author: SAYRE, J.

text:
    ARREST — MALICIOUS PROSECUTION.
    [Pickaway (4th) Court of Appeals,
    May 28, 1914.]
    Walters, Sayre and Jones, JJ.
    Frank S. Jennings v. Charles Shepherd.
    Discharge of Accused by Examining Magistrate Prima Facie Evidence of Want of Probable Cause.
    In a suit for malicious prosecution, proof that the defendant filed an affidavit, in a mayor’s court, charging the plaintiff with forgery and that, in consequence, he was arrested and imprisoned, and that, on the preliminary hearing, after witnesses were sworn and examined he was discharged, is prima facie evidence of want of probable cause.
    Error.
    Plaintiff in error defendant in the court of common pleas, filed an affidavit, in the mayor’s court of Circleville, charging Shepherd with forgery.
    The defendant in error was arrested and imprisoned, and after a trial by the mayor, in which witnesses for the state and defendant were examined, he was discharged. He thereupon brought this action for malicious prosecution and recovered a judgment for $400.

      C. A. Leist and G. G. Adkins, for plaintiff in error.

      George W. Morrison and Charles Gerhardt, for defendant in error.
   SAYRE, J.

The trial court charged the jury as follows:

“The fact that the mayor discharged the plaintiff because he did not find him guilty of the charge on which- he was arrested is prima facie evidence that said criminal prosecution and arrest was without probable cause, but it is not conclusive evidence thereof. By prima facie evidence it is meant such evidence as creates a presumption that these facts are established by it in the absence of any evidence to the contrary. In other words, it is a sufficient way to establish the disputed facts until they are rebutted or overcome by evidence to the contrary. ’ ’

It is contended on behalf of plaintiff in error that proof of a discharge by an examining magistrate is not prima facie evidence of want of probable cause and that the question has been decided by the case of John v. Bridgman, 27 Ohio St. 22, 39. But it will be seen that the statement of Judge Whitman, who wrote the opinion in that case, is an obiter dictum, because when he used the language that “the mere fact of acquittal and discharge by the magistrate was not enough” to show want of probable cause, he was discussing the question as to whether the plaintiff in the suit for malicious prosecution could show that no evidence was offered, before the magistrate, by the complainant to establish the charge contained in the affidavit. The question as to whether such discharge is prima facie evidence of want of probable cause was not one of the assignments of error and did not arise in the case.

Section 13511 G. C. provides :

“When the accused is brought before the magistrate and there is no plea of guilty, he shall inquire into the complaint in the presence of said accused. If it appear that an offense has been committed and that there is probable cause to believe the accused guilty he shall order him to enter into a recognizance * * * otherwise he shall discharge him.” * * *

By virtue of Sec. 4542 G. C. the mayor of Circleville had the jurisdiction conferred in Sec. 13511 on a charge of forgery.

ITence, the question inquired into, by-the magistrate, and the one he had authority to determine, was the one as to probable cause, and a finding was made that there was no probable cause to believe that Shepherd was guilty of the crime of forgery.

Was this finding prima facie evidence of a want of probable cause in this case?

The decisions of courts of last resort on this question are not in harmony. The following is a partial list of those holding that the discharge, by the magistrate, on a preliminary hearing, is prima facie evidence of the want of probable cause: Stubbs v. Mulholland, 168 Mo. 47 [67 S. W. Rep. 650]; Jones v. Finch, 84 Va. 204 [4 S. E. Rep. 342]; Brown v. Vittur, 47 La. Ann. 607 [17 So. Rep. 193]; Ross v. Hixon, 46 Kan. 550 [26 Pac. Rep. 955; 26 Am. St. Rep. 123]; Smith v. Clark, 37 Utah 116 [106 Pac. Rep. 653]; Frost v. Holland, 75 Me. 108; Munns v. Dupont, 1 Am. Lead. Cas. 184; Johnson v. Chambers, 32 N. C. 287; Vinal v. Core, 18 W. Va. 42; Eggett v. Allen, 119 Wis. 625 [96 N. W. Rep. 803]; Barhight v. Tammany, 158 Pa. St. 545 [28 Atl. Rep. 135; 38 Am. St. Rep. 853].

