text:
    CHANGE OF BENEFICIARIES BY A POLICY HOLDER OF UNSOUND MIND.
    Circuit Court of Cuyahoga County.
    Laura L. Jordan v. The Mutual Life Insurance Company et al.
    Decided, November 26, 1906.

      Insanity — Evidence of Egomania and Megalomania.

    An insane degenerate with paranoidal tendencies and delusions which take the form of egomania and megalomania, may continue in the pursuit of his daily business and exercise such self-restraint that those associated with him will not be aware of his condition, so that, where two alienists after an exhaustive examination unqualifiedly declare a person to have been suffering with that form of insanity, their testimony will be of more weight than that of numerous associates who came in contract with him in a business way.
    IIenry, J. (orally) ; Winch, J., and Marvin, J., concur.
   This is an appeal by the plaintiff. The action as originally begun was an action to recover the amount of an insurance policy issued by the Mutual Life Insurance Company; the defendant, to Frank Jordan, plaintiff being the widow of said Frank Jordan. And a part of the relief asked for by the prayer of the petition is, that a certain change of the beneficiaries that had been sought to be made by Frank Jordan in his lifetime, with the concurrence of the insurance company, should be set aside as null and void for one or more of three reasons.

First, that the plaintiff had paid some of the premiums upon the policy, upon the faith of an agreement that the policy should be taken out in her favor.

Second, that Frank Jordan, the insured, was at the time the change of beneficiaries was made, of unsound mind, and that the person who was made beneficiary under the change, namely, his sister, Maude A. Wood, fraudulently induced him to make such change not, however, by actual fraud, but by construction of law.

Third, that the policy’s terms foi’bid an assignment without the consent of the beneficiary named therein.

As regards the first and third of these reasons, we may say without discussing them that we do not found our judgment upon them. There is no evidence tending to show that the state of facts claimed with reference to either of these grounds exists, and our construction of the policy and the provisions therein contained with reference to the change of beneficiary is not the construction which the plaintiff here seeks us to have put upon it.

With regard, however, to the second ground, namely, that Frank Jordan, the insured, was of unsound mind at the time the alleged change of beneficiary was made, and that, therefore, he was incapable of making a valid change, we have submitted to us the testimony of a great number of witnesses, pro and con.

• Among the plaintiff’s witnesses are two physicians of this city, experts, Dr. Aldrich and Dr. Upson, both of whom, upon an exhaustive examination by hypothetical questions and with respect to the results of an examination which they made of documentary matter of great variety, which was submitted to them, and the handwriting of Frank Jordan, testified unqualifiedly that he was of unsound mind; that he was an insane degenerate with paranoidal tendencies and delusions which took the form of egomania and megalomania and delusions of persecution imagined to have been suffered by him in the domestic affairs and as shown by other evidence resulting in an insane jealousy of his wife and extreme ill-treatment of her on several occasions in consequence of the delusions referred to. Their examination was exhaustive and their testimony in that behalf was, as I say, unqualified. If we say he was of sound mind, we must do so in the face of the positive testimony of these physicians. Moreover, a physician, one of the defendant’s experts, Dr. Straight, as a witness, undertook to testify from his acquaintance with Mr. Jordan in his lifetime, that, although he was a man of some peculiarities of character and conduct, yet he was of perfectly sound mind. On cross-examination, he said that if Frank Jordan wrote the writings that were submitted to him upon the stand, he should be of the opinion the Jordan was insane.

A large number of business men of this community were examined as witnesses for the defendant, having been business associates of Mr. Jordon, who, by the way, was an insurance agent. He had a wide circle of acquaintances, was a member of the Chamber of Commerce and of a committee which was appointed a few years ago to get new members, and .his work on that committee was very successful. A number of business acquaintances in this city, of high standing, who saw him from time to time in connection with his work on the Chamber of Commerce committee, or his professional duties and otherwise, testified on behalf of the defendant that in their judgment he was of sound mind. Several of them were quite emphatic that he was of sound mind, saying that the suspicion never entered their minds that he was insane.

Here there was a sharp conflict.

Referring again to the testimony of plaintiff’s experts. Their testimony was to the effect that a person suffering from this form of insanity may continue in the discharge of his business and the duties thereof for a long period of time without his insanity necessarily interfering with his success therein. And it is possible for a man suffering from this form of mental trouble to continue for a period of time without his mental trouble being particularly noticeable, or even noticeable at all, to those who . meet him from day to day while in the discharge of his duties. And it is true to a degree of such insane persons, as it is indeed of all persons, that they are capable of exercising some self-restraint in respect to making an exhibition or expression of their peculiar delusions, and, hence, it is not at all surprising, according to the testimony of these expert physicians, that the business associates of a man suffering under the form of insanity that the experts say Frank Jordan suffered from, should 'fail to observe that he was thus afflicted. ' .

Without entering into a resume of the great variety of instances that Were adduced in the testimony on the trial, which, for length, in this court was unprecedented, it is sufficient to say that the documentary matter which was presented to the experts •and presented-in evidence .to us, we ha,ve examined carefully." -It consists, in the main, of boobs owned by Frank Jordan which he had marked by drawing lines around passages that struck him, on the margins of the pages, and by writings upon the flyleaves.

The markings of the boobs was of itself very erratic, to say the least. He seemed to have a passion for marking his books, and some of them are marked page after page by pencil marks that disfigure the books, and marked without reference to anything in the printed page. But some of the pages are very significant, being with clear reference to the contents and meaning of the printed words upon the page. And the things that are written upon the fly-leaves of some of these books, so far as they are intelligible at all, and particularly of the Bible, would tend to show, according to the testimony of Dr. Straight, a hypocritical and immoral life; .yet Dr. Straight testified that Jordan, if he went home and read the Bible for hours and days at a time and marked passages such as were marked, would be insane.

We have examined this bill which is marked at great length and these books, some of which are Meyer’s Christian Living, Long’s Thoughts of Marcus Aurelius, Clerk’s Instructions to Christian Converts, Jordan’s Kingship of Self-Control, etc., and if these experts, witnesses, have correctly detailed the indicia or symptoms of this species of insanity to which they testify, and if there is such a species of insanity as we have no doubt there is, we think from our examination that we have made of these documents, in the light of the instruction that we have received from these experts, on the subject of insanity, that their deductions from these writings and these books and the markings thereon, are correct.

We can not come to any other conclusion than that the man who made these entries in these books, and made these peculiar marks, was a man of unsound mind. And, without further discussion of the evidence and because our conclusions of fact require the judgment we render, we simply say that the judgment will take the form of a reformation or annullment of the change of beneficiary that was made by Frank Jordan, and a judgment for the plaintiff against the insurance company for the amount of the policy.

I may say the insurance company is not contesting this policy; they have paid the proceeds into the hands of the Society for Savings, which is acting as receiver or trustee, by agreement of the parties. ' • :


source: Caselaw Access Project

license: Public Domain

text:
    CORRECTION OF VERDICT RETURNED BY MISTAKE.
    Circuit Court of Cuyahoga County.
    The Cady-Ivison Shoe Company v. A. Chicowicz.
    Decided, November 24, 1905.

      Trials — Court May Re-submit a Case to Jury Where a Verdict is Plainly a Mistake.

    Where a jury after returning a verdict in a replevin case were discharged, and certain members of the jury having inquired of the court as to the effect of their verdict and upon being informed that it was in favor of the defendant, protested that that was not their intention, it was not error for the court to re-assemble the jury and after ascertaining that all of them were mistaken as to the effect of their verdict, re-submit the case to them after further instructions.

      Kline, Tolies *& Goff, for plaintiff in error.

      Henry Du Laurence, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This was a replevin case commenced before John Brown, J. P., defendant in error, a retail shoe dealer, who had bought, partly on credit, a bill of goods of plaintiff in error, wholesale shoe dealers. The former having failed to pay punctually therefor, his entire stock was replevied by the company, including not only those that remained of the shoes for which he had not paid, but also others bought of the same and other wholesale dealers. All that had not been bought of plaintiff in error were subsequently returned. The rest were kept.

The cause was appealed to the common pleas court, and, on the trial there, the jury returned a verdict evincing on its face a misunderstanding of the peculiar form of verdict returnable in such cases. While court and counsel were discussing whether the verdict might not be rectified by treating part of it as surplusage, the jury were excused and told to report to the jury room for duty. Part of them left the room and part crowded about the court’s desk, inquiring about the effect of their verdict and whether it imported a finding for plaintiff or defendant. Being told by the court that it was finding against Chicowicz, they protested that it was not their verdict. Thereupon the court called the whole jury back, and having charged them further, sent them out to deliberate once more. They later brought in a verdict against the plaintiff in error, upon which judgment was rendered.

The facts that transpired after the first verdict was rendered, are brought into the record largely by the affidavits of the jurymen themselves, filed in resistance to the motion for a new trial, and incorporated in a bill ,of exceptions. It is, complained that the testimony of jurors can not be heard to impeach their own verdict. Such, however, is manifestly not the purpose or effect of this evidence. The first verdict is self-impeached, and the door is thus opened to let in the testimony of the jurors themselves in confirmation of their misunderstanding. Farrar v. State, 2 O.S., 54.

It is objected further that the court was without power, having once discharged the jury, to reconvene them; and that the jury were without power having once rendered a verdict and separated, to withdraw the same and render another. Sutliff v. Gilbert, 8 Ohio, 405, cited by plaintiff in error in support of this contention, appears, however, when examined, to afford abundant justification for the action of the court and jury under such circumstances of this case.

