechtol v. Ewing. Admr., 89 Ohio St., 53.

This rule is in contravention of the rules of the common law. There is now no such thing known to the law of Ohio as a “reduction to possession” of the estate of the wife by the husband. Her individual property at marriage remains her property until disposed of by her toy gift or otherwise. The statutes have made this change. Such money of plaintiff as the proof shows went into the hands of her husband for his "own use and was invested by him in his own name, can be recovered by her. This relates especially to the principal sum. and not to her daily income otherwise used. Such parts of her daily income as she saw fit to use in the payment of household expenses without any agreement between her and her husband that the same should toe repaid, can not be recovered from her husband’s estate. (Courtright v. Courtright, 53 Ia., 57, and Darnaby v. Darnaby’s Assignee, 14 Bush [Ky.], 485.) And this is true even though it is statutory that “the husband is the head of the family” and “must support himself, his wife, and his minor children out of his property or by his labor.” Sections 7995 to 8004, General Code.

The question then comes, What do.es the record show in this case as to money or other personal property of the plaintiff ha\ - ing been advanced toy her to her deceased husband, and invested by him in real estate in his own name, or otherwise used by him ? The record shows that plaintiff for part of her married life had a bank account of her own created toy her out of her own separate means, and which she would have had the legal right to keep L. her own name, except in circumstances not shown to exist in this case. From this account she paid by cheeks for the benefit of her husband, or for property the title to which was taken in his name, the sum of $2,254.74. This money went into and became a part of his estate and should be accounted for by his estate to her. She should receive this amount and something more than this, for it seems clear to the court that this much and more was received by him from her. This is proved by a large number of diaries kept by him during his lifetime, in which were entered in large part the receipts of money by him from her. How much more the amount should be, the court can not say with exactness, for much of the testimony offered and many of the exhibits ar.e valueless as evidence; but we have concluded from the whole 'evidence that the sum of $2,500 is as nearly right as can be worked out from the testimony adduced. It follows from this that the finding of the referee that no trust relationship existed will be set aside and judgment given the plaintiff in the sum of $2,50)0, to be paid out of the assets of the estate of said decedent remaining unadministered in the hands of the defendant, Kinsey, as such administrator. The costs of this proceeding will be adjudged against the administrator, and the case will be remanded to the court of common pleas to carry this finding and judgment into execution.

Judgment for plaintiff.

Shields, J., and Houck, J., concur.


author: Metcalfe, J.

text:
    WAIVER OF VENDOR’S LIEN.
    Court of Appeals for Stark County.
    Raechal Rea Hart v. Chas B. Sala, Administrator of Frank B. Hart, Deceased.
    Decided, October Term, 1918.

      Vendor’s Lien — Attaches Where Other Security is Not Relied Upon — • But Acceptance of Distinct and Separate Security — Amounts to a Waiver of the Equitable Lien of the Vendor, When.

    Where the vendor of land who has taken a mortgage on the premises conveyed to secure the debt, also takes a cognovit note signed by the vendee and his wife in addition to the mortgage and after-wards cancels the mortgage of record, the taking of the cognovit note and release of mortgage show an unequivocal intention on his part not to rely on the land for security, and constitute a waiver of the vendor’s lien.

      Ammerman & Mills, for plaintiff.

      Isaac H. Taylor and William, Simpson, contra.
   Metcalfe, J.

The only question for determination in this case is, whether or not Hiram H. Hart has a vendor’s lien on certain lands which are described in the petition.

On the 23d day of November, 1913, Hiram H. Hart conveyed the land in question to his son Frank B. Hart for the consideration of two thousand dollars. On the same day Frank B.'Hart and his wife Raeehal Rae Hart executed to Hiram IT. Hart a mortgage on the premises conveyed for the entire amount of the purchase price, and at the same time Frank B. and Raeehal Rae Hart executed to Hiram IT. Hart two cognovit notes of one thousand dollars each.

The mortgage was duly recorded and on the 7th day of December, 1914, Hiram IT. Hart cancelled said mortgage by entering upon the margin of the record thereof a release in full.

Afterwards, Frank B. Hart died and soon after his death Hiram H. Hart began an action against Raeehal Rae Hart upon said cognovit note and obtained judgment against her for the entire amount thereof.

Under these circumstances does Hiram IT. Hart still retain a vendor’s lien? It is settled beyond controversy in Ohio that a lien exists in favor of the vendor of land, and that the taking of a mortgage upon the land is not a waiver of such lien. Anketell v. Converse, 17 O. S., 11; Boos v. Ewing, 17 O., 500; Edwards v. Edwards, 24 O. S. 402.

It is equally well settled that the taking of additional security, that is to say, securities other than the land in question, waives the lien. Williams v. Roberts, 5 O., 35; Schurlz v. Colvin, 55 O. S., 274; Mayhan v. Combs, 14 O. S., 428.

The diligence of counsel in the case has not been able to furnish us with any adjudication of the question here involved; that is, whether or not the cancellation of the mortgage by the vendor is a waiver of the lien. .

The doctrine that the taking of a mortgage by the vendor did not waive the lien was not determined in Ohio without a very vigorous protest on the part of one of the ablest judges who ever sat upon the Supreme bench.

In Boos v. Ewing, 17 O., 500, where the majority of the court held to that doctrine, Judge Hitchcock rendered a very vigorous dissenting opinion. On page 527 he uses this language:

“The extent to which this court has heretofore gone is to establish the principle that a vendor has a lien upon the land sold for his purchase money, provided he takes no'other security for its payment than the personal security of the vendee. But, if he has taken any other security, let it be real or personal, the security so taken must be relied upon — the implied lien is extinguished. The same principle of a rule prevails, as I understand, in all of the other states of the union where this implied lien is recognized. And it is a rule founded in reason, provided there is reason, in saying that a man can have an interest in land after having done all he could by absolute conveyance to divest himself of all interest.’5

In Brotvn v. Gillman, 4th Wheaton, 455, the court said:

“The equitable lien of the vendor of land for unpaid purchase money is waived by any act of the parties showing that the lien is not intended to be retained, as by taking separate security for the purchase money.”

In the same ease reported in 1st Mason, 212, Chief Justice Gibson of the Supreme Court of Pennsylvania says:

“In a careful examination of all the authorities I do not find a single case in which it has been held if the vendor takes a personal collateral security binding others as well as the vendee, as for instance, a bond or note with a security or endorser, or a collateral security by way of pledge or mortgage, that under such circumstances a lien exists upon the land itself.”

In Schurtz v. Colvin, 55 O. S., 274, it is unequivocally held that the vendor of land who takes a mortgage upon the premises, including in the same other lands of the vendee thereby waives his lien for the purchase money.

