text:
    NEGLIGENCE — RAILROADS.
    [Butler (1st) Circuit Court,
    April 27, 1912.]
    Smith, Swing and Jones, JJ.
    Ohio Traction Co. v. William H. Smith.
    Driver Required to Stop as well as Look and Listen when Looking and Listening are not Effective.
    A person, about to drive across a railway track, where the view of approaching cars or trains is obstructed, or the noise of his vehicle makes it necessary for him to stop in order that his ' looking and listening may be effective, is bound to stop, failure to do which constitutes contributory negligence.
    Error to common pleas court.

      W. C. Shepherd, Paxton, Warrington <& Seasongood, for plaintiff in error:
    Cited and commented upon by the following authorities: Pennsylvania Co. v. Morel, 40 Ohio St. 338; New York, C. & St. L. Éy. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130] ; Schweinfurth v. Pailway, 60 Ohio St. 215 [54 N. E. Rep. 89] ; Baltimore & O. By. v. McClellan, 69 Ohio St. 142 [68 N. E. Rep. 816] ; Marpham v. Traction Co. 26 Q. C. C. 253 (4 N. S. 257); Baltimore & O. By. v. Stewart, 31 O. C. C. 527 (12 N. S. 250), affirmed, no op., Stewart v. Bailway, 77 Ohio St. 603; Davis v. Bailway, 159 Fed. Rep. 10 [88 C. C. A. 488; 16 L. R. A. (N. S.) 424] ; Omslaer v. Traction Co. 168 Pa. St. 519 [32 Atl. Rep. 50; 47 Am. St. Rep. 901] ; Erie By. v. McCormick, 69 Ohio St. 45 [68 N. E. Rep. 571] ; Brown v. Traction Co. 76 Ohio St. 234. [81 N. E. Rep. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. Rep. 844].

      Stanley Shaffer, for defendant in error.
   SMITH, P. J.

Defendant in error in the trial court recovered a verdict and judgment thereon against plaintiff in error, for damages received by him in a collision between a traction car of plaintiff in error and a team of horses and wagon driven by himself, near Jones station in this county, on July 22, 1905. Various assignments of error are set forth in the petition in error, all of which the court has considered; but the one that is of importance in the case, if we are correct, is based upon the refusal of the trial court to instruct a verdict for plaintiff in error.

If the evidence discloses that defendant in error was guilty of contributory negligence, then error was committed by thej court in overruling said motion for an instructed verdict for plaintiff in error.

In the testimony of defendant in error as disclosed by the record, it appears that at the time of the accident he was about fifty-seven years of age; that he had lived in the neighborhood of Jones station more than fifty years. He had generally averaged once a week during all this time going to and from the station, and since the traction line had been built, which had been about four years prior to the accident, he had crossed the railroad track at the point of the accident once a week, and on the day in question had crossed it four of five times. He knew that the ear coming from Glendale to Hamilton passed Jones station at this point at ten minutes before each hour, and that this was the schedule time. He knew that his vision of the track toward Glendale as he approached the crossing was obstructed by houses and trees extending close to the track. He testifies that at some distance from the track, when at a bridge, he listened and looked for a ear coming in the direction from Glendale, this was at a distance of 233 feet from the railroad track. After passing this point he only looked whenever he could get a glimpse through the trees, but saw no car nor heard one; he drove an empty wagon upon a gravel road, the wagon itself making more or less noise. When he got up to the railroad track he looked and listened to see or hear whether a car was coming from the south, but did not stop, and notwithstanding his vision of the track south was obstructed, he drove his horses upon the track and when the fore feet of the horses were across the railroad the car struck the wagon and he was injured. He further states that, “he certainly would not stop, neither would he get off and look, for a man would not jump off and let his team stand and go and see.”

Under this statement of the occurrence ás related by defendant in error, was he guilty of contributory negligence in making the crossing?

The court is of the opinion from the above evidence as given by the defendant in error himself, that he did not take the reasonable, necessary precautions which the situation demanded. It is apparent he did not have a sufficient view of the track south, and whether the traveler upon the highway should stop, look and listen for approaching trains upon a crossing, depends upon the circumstances of the particular case under consideration. We believe in the present casé that defendant in error showed a lack of precaution and reasonable care, which had he exercised, would have prevented .the accident.

“The..fact that the view was obstructed did not excuse his .neglect to stop and listen; it made his neglect to do so greater.” Pennsylvania Co. v. Morel, 40 Ohio St. 338.

It was his duty to look and listen for an approaching car in a manner that would make the looking and listening effective, and if under the circumstances, such as are disclosed in his evidence, with the continuing noise of the wagon, and the obstruction of his vision, in order to listen, it was necessary fpr him to stop his team to make his listening effective, then it was his duty to stop. Baltimore & O. Ry. v. Stewart, 31 O. C. C. 527 (12 N. S. 250).

\ Counsel has urged upon us the application of the doctrine of the “last chance.” We do not think this doctrine can be so applied. There is no evidence tending to show that the motorman discovered or knew the imminence of a collision in time to avoid it by stopping his car.

Being guilty, therefore, of contributory negligence, defendant in error was not entitled to a verdict in his favor.

The judgment of the court below will be reversed and judgment should he entered in this court in favor of plaintiff in error, and the petition of defendant in error dismissed.

Swing and Jones, JJ., concur.


source: Caselaw Access Project

author: WILDMAN, J. Parker, J., Kinkade, J.,

license: Public Domain

text:
    CONSTITUTIONAL LAW — SCHOOLS.
    [Lucas (6th) Circuit Court,
    March 19, 1910.]
    Parker, Wildman. and Klnkade, JJ.

      Toledo (City) v. Charles A. Seiders et al.
    Gen. Code 7921 Unconstitutional.
    Gen. Code 7921, providing that -the administration of all .estates or funds transferred to any municipality for educational purposes shall be committed to the board of education, is unconstitutional as taking property without due process of law and as impairing the obligation of contracts in so far as it changes the plans and purpose of the terms of the original trust created by the donors and accepted by the municipal council. State v. Toledb, 26 O. C. C. 628, approved and followed. [Kinkade, X, dissents.]
    [Syllabus approved by the court.]
    .Appeal from Lucas common pleas court.

      Cornell Schreiber, city solicitor, and B. A. Hayes, for plaintiff.

      Lloyd T. Williams and C. A. Seiders, for defendants.

      Modified, no op., Seiders v. Toledo, 83 O. S. 495.

   WILDMAN, J.

This is an action instituted in the court of common pleas and appealed to this court to restrain the board of education of the school district which includes the city from interfering with the possession of certain property, known as the Manual Training School, on. land owned by the board of education and heretofore leased by it to the Toledo University. There are certain other minor issues involved which I will not stop to recite.

The case involves a more extended and elaborate discussion than almost any other case recently presented to us, and it would be interesting perhaps to review again to some extent the history of the trust originally given by Jessup W. Scott and others, for the endowment of what in its inception was called a University of Arts .and Trades. The attempted acts of the board of education are based mainly now upon Gen. Code 7921, which provides as follows: ,

“The custody, management and administration of any and all estates or funds, given or transferred in trust to any municipality for the promotion of education, and accepted by the council thereof, and any institution for the promotion of education heretofore or hereafter so founded, other than a university as defined in this chapter, shall be committed to, and exercised by, the board of education of the school district including such municipality. Such board of education shall be held the representative and trustee of such municipality in the management and control of such estates and funds so held in trust and in the administration of such institutions, excepting always funds and estates held by any municipality which are used to maintain a university as heretofore defined.”

In Gen. Code 7905 we find:

“A university supported in whole or in part by municipal taxation, is defined as an assemblage of colleges united, under one organization or management, affording instruction in the arts, sciences and the learned professions, and conferring degrees.”

The contention of counsel for the board of education is substantially that the1 institution now known as the Toledo University, the trustees of which, heretofore appointed by the mayor of the city, are asserting a right to the control of the property Involved in the trust, is excluded from this definition; that it is not an assemblage of colleges, such as Gen. Code 7905 describes, and consequently that the administration of the trust is committed by Gen. Code 7921 to the board of education. The principal contention upon the other side is. that the legislature had no power to take away from the municipality or the trustees appointed by the mayor of the municipality the control of this trust; in other words, that if Gen. Code 7921 is to be construed as claimed by counsel for the board of education, it is unconstitutional and invalid.

Questions involving the trust to which reference has been made, have been in litigation for many years, and have several times been brought to the attention of our court. There is one ease, that of the State v. Toledo, 26 O. C. C. 628 (5 N. S. 277), in which the question of the power of the legislature to take the control and management of these funds and this property from the trustees of the Toledo University and pass them over to the board of education, was considered and passed upon. But it is earnestly urged upon us by counsel for the board of education that the conclusions arrived at by the court in that case ought not to stand; that they were based upon some confusion in the minds of the members of the court as then constituted as to the relations of the original incorporated Toledo “University of Arts and Trades” to the “Toledo University,” so named;— some confusion perhaps as to any line of demarkation between the two. The syllabus of the case perhaps sufficiently expresses the judgment of the court as then held. The case, which presented the question of the constitutionality of Gen. Code 7921, was decided October 10, 1904. The syllabus is as follows:

“The legislature is without authority to take the entire control and management of the Toledo University, and its property, from the trustees appointed by the mayor, and pass it over to the city board of education.”

This ease is conclusive of the main question in contention »now before us, unless we depart from the view then arrived at. To my mind there is some confusion in a part of the phraseology used by Judge Haynes in the opinion as we find it reported, but when we read all the cases in which these various matters pertaining to this trust have been litigated in this court, it is hardly conceivable that its members have not been at all timas fully apprised of the history of this benefaction. They have had knowledge of the terms of the original grant, of the communications made to the city council by the persons interested in the corporation known as the Toledo University of Arts and Trades; of the resolutions of council; of the appointment of the ttustees by a mayor of the city of Toledo to take over the property; of the conveyance to the city and transfer of the powers and functions to the trustees of the Toledo University as agents of the municipality to carry out the purposes of the original donors; and finally they were apprised of this statute, the construction and validity of which are now under consideration.

In the conclusion at which we have arrived, perhaps we are not disposed to place precisely the same reliance as an authoritative adjudication of the whole matter upon the case of State v. Neff, 52 Ohio St. 375 [40 N. E. Rep. 720; 28 L. R. A. 409], as was placed upon it in the opinion of Judge Haynes; hut the circuit court in the Waldron case was not oblivious of the general current of authority in the United States touching benefactions of this kind, involving trusts for the endowment of institutions of learning of one character or another, the Girard Will case, the Dartmouth College case, and numerous other adjudications involving principles analogous to those considered and announced in these two great leading cases by the Supreme Court of the United States.

This case is one of much importance, and for that reason has drawn out from counsel the unusual research and ability of argument which invite a wider range of discussion on my part than perhaps it is wise to give to it. It is hardly worth while to review the history of the transactions. Reference may be made to that history so far as it is recounted in the earlier cases brought into this court an.d found reported, and I will merely cite them so that they may be read if necessary: State v. Toledo, 13-23 O. C. C. 327 (3 N. S. 468), (to which I may make a little further reference later); Waddick v. Merrill, 26 O. C. C. 437 (5 N. S. 103), and the case already cited, State v. Toledo, 26 O. C. C. 628 (5 N. S. 277).

We are not inclined to think that in the consideration of these issues, too much reliance should be placed upon the character and scope, either of the present Manual Training School as it has been constituted and conducted, or on the other hand upon the scope and character of what is known as the Toledo University as now organized, managed and conducted in the city of Toledo. To some extent these matters are interesting for such light as they may throw upon the intention of the original donors; but the ultimate execution of that intent is not to be prevented or interfered with by legislative enactment or judicial decree, simply because it has not yet been fully carried out. It is contended, however, by counsel for the board of education, that when the original donation was made by Jessup W. Scott and others, they had in contemplation only an institution such as that now known as the Manual Training School, such a one as has been conducted by the board of education in the'city of Toledo. We feel quite clear from an examination of the original instruments expressive of the purposes of the donors, from the term used and from the various circumstances in the case, that Jessup W. Scott and the others uniting with him had in contemplation something of a different character and wider scope than now comprised within the Manual Training School, as we call it. I will not take time to read all the original instrument, the first instrument, drawn in 1872, in which these donors expressed their will — in which they carefully stated what it was that they were trying to found. In its general title it was to be a university of “arts and trades,” but there were certain provisions in it indicative of the intent to found an institution for the education of men in various employments and arts. As I have it before me, I will read a part of it, emphasizing certain phraseology especially pertinent to our inquiry:

“The object of this trust is to establish an institution for the promotion of knowledge in the arts and trades and their related sciences by means of lectures and schools, by extensive collections of models and representative works of art; by geological and mineralogical or other cabinets and museums that relate to the mechanic arts, and whatever else will serve to furnish artists and artisans with the best facilities for a high culture in their profession; also to furnish instruction in the use of phonographic characters and to aid their introduction into more general use. Other branches of learning not included in the above specifications may become a part of the institution when endowed so as to be sustained without the use of the trust funds hereinafter provided. AÍ1 the advantages offered by this institution are to be free of cost to all pupils who have not the means to pay for the same, and all others are to pay such tuition and other fees as the trustees may require. The institution shall be open to pupils of both sexes alike.”

It would seem that a wide scope in the advancement of learning by instruction in this institution was contemplated, and that its purpose was to afford free instruction to all persons of whatever age who were without means to pay for their tuition, is expressed in terms. In the manual training schools conducted by boards of education in the state of Ohio under the law, no adults can, under our statutes, obtain free tuition. In a somewhat elaborate and long communication addressed to the city council .by some of the original incorporators of the University of Arts and Trades, including among them one or more of the original donors, the idea is expressed that such a university would be of inestimable' value to the city of Toledo in the same way in which various universities mentioned in the communication have been of advantage to cities of Europe and the United States where they have been conducted; universities which give instruction to adults, and indeed the word “ adults” is used in more than one place in this communication. It is possible that the scope of the manual training school also may not be bounded by the growth which it has already attained. It may, indeed, while sustained in part by this trust fund, not be bound by the limitations of the statutes as to the pupils who may obtain its benefits, because it is possible that under Gen. Code 7921 attempting to transfer the control -to the board of education, it is not contemplated by the legislature that there shall be any limitation upon the power of the board of education to carry out all the purposes of the original trust; in other words, a very liberal construction of Gen. Code 7921 would empower the board of education to establish such a University of Arts and Trades as was contemplated by the original donors, even to the extent of giving instruction in the arts of painting and sculpture and all other branches of learning, and affording it without cost to indigent pupils of whatever age. It is possible that the legislature intended'that the board of education should be made the trustees of the original benefaction and be empowered to carry out all the purposes of the original trust without any impairment thereof, even to the establishing of a university outside of the bounds of the school district represented by them. But there is nothing in the statute clearly indicating an intention of the legislature that any board of education may carry on such a university. That it was the intention of the original donors that a university might some day be established upon the tract of 160 acres of laud adjacent to the city of Toledo, and which seems to have been platted with some such purpose in view, as shown by the record before us, we think is indicated. It may be fairly drawn from the facts disclosed in the' record that the donors were not limiting the establishment of their university to the corporate bounds of the city of Toledo. Indeed, there is no statement in the original grant that the university shall be anywhere within Lucas county, and unless that idea is to be inferred from the name of the university and from the arguments held out to the municipality by the persons who signed the communication to which I have referred, we have no authority for assuming that the university was to be limited in its establishment to the city of Toledo.

Now, in consideration of Gen. Code 7921, and without further touching upon the question of the legislative power to change the control of the trust, it may be suggested that unless the board of education is given power by this section to establish such a university of arts and trades as was in the minds of the original donors, the effect of the legislation if carried out, woidd be to prohibit forever the consummation of the purposes of the original donors except insofar as they can be carried out within the limits of our statutes as to common schools. In other words, it never could be made a university as defined by the other section of the statute, Gen. Code 7905. It never could become an assemblage of colleges for the purposes stated in that definition, because that class of universities is expressly exeepted from the- operation of the section which confers the control upon the board of education. They are not to have any control of a university as defined by the act, and if the University of Arts and Trades is one which when it reaches its perfect development as contemplated by the. donors, would fairly come within that definition, then the statute either does not transfer the control of it to the board of education, or defeats the purpose of the trust.

No force is to be attached to the fact that in the summer following the passage of this act as amended to its present form the Toledo University began to enlarge its apparent scope by taking in a school of dentistry and other institutions, because the trustees could not after the enactment had been effected change the character of fheir university so as to bring it within the terms of the act. But the question may well be considered whether the legislature, in excepting universities, should not be held to consider those which are inchoate, those which have been partly formed and which are already carrying out some of their purposes with the intention of carrying out all, as well as to except those which had become perfected universities within the definition of the law. Otherwise, as L have said, we must construe this section as preventing the perfecting of an organization and establishment and conduct of a university which has already been started for the purpose of giving instructions in many other and higher branches of learning than those ordinarily considered in the Manual Training School.

The authorities both of text-writers and judicial adjudication are not uncommon touching questions of this character. I will not lengthen this opinion by reading from them. "We have had many cited, and we have found a number which were not mentioned in the briefs or oral arguments of counsel. I will cite certain authorities without further comment than the mere reference. Cooley, Const. Lim. (6 ed.) pages 289, 290, 291; Yarmouth v. North Yarmouth, 34 Me. 411 [56 Am. Dec. 667]; Gloucester School Fund (Tr.) v. Bradbury, 11 Me. 118 [26 Am. Dec. 515]; Dartmouth College (Tr.) v. Woodward, 17 U. S. (4 Wheat.) 518 [4 L. Ed. 629]; State v. Neff, 52 Ohio St. 375 [40 N. E. Rep. 720; 28 L. R. A. 409]; South Kenton Union Sunday Sch. v. Espy, 9 Circ. Dec. 695 (17 R. 524); Koblitz v. University, 11 Circ. Dec. 515 (21 R. 144); Society, Etc., v. New Haven, 21 U. S. (8 Wheat.) 464 [5 L. Ed. 662]; Allen v. McKeen, 1 Sumner 276 [1 Fed. Cas. 489]; Montpelier Academy v. George, 14 La. 395 [33 Am. Dec. 585]; University of Maryland v. Williams, 9 Gill & J. (Md.) 365 [31 Am. Dec. 72].

I will not take further time in discussion of the conclusion at which we have arrived, that we ought not to depart from the principle which was enunciated by our court in the Waldron case. Some doubt has remained with a part of this court as to the power of the original recipients of the grant, the trustees of the University of Arts and Trades, to delegate that trust to the municipality; but the attorneys upon both sides of the present controversy have conceded the legal title to be in the city and the control in the trustees of the Toledo University as agents of the city unless it is taken from them by this legislative enactment, Gen. Code 7921, so that we have not seen fit to consider particularly that phase of the question. There has-been such a recognition in these previous adjudications in our court of the title as having passed to the municipality and as to the validity of the appointment of the trustees of the Toledo University by the mayor, that it is perhaps no longer an open question. Our judgment is that the contentions made by the plaintiff should be sustained and the relief asked in the petition will be granted.

Parker, J.,

concurring.

As has been remarked by Judge Wildman, the principal question in this ease, as we regard it, and the question upon which the rights of the parties hinge, was involved and passed upon in the case of the State v. Toledo, 26 O. C. C. 628 (5 N. S. 277). I was a member of the court when that case was decided, and I know it received very careful consideration at the hands of the court, and all members of the court concurred in the decision. In the opinion there are certain expressions that sound like slips of the tongue, upon the part of Judge Haynes, who delivered the opinion, in uttering the names of the institutions named in the deed of donation, the articles of J incorporation and the statutes. I presume that the opinion was never submitted to him for correction or those little discrepancies might havi been eliminated. I concurred in that decision and I still believe it was correct, and therefore I concur in the judgment that has been announced.

In considering the question (which I do not deem a controlling question here), whether the Manual Training School now authorized by statute, fulfills all the desires and purposes of the donors, it must be borne in mind that it .is made clear by the record that their intent and purpose was to furnish instruction “supplementary” to that afforded by the public schools.

, ' I do not looh'upon this case as involving simply a question of whether the legislature may - choose other instruments than the so-called board of directors of the Toledo University to represent the city in th§ administration of this trust. I do not question the authority of the legislature in the matter of designating and changing the instruments to work out the will of the city in its capacity of trustee, but I regard this statute as going far beyond that; I regard it as a statute which deprives the city of the administration of this trust, totally and completely, and, deprives it of any vested interest it may have by ■virtue of the conveyance made to it,,, and also its further interest .by reason of the investment in the property involved of .funds of the city raised by municipal taxation. I believe that under the authorities, in its right of holding and administering trust property of this description and those recognizing and fa•voring its proprietary rights, the city has certain vested rights •and interests which it is incompetent for the legislature to táke ■away from it, without proper compensation and'due process of law," as is here attempted. Also that the effect of this statute is’ to impair the obligation of a contract entered ■ into between the city add' the trustees of the Toledo University of Arts and Trades,' in Consideration of which contract the conveyance of the property was made to the city, and upon which conveyance the city undertook, promised' and agreed to administer' this trust,' a"thing that it had thé right'and the poWer to do under .and by virtue of the statutes then in force.'

If by a sweeping statute of this'description the city" is deprived of this'property and is prevented'altogethér from taking ány part in, or doing anything about, the1 administration of the trust, that amounts in my opinion not only to depriving it of vested rights without due process 'of law'in'contravention 'of thd constitution, but it amounts to impairing1 the obligation of the contract entered into between the' original directors' and the" city, to' which I' have referred, which would’ also fee'in contravention of constitutional rights. , '

"" Much has been said here about' the inability of the Toledo University through its'board of trustees to administer this'trust in such a way as to accomplish fairly and reasonably the purposes intended by the donors. It is enough to say that .that question is not involved in this ease. This ease as it is presented to us presents a question of proprietary rights; it is a question of whether or not these lessees of this property have become now in effect, by force of this legislation, not only lessees but lessors, and practically owners and controllers of the property, so that they are not bound longer to regard the terms of the lease under which they entered into possession of the property and under which the school building was built and equipped and hitherto has been operated. Whether the directors of the Toledo University are exercising powers and functions that they have no right to exercise under this statute in the matter of gathering in various schools and colleges about the city and treating this bringing of the colleges together as the establishment of a university coming within the purview of Gen. Code 7905, or whether they are unable to carry out the project of the donors by reason of lack of funds, or whether indeed they contemplate any act that would amount to misadministration or' maladministration of the funds, is, in our opinion, not at all involved in the controversy presented to us. Should the university directors or the city undertake to do any of those things, there is a way by legal process to reach them and control them. In my judgment this statute, while it contains some language giving color to the idea that the board of education is simply a representative of the city in administering this trust — simply an agency, of the city — is, to the extent that it gives that color, a deception and a snare. • I does more. You cannot take away from a person or a corporation all of the control, all of the usufruct of property, without in effect taking from him or it the property. If this statute is to be -given effect, the matter is so completely turned over to the board of education as that the city cannot have a word to say in the future as to the management of this trust or these trust funds; not a word. It has started in to establish the Toledo University, so-called, and has undertaken to, and has in fact, put in operation what it calls one Branch thereof, which branch has developed into what we are in the. habit of calling the Manual Training School. But it has never declared its purpose to not, when able, establish and operate other branches; it has never, in other words, declared that the institution shall never grow beyond this single branch; that that shall be the end of its growth and development! But if this statute is given effect, then I take it that so far as the administration of this trust is concerned, no matter how valuable the property may become, no matter how much it may be added to by other donations, no matter how able the eity may become in the administering of this trust to enlarge the so-called university, and extend it, the city is by this statute rendered utterly helpless. If it should attempt to establish another branch of the university, the board of education might ignore such action, and indeed would have no authority to give any effect or to pay any attention to its action in 'the premises. Therefore it is that I regard this statute, when you get at the clear meaning of it, as being a statute which does not provide for another agency to administer this trust on behalf of the city of Toledo, but as a statute which transfers the whole trust and the whole property to the board of education, another public corporation, representing another and a different constituency, leaving the city of Toledo utterly helpless in the matter, and with nothing but the bare, naked, legal title in it. And considering it in that way, as a statute which practically takes the property away from the city and gives it to another corporation, it seems to me that it may just as well have given it to the board of education. of the city of Perrysburg or to Lucas county or to any other public corporate body. Regarding it in that way, it seems to me, as I have said, to impair the obligation of this contract with the representations of the donors and to deprive the city, without justification of due process of law, of vested rights. In my remarks, following the opinion by Judge Haynes, in the Waldron case, I attempted to point out how and why the school district almost (but not quite), coterminous with the city limits is an essentially different entity from the city, so much so that it cannot ever be said that the same electors are concerned or given ultimate control.

Kinkade, J.,

dissenting.

I find mySelf entirely unable to agree with my associates in. the conclusions reached in this ease. It would be idle, in the time at hand, to attempt to make a statement of this case. I think the statement of the case by counsel, together with the reading of the agreed statement of facts, occupied between an hour and a half and two hours, and occupied no more time than it should have occupied; and the opinion expressed by1 the majority of the court has occupied over an hour. So that 'it will Be apparent that if I made any attempt to state this case in detail there would be considerable said on the subject, If this court had many cases that had the facts and the history this case has, it would not need any other litigation brought in to keep it continually busy, and very busy.

This ease has had a very- great deal of attention from this court. I will content myself with simply stating briefly a few things. First, in my judgment, the donor, Mr. Scott, had no such notion in mind in using the term “University of Arts and Trades,” as the university that it is now contended exists in the city of Toledo. Second, I think the university as it is now contended exists in the .city of Toledo in no wise meets the requirements of the definition of a university, as laid down in the statute. I have no trouble at all in reaching the conclusion that the legislature had full and ample power to do all that it attempted to do in Gen. Code. 7915 and 7905, and it does not seem to me that they have disturbed any vested rights or have gone beyond the point that they might rightfully go.

I have no difficulty in concluding in this ease that this property is and should be, all of it, clearly within the control of the board of education of the city of Toledo, and I do not see that the city is denied the right to have anything to say about what should be done with this property in the future, when the board of education consists of members elected by the citizens of the city of Toledo, who may be changed at any timé.

I wish I had time to review this case. It would not enlighten counsel any. I will sum the whole matter up by saying this: I think the position taken in this case and the authorities cited to support the position by the counsel for the board of education and the counsel representing the Scott heirs, has not at all been met by the other side, and I agree entirely with the position taken by counsel representing the board of education and the Scott heirs in this Gase, and so thinking, of course, I cannot agree with the conclusion reached by the majority of the court.


author: SMITH, P. J.

text:
    CHARGE TO JURY.
    [Hamilton (1st) Circuit Court,
    August 3, 1912.]
    Smith, Swing and Jones, JJ.

      Cincinnati Traction Co. v. John Ruthman.
    Reading Pleadings to Jury Without Defining Issues Erroneous.
    Both parties to an action are entitled to a plain statement to the jury of the issues presented, together with a definite and unambiguous statement of the law as applicable to the case made by the proofs, and failure to give such a charge constitutes reversible error, as does also the reading of the pleadings to the jury without defining the issues.
    Error to common pleas court.

      Einkead & Rogers, for plaintiff in error.

      Thos. L. Michie and Frank Seinsheimer, for defendant in error:
    Cited and commented upon by the following authorities: Robison v. Gary, 28 Ohio St. 241;. New York, C. & St. L. Ry.. v. Eistler, 66 Ohio St. 326 [64 N. E. Rep. 130]; Enopke v. Insurance Co. 99 Wis. 291 [74 N. W. Rep. 795] ; Roberge v. Bonner, 185 N. Y. 265 [77 N. E. Rep. 1023] ; Cincinnati Trac. Co. v. Ruthman, 32 O. C. C. 353; Louisville Ry. v. Blaydes, 21 Ky. L. Rep. 668 [52 S. W. Rep. 960]; Laethem v. Railway, 100 Mich. 297 [58 N. W. Rep. 996] ; La Pontney v. Cartage Co. 116 Mich. 514 [74 N. W. Rep. 712]; Manor v. Railway, 118 Mich. 1 [76 N. W. Rep. 139]; Gutierrnez v. Railway, 45 S. W. Rep. 310 (Tex. Civ. App.); Joliet Ry. v. Rich, 96 111. App. 241; Bunyan v. Railway, 127 Mo. 13 [29 S. W. Rep. 842] ; San Antonio St. Ry. v. Mechler, 87 Tex. 628 [30 S. W. Rep. 899] ; Flewelling v.

      Bailway, 89 Me. 585 [36 Atl. Rep. 1.056] ; Citizens’ St. By. v. Lowe, 12 Ind. App. 47 [39 N. E. Rep.‘ 165] ; Columbus By. v. Bitter, 67 Ohio St. 53 [65 N. E. Rep. 613] ; Ohio & Ind. Torpedo Co. v. Fishburn, 61 Ohio St. 608 [56 N. E. Rep. 457; 76 Am. St. Rep. 437].

      Reversed, Ruthman v. Traction Co. 87 O. S. 000; 57 Bull. 471.

   SMITH, P. J.

It is error for the trial court to read the pleadings to the jury without defining the issues. Erie Ry. v. Lockwood, 28 Ohio St. 358.

It is also error for a court to charge the jury, “It is for you to determine from all the circumstances surrounding the parties at the time, whether there was this alleged negligence, and carelessness on the part of the defendant whereby, except for this negligence and carelessness, the collision would not have occurred. The defendant pleads that the accident, if it occurred, was due to the negligence and carelessness of the plaintiff,” without defining what “this negligence .and carelessness” is, as alleged in the petition, and particularly in not explaining to the jury what in law constitutes “negligence and carelessness. ’ ’

A charge to the jury should be a definite, plain and an unambiguous statement of the law as applicable to the ease made by the proofs. Parmlee v. Adolph, 28 Ohio St. 10.

It is also error for the court in charging the jury to propound to them certain questions, as for instance: “Was the plaintiff exercising due care, the care which an ordinarily prudent man would exhibit in driving his horse along Freeman avenue at the time and in the manner disclosed in the evidence?” and other similar questions pertaining to the evidence in the case without instructing the jury as to the effect thereof, should they find either affirmatively or negatively in respect to such questions or facts, and what the legal result thereof would be.

It is also error for the court in defining the burden of proof to instruct the jury that:

“By the burden of proof is meant that fair preponderance of the evidence which should be given to its merits and worth,. and not necessarily to the number of witnesses on either side.”

Counsel for defendant in error admits that the matters set out herein are erroneous but claims they are not prejudicial. In this we can not agree, as both parties to a suit are entitled to a plain and distinct statement of the issues in the case together with a lucid exposition of the law applicable to those issues and the proofs.

For the above reasons the judgment below is reversed.

Swing and Jones, JJ., concur.


author: KINKADE, J.

text:
    ASSESSMENTS — PENALTIES.
    [Lucas (6th) Circuit Court,
    February 11, 1910.]
    Parker, Wildman and Kinkade, JJ.
    State ex rel. Acklin v. Charles Sanzenbacher, Aud., et al.
    Assessments for Public Improvements not Subject to Delinquent Tax Penalty.
    Neither Gen. Code 2608 (R. S. 1053), providing for auditing a 15 per cent penalty upon delinquent land taxes, nor any other statute imposes such penalty upon unpaid assessments against real property for public improvements, and mandamus will lie to compel a county treasurer to accept assessments that are due without collecting a penalty thereon.
   KINKADE, J.

This is an action in mandamus brought in this court to require the county treasurer to accept the assessments that are due without collecting the penalty on the assessment. There is no occasion to review all of the statutes that were mentioned by counsel here in argument. We have gone over the situation very thoroughly, and we are satisfied there is no authority in the statutes of Ohio for affixing the 15 per cent on the assessments the same as it is fixed upon taxes. The statute, Gen. Code 2608 (E. S. 1053), provides that such penalty must be placed upon delinquent taxes; must be audited, I should say, ■on delinquent taxes. We find no statute so directing as to assessments, and for that reason we think the placing of it there is not warranted, and the relief prayed for here must be granted. We do not find any authority, I should have said, for the placing of any penalties on assessments such as are placed for taxes.

. Parker and Wildman, JJ., concur.


text:
    TRADE=MARKS AND TRADE NAMES.
    [Hamilton (1st) Circuit Court,
    May 13, 1911.]
    Smith, Swing and Jones, JJ.

      M. Werk Co. v. Ryan Soap Co.
    Failure to Show Deceit Upon Public by Imitation Charged Defeats Claim of Unfair Competition.
    Unfair competition is not established by proof of similarity in form, dimensions or general appearance, or where .the features imitated were those shared with the trade generally, and there is a failure to show that the public was deceived by the said imitation.
    Error to common pleas court.

      Hosea <& Knight, for plaintiff in error.

      Cogan & Williams, foP defendant in error.

       Affirmed, no op., Werk Co. v. Soap Co. 87 O. S. 000; 58 Bull. 116.

   SMITH, P. J.

Upon a careful- consideration of the evidence' together with the pleadings and the numerous authorities cited by counsel for plaintiff and defendant in error, the court is of the opinion that the judgment of the trial court is correct and that the same should be affirmed.

The claim of the plaintiff in error is, that for a long period of time prior to the filing of its petition herein for injunction it manufactured soap of a yellowish brown color with its name stamped thereon, and as its business increased it adopted and applied to the face of the soap of its manufacture a- tag of harder material and differing in color from the.soap,- impressed in the face of the bar, and caused it to be identified by this tag; and that the public generally have come to know and call for plaintiff’s goods as “Tag Soap,” and to further protect itself and the public, it devised a method of redeeming the said tags in the hands of the purchasers of its product. That by this means this tag soap has become familiar throughout the country for the good quality of the article manufactured by it and that the means of thus identifying its goods is the exclusive property of plaintiff.

That the defendants in error are the manufacturers of a soap called “White Home,” and for the purpose of obtaining an unfair advantage over plaintiff, placed upon the market and are still maintaining a soap closely resembling plaintiff’s products in color, form and size of cake, and containing on one side or face thereof a tag of hard material impressed in the bar in connection with letters sunken into the face in such a way as is calculated to deceive ah intending purchaser desiring to purchase tag soap, and that the defendant has adopted the method of redemption of its tags in the same manner as done by plaintiff, all of which acts, on the part of defendant, cause the public to regard defendant’s soap as tag soap, tending to the confusion of the trade and deception of the public, and that these acts on the part of the defendant constitute unfair competition in trade.

The answer of the defendant and the evidence discloses that the bars of soap of the plaintiff bear the words sunken in the face thereof “Werk Co. Soap, Cincinnati, Ohio,” and also a round metal tag which is sunken into the face of said bars near the lower right hand corner, and that the metal tag bears the words “Werk Soap”; that upon the face of the defendant’s soap there is sunken into the face of each, the words “Ryan’s White Home, Devise Pat. App’d For, ’ ’ together with a paper tag, square in shape, sunken into the face of the bar near its center, in such a position as to give the appearance of a diamond shape, blue in color, and with the words printed upon it together with a picture of a house “Save the Home,” “For Presents,” “Ryan Soap Co.”; that its bars are standard size and that the color of its soap is lighter than that of plaintiff’s.

Unfair competition is not established by proof of similarity in form, dimensions or general appearance alone. Where such similarity consists in construction, common to or characteristic of the article in question, and especially when it appears to result from an effort to comply with the physical requirements essential to commercial success and not to be designed to misrepresent the origin of such articles, the doctrine of unfair competition can not be successfully invoked to abridge the freedom of trade competition. Nims, Unfair Comp. Sec. 130, and eases cited.

It is not contended that the color of the soap, its shape, size, etc., can be exclusively appropriated, but that the unfair competition is in the use of the tag adopted by the defendant.

The evidence does not bear out the contention of plaintiff in error that the public were deceived by the use of this tag upon defendant’s soap, and indeed, we can not see from the appearance of the bars of soap themselves with the sunken words and tags, that anybody should be deceived thereby; that a seller might deceive, or that an occasional purchaser might be misled, is not sufficient. The evidence nowhere shows that the defendant company passed off or attempted to pass off upon the public the soap it manufactured as being the soap of plaintiff in error, and this is what constitutes unfair competition. 28 Am, & Eng. Enc. Law (2 ed.) 410.

And again to constitute unfair competition features imitated must be such as distinguish plaintiff’s goods from others; not such as he shares with the trade generally. Nims, Unfair Comp. Sec. 157.

We feel that under the. evidence the markings upon the soap are not at all similar or would tend to deceive any one seeking to purchase either one of the soaps in question; that the defendant company has not conducted its business or attempted to so conduct it as to pass off its goods for those of plaintiff, and that upon the entire case the equities are with the defendant in error and judgment will be affirmed.

Swing and Jones, JJ., concur.


author: PER CURIAM.

text:
    INTOXICATING LIQUORS.
    [Licking (5tb) Circuit Court,
    October Term, 1912.]
    Voorhees, Shields and Powell, JJ.
    Al. A. Gard v. State of Ohio.
    intoxication Under the Statute Contemplates Lack of Control of Faculties and Muscles of Locomotion Rather Than Flushed Face and Talkative Condition.
    The degree of intoxication contemplated by Gen. Code 13194 providing a penalty therefor is not established by proof of a flushed face, or the smell of liquor on the breath, or a disposition to talk freely or loudly, but refers rather to a condition in which control has been lost either of the faculties or the muscles of locomotion.
    [Syllabus approved by the court.]

      McDonald & Moore, for plaintiff in error.

      Boderic Jones, city solicitor, for defendant in error.
   PER CURIAM.

The plaintiff in error was arrested upon a charge of being found in a state of intoxication; and, upon a trial had before the mayor of the city of Newark, was convicted. The case is brought to this court for review of the judgment of the mayor upon such trial. There are various degrees of intoxication. The statute is that “whoever is found in a state of intoxication shall be fined five dollars.” The proof shows that the plaintiff, at the time of his arrest, had a flushed face; was talkative, taking loudly, and that his breath smelled of intoxicating liquors that could be detected three or four feet away. These are the only things that tended to show the truth of the complaint charged. We are of the opinion that the statute contemplates something different from what the proof shows; that while any sort of exhilaration from the use of intoxicating beverages might be termed “intoxication,” yet the statute contemplates that something more than is shown by the proof in this case should be included in the charge made. “Whoever is found in the state of intoxication” would, by implication, mean that the party accused had lost control to some extent either of his faculties or possibly of his muscles. Nash, Plead. & Prae. (5 ed.) Sec. 1719.

This court is of the opinion that the proof does not sustain the charge; that the judgment of the mayor is against the evidence, and against the weight of the evidence, and the same will be reversed and the prisoner discharged.


author: GIFFEN, J.

text:
    APPEARANCE — ERROR.
    [Hamilton (1st) Circuit Court,
    October 15, 1910.]
    Giffen, Smith and Swing, JJ.
    Louisa C. Wilson v. Louisa C. Wilson, Extrx., et al.
    Lack.of Unity of Interest Shown Defeats Voluntary Appearance of Codefendants In an Error Proceeding.
    Appearance under a petition in error is not affected by the voluntary appearance of codefendants, where a lack of unity of interest is shown by the hostility of the codefendants in requiring the defendant not served to defend against them, as well as against the plaintiff in error.
    Error to common pleas court.

      I. L. Huddle, for plaintiff in error.

      Stanley Matthews and E. H. Matthews, for defendant in error.
   GIFFEN, J.

The exceptions filed by Charlotte M. Bonnell in the probate court to the account of Louisa C. Wilson, executrix, were by that court overruled and upon appeal to the court of common pleas were in part sustained and in part overruled. To that part of the judgment sustaining the exception to the payment of $1,-649.11 to Louisa C. Wilson, error is prosecuted by her.

Charlotte M. Bonnell filed a motion in this court to strike the petition in error from the files upon the ground that no summons has been issued for her and no appearance entered, although more than four months have elapsed since the judgment was rendered.

It is claimed that her appearance was effected by the voluntary appearance of her eodefendants, Robert K. Wilson and Julia Irwin, because united in interest with her. -

Under the will of their father they were in law originally united as legatees; but this did not prevent them from after-wards severing their joint interest by one or more of them conveying their respective interests to their mother, the executrix.

There is nothing in the record directly showing any such disposition of the interest of Robert K Wilson and Julia R. Irwin, but their hostility toward their eodefendant, Charlotte M. Bonnell, is distinctly shown where they appear in the case while pending in the court of common pleas for the sole purpose of excepting, and do except to the decision of the court in favor of Charlotte M. Bonnell and against the executrix. In the ab-sense of any pleading showing the relation of the parties to the subject-matter of the suit this hostile act shows not only a want of unity in interest, but that Charlotte M. Bonnell will be required to defend the judgment of the common pleas court against her eodefendants as well as the plaintiff in error. They can not therefore be united in interest within the meaning of Gen. Code 11230, whereby the appearance of one effects the appearance of all. The motion to strike the petition in error from the files will be sustained in so far as it affects the defendant in error, Charlotte M. Bonnell.

Smith and Swing, JJ., concur.


text:
    DISORDERLY CONDUCT — MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    May 25, 1912.]
    Smith, Swing and Jones, JJ.

      In Re Opal Howard.
    Loitering Held- not a Punishable Offense.
    Municipal corporations have no authority delegated by Gen. Code 3616, 3664 to provide by ordinance for the arrest and punishment of those found loitering or .wandering about the streets.
    Error to the court of insolvency.

      Bernard G. Fox, for plaintiff in error.

      A. Lee Beatty, W. W. Hester and William Thorndyke, for defendant in error.

       Affirming Dunlap, In re, 57 Bull. 484.

   SMITH, P. J.

Under Gen. Code 3664 following Gen. Code 36l6 thereof, in which “All municipal corporations shall have the general powers mentioned in this chapter (Chap. 1, enumeration of powers), and council may provide by ordinance or resolution for the exercise and enforcement of them,” we find no power delegated to the city of Cincinnati to provide for the arrest and punishment of one “unlawfully found loitering about and wandering about the streets of the city of Cincinnati in the day time and the night time without any lawful means of support and without being able to give satisfactory account of himself.” ' . •

Under the above cited chapter and section the power to pass the ordinance in question in this case has not been delegated to the municipal corporation.

The conclusion of the court below was therefore correct, and the judgment is affirmed. .

Swing and Jones, JJ„, concur.


text:
    CHATTEL MORTGAGES — EVIDENCE.
    [Hamilton (1st) Circuit Court,
    July 20, 1912.]
    Smith, Swing and Jones, JJ.
    Agnes E. Tappehorn v. G. Henshaw & Sons Co.
    Agreement Between Husband and Wife to Transfer to Her Certain Furniture Competent in Suit to Foreclose Mortgage Subsequently Executed Thereon.
    An agreement between husband and wife, whereby he trans- ' ferred to her certain furniture, claimed under a chattel mortgage by him subsequently executed, is improperly excluded . in a suit to foreclose such mortgage.
    [Syllabus approved by the court.]
    Error to common pleas court.

      William Shepard and H. G. Busch, for plaintiff in error.

      E. B. Donohue and S. K. Henshaw, for defendants in error.
   SMITH, P. J.

It was error for the trial court to have excluded the agreement entered into between plaintiff in error and her husband, Frederick Tappehorn, relative to the settlement of their difficulties, and in which agreement the husband transferred to the plaintiff in error the furniture claimed under the chattel mortgage set up in the case.

The evidence shows that the furniture in question was sold and charged on the books of the G. Henshaw & Sons Company. to Frederick Tappehorn in September, 1911, at which time no security was given for the purchase price thereof.

On December 1, 1911, $200 was paid on account of the purchase price.

On January 11, 1912, the agreement mentioned above was executed by Mr. and Mrs. Tappehorn; on January 16, 1912, five days after the execution of the above agreement, Mr. Tappehorn signed a mortgage covering the furniture in question, running to the defendant in error company; while this mortgage bears date of January 8, yet it was not signed or delivered on that day, but upon January 16.

We think under the state of facts in this case that the court erred in rendering judgment in favor of defendant in error, as when Tappehorn undertook to mortgage the furniture to said company he had no title to the same, but had transferred .the goods to his wife. The antedating of the mortgage to the date of the agreement between the husband and wife, we think is quite significant.

Judgment reversed.

Swing and Jones, JJ., concur.


text:
    INFANTS — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    August 3, 1912.]
    Smith-, Swing and Jones, JJ.

      John C. Roth Packing Co. v. Julius Wainer, a Minor.
    Finding Boy of Twelve Years Free From Negligence not Reversible as Against Weight of Evidence or Contributory Negligence.
    A verdict in favor of a boy of twelve years for injuries, resulting from his being run down by a team of horses while he was riding a bicycle on a street, will not be set aside on conflicting testimony, as against the weight of evidence, or for contributory negligence, it appearing that the jury, considering his age, found him free from negligence.
    [Syllabus approved by the court.]

      Error to common pleas court.
    Julius Wainer, twelve years of age, was- riding a bicycle on Ninth, near Central avenue, Cincinnati, when he was run into by a three-horse team belonging to the ■ defendant below which was being driven rapidly around the corner. __ He was thrown under the horses, one of which kicked him on the right hip, fracturing one of the bones of the pelvis. The jury below rendered a verdict in his favor for $1,750.

      Denis F. Cash, for plaintiff in error.

      Max Levy, for defendant in error:
    Cited and commented upon by the following authorities: — ■ Jones, Evidence 212, 581; Hohly v. Sheely, 11 Circ. Dec. 678 (21 R. 484); Hampton v. Railway, 48 S. C. 120 [26 S. E. Rep. 238; 35 L. R. A. 815] ; Heffron Construction Co. v. Glass, 32 O; C. C. 754 (13 N. S. 555).

      Dismissed, no op., Roth Packing Co. v. Wainer, 87 O. S. 000; 57 Bull. 511.

   SMITH, P. J.

Under the conflicting evidence in the above causé this court can not say that the verdict and judgment rendered thereon are against the weight of the evidence, nor that defendant in error was guilty of contributory negligence.

The jury no doubt considered the age of the plaintiff below and found under all the circumstances that he, a boy of tender years, was free from negligence.

We do not think there was prejudicial error relative to the evidence concerning the X-Ray photographs, and the court was correct in overruling the motions of plaintiff in error for an instructed verdict.

As there is no error in the record the judgment is affirmed.

Swing and Jones, JJ., concur.


text:
    COURTS — CRIMINAL LAW.
    [Hamilton (1st) Circuit Court,
    August 3, 1912.]
    Smith, Swing and Jones, JJ.

      In Re George Hildebrand.
    Police Court Jurisdiction in Misdemeanors Limited to that of Justice of the Peace, Requires Jury Waiver for Final Judgment.
    A police court, being limited by Gen. Code 4577 to the same jurisdiction in misdemeanor cases as a justice of the peace, can not enter final judgment, without the intervention of a jury, against one charged with a misdemeanor, unless during the examination he has signed a waiver in writing of a jury in his case, as provided by Gen. Code 13511.
    Error to common pleas court.

      B. G. Fox, for plaintiff in error.

      Robert A. Black, for defendant in error.

      Affirming a similar holding in the case of Zacharow, In re, 57 Bull. 285.

   SMITH, P. J.

Gen. Code 4577, provides:

“The police court shall have jurisdiction of, and to hear, finally determine, and to impose the prescribed penalty for, any offense under any ordinance of the city and of any misdemeanor committed within the limits of the city, or within four miles thereof. The jurisdiction of such court to make inquiry in criminal cases shall be the same as that of a justice of the peace. Cases in which the accused is entitled to a jury trial, shall be so tried unless a jury be waived.”

Gen. Code 13511, provides as follows;

“When the accused is brought before the magistrate and there is no plea of guilty, he shall inquire into the complaint in the presence of such accused. If it appear that an offense has been committed and that there is probable cause to believe the accused guilty, he shall order him to enter into a recognizance, with good and sufficient surety, in such amount as he deems reasonable, for his appearance at the proper time and before the proper court; otherwise he shall discharge him from custody. If the offense charged is a misdemeanor and'the accused, in a writing subscribed by him and filed before or during the examination, waive a jury and submit to be tried by the magistrate, he '¡nay render final judgment.”

It is apparent from the above two sections that the jurisdiction of the police court in misdemeanors is the same as that of a justice of the peace.

Before a justice of the peace can render final judgment against one charged with a misdeameanor without the intervention of a jury, the one so charged must waive in writing, signed ■ by him, and filed before or during the examination, a jury, and submit to be tried by the justice.

In the record of the case before us, it does not affirmatively appear that at the trial of the cause a jury was waived in writing as required by law, and therefore the police court acting as the magistrate, and in so acting having only the jurisdiction conferred upon magistrates, had no power to enter final judgment committing the petitioner to prison. Being without jurisdiction his judgment was void.

The judgment of the court below is therefore affirmed.

Swing and Jones, JJ., concur.


text:
    DOWER — PARTITION.
    [Licking (5th) Circuit Court,
    October Term, 1912.]
    Voorhees, Shields and Powell, JJ.

      Charles Richards v. George Richards et al.
    Husbands and Wives of Tenants in Common Necessary Parties in Partition.
    The husbands and wives of cotenants have an inchoate contingent right of dower in the respective shares so held 'in common, and in an action to apart the lands it is necessary, in order to foreclose their rights, that such husbands and wives be made parties.
    Error to common pleas court.

      Kibler & Kibler, for plaintiff in error.

      Fitzgibbon <& Montgomery, for defendants in error.

      Reversed, no op., Richards v, Richards, 87 O. S. 000; 58 Bull. 116.

   PER CURIAM.

The plaintiff in error seeks to have the judgment of the court of common pleas, overruling a motion, reviewed, Richards v. Richards, 23 Dec. 312 (13 N. S. 153).

The action was for the partition of real estate. The plaintiff in the court below did not make the husbands and wives of such cotenants as were married parties to the proceeding. The defendant, Charles Richards, filed an answer in that proceeding, asking that the husbands and wives of such of the cotenants as were married should be made parties to the proceeding, which was done, and all of said parties were brought into the case. Partition was had.

The plaintiff in error asked to have the partition fee allowed by law apportioned between the attorneys for the plaintiff and the attorneys filing the answer for him, upon the theory that the husbands and wives of each of said cotenants as were married were not only proper but -necessary parties to the partition proceeding, in order to convey to the purchaser of the lands sold in such proceeding a good and perfect title.

The court of common pleas held that they were not such necessary parties, and that, for that reason, the services of the attorneys, in filing the answer and bringing in such parties, were not of any benefit to the cotenants, and overruled their motion. Thereupon error was prosecuted to such action of the court.

We are of the opinion, upon the' authorities cited, that the husbands and wives of cotenants have an inchoate, contingent right of dower in the respective shares of such cotenants; that, in order to shut off or foreclose their right in the premises, they ought to be made parties to a partition proceeding to apart the lands belonging to such cotenants; and that because such husbands and wives were made parties upon the application of the plaintiff in error, such attorneys as were employed by him rendered services which were of benefit to all of such cotenants.

We think the court erred in holding otherwise. If such services were for the benefit of all of such parties, the attorneys rendering them should be awarded a part of the fee allowed in such partition suit, according to the benefits of the services rendered.

This was so held in Leyman v. Leyman, 10 Circ. Dec. 806 (19 R. 654), in the third subdivision of the opinion by the court.

We also cite, in support of this holding, the case of Young v. Stone, 55 Ohio St. 125, 134 [45 N. E. Rep. 57].

The judgment of the court of common pleas will, therefore, be reversed; and the court coming now to render such judgment as the court below should have rendered, it is ordered and adjudged that a fee of $75, out of counsel fees taxed as heretofore ordered, be allowed to Kibler & Kibler as attorneys for the said plaintiff in error; that the costs of this proceeding in error be paid out of the residue of such sum in the hands of the sheriff, and that the balance be paid to the attorneys for the defendants in error. Exceptions are noted.


author: JONES, J.

text:
    AUTOMOBILES — MASTER AND SERVANT.
    [Hamilton (1st) Circuit Court,
    May, 1912.]
    Smith, Swing and Jones, JJ.

      White Oak Coal Co. v. Katherine Rivoux, Admrx.
    Whether Servant Was Acting Within Scope of His Employment a Question for the Jury in Action for Wrongful .Death.
    Whether the driver of the automobile which struck and killed the intestate, was acting at the time of the accident within the scope of his employment, or outside thereof in a personal enterprise, is a question for the jury; hence, a judgment avainst the owner of the machine will not be reversed on the weight of the evidence, in view of the testimony of'the driver that he was going on a personal errand at the time of the accident, where good reason is found in the record for disbelief of his evidence on the part of the jury.
    Error to common pleas court.
    The defendant in error recovered a judgment below for the death of her husband who was being struck, while standing on ' the sidewalk on Fourth Avenue, Cincinnati, by an automobile which left the street and mounted the sidewalk. The machine was being operated at the time of the accident by a young man in the employ of the White Oak Coal Co.

      Peck, Shaffer & Peck, for plaintiff in error.

      E or siman & Eorstman, for defendant in error.

      Reversed, no op., White Oak Coal Co. v. Rivoux, 87 O. S. 000; 58 Bull. 181

   JONES, J.

The plaintiff below having shown that the automobile was the property of defendant and that Tribbey, the driver, was in defendant’s employ, the burden was then placed upon defendant to show that at the time of accident Tribbey was acting outside the scope of his employment in a personal enterprise.

He testified that he was so acting and that he was inspecting the machine preparatory to going on a personal errand later in the day. Whether he was so engaged at the time was a question of fact properly left for determination to the jury. They were not bound to believe Tribbey’s statement and evidently did not. It was clearly shown that his evidence before the coroner was in conflict with his testimony at the trial, not only with reference to the circumstances of the accident but as to the nature of his employment and the duties devolving upon him.

In view of his conflicting statements the jury must have disregarded his testimony. The question as to whether he was manager at -the time, or in a position of superiority, is immaterial and not entitled to the consideration given it by counsel in the discussion of the case.

We can not say that the verdict was manifestly .against the weight of the evidence. After a careful reading of the record and the excellent briefs of counsel, we are of the opinion that the judgment should be affirmed. (Thompson, Negligence Secs. 613, 614, 615, 616). In Ohio the question is one for the jury. Lima Ry. v. Little, 67 Ohio St. 91.

Smith and Swing, JJ., concur.


author: SMITH, J.

text:
    WILLS.
    [Hamilton (1st) Circuit Court,
    January 21, 1911.]
    G-iffen, Smith, and Swing, JJ.

      Russel M. Wilder v. Frank H. Taylor et al.
    Influence of Deceased Husband’s Desire on Wife in Disposing of Property Devised by Him to Her not Undue Influence.
    Where a woman of fine character and delicate sensibilities executes a will, after long deliberation and the full knowledge of her children, in which contrary to her own strong desire to give the property received by her from her deceased husband to her children, she disposes of the property in accordance with a written request received from her husband, the influence so operating upon her will not be treated, in an action brought by a grandchild to set the will aside, as an undue or improper influence.
    Error to common pleas court.

      Joseph W. O’Hara, for plaintiff in error.

      Robert Bamsey and Joseph Wilby, for defendants in error.

      Reversed, no op., Wilder v. Taylor, 87 O. S. 000; 58 Bull. 60.

   SMITH, J.

As it is the policy of the law to secure to everyone the right to dispose of his property in accordance with his individual will, that influence alone is illegal which places the freedom of a testator’s will under some kind of restraint. If this be so, it follows that it matters not what may be the origin or character ■of any influence operating upon a testator, if it does not place ■him under any restraint. It would seem to follow, also, that it would be equally immaterial how an individual may have acquired an influence over a testator, unless such influence is exerted in a manner that tends to restrain a free exercise of his will in the disposition of his property. Monroe v. Barclay, 17 Ohio St. 302 [93 Am. Dec. 620].

A will that is invalid by reason of being made under restraint, lacks what has been called the essence of the act, “consent. ’ ’

Our statute provides “that the order of probate shall be ■prima facie evidence of the true attestation, execution and validity of the will or codicil.”

At the outset, therefore, it is incumbent upon the contestant to adduce evidence that outweighs this presumption before the defendant is called upon to present evidence on his own behalf to sustain the will. Hall v. Hall, 78 Ohio St. 415 (no op.).

What have we in the ease at bar ?

The evidence clearly shows that the testatrix was a woman of ■'strong character, highly intelligent and of very keen sensibilities. In making her will she conformed to the wishes of her deceased husband as expressed in a letter addressed to and found by her after his death. She also had the advice of her son in whom she had every confidence. She deliberated, counseled and advised concerning the making of her will for several years before its execution; and after its execution permitted it to remain as executed until her death, which was some years later.

There is no evidence that in any way tends to show that the will as executed by her was made under any restraint, or that it lacked the essence of the act “consent.” Indeed, she distinctly says in one of her letters to her son, dated November 23, 1910, that she is “glad it is finally done with, for I very much fear if I were making it now I should at least do just what I did, unwillingly,” which seems to indicate that she executed her will.“willingly,” and was satisfied with it.

She also has in her will the solemn declaration that the bequests in item No. 1 “are made with the knowledge of my children and in accordance with my husband’s desire that a portion of my estate should be so divided.”

Under the evidence, we firmly believe the testatrix intended to make, and willingly executed the will.in question; that instead of being under any restraint she acted’ freely, consistently and honestly. She did the most natural thing under the circumstances.

The evidence adduced at the trial not only does not overcome the presumption as to the validity of the will, but strengthens it to such a degree of certainty, that there is but one conclusion reached, to wit, that the will in question is the will of the testatrix.

There was no error in directing a verdict sustaining the same and the judgment is affirmed.

Giffen and Swing, JJ., concur.


author: SWING, J.

text:
    NEGLIGENCE — PARENT AND CHILD.
    [Hamilton (1st) Circuit Court,
    February 11, 1911.]
    Smith, Swing and Jones, JJ.

      Frederick Furste v. Henderson Lithographing Co.
    Father as Next Friend Recovering all Damages for injuries to Son cannot Recover for Loss of Services.
    A father as next friend having prosecuted an action for his minor son for recovery of all damages from injuries resulting to the said son on account of the alleged negligence of the defendant, including his loss of earning capacity during minority, cannot after the determination of that action prosecute another on his own. behalf for loss of services of the son during minority.
    Error to common pleas court.

      Littleford, James, Frost & Foster, for plaintiff in error.

      C. T>. Robertson, G. B. Wüby and Mitchell Willy, for defendant in error.

      Reversed, no op., Furste v. Lithographing Co. 87 O. S. 000; 58 Bull. 115.

   SWING, J.

An original action was prosecuted by S. Furste, by his father, Fredrich Furste, as next friend, in the United States court against defendant, and in that action judgment was rendered for the defendant.

The present action was prosecuted by Fredrich Furste, the father, for loss of services of the son during minority.

An answer was filed in which, after admitting certain statements, the negligence of defendant is denied, and further answering the defendant sets up the action in the United States court and claims the judgment in that court is a bar to the prosecution of this action.

Plaintiff filed a demurrer in which he divides defendant’s answer into three defenses, and these three defenses are no doubt intended to be designated by the numerals 1, 2, 3 on the margin of the answer, placed there, no doubt, after the answer was filed, as there is no statement in the answer that the defendant has the three separate defenses.

In our judgment there are only two defenses pleaded. The first defense denies negligence on the part of the defendant, and the second defense sets up the action in the United States court as a bar to the prosecution of this action. All that is said in the answer as to the suit in the United States court constitutes but one defense. The court below sustained the demurrer to the third defense and overruled the demurrer to the second defense. The plaintiff filed a demurrer dividing up defendant’s answer into three defenses. The result was that the court dismissed plaintiff’s petition, he not desiring to plead further.

The question as to whether counsel were in error in regarding defendant’s answer as setting up three separate defenses was not suggested to us in argument, and the case was argued on the theory that it did contain three separate defenses and that the demurrer to the second defense, which the. court overruled, raised only the question whether a party who. brings an action as next friend is barred from maintaining an action in his own right against the wrongdoer, founded on the one wrongful act.

We fully agree with the contention of the plaintiff in error that the one action is.not a bar to the other, for the simple reason that the parties are not the same. The next friend is not the real party in the action prosecuted by him as next friend. The infant is the real party. In the other action the former next friend is suing in his own right and the infant is not concerned, so that a recovery in one is not a bar to a recovery in the other. Burkham v. Cooper, 1 Circ. Dec. 371 (2 R. 77); Van Fleet, Former Adj. Sec. 555. No further authorities need be cited. We have found none to the contrary.

But the trouble in this case arises in the pleader dividing up the answer into defenses which we do not think exists. The part of the defendant’s answer called second defense does simply set out the action in the United States court and its determination, and says it is a bar to the present action: but the answer goes on to state that in that petition the father sued as next friend for all the loss occasioned by the accident, including whatever claim he may have had as father of the boy, and thereby relinquished to the son his right to recover for his loss of services. There was but one action in the United States court and its determination could constitute but one defense in this action.

Taking this view a somewhat different question is presented from that argued by plaintiff in error.

The question presented by the record, as we view it, is: Can the father, as next friend, bring an action for Ms minor son for injuries caused by the alleged negligence of the defendant, in which action he sues for all damages resulting to said son by reason of the accident, including his loss of earning capacity, during minority, and after the determination of this action maintain an action in his own behalf for the loss of the services of the son during minority?

Both on principle and authority we think this can not be done. Primarily the wages earned by the son belong to him, the father being responsible for his maintenance, the law gives him the right to take the earnings of the boy as a compensation, but be may waive tbis right, as most parents do, and permit the boy to collect and spend his earnings; and when the father brings an action for his minor son as next friend, and includes in the action loss of services of the boy during minority, it must be presumed that by so doing he has relinquished to the son whatever right the law gave him for such services. Baker v. Railway, 91 Mich. 298 [16 L. R. A. 154; 30 Am. St. Rep. 471].

The fact that the court below sustained the demurrer to the so-called third defense should not affect the judgment of this court. The judgment below dismissed the petition of the plaintiff, and according to our view of the rights of the parties on the whole record this was right, and therefore it is immaterial whether the court was in error in regarding the answer as containing three separate defenses and in sustaining the demurrer to the so-called third defense.

Judgment affirmed.

Smith and Jones, JJ., concur.


author: WINCH, J.

text:
    COVENANTS — DEEDS—STARE DECISIS.
    [Cuyahoga (8th) Circuit Court,
    December 2, 1912.]
    Marvin, Winch and Niman, JJ.
    Joseph Mathews v. Benjamin D. Sylvester, et al.
    1. Damages for Breach of Covenant of Warranty Cannot be Recovered Without Showing Eviction or Disturbance of Title Equivalent Thereto.
    An action for damages for breach of covenants of warranty contained in deeds under which one claims title to land cannot be mainrained against the predecessors in title of the immediate grantor, unless the plaintiff shows actual eviction or paramount title so asserted that he must yield to it, or go out.
    2. Rules of Property Should be Changed by the Legislature Rather Than the Courts.
    Rules of property which through many decisions have become fixed and known cannot be changed by the courts without impairing rights acquired under them. When new conditions require a modification of such rules of property, the legislature can make new rules which will have no retroactive effect.
    [Syllabus by the court.]
    Error to common pleas court.

      F. A. Beecher and E. E. Brooks, for plaintiff in error.

      Tanney & Barker, W. J. Wilson and Morgan & Litzler, for defendants in error.
   WINCH, J.

Plaintiff brought his action to recover for breach of covenants of warranty -contained in deeds under which he claims title to certain premises in the township of Middleburg, Cuyahoga county, Ohio. He did not sue his immediate grantor, but directed his a-ctio'n against the predecessors in title of his grantor.

The amended, petition sets forth the several conveyances in the chain of title, going back to the heirs of one John Philip Guiger, who died seized of said premises, and shows that a one-fourth interest in the land inherited by certain grandchildren of said Guiger had never been conveyed by them, although the subsequent grantees of the premises had conveyed the entire title with covenants of warranty.

It is further alleged that upon delivery of deed to him, plaintiff entered into- possession of the premises, and it appears that he remained in possession thereof until he later sold them.

Plaintiff alleges that the defect in his title being shown by an abstract, which he ordered when he desired to sell his property, he was compelled at great trouble and expense to procure the release and quitclaim of the grandchildren of Guiger, owners of said one-fourth interest in his farm, and the estate of said Guiger being imperfectly settled up because his executor failed to give notice of his appointment as such, he had to cure that defect at considerable expense; he further says that by -reason of these troubles with his title he had to and did sell the premises for $3,050, though they cost him $3,600. The difference of $550 he claims as damages resulting from the failure of the defendants to warrant his title as they had covenanted to do. He also claims $225 for abstract and attorney fees incurred in perfecting his title.

No eviction from the premises is pleaded. It is true that there is an allegation “that said defendants had not a good and sufficient title to said tract of land, and by reason thereof the said plaintiff was ousted and dispossessed of the same,” but this is argumentative and does not intend a-n actual eviction.

The issues being made up, the ease came on to be heard before a jury, when the defendants objected to the admission of any evidence under the petition, and the plaintiff asking leave to withdraw a juror and amend his petition, his counsel, upon inquiry by the court, stated that he could not truthfully plead any facts to show that he had been disturbed in his possession of the premises described in the petition by anybody, and that nobody had ever made any claim to the premises adverse to his interest therein. In his opening statement to the jury, plaintiff’s counsel had stated that on discovering the defects in his title, he had asked the Guiger heirs who owned the outstanding interest in his property to give him quitclaim deeds thereof, and they had all voluntarily given him such deeds.

Thereupon the trial judge overruled plaintiff’s application for leave to' amend his petition, and directed the jury to return a verdict for the defendants, which was done.

■The errors complained of in this court require an inquiry into the nature of the action for breach of covenant of warranty.

The rule is laid down in King v. Kerr, 5 Ohio 155 [22 Am. Dec. 777], that a covenant of warranty “is not broken until the grantee, his heir or assignee, is evicted from or disturbed in the enjoyment of the premises, or a part of them, by the setting up of a superior or paramount title” and is sustained by Bricker v. Bricker, 11 Ohio St. 240; Hill v. Butler, 6 Ohio St. 207; Picket v. Picket, 6 Ohio St. 525; Johnson v. Nyce, 17 Ohio 66 [49 Am. Dec. 444]; Gest v. Kenner, 12 Dec. Re. 343 (2 Han. 87); Foote v. Burnet, 10 Ohio 317 [36 Am. Dec. 90]; Tuite v. Miller, 10 Ohio 382; Innes v. Agnew, 1 Ohio 386; Day v. Brown, 2 Ohio 345; Stow v. Gilbert, 4 Dec. Re. 252 (1 Clev. L. Rep. 172). Judge Shauck in Peoples’ Sav. Bank Co. v. Parisette, 68 Ohio St. 450 [67 N. E. Rep. 896; 96 Am. St. Rep. 672], after quoting the above adds “to which may be added the qualification that the covenant may be broken by any disturbance of possession which is equivalent to an eviction.”

In the case of Lane v. Fury, 31 Ohio St. 574, 578, Judge Obey, who wrote the opinion, appears to admit that the court was going somewhat further in sustaining such actions than it had found it necessary to go theretofore, but all that is said in the case is: “If the paramount title is so asserted that the grantee must yield to it or go out," he may purchase of the true owner, and this- is an eviction which will constitute a breach of such covenant. Nor is it necessary that the paramount title be actually established by judgment or decree. What the law requires is that it be distinctly recognized.”

In the case at bar, the outstanding title, which was a cloud on plaintiff's title, was never asserted against him. The owners of it voluntarily released all their rights to plaintiff, upon his request therefor. He never recognized their rights, nor yielded to them, nor was he even threatened with an. eviction-, or proceedings of any kind, by them.

It follows that the .trial judge properly sustained an objection to the introduction of evidence under the petition, because it did not state facts sufficient to constitute a cause of action, under the law of Ohio, and he abused no discretion in refusing permission to amend the petition for, cm- the statement of counsel for plaintiff, it plainly appeared that he would never be able to file a petition good in law, because he could never truthfully plead an. eviction from the premises.

If the result here may seem hard to the plaintiff' in error, he must remember that the trial court, as well as this court, is constrained to apply those rules of property which through many decisions have become fixed and known.

As said in the first volume of the published reports of this state, Kerr v. Mack, 1 Ohio 161, and repeated in the first volume after the adoption of the constitution of 1851, White v. Denman, 1 Ohio St. 111, “the certainty of a rule is often more important than the reason of it.”

It is better that eases be decided according to fixed and well-known rules than according to the conscience of the individual judge which tells him what is right or wrong in the particular case.

When the wholesome doctrine of stare decisis has kept the law unchanged too long, while civilization has progressed and outstript it, it is in the power of the legislative branch of the government to amend the law without impairing rights acquired under it. It is not for the courts to 'legislate.

Judgment affirmed.

Marvin and Niman, JJ., concur.


text:
    ATTACHMENT — NOTARY PUBLIC.
    [Cuyahoga (8th) Circuit Court,
    December 2, 1912.]
    Marvin, Winch and Niman, JJ.
    Rhinelander Paper Co. v. Pittsburgh & Ohio Mining Co.
    Notary Public, a Clerk in Firm of Attorneys for Attaching Creditors, not Disqualified From Having Affidavit Sworn to Before Him.
    A notary public, employed as a clerk on salary in the office ot attorneys for attaching creditors, not a relative or attorney of either party and having no immediate interest in the controversy, is not disqualified, within the meaning of Gen. Code 11524, 11532, from having an affidavit in attachment sworn to before him.
    [Syllabus approved by the court:]
    Error to common pleas court.

      Sterns, Chamberlain & Roy on, for plaintiff in error:
    Cited and commented upon by the following authorities:— Ward v. Ward, 10 Circ. Dec. 656 (20 R. 136); Leavitt v. Rosenberg, 83 Ohio St. 230 [93 N. E. Rep. 904] ; Sliaw v. Lindsay, 15 Yes. 380; Newton v. Foot, 2 Dick. 793; Cook v. Wilson, 4 Madd. 380; Beck v. Bethlehem, 2 Pa. Co. Ct. 511; Dodd v. Northrup, 37 Conn. 216; Call v. Pike, 66 Me. 350; Hacker v. United States, 37 Ct. Cl. 86 (U. S.); Weeks, Depositions 283; Blum v. Jones, 86 Tex. 492 [25 S. W. Rep: 694]; Beam v. Quimby, 5 N. H. 94; Wilkowski v. Halle, 37 Ga. 678 [95 Am. Dec. 374]; Glanton v. Briggs, 5 Ga. 424; Payne v. Briggs, 8 Neb. 75; Massachusetts Mut. Acc. Assn. v. Dudley, 15 App. D. C. 472; Bryant v. Ingraham, 16 Ala. 116; Tillinghast v. Walton, 5 Ga. 335.

      M. B. & H. H. Johnson, for defendant in error:
    Right of notary in office of but not attorney for affiant to take oath in affidavit for attachment. 2 Cyc. 12; Lopes y.

      DeTasket, 4 Moore C. P. 424; Goodtitle v. Badtitle, 8 T. E. 638; Turner v. Bates, 10 Q. B. 292; MacKenzie v. MacKenzie, 238 111. 6-16' [87 N. E. Eep. 848]; Griffin v. Bor si, 4 .Wend. (N. Y.) 195; Willard v. Judd, 15 Johns. (N. Y.) 531; Hallenback v. Whitaker, 17 Johns. (N. Y.) 2; People v. Spalding, 2 Paige (N. Y.) 326; Potier v. Barclay, 15 Ala. 439; Singer v. McAllister, 22 Neb. 359 [35 N. W. Eep. 181]; Schuyler Nat. Bank v. Bollong, .24 Neb. 821 [40 N. W. Eep. 411]; Lynch Co. v. Wayne Circuit Judge, 129 Mich. 110 [88 N. W. Eep. 387]; Carr v. Hooper, 48 Kan. 253 [29 Pac. Eep. 398].
    Notary taking oath not “interested in the event of the action or proceeding” to disqualify him. Eisenlord v. Clum, 126 N. Y. 552 [27 N. E. Eep. 1024; 12 L. E. A. 836]; Browning v. Bancroft, 5 Mete. (Mass.) 88; Perine v. Grand Lodge A. O. U. W. 48 Minn. 82 [50 N. W. Eep. 1022] ; Hobart v. Hobart, 62 N. Y. 80; Pitzl v. Winter, 96 Minn. 499 [105 N. W. Eep. 673]; Chmdler v. Brainard, 31 Mass. (14 Pick.) 285; Smith v. State, 18 Ohio 89; Palmer v. Hospital, 10 Kan; App. 98 [61 Pac. Eep. 506].
    Cases reviewed. Newton v. Foote, 2 Dick. 793; Cooke v. Wilson, 4 Madd. 380; Shaw v. Lindsey, 15 Yes. 380; King v. Wallace, 3 T. E. 402; Beck v. Bethlehem, 2 Pa. Co. Ct. Eep. 511; Dodd v. Northrop, 37' Conn. 216; Call v. Pike, 66 Me. 350; Blum v. Jones, 86 Tex. 492 [25 S. W. Eep. 694] ; Bean v. Quimby, 5 N. H. 94; Wilkowski v. Halle, SI Ga. 678 [95 Am. Dee. 374]; Tillinghast v. Walton, 5 Ga. 335; Glanton v. Griggs, 5 Ga. 429; Goodrich v. Williams, 50 Ga. 426; Payne v. Briggs, 8 Neb. 75; Smith v. Smith, 2 Me. (2 Greenl.) 408; Bryant v. Ingraham, 16 Ala. 116.
   WINCH, J.

The sole question for review in this case is the sufficiency •of an affidavit in attachment which was sworn to before a clerk or employe in the office of the attorneys for the attaching creditor.

Gen. Code 11524 says that an affidavit may be made before •any person authorized to take depositions, and Gen. Code 11532 provides: '

“The officer before whom depositions are taken must not be a relative or attorney of either party, or otherwise interested in the event of the action or proceedings.”

The notarial officer before whom this affidavit was sworn to was not a relative or attorney of either party, nor does the record show that he was “otherwise interested in the event of the action or proceeding.” He was a young man working on a salary for a firm of attorneys in the case. He had no connection with this case beyond taking the affidavit. The interest in the event of the action or proceeding which disqualifies a notary public from acting in the taking of affidavits, we hold to be some legal, certain and immediate interest such as formerly disqualified witnesses from testifying. See Smith v. State, 18 Ohio 89.

No such interest appéars here, and we find no occasion for extending the limitations of the statute beyond its words; while the attorney of a party may not act in taking a deposition or affidavit, the prohibition is not extended to the clerk of such attorney.

The trial court having come to the same conclusion, its judgment is affirmed.

Marvin and Niman, .JJ., concur.


text:
    DAMAGES — MUNICIPAL CORPORATIONS.
    [Cuyahoga (8th) Court of Appeals,
    January 13, 1913.]
    Marvin, Winch and Meals, JJ.
    Oscar Schmidt v. Cleveland (City.)
    Damages Denied to Property Owner Whose Sole Injury is Slightly Longer Walk to Viaduct Obstructing Intersecting Main Thoroughfare.
    Plaintiff’s property is 120 feet front and abuts upon the east side of 83rd street, in the city of Cleveland; the middle point of his land is 234 feet northerly from the north line of Kinsman Road, which is a main thoroughfare running east and west; Kinsman Road has been obstructed at its intersection with 83rd street, by the erection of a viaduct sixteen feet above the grade of 83rd street, and reached from it only by a flight of thirty-one steps; by going around a block to 82nd street, which Is parallel to and west of 83rd street, the surface of the viaduct can be reached without climbing steps, but this course Is 473 feet long from the middle point in plaintiff’s land; this is the extent of the impairment of access from Kinsman Road to plaintiff’s premises, by the building of said viaduct. Held: plaintiff is not entitled to damages.
    [Syllabus by the court.]
    Error to common pleas court.

      C.lum & Marty, for plaintiff in error. ■

      E. E. Wilcox and Squire, Sanders <& Dempsey, for defendant in error.
   WINCH, J.

The error complained of in this case is the direction of a verdict for the defendant at the close of plaintiff’s evidence.

The plaintiff prayed damages for the obstruction of the southerly end of 83rd street, in the city of Cleveland, by the building of a viaduct on Kinsman Road, part of a grade crossing elimination improvement in that neighborhood.

Plaintiff owns three forty foot lots on the easterly side of 83rd street, which street starts at Kinsman Road, runs northerly therefrom and crosses other streets running east and west.

Ipon these three lots are two dwelling houses, in one of which plaintiff resides; the other he rents.

Kinsman Road is one of the main east and west thoroughfares in that part of the city of Cleveland; upon it the city cars as well as surburban cars run, westerly to the business portion of the city, and easterly to villages beyond the city limits.

The viaduct referred to is sixteen feet above the former grade of the street; a substantial abutment across Kinsman Road, at the west line of 83rd street, shuts it off to the west, but one can pass to the east, under the viaduct, from 83rd street, where a like abutment at the east line of 84th street shuts off travel to the east.

The surface of the viaduct at 83rd street may be reached by a flight of thirty-one steps. About 320 feet north of Kinsman Road, Glade street opens up, on the west line of 83rd street, runs westerly, but inclining toward Kinsman Road, for a distance of 221 feet to 82nd street, and the latter street, which is parallel to 83rd street, runs to the surface of the viaduct on Kinsman Road, a distance of 116 feet.

Before the viaduct was built, plaintiff could go southerly to Kinsman Road and take the cars on the surface, either east or west, by traveling a distance of 234 feet from the middle point of his land; now, to. reach the surface of Kinsman Road viaduct, from the- same point, he must travel northerly 86 feet on 83rd street, cross the 50 feet of that street, travel westerly 221 feet on Glade street and then southerly 116 feet on 82nd street, in all a distance of 473 feet, practically twice as far as he had to go before. '

Traveling at the rate of four miles an hour, one goes about six feet a second, so that it now takes plaintiff about forty seconds longer to reach the cars on Kinsman Road than it formerly took. One minute longer, at a slow walk, would be a fair way of estimating it.

This is the extent of the impairment of access from Kinsman Road to plaintiff’s property, by the building of the viaduct, as shown by the evidence.

From a full consideration of the cases in Ohio bearing upon the law applicable to such cases, Judge Donahue, in the case of Hall v. Railway, 85 Ohio St. 148, at page 157, concludes:

“It would, therefore, seem to be fully settled in Ohio that whether property abuts upon that particular portion of the obstructed- or vacated street, yet if that street affords the only reasonable access to the property, the owner’s rights are the same as if his property -actually abutted upon the obstructed parts, but where his property is not physically in contact with the vacated portion of the street and he has other reasonable means of access, then the owner has no right of action to enjoin the obstruction or recover damages.”

In the Hall case and in the case of Cleveland Furnace Co. v. Railway, 20 Dec. 188 (9 N. S. 426), affirmed,- no op., Cleveland Furnace Co. v. Railway, 86 Ohio St. 354, the street obstructed was the only reasonable means of access to the plaintiff’s property. Such is not the case here.

In the case of Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264 [62 N. E. Rep. 341; 87 Am. St. Rep. 600], the court held that the proprietor of propertj not abutting upon that portion of the street obstructed or vacated, would not be entitled to any relief unless the inconvenience he suffers differs in kind, and not in degree, from that of the general public. On the facts of that case, as well as in the case of Anderson v. Cleveland, No. 3983 on the docket of the circuit court of Cuyahoga county, affirmed, no op., Anderson v. Cleveland, 79 Ohio St. 451, relief was denied the plaintiff because his inconvenience was different only in degree and not in kind from that suffered by the general public. An examination of the plat filed in the Anderson ease shows a situation very similar to the situation shown by the plat in this case.

In the ease of Schimmelmann v. Railway, 83 Ohio St. 357 [94 N. E. Rep. 840; 36 L. R. A. (N. S.) 1164], the facts show a vacation or obstruction of part of the street in front of plaintiff’s premises, but not on his side of the street, as was the case also in Cohen v. Cleveland, 43 Ohio St. 190 [1 N. E. Rep. 589], and in both cases damages were'allowed the plaintiff. In both of these cases, as well as in the case of Cesa v. Cleveland, No. 4633 circuit court, which went up from Cuyahoga county and was recently reversed by the Supreme Court, the plaintiff’s premises were occupied for business purposes, and the evidence tended to show that the obstruction of the street diverted travel and business away from plaintiff’s place of business, causing the business theretofore done there to locate in another part of the municipality, thus greatly reducing the value of plaintiff’s premises. One of the questions in Schimmelmann v. Railway, supra, as stated by Judge Price on page 371, was:

“Did the change in the street impair access to plaintiff’s-improvements — not their own access necessarily, but having business structures there — access by people accustomed to trade and transact business with plaintiffs?”

Such is not a question here; plaintiff is not engaged in any business on Ms premises, which is injured by making more difficult the access of customers to his place of business.

In the Anderson case the plaintiff used his premises for manufacturing purposes, but there was no evidence that the public came frequently to his place of business or that he lost trade by reason of the obstruction in the street to the north of him; his sole complaint was that his wagons had to travel a little farther in delivering manufactured goods to railroad ■depots and other places to the east of him.

We find no facts in this case similar to the facts in other cases where relief was granted the plaintiff, either because the ■only reasonable means of access to his property was obstructed, ■or because his inconvenience from the obstruction was different in kind and not in degree, from that of the general public.

The trial court properly took this view of the case and directed a verdict for the defendant, and its judgment is affirmed.

Marvin and Meals, JJ., concur.