The case of Davis v. McMillan, 142 Mich. 391 [105 N. W. Rep. 862; 3 L. R. A. (N. S.) 928; 113 Am. St. Rep. 585], reviews a number of decisions on the subject and especially those holding that the discharge by the magistrate is not prima facie evidence of the want of probable cause, and among them is the case of Israel v. Brooks, 23 Ill. 575, 577, in which the writer of the opinion undertakes to state the reasons for holding that a discharge, by the magistrate, is not prima fa.cie evidence of the want of probable cause, thus:

“ * * * How many justices are there in obscure localities who are as little capable of determining what is probable cause for a criminal prosecution as they are of explaining any of the phenomenon of nature? How many do we find prejudiced against a public accuser, how many in sympathy with the accused? The decisions of such an official on intricate questions of law or fact should not weigh against the accused and they do not practically; for, if he is committed, the grand jury pay no attention to the finding of the magistrate. It is not prima facie evidence of his guilt, and how preposterous it is to say the discharge of a criminal is prima facie evidence of want of probable cause. It is not so and should never, be so regarded! ’ ’

This line of reasoning, which is quoted in Doris v. McMillan, supra, with approval, leads to an entirely erroneous conclusion.

Public officers are presumed to do their duty and their acts are presumed to be regular. While courts of general jurisdiction and of review may not indulge these presumptions in all respects as to courts of inferior and limited jurisdiction, yet they will presume that magistrates have intelligence enough to pass upon the questions which they are required! to pass upon and that they do act honestly. Where a court of limited and inferior powers has acquired jurisdiction, its acts are presumed to have been rightly and honestly done. The fact that some magistrates may be ignorant and liable to be prejudiced does not overthrow the presumption. When a public officer, charged with the duty of determining a controversy, performs that duty the inference naturally and logically arises that his determination was just. Hence, since magistrates in our state are charged with the duty of determining the question of probable cause in criminal cases, such determination, in the absence of any other evidence, ought to be and is prima facie evidence of the fact determined. But this is true only when such magistrate has held a preliminary trial and has heard the evidence producedi, because only then can he pass upon the question of probable cause.

The charge of the trial court in this respect was not-erroneous.

Walters and Jones, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM. SWING, J.

license: Public Domain

text:
    APPEAL — INSURANCE.
    [Hamilton (1st) Court of Appeals,
    March 14 and April 10, 1914.]
    Swing, Jones and Jones, JJ.
    Postal Life Ins. Co. v. Horace W. Harmeyer et al. Horace W. Harmeyer v. Insurance Co.
    1. No Appeal from Cincinnati Superior Court to Court of Appeals.
    There is no right of appeal from the superior court of Cincinnati to the court of appeals, Thompson v. Building Assn. 7 Circ. Dec. 68 (13 N. S. 250), followed and approved.
    2. Assignee of Life Policy Limited to Insurable Interest.
    Under the assignment of a life insurance policy, the assignee is entitled to recover out of the proceeds only the amount of his insurable interest.
    Appeal and Error.

      Frank H. Kunkel, for administratrix.

      Thos. L. Michie, and G. C. Kearns, for Harmeyer.

      Affirming, Postal Life Ins. Co. v. Harmeyer, 26 Dec. 141. Motion to certify record overruled by the Supreme Court, June 9, 1914, Harmeyer v. Schmidt, 59 Bull. 222.

   PER CURIAM.

It was held in the case of Thompson v. Building Assn. 7 Circ. Dec. 68 (13 R. 250), that as the law then was there was no right of appeal from the superior court of Cincinnati to the circuit court. There has been no change in the law, organic or otherwise, since the decision in that case, affecting the question.

The motion to dismiss the appeal is sustained.

SWING, J.

This is an action in this court on error to the judgment of the superior court of Cincinnati. The action arose out of a policy of insurance issued by the Postal Life Insurance Company on the life of Adolph Schmidt. The life insurance company filed its petition in said court setting forth the policy and stating the amount due on the policy and brought the money into court making Carrie Schmidt, administratrix of Adolph Schmidt, deceased, and Horace W. Harmeyer defendants, alleging that both parties claim the proceeds of said policy.

Harmeyer and Schmidt both filed answers, each claiming to be entitled to the proceeds-of said policy, excepting from it the amount paid by said Harmeyer, which was admittedl by Mrs. Schmidt as being due to said Harmeyer, having been paid by him on said policy during its continuance.