It is objected further that the verdict and judgment as finally rendered, are for a sum in excess of the possible liability of the plaintiff in error in view of the amount of Chicowicz’s unpaid indebtedness. This contention overlooks the fact that other goods were taken besides those for which Chieowicz was indebted.

We find no error in the record and the judgment is affirmed.


text:
    PROTECTION OF A RETIRING PARTNER.
    Circuit Court of Cuyahoga County.
    Emily Schneider, Executrix of the Will of W. F. Schneider, Deceased, v. Gustave Stern et al.
    Decided, November 24, 1905.

      Partnership — No Notice of Dissolution Necessary, When.

    When á partnership name does not disclose the names of the individuals who constitute the firm, no general notice of dissolution is necessary to protect a retiring partner from the claim of one who becomes a creditor after the dissolution and who had no knowledge that the retiring partner had been a member of the firm.

      W. G. Rogers, for plaintiff in error.
    P. 6r. Eassulher and W. G. Rogers, contra.
    Marvin, J. (orally) ; Winch, J., and Henry, J., concur.
   For some time prior to the month of August. 1897, there was a co-partnership doing business in this city, the members of which were John Lindy, J. G. Waite and W. F. Schneider, the latter being now deceased and being the testator under whose will the plaintiff in error is acting. The firm name of this co-partnership was “Cleveland Book Bindery.” A proper certificate of the name of the members of this co-partnership was filed with the clerk of the court of common pleas on the 9th day of April, 1895. No change in said certificate has been made, nor has any certificate been filed with such clerk showing any change in the personnel of said firm.

Iii August, 1897, said W. F. Schneider retired from said firm and was never thereafter a member of it, but the remaining partners continued in the business under the same firm name, or possibly under the name of “Cleveland Book Bindery Co.” While said W. F. Schneider was a member of said co-partnership, Gustave Stern was never a dealer with said firm.

On the 12th day of January, 1896, there was executed a promissory note, reading.

“Cleveland, Ohio, Jan. 12, 1898.
“$74.00.
“Ninety days after date we promise to pay to the order of Consolidated Paper Co. seventy-four dollars.
“At 198 Seneca St. Value received.
“Cleveland Book Bindery Co.,
“John Lind, Mgr.”

Said note is endorsed: “John Lindy. Consolidated Paper Co. by F. C. Kauffman.”

This note, by due course of business and before maturity, became the property of the said Gustave Stern.

On the 29th day of March, 189S, there was executed and delivered to the said Gustave Stern a promissory note reading:

“Cleveland, Ohio, March 29, 1898.
“$75.00.
“Thirty days after date we promise to pay to the order of Gustave Stern seventy-five dollars, at 198 Seneca St. Value received.
“Cleveland Book Bindery,
“John Lind, Mgr.”

On this note the following words are endorsed: “Consolidated Paper Co. John Lindy.”

Neither of these notes being paid and both being the property of said Gustave Stern at maturity, the said Stern brought suit upon them, first before a justice of the peace, and an appeal was then taken to the court of common pleas from the judgment of said justice, and thereupon said Stern filed his petition in said court upon said notes, making defendants in said suit John Lindy, J. G. Waite and W. F. Schneider, partners as “Cleveland Book Bindery” and “Consolidated Paper Co.” While the case was pending in the court of common pleas said W. P. Schneider died, and the action ivas revived against the present plaintiff in error, as executrix of the will of said decedent. The first trial of the ease resulted in a, verdict and judgment for plaintiff, and, on. motion, such judgment was set aside and a new trial granted. The second trial resulted as the first had done, in a verdict and judgment against the defendants. The plaintiff in error filed a motion for new trial, which was overruled, and she comes into this court by proper proceedings in error, seeking to reverse said judgment.

A defense made for Schneider was that he was not a member of the firm when either of the notes sued upon was executed. This fact was established beyond controversy. But it is urged by plaintiff below that this did not relieve him from liability upon these obligations, unless he had given proper notice of his withdrawal. This notice it wás claimed Schneider had given, and the real question, so far as this matter of notice is involved, is as to what notice he was bound to give to relieve himself from liability to Stern.

If Stern had .been a customer of the firm when Schneider was a member of it. and if, after his retirement, the remaining partners continued to do business under the same firm name, then Stern would have been entitled to actual notice of the change, unless in some other way the knowledge had come to him of the retirement of Schneider. Perhaps it is not profitable to discuss the question of whether the business, in this case, was continued under the old name, because it seemed to be concluded on the hearing that it was, although, as has already been pointed out, the first of the two notes sued upon was not signed by the name shown in the certificate of partnership, the latter being “Cleveland Book Bindery,” while the name signed to the note- is “Cleveland Book Bindery Co.” The other note, however, is signed by the name shown in the partnership certificate.

The court in its charge to the jury said, on the question of notice: -

‘ ‘ I say to you, gentlemen of the jury, as matter of law, that the plaintiff was not such a dealer, within the contemplation of the law, with the partnership as would entitle them to actual notice. ’ ’

It has already been said, as a fact, in this opinion, that Stern was not a dealer with the firm while Schneider was a member of it. Attention was not called to the evidence on that point, but an examination of the evidence clearly shows that the court was right in saying to the jury what has been quoted from the charge on that point.

The court immediately followed what lias been quoted with these words:

“But the plaintiff claims that even though he had had no dealings previous to these notes, he was entitled to general notice, and in this respect I say to you that under the circumstances the plaintiff would be entitled to notice, but not to actual notice; fair notice in a public or notorious manner is sufficient, * * * and it is for you to say whether the defendant Schneider gave fair notice of his withdrawal from the partnership. If he did, then he would not be liable. If he failed to exercise reasonable diligence by adopting a fair and usual method to give such general notice, one that would be reasonably likely to give general public notice, then he can not escape liability even though he had withdrawn from the partnership prior to the time of the giving of these notes. ”

We hold that this language in the charge, given as it is without any qualification as to whether Stern had ever known that Schneider was a partner in the firm, was erroneous. If there had been added the qualification that this general notice must be given to relieve from liability to one who had known of Schneider’s being a partner in the firm, it would have been a correct statement of the law.

In Meacham’s Law of Partnership, at paragraph 263, it is said:

‘ ‘ Of the persons who have not had dealings with the firm there are likewise two classes, those who knew of the partnership but had not dealt with it, and those who did not know of it prior to its dissolution. As to the latter class, it is said that no notice at all is necessary, n-pon the ground that, as they did not learn of the existence of the partnership until it had actually been dissolved, they could have no reason for holding it liable; and this is doubtless correct where no element of estoppel is involved. ’ ’

It must be borne in mind that there was nothing in the name of this firm indicating who were partners in it, so there was no holding out by the firm' name 'that any particular person was a partner.

Instructive notes on this question of notice are found on pages 290, 291 and 292 of 26 American Decisions, being notes on the case of Prentiss v. Sinclair. The following quotations are from these notes:

“A person who did not know of the existence of a partnership can not, after it has been dissolved, say that he relied on its continuing to exist, or that he was induced by that unknown existence to give credit.
“There seems to be a distinction made in the case of new customers, between those who had actual knowledge of the existence of a partnership and of its membership, and those who had no such information; to ' protect the former the general notice by advertisement appears especially to apply, while as to the latter the giving of any notice would seem to be unnecessary. ’ ’

A great number of errors are claimed by the plaintiff in error. Each has been carefully considered, but none of them seem sufficient to justify a reversal of the judgment, except the language of the charge hereinbefore criticized.

For error in the charge as pointed out, the judgment is reversed and the case remanded.


text:
    DUTY OF ONE ABOUT TO CROSS A STREET CAR TRACK.
    Circuit Court of Cuyahoga County.
    J. F. Griese v. Cleveland Electric Railway Co.
    Decided, January 21, 1907.

      Evidence — Witnesses—Negligence—Trials—Not Error to Strike Out Answer when too General — One Approaching Street Oar Tracks Must Use His Senses to Discover Approaching Oars — Violation of City Ordinance Not Per Se Negligence — Not Error to Fail to Amplify Instructions When Not Asked.

    1. It is not error to strike out answers which are in terms so general as to be indefinite and uncertain, as that a car was moving “fast” or “very fast” or “at an awful rate of speed.”
    2. A witness who has been accustomed to riding upon street cars and whose observations and experience has been such as to make his judgment reliable, may testify as to the rate of speed a car upon which he was riding was travelling.
    3. One about to cross a street car track, is bound to use his senses to ascertain whether a car is about to cross or is approaching a crossing, and if he fails to see or hear anything, when a careful and prudent man by using his eyes and ears with ordinary care would have discovered a car in so close proximity to the crossing that he could not safely drive across, he is guilty of negligence and can not recover for his injuries.
    4. Violation of a city ordinance in the operation of its street cars is not per se negligence which makes the company liable to one injured at a street crossing.
    5. Where what was said by the court to the jury in the charge was clearly the law, if the plaintiff desired the court to charge further on the subject in question, a request for such further charge should have been made, and none having been made, -the court did not err in failing to give any other proposition on the subject, wheth- ■ er such other proposition would have been warranted or not.
    Marvin, J.; Winci-i, J., and Henry, J., concur.
   The parties here are as they were in the court below; the result in that court having been a verdict and judgment for the defendant.

The plaintiff filed his petition seeking damages for injury to his person and injury to his horse and buggy which he claims to have received on the 14th day of September, 1901, by reason of a collision between the carriage in which he was riding and the horse drawing such carriage on the one part, and the car of the defendant on the other. This collision occurred at the corner of Wade Park avenue and Giddings avenue, in the city of Cleveland. The plaintiff was driving his horse, attached to said buggy in which he was riding, to the north on Giddings avenue; the defendant’s ear was traveling to the west on the tracks of the company on Wade Park avenue. The petition alleges that the collision occurred and the injury was sustained without fault on the part of the plaintiff, and wholly by reason of the negligence of the defendant in two particulars, to-wit: that the car of the defendant was being moved at an unlawful rate of speed and that no gong was sounded or other alarm given by the defendant when approaching the crossing of these two streets. The defendant answered with a general denial, and with an allegation that if the plaintiff was injured, his own negligénee contributed thereto; but there was no contention that the two avenues did not cross each other; that the car of the defendant was moving to the west, and that the plaintiff was in his carriage driving his horse to the north, and that a collision occurred. The real contention was that there was no negligence on the part of the defendant which caused the collision, and in any event there was negligence on the part of the plaintiff, which contributed to this collision.

On the part of the plaintiff there was introduced in evidence an ordinance of the city of Cleveland which provided that the rate of speed of street cars should not exceed twelve miles an hour, and it was admitted on the hearing that there was a valid ordinance of the city of Cleveland in force at the time which required that ‘ ‘ all street cars shall be provided with a signal bell or gong, said bell or gong shall be sounded at least one hundred feet distant from all street intersections, and shall be continuously sounded while passing the same.”

The evidence as to whether the speed at which the car was going was greater than 12 miles an hour was conflicting, as was also the evidence as to whether any gong or bell was sounded, or other alarm given of the approach of the car to the crossing. For the purpose of establishing the proposition that the ear was moving at a higher rate of speed than that allowed by the ordinance, the plaintiff introduced a witness who testified that the car was moving “at an awful rate of speed.” Another witness testified that the car was moving ‘ ‘ fast, ’ ’ and another that it was moving “very fast.”'

The court on motion of the defendant excluded each of these answers. It is urged that this is error, and in support of it we are cited to Section 7754 of Thompson on Negligence, Vol. 6, where this language is used:

“Thus a witness may state that a car was running fast, although he had not sufficient experience to enable him to show how fast. The rule will allow a witness of ordinary intelligence to compare the speed of a train at the time of the accident with the speed of the train on previous days. ”

The cases cited by the author in support of this are cases in which the evidence that the car or the train was running fast had been received, and the court refused to reverse the case because of the admission of such evidence. We think it doubtful whether in either of these cases the court would have reversed the case if the evidence had been excluded, and we find no ease in Ohio which will support the- claim made by the plaintiff here. The language that a car is moving ‘‘fast,” or “at an awful rate of speed,” or “very fast,” is so indefinite and uncertain that it is not error to reject such evidence, although it is not necessary that one should be able to give definitely the speed with which the car was moving. We find no error of the court in this regard. While the plaintiff, who is a physician, was on the stand, the following question was asked him: “You máy state what, if any effect, the injuries sustained there had on your ability to carry on your profession?”

An objection was made by the. defendant to this question, and that objection was sustained. As to this, it is' sufficient to say that no suggestion was made as to what. answer- was expected from the witness, and hence we can not' assume that the plaintiff was prejudiced' by the ruling of the court. ' This is ' true as to a number of instances, in which it' is ■ claimed that there was error in the ruling of the court on the admission of evidence.

Another alleged error took place upon the examination of one Gemlich, a witness on the part of the plaintiff. He had testified that there was an ice wagon moving to the south on Giddings avenue, which crossed Wade Park avenue immediately before this collision took place, and from his testimony, and that of other witnesses, the jury might well have found that thi's wagon barely escaped being struck by the car. The wagon was on the easterly side of Giddings, while the plaintiff was on the westerly side; that is, as they would have passed one another, the wagon would be on the side of the street towards which the defendant’s car was at the time. The witness then said, speaking of the plaintiff, “the doctor could not see the street car.” A motion to take this from the jury was sustained. There was no error in this. If the question became important of whether the doctor could have seen the- car, the jury could have found that out by having the real positions of the car, the wagon and the doctor’s buggy described to them together with a description of such wagon. Again it is urged that there was error in the ruling upon the introduction of evidence, when the defendant was making its ease, and had placed one Harriman on the stand, who testified that he was a passenger upon the car; that he was accustomed to riding in street ears, and he thought he could approximately give the speed at which the car .was moving. He was then permitted, over the objection of the plaintiff, to testify that “the car was moving somewhere about ten miles an hour.” In support of the plaintiff’s contention in this regard we are cited to the same section on Thompson on Negligence, where this language is used:

“There is authority for the determination that the rate of speed can not be shown by the opinion of witnesses observing, when from the inside, ■ unless they are experienced and their observations is such as to make their judgment reliable. ’ ’

One case only, in support of this proposition is cited, that of Grand Rapids Railroad Company v. Huntley, 38 Mich., 537. In the opinion of that, case, at page 540, this language is used:

“In regard to opinions of persons riding in tbe ears, and not observing them from the outside, we are not prepared to say that they may not be received, but we think they should be excluded unless the witnesses first show such extended experience and observation as to qualify them for forming such opinions as would be reliable. It is not presumable that ordinary railway travelers usually form such habits. ’ ’

As has already been stated, the witness who was under examination here had testified that he had paid attention to the rate of speed at which cars traveled, whether fast or slow, and'that he thought he would be able to tell, approximately, about what rate of speed this car was traveling. There is no inherent reason why the testimony of one riding in the car is not as competent as that of one observing from the outside. The weight to be given to the testimony of witnesses upon this, as upon every other subject, is to be determined by the amount of knowledge which the witness has upon the subject, and concerning which he testifies. The evidence here sought to b.e excluded was competent ; the weight to be given to it was to be determined by the jury. Careful attention has been given to each of the alleged errors, in the matter of ruling upon the evidence, and we find no error in any such ruling which would justify a reversal of the case.

It is further urged on the part of the plaintiff that the court erred in its charge to the .jury. The court, among other, things, said in its charge:

“Plaintiff in approaching this crossing was bound to use his senses to ascertain if a car was about to cross or .was approaching the crossing,’ and if he failed to see or hear anything, .when a careful and prudent man by exercising his eyes and ears with ordinary care would have discovered this car in so close proximity to the crossing that he could not safely drive across, he would be guilty of such negligence as would defeat his recovery. The fact that his view of the track toward the direction from which the ear was coming, if such you find to be the fact, was obstructed by buildings or an ice wagon, would not excuse him from exercising ordinary care to ascertain whether he could cross in safety. If there were any such obstructions, plaintiff was bound to exércise such care as an ordinarily careful person should exercise under like circumstances. He must exercise ordinary care commensurate with, the surroundings and circumstances in which he found himself. Not to exercise such care would be negligence on the part of the plaintiff. If there was any object to obstruct the view of the plaintiff in the direction from which the car was coming, and the plaintiff by the exercise of ordinary care could have seen the car and stopped his horse in time to have avoided this collision, it was bis duty to exercise that care and stop his horse.”

It is said that though this is the rule applicable to the course of the tracks of the ordinary steam railroad in the country, it is not the rule as applied to the course of street railroads in cities.

In the ease of The Cleveland Electric Railway Company v. Charles Wadsworth, reported in 25 C. C. Reports, 376, this court said :

“It is contributory negligence, precluding recovery, for a passenger upon alighting at night from a street car to pass around the rear end of the car and attempt to cross a parallel track upon which cars are running in an opposite direction every three minutes, without looking in that direction, or checking his pace, or taking any precaution for his safety, he having knowledge of the surroundings and situation of the tracks and of the operation of ears thereon.”

On page 379, Judge Laubie in his opinion says: ■

“There can be no question about the negligence of the railway company, of the men who wore in charge of the west bound car; they were running at too great a rate of speed, in passing a ear that was stopping at this crossing. But it is evident, from his own testimony, and from all the testimony in the ease, that the plaintiff was himself guilty of negligence contributing to his injury.”

This case was affirmed in the Supreme Court without report.

Complaint is further made that the court used this language in its charge:

“Certain provisions of the city ordinance have been admitted in evidence, but if you find that the defendant at the time of this accident was running the car at a greater speed than 12 miles an hour, or did not ring the gong or bell Or give any warning, that would not- of itself constitute negligence, but may be considered by you with the other facts and circumstances of the case in determining the question of whether or not the defendant was negligent at this time.”

Clearly what was meant by this and what must have been understood by the jury, was that the simple fact that the defendant was violating an ordinance of the city did not of itself constitute negligence, for which the defendant would be liable. This is amply justified by what was said by this court in the case of Hoppe v. Parmalee, 20 C. C. Reports. 303, the second clause of the syllabus of that case reading as follows:

“The Supreme Court of Ohio has never yet gone so far as to say that an act done in violation of a statute or an ordinance is negligence per se. Nor has that court gone so far as to say that the violation of such statute or ordinance raises a presumption of negligence, although there are mauy authorities outside of Ohio in support of each of these propositions.”

In that case an infant has been employed in a manufactory; his age was such as to make his employment a violation of the statute. The trial court in its charge to the jury quoted the statute and then said that the jury might consider the statute in. connection with the other facts in the case in determining whether or not there was negligence on the part of the employer.

It was urged that the court should have said more, and it is urged here that the court should have said more and explained to the jury that the plaintiff had a right to rely upon the observance by the defendant of the ordinance of the city applicable to the situation, but no request was made for any charge in that regard; and in Hoppe v. Parmalee, supra, this language is used in the first clause of the syllabus:

‘ ‘ Where what was said by the court to the jury in the charge was clearly the law, if the plaintiff desired the court to charge further on the subject in question ,a request for such further charge should have been made, and none having been made, the court did not err in failing to give any other proposition on the subject, whether such other proposition would have been warranted or not,”

So here we think that if the plaintiff desired further instruction to the jury on the question of. the negligence of the defendant, a request for such charge should have been made.

Taking the entire charge together, we think the law stated to the jury was correctly stated under the rules in this state, and that it was not misleading. Whether the rule adopted in Ohio is entirely consonant with reason, it is not for us to say. It is sufficient for .our purpose that we follow the ruling as laid down by the Supreme Court.

That rule is announced in numerous cases, among others, in Meek v. Pennsylvania Co., 38 O. S., 632, where the first clause of the syllabus reads:

“In an action to recover for an injury alleged to have been caused by cars moving on a railroad track, proof that the company was moving its cars in violation of a city ordinance at the time the injury was inflicted, while not sufficient per se.to create a liability, is yet competent to go to the jury as tending -to show negligence.”

We find nothing in the charge in this ease which would justify ús to reverse the judgment. .

The question is raised, not yét mentioned in this opinion, upon the action of the court on a motion which was filed by the plaintiff to require the defendant to make definite and certain its answer, in specifying in what particulars the plaintiff was negligent. This motion was overruled. Unless some prejudice came to the plaintiff by reason of this action of the court, no reversal could be predicated upon it. There was no evidence introduced, nor' was any sought to be introduced, of negligence on the part of the plaintiff which he could not have anticipated, and hence he was not prejudiced by this action of the court, whether he was entitled to' have such motion sustained or not.

It follows from what ha,s been said, that the judgment of the court of common pleas'should be;.and it is affirmed.


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    STALE CLAIM FOR ALIMONY.
    Circuit Court of Cuyahoga County.
    Sarah Morgan v. Joseph Wakelin.

    Decided, February 29, 1904.

      Alimony — Equity—Delay of Twenty-Four Tears in Asking Alimony Makes Claim Stale.

    A delay of twenty-four years after a husband has secured a divorce in another state, before applying for alimony, during all of which time the husband was the owner of real estate situated in the county which might have been subjected to the payment of alimony and during which time the wife has remarried, makes a claim for alimony stale.

      E. Sowers, for plaintiff in error.

      Blandin, Bice <&■ Ginn, contra.
    Hale, J. (orally) ; Marvin, J., and Winch, J., concur.

      Affirmed without opinion, Morgan v. Wakelin,. 72 Ohio State, 656.

   Mrs. Morgan, who brings this action, was formerly the wife of Wakelin. In 1876 they were divorced, and the same year she married Morgan and has been his wife since that time. She brings an action now for alimony. The ease was commenced in 1900, and seeks to reach real estate located in this county. One •parcel of real estate is owned in common, as the deeds show, by her and her former husband, Wakelin. That property she has occupied during all these years, notwithstanding the husband has the title to one-half of it. The other parcel of property was acquired by Wakelin in 1888.

The court below held that under these circumstances the action was delayed too long; that the cause of action, being equitable in its nature, had become stale, and that courts would not entertain now an action to enforce it. This judgment of the court of common pleas was rendered upon the pleadings as they stood, without any evidence. If it is desirable to review the judgment of the court of common pleas, it can be easily done as it now stands. We are inclined to think the court of common pleas was correct, as more than twenty-four years had elapsed between the granting of the decree and the bringing of this action.

The reason why alimony was not allowed in the first action was because the divorce was granted in Arkansas, on the application of the husband, and gave the wife no opportunity to make a claim for alimony.

The property has all the while — one parcel since the divorce and the other parcel since 1888 — been in this county, and could have been reached as well before 1900 as in 1900, and we are inclined to hold that the court of common pleas was correct in rendering judgment on the pleadings and we affirm the judgment.


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    ILLEGAL CONTRACT FOR DIVISION OF ATTORNEY’S FEES.
    Circuit Court of Cuyahoga County.
    Louis B. Whitney v. Harrison W. Ewing, Administrator of the Estate of Harrison J. Ewing, Deceased.
    Decided, December 24, 1903.

      Contract — A Party to an Illegal Contract Can Not Invoke Aid of Court to Secure a Division of Profits.

    A plaintiff who has knowledge of, and is party to, an agreement between an attorney and a client by which it is agreed that, the attorney shall have one-half of all the money he succeeds in obtaining from the husband of the client as alimony or otherwise, is party to an illegal contract, working a fraud upon the court, and can not invoke the aid of the court to recover from the attorney one-half of the sum obtained in the transaction and which the attorney had agreed to divide with plaintiff for recommending him to the client as an attorney.

      W. C. Ong, for plaintiff in error.

      Harrison Ewing, contra.
    Marvin, J.; Winch, J., and Hale, J., concur.
   The plaintiff here was the plaintiff below, and brought suit against Harrison J. Ewing, then in full life but since deceased, seeking to recover upon a contract entered into between said parties and which, as set out in the petition, is as follows:

“Plaintiff went to the office of the defendant, Harrison J. Ewing, then a practicing attorney, and said to him that a woman by the name of Hornsby was in his (Whitney’s) office and desired the service of an attorney and had directed and authorized this plaintiff to select for her some one to act as her counsel and attorney for her, in order to recover alimony or maintenance and support from her husband. This plaintiff then and there said to said defendant, Harrison J. Ewing, that he (plaintiff) would recommend the appointment of Harrison J. Ewing if he (Ewing) should give to the plaintiff a fair proportion of whatever he (Ewing) should receive for fees or compensation finally in said case and growing out of said appointment, whereupon the defendant said to this plaintiff that if he (the plaintiff) should recommend him (the defendant, Harrison J. Ewing) as counsel in the case he would give to the plaintiff one-half of all the fees and compensation received for such service.”

He then sets out that he did recommend the said Ewing to the said Mrs. Hornsby as a suitable person for her to employ as an attorney, and then introduced Mrs. Hornsby to the said Ewing; that he, the said Ewing, took the case for Mrs. Hornsby, and received as fees for his services the sum of $3,000, no part of which has been paid to the plaintiff, though he has demanded from the said Ewing the payment of $1,500 — one-half of the fee so received by Ewing. ..

Upon the conclusion of the evidence introduced upon the .trial by the plaintiff the court, on motion, directed the jury to return a verdict for the defendant, which was done, and judgment entered for him. On the part of the plaintiff it is urged that in so granting said motion the court erred. This brings us to a consideration of the evidence in the case.

Upon the trial it appeared that Mrs. Onnsby went to the office of the plaintiff, who was a private detective, on the 9th day of August, 1897, and complained to him that her husband was neglecting her, failing and refusing to provide for her and was in other respects violating his obligations as a husband, .and sought plaintiff’s advice, and he said to her that he was not an attorney and that it would be necessary to have an attorney in order to obtain her rights. She said to him that she was without money and that whatever compensation was received by anybody in helping her would have to come out of whatever was recovered from her husband, who had a considerable amount of money. Whitney went to the office of Ewing, told him of the situation of the woman and agreed with him that he would bring her, if he could, to Ewing’s office, and that Ewing should pay him one-half of whatever he (Ewing) should receive as compensation for his services. Ewing then went with Whitney to the latter’s office and was introduced to Mrs. Hornsby. She stated her case to him, and he thereupon entered into a written contract with her by which it was agreed between them that Ewing should receive one-half of whatever he recovered from her husband for her. He filed a petition asking for alimony. Service was had upon Hornsby, who was the next day arrested at the instance of Ewing upon a charge of stealing a ring from his wife, and while so under arrest Ewing made some arrangement with Hornsby by which he was to file an answer in the alimony suit, which was prepared by Ewing and signed by Hornsby and filed. As a result of the transaction and within about two months of the time when the suit was brought Hornsby paid to Ewing in settlement of this suit the sum of $6,000, one-half of which Ewing paid to Mrs. Hornsby and retained the other one-half, $3,000, in pursuance of his contract with her. He never paid Whitney anything.

That the contract made by Ewing with Mrs. Hornsby was absolutely void is conceded by plaintiff’s counsel, as it must be by any reputable lawyer.

• It was against public policy. It was calculated to impose upon the court to whom the appeal for alimony was to be made. It was a contract out of which Ewing had no right to profit and by which, if appeal had been made to any court, he would not have permitted to profit. If the plaintiff was a participant with Ewing in perpetrating this imposition upon kTrs. Hornsby, and in aiding in perpetrating this imposition upon the court, he is not entitled to profit by it, and no court should aid him to profit by it. This is practically conceded by counsel for the plaintiff. But it is urged that Whitney is entirely innocent in the matter; that he knew Ewing would be entitled to compensation for his services, and that it would be proper that he should receive something for introducing a client to him and aiding him in procuring evidence upon which the suit might be won, for, though no claim is made in the petition for any compensation for any other services than the introduction of the parties to each other and the recommendation of Ewing to Mrs. Hormsby, still the evidence shows that the plaintiff did aid in obtaining evidence. lie sent a detective to disreputable places in this city for the purpose of obtaining such evidence. Whatever may be thought of rendering such aid, this case is determined upon the plaintiff’s participation in the fraudulent contract made by Ewing with Mrs. Hornsby. '

In the plaintiff’s own testimony, in speaking about his first conversation with Ewing on the matter, he says:

“I said to him that I had said to her that she needed an attorney, after talking with her, and I had come up to see if he would take hold of the case and would take hold of the case with me.”

Again, he says :-

“He said to me, ‘If you will take me down and introduce her we will take hold of this case together and whatever we get out of it for fees we will divide between us.’ ”

And again:

‘ ‘ He stated that he would take hold of this case with me, and that I was to look up and get proof where he had been around to different places where Hornsby had been, the different places here, and get proof to him, and we would take hold of this case together and we would pay ourselves out of whatever money was got from Hornsby for her, alimony or otherwise.”

Again, in speaking of this conversation he had between Ewing, Mrs. Hornsby and himself, this question was put to him by his own counsel: “What, if anything, was said about who was to collect the money and what was to be done with it, that is, the money he received; who was to collect it?” 'To this he answered, “Mr. Ewing.” Then followed the question, “State what was to be done with what was collected. ’ ’ He answered: “ To give to Mrs. Hornsby one-half of it, and the remaining one-half to be divided between Mr. Ewing and myself. ’ ’ That this was said at the first conversation had between the three together appears from the question and answer immediately following. The question is: “Well, then, what occurred? Where did they go, if they went anywhere, out of your office?” (Answer) “Went into Mr. Ewing’s office.” It appears that earlier in this same conversation Ewing had said that he would prepare a written contract between himself and Mrs. Hornsby, and that in the afternoon of the same day he reported to the plaintiff that such a contract had been executed. This seems to settle beyond any question that the plaintiff had full knowledge at the time that it was made of the contract between Ewing and Mrs. Hornsby, and that this contract with Ewing was dependent upon that. It follows that his contract with Ewing was tainted with the same fraud as was Ewing’s contract with Mrs. Hornsby.

It is urged here, however, that the action of the court resulted in permitting Ewing to hold and enjoy all the fruits of his own wrongdoing. This is true, so far as this case is concerned. When the courts shall be appealed to by the person or persons from whom Ewing fraudulently obtained this money, it can be determined whether any one shall be entitled to enjoy the fruits of such a fraud. It is said that so far neither Mr. Hornsby nor Mrs. Hornsby have made any complaint of the conduct of Ewing, but this is no reason why the court should give its aid to any wrongdoer to profit out of this despicable transaction. To permit a recovery here would be for the court to lend its affirmative aid to a wrongdoer in obtaining profit from his own unlawful act. This can not be done. It is true that Ewing has no right to this money, but he has not asked for the intervention of the court, nor is the judgment entered by the court below any affirmance of any rights in Ewing to this money. It is only a denial of any rights in the plaintiff. The reasoning which would justify a judgment in favor of the plaintiff here would apply with equal force if there had been a contract pure and simple to obtain; money from Hornsby by blackmail and divide the money so obtained between Ewing and the plaintiff, and if such money had been obtained by blackmail and paid into the hands of Ewing and the plaintiff had brought suit to recover a portion of it. The trial court had no opportunity in this case to give the money to the party to. whom it rightfully belongs, but was only called upon to. say whether, as it did not rightfully belong to either Ewing or the plaintiff, the plaintiff having aided in unlawfully getting it into the hands of Ewing, should have a- part of it paid to him.

It seems clear that the judgment of the court of common pleas was right, and it is affirmed.


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    PURCHASE OF STOCK CONTRARY TO A POOLING AGREEMENT.
    Circuit Court of Cuyahoga County.
    Elizabeth Metzler et al v. The Mason Steam Laundry.
    Decided, November 4, 1904.

      Equity — One Who Demands Equity Must do Equity.

    Where the subscribers to a stockholders pooling agreement have never done anything to put the agreement into effect and for a term of years have ignored- its existence, one of the subscribers, who has himself purchased stock in violation of the agreement can not afterwards insist upon the carrying out of the agreement by the others while refusing to surrender to the pool the stock which he, himself, had purchased.

      Jas. F. Walsh and White. Johnson, MaCaslin & Gannon, for plaintiffs.

      For an, MeTighe c& Gage, contra.
    Winci-i, J.; Hale J., and Marvin, J., concur.
   The Mason Steam Laundry Company was incorporated January 3, 1894, with an authorized capital of $10,000, divided into 100 shares. On the fifth day of January, 1894, the incorporators of the company duly ordered books of subscription to stock to be opened and on the same day twenty-five shares of stock were subscribed for, directors were elected and the company organized.

By the terms of an instrument dated January 5, 1894, and signed by all of the stockholders of the company, each and every one of the subscribers agreed that for a period of five years no one of them would sell any of the stock which he held in the company, except to the other subscribers thereto, jointly, upon a valuation to be agreed upon, if possible, and, if not, to be fixed by arbitration, and each and all of the subscribers agree to buy any such stock so offered, jointly for the benefit of all of the subscribers at the valuation so to be fixed. It was further agreed that the subscribers should assign their stock to Gr. E. Milligan, one of the directors of the company, in trust to secure the performance of the agreement. By a like instrument ■ signed January 5, 1899, the same agreements were extended for a further period of four years, or until January 5, 1903, the directors of the company for the time being and their successors in office being substituted for Milligan as trustees to whom the subscribers’ stock should be assigned in trust; both of these agreements provided that at the termination of the periods therein named said trustees should reassign the stock to the respective owners.

■ No such assignments of the stock to the trustees were ever made, but the stock certificates, after being properly signed by the officers of the company, were never removed from the stock certificate book which remained in the custody of the officers of the company.

Section X of the rules and regulations adopted by the stock-, holders provides as follows:

‘ ‘ The stock book of the corporation shall remain in the custody of the secretary and treasurer, who shall have control thereof, and not more than twenty-five shares of the capital stock of the company shall be sold without the consent of four-fifths of the board of directors and then only when it appears that it is necessary that more money shall be had in order to conduct and carry on the business of the corporation.”

While the subscribers to the pooling agreements mentioned do not appear to have complied with its terms to the extent of themselves purchasing stock of subscribers who desired to sell, the evidence shows some of the subscribers desired to dispose of their stock during periods covered by said agreements, and gave notice of their desires, whereupon the Mason Steam Laundry Company out of its own funds purchased certain of its own stock, the several transactions and amounts paid by the company being as follows: June 13, 1895, T. E. Mlilligan, 4-1/3 shares, $500; June 10, 1898, Annie Kearney, 1 share, $337; June 8, 1901, Nellie Carroll, 1/2 share, $50; July 15, 1901, Rose Callaghan, 1 share, $100, being in all 6-5/6 shares, and $987.50 being expended by the company in the purchase thereof and all the certificates representing said shares were duly assigned to the “Mason Steam Laundry Company.”

November 28, 1903, and after the bringing of this suit, but before any relief with reference thereto was prayed for by any of the pleadings, the Mason Steam Laundry Company sold the 4 1/3 shares of stock it had purchased of Milligan to J. T. Murphy, who paid for it the par value thereof.

The only other shares of stock which have changed hands are iy2 shares purchased previous to January 5, 1903, by R. A. Butler, one of the plaintiffs in this suit, director and secretary of the company and one of the .original subscribers for stock and of the pooling agreements. He testifies that he bought these shares with the knowledge of the company and the other subscribers and because they were unable to purchase them. While the evidence does not bear him out in all these claims, it does not appear that the other subscribers after they had knowledge of these purchases by Butler ever offered to buy said shares or made any tender with reference thereto or complaint with regard thereof, except as complaint is made by cross-petition filed in this case.

At a regular meeting of the board of directors of the company held April 1, 1901, Butler being absent, the other four directors voted for and passed the following resolution: “Authorized more stock issued to help pay off the indebtedness of Mason Laundry Company.”

The minutes of the next regular monthly meeting of the company held May 6, 1901, all five directors being present, set forth the following’:

“On motion. Limited to ten shares of stock issued to help pay off the indebtedness of Mason Laundry Company bills: Anna Colgan, four shares of stock; Maggie McIntyre, two shares of stock; Anna McNamara, two shares of stock; Hannah Larkins, two shares of stock. On motion ten shares of stock issued to the four above named.”

Butler protested against this action on the ground that the issue of stock was illegal and he then and there refused to take any of said shares. The other four directors voted for the motion and two of them were named in it as persons to whom the stock should be issued.

May 10, 1901, certificates of stock for ten shares were duly issued to the persons named in the resolution of May 6, but said certificates were never removed from the stock certificate book. Said shares were paid for and the company received cash to the par value thereof, which is used in paying part of its indebtedness.

August 2, 1901, Butler and Metzler filed their petition in the common pleas court praying that the defendant corporation be restrained from delivering said ten shares of stock to defendants, and that on the final hearing said sale of stock to be set aside and the defendants ordered to deliver up said certificates and that they be canceled.

By subsequent pleadings filed in the common pleas court and in this court, where the ease was brought on appeal, issues have been made up as to the several transactions mentioned and we are now asked by plaintiffs not only to set aside said issue of ten shares, but also to set aside the transfer to Murphy of the 4 1/3 shares; on the other side defendants ask.that Butler be decreed to hold the 1 1/2 shares of stock purchased by him, as trustee for all the stockholders and subscribers to the pooling agreement.

Considering the questions. raised chronologically and not attempting to set forth, all the facts .upon which our conclusions are based, we first take up .the poolUg agreements..

Plaintiffs claim that these contracts, so far' as they are ex-ecutory, are illegal, being in restraint of alienation and are- also without consideration, for the agreement to buy is at a price to be agreed upon, and if not agreed upon, then fixed by arbitration and, if so agreed upon or arbitrated, upon breach of the agreement the stockholder desiring to sell and still holding his stock would be entitled in damages only to the difference between the real value of his stock and the price agreed to be paid; there being no difference between the two there would be no damage, hence no consideration for the promise to buy. So far as executed, the plaintiff claims the pooling agreements are legal. Urging this distinction between executory and executed contracts of illegal character, plaintiff says that as to the 4 1-3 shares of stock sold by Milligan, to the company the contract was executed, the company became the owner thereof as trustee for all the stockholders, that he is entitled to his pro rata share thereof and that the subsequent sale of said 4 1-3 shares to Miurphy, who knew all the facts, was illegal and should be set aside for plaintiffs’ benefit.

As to the 1% shares purchased by himself, Butler 'says he is not bound by the agreement to hold the same in trust for the other stockholders, because as to this V/2 shares the pooling agreement is not executed, and said agreement being illegal, he can not be bound by it.

In other words, Butler asks the benefit of the pooling agreement as to the 4 1/3 shares of stock, but himself declines to live up to the spirit of it as to his 1% shares. This narrow ground upon which Butler stands does not give him an assured position before a court a court of equity. It was with much force that counsel for defendants suggested to the court that the time honored maxims “He who comes- into equity must come with clean hands,” and, “He who asks-equity must do equity,” were not mere platitudes, but should be applied in this casé.

The conclusions we have arrived at áre 'in accord with such rules, but are based upon more specific reasons. We -find- as- á fact,-that’thé pooling contracts'were never lived úp-tó'or acted upon-by anybody- -No'-'stock’-was ever-présénted;'to''the"trustee for purchase/- none was ever'-pfirchased by the"trustee's-;--it was presented by consent of all persons to the directors of the corporation for purchase. The 6 5/6 shares were bought by the directors of the corporation in behalf of the corporation, were paid for by the corporation funds, and were assigned to the corporation. This was done with the assent of everybody.

As to these shares the agreement was disregarded from the beginning.

We find the same to be true with regard to the 1% shares purchased by Butler.

We leave these purchases and sales where the parties left them and no relief is granted to either party under said pooling agreement.

It follows that the company, having made an unlawful use of its funds in the purchase of its own stock, not only, had a right, but it was its duty, to resell the same and return to the treasury the funds thus improperly expended. It has attempted to do so with regard to the Milligan stock, resold to Murphy, and we find said sale was a fair one and should be confirmed.

There remains for consideration the issue of ten shares of additional stock, the sale of which was authorized in April and confirmed in May, 1901.

We hold that the stock books were not closed after the subscription for the original twenty-five shares and that the effect of Section X of the rules and regulations of the company was •but a direction of the stockholders to the directors to go carefully in receiving further subscriptions. When the section was adopted twenty-five shares had been sold without consent of four-fifths of the directors, for then there were no directors, but having provided for the election of directors, the stockholders limited their discretion as to the issue of additional stock, requiring of them a four-fifths vote and their judgment as to the necessity of a sale of stock as a means of procuring more money in order to conduct and carry on the business of the corporation.

We find that on April 1, 1901, four-fifths of the directors duly authorized' the sale of ten additional shares and that ■ a necessity then existed for the 'sale thereof to procure funds to pay the debts of the corporation, then existing, ■-in order that the business of the company might be continued.

We find that the sale of these shares at par was for their full value. Indeed, we doubt if the stock at that time was worth par intrinsically.

The evidence as to the good faith of the directors in selling part of this stock to themselves is not entirely satisfactory; we are inclined to think all stockholders should have been notified that the ten shares were to be sold and that the four directors should not have trusted their own judgment that no other stockholders were able to take additional stock. One of the directors testified that all but three of the stockholders were notified of the additional stock to be sold. Btitler was a director and admits he knew on Saturday before the-meeting on Monday, May 6th, that additional stock was to be sold. On May 6th, he could have applied for his share of the additional ten shares. He declined to do so and said he would not take additional stock, but gave a bad reason for his refusal; the issue was legal if made in good faith. As to the other plaintiff, Mrs. Metzler, there is little evidence. But that both plaintiffs, if they were in anywise prejudiced by the confirmation of the sale by the directors on May 6th, to two of their own number, have slept on their rights, there is no question. The stock was not paid for nor issued until four days later, yet they took no prompt steps to restrain the directors from issuing the stock or receiving pay therefor. They did nothing for three months; they knew of the financial difficulties of the company growing out of its connection-with the Cuyahoga Savings & Banking Company, which failed just at that time, but they did nothing to help the company out, did not offer to take stock, stood by and let the defendants use their own money and after the company had finally been put upon its feet again, they at last determined, not that they wanted part of said shares, but that they did not want the subscribers for the ten shares to keep them, and so they brought suit after three months inaction. We hold that they were too late to be entitled to the relief they now ask, in pleadings subsequently filed, that they have part of said ten shares, and finding no equities in the petition, it is dismissed, as are also all cross-petitions, each party to pay his own costs.


author: Houck, J.

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    CONSTITUTIONALITY OF THE RURAL SCHOOL ACT.
    Court of Appeals for Holmes County.
    Albert E. Cline v. Oath Martin et al.
    Decided, December 11, 1915.

      Schools — Arrangement of Districts — Discretion of County Board of Education Will Not be Interfered With, Unless — Members of the Board Not County Officers — Constitutionality of the New Act.

    1. What is known as the rural school code confers a broad discretion on the county board of education in the matter of the establishment of new school districts, and where this is done by attaching four sub-districts to a village school district a court, will not grant relief to a complaining tax-payer in the absence of a showing of fraud or an intentional abuse of discretion.
    2. There is nothing in the evidence submitted in the case under consideration which would indicate an abuse of discretion on the part of the county board, and the court would not be justified in limiting by construction the discretion so exercised.
    3. Failure of the rural school act to provide for the election of the mem- ■ bers of the county board of education by the people does not render the act invalid, for the reason that the jurisdiction of members of the county board is exclusive of territory embraced in any city school district and they are, therefore, not county officers.
    4. Full power is vested in the General Assembly, under Section 3 of Article VI of the Amended Constitution of September, 1912, to provide for the organization, administration and control of the public school system of the state, and the act in question is within the limits of this power.

      Carl Schuler, Prosecuting Attorney, Weygandt & Boss and IP. F. Garvey, for plaintiff.

      C. II. Workman, George W. Sharp and C. J. Fisher, contra.
   Houck, J.

This cause is here on appeal from the Common Pleas Court of Holmes County. The petition in substance avers:

That the plaintiff is an elector and tax-payer in the school district in question, and that the defendants claim to be the members of the board of education of said district, which is known as the Nashville Village School District; that the county board of education of Holmes county, Ohio, on the 3rd day of December, 1914, attempted to pass a resolution adding certain territory, amounting to four “sub-districts,” to the Nashville Village School District; that the same was done under a pretended authority given under Section 4736 of the General Code of Ohio (Ohio Laws, Volume 104, page 138) ; that four organized “sub-district” schools with an attendance of more than twelve pupils each were thereby discontinued; that said children as a result were transported in wagons to said Nashville school, which was a great inconvenience to said pupils so transported; that the defendants are about to issue and sell bonds in the sum of $18,000 for the erection of a school building in the said Nashville Village School District; that said county board of education is without authority to change the lines of said district; that said Section 4736 of the General Code and related sections thereto are in contravention of and repugnant to Sections 1 and 2 of the Constitution of Ohio. Wherefore plaintiff prays for injunction, and that said sections of the “New School Law of Ohio” be declared unconstitutional and null and void.

The defendants filed an answer, making certain admissions therein, but in substance being a general denial.

The plaintiff relies upon the following grounds for the relief prayed for in his petition:

First. That the resolution passed by the county board of education was not sufficient to give to it jurisdiction, if it had jurisdiction over the subject matter.

Second. That said county board of education was without authority to do what it attempted to do, and had no jurisdiction to do so, and its acts therefore are null and void.

Third- That there was an abiise of discretion, on the part of said county board of education, because the schools were not arranged so as to be most easily accessible to the pupils.

Fourth. That Section 4736, General Code, and kindred sections thereto (Ohio Laws, Vol. 104, page 338), are unconstitutional.

We are aware of the importance of the present case, and that several of the questions here presented are now, for the first time, before an appellate court in Ohio. What is denominated the “Eural School Code,” being the act of February 5th, 1914, and which is a radical departure in many respects, so far as school legislation is concerned, is now attacked. The sections of the act involved in this proceeding are found in Volume 104, pages 136 and 138, Ohio Laws, and are as follows:

“Section 4728. Each county school district shall be under the supervision and control of a county board of education composed of five members who shall be elected by the presidents o'f village and rural boards of education in such county school district. Each district shall have one vote in the election of members of the county board of education except as is provided in Section 4728-1. At least one member of the county board of education shall be a resident of a village school district if such district is located in the county school district and at least three members of such board shall be residents of rural school districts, but not more than one member of the county board of education shall reside in any one village or rural school district within the county school district.
“Section 4728-1. All school districts other than village and city school districts within a civil township shall be jointly entitled to one vote in the election of members of the county board of education. The presidents of the board of education of all such districts in a civil township shall meet for the purpose of choosing one from their number to east the vote for members of the county board of education.” * * *
“Section 4729. On the second Saturday in June, 1914, the presidents of the boards of education of the various village and rural school districts in each county school district shall meet and elect the five members of the county board of education, one for one year, one for two years, one for three years, one for four years and one for five years, and until their successors are elected and qualified.” * *
“Section 4735. The present existing township and speeia] school districts shall constitute rural school districts until changed by the county board of education, and all officers and members of boards of education of such existing districts shall continue to hold and exercise their respective offices and powers until their terms expire and until their successors are elected and qualified.”
“Section 4736. The county board of education shall as soon as possible after organizing make a survey of its district. The board shall arrange the schools according to topography and population in order that they may be most easily accessible to pupils. To this end the county board shall have power by resolution at any regular or special meeting to change school district lines and transfer territory from one rural or village school disIrict to another. A map designating such changes shall be entered on the records of the board and a copy of the resolution and map shall be filed with the county auditor. In changing boundary lines the board r'ay proceed without regard to township lines and shall provide 'hat adjoining rural districts are as nearly equal as possible in property valuation. In no case- shall any rural district be created containing less than fifteen square miles. ”

Coming now to the first claim of plaintiff: was the resolution fixing the lines of the district in question sufficient, and did it fully comply with the requirements of Section 4736, General Code? Wo. have examined-the resolution, and we are of the opinion that it fully complies with the requirements and provisions of said statute, and that said county board of education had jurisdiction of the subject matter, and that it was fully authorized to adopt the resolution, and that it contains, in substance and in fact, all of the necessary things required by said statute. •

As to the second claim of the plaintiff, that the county board of education was without authority to create the new district, let us examine the language of the, statute as found in Section 4736: “To this end the county board, shall have power by resolution at any regualr or special meeting to change school district lines and transfer territory from one rural or village school district to another.”

In the present case four “sub-districts” as they originally existed were attached to the Nashville Village School District. Could any language be more plain and explicit than the above in giving the board authority to do just what it did in the premises? Certainly not. Tt provides for the changing of lines and the transfer of territory from one rural or village district 1o another — jusf what was done by the county board in this case. when it transferred the four “sub-districts” as they originally existed to the Nashville Village School District. Sub-districts not being provided for in the act of February 5th, 1914.' do not now exist, and it was only the territory that was bounded by the “sub-districts” as they formerly were that was annexed.

AVe do not think that the county board is limited in its right to arrange districts, by simply taking the territory from one rural district and adding to another. We feel that the statute is broad enough and gives to the county board authority to take territory from a rural district and attach it to a village district.

It is contended that Nashville is not a village district, and therefore the territory in the “sub-districts” could not legally be attached. AVe do not think it necessary for the proper solution of this question to determine whether it was or was not a village district, because under the provisions of Section 4736 it is immaterial, for the reason that it was territory that could be attached as provided and contemplated therein.

The third contention of plaintiff is that the county board of education did not arrange the schools as to topography and population, so as to make them most easily accessible to the pupils in said territory, and thereby abused its discretion.

A county board is required to make a survey and prepare a map of the district, and to arrange the schools according to topography and population, and in such a manner as that they be most accessible to pupils in the district, in order that they may reach the schools with as little inconvenience as possible; yet the Legislature certainly intended that a broad discretion be given the county broad in this particular. The statute nowhere limits the authority of the county board in this matter, and there is nothing in the evidence submitted to the court that would indicate an abuse of authority on the part of the county board, and we do not think that a court would be justified in imposing a limitation by construction, or in any way interfering with the acts of such board in arranging the lines of the district and otherwise acting under said provisions of the statute, in the absence of proof clearly establishing fraud or gross and intentional abuse of discretion. And not finding in the present ease, on the part of the county board, any equitable grounds of fraud, or mistake, and not finding its acts wrongful, fraudulent, collusive or arbitrary, we do not feel that the board abused its discretion.

We come now to the fourth and last claim made by the plaintiff, that said sections hereinbefore referred to of the “New School Law” are unconstitutional, being in conflict with Sections 1 and 2 of Article X; also Section 26 of Article IT of the Constitution of Ohio.

We may now inquire, When is a law in conflict with the Constitution, and under what circumstance^ and state of facts should it be declared unconstitutional ?

The Legislature is a co-ordinate department of the government, and as such is invested with certain duties and responsibilities, and we think in the enactment of laws it is only fair to presume that it has considered and discussed the constitutionalty of all measures passed by it, and therefore the unconstitutionality of the act must be clear or courts will sustain it. Courts may resort to an implication to sustain.a statute, but not to destroy it; and courts can not go beyond the province of legitimate construction in an attempt to save a statute. In other words, where the language used is clear, and the meaning plain, words can not be read into it or out of it for that purpose. A statute can not be declared invalid for the reason that it is unwise, unjust, unreasonable, or opposed to the spirit of the Constitution; and unless it violates some express constitutional provision it must be held valid. While we change, while we alter, while we improve in our material and social life, yet these principles of construction now exist and will continue so until time shall be no more.

We think this doctrine is well established in this state, and we need only to cite the case of Probasco v. Raine, Auditor, 50 Ohio State, page 390, where Judge Burket says:

“Whatever may be the rule elsewhere, it is clear that in this slate the validity of an act passed by the Legislature must be tested alone by the constitution, and that the courts have no right to nullify a statute upon the ground that it is against public policy.
“When the Legislature is silent, the courts may declare the public policy, and mark out the lines of natural justice; but when the Legislature has spoken, within its powers conferred by the Constitution, its duly enacted statutes form the public policy, and prescribe the rights of the people, and such statutes must be enforced and not nullified, by the judicial and executive departments of the state.
“When the Legislature, within the powers conferred by the Constitution, has declared the public policy, and fixed the rights of the people by statute, the courts can not declare a different policy, or fix different rights. In this regard the Legislature is supreme, and the presumption is that it will do no wrong, and will pass no unjust laws. The remedy, if any is needed, is with the people and not with the courts. ’ ’

Section 26 of Article II of the Constitution of Ohio provides:

“All laws, of a general nature, shall have a uniform operation throughout the state, nor shall any act, except such as relates to public schools, be passed, to take effect upon the approval of any other authority than the General Assembly, except as otherwise provided in this Constitution.”

Section 1 of Article X provides:

“The General Assembly shall provide, by law, for the election of such county and township officers as may be necessary.”

Section 2 provides:

“County officers shall be elected on the first Tuesday after the first Monday in November, by the electors of each county, in such manner and for such term, not exceeding three years, as may be provided by law.”

Counsel for plaintiff urge that members of a county board of education are county officers, and must be elected by the people, and therefore the sections of the act hereinbefore referred to contravene the above sections of the Constitution of Ohio. We have now reached the place in the present case where we are called upon to pass upon, as well as to determine, who are county officers. We are pleased to cite, upon this branch of the case, the case of State v. Hunt, 84 Ohio State, page 149, where Judge Spear says:

“We have not undertaken to enter the field of definition of the term ‘office’ or ‘officer.’ As given in the books they are multitudinous, not to say multifarious. Indeed, so varied are they, scattered through the books, that the ingenious barrister may find support for almost any proposition relating to the general subject which the necessities of his case may seem to demand. But, alike maxims of the law, when used indiscriminately and without judgment, they are apt to mislead. One which seems to have met with most favor, perhaps, is that an office is a public position to which a portion of the sovereignty of the country attaches, and which is exercised for the benefit of the public. And yet, without a satisfactory definition of what is and what is not ‘the sovereignty of the country’ this definition seems to fail to adequately define. Manifestly, however, each case should be decided on its peculiar facts, and involves necessarily a consideration of the legislative intent in framing the particular statute by which the position, whatever it may be, is created. ’ ’

In view of the statement made by the learned judge in the above opinion, we will proceed in the light of the facts and tue statute under consideration, and say that á county officer is one whose right., authority and duties are created and conferred by law, and -whose jurisdiction is co-extensive with the county. If our definition is correct, then and in that event a member of a county board of education is not a county officer, from the fact that his jurisdiction does not extend over the entire county, for the reason that city school districts are not included in county school districts, but are especially exempted therefrom under favor of Section 4684 of the General Code, which provides: “Each county, exclusive of the territory embraced in any city school district, * * * shall constitute a county school district.” * “ ” The jurisdiction being a limited one — to a county school district — which does not include the county as a whole, it necessarily follow's that such position is not within our definition of a county officer.

Tn addition to what we have already said concerning the constitutional question involved in the case at bar, we think that the entire matter is disposed of by Section 3 of Article VI of our Amended Constitution of Ohio, as adopted September 3d, 1932, which provides:

" Provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds; provided, that each school district embraced wholly or in part within any city shall have the power by referendum vote to determine for itself the number of members and the organization of the district board of education, and provision shall be made by law for the exercise of this power by such districts.”

If we give to the language used in the above amendment that plain meaning which the words and sentences certainly convey, we can reach but oiie conclusion, and that is the Legislature had power and authority to pass ail act providing for a school system in our state, and that the said constitutional provision so authorizes. The language is clear, plain, and in no way ambiguous: “Provision shall be made by law for the organization, administration and control of the public school system of the state supported by public ftmds.”

This certainly delegated to and gave full and complete authority and power to the Legislature to pass the school act now under consideration, and to provide for its organization, administration and control. It will further be observed that said amendment especially provides for legislation with reference to city school districts, and that the Legislature so provided in the school act by exempting city school districts from the supervision and control of county school districts, which is in accord with our theory that a member of a county school board is not a county officer, and that neither the framers of the Constitution nor the Legislature so intended.

The court is therefore unanimously of the opinion that said sections of the statute under consideration herein are not unconstitutional, and are not in conflict with or repugnant to the Constitution of Ohio, ar any article or section thereof.

We further find that none of the claims of plaintiff is well taken, and that he is not entitled to the relief prayed for in his petition, and the petition is dismissed at the costs of plaintiff.

Judgment accordingly.

Shields, J., and Powell, J., concur.


author: Jones (Oliver B.), J.

text:
    BOY HURT ON FREIGHT ELEVATOR..
    Court of Appeals for Hamilton County.
    Victor Bittner, a Minor Aged Sixteen Years, by His Father and Next Friend, Edward Bittner, v. The Dolly Varden Chocolate Company.

    Decided., February 2, 1915.

      Negligence — Freight Elevator With Open Sides — Boy’s Foot Caught Between Elevator and Window Sill — Master Not Liable.

    Failure to screen a window lighting an elevator shaft does not render the proprietor liable to a boy whose foot, when projected over the open side of a freight elevator, was caught and crushed between the base of the elevator and the window sill.

      Cowell ¡c& Lamping, for plaintiff in error.

      Waite é Sehindel, contra.

       Affirmed by the Supreme Court without opinion November 9, 1915.

   Jones (Oliver B.), J.

The action below was for personal injury to a boy sixteen years of age, caused by his foot being caught between an elevator platform and the side of the shaft at the top of a window which admitted light and air to said shaft.

The only negligence relied upon is that defendant had failed to comply with the provisions of Paragraph 4, Section 1027, General Code, which is as follows:

“The owners and operators of shops and factories shall make suitable provisions to prevent injuries to persons who use or come in contact with machinery therein or any part thereof, as follows:
“4. They shall case in all unused openings of elevator shafts and place automatic gates or floor doors on each floor where entrance to the elevator carriage is obtained. They shall keep such gates or doors in good repair and examine frequently and keep in sound condition the ropes, gearing and other yarts of elevators. ’ ’

The evidence shows that the eRvator in question was a freight elevator operating in a five-story building. It was open in the back and front for the purpose of admitting freight, and was closed at the sides, and operated in a shaft which was entirely enclosed, having doors on an alley and into the storeroom on the first floor and a door on each of the upper floors, these door openings being provided with automatic gates and firedoors at each floor. In each story was an ordinary glass window opening into the shaft to admit light and air.

Plaintiff’s testimony was to the effect that these glass windows were each set in a recess about one inch back from the face of the wall, while defendant, being called for cross-examination by plaintiff, testified that the tops of these windows were flush with the wall, but that they were recessed about one inch at the bottom.

The accident occurred by plaintiff extending his foot beyond the elevator platform in such way that his heel was caught between this platform and the top of the window at the front of the shaft on the second floor. Plaintiff charges an omission of duty, contrary to the provisions of Section 1027 in the defendant failing to ease or screen in such window. This section is an amendment of an act passed March 20, 1900, found in 94 O. L., 42, which required owners and operators of factories and workshops to make suitable provisions to prevent injury to persons who may come in contact with machinery, and such

“provisions shall include * * * the railing in all unused elevator openings, the placing of automatic gates or floor doors and the keeping of same in good condition, on each floor from which and where on each side or sides, or elevator openings, entrance to the elevator carriage is obtained, the frequent examination and keeping in sound condition of ropes, gearing and other parts of elevators.”

From reference to this law it will be seen that the windows in question in this ease were not such “unused openings” as are referred to in the statute. There is no charge made in the petition of any negligence on the part of defendant, either in the construction or the operation of the elevator. Such an accident might occur in any well constructed freight elevator by a passenger carelessly and negligently extending a hand or foot beyond the line of the platform in such way as to be pinched against the side of the shaft, or at a floor or window. For similar cases, see: Connell v. Miller, DuBrul & Peters Co., 19 Bul., 22; Malaverneri v. Turner Construction Co., 126 N. Y. Supp., 303; Hoehmann v. Moss Engineering Co., 23 N. Y. Supp., 787, 791; McDonald v. Dutton, 190 Mass., 391; Roberts v. Sanitas Nut Co., 142 Mich., 589.

In the opinion of the court it was not error in the trial court to direct a verdict for defendant, as was done, and the judgment is therefore affirmed.

Jones (E. H.), J., and Gorman,.J., concur.


author: Richards, J.

text:
    LIABILITY FOR. GOODS LOST BY FIRE WHILE IN TRANSIT BY RAIL.
    Court of Appeals for Hamilton County.
    The Huenefeld Company v. The Chesapeake & Ohio Railway Company.
    Decided, March 15, 1915.

      .Railways — Provision of Bill of Lading Exempting Carrier from Liability — Where Eire Occurs Without Its Fault — Testimony Required to Show the Company was without Fault.

    In an action against a railway company to recover the value of goods destroyed by fire, after being billed for shipment, where the bill of lading exempts the carrier from liability for loss occurring by fire without its fault, after the non-delivery of the goods is shown the duty rests upon the carrier to show that the loss was within the terms of the exception and occurred without its fault; and this principle is applicable although the fire originated on the premises of the plaintiff.

      Charles A. J. Walker, for plaintiff in error.

      Galvin (& Galvin and E. J. Tracy, contra.
   Richards, J.

Action was brought against the railway company for the purpose of recovering the value of a car-load of washing machines which had been shipped by the plaintiff and were destroyed by fire. The goods were billed to ,the Bostwick-Braun Company, Toledo, Ohio, and were shipped from the factory of the plaintiff company situated at Augusta, Kentucky. Whatever rights, if any, the consignee had to recover for the loss of the goods, have been assigned to the plaintiff.

An empty car had been left on January 28, 1906, on a spur track of the railway company extending back something more than 900 feet, to the plant of the plaintiff. Plaintiff proceeded to load the ear with the goods, completing the same about five o’clock p. M. on January 29,1906, and upon the completion of the loading a bill of lading ivas made out and signed by the agent of the railway company and the company informed that the car was ready to be forwarded to destination. During the night of January 29th the car and its contents were destroyed by a fire originating in the plant of the plaintiff, the same fire also destroying two car loads of ties, the property of the railway company, standing on the same siding.

On the trial of the case the plaintiff introduced in evidence the bill of lading, which contained a clause, in substance exempting the railway company from liability for loss occurring by fire without its fault. ,The railway company offered no evidence, and at the conclusion of the evidence offered on behalf of the plaintiff the court directed the jury to return a verdict in favor of the defendant, on which verdict so returned judgment has been entered.

No question is made as to the knowledge of the plaintiff of the terms of the limitation contained in the bill of lading, and it is said, in justification of the ruling made by the trial judge, that the evidence offered by the plaintiff shows the origin of the fire to have been on the plaintiff’s property, and that the record • contains no evidence of any negligence on the part of the railway company. The evidence contained in the record is very meager, the only material facts on this matter being that the fire occurred on the same night that the car was loaded, and while it still remained on the spur, and that it was in a small village, not a terminal point of the railway company. It may be true that, when it appears the fire originated on the property or in the plant of the plaintiff, the law under such circumstances would imply that the fire originated without fault of the railway company, but the mere origin of the fire is not the only fact which is important in this case. It does not appear what length of time the fire continued to burn, nor at what time of the night the property in question was destroyed. Whether the railway company had any knowledge of the existence of the fire, or whether it had any facilities for removing the car from the zone of danger, does not appear; neither does it appear whether the railway company had any grounds to anticipate that a fire was likely to occur.

We think, under the circumstances stated, the plaintiff had made a prima facie case and the duty rested on the railway company to offer some evidence tending to show that the loss occurred without any fault on its part at the time of the fire. It would be an easy matter to show whether the company or its employees had knowledge of the fire and, if such was the fact, that it was without fault in allowing the car to remain in a place of danger after the fire started.

The case was disposed of on a matter of practice and the Ohio rule appears to be well stated in the case of Graham v. Davis, 4 O. S., 362.

See also, Union Express Co. v. Graham, 26 O. S., 595; Penna. Co. v. Yoder, 1 C.C.(N.S.), 283.

These cases establish the Ohio rule to be that the duty rests on the common carrier to show not only that the loss was within the terms of the exception, but that the same occurred without its fault. The plaintiff’s evidence having established that the loss occurred by fire, it became incumbent on the defendant to show the destruction of the goods did not result from its negligence. The trial court, under the circumstances shown, was not justified in directing a verdict for the defendant, because it could not be said, as a matter of law, that the defendant was without fault. The question depends upon the circumstances existing at the time. While the burden of proof did not change, yet the plaintiff having offered the evidence which appears in the record, the duty then rested on the defendant to go forward with the ease by offering such evidence as it had tending to show that it was without fault for the loss of the goods shipped.

Under the federal authorities the burden rests on the carrier to show that the damage resulted from a cause excepted in the bill of lading, and, after that proof, the burden is then on the plaintiff to show that the loss occurred by the negligence of the carrier. See Cau v. Texas Pacific Ry. Co., 194 U. S., 427. But the case on this matter we hold to be controlled by the rulings of the courts of the state where the action is brought. The case last cited is based on Clark v. Barnwell, 12 How., 272, which was justly criticised by Judge Ranney in Graham v. Davis, 4 O. S., 372, cited supra, and which the Supreme Court of Ohio expressly declined to follow.

The judgment will be reversed and the cause remanded for new trial.

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