“A vendor’s lien is at least presumptively waived when he accepts any distinct and independent security for the purchase money, as for example, -- the note--- of the purchaser with personal security” * * * 39 Cyc. 1835.
“No lien for the purchase money upon a sale of real property will attach where the vendor takes from the vendee personal security for the payment of the consideration money.” Follet v. Reese, 20 O., 463.
“The vendor’s lien is lost where the vendor takes real or personal security for the payment of the purchase money.” Mayhan v. Combs, 14 O., 429.
“The vendor of land who makes a conveyance and takes notes with personal security for the purchase money does not retain a lien on the land for that purchase money.” Williams v. Roberts, 5 O., 36.

The doctrine of these eases seems to us to rest upon the proposition that where the vendor does some act which shows an unequivocal intention on his part not to rely upon the land to secure the payment of the purchase money he thereby waives the lien.

It seems to use clear that the taking of the cognovit note with the additional personal security of the name of Raechal Rae Hart thereon, followed by the act of the vendor in cancelling the mortgage upon record shows a clear intention on his part not to rely upon the land for security of his indebtedness.

We do not feel that the law relating to the maintenance of vendor’s liens should be extended any farther than it has already gone. To allow a vendor to retain a lien after he has taken a mortgage upon the premises is the law. But, to allow him to retain the lien, after he has deliberately canceled the mortgage upon the record and given notice to the world that he does not rely upon the land for security, or that his security is extinguished, is to allow him to play fast and loose with the rights of others and to hedge around him a legal protection when he has not seen fit to- protect himself.

We think that when Hiram IT. Hart took the personal security of Raechal Rea Hart and canceled the mortgage upon the record, he gave notice that he did not rely upon the land for security, and that he thereby waived his lien.

The judgment of the lower court is reversed.

Pollock, J., and Farr, J., concur.


author: AYilson, J. Hamilton, J.,

text:
    STREET CAR PASSENGER EJECTED BECAUSE OF MISTAKE IN HIS TRANSFER.
    Court of Appeals for Hamilton County.
    George S. Diehl v. The Cincinnati Traction Company.
    Decided, June 17, 1918.

      Degree of Gave Required of a Passenger — Wit}i Respect to the Correct Punching of a Transfer Issued to Him, — Effect of a Correct Gharge to the Jury Destroyed by a Subsequent Instruction.

    1. While a passenger on a street car should exercise ordinary care and prudence in receiving and making use of a transfer, he is not required to scrutinize it for the purpose of ascertaining whether or not the conductor has punched it correctly, particularly where the transfer itself contains no directions as to the proper method of punching.
    2. In an action for damages against a street railway company for ejecting a passenger from one of its cars because the transfer which he tendered was improperly punched, it is error, after giving a special charge at the request of the plaintiff which correctly stated the law with reference to the care required of a passenger in asking for and accepting a transfer, to destroy the force and effect of the instruction so given by a special charge given at the request of the defendant to the effect that in receiving, examining and using a transfer the passenger is bound to exercise such degree of care as ordinarily prudent persons are accustomed to exercise with regard to such a matter under similar circumstances, or in leaving to the jury to determine whether or not plaintiff used due care with reference to the proper marking of the transfer given him.

      Fulton (& Woost, for plaintiff in error.

      Wilby & Stewart, contra.
   AYilson, J.

This action was instituted below by George S'. Diehl against the Cincinnati Traction Company to recover damages for an alleged wrongful ejectment from one of defendant’s cars.

The evidence discloses the fact that the plaintiff became a passenger on a AUne-Clifton car, and when paying his fare he asked for and received a transfer slip to an East End car; that the conductor punched the date of expiration as 8:15 a. m., which was about the time the transfer was given plaintiff; that plaintiff left the Vine-Olifton ear at Fifth and Vine streets and went directly to Fourth and Vine street, where he boarded an East End car, and on presenting the transfer the conductor refused to accept it, stating that the time limit on the transfer had expired, and plaintiff, refusing to pay an additional fare, was. ejected from the car.

The action was one in tort. 'The act of the first conductor in erroneously punching the hour of issuing the transfer as the hour at which the transfer would expire was a wrongful act; and the act of the second conductor in refusing to accept the transfer and ejecting plaintiff from the car is a consequence of the first wrongful act for which the company became liable in tort. The conductors, being agents of the company, their acts were the acts of the company for which the company would be liable, if done in the scope of their agency.

The company undoubtedly has a right to make reasonable rules for the conduct of its business and to require its agents to strictly enforce them, but that will not absolve it from liability when one of its agents, in compliance with a rule of the company, erroneously ejects a passenger from the car. The authorities are uniform that when by the fault of an agent of the company a passenger is given a ticket imperfectly or erroneously stamped and is ejected from the ear or train by the conductor in pursuance of .the rules of the company, it is liable to him as for a tort.

On the last hearing of the cause below the court was asked by the plaintiff and did give the following special charge:

“A street car passenger who has paid his fare to the conductor of the car in which he has become a passenger, and who then requests of the conductor a proper transfer to another car in a connecting line for a continuous ride, to all of which he is entitled under the law, and who has received from such conductor a transfer slip to such a car, is not required by law to scrutinize such transfer-slip for the purpose of ascertaining whether or not a mistake has been made by the conductor in issuing the transfer-slip, but may assume that a proper transfer has been issued to him by the conductor, in the absence of any other fact or incident to suggest an inquiry.”

A verdict was returned for the defendant belo.w and judgment entered thereon.

Plaintiff is now prosecuting error to this court, and is complaining that while the court gave the special charge requested by plaintiff, he nevertheless gave a special charge requested by defendant, and also in his general charge used language which destroyed the force and effect of the special charge requested by plaintiff and given by the court. The special charge so requested by defendant below and given by the court is as follows:

‘1 In order to recover in this case, the plaintiff must have been without fault in receiving and making use of the transfer; and if you find that in receiving, examining and using the transfer plaintiff did not exercise such care as ordinarily prudent persons are accustomed to exercise concerning such a matter under the same or similar circumstances, then your verdict must be for the defendant.”

The court in its general charge instructed the jury (R., 78) that it was for the jury to decide—

“whether or not he (plaintiff) used due care himself in seeing that the transfer when received was properly marked.”

And again, the court stated (R., 79) that—

“It is the duty of a person receiving a transfer to use ordinary care in seeing that that transfer is properly marked.”

The court again charged the jury (R., 79) that—

‘1 If the plaintiff in the case used ordinary care in seeing that that transfer was properly punched, then it is the duty of the defendant company to accept such transfer.”

It will be seen that the court, in giving the sneeial charge requested by the defendant, and in his general charge, instructed the jury, in effect, that it was the duty of the plaintiff not only to examine the transfer slip, but also to scrutinize it for the purpose of ascertaining whether or not the conductor in issuing the transfer had made any mistake in marking or punching the same, and that if he had not used ordinary care in seeing that if* was properly punched, then their verdict must be for the defendant. .

Upon a former hearing of this cause in this court it was held that the court below had erred in refusing to give special charges requested by plaintiff below, one of which was the special charge hereinbefore set forth as given by the court below on the last trial of the cause. The. court at that time held that while the passenger should exercise ordinary care and prudence about the receiving and making use of a transfer, he was not required to scrutinize such transfer for the purpose of ascertaining whether or not the conductor had made a mistake in punching it, especially in view of the fact that the transfer itself contains no directions as to punching, in regard to time, which would enable the passenger to determine whether or not it was properly punched. In so holding the court followed a long line of decisions, among them: Memphis St. Ry. Co. v. Graves, 110 Tenn., 232; P., C., C. & St. L. Ry. Co. v. Reynolds. 55 O. S., 370; Ann Arbor Ry. Co. v. Amos, 85 O. S., 300; L. S. & M. S. Ry. Co. v. Mortal, 18 C. C., 562; Cleveland City Ry. Co. v. Conner, 74 O. S., 225.

The special charge requested by the plaintiff below and given by the court embodied the law of the case, and the court erred in modifying said charge by the giving of said special charge requested by the defendant, and in instructing the jury orally as he did in his general charge, thereby destroying the force and effect of plaintiff’s charge, and in addition thereto erroneously instructing the jury as to the law of the case.

Section 11447, General Code, provides that either party—

“may present written instructions to the court on matters of law and request them to be given to the jury, which instructions shall be given or refused by the court before argument to the jury is commenced.”

And it further provides, paragraph 7—

“A charge or instruction when so written or given, shall not be orally qualified, modified or in any manner explained to the jury by the court. ”

The courts of Ohio have repeatedly held that under and by virtue of said Section 11447, General Code (Section 5190, Revised Statutes), when written instructions are given, it is error for the court to orally modify or qualify them, as was done by the court below in this ease. Caldwell v. Brown, 9 C. C., 691; Cincinnati v. Lochner, 8 O. N. P., 436; Railway v. Conner, 6 C.C.(N.S.), 361; Rupp v. Shaffer, 21 C. C., 643; Railroad v. Stallman, 22 O. S., 1; Commissioners v. Swamson, 21 C.C.(N.S.), 489.

When two inconsistent charges are given, one of which is erroneous, and it is impossible to say which one the jury followed, the verdict should be set aside. Insurance Co. v. Purcell, 19 C. C., 135; Rapp v. Becker, 16 C. C. Dec., 321.

The court below further charged the jury as follows:

It is for you to decide whether or not the plaintiff was a passenger upon the Vine-Clifton car as alleged in his petition; whether he paid his fare; whether he asked for a transfer to the East End car; whether said transfer was given to him; * * * and whether he tendered said transfer, and whether it was refused.”

These facts were all admitted, either in the answer of defendant or in the opening statement of counsel for defendant, and therefore were facts not at issue in the ease and it was error on the part of the court to charge the jury that it was for the jury to decide whether or not those admitted facts were true.

The court is therefore of the opinion that the errors above stated were prejudicial to the rights of plaintiff below, and for that reason the court is constrained to. order that the judgment below be reversed and this cause be remanded to the court below for a new trial.

Jones, P. J., concurs.

Hamilton, J.,

dissenting.

I can not concur in the judgment of reversal. The special charge which was given for plaintiff was the law as laid down in the case of Railway Co. v. Conner, 74 O. S., 225, and the-special charge given at the request of the defendant is not inconsistent therewith. The court, both in the special charges and in the general charge, left the question of negligence to the jury, basing its instructions on the proposition that the degree of care required was the exercise of “such care as ordinarily prudent persons are accustomed to exercise concerning such a matter under the same or similar circumstances,” and the use of the term “examine,” in the court’s charge, with reference to the duty of plaintiff, is approved by the Supreme Court in the Conner case.

The majority opinion says:

“It will be seen that the court in giving the special charge requested by the defendant, and in his general charge, instructed the jury, in effect, that it was the duty of plaintiff not only to examine the transfer slip, but also to scrutinize it for the purpose of ascertaining whether or not the conductor in issuing the transfer had made any mistake in marking or punching the same. ’ ’

I am unable to see wherein the charges justify the use of the word “scrutinize.” To examine as a prudent person does not mean to scrutinize. To scrutinize means to examine or observe closely in detail; to investigate minutely. The law does not require the passenger to scrutinize his ticket and there is nothing in the charge to indicate to the jury that such is the law. The court may have gone farther in its charge in detailing that “ It is the duty of a person receiving a transfer to use ordinary care in seeing that that transfer is properly marked” than would be justified if this part of the charge stood alone, but taking it in connection with the whole charge, I do not think the jury were misled.

On the other ground of reversal as found by the majority of the court — that the trial court erred in charging on undisputed facts — I am inclined to agree with counsel for plaintiff in error rather than with the majority of the court. The plaintiff in error in his brief says: “This objection to the charge would not be sufficient, perhaps, to reverse the judgment, if it' stood alone. ’ ’ Finding no other ei’ror, I do not think this objection sufficient to justify a reversal.

I am therefore of the opinion that the case was fairly tried under the law and the judgment should be affirmed.


author: Richards, J.

text:
    VALIDITY OF SERVICE OF SUMMONS ON A VICE-PRESIDENT.
    Court of Appeals for Lucas County.
    Charles D. Towne v. National Machinery Co.

    Decided, December 11, 1917.

      Corporations — Quashing Summons Not a Final Ord&>'- — Second Vice-President Becomes Ipso Facto First Vice-President, When — Service on Vice-President Valid,, When — Service on Chief Officer in any County Effective in a Personal Injury Case.

    1. An order toy a court of common pleas quashing on motion a service of summons, is not a final order or judgment to which error can be prosecuted.
    2. On the death of the first vice-president of a corporation the second vice-president becomes ipso facto first vice-president and may take the place and perform the duties of the president in his absence.
    3. Where the president of an Ohio corporation is a non-resident of ¡the state and absent therefrom, service of summons on the corporation may be made, by virtue of the provisions of Sections 11272 and 11288, General Code, on the vice-president, such officer being a chief officer within the meaning of said sections.
    4. An action for personal injuries may be brought against an Ohio corporation in any county of the state in which service of summons can be made on a chief officer of the corporation.

      Kohn, Northup & McMcihon, for plaintiff in error.

      J. C. Boyer and McCauley é Weller, contra.

      Motion to require the Court of Appeals to certify its record in this ease overruled by the Supreme Court February 5, 1918.

   Richards, J.

The defendant is an Ohio corporation having its situs and manufacturing plant and principal office in the city of Tiffin, Seneca county, Ohio. The plaintiff brought an action against the defendant in the court of common pleas of Lucas county to recover damages for personal injuries claimed to have been suffered by him while employed in its plant in the city of Tiffin. It is stated in the brief of counsel for the defendant and is not disputed that the plaintiff was at the time of the commencement of his action a resident of the county of Seneca.

Upon the filing of the petition summons was issued to the sheriff of Lucas county, the return of the sheriff showing service by delivering personally a copy of the summons, with endorsements thereon, to Augusta Eohn, the vice-president and one of the chief officers of the National Machinery Co., the sheriff certifying that no other chief officer of said company could be found in Lucas county.

The defendant appearing for the purposes of the motion only, filed a motion in the court of common pleas to set aside the return of service of summons for two reasons: (1) Because Augusta Eohn upon whom service of summons was made as vice-president of the defendant and one of the chief officers of the defendant was not and is not a vice-president or chief officer of the company; and, (2) because a vice-president of a corporation is not a chief officer of such corporation. This motion was heard on evidence taken by the respective parties, and the court of common pleas, after hearing the evidence and the arguments of counsel, granted the motion and quashed the service of summons, to which decision error is prosecuted to this court.

On an examination of the record this court became convinced that the judgment quashing the service of summons was not a final order or judgment, basing its conclusion largely on the reasoning of the court in the ease of Tatum v. Geist, 40 Wash., 575, and the authorities therein cited. Thereupon the court of common pleas on application duly made entered a nunc pro tunc judgment dismissing the plaintiff’s petition as of the date of the quashing of the service of summons and adjudging that plaintiff pay the costs, and the record in this court has been corrected in accordance with such nunc pro tunc judgment.

The record now showing a final judgment, the question raised as to the sufficiency of the service of summons on Augusta Eohn as vice-president becomes a very important question of practice, the solution of which is to be reached by a construction, Sections 11272 and'11288, General Code, in connection with the evidence contained in the record.

It appears from this evidence that the officers of the National Machinery Co. were M. Frost, president; II. M. Reynolds, vice-president; Augusta Rohn, second vice-president; "William L. ITertzer, treasurer, and Earl R. Frost, secretary and manager, and that H. M. Reynolds who had been chosen as vice-president died before the filing of the petition in this case. Augusta Rohn was elected second vice-president on July 11,1911, and had been regularly re-elected as such vice-president each year up to and including January 16, 1917. It further appears that the president of the company, M. Frost, is and has been for many years a resident of Somerville, New Jersey, and. that Mr. Reynolds, the vice-president, was at the time of his death and had been for a number of years theretofore a resident of the state of New York. The president of the company, M. Frost, was at the time of the bringing of this action and the service- of the summons absent from the state of Ohio. Augusta Rohn was one of the largest stockholders of the company and had served for many years as a member of the board of directors and as a member of the executive committee or board of managers, and states in her affidavit which was introduced in evidence on the trial of the ease that she had never discharged any duties for said company as second vice-president, nor had she attempted so to do. She had come to the city of Toledo on July 11, 1917, upon some private business of her own and not upon any business connected with- that of the defendant company. While in the city on that day she was served with summons by the sheriff as already stated.

The code of regulations adopted by the company provides that the officers of the company shall consist of a president, a vice-president, a secretary and a treasurer, to be elected by the board of directors, and Section 33 of the code of regulations authorizes the board to elect or appoint such other officers as it may deem proper. Pursuant to the authorization contained in this section the board had for a number of years prior to the bringing of this action regularly elected Augusta Rohn as second vice-president. Section 43 of the code of regulations provides that in the absence or inability of the president to act the vice-president shall perform all the duties and may exercise any of the powers of the president subject to the control of the board.

A solution of the problem presented by this record as to the sufficiency of the service depends upon the answer to two questions :

First. Was Augusta Rohn at the time of the service vice-president of the company? and,

Second. If so, was the service on her as such vice-president a valid service within the provisions of the Ohio statute’s cited?

By virtue of the authority vested in the board of directors to elect or appoint such other officers as it deemed proper and their exercise of such authority, Augusta Rohn became legally second vice-president of the defendant company and filled that office for a number of years up to and including the time summons was served upon her in this action. On the death of the first vice president, Mr. Reynolds, which occurred in May, 1917, Mrs. Rohn became ipso facto first vice-president of the company and was such at the time of the service of summons upon her. It is said in argument that her election as second vice-president was merely by way of compliment and without the expectation of conferring any rights or duties on her. The record, however, does not show such to be the fact. We must therefore conclude that at the time of the service of summons she was in fact and in law the first vice-president of the National Machinery Co.

The first section cited, to-wit, Section 11272, General Code, fixes the venue in actions brought against corporations and authorizes the bringing of such actions in the county in which such corporation is situated or has its principal office or place of business, “or in any county in which a summons may be served upon the president, chairman or president of the board of directors or trustees or other chief officer.” The other section cited, to-wit, Section 11288, General Code, authorizes the service of summons “upon the president, mayor, chairman or president of the board of directors or trustees or other chief officer. ’ Within the language of these sections if Augusta Rohn, by reason of the permanent non-residence of the president and his absence from the state of Ohio, became the chief officer of the defendant company then service upon her was authorized by the statute.

We are well aware of the rule that the statutory method of service of summons on a corporation is mandatory and must be strictly followed, and it naturally follows that where the statute-designates a particular officer or person or class of persons on whom process shall be served, this requirement must be complied with in order to obtain jurisdiction. This rule is announced in various text books and in many adjudicated cases and admits of no uncertainty.

The general subject of service on the vice-president of a corporation is discussed in 3 Thompson, Corporations (2d Ed.), S'ection 3062, where the author uses the following language:

“The vice-president, as formerly shown, in the absence of the president, takes the .place and performs the duties of the president. It may be asserted as the rule, and is believed to be sound law, that where statutes authorize service of process on the president of a corporation, then in his absence or where he can not be found, service on the vice-president is sufficient and binding on the corporation. This is not a violation of the rule already stated, that one officer can not be substituted where the law ñames another. But in such case the law itself substitutes the vice-president for the president, and no such rule applies to any other officer.”

We note particularly the importance of the latter portion of the quotation that “no such rule applies to any other officer.” This exception undoubtedly occurs by reason of the fact that the vice-president has no functions to perform except in the ease of the absence, disability or death of the president, and that when the absence, disability or death of the president arises then his duties devolve upon the vice-president who thereby becomes for the time being chief officer of the company, and hence it results that this is not a substitution by the parties of one officer for another, but, as is said by the eminent author already quoted, the substitution is made by the law itself. Hence it is said in 2 Thompson, Corporations (2d Ed.), Section 1495, that in the absence of the president the vice-president is the chief officer of the corporation.

The identical question we are considering has been determined by several respectable authorities, among which is the case of Comet Consolidated Mining Co. v. Frost, 15 Colo., 310, under a statute which provided that service upon corporations’ should be made by delivering a copy of the summons to the president- or other head of the corporation, or to the secretary, cashier, treasurer or general agent thereof. While the phraseology of the statute is not literally the same as the Ohio statute, yet in substance and effect we construe it to be the same. Under that statute it was held that a service of summons upon the vice-president of the corporation was sufficient.

The question was also determined in the ease of Pond v. National Mortgage & Deb. Co., 6 Kans. App., 718. The Kansas statute under which this decision was reached appears to provide that service may be made upon the president, mayor, chairman of the board of directors, trustee, or other chief officer. In the course of the opinion the court say that, in the absence of the president of a corporation, it is the duty of the vice-president to act as president and at such times he is the chief officer of the corporation.

A like conclusion was reached by the federal court in Ball v. Warrington, 87 Fed., 695, where the same Kansas statute was under consideration.

The Supreme Court ,of Missouri has sustained the validity of service on a vice-president under a statute substantially identical with ours. See Youree v. Home Town Mut. Ins. Co., 180 Mo., 153.

Indeed, our attention has not been called to any authority holding that a service npon a vice-president is insufficient in cases where the president is absent, disabled or dead, where the 'statute authorizes service upon the president or other chief officer. Many authorities hold that where such service is authorized it is not allowable to make service upon a secretary or treasurer because that would be substituting one officer for another, and such substitution can not be made by the parties, the only substitution allowed being that of vice-president for the president where the duties of the president devolve upon the vice-president in case of the absence, disability or death of the president. Under such circumstances the vice-president becomes the chief officer of the corporation for the time being and is within the language of the statute.and service made on him is therefore valid.

Counsel for the defendant cite Karns v. State Bank & Trust Co., 31 Nev., 170, a decision of the Supreme Court of Nevada, where the statute authorizes a service on the “president or other head of the corporation, secretary, cashier or managing agent thereof.” The court in that case had under consideration the sufficiency of a service on an assistant cashier of a bank, and it was, of course, held that such service was invalid. In the course of the opinion the court say:

“There is good reason for holding that, in the absence of the president, he becomes superseded by the vice-president, who, in effect, becomes the president or head of the corporation, endowed with the functions of the president and subject to service as ‘the president or other head of the corporation.’ ”

Counsel for the defendant also rely on the case of Oklahoma Fire Ins. Co. v. Barter Asphalt Pav. Co., 34 Okla., 149, a decision of the Supreme Court of Oklahoma. In that state the service of a summons on a corporation may be had upon the president, mayor, chairman of the board of directors or trustees or other chief officer, and the court had only to determine as to the sufficiency of a service upon a director of the corporation other than the chairman of the board and, of course, reached the conclusion that such service was not authorized. To sustain the validity of service under such circumstances would be a substitution by the court of one officer for another.

A majority of the court are of opinion that under the evidence introduced in this case and by virtue of the authority of the sections of the General Code cited, service of summons on Augusta Rohn as vice-president of the defendant company was authorized and was a sufficient service.

The judgment will therefore be reversed and the case remanded to the court of 'common pleas for further proceedings.

Chittenden, J., concurs; Kinkade, J., dissents.


text:
    PUBLICATION OF LETTING OF CONTRACT TO IMPROVE ROAD.
    Court of Appeals for Mahoning County.
    State of Ohio, ex rel Boyd, a Tax-payer, v. Robert McMasters et al.
    Decided, June 7, 1918.

      Roads — Publication of Mode and Time for Advertising for Bids Mandatory■ — Meaning of the Words “for Two Consecutive Weeks”— Contract Rendered Invalid by the Giving of Less than Two Full Weeks’ Notice.

    1. A statute requiring the state highway commissioner, before letting a contract to -build an improved road to "advertise for bids for two consecutive weeks,” is mandatory and must be strictly complied with.
    2. The term “two consecutive weeks,” as used in such statute, means two full calendar weeks.

      Henderson, Nicholson, Anderson & Warnoch, for plaintiff in error.

      Paul Huxley, Prosecuting Attorney, contra.
   Metcalfe, J.

This action is brought -by a tax-payer against the commissioners of Mahoning and Columbiana counties, and the state highway commissioner to enjoin the construction of a proposed improved highway upon the county line between Mahoning and Columbiana counties.

It is claimed that the contract to build such road entered into by the commissioner of state highways, and the construction company is illegal for several reasons.

First, it is claimed that the advertisement for bids for the construction of the road was not published the length of time required by'statute (106 O. L., 634).

The section of said law was Section 199 of the original law and is now Section 120)6 of the General Code. The statute provides :

“Upon receipt of a certified copy of the rseolntions of county commissioners, or township trustees that such improvement be constructed under the provisions of this chapter. The state highway commissioner shall advertise for bids for two consecutive weeks in Two newspapers of general circulation, and of the two dominant political parties published in the county or counties in which the improvement or some part thereof is located, if there be any such papers published in said counties.”

That is all of the statute that applies to the questions here.

It appears from the agreed statement of'facts that an advertisement for bids to be received on the 19th day of May, 1916, was published in two newspapers of general circulation of the dominant political parties. The first publication in one of the papers was the 5th day of May. No question is made but that that publication was sufficient, but in the other paper the publication was made on the 6th day of May, falling one day short of two calendar weeks.

It is urged with a good deal of force that the statute does not contemplate the publication of such advertisement for two full calendar weeks, but merely two successive publications in two different weeks, and that if the advertisement is put in two different papers of the two leading political parties on two different occasions during two weeks, that that is a compliance with the "law.

It is with some reluctance that we have reached a different interpretation of the statute. The statute requires the publication to be made for two consecutive weeks, and we have come to the conclusion that it means two full calendar weeks from the date of its first publication.

The statute does not direct whether the publication shall be made in a daily paper or a weekly, but does require that the publication shall be made for two consecutive weeks. No one can doubt the legality of the notice if published in a daily paper, but would it be a publication for two consecutive weeks if the notice were published on the last day of one week and the first of the next? Surely that is not what the statute contemplates, but that would be the effect of the construction claimed.

In the ease of Finlayson v. Peterson, 33 L. R. A., 532, the court held:

“Under a statute requiring publication of notice of sale on foreclosure of mortage by advertisement to be/ made for sis successive weeks at least once in each week, the first publication must be made at least forty-two days before the sale or the foreclosure proceedings will be void. ’ ’

In the opinion the court says:

“The word ‘for’ in this statute means ‘throughout, or during the continuance of.’ Third Century Dictionary 2314, definition 15 of word ‘for.’ It is obvious that a notice of sale has not been published during the continuance of the week, when the -day of sale follows the day of publication at an interval of less than a week.”

We think that that is the sense in which the words “for two consecutive weeks” are used in this statute, that is to say, during the continuance of two successive weeks. See also Dever v. Cornwell, 86 N. W., 297.

We must therefore hold that the requirement of the statute is not complied with. What is the effect of such non-compliance with the statute? In McCloud v. City of Columbus, 54 O. S., 439, the court says:

“Where a municipal corporation acting under Chapter IY, Division YII of Title IX, R. S., improves a public street, the provisions of Section 2303, prescribing the mode and time of advertising for bids are mandatory, the compliance with which is a condition precedent to the power of the municipality to enter into a valid agreement in respect thereof. ’ ’

The terms of the statute before us for construction are very similar to the terms of the statute before the Supreme Court in McCloud v. Columbus, and in view of that decision we think that the requirements of Section 1206, General Code, are mandatory,' and a failure to comply with its terms renders the contract void.

Pollock, J., and Farr, J., concur.


text:
    MEASURE OF DAMAGES UNDER THE FEDERAL EMPLOYER’S LIABILITY ACT.
    Court of Appeals for Huron County.
    The New York, Chicago & St. Louis Railway Company v. Allen G. Aigler, Administrator of the Estate of Philip W. Hasselbach, Deceased.
    Decided, October 12, 1917.

      Negligence — Apportionment of, Under the Federal Employer’s Liability Act — Burden as to Contributory Negligence — Pecuniary Value of Care, Attention, Training and Advice of Parent — May be Assessed for Wrongful Death of Such Parent — Measure of Damages Where Decedent and His Wife toere Living Apart.

    1. In an action to recover damages for death by wrongful act, it is not error to charge the jury that they could take into consideration the care, attention, instruction, training, advice and guidance, if r.ny, which the evidence shows the decedent reasonably might have been expected to give his children during their minority, and include the pecuniary value thereof in the damages assessed, if any.
    2. Under the Federal Employers’ Liability Act, where the negligence of the decedent contributed directly to his own death, the damages are to be diminished in proportion to the amount of negligence attributable to him as compared with the combined negligence of both employer and employee.
    3. When the inference cf contributory negligence does not arise from evidence offered by the plaintiff, the burden rests on the defendant to show the same by a preponderance of the evidence, and it is not established by evidence which only “equals in weight that offered by the plaintiff.”
    4. Where, in an action to recover damages for death by wrongful act, a judgment of $16,500 has been rendered, and it appears from the evidence that the husband and wife had .been living apart and a divorce suit was pending and that he was not voluntarily contributing to the support of the family, and the jury was not instructed as to the effect of these facts, and the amount of the judgment appears to be greater than the pecuniary loss suffered when these facts are given due weight, the judgment will toe reversel unless the defendant in error will consent to a remittitur.

      G. P. & B. D. Wickham, for plaintiff in error.

      Allen G. Aigler, Jesse Vickery and Young & Young, contra.
   Richards, J.

This action was commenced for the purpose of recovering damages by reason of the death of Philip ~W. Hasselbach, who was an engineer in the employment of the defendant company and is claimed to have lost his life by reason of its negligence. The trial resulted in a verdict and judgment in favor of the plaintiff for $16,500, and it is insisted that this judgment should be reversed because of errors in the admission of evidence and in the charge of the court, and because the verdict is not sustained by sufficient evidence and the amount of damages awarded is excessive.

The decedent lost his life in a collision which occurred in Fort Wayne, Indiana, on the evening of February 23, 1916. On that occasion he was running an engine attached to a freight train east on the main track and had just come from the West Fort Wayne yards proceeding on his way toward Bellevue. In the easterly part of the city a switch track, known as the south track, connects with the main track, and on this south track, just before the collision, a passenger engine to which was attached a baggage car was proceeding slowly east, the rate of speed being not more than two or three miles an hour. On the rear platform of this baggage car was a red light. The freight' train attached to ITasselbach’s engine was going at a rate of speed which is said by witnesses for the plaintiff to have been eight to ten miles an hour, and by witnesses for the defendant to have been about twenty miles per hour. The railroad company used automatic block signals through its yards and along its tracks in the city of Fort Wayne, and these signals indicated that the freight train on the main track had the right-of-way. Under these circumstances the employees operating the passenger engine on the south track ran their engine far enough into the switch so that it fouled the main track. As it did so the employee, known as the pilot, who was on that engine, alighted and walked over to the main track for the purpose of throwing the switch so that the passenger engine might proceed onto the "main track. As he stepped onto the main track he discovered the approach of a train from the west, which was the freight train attached to the engine operated by Iiasselbach. He immediately flagged that train and gave warning to the employees on the passenger engine. Iiasselbach at once applied the emergency air' brakes, and the engineer on the passenger engine attempted to back his engine so as to get beyond the fouling point, but these efforts were not sufficient to prevent a collision, resulting in the death of Iiasselbach and also of .the engineer operating the passenger engine.

It is conceded that the defendant company and the decedent, Philip W. Iiasselbach, were at the time of the collision engaged in interstate commerce.

On -the trial of the ease the plaintiff introduced in evidence Rule 99 adopted by the company, providing, in substance, that when a train stops or is delayed under circumstances.in which it may be ovetaken by another train, the flagman must go back immediately with danger signals. This rule was received in evidence over the objection and exception of the company, the contention being that it had no application to the facts of this case. We are not able to see that this rule-was competent evidence in the trial of the case. The pilot immediately on alighting and getting onto the main track discovered the approach of the freight train from the west, so that it was impossible to comply with that rule if applicable, and the omission to comply with the rule, under these circumstances, was not the cause of the collision. The negligent act of the company consisted in fouling the main track with one of its engines while a freight train on that track, having the right-of-way, was approaching within a very short distance and too near to avoid a collision. The rule referred to could not be intended to apply to a case where an engine was stopped momentarily for the purpose only of throwing a switch to enable it to proceed. Oral evidence was offered on this same subject and received over the objection and exception of the railroad company. The rule and the oral evidence relating thereto were not competent evidence and shouH not have been received. It does not follow, however, that the reception of the evidence, while erroneous, was so prejudicial as-to require a reversal of the judgment. We are not able to see how either the rule or the oral evidence prejudiced the rights of the railroad company.- Whether the rules were obeyed or disobeyed, under the circumstances disclosed the collision would have happened, the proximate cause being, undoubtedly, the fact that the employees operating the passenger engine had driven the same so far that it fouled the main track, and without exercising ordinary care to see that no train was approaching, and while the signals indicated that the main track was clear for the freight train being drawn by Iiasselbach’s engine.

The facts shown by the record are not in very serious conflict and they establish the negligent conduct of the defendant company beyond question. It is urged that the decedent Hasselbach was guilty of contributory negligence in failing to observe and heed the red light on the rear of the baggage ear on the south track and in operating his train in violation of the rule set forth in exhibit number two. That rule requires that second-class and inferior trains and yard engines in either direction between West Fort Wayne yard and the east end of Oliver House, switch must move with great care, expecting to find passenger or switch 'engines occupying the main track, and will run at such speed that the train can be stopped where necessary. This latter rule was undoubtedly applicable to the train being drawn by ITasselbaeh’s engine. It will, not, however, do to interpret the rule so rigidly as to require that he should operate his engine so as to be able to instantly stop the same. The rule must have a reasonable construction in view of what is practicable in the ordinary conduct of a railroad. If the jury believed the testimony offered by the plaintiff as to the speed at which the freight train was proceeding, which was, according to witnesses called by the plaintiff, eight to ten miles an hour, they would be justified in finding that the engineer was not violating the rule. A majority of the court are of the opinion that even if the speed had been as shown by the evidence of the defendant’s witnesses, to-wit, twenty miles an hour, the jury would still have been justified-in finding, if they had seen fit to do so, that Hasselbach was not guilty of contributory negligence under all the facts shown in this case.

The main track at the place where the collision occurred is on a curve and there is some doubt whether the red light on the rear of the baggage car would be visible to Hasselbach. Even if he saw the same moving slowly eastward, he would have been justified in assuming, in view of the fact that his train had the right-of-way on the main track, that the employees operating the engine hauling the ear to which was attached the red light would not proceed so far as to interfere with the freight train. The existence of the red light, therefore, does not, in the judgment of the court, justify a finding of contributory negligence on the part of- Hasselbach.

Exception was taken to the action of the trial judge in charging the jury, at the request of the plaintiff, before argument that they could take into consideration the care, attention, instruction, training, advice and guidance, if any, which the evidence shows Hasselbach reasonably might have been expected to give his children during their minority, and include the pecuniary value thereof in the damages assessed, if any. We find no error of the court in giving that instruction. Training, advice and guidance may reasonably have a pecuniary value and may therefore be taken into consideration in determining the amount of damages to be awarded. Almost the identical language is used by Mr. - Justice McReynolds in delivering the opinion of the Supreme -Court of the United States in the case of N. & W. Ry. Co. v. Holbrook, Admx., 235 U. S., 625.

In charging the jury on the subject of comparative negligence the trial judge read the section of the féderal employer’s liability act governing this case and instructed them that contributory negligence, if found to exist, would not defeat or bar a recovery altogether, but that the damages should be diminished by the jury in proportion to the amount of negligence attributable to Hasselbach. This charge was in accordance with the rule fixed by the statute just mentioned, and is substantially in accordance with instructions approved in N. & W. Ry. Co. v. Earnest, 229 U. S., 114, Seaboard Air Line Railway v. Tilghman, 237 U. S., 499, and Illinois Central R. R. Co. v. Skaggs, 240 U. S., 66. The true rule is summarized in the following language in 18 Ruling Case Law, 829:

“Under the statute it is not a question of majority of negligence, but rather one of proportion; and the damages are to be diminished in proportion to the amount of negligence attributed to the negligent employee as compared with the combined negligence of him and the employer. Or, as has been said by the Supreme Court, the damages recoverable bear ‘the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both.”

In applying, however, the language used in the passage quoted from Ruling Case Law it must be remembered that the words “negligent employee” used therein refer to the employee who is injured or killed.

The trial judge instructed the jury on the subject of contributory negligence, that where the inference of contributory negligence did not arise from evidence offered by the plaintiff, the burden rested on the defendant to show the same by a preponderance of the evidence “or by evidence which equals in weight that offered by the plaintiff.” Under the circumstances stated the burden would rest on the defendant to establish contributory negligence by a preponderance of the evidence, and it would not "strictly be done by evidence which only equalled in weight that offered by the plaintiff. This error, however, could not in any sense be prejudicial to the railroad company.

We find no error in the charge to the prejudice of the defendant.

Counsel for the railroad company strenuously insist that the verdict of $16,500 rendered in this case is excessive and wholly unwarranted by the evidence. ' Clearly the plaintiff was not entitled to recover more than the pecuniary loss which was suffered ,by the next of kin consisting of the widow and two children, aged ten and seven. The trial judge was careful to instruct the jury to limit the damages awarded to this pecuniary loss.

Philip W. Iiasselbach was thirty-seven years of age and in good hea’lth, but had no means except what was derived from his earnings amounting to about $1,800 per year. He and his wife had separated some months before the fatal injury and had continued to live apart, and he had commenced an action to obtain a divorce from her.- During that separation he made no provision, so far as the record shows, for the support of his wife or children except that there was some money in bank which she used. No payments were made by him for the maintenance of his family after this separation until he was threatened with an application for the allowance of temporary alimony, and thereafter he paid fifty dollars per month as temporary alimony. The record justifies the inference that this divorce case was pending at the time of his death and that the separation still continued. This evidence creates a situation that is very important in determining the pecuniary loss suffered by the next of kin by reason of the death of Philip W. Iiasselbach. Certainly, with the litigation pending, it could not have been expected that he would pay more toward the support and maintenance of his family than should be required by the court, and they could not justly anticipate any larger sum than should be so fixed; whereas if the husband had continued to reside with his family and the relations were affectionate, they would undoubtedly have received greater pecuniary support and such considerate and parental advice and guidance as have pecuniary value. This unfortunate condition existing in the family was not called to the attention of the jury in the charge nor its bearings explained. We are forced to the conclusion, in view of the facts just recited, that the verdict is for a greater sum than represents the actual pecuniary loss sustained by the next of kin by reason of the death of Hasselbach. We find nothing in the record which would indicate that the result reached by the jury was based in any sense on passion or prejudice, but rather that they failed to take into consideration in assessing the pecuniary loss suffered by the next of kin, the domestic infelicity existing in the family and make due allowance therefor.

In view of this state of the record this court is of opinion that the verdict is excessive and that the defendant in error ought to be given an opportunity to remit from the verdict all in excess of the sum of twelve thousand dollars as of the date of the rendition of the verdict. "Were it not for the feature of the case just mentioned, the verdict and judgment as returned and rendered would be affirmed by unanimous vote of this court.

Counsel for defendant in error cite a number of cases where judgments for greater sums than that awarded in this ease have been sustained in actions brought to recover damages for death by wrongful act. An examination of those cases, however, discloses that they were not cases in which the comparative negligence doctrine was involved, nor were they cases in which there was a failure to take into consideration a class of evidence that would have tended to reduce the amount of damages awarded.

We have examined all the errors on which reliance is placed but find no others justifying separate mention.

If the defendant in error will consent to the remittitur as al-. ready stated, the' judgment will be modified accordingly and as so modified will be affirmed; otherwise it will be reversed and the cause remanded for new trial.

■Chittenden, J., and Kinkade, J., concur.


text:
    CHARGING A COUNCILMAN WITH RECEIVING MONEY TO INFLUENCE HIS VOTE.
    Court of Appeals for Mahoning County.
    William F. Mehlo v. State of Ohio.
    Decided, October 23, 1918.

      Criminal Law — Duplicity—Can Not he Based on the Connecting of Different Alleged Acts hy the Word “or,” When — Different Offenses Not Charged hy Alleging Different Acts Which are Component Acts of the Same Offense — Examination of Jurors on Their Voir Dire.

    1. An indictment which charges that the defendant, while acting as councilman of a municipal corporation, received money for the purpose of influencing his vote as such councilman with respect to, “An ordinance to' authorize the Workman’s Transit Co., a corporation, to operate automobile bus lines over and along the public streets of the city of Youngstown aforesaid, or as to a matter that might legally come before him, the said Wm. F. Mehlo as such officer, and the said city council of which said Wm. F. Mehlo was a member as aforesaid, to-wit: an ordinance regulating the use of the public streets and tborofares of said city of Youngstown aforesaid,” is not bad for duplicity.
    2. On the trial on an indictment charging the defendant, as member i>f the council of a municipal corporation, with bribery in receiving money to influence bis vote as councilman, it is not error to permit the prosecuting attorney to inquire of a prospective juror whether he was acquainted with the other members of the same council who were charged with the same offense.

      H. G. Bye and John Buffalo, for plaintiff.

      Paul Hausley, Prosecuting Attorney, contra.
   Metcalfe, J.

Tbe defendant in this case, Wm. F. Mehlo, was indicted by the grand jury of Mahoning county upon a charge of bribery in receiving money to influence his official action while acting as a member of the city council of the city of Youngstown, in respect to a matter involving his official duty as such councilman.

The indictment charges that he received money as such councilman to influence his official action with respect to—

“An. ordinance to authorise the Workman’s Transit Co., a corporation to operate automobile buss lines over and along the public streets of the city of Youngstown, aforesaid, or as to a matter that might legally come ‘before him, the said Wm. F. Mehlo as such officer, and the said city council of which said Wm. F. Mehlo was a member as aforesaid, to-wit, an ordinance regulating the use of the public streets and thoroughfares of said city of Youngstown aforesaid.”

It is objected to this- indictment that it is bad for duplicity in that it charges the commission of two distinct and separate offenses, or that by the use of the disjunctive “or” he is mislead to his prejudice in that he can not be informed by the indictment whether he is charged with being corruptly influenced with regard to the ordinance relating to the operation of automobile buss lines, or the ordinance regulating the use of the public streets of the city of Youngstown.

Bouvier’s Law Dictionary defines “duplicity” as, “The union of more than one cause of action in one count in a writ, or more than one defense in one plea, or more than a single breach in the replication.”

Does this indictment charge two distinct and separate offenses? We think not. The gist of the offense charged in receiving a bribe to influence the conduct of the defendant as a member of the city council of the city of Youngstown with regard to his vote upon certain ordinances then pending before the city council. What difference does it make whether he accepted accepted money to vote upon two propositions or upon one proposition, or if he accepted money with the understanding that he should vote for or against one or the other?

If it should be agreed between the councilman and the party seeking to influence him that he should vote in a certain way upon one or the other of two separate ordinances pending it before the council leaving it to him to determine upon which one he would so vote, the indicament would charge that he was influenced to vote upon one on the other proposition or’else it would not speak the truth.

It might be immaterial upon which one he voted corruptly, but, if he received money to influence his vote one or the other proposition he would receive it for the purpose of influencing his vote as a member of the council, and that is the' offense charged in the indictment.

In State v. Christmas, 8th S. C., 361, the defendant was indicted on a charge of entering a house in the daytime under a section of a statute of North Carolina making such an offense a burglary. The court held:

“In an indictment under said section, the entering of a house with ‘intent to commit a felony or other infamous crime therein,’ constitutes a gravamen of the charge, and' hence a bill charging an intent to steal the goods, chattels, and money of T. B. Layman, and also with intent to steal the goods, chattels, and money of Mrs. Anna W. Layman, did not charge two different offenses. ’ ’

In Ferrel v. State, 24th Atlantic, 723, the Supreme Court of New Jersey held:

“1. The joinder of two or more distinct offenses in one count of an indictment is faulty, but where the acts complained of are component parts of the same offense, the pleading is not obnoxious to the charge of duplicity.
“2. The mere fact that two distinct charges appear upon the fact of the indictment does not necessarily render it vicious. If the several acts set forth enter into and constitute the principal offense, there is no charge of duplicity.”

And, in Ohio v. Schultz, 96 O. S., 114, our own Supreme Court following the case of Hale v. State, 58 O. S., 676, held—

“An indictment that charges in the same count, both receiving and concealing property, knowing the same to have been stolen, is not bad for duplicity.”

¥e think the indictment in this case sufficiently advises the defendant of the real charge against him, and to use the words of the court in State v. Schultz:

‘ ‘ Our courts today are not looking with favor upon petty defects and technical flaws in indictments so long as they do not affect the substantial rights of the parties to the action.”

It is further urged in this case that the court erred to the prejudice of the defendant in permitting the prosecuting attor-

ney, upon the examination of the jurors on their voir dire to inquiré of the jurors whether they were acquainted with other members of the council of Youngstown who were under indictment charged with the same offense as the defendant. We think there was no error in this.

It is true, probably, that an examination along that line might be so conducted so as to be prejudicial, but, we think the state had a right to know whether or not á prospective juror was interested in other members of the council charged with the same offense. Such acquaintance or interest might have a tendency to influence him. The examination along that line was conducted with propriety, and we do no see how the defendant could have been prejudicted by it.

Many other interesting questions are presented in this record, but, we do not deem them of sufficient importance to warrant their publication.

Judgment affirmed.

Pollock, J., and Farr, J., concur.