Plaintiff below pleads that Schmidt took out a policy for $5,000 on his life, in the Provident Savings Life Assurance Society of New York, April 27, 1896, and that he continued to pay the annual premiums on same until April 22, 1911, when he assigned said policy to Horace W. Harmeyer. The assignment is as follows:

"For value received I hereby assign and transfer unto Horace W. Harmeyer, No. 519 Main street, Room 208, Lincoln. Inn Court, in the city of Cincinnati, state of Ohio, Policy of Insurance No. 76,203 issued by the Provident Savings Life Assurance Society of New York upon the life of Adolph F. Schmidt of Cincinnati, Ohio, and.duly reinsured in the Postal Life Insurance Company, all dividends, benefits and advantages to be had or derived therefrom, subject to the conditions of the said policy and to the rules and regulations of the company, and subject and subordinate to any indebtedness to the company.
“It is expressly agreed that before any payment shall be made by virtue of this assignment, satisfactory proofs of the insurable interest of the assigned shall be furnished to the compaay, and the company shall not be liable for any sum in excess of such insurable interest.
“Witness my hand and seal, at Cincinnati, Ohio, this twenty-second day of April, 1911-
“(Signed) Adolph F. Schmidt.”

The policy contained this provision:

“Any assignment of this policy must be in writing, and a duplicate thereof must be furnished the society. Any claim arising under an assignment shall be subject to satisfactory proof of insurable interest existing at the death of the insured or at the date of such claim, if prior thereto, and the society shall be liable to the assignee to the extent of that interest only; but the society will not assume any responsibility for the validity of an assignment.”

On the back of the policy there was also written, at the same time, the following:

“Cincinnati, 0., April 22d, 1911.
“The consideration for which this agreement was made, having been fully paid and satisfied, I hereby relinquish all right, title and’ interest in - Policy No: 76,203, on the life of Adolph F. Schmidt (and my estate as beneficiary) of Cincinnati, Ohio, as provided by this agreement. That said Horace W. Harmeyer, his heirs, assigns, becomes the beneficiary under said policy No. 76,203.
“Witness my hand and seal on the day and date above mentioned. “Adolph F. Schmidt; Assignee.
“Signed in the presence of Edward L. Heckel, Witness.”

As stated, Harmeyer by virtue of this assignment claimed to be the sole beneficiary, whereas Mrs. Schmidt claimed that he was entitled to receive only the amounts paid on said policy together with the interest accruing thereon.

Under these pleadings the ease was tried in said court and the following judgment rendered:

“This cause coming on to be heard on the petition of the plaintiff, the answer and cross petition of the defendant Horace W. Harmeyer, and Carrie Schmidt as administratrix of the estate of Adolph F. Schmidt, deceased, and the evidence, and the court being fully advised in the premises finds that the Provident Savings Life Assurance Society of New York issued a policy of insurance in the sum of five thousand ($5,000) dollars on the life of Adolph F. Schmidt, and that the plaintiff the Postal Life Insurance Company assumed the payment of said policy; that among other conditions in said policy it was provided that in the event said policy is assigned by the insured, that the company shall be liable to the assignee to the extent of that insurable interest only; that said policy was assigned by the insured to one Horace W. Harmeyer subject to the conditions of said policy, and to the rules and regulations of the company, and it was further agreed in the said assignment that before payment shall be made by virtue of the assignment satisfactory proofs of the insurable interest of the assignee shall be furnished to the company and the company shall not be liable for any sum in excess of such insurable interest.
“The court further find that the plaintiff deposited with the clerk of the court the sum of $4,533.19 which was the amount due under said policy after deducting an indebtedness of the insured in favor of said company.
“The court further find that the defendant Horace W. Harmeyer refused' to furnish the plaintiff any testimony as to his insurable interest in the life of Adolph F. Schmidt, deceased, and that as a matter of fact the said Horace W. Harmeyer had no insurable interest in the life of Adolph F. Schmidt excepting as to the premiums and interest paid by him to the said company after said assignment of said policy by Adolph F. Schmidt to said Horace W. Harmeyer, which said premiums and interest are hereinafter referred to and ordered paid to said Horace W. Harmeyer.
The court further finds that because of the conduct of the defendant Horace W. Harmeyer, through correspondence with the Insurance Department of New York and the Post Office Department at 'Washington, and through other acts whereby the plaintiff was being greatly injured, the said plaintiff was forced and did, as-a matter of defense and protection to its interests, and in order to prevent further injury to its business, deposit said money with this court; that the depositing of said money under such circumstances did not constitute a waiver on the part off the company of the provision and terms of the policy providing that the said Horace W. Harmeyer shall establish his insurable interest in the life of Adolph Schmidt.
‘ ‘ The court further find on consideration of the answer and cross petition of the defendant, Horace W. Harmeyer, {hat the said defendant Horace W. Harmeyer is not entitled to the entire fund deposited so as aforesaid with the clerk of this court; that the said defendant Horace W. Harmeyer is entitled to the premiums paid by him to said company, to-wit: April 22, 1911, $88.80; April 27, 1912, $88.80; April 27, 1913, $88.80; with interest thereon from said respective dates up to the date of this decree, amounting in all to $294.53, and the further sum of $72.75 interest paid by the said Horace W. Harmeyer on the loan of $485 obtained by Adolph F. Schmidt in his lifetime from the plaintiff with interest thereon to date amounting in all to $12.15, making a total of $379.43, which amount the clerk of the court is hereby ordered to pay to said Horace W. Harmeyer or to Thos. L. Michie, his attorney.
“And the court coming now to the consideration of the answer and cross petition of the defendant, Carrie Schmidt, as administratrix of the estate of Adolph Schmidt, deceased, and the evidence, finds that the plaintiff was at all times and still is willing to pay the difference between the amount so found to be due to said Horace W. Harmeyer and the amount deposited with the clerk of this court to Carrie Schmidt, as administratrix of the estate of Adolph F. Schmidt, deceased, and the court doth now, therefore, order, adjudge and decree that the clerk of this court pay the balance of said fund remaining in his hands amounting to the sum of $4,153.76 to the said Carrie Schmidt as administratrix of the estate of Adolph F. Schmidt, deceased, or to Frank H. Kunkel, her attorney.”

To which decree exception is taken in the following language:

“To the foregoing decree Horace W. Harmeyer, by his counsel, duly excepts, and gives notice of appeal to the court of appeals of Hamilton county, Ohio, and the court hereby fixes the appeal bond at $1,000.”

No motion for new trial was filed, and no bill of exceptions was taken. The case is therefore before this court on the pleadings and the judgment entered.

At the conclusion of the argument in this court, the court announced that the judgment would be affirmed, without stating any reasons for the affirmance.

The legal question presented to us seems so clear that we hardly thought it necessary to consider the case further, or to give any reasons why the judgment should be affirmed.

The motion for re-hearing is now filed, and elaborate arguments have been presented to us, asking that the former judgment be set aside and judgment rendered for the defendant in error.

After giving the matter full consideration, we see no way by which we can reverse our former judgment. The issues were squarely made as to whether Harmeyer was entitled to the whole amount of the policy or whether he was limited to recovering the amount of his insurable interest. We are bound by the judgment that evidence was offered which would fully sustain the finding in favor of Mrs. Schmidt.

Judgment affirmed.

Jones, O. B., and Jones, E. H., JJ., concur.


author: METCALFE, J.

text:
    EXECUTORS AND ADMINISTRATORS — LIMITATION OF ACTIONS.
    [Carroll (7th) Court of Appeals,
    April Term, 1913.]
    Pollock, Metcalfe and Norris, JJ.
    Lewis Walters, Admr. v. John D. Heidy.
    Action for Value of Services Maintainable, Failure to Compensate by Bequest for Services Rendered, Limitation Runs from Appointment of Administrator.
    W agreed with H that if he would render her certain services she would, in compensation thereof, make a will giving him all the property she owned at the time of her death. H performed services under the agreement. W died intestate. Held:
    1. H can maintain an action to recover the value of the services so rendered.
    2. The statute of limitations does not begin to run against such action until the appointment of an administrator of W’s estate.
    [Syllabus by the court.]
    Error.

      Wallace M. Handley, for plaintiff in error.

      I. N. Blythe, for defendant in error.
   METCALFE, J.

Defendant in error was plaintiff below. In the second amended petition filed in the case it is averred) in substance, that in February, 1890, he entered into a verbal agreement with Nancy Heidy, whereby he agreed to live with her upon her farm, known as the Tom Neely farm, as long as she desired him to do so, and that in compensation for his services to be rendered her in that behalf she agreed to make a will and give to him all the property she owned at the time of her death. That in pursuance of that agreement he did move onto said farm and for a period of about two years gave his work and labor to the said Nancy Heidy, and performed services which he claims were of the value of a thousand dollars. In the meantime Nancy Heidy married Lewis Walters, plaintiff in error in this case, and some time after her marriage with Walters Heidy moved away from the farm. Nancy Walters died in 1910 intestate, and after the appointment of an administrator Heidy brought .his action to recover the value of the services which he claims to have rendered under his agreement with her. Upon the trial of the case Heidy recovered judgment. A number of questions are urged in argument, but we think the only questions of importance are, whether the action can be maintained, and if so whether it is barred by the statute of limitations.

That the agreement of Mrs. Walters to compensate Heidy for his work by noil was within the statute of frauds, and that no action can be maintained thereon for specific performance or for damages seems clear. Austin v. Davis, 128 Ind. 472 [26 N. E. Rep. 890; 12 L. R. A. 120; 25 Am. St. Rep. 456]; De Moss v. Robinson, 46 Mich. 62 [8 N. W. Rep. 712; 41 Am. Rep. 144]; Wallace v. Long, 105 Ind. 522 [5 N. E. Rep. 666; 55 Am. Rep. 222]; Pond v. Sheean, 132 Ill. 312 [23 N. E. Rep. 1018; 8 L. R. A. 414]; 25 Am. L. J. 69.

But if no action can be maintained upon the contract, does it follows that if services are rendered in pursuance of a mutual understanding that compensation shall be made therefor by will, and the party receiving the’services dies without making the expected compensation, that the party rendering the services may not recover .their value from the estate of the deceased? Without entering into a discussion of this question we think the right to recover in such case is fully sustained by the following authorities: Robinson v. Raynor, 28 N. Y. 494; Martin v. Wright, 13 Wend. (N. Y.) 460 [28 Am. Dec. 468]; Parsell v. Stryker, 41 N. Y. 480; Jenkins v. Stetson, 91 Mass. (9 Allen) 128; Wellington v. Apthorp, 145 Mass. 69 [ 13 N. E. Rep. 10; 57 Am. Rep. 759].

It is urged that the statute of limitations began to run at the time Heidy .ceased to labor on the farm, and hence that his cause of action is barred. Upon the question of the statute of limitations the trial judge charged the jury as follows:

“If upon consideration of all the evidence adduced on the . trial you find that said agreement between plaintiff and deee-' dent as claimed by plaintiff was in fact made, that said plaintiff was to be compensated for said alleged services rendered, and means of support 'furnished, if any, and that he was not to receive such compensation until the death of Nancy J. Walters, then in such event I say to you as matter of law that his cause of action therefor would not arise and would not accrue to him until the date of said Nancy J. Walters’ death, which is admitted to be May 19, 1910, and in such event, plaintiff’s cause of action would not be barred by the statute of limitations.”

The evidence in this case tends to show that the services which Heidy was to render for Mrs. Walters were to be paid at her death by a provision in her will. The manner in which they were to be paid is a matter of indifference. The question is was the compensation to be made at her death. If Heidy was not to be paid until her death how could a cause of action arise before that time? In the case of Marsh v. Clark, 11 Dec. 564, it is held that where an uncle agreed to compensate his nephew by will for services that the statute of limitations did not begin to run until the death of the uncle. In Hoiles v. Riddle, 74 Ohio St. 173 [78 N. E. Rep. 219; 113 Am. St. Rep. 946], the holding is to the effect that in an action on a contract not in writing which became due by the decease of the debtor the cause of action does accrue until the appointment of an executor or an administrator. We do not think that the fact that the contract in this ease could not be enforced specifically makes any difference in the application of the principle announced in Hoiles v. Riddle, and that the statute would not begin to run until the appointment oif an administrator for Mrs. Walter’s estate. And as the death of Mrs. Walters and the appointment of the administrator occurred within six years prior to the commencement of the suit the statement in the charge that the statute began to run at the death of Mrs. Walters is not prejudicial.

Judgment affirmed.

Norris and Pollock, JJ., concur.


author: JONES, O. B., J.

text:
    MECHANICS’ LIENS.
    [Hamilton (1st) Court of Appeals,
    October, 1915.]
    Jones, Jones and Gorman, JJ.
    (Jones, E. H., J., not sitting.)
    Louis Moesser v. Enterprise Lumber Co. et al.
    Owner Need not Stop Payment of Checks to Subcontractors Mailed before but on Same Day Mechanic’s Lien Filed if Balance Due on Building Exceeds Sum of Checks and Mechanic’s Lien.
    An owner, mailing checks to certain subcontractors and material men on the day of the filing of a mechanic’s lien by another subcontractor, is not required to stop payment on the checks if the amount due for construction of the building is not less than the amount of the checks plus the amount of the lien; but subcontractors and material men who did not file with the owner itemized statements of the amounts due them within ten days after the filing of the lien are not entitled to pro rate with the lien holder or the payees of the checks in the amount remaining due.
    Error.

      C. W. Hoffman and Chas. M. Leslie, for plaintiff, in error.

      W. F. Chambers, Hunt, Bennett & Titter, Miller & Foster, W. A. Binckhoff, Wolf & Bailey, TitMle & Boss and Hackett, Yeatman & Harris, for defendants in error'.
   JONES, O. B., J.

The proceeding below was brought by the Enterprise Lumber Company seeking to recover the amount due to it for materials furnished for the construction of a house by the Louis Belmont Company as head contractor for Louis Moesser, plaintiff in error herein..

The Enterprise Lumber Company, filed a claim as material man, in accordance with Sec. 8324 Gr. C.. There is no dispute but that it followed the statute and perfected a miaterial man’s or subcontractor’s lien upon the balance due from the owner for the construction of said house. This affidavit and notice to the owner thereunder were filed April 10, 1913, and the amount found due to the Enterprise Lumber Company thereunder was $483.24, with interest.

On the day previous to the filing of this notice plaintiff in error claims to have drawn checks to certain subcontractors and material men amounting to $550,15 which were put in the mail on the morning of April 10, 1913. If this were done as claimed, before receipt of notice from the Enterprise Lumber Company, it was still within the power of plaintiff in error to have stopped payment upon these checks if the amounts covered by, them would reduce the amount due for the construction of said house to a sum less than the amount claimed by the subcontractor’s lien. The question is raised between the parties as to whether these checks were actually mailed before the notice was filed, but as the amount found to be due in addition to the amount of these checks is larger than that due the Enterprise Lumber Company, it becomes immaterial as to it, whether they were beyond the control of plaintiff in error before the receipt of the notice served upon him for said Enterprise Lumber Company’s lien.

Under the terms of Sec. 8328 G. C., in order that other subcontractors might be permitted to pro rate with the Enterprise Lumber Company it was necessary for them, within' ten days from the date of the filing of the lien by the Enterprise Lumber Company with the county recorder, to file sworn and itemized statements of their several accounts with the owner. The record shows that no such statement was filed by any of the subcontractors who are parties herein, earlier than April 30, 1913. Therefore, under the terms of the statute, which has been so construed in the case of Hayden Saddlery Hardware Co. v. Slade, 2 Circ. Dec. 38 (3 R. 67), the Enterprise Lumber Company was entitled to be first paid out of the fund; and as the cheeks of’the owner aggregating $550.15, which were mailed April 10, 1913, were then due and were paid before any statements as to other claims were filed, in accordance with the terms of Sec. 8328 G-. C., these payments made by these checks must be treated as proper payments as far as all the other subcontractors and material men are concerned.

The judgment of the lower court was, therefore, erroneous in finding that the owner must be deemed as having in his hands $1,103.40 subject to the payment of claims. The payments made by the owner’s cheeks of April 10, 1913, should have been deducted from this amount and the balance with interest, only, would be available for the claims of all sub-contractors and material men, out of which the Enterprise Lumber Company must first be paid and the balance pro rated among other claims.

The judgment of the lower court is therefore reversed and the cause remanded for further proceedings.

Gorman, J., concurs.


author: JONES. J.

text:
    BASTARDS.
    [Hamilton (1st) Circuit Court,
    June 3, 1911.]
    Smith, Swing and Jones, JJ.

      John Campbell v. State, ex rel. Cain.
    Order of Admission of Evidence in Bastardy Case Discretionary with Court.
    In the trial of a bastardy case as provided by Sec. 12122 G. C., failure to read before complainant rests the transcript of the evidence given by the complainant before the magistrate, does not constitute prejudicial error where the reading of the transcript occurred before the defendant was placed on the witness stand.
    Error.

      Thomas H. Kelley, for plaintiff in error.

      Jos. T. Harrison, for defendant in error.

       Affirmed, no op., Campbell v. State, 88 O. S. 586.

   JONES. J.

The jury found the defendant below guilty as charged in the complaint after hearing the evidence adduced and proper instructions by the court.

We think the failure of plaintiff below to read the transcript of complainant’s evidence, as given before the magistrate, at the proper time is not prejudicial error.

The transcript was referred to in the trial by counsel before plaintiff rested and it was within the discretion of the court to permit it to be read later, especially as it was read before defendant placed a witness on the stand.

The evidence is conflicting, as it always is in cases of this nature. The jury heard it with full opportunity to note the interest and demeanor of the witnesses and were the sole judges of the reliability and credibility of the testimony offered.

Finding no error the judgment will be affