text:
    EVIDENCE — ACCIDENT INSURANCE — CHARGE TO JURY.
    [Lorain (8th) Circuit Court,
    May 2, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Travelers’ Insurance Co. v. Mary Rosch.
    1. Conclusive Presumption oe Death.
    The fact that a passenger on an ocean vessel was last seen about 10 o’clock at night, when the steamer was in mid-ocean, and was never seen nor heard of afterwards, though diligent search was made the next morning, is sufficient to raise a very strong presumption of his death and iustifies a iurv in finding that he is dead.

      2. Presumption as to Manner of Death.
    Death by suicide will not be presumed from the fact that a person was last seen about 10 o’clock at night on board a steamer in mid-ocean. The presumption is in favor of his having fallen overboard, either by accident or by some external force applied to him, and the death is within the risks assumed by an accident policy, insuring against death from bodily injury, effected through external, violent and accidental means.
    3. Rule to Preponderance oe Evidence.
    “Fair preponderance” of the evidence means “clear preponderance” which is more than is required, a preponderance being sufficient. Hence a refusal to give a request to charge “ you will not be warranted in finding a verdict for ' the plaintiff unless you shall find from a fair preponderance of the evidence,” etc., is justified.
    4. Refusal to Charge — Error not Prejudicial’
    A request to charge before argument as authorized by Sec, 5190, Rev. Stat., Sub-div. 5, is peremptory, but where the giving or withholding of a charge could not by any possibility or reasonable probability have affected the judgment obtained, the refusal before argument to give a charge is not prejudicial.
    Heard ON Error.
    H. H. McKeehan, for plaintiff in error.
    Metcalf & Cinniger, for defendant in error,
    cited:
    Upon the presumption, where plaintiff makes a prima facie case that the death of an insured person was occasioned by violent and external means, that such killing was accidental, and burden of proving otherwise is on . the insurance company. 5 N. Y. St. 566; Shultz v. Insurance Co., 40 Ohio St. 217, 223 [48 Am. Rep. 676]; 42 Md. 414; Insurance Co. v. Gridley, 100 U. S. 614; Fidelity & Casualty Co. v. Weise, 80 Ill. App. 499; Amer. Digest, 1899, B, p. 2503, section 306 ; Amer. Digest, 1900, B, p. 2421, section 225; Stephenson iv. Bankers Fife Assn., 79 N. W. Rep. 459 [108 la. 637]; Supreme Council R. A. v. Brashears, 43 Atl. Rep. 866 [89 Md. 624]; Standard Rife & A. Ins. Co. v. Thornton, 100 Fed. Rep. 582 [40 C. C. A. 564]; Travelers’ Ins. Co. v. Wyness, 34 S. E. Rep. 114; Coburn v. Insurance Co., 13 N. E. Rep. 604 [145 Mass. 226]; Freeman v. Insurance Co., 12 N. E. Rep. 372 [144 Mass. 572]; Piedmont & A. Insurance Co. v. Ewing, 92 U. S. 377.
   MARVIN, J.

The case of the Travelers’ Insurance Company of Hartford, Connecticut, against Mary Rosch is here upon a petition in error, seeking to reverse a judgment which Mary Rosch obtained against the insurance company in a case tried in the court of common pleas of this county, it being a jury trial. With the petition in error a bill of exceptions is filed, containing all the evidence that was produced in the court of common pleas.

The plaintiff below, Mary Rosch, having obtained a verdict against the defendant, a motion was made by the defendant for a new trial, which was overruled, an exception was taken to that, and it is said there was error on the part of the court in overruling such motion, and error also in the proceedings of the court at the trial.

After the evidence was all introduced, a request was made that certain propositions of law be given in charge to the jury before the argument of counsel. Some of these requests were given before argument, and part, the court said, would be taken under advisement, and later the court would determine whether or not to give these. After argument the court did give the last proposition, to which attention will be called later.

Section 5190, sub-section 5, Rev. Stat., is the one which provides that if request to charge certain propositions shall be made' before argument, such propositions shall then be given or refused. This statute was construed in Electric Railroad Co. v. Hawkins, 64 Ohio St. 391 [60 N. E. Rep. 558].

Before determining whether there was error in declining to give the proposition which the court did not give before argument, but did give later, a little attention should be given to facts.

John Rosch who was a resident of this city, took passage in June, 1897, upon an ocean steamer, “ The Friesland,” at New York, for some port in Germany. Shortly before he embarked on this voyage he took out a policy ot insurance in the plaintiff company, which is a corporation authorized to issue accident insurance policies. It insured him against death resulting within ninety days from bodily injuries effected during the term of this insurance through external, violent and accidental means, and the beneficiary named in the policy is Mary Rosch, the defendant in error.

On the night of June 29, 1897, while the ship was in mid-ocean, John Rosch, who was a steerage passenger with some two hundred other steerage passengers, was seen at ten o’clock in the evening on that steamer^ so far as any evidence here is found, he has never. been seen since living or dead.

The steamer did not reach Germany for several days after that. Diligent search was made on the morning of June 30, for John Rosch, which was without avail; he was not on the steamer on that morning.

The claim on behalf of the plaintiff below is, that from this it necessarily follows he is dead, and we think that this presumption is well taken. It is possible that Rosch is living, as it is, possible that if one sits in this court room and fires a pistol at another, and that other be found immediately thereafter dead with a bullet in his body, that he died of heart failure just before the bullet struck him; but everybody would find, every jury and every sensible man in the world would find in the case last stated that the man died from the bullet wound. And it seems as though we could not doubt that every sensible man with these facts before him would find this man is dead.

It is said, on the part of the plaintiff in error, that it is but an inference that he is dead. It is an inference, such an inference as carries absolute conviction to every thinking man.

Now it is said that to hold he died by external violence is an inference upon an inference — which ought not to be allowed ,* but the jury found as they necessarily must have found, that this man was dead.

And if the question had been directly put to them, did he die by drowning ? it can hardly be doubted that they would have answered in the affirmative, and if he died by drowning he died by that external violence which is insured against in this policy, unless it was a case of suicide.

The policy provides that if the death is by suicide there can be no recovery.

This man, if he died by drowning fell into the ocean, either by accident or by the violence of some body else or he cast himself into the ocean. What is the presumption, in that case? in favor of suicide or against it ? Is there any doubt that the presumption is against suicide and in favor of his having fallen in, either by accident or by some external force applied to him? And if that is so, then there should be a recovery here; the company would be bound.

Upon the facts it seems clear that the jury came to the conclusion to which every other man, who will examine this record would come; that this man died of drowning on that night of June 29 or the morning of June 30, 1897, and that such drowning was the result of an accident to him.

Now as to the request made to charge before argument.

The case of Electric Railroad Co. v. Hawkins, to which attention has been called, holds as to Sec. 5190, Rev. Stat., requiring a charge when requested to be made before the argument, that it is peremptory where such request is made. Of course if a request is made to charge some proposition which is not the law, that must not be given. But it is said here the court came to the conclusion that what was requested was the law, because it thereafter gave it; but if the giving or withholding of the charge could not by any possibility or by any reasonable probability have afiected the result of this case, then it was not prejudicial to refuse to give it before argument.

If it would have been no prejudice to the plaintiff in error to have declined to give it to the jury at all, then it was not prejudicial to decline to give it before the argument.

The charge requested by the defendant below before argument reads in these words:

“ Gentlemen of the jury, you will not be warranted in rendering a verdict for the plaintiff unless you shall find from a fair preponderance of the evidence, as I shall hereafter define that term:
“ First. That John Rosch died during the time covered by the policy of insurance, and
“Second. That his death was caused by violent and accidental means.”

It is enough to say as to this, that the request included one thing at least which it is-settled, in this court, and I think by the Supreme Court of the state, certainly by this court and by the circuit court next east of us, the sixth, which the party was not entitled to have given.

It may be said to be technical, but this court and the court of the circuit east of us have held that it is objectionable to charge that “ You will not be warranted in rendering a verdict for the plaintiff unless you shall find from a fair preponderance of the evidence,” etc.

Judge Laubie, in one of the cases, discusses to a considerable extent the words “fair preponderance,” and says it means the same as “ clear preponderance ” of the evidence, which he says is not necessary; that preponderance is enough. So the court would have been justified in refusing that because of the word “fair,” and might have been justified in refusing the entire request for the same reason.

The court did give before argument, that in order to a recovery the jury must find:

First: That John Rosch died during the time covered by the policy of insurance, and
Second: That his death was caused by violent and accidental means.

He gave those two. He did not give until after argument the balance : “ If you find that he died during such time, but further find that it is just as reasonable to infer, from the facts and circumstances in proof, that he died from voluntarily exposing himself to unnecessary danger as that he died from accidental and violent means, not specifically excepted in the policy, then your verdict must be for defendant.”

That was given later; not given however that it must be done by a fair preponderance of the evidence, but the court gave, “ if you find he died during such time, etc.,” using the exact language, except as to the word “fair."

It was not error, prejudicial to the plaintiff in error, for the court to refuse to give in the language requested, just what was-requested before the argument. After the argument the court gave the proposition properly, so that there can be no fault found to the prejudice of the plaintiff in error in the charge.

What has already been said indicates what must be done with the case. The jury were warranted in coming to the conclusion they did from the facts.

There was no error on the part of the court in its refusal to charge before argument the requests in exactly the language they were requested; there was no error in the charge, and the judgment is affirmed.


source: Caselaw Access Project

author: PARKER, J.

license: Public Domain

text:
    NEGLIGENC" — MASTER AND SERVANT.
    [Fulton Circuit Court,
    1902.]
    Haynes, Parker and Hull, JJ.
    Thomas F. Ham, Admr., v. Lake Shore & Michigan Southern Railway Co.
    1. Rule as to Negligence oe Employe in Walking on Railroad Track.
    Whether a section man, having been directed by his foreman to proceed to a certain point, was guilty of negligence in walking upon the railroad track in going from one point to another to perform the duties required of him, depends upon the duty in which he is engaged, the distance he had to go, the immediate presence of the foreman under whom he was working, the rules and customs in force as to the foreman keeping watch for and giving warning to the workmen of the approach of trains, the practice of trackmen to walk upon the track in like cases, and other circumstances bearing upon the question of prudence; and the question is for the jury to determine.
    2. Employe Entitled to Care oe Foreman.
    A distinction exists in the degree of care required of a workman under the immediate supervision of a foreman and one bound to care and watch for himself. So a workman in the immediate presence of his superior, but a few rods away and under his supervision and care, may be exonerated from a charge of contributory negligence if he occupies momentarily a place of danger, though .not absolutely required to do so by the work in hand, if he proceeds in the customary manner, under the eye of his foreman and without caution from or disapproval of the foreman.
    3. Evidence oe Negligence oe Foreman in Failing to Warn Employe.
    Evidence of a custom among trackmen at work under a foreman to depend upon the latter to warn them of approaching trains in time to leave the track in safety, and of foremen giving such notice, together with proof of the negligence of the foreman in failing to give warning to a trackman on an errand up the track, of an approaching train, as in this case, notwithstanding negligence of the foreman was not charged, is competent to show want of contributory negligence on the part of the deceased in walking on the track without looking for approaching trains, although possessed of all his senses.
    4. Case Should be Submitted to Jury, When.
    On a motion to direct a verdict for the defendant in an action for negligence against a railway company, the view most favorable to the plaintiff should be taken ; and where the facts testified to are such that they cannot be said to admit of no rational inference but that of absence of negligence on the part of the railroad company, or the presence of negligence on the part of the plaintiff’s decedent, nor that plaintiff failed to furnish a scintilla of evidence on all essential points to sustain his claim, the case should be submitted to the j ury.
    5. Negligence After Observing Employe on Track — Question for Jury.
    Whether, notwithstanding the negligence of a trackman killed by a passing train while walking on a railroad track, in the line of his duty, the injury to him might have been avoided, by the exercise of ordinary care upon the part of the engineer thereof after observing, of after he should have observed the peril of deceased, is a question for the jury, the evidence being contradictory as to the engineers having been in a position to observe the deceased.
    Ham, Ham & Ham and Fuller & Handy, for plaintiff in error,
    cited :
    Verdict. Stewart v. Bridge Co., 8 Circ. Dec. 454 (15 R. 601); Grand Trunk Ry. v. Ives, 144 U. S. 408 (12 S. Ct. Rep. 679); Clark v. Stitt, 4 Circ. Dec.- 51 (12 R. 759) ; Mendenhall v. Haven, 9 Circ. Dec. 609 (19 R. 685).
    On the motion to direct a verdict. Wabash v. Skiles, 64 Ohio St. 458 (60 N. E. Rep. 571); Railroad v; Depew, 40 Ohio St. 121; Cleveland, C. C. & I. Ry. v. Elliott, 28 Ohio St. 840; Beliefontaine v. Snyder, 24 Ohio St. 670.
    The evidence. Cleveland, C. C. & I. Ry. Co. v. Elliott, 28 Ohio St. 340, 351; Valin v. Railway Co., 51 N; H. 1084 (82 Wis. 1, 15 ; 33 Am. St. Rep. 17); Eake Shore & M. S. Ry. Co. v. Schultz, 9 Circ. Dec. ■ 816 (19 R. 639); Eake Shore & M. S.- Ry. Co. v. Ford, 9 Circ. Dec. 786 (18 R. 239); Snyder v. Railway Co., 60 Ohio St. 487 (54 N. E. Rep. 475); Schweinfurth v. Railway Co., 60 Ohio St. 215 (54 N. E. Rep. 89) ; Hauser v. Assel, 12 Circ Dec. 336 (21 R. 789).
    Proximate cause. Pickett v. Wilmington & E. R. R. Co., 23 S. E. Rep. 264 (117 N. C. 616; 53 Am. St. Rep. 611); Sherman & Redfield Neg., Sec. 94; Beach Cont. Neg., p. 568; Railway Co. v. Kassen, 49 Ohio St. 230 (31 N. E. Rep. 282); Schweinfurth v. Railroad, 60 Ohio St. 215, 220, 223 (54 N. E. Rep 89) ; Railroad v. Murphy, 50 Ohio St. 135, 140 (38 N. E. Rep. 403); Snyder v. Railroad, 60 Ohio St. 487 (54 N. E. Rep. 475 ; Cincinnati, H. & D. Ry. v. Murphy, 10 Circ. Dec. 195 (18 R. 289); Eake Shore & M. S. Ry. Co. v. Ford, 9 Circ. Dec. 786 (18 R. 239); Eake Shore & M. S. Ry. v. Schade, 8 Circ. Dec. 316 (15 R. 424, 432); Milwaukee & S. P. R. R. v. Kellogg, 94 U. S. 469; Goodlander Mill Co. v. Oil Co., 63 Fed. Rep. 400 (27 L. R. A. 583, 586; 11 C. C. A. 253); Rea-vitt v. Bangor, 89 Me. 509 (36 E. R. A. 382, 383); Thompson Neg., 240; Eouisville, N. A. & C. Ry. Co. v.Nitsche, 26 N. E. Rep. 51 (126 Ind. 229; 9 E. R. A. 750); Denver & R. G. Ry; v. Roller, 100 Fed. Rep. 788 (49 R- R. A. 79) ; Gurney v. Elevator Co., 65 N. W. Rep. 136 (63 Minn. 70; 30 E. R. A. 534, 535); Railway Co. v. Margrat, 51 Ohio St. 130, .140 (37 N. E. Rep. 11); Ronergan v. Railway Co., 49 N. W. Rep. 852; 53 N. W. Rep. 236 (87 la. 766 ; 17 L. R. A. 264, 257); Railway v. Murphy, 50 Ohio St. 136, 136, 141 (33 N. E. Rep. 403); Snyder v. Railroad Co., 60 Ohio St. 215, 230 (54 N. E. Rep. 270); Schweinfurth v. Railroad, 60 Ohio St. 215, 220 (54 N. E. Rep. 89).
    Engineer’s conduct. Stewart v. Railway Co., 66 N. Y. Supp. 436 (54'App. Div. 623); Cincinnati, H. & D. Ry. v. Murphy, 9 Circ. Dec. 703 (17 R. 223, 228); Elliott v. Railway, 150 U. 3. 245, 247 (14 S. Ct. Rep. 85) ; Riñe v. Railwaj’’, 12 S. W. Rep. 640 (100 Mo. 228); Eideler v. Railway Co., 18 S. W. Rep. 847 (107 Mo. 645, 652).
    , Presumption that whistle would have saved the deceased. Sherman & Redfield Neg., p. 805; Railway v. Margrat, supra ; Eake Shore & M. S. Ry. v. Ehlert, 10 Circ. Dec. 443 (19 R. 177, 184) ; Zimmerman v. Railway, 71 Mo. 476, 484; Karle v. Railway, 55 Mo. 476, 482.
    The engineer was bound to use the same care toward one negligently trespassing as one rightfully on the track after he discovered him. Sherman & Redfield, pp. 851, 853 ; Towles v. S. R. Co., 103 Fed. Rep. 405; Baltimore & Ohio Ry. v. State, 33 Md. 542 ; Cassida v. O. R. & N. Co., 13 Pac. Rep. 438 (14 Or. 551); Sherman & R., pp. 155, 850, 851, 788; Eouisville & N. R. Co. v. Tinkham, 44 S. W. Rep. 439 (19 Ky. Eaw 1784) ; Eake Shore & M. S. Ry. v. Schade, 8 Circ. Dec. 316 (15 R. 424,437); Guenther v. Railway Co., 18 S. W. Rep. 846 (108 Mo. 18) ; Texas & N. O. Ry. v. Brown, 39 S. W. Rep. 140 (14 Tex. Civ. App. 697); Matthews v. Railway Co., 63 Mo. App. 569; Boumeester v. Railway, 30 N. W. Rep. 337 (63 Mich. 557); Schlereth v. Railway Co., 19 SW. Rep. 1134 (Mo.); Erickson v. St. Paul & D. R. Co., 43 N. W. Rep. 332 (41 Minn. 500; 5 E- R. A. 786, 787); Railway Co. v. Kassen, 49 Ohio St. -230 (31 N. E. Rep. 282); Seaboard R. R. Co. v. Joyner, 23 S. E. Rep. 773 (92 Ya. 354) ; Sherman & R., pp. 155, 850.
    It is not the law that the negligence must be gross or willful, but after the deceased was discovered, the engineer was bound to use ordinary care. Boumeester v. Ry. Co., 30 N. W. Rep. 337 (63 Mich. 557) ; Erickson v. Railway Co., 5 E. R. A. 787n.; Guenther v. Railway Co., 18 S. W. Rep. 846 (108 Mo. 18); Railroad Co. v. State, 36 Md. 366; St. Louis S. W. Railway v. Bishop, 37 S. W. Rep. 764, 766 {14 Tex. Civ. App. 504); Hanlon v. Railway Co., 16 S. W. Rep. 233 (104 Mo. 381) ; Sanchez v. Railway Co., 30 S. W. Rep. 431 (88 Tex. 117); Missouri Pac. Railway Co. v. Weisen, 65 Tex. 443; Schlereth v. Railway Co., 19 S. W. Rep. 1134 (Mo.); Eouisville & N. Ry. Co. v. Morlay, 86 Fed. Rep. 240 (30 C. C. A. 6); Sherman & Redfield, p. 855 ; Beach Cont. Neg., p. 278; Thompson Neg., 1157; Kerwhacker v. Railroad, 3 Ohio St. 172 (62 Am. Dec. 246); Railway Co. v. Kassen, 49 Ohio St. 280,238 (31 N. F. Rep. 282); Rake Shore & M. S. Ry. v. Reynolds, 13-23 ü. C. C. 199, 201 (Ohio Raw Bulletin, March 10, 1892).
    The presumption that one will leave the train is one of fact and not of law. St. Rouis S. W. Ry. Co. v. Bishop, supra-, Cincinnati, H. & D. Ry. v. Murphy, 10 Circ. Dec. 195 (18 R.298, 303) ; Boumeester v. Railroad Co., supra-, Hanlon v. Railroad Co., 16 S. W. Rep. 233 (104 Mo. 381); Sanchez v. Railway Co. 30. S. W. Rep. 431 (88 Tex. 117); Fiedler v. Railroad Co , 18 S. W. Rep. 847 (107 Mo. 645, 652) ; Galveston City Ry. Co. v. Hewitt, 67 Tex. 473 (60 Am. Rep. 32, 36); Sherman & R., p. 851; Beach Cont. Neg., p. 568; Stewart v. Railway Co., 66 N. Y. Supp. 436 (54 App. Div. 623); Sherman & R., Secs. 100, 483 ; Frazer v. Railroad Co., 1 So. Rep. 85 (81 Ala. 185; 60 Am. Rep. 145,150).
    And to charge the engineer with the duty of sounding the whistle or taking other precautions it is not necessary that he should absolutely know that the person is in danger. Sherman & R. pp. 153,853; Baumees-ter v. G. R. I. R. Co., S7ipra; St. Rouis S. W. Ry. Co. v. Bishop, supra ; Missouri Pac. Ry. Co. v. Weisen, 65 Tex. 443.
    It is ordinarily the duty of the engineer to blow the whistle. Sherman 8r R., p. 786; Rouisville & N. R. Co. v. Tinkham, 44 S. W. Rep.-439 (19 Ky. Raw Rep. 1784).
    If the engineer had time, it was his duty to have increased his care and'diligence after he perceived that the first warning was not heeded. It seems it was his duty to have sounded the whistle if he perceived the deceased apparently did not heed the bell. Sherman & R., p. 850; Stewart v. Railroad Co., 66 N. Y. Supp. 436 (54 App. Div. 623) ; Mathews v. Railroad Co., 63 Mo. App. 569; Rouisville & N. R. Co. v. Morlay, 86 Fed. Rep. 240 (30 C. C. A. 6); St. Rouis S. W. Ry. Co. v. Bishop, supra; Erickson v. Railway Co., 43 N. W. Rep. 332 (41 Minn. 500; 5 R. R. A., 786, 787); Baumeester v. Railroad Co., supra; Rouis-ville & N. R. R. Co. v. Morlay, 86 Fed. Rep. 240 (30 C. C. A. 6).
    The fact that the deceased paid no heed apparently to the bell, made it the absolute duty of the engineer to sound the whistle. Sherman & R., p. 155 ; Baumeester v. Railway Co., supra ; Rouisville & N. R. Co. v. Morlay, supra; Erickson v. Railroad Co., supra; Rouisville & N. Ry. Co. v. Tinkham, 44 S. W. Rep. 439 (19 Ky. Raw Rep. 1784); Sanchez v. Railway Co., supra; Beach Cont. Neg., p. 568; Fiedler v. Railroad Co., 18 S. W. Rep. 847 (107 Mo. 645,652), Sherman & Redfield, pp. 786, 850; Cincinnati, H. & D. Ry. Co. v. Murphy, 10 Circ. Dec. 195 (18 R. 298, 303).
    As to the presumption that deceased would leave the track. St. Couis S. W. Ry. Co. v. Bishop, supra; Dunkman v. Railway Co., 4 S. W. Rep. 670 (94 Mo. 232, 245) ; Rake Shore & M. S. Ry. Co. v. Schade, 8 Circ. Dec. 316 (15 R. 424, 437); Rake Shore & M. S. Ry. Co. v. Ehlert, 10 Circ. Dec. 543 (19 R. 177,184); Railway Co. v. Margrat, 51 Ohio St; 130, 140 (37 N. E. Rep. 11) ; Cincinnati, H. & D. Ry. Co. v. Murphy, supra; Sherman &R. Neg., Sec. 100.
    There is always present the presumption that one will abide the instincts of self preservation. So then be the evidence as it may, John Broughten endowed with the instinct of self preservation, is killed, and that fact is the strongest evidence, that he did not know the train was coming. Sherman & R. Neg., p. 172.
    Wilfullness. Pittsburgh, C. C. & St. R. Ry. Co. v. Kelly, 5 Circ. Dec. 662 (12 R. 341) ; Bailey Master’s Riability, p. 414; Beach Cont. Neg., Sec. 64; Railway Co. v. Depew, 40 Ohio St. 121; Driscoll v. Railway Co., 1 Circ. Dec. 274 (I. R. 493) ; Sherman & Redfield, p. 484 ; Pittsburgh, C. C. & St. R. Ry. Co. v. Kelly, 5 Circ. Dec. 662 (12 R. 341); Beach Cont. Neg., p. 102.
    Where an intention to commit an injury exists, whether the intention be actual or constructive only, the wrongful act ceased to be a mere negligent injury, and becomes one of violence or aggression. Bailey Master’s Riability, p. 414; Cincinnati, H. & D. Ry. Co. v. Murphy, 9 Circ. Dec. 703 (17 R. 223, 232); Cincinnati, H. & D. Ry. Co. v. Murphy, 10 Circ. Dec. 195 (18 R. 298, 303).
    Immaterial that there was a rule which was violated or proper rules not made. Rake Shore & M. S. Ry. Co. v. Murphy, 50 Ohio St. 135, 143 (33 N. E. Rep. 403).
    Fellow servant. Railroad Co. v. Margrat, supra.

    The fact that there was or was not unusual noises or causes affecting one’s hearing is material. Rake Shore & M. S. Ry. Co. v. Murphy, supra.

    Evidence of speed. Baltimore & O. Ry. Co. v. Stoltz, 9 Circ. Dec. 638 (18 R. 93); Baltimore & O. Ry. Co. v. Stoltz, 62 Ohio. St. 631 (58 N. E. Rep. 1101); Boumeester v. Railway Co., supra\ St. Rouis Ry. Co. v. Bishop, supra; Hanlon v. Railway Co., supra.

    The following cases are practically analogous with the case at bar. Sanchez v. Railway Co., supra; Erickson v. Railway Co., supra; Railway Co. v. Hogarth, 38 Ill. 374; Railway v. State, 36 Mo. 366; Fiedler v. Railroad Co., supra; Missouri Pac. Ry. Co. v. Weisen, 65 Tex. 443; Schlereth v. Railway Co., supra; Rouisville & N. Ry. v. Morlay, supra.

    E. D. Potter, for defendant in error.
    Heard on Error.
   PARKER, J.

The action in the court below was to recover on account of the death of John Broughton caused by his being run down by a passenger train of the railroad company.

Deceased was a section man at work with several other men on the track under the orders and charge of a section boss or foreman. Immediately before his death he had been placing wooden plugs in holes in ties, which holes were caused by the drawing of spikes therefrom by another workman. The foreman, located about thirty feet to the eastward of deceased on the same track, the direction of which was substantially east and west, directed deceased to fetch a tool which was lying north of but near to the track, about two hundred feet to the eastward of deceased; whereupon deceased quit his work of so placing plugs, stepped from his position just north of the north rail of the track to a position between the rails, and proceeded eastward to fetch the tool, passed the foreman and reached a point from 150 to 200 feet farther east when the passenger train from the west, running at a rate of from twenty, to thirty miles an hour, overtook, struck and killed him.

There was a strong cold wind blowing on a course at substantially right angles to the track, and in walking deceased carried his head inclined to one side, evidently to protect himself somewhat from this wind. The running of the train did not make a great deal of noise. The bell on the locomotive was rung automatically and continuously, and was heard by other workmen in the vicinity. The whistle was not blown, and there was testimony to the effect that no other warning of the approach of the train than the ringing of the bell was given by the enginemen, and that no warning or caution was given by the foreman or any one else. The track was straight, and the day was clear, so that deceased by looking could have seen the approaching train a long distance to the westward. He was in full possession of his senses of hearing and seeing, but he seemed to be totally oblivious to his peril.

The negligence charged was that of the enginemen in failing to give a danger signal in time to warn deceased from the track, and in failing to stop or retard the progress of the train to enable him to escape Wantonness as well as negligence in this regard was charged against the engineer, in that he failed to take some precaution after he discovered the position and peril of deceased.

The answer denied all negligence on the part of the company, and alleged contributory negligence on the part of deceased.

On the trial, after plaintiff rested, on motion of defendant, the court directed the jury to return a verdict for defendant, which was done, and upon this verdict judgment was entered against the plaintiff.

Whether this was erroneous is the question submitted to this court.

The engineer, called as a witness by plaintiff, testified that as he approached the point where deceased was struck he saw this gang of men at work upon the track, and as he came near to them, but before he reached them, and before any of them had made any movement to quit the work, his attention was drawn from them to something about his engine which was out of order and needed fixing. That he proceeded to fix this part of his engine, and did not see any one on the track who seemed to be unaware of the approach of the train, and did not know that he had struck deceased until he had reached Toledo, some thirty miles to the eastward, when he was informed of the fact by the division claim agent of the company.

One Smith, a witness for the plaintiff, one of this gang of trackmen, testified that he was near the foreman when the order was given to deceased to go after the tool; also when deceased passed the foreman on his way to fetch the tool and was about 200 feet to the westward of deceased when the train struck the latter. He testified that he stepped off the track to the southward to let the train pass him, and that as the locomotive passed him the engineer sat in his place on the right side of the cab looking straight ahead out of the window. If the engineer was in that position it is obvious that he could not have well avoided seeing deceased upon the track as he approached him.

There was testimony tending to show that for many years the custom had obtained and was observed by trackmen thus at work under a foreman of depending upon the latter to give them warning of approaching trains in time to enable them to leave the track before their arrival, and of foremen giving such warning. No rule for giving such notification was introduced in evidence, and negligence on the part of the foreman in failing to give such warning, or in any respect, was not •charged. The use which plaintiff sought to make of the evidence of this custom, and of the failure of the foreman to give the warning on this occasion, was to excuse any negligence that might otherwise be imputed to deceased because of his thus working on the track. Baltimore & O. Ry. Co. v. Whitacre, 35 Ohio St. 627; Pennsylvania Co. v. Mahoney, 12 Circ. Dec. 366 (22 R. 469).

There was also testimony tending to show that under like circumstances it was customary for the trackmen to walk upon the track.

We are of the opinion that under the circumstances of this case as disclosed by the evidence, the question, first, whether the railroad company was guilty of negligence charged ; secondly, whether deceased was guilty of contributory negligence, and, thirdly, whether notwithstanding any negligence of which deceased may have been guilty the injury to him might have been avoided by the exercise of ordinary care upon the part of the engineer of the train after he observed the peril of deceased, or by the exercise of ordinary care should have observed it (Lake Shore & M. S. Ry. Co. v. Schade, 8 Circ. Dec. 316 (15 R. 424) ; Railway Co. v. Schade, 57 Ohio St. 650; 50 N. E. Rep. 113) were mixed questions of law and fact, and under proper instructions as to the rules of law applicable should have been submitted to the jury.

Taking the view of the testimony most favorable to the plaintiff, as required on a motion to direct a verdict against him, we think it cannot fairly be said that the facts testified to admit of no rational inference but that of absence of negligence on the part of the railroad company, or the presence of negligence on the part of deceased; nor that the plaintiff failed to furnish a scintilla of evidence on all essential points to sustain his claim.

Upon the question whether the engineer saw deceased upon the track in a place of peril and apparently oblivious to his peril, in time to have given a danger signal and stopped or retarded the speed of the train so as to have enabled deceased to escape, the testimony of the witness, Smith, in connection with circumstances shown, furnished some evidence in support of plaintiff’s contention, so that it should have been submitted to the jury.

Whether deceased might walk upon the track without being guilty of negligence that would defeat a recovery (except under circumstances indicated in third point above stated), might depend upon various circumstances, as, for instance, the duty in which he was engaged, the distance he had to go, the immediate presence or absence of the foreman under whom he was working, the rules or customs in force as to the foreman keeping watch for and giving warning to the workmen under these and similar conditions, the practice of trackmen to walk upon the track in like cases, and other circumstances bearing upon the question of prudence or lack thereof on the part of deceased. The circumstances shown do not present a case of negligence per se, but present a question to be submitted to a jury.

The case of Wabash Railroad v. Skiles, 64 Ohio St. 458 (60 N. E. Rep. 576), very much relied on by counsel for defendant in error, did not present the element of one at work under the supervision and care of a foreman, but was the case of one who was bound to watch and care for himself.

We think there was some testimony here that tended to show that deceased had a right to rely to some extent upon the vigilance of the foreman in his behalf, and that the cases of Take Shore & M. S. Ry. Co. v. Lavalley, 36 Ohio St. 221, and Railway Co. v. Murphy, 50 Ohio St. 135, 142 [33 N. E. Rep. 403], are more nearly in point on this question of contributory negligence.

Manifestly one sent on an errand so far down the track that he cannot be said to be engaged in the particular work the foreman is overseeing, or longer under the immediate direction and care of the foreman, must rely upon his own senses for safety, and cannot depend upon the watchfulness and care of his foreman. So, too, if in an unusual and unnecessary way and without specific direction to do so, he goes into a place of peril, he cannot excuse his being there on the ground that he was about his master’s business in pursuance of an order of a superior. But one may be under the supervision and entitled to the care of the foreman if he is in his immediate presence and but a few rods away, and may, we think, be excused and exonerated from a charge of negligence if under such circumstances he occupies momentarily a place of danger, though not absolutely required to do so by the work in hand, if he proceeds, in the usual and customary manner, and under the eye of his foreman, without any caution or sign of disapproval from the latter. This record presents a situation where, in our judgment, reasonable minds may differ as to the inference or conclusion whether of negligence or lack thereof to be drawn therefrom. At all events we are clear that the court was not authorized to say as a matter of law, as it did by its ruling, either that defendant below was not guilty of negligence, or that the deceased was guilty of contributory negligence, and therefore the judgment will be reversed.


text:
    WILLS.
    [Auglaize (3d) Circuit Court,
    1902.]
    Day, Norris and Parker, JJ.
    (Judge Parker, of the sixth, circuit, sitting in place of Judge Mooney.)
    William Halley et al. v. Joseph Hengstler and Sophia Hengstler.
    1. Purpose and Effect op Sec. 5968, Rev. Stat.
    The purpose and effect of Sec. 5968, Rev. Stat, as to construction of devises for life limited- to heirs, was to abrogate the rule in Shelley’s case as to wills, and not to establish a hard and fast rule of construction that must resolve all doubtful cases into devises of estates for life with remainder over; it leaves courts the liberty to give controlling effect to the intention of the testator.
    2. Teem “ Heirs ” Construed.
    “ Heirs ” is a technical legal term, and in its primary use and meaning is a word of limitation defining an estate of inheritance, and not the word of purchase, designating a person'or class of persons upon whom an estate shall devolve by force of the instrument in which it is used; and while its use in wills is flexible, it is to be given its strict technical meaning therein unless from the context or other aids of construction it appears clearly that it was not so intended.
    8. Devise Conveying Estate in Fee Semvde.
    A devise to two devisees of certain lands of testator “ to be equally divided between them, and to their heirs at their death” conveys the fee to the devisees named therein, and does notin terms, nor by construction, nor “by words to that effect” vest in devisees simply a life estate and after their death to their heirs in fee, within Sec. 5968, Rev. Stat., providing that an estate limited to heirs vests only a life estate in the first takers. The words “ at their death ” are merely surplusage.
    4. WORDS os Inheritance not Necessary Under Sec, 6970, Rev. Stat.
    Words of inheritance are not necessary to transmit real property by will under Sec. 5970, Rev. Stat. Hence the omission of words of limitation in a devise of land will not defeat the fee therein in the devisees named.
    Heard ON Error.
    Winn & Hay and Goege & Hoskins, for plaintiff,
    contends as follows:
    The Wills Act oí 1840 not only abolishes the rule in Shelly’s case as to wills, but provides, “ When any lands, tenements and hereditaments are given by will to any person for life and after his death to his heirs in fee or by words to that effect, the conveyance shall be construed to vest an estate for life in such first takers and a remainder in fee simple to his heirs.” The effect of this act is plainly shown by a comparison of McFeely v. Moore, 5 Ohio, .464, 465 [24 Am. Dec. 814], and Bunnell v. Evans, 26 Ohio St. 409.
    By item third of the will under consideration the premises therein referred to were devised to John and Nathaniel Halley for life, the remainder to their heirs, the plaintiffs. Archer v. Brockschmidt, 5 Dec. 348 (5 N. P. 349); Greene v. Greene, 1 O. S. C. D. 679 (38 Bull. 205); Howe v. Fuller, 19 Ohio, 51; Baxter v. Bowyer, 19 Ohio St. 490; Johnson v. Johnson, 51 Ohio St. 446 [38 N. E. Rep. 61].
    The words “ at their death,” found in item third, mean “ during their life; ” and although this clause of the will does not create a life estate with the remainder over in the clearest terms which could be employed, still it does so “ by words to that effect.” The whole will taken together discloses a purpose on the part of the testator to devise to his sons John and Nathaniel a life estate only.
   PARKER, J.

The whole controversy in this case turns upon the construction to be put on the third clause of the will of Samuel Halley, deceased, under which both parties claim. Other clauses of the will are unimportant here, except as their consideration may aid in the construction of this third clause, which reads as follows:

“ Third. I will and bequeath to John Halley and Nathaniel Halley, one quarter section of land owned by me in Allen county, Ohio, to be equally divided between them, and to their heirs at their death.”

The will was executed in 1844. The testator died in 1845, seized in fee simple of the land mentioned in this clause. John Halley, mentioned therein, died, intestate, in 1896*, leaving certain of the plaintiffs his only heirs at law. Nathaniel Halley, mentioned in said item, died, intestate, in 1898, leaving certain other of the plaintiffs his only heirs at law.

In 1850, John Halley and Nathaniel Halley, by an exchange of quitclaim deeds divided -the lands described in said item, each taking a part thereof in severalty.

The defendants claim ownership of said lands under deeds executed by John Halley and Nathaniel Halley and a regular chain of title by a series-of conveyances purporting to carry the title down to them as the last grantees.

Plaintiffs contend that by the will aforeresaid John Halley and Nathaniel Halley were devised life estates only in said lands and that remainders in fee simple were devised to their heirs, consequently that estates for the lives only of said John Halley and Nathaniel Halley were carried by said conveyances to the defendants, and that upon the deaths of said John Halley and Nathaniei Halley, the plaintiffs, as their surviving heirs, came into full title in fee simple and right of possession of and to said lands. The.defendants, on the other hand, contend that by force of said item three fee simple estates devolved upon and were vested in said John and Nathaniel upon the decease of the testator, and that such estates have been carried on to them by the conveyances aforesaid.

It will be observed that this will was executed and took effect after the passage and taking effect of the Wills act of March 23, 1840, which took effect October 1, 1840, 38 O. R. 120, Sec. 5968, Rev. Stat., Sec. 47 whereof containing the provision that: “ When lands, tenements or hereditiments are given by will, to any person, for his life, and after his death, to his heirs in fee, or by words to that effect, the conveyance shall be construed to vest an estate for life only, in such first taker, and a remainder in fee simple in his heirs,” (Swan’s Gen. Stat., 1841, p. 999) which has ever since been a part of the Ohio law as to wills.

Counsel for plaintiffs base their claim upon the statute, and urge that the language of this clause of the will comes within its provision» and that if this clause does not define precisely estates to John and Nathaniel for their lives, with remainder at their death to their heirs in fee, it does “ by words to that effect define and limit such estates; and they also urge that if this language of the will standing alone is not to be given that effect by force of the statute, the whole will taken together discloses that the purpose of the testator was to thus limit the estates devised. In support of their contention that the testator has manifested this intention, they lay especial stress upon the second clause of the will, whereby certain other lands are devised to certain other sons of the testator, to-wit:

Second. I give and bequeath to my two sons, William and Samuel Halley, the farm owned by me in Noble township, Morgan county, Ohio, that I now occupy, to be equally divided between two, William and Samuel Halley.”

They argue that since in this clause the words “ and to their heirs at their death,” or similar words, or words of like import, are not used, and since in Ohio words of inheritance are not necessary to transmit by will a fee simple estate, and the testator is to be presumed to har e known the law on this subject, therefore the addition of the words in the third clause must have been with a design and purpose «to devise to John and Nathaniel somewhat different estates from those devised to William and Samuel; and that the addition of the words “ and to their heirs at their death” manifests a purpose to cut down the fee simple that would have been sufficiently defined without such addition, and to devise a remainder in fee simple to their heirs. That though the term “ heirs ” is usually a term of limitation and not of purchase, yet as used here in connection with the words “ at their death,” it should be deemed a word of purchase and not of limitation. That the addition of the words “ at their death ” is equivalent to the use of the words “ during their lives,” or “ for life,” and were intended to denote the quantum of estate to be devised to John and Nathaniel.

In this brief statement we cannot pretend or hope to do justice to the able arguments of counsel for plaintiffs, so well epitomized in their brief, but we seek simply to indicate the points in issue and the line of argument pursued.

It must be remembered that before the adoption of the statute heretofore quoted, the rule in Shelley’s case had been recognized by the courts as a part of the common law in force in Ohio, (McFeely v. Moore, 5 Ohio, 464,) [24 Am. Dec. 314] , and the purposes and effect of this statute was to abrogate the rule as to wills; King v. Beck, 12 Ohio, 390, 471; Armstrong v. Zane, 12 Ohio, 287, 290; but the purposes of this law was not and its effect is not to establish a hard and fast rule of construction that must resolve all doubtful cases into devises of estates for life with remainder over, but simply to release us from a rule which carried us to the other extreme, and leave us at liberty to give controlling effect to the intention of the testator (Carter v. Reddish, 32 Ohio St. 1-17), and certain other rules respecting the construction of wills, and especially as to the use of the word “ heirs,” to which we shall advert, were not affected thereby.

Now while the word “ heirs,” when used in a will, is flexible, and should be so construed as to give effect to the manifest intention of the testator as ascertained by a due consideration of all the provisions of the will (Weston v. Weston, 38 Ohio St. 473, 478), yet it is a technical legal term, and in its primary use and meaning is a word of limitation defining an estate of inheritance, and not a word of purchase, designating a person or class upon whom an estate shall devolve by force of the instrument in which it is used (Page on Wills, Sec. 561; Jackson v. Alsop, 34 Atl. Rep. 1106; 67 Conn. 24), and is to be given its strict technical meaning when used in a will, unless from the context or other aids of construction it appears clearly that the testator used it in some other sense. Weston v. Weston, supra; Page on Wills, supra; Bolton v. Bank, 50 Ohio St. 290 [33 N. E. Rep. 1115]; Collins v. Collins, 40 Ohio St. 353 ; King v. Beck, 15 Ohio, 559, 562; Linton v. Laycock, 33 Ohio St. 128.

Prima facie, therefore, the word “ heirs ” is to be taken as a word of limitation and not of purchase. We think the clause of the will under consideration does not in terms give the lands to John and Nathaniel “for life,” nor does it in terms give the lands after their deaths to their heirs in fee. It is only by construction, and by holding that the testator has used “ words to that effect,” that the will can be given that operation. We are of the opinion that neither the clause in question, nor the whole will taken together, makes clear or manifest an intention of the testator to devise life estates only to his sons, with remainders in fee to their heirs.

The added expression “ And to their heirs at their death,” though in a sense surplusage or tautological, is, nevertheless, appropriate to describe a fee simple in John and Nathaniel. At their death,” we believe should be regarded as surplusage merely. What it expresses is always understood, since a person can possess and enjoy his lands during his lifetime onlj’-. It is evident that the will was not drawn by a person skilled in the use of legal terminology, since he uses the term ‘ ‘ bequeath ” where he should have written “ devise,” and other imperfections make such lack of skill or exactness apparent. Therefore, we think that much stress should not be laid upon the use of the words “ And to their heirs at their death ” in the third clause and not in the second. Having added the words “ and their heirs ” he may have thought it necessary or at least prudent to add the remainder “ at their death,” to make it clear that heirs presumptive should have no interest in or control over the lands while John and Nathaniel lived. So, too, such unskilled person may not have been acquainted with the rule made a statutory rule by Sec. 5970, Rev. Stat., and may have designed to devise a life estate only by the second clause and a fee simple by the third clause. We do not mean to suggest that a court would be warranted in putting such a construction upon the second clause, but we point out here possible constructions to indicate the insecurity and uncertainty of speculations as to the intention of the testator, and the propriety of holding fast to the rule that the intention of the testator to use the word “ heirs ” in some other definite sense, must clearly appear before the court will be justified in treating it as other than a word of limitation.

It is true, as said by counsel for plaintiffs, if the will provided that after the death of John and Nathaniel the lands should go to certain named persons, or even if a person or class of persons were designated as “children,” “grandchildren,” “issue,” or the like, it would carry no more than life estates to John and Nathaniel, with remainder to such persons or class, for such designations would not be words of limitation, merely determining the nature or quantum of the estate devised to the first takers, but they would be words of purchase, designating the persons or class who should take title direct from the devisor under the will. As pointed out, there is a wide difference where use is made of the general collective term “heirs,” signifying all who might inherit from the first takers, ad infinitum.

We hold that by the third clause of this will John and Natiélhan took an estate in fee simple, and that the judgment of the common pleas was right, and, therefore, it is affirmed.


author: CALDWELL, J.

text:
    STREETS — MAPS—EVIDENCE—LIMITATIONS.

      [Lorain (8th) Circuit Court,
    May 2, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Anna J. Wright v. Oberlin.
    1. Methods oe Dedication.
    An owner of property may dedicate his property to public use by a chart or map in which the streets or grounds intended as such, are marked; or he may dedicate by allowing the public to use the property, in which case an acceptance by the public is sufficient to constitute a complete dedication.
    2. Unacknowledged Map Effectual and Competent as Evidence.
    A map of a village made by a surveyor showing the lots and streets together with the boundaries thereof, shown to be the only map thereof while it remained a village, and which, though not acknowledged, appears to have been consulted, followed and used in all conveyances by the original grantors and by the public authorities and recorded, not among the maps, of the county, but in the records of deeds, though it is just as effectual to bind the parties who dedicated the streets and lands and public grounds thereof as though acknowledged by them. Such a map, or a copy showing original lines and subsequent additions, is competent as evidence in determining the width of streets shown thereon.
    3. Map by which Village was Incorporated is Binding.
    The fact that the act creating and establishing a village refers to a map thereof which is shown to have been the only map in existence, and incorporates the village according to such map, the village agreeing to the same, binds everybody owning property in such village.
    4. Statute oe Limitations does not Run Against City’s Rights in Street
    A city in exercising its jurisdiction over its streets, performs a public duty placed upon it as agent of the state and not in its private right or by reason of its private existence. Hence, the statute of limitations does not run against the rights of a city in its streets.
    5. Statute of Limitations dobs not Run in Favor of Trespasser.
    The statute of limitations does not run in favor of one who trespasses upon a street or highway, by fences, trees, shrubbery or anything of that nature.
    6. Basis of Limitation Against Public Rights — Equitable Estoppel.
    The ground upon which decisions holding that the statute of limitations may run against a municipal corporation as to its streets, where the property owner will suffer a great hardship otherwise, is based on the doctrine of equitable estoppel.
    Appeal.
    D. J. Nye, C. A. Metcalf and A. Z. Tillotson, for plaintiff.
    First. Our claim is that Lorain street in question was established and opened by the county commissioners on the third day of January, 1887, at the then legal width of sixty feet. Whatever was thereafter done, if anything, to make its width sixty-six feet was by some authority other than said commissioners, and the same legal proceedings were necessary to tack on the additional six feet in width as if no street were in fact there.
    Proceedings for appropriation of land for street purposes are strictly construed. Currier v. Railway Co., 11 Ohio St. 227.
    Second. If the street was not in fact laid on the line established by the county commissioners, its user for sixty-five years has established the present line of the street. See Flliott on Roads, page 290-1.
    Third. The evidence shows that the street was bounded on both sides by a continuous line of fence at the practical width of sixty feet for about sixty years; that the street was paved, sidewalks and curbings laid, grades established, lawns and trees placed in conformity to the lines of such fences, which facts established adverse possession to the six feet additional, even if it were once part of the highway.
    As to Ohio law of adverse possession against municipalities see Cincinnati v. First Presbyterian Church, 8 Ohio 299 ; Williams v. First Presbyterian Society, 1 Ohio St. 478-510; Cincinnati v. Bates, 5 Ohio St. 594; Lane v. Kennedy, 13 Ohio St. 42-46; Railway v. Commissioners, 31 Ohio St. 338, 349; Flster v. Springfield, 49 Ohio St. 82-98.

      Fourth. The purported plat in book J, page 540, designating the street as sixty-six feet width has no force for two reasons in addition to those above given. First, it was made at least six months after the street was opened at sixty feet wide by the county. Secondly, the plat was not signed by the proprietors of the land, or any of them as was required by law. See Ohio Statutes of 1831, page 350.
    E. G. Johnson and W. B. Bedortha, for defendant.
   CALDWELL, J.

This is a controversy in this court on appeal, over the width of a street, and as to whether the plaintiffs are occupying any part of the street as laid out and dedicated; and they bring this action to enjoin the village of Oberlin from laying its sidewalk further in upon this land, or further from the center of the street than it now is.

The county commissioners of Lorain county opened a county road, east and west through Oberlin, known as West Lorain street. This was belore Oberlin became a village. And the plaintiffs claim:

First. The street is only sixty feet wide, as laid out in 1837.
Second. The land in question was never in the street.
Third. Adverse possession.

It is admitted that at the time the county commissioners established this road, that it was done regularly as the statutory laying out and establishing of a highway which passes through what is now the village of Oberlin.

That being ascertained, the street sixty feet wide and its location upon the ground is all that is to be determined in this case, unless, thus establishing the street, it takes in some of the plaintiff’s land, and if it does, then the question of the statute of limitations comes in, as to whether the land can be claimed after the persons owning this property have occupied it or had it within their premises for so long a period, from 1837, or on or about that time; not quite so long as that.

Now this is true, unless there has been a dedication of a street wider than that since. It is not claimed that there is any other statutory dedication than the one I have already named; but it is claimed there was a common law dedication of a street not only sixty feet wide but sixty-six feet wide, and it has been so used and accepted by the public and that that street is now of that width, and the village of Oberlin', or city of Oberlin I guess it is now, has a right to have the full width of that street, and hence has a right to lay its walks where it is contemplating, and the plaintiff has no right to the restraining order in this case.

There are various ways in which an owner may dedicate his property. He may dedicate it by allowing the public to use it, or may dedicate it by a chart or map in which he marks the streets, and their widths and the public grounds intended by him as such. And where there is a user, and where the public can be said to have accepted the street, that is sufficient to make a street.

In order that the defendant may overcome the establishment of this street by the county commissioners, it introduced in evidence here a map, which has been received by this court subject to exceptions to be passed upon at this time, as to whether it is proper evidence in the case or not. That map was made by Freeman, a surveyor, and it is on record ; not among the maps of the county, but in the volumes of deeds. It is recorded, and a certified copy of it is brought into this case.

No objection is made by reason of the certified copy; the objection is that it is not competent in the first place. And the principal reason urged why it is not competent is, that it is not shown in this case that the original proprietors of these lands, the college, the owners who obtained them in large tracts and divided them up and sold them out in lots, that those owners ever in any way recognized this map. It is claimed the evidence shows it is not their map. That is, it don’t show that they ever acknowledged it, that they ever required it to be put on record; that they ever made it or had it made for themselves. Well, if that is true,- unless more than that can be shown, it is not entitled to go in evidence in this case as establishing: the boundaries and the width of these streets.

Now to show that while the original proprietor may not have had this map made, may not have acknowledged it, may not have had it put on record, yet it is shown that a map known in the evidence as “ Exhibit C,” was made, which is exactly like this map, only showing more of the territory divided into lots, made at a later time, and which is really the same map. Evidently two maps could not be made independent of each other and made just alike as they are; one must be a copy of the other; and that in deeding all these lands in question and other lands of the college, the college and the public authorities there went by that map consulted it, as to lots, as to boundaries, as to streets, and everything that pertained to the location of these different parts of lands upon the ground.

Now, that is one ground on which it is claimed the first map becomes competent, and the second is competent because that clearly ■ under the evidence was recognized as the map of this ground by the original proprietors.

It has been said that that map C,” was made at too late a time to bind these parties, while the map purports to be made a month or two perhaps after the deed of this property was originally given, the first deed in 1857 that was, and evidently the data was taken either from that map or from the first map I have referred to, the map made by Freeman, a copy of which is introduced into this case.

Now, it don’t make much difference whether a party makes a map himself and acknowledges it and puts it on record, — those are the steps necessary for him to make a dedication, where it is had by map, — or whether he acknowledges a map that some one else has put on, and follows it in his conveyances, it being shown clearly not only that this map has been followed or used in all these conveyances, but it is shown that it is the only map of the village of Oberlin when it was a village. That being true, it being the only map and being a map followed, it is just as effectual to bind the parties who originally dedicated these streets and lands and public grounds, as though they had acknowledged it in the first place for that purpose.

In the second place, this first map, the map of Oberlin, was evidently the only map that was before the legislature when it passed the bill creating or establishing the village of Oberlin. And that act referred to a map that was evidently before the legislature. And it is shown that this is the only map that was then in existence, and it was the only map that could have been referred to. That being true, that map being there established, and the legislature incorporating the village according to that map, and the village agreeing to that map, everybody owning property was bound by it.

For these reasons we think that both of these maps are admissible in evidence.

Now these maps say, both of them, that this street in question is a street sixty-six feet in width, one hundred links. It is marked on the large map, which is the last one made in 1857, on the east end is marked one hundred links; on the north side of the College Green it is marked one hundred links east of the Campus; and it is marked one hundred links west of the Campus. This establishes it, this map does, as a street sixty-six feet wide, the first map established it the same way,

As we have stated, the acknowledgment of these maps afterwards, and deeding according to them and following them, if they were so far adopted by the original proprietors, then that was a dedication of those streets sixty-six feet wide, one hundred links.

That being true, the only thing further is to see whether there has been an acceptance on the part of the public, and when we say on the part of the public we do not mean on the part of the lot owners. If the street was dedicated and the public has accepted it, that is all that is required.

The street was opened on the north side as a sixty-six foot street, and on the south side along by the college grounds or College Green as it is called, it is a sixty-six foot street; then there is a jog in the street just beyond the College Green of five or six feet, perhaps six feet, and that jog continues on the south side with the distance varying, growing less as Prospect street is approached, and beyond Cedar it grows less all the way out, but the narrowest place is in front of the property in question, of Miss Wright’s property, which is only about twenty-five feet.

The witnesses testified that it is easy to be seen that there is a curve in the sidewalk, that it projects at this point along there, a long bend in it, that the west end of the sidewalk lies in on the lots and the east end also lies in on the lots further than the other, and the measurements confirm this testimony.

Now the monuments of this street are thoroughly established by the evidence of the surveyor and by those who have seen the monuments. There is a monument on the northeast corner of the College Green; then there are monuments at the intersections of streets from that on, four monuments establishing the center line of this street, and this street as laid out in the first place was laid out as being on the original lot lines; but it is impossible now, the surveyor tells us, to tell where the original lot lines are.

The description of the original lots included monuments that have long since perished and been oblitered and no trace of them can be found. Therefore there is no way of establishing the original lot lines» except to establish them by the streets that are laid upon them. This street being laid upon the original lot lines it must now be conclusive under the facts and the facts that are absent and cannot be had by the court; it must now be conclusive that those monuments in West fiorain street are on the lot lines; and that lot line and those monuments we cannot change. If the court could upset long established monuments and surveys of that character we would soon get landholders into great confusion. It would be impossible. As I stated, this street along the north side has been occupied as thirty-three feet; the line of occupancy has been thirty-three feet, uniform from the center as is established by those monuments, on the south side it has varied. We think, therefore, it is conclusive in this case that there has been a user of this street as a sixty-six foot street sufficiently to make a complete dedication of it for all uses, and we therefore say that this is a sixty-six foot street lawfully.

The question remaining is as to the statute of limitations. We are pointed to three cases. Cincinnati v. Church, 8 Ohio, 298; Williams v. Presbyterian Socy., 1 Ohio St. 478; Cincinnati v. Evans, 5 Ohio St. 594) wherein the Supreme Court of this state has held that the public maybe estopped, or the statute of limitations may run against the public in its use of a street.

Then we are pointed to cases,' an equal number, a greater number we will say, of the latest cases, where the Supreme Court has held that the public cannot lose its rights in the street.

By some authorities it is held to be a nuisance to occupy any part of the public highway, and that repeating a nuisance from day to day and time to time the statute can never run against a public nuisance, and if that is the law, if that is the ground, why it is well taken, for that doctrine is well established in the law of nuisances.

Then it is claimed by some that the Supreme Court has never yielded this doctrine, for it has come to be thoroughly conceded, except in cases where it would work an extreme hardship by reason of the owner of the adjoining lands having built out upon the street very expensive buildings, and that he may be greatly injured by having to cut them down, and the public stood by and did not interfere, and some authors put it upon the ground of equitable estoppel, and it is claimed by some that this marks the distinct difference between the two classes of cases in this state.

Now in this case it has been argued that the real difference between these two holdings in this state, these two opposite holdings, apparently opposite, is this, that a county is only a quasi corporation representing the state, and the statute never can run against the state, and 'the county so representing the state as it does the statute of limitations cannot run against the county, and therefore a highway out in the country is distinguished from a street in the city; that no rights can be gained in it on the ground it is the state that is being interfered with, through its agent, the county commissioners of the county.

But a municipal corporation has two existences; one its individual rights and another its public rights. In its private rights and obligations it has always been held that the statute of limitations will run against it, but in its public rights, wherein it represents the state, it is held that the statute of limitations does not run against a city any more than it would against a county or against the state.

Now in so far as the city exercises its dominion and jurisdiction over the streets of the city, it is one of its public duties; it is a duty that is placed upon it as the agent of the state, and not in its private right, or by reason of its private existence. That being true as to its streets, it stands in precisely the same situation that the county does to the highway. Hence the argument don’t hold good.

We believe that some of the cases in this state that have held that the statute of limitations may run against a municipality do cause a great hardship, and while they have not been overruled, and have been recognized in later decisions, yet I believe for one, and have so stated heretofore from the bench, that the real ground of those cases is on the ground of equitable estoppel, and that the doctrine to-day is in this state, thoroughly established outside of these cases, as an independent principle of law from those, that where any one trespasses by reason of fences or shrubbery or trees or anything of that nature upon the highway, whether it be a street or highway in the country, that the party cannot plead the statute of limitations.

Now it is said this is going to work a great hardship, but the evidence in this case shows that the plaintiff has more land than the land she purchased, aside from the street claimed by the village or by the city. If the city gets all the land it claims there, she still has two feet more from rear to front than her deed calls for; she loses nothing; it seems like losing something, but it is really ’ losing nothing, and the shrubbery that is along there as shown by the evidence amounts to mere nothing.

That part of it that is prized at all can be easily set back. There are trees there; if they establish this as a sixty foot street that brings those trees right in the center of the walk, more nearly in the walk than it would to make it the width claimed by the city.

In establishing it by the claim of the city it would seem hardly necessary to destroy the trees, from the evidence here, because while they will lie in the walk, it will only be in the edge of the walk. You cannot go into any town or city hardly that you do not see trees standing in that way; it is a common thing, and no one objects to it; they think more of the shade than they do for that little bit of walk.

We think, therefore, the plaintiff has not shown any right to recover in this case, and her petition is dismissed. A decree may be taken accordingly.


author: MARVIN, J.

text:
    CONTRACTS.
    [Summit (8th) Circuit Court,
    January Term, 1902.]
    Caldwell, Marvin and Hale, JJ.
    Postal Telegraph Cable Co. v. Akron Cereal Co.
    1. Unconditional Acceptance oe Contract by Wire — Mistake.
    An unconditional acceptance of an offer by wire to furnish certain supplies at a price named, constitutes a contract binding the sender of the message, though the price named is erroneous, and not the price given by the sender to the telegraph company.
    2. Facts Failing to Establish Completed Contract.
    Where A telegraphed B asking the latter the price at which he would furnish five thousand sacks of grits, and B, intending to fix the price at 6 3-4, sent a message in which, by mistake of the telegraph company, the price named was 6.34, whereupon A answered that he would take 2,000 sacks at 6.34, and B replied by letter that “we have your order for two thousand sacks and will let you have them at t.ur price, 6 3-4,” there was no completed contract to furnish the goods at 6.34, and B is not liable for failure or refusal so to do; and B, having elected to furnish the goods at 6.34 is not entitled to recover from the telegraph company the difference in price.
    3. Breach op Contract — Duty of Party Injured.
    The law imposes upon the parties subjected to injury by the breach of a contract the active duty of making reasonable exertions to render the injury light as possible. If the party injured through negligence or willfulness allows the damage to be unnecessarily enhanced, the increased loss falls ©n him.
    Allen & Cobbs, for plaintiff in error.
    Slabaugh & Seiberling, for defendant in error,
    cited:
    Telegraph companies are not insurers but are liable for loss occasioned by their negligence and cannot contract against such liability. 25 Am. & Eng. Enc. Eaw (1 ed.), 749; Telegraph Co. v. Griswold, 37 Ohio St. 301 [41 Am. Rep. 500].
    Failure to transmit a message in the form received is prima facie evidence of negligence. Telegraph Co. v. Griswold, 37 Ohio St. 301, 313 [41 Am. Rep. 500] ; 25 Am. & Eng. Enc. Eaw (1 ed.), 831; Ritten-house v. Telegraph Co., 44 N. Y. 264 [4 Am. Rep. 673].
    A telegraph company is under the legal duty to transmit a message without error or delay, and is liable in damages for any injury of which its negligence is the proximate cause. 25 Am. & Eng. Enc. Law (1 ed.), 778, 780; Telegraph Co. v. Griswold, 37 Ohio St. 301 [41 Am. Rep. 500].
    Cipher and untelligible messages are the same as any other when explained to the company, or when understood by the trade and company. 25 Am. & Eng. Enc. Eaw (1 ed.), 842,845, 849 ; Pepper v. Telegraph Co., 11 S. W. Rep. 783 [87 Tenn. 554; 4 E. R. A. 660 ; 10 Am. St. Rep. 699.]
    Or when importance is disclosed on face of message although not intelligible. Telegraph Co. v. Griswold, 37 Ohio St. 314 [41 Am. Rep. 500],
    The dispatch in the case at bar is not a cipher dispatch and is sufficiently intelligible to acquaint the telegraph company with its importance. Joyce on Elec. Eaw, p. 778; Tyler v. Telegraph Co., 60 Ill. 421 [14 Am. Rep. 38] ; Rittenhouse v. Telegraph Co., supra; Pepper v. Telegraph Co., supra; Carland v. Telegraph Co., 76 N. W. Rep. 762 [118 Mich. 369 ; 43 E- R. A. 280].
    Starting a dispatch incorrectly from the sending office is evidence of gross negligence. The company is bound to send it literally. Tyler v. Telegraph Co., 60 Ill. 421 [14 Am. Rep. 38].

      In all the cases above cited the courts held that the abbreviated form of the message was sufficient to show the importance and nature of the same, and the telegraph company was held responsible in damages for the erroneous transmission. The presumption is that the message was received as sent. Joyce Elec. Eaw, p. 1045.
    Evidence is competent to show that the telegraph company had notice of the importance of the same. Joyce Elec. Eaw, p. 1044; 25 Am. & Eng. Enc. Law (1 ed.), 846.
    The telegraph operator is the company’s agent in receiving the message and his admissions are competent against the telegraph company. Carland v. Telegraph Co., 76 N. W. Rep. 762 [118 Mich. 869; 48 E- R. A. 280]; Morse v. Railway Co., 72 Mass. 450.
    The telegraph company is to be regarded as the agent of the party sending the dispatch, and the sender of the message is bound by its terms as delivered to the addressee however much it may have become changed in the process of transmission. Joyce Elec. Eaw, pp. 904, 905 ; 25 Am. & Eng. Enc. Eaw (1 ed.), 890; Dunning v. Roberts, 35 Barb. 463; Saveland v. Green, 40 Wis. 431; Tyler v. Telegraph Co., 60 Ill. 421 [14 Am. Rep. 38] ; Ayer v. Telegraph Co., 10 Atl. Rep. 495 [79 Me. 493 ; 1 Am. St. Rep. 353]; Morgan v. People, 59 Ill. 58; Western Union Telegraph Co. v. Blanchard, 68 Ga. 299 [45 Am. Rep. 280] ; Squire v. Telegraph Co., 98 Mass. 232 [93 Am. Dec. 157] ; Telegraph Co. v. Schotter, 71 Ga. 760.
    The telegraph company is liable to the cereal company for the difference between the price stated in the message as delivered to Bosch and the value of the goods. 25 Am. & Eng. Enc. Eaw (1 ed.), 849; Joyce Elec. Eaw, p. 964; Ayer v. Telegraph Co., supra.

    Parol evidence is admissible to show the meaning to the trade of “ 634 guilders,” taken with the context. Western Union Telegraph Co. v. Collins, 25 Pac. Rep. 187 [45 Kas. 88] ; Carland v. Telegraph Co., supra; 25 Am. & Eng. Enc. Law (1 ed.), 836 ; 1 Am. & Eng. Enc. Law (2 ed.), 99, 100 ; People v. Brown, 55 N. Y. 200 ; Abbott’s Trial Brief, 25.
    As to acceptance and completion of the contract. 7 Am. & Eng. Enc. Eaw (2 ed.), 125, 126, 130, 131; Beach on Cont. 58, 61; Tele graph Co. v. Griswold, supra; Trevor v. Wood, 36 N. Y. 306 [93 Am-Dec. 511],
    Knowledge of the error does not excuse the defendant if a contract existed. Telegraph Co. v. Griswold, supra-, Ayer v. Telegraph Co. supra; Trevor v. Wood, supra-, Durkee v. Railway Co., 29 Vt. 127; Telegraph Co. v. Schotter, supra.

    Heard on error.
   MARVIN, J.

The case of the Postal Telegraph Cable Company against the Akron Cereal Company comes into this court upon a petition in error, seeking to reverse the judgment of the court of common pleas.

Suit was brought in that court by the defendant in error against the plaintiff in error upon this state of facts:

One N. A. Bosch, of Maastricht, Holland, had some correspondence with the Akron Cereal Company, of this city, in relation to the purchase by the former from the latter of certain goods known as distillers’ grits. This correspondence was prior to November 29, 1898. By such correspondence it wyas known to the cereal company that if Bosch wanted to wire it asking price for such grits he would use the word “cotation” (spelled a little after the Holland way), meaning “ quotation,” but the word “ cotation ” was used. But, further, it was known by both parties that the word “sack” meant a certainty quantity of the grits. With this knowledge on the part of both, Bosch, on November 29,1898, cabled the cereal company in these words:( “Cotation 5,000 sacks.” This meant to both the sender and the cereal company, “At what price can you furnish five thousand sacks of distillers’ grits ? ” _

To this, on the next day, November 30, the cereal company sent to the Postal Telegraph Cable Company for transmission by cable to Bosch the following: (“ 63dx4 guilders cif Rotterdam December January.’’ This meant to the sender that it would furnish five thousand sacks of distillers’ grits, including cost of insurance and freight, at Rotterdam, Holland, at six and three-quarters guilders per sack, to be delivered in December, 1898, and January, 1899; and if it had been sent as it ought it would have meant this to Bosch. The letters “dx” between the figures “3” and “4” meant, both to the sender and to the telegraph company, that a hyphen was to be placed between these two figures. __ '

The telegraph company undertook to transmit this as received by it to Bosch at Maastricht. Instead, however, of sending it as delivered, it sent a message to Bosch in these words: “ 634 guilders cif Rotterdam December January.” (This was, and might well be, understood by Bosch as offering to send the five thousand sacks at the price of 6.34 guilders per sack instead of six and three-fourths; that is, 6.75 per sack, so that by the mistake of the telegraph company the price given to Bosch was 41-100 guilders less than that given by the cereal company to the telegraph company. This, on each one thousand sacks, would make a difference of four hundred and ten guilders, or, under the evidence in this case, that a guilder is worth forty cents of our money, it would make a difference of $164 per thousand sacks.

Assuming that the telegraph company was the agent of the cereal company in such wise that what it said to Bosch should he held to be the act of the cereal company, and, in our view of the case, that assumption can be made and do no prejudice to either party; no discussion is had as to an argument made here upon the question of whose agent the telegraph company was.

An unconditional acceptance of this proposition would have constituted a contract binding the cereal company to furnish to Bosch five thousand sacks of grits at $164 less per thousand sacks than the price it really fixed for the goods; that is to say, that would be true if the figures “634” meant (and they properly meant) 6.34. Some discussion was had here as to whether Bosch was justified in understanding the figures “634” to mean 6.34 guilders. As has already been said, it was agreed between the parties, or, if it has not been stated, it was agreed between the parties that the price should be given in guilders.

Now, since six hundred and thirty-four guilders would be certainly so much that Bosch must have known it did not mean that, there can be little doubt that it was properly understood by Bosch as meaning 6.34 guilders. That being true, what has already been said, that if there had been an unconditional acceptance of this offer, and assuming that the telegraph company is the agent of the sender, the cereal company would have been bound to furnish five thousand sacks at 6.34 guilders per sack.

On December 3, 1898, Bosch cabled the cereal company in these words: “Accept 1,000 each month.” This meant to each of the parties that Bosch would take one thousand sacks of grits in December, 1898, and one thousand in January, 1899, at an agreed price. To Bosch it meant at 6.34; to the cereal company it meant 6 3-4, or seventy-five hundreths. If this modified proposition to take two thousand sacks instead of five thousand sacks in December and January had been accepted without explanation or condition, assuming, as before, the agency of the telegraph company, the cereal company would have been bound to deliver the goods at 6.34.

The cereal company did not have the grits on hand, but decided to furnish the two thousand sacks at 6 3-4 guilders, which it understood to be the agreed price. Thereupon it ordered them from the Cumberland Mills, at Nashville, Tennessee; and at once, on the day of this last cable message, it wrote Bosch a letter, put it into the mail at Akron, and in that letter the cereal company siaid: “We beg to confirm our cable to you quoting 6 3-4 guilders per hundred kilos in one hundred kilo bags for our choice white brewer’s grits cif Rotterdam; also to confirm your acceptance received this morning of one thousand bags each month, meaning December and January shipments. We have, therefore, entered your order for one thousand sacks, etc.” That letter was received by Bosch on December 15, 1898. Whatever notice then Bosch ever received that the cereal company had accepted his offer for one thousand sacks each for the months of December and January, he got by this letter; and this letter notified him that the acceptance was at 6 3-4 guilders instead of 6.34.

It is said that when the cereal company mailed that letter it thereby accepted the modified order for two thousand sacks instead of the proposition to furnish five thousand sacks, and that there was no change in the price, and that, therefore, it should be held that the cereal company became bound to furnish the two thousand sacks at 6.34.

Suppose, instead of mailing that letter, the agent of the cereal company, by some means, could have talked with Bosch on that day, and said to him: “Mr. Bosch, we had notified you we would furnish you five thousand sacks at a price; we have now got your order for two thousand sacks at a price, and we will let you have them, that price being 6 3-4,” all in one conversation, all at the same time, is it possible there would have been any binding contract on the cereal company to furnish at 6.34, when at the very time they say to Bosch, we propose to furnish you the two thousand sacks that you want at the price that we have heretofore offered you, to-wit, 6 3-4 ? It seems clear that Bosch would not have been able to enforce that contract, that he could not have recovered damages if the cereal company refused to furnish those goods at less than 6 3-4.

Bosch wrote a letter on December 3, to the cereal company. That letter is found in the bill of exceptions. It is somewhat difficult to read, and it is not necessary to read it. It is a letter in which he, on that same third of December, stated to the cereal company that he begged to confirm his order by cable for two thousand sacks at 6.34. That was received by the cereal company on December 17.

Now, if there was ever a contract between the cereal company and Bosch, it seems very difficult to fix any time when that contract was completed. First, Bosch says, “ What will you furnish me five thousand sacks for?” The Cereal Co. said, — what was received by Bosch said (giving the most favorable interpretation to the cereal company), “6.34.” Bosch said, “I will not take five thousand sacks at that price, but I will take two thousand sacks at the price you have fixed,” Bosch having got it that the price fixed was 6.34. The cereal company said, We have your order for two thousand sacks, and we will let you have them at our price, 6 3-4.Bosch said, I won’t take them at that price, but I insist on the 6.34.” When was the contract completed between Bosch and the cereal company ? -We think it clear there never was a contract completed between them. There never was a time when Bosch could have held the cereal-company under a contract to furnish two thousand sacks at 6.34. Up to this time, although the cereal company had determined that it would furnish, supposing it was to get 6 3-4 for the goods, and had ordered them, no goods had been shipped at all.

Several days after both parties knew of this mistake. The cereal company sent on the goods, and it thereafter settled with Bosch at 6.34, Bosch insisting that he had a right to them at that price; although, if we are right, no contract had been made by which it was bound to do it, it did it; furnished the goods at 6.34, and now sues the telegraph company for the difference, and recovered just the amount, $164 per thousand sacks, which, under this evidence, would be the difference between the price at 6.34 and 6 3-4.

This case was tried to the court without the intervention of a jury, but the measure of damages allowed by the court is determined by the difference between the price of these goods at 6.34 and the price at 6 3-4.

The law is well settled, that for its negligence to send messages as delivered to it, a telegraph company is liable in damages, if damages are thereby occasioned. Of course, this does not mean it is an insurer, but it means it puts upon the company the burden of showing a suitable and good reason why; it did not send what was furnished it as is said in Western Union Tel. Co. v. Griswold, 37 Ohio St. 301, it may show possibly that by act of God or the public enemy it was unable to send, atmospheric conditions may have rendered it impossible but, prima facie the company is liable for the mistake it makes; but it is liable only for the damages which result naturally, proximately and necessarily from such mistake as is made.

In this case there is no question about the negligence of the telegraph company. It was clearly negligent, for it is shown here that it understood that the message as it reached it meant 6 3-4, and it did not send it that way.

The cereal company here was damaged at least to the extent of what it paid for the message which was sent. It may have been damaged beyond that for something else it did, but, if so, there is no evidence as to anything about it. We don’t know, it might not have been, and possibly there is something else by which it was damaged, possibly the expense of negotiating with the Cumberland Mills for the goods. However, there is no evidence about that here.

The court was, in error, in its measure of damages. The measure of damages was not to be determined by the difference between the price that Bosch understood the goods to be and the price the cereal company understood the goods to be, because there never was any contract between the cereal company and Bosch that it should deliver those goods at that price of 6.34.

Our attention is called to the case of the Western Union Tel. Co. v. Griswold, supra. Counsel in this case are very familiar with that case. It is clearly to be distinguished from this. In that case a message was sent by the agent of Griswold & Company from Canada asking if he should purchase flax seed, a certain number of bushels at $1.50 per bushel. The telegraph company, instead of putting that $1.50 made it one five. Griswold & Co. immediately notified their agent to buy the goods. Here is the answer. “Yes, if seed is prime, and we can hold at London until spring.”

Attention is called to that in the argument of this case, suggesting that here was not an unconditional acceptance of an offer. This was an instruction by Griswold & Co. to their own agent, in answer to a dispatch which their agent had sent to them, and on which, of course, he was authorized to act. We think it is very clearly to be distinguished from this case. In that case the telegraph company was held liable.

Judge Boynton, in delivering the opinion for the majority of the court, announced three propositions, perhaps four.

First. That the verdict was sustained by sufficient evidence. That he held as a fact.

Then, as propositions of law, he held that.the special agreement that is shown in the case, whereby the company says it will not be liable unless the message is repeated, was not binding, that the company could not relieve itself from its own negligence by that agreement; that did not relieve the telegraph company from the consequences of its own negligence.

Second: As a matter of law, Judge Boynton announces that the failure to transmit the message as delivered is prima facie evidence of negligence.

Third: As a matter of law, he holds that that message was not obscure; that is all the propositions of law.

Judge Okey dissented in this case, and he said that the verdict was not supported by sufficient evidence, and taking that view of it, he then discusses what the law would be in case the verdict was not supported by sufficient evidence.

Claim was made that Cowpland, the agent of Griswold & Company, had notice of the erroneous message, or of the fact that the message was erroneous before he bought a bushel of flax seed. That was denied on the other side. Judge Okey says that it is clear that Cowpland did know before he bought any seed, and then he goes on and discusses what the law would be in that case, and nothing he announces in that regard is at all at variance with the opinion of the court as delivered by Judge Boynton.

Attention is called to Ayer v. Telegraph Co., 79 Me. 493 [21 Am. & Eng. Corp. Cases 145], where there was a mistake made in a message about some lath. Without stopping to read the case, it shows there was a contract completed between the parties, and that being true it was held that the telegraph company was liable for the mistake it made in its message.

The case referred to in 25 Enc. Taw, (1 ed.) page 890, Western Union Tel. Co. v. Shotter, 71 Ga. 760, shows that there was a contract complete between the parties, that the contract was different from what it would have been, because of the negligence of the telegraph company.

It is true that in neither of these cases was there a performance until after the mistake was known, but there was a complete contract between the parties, and that being binding, the party who lost by it held the telegraph company.

As being applicable as well to cases of this sort involving telegraph messages as to any other contracts, the rule of law seems to be such as is stated in 2 Townsend on Negligence (2 ed. 1886), 858, par. 20, where it is said that the law, for wise reasons, imposes upon the parties subjected to injury for the breach of a contract the active duty of making reasonable exertions to render the injury as light as possible. Public interests and sound morality accord with the law in demanding this, if the injured party, through negligence or wilfulness, allows the damage to be unnecessarily enhanced, the increased loss justly falls upon him.

Applying that principle here, although it was not a contract as between the parties, yet there was to be some loss, at least the expense of the message, and certainly a loss to the cereal company if it was mistaken or had been led into making a contract at $164 per thousand sacks less than what the property ought to have brought, but before any contract was made and before any goods were delivered it knew of that.

Now, neither good morals, it seems to us, nor sound reason, would allow the company to go on and furnish those goods and charge it up to the telegraph company.

We think there was error in the judgment of the court below and it is reversed, and the case remanded to the court of common pleas.


author: GIFFEN, J.

text:
    LANDLORD AND TENANT.
    [Hamilton Circuit Court,
    1902.]
    Swing, Giffen and Jelke, JJ.
    Shinkle, Wilson & Kreis Co. v. Robert J. Birney et al.
    Damages from Collapse of Building — Knowledge of Defects.
    In an action by the tenants of a building to recover damages for its collapse due to the negligence oí the landlord permitting the building to get out of repair and fall into decay, it is necessary to show that the owners had knowledge, actual or constructive, of the defects causing the damages. In case of latent defects, if the tenant has equal opportunities with the landlord to discover such defects, the doctrine of caveat emptor applies.
    Heard on Error.
    Robert Ramsey, for plaintiff in error,
    cited : '
    1. There is an exception to the general rule of caveat emptor arising from the duty which a lessor owes a lessee. Where there are concealed defects attended with danger to an occupant, and which a careful examination would not discover, known to the lessor, the latter is bound to reveal them, in order that the lessee may guard against them. While the failure to reveal such facts may not be actual fraud or misrepresentation, it is such negligence as may lay the foundation of an action against the lessor if injury occurs. Cowen v. Sunderland, 14 N. E. Rep. 117 [145 Mass. 863 ; 1 Am. St. Rep. 469]; upon the same point, Booth v. Merriam, 30 N. E. Rep. 85 [155 Mass. 521]; Minor v. Sharon, 112 Mass. 477 [27 Am. Rep. 122] ; Howe v. Hunking, 135 Mass. 380; Martin v. Richards, 29 Me. 591; Wood on Landlord & Tenant, p. 855; Wilcox v. Hines, 46 S. W. Rep. 297 [100 Tenn. 588]; Lowell (City) v. Spaulding, 4 Cush. 277 [50 Am. Dec. 776, 783]; Edwards v. Railway Co., 98 N. Y. 245, 256 [50 Am. Rep. 659]; Tuttle v. Manufacturing Co., 13 N. E. Rep. 465 [145 Mass. 174, 175]; Kern v. Myll, 45 N. W. Rep’. 587 [80 Mich. 525, 530; 8 L- R. A. 682] ; Thum v. Rhodes, 55 Pac. Rep. 264 [12 Colo. App. 245] ; Moore v. Parker, 64 Pac. Rep. 975 [Kan.] ; Carson v. Bodley, 26 Pa. St. Ill; Krueger v. Ferrant, 13 N. W. Rep. 158 [29 Minn. 385],
    2. Actual knowledge of defendants as to defects. Cutter v. Ham-len, 18 N. E. Rep. 397 [147 Mass. 471; 1 L- R. A. 429].
    3. Repairs — by whom to be made. Leavitt v. Fletcher, 10 Allen, 119; Foster v. Peyser, 9 Cush. 242 [57 Am. Dec. 43] ; Readman v. Conway, 126 Mass. 374; Milford v. Holbrook, 9 Allen 17 [85 Am. Dec. 735] ; Shindlebeck v. Moon, 32 Ohio St. 264, 267 [30 Am. Rep. 584] ; Burns v. Solomon, 4 Dec. 232 (3 N. P. 185); Dorse v. Fisher, 10 Re. 163 (19 Bull. 106); Toledo Real Estate & Invest. Co. v. Putney, 10. Circ. Dec. 698 (20 R. 486); Hohly v. Sbeely, 11 Circ. Dec. 678 (21 R. 484, 494).
    4. The law has appropriated no particular form of words for the creation of a covenant. Any words are sufficient which show the intent of the parties. Wright v. Tuttle, 4 Day 313, 321; Davis v. Lyman, 6 Conn. 249, 252; Marshall v. Craig, 1 Bibb 379 [4 Am. Dec. 647]; Johnson v. Hollingsworth, 11 N. W. Rep. 843 [48 Mich. J.4Q]; Hallett v. Wylie, 3 Johns. 44 [3 Am. Dec. 457]; Taylor v. Preston, 79 Pa. St. 436 ; Josling v. Kingsford, 13 C. B. N. S. 477; Columbian Iron Works v. Douglas, 34 Atl. Rep. 1118 [84 Md. 44; 33 L. R. A. 103; 57 Am. St. Rep. 362]; Osgood v. Lewis, 2 Harr. & Gill. 495 [18 Am. Dec. 317] ; Gardner v. Lane, 9 Allen, 492; Dounce v. Dow, 64 N. Y. 411; Benjamin Sales (7 ed.), pp. 644, 677.
    5. Representations made by an agent in the course of and as a part of a transaction, in which he was authorized to represent his principal and which were relied upon by the person to whom they were made are actionable upon the ground, either of negligence or deceit. Cate v. Blodgett, 48 Atl. Rep. 281 [N. H.] ; Gifford v. Sandrine, 37 N. J. Eq. 127; Tillyer v. Glass Co., 7 Circ. Dec. 209 (13 R. 99); 1 Wood Landlord & Tenant, Sec. 135 and cases cited; Gregor v. Cady, 19 Atl. Rep. 108 [82 Me. 131, 137; 17 Am. St. Rep. 466] ; Gill v. Middleton, 105 Mass. 477 [7 Am. Rep. 548] ; Collier v. Collier, 96 N. Y. S. 94; Dayton v. Hogglund, 39 Ohio St. 671, 680; Cleveland, C. C. & I. Railway Co. v. Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321].
    John S. Conner and Harrison & Aston, contra.
    The plaintiffs in error sued for $22,377.59 damages on account of the collapse of a building occupied by them and belonging to the defendants in error. The plaintiffs claimed a warrant of the premises, and alleged that the collapse was due to the negligence of the owners in permitting the building to get out of repair and fall into decay.
   GIFFEN, J.

Conceding the law to be as stated by counsel for plaintiff in error that ‘ ‘ if there is a concealed defect that renders the premises dangerous, which the tenant cannot discover by the exercise of reasonable diligence, of which the landlord has or ought to have knowledge, it is the landlord’s duty to disclose it, and he is liable for the injury which results from his concealment of it,” still there is no finding by the court of common pleas that the defendants in error had or ought to have had knowledge of the defects causing the damages, nor does it find that they knew how long the defective timbers had been in the building, which, togethei with other facts, was necessary to show that by the exercise of ordinary care they would have discovered the defects complained of.

If the plaintiff in error had equal opportunity with the defendants in error to discover latent defects, the rule of caveat emptor applies.

There being no more definite knowledge of defects on the part of defendants in error than that possessed by plaintiff in error, there was no greater duty imposed on the former to make the prescribed tests by “tapping or boring.”

Judgment affirmed.

The relief asked in the cross-petition in error cannot be granted, for the reason that the bill of exceptions is incomplete, and for the further reason that this court is not authorized to amend the findings of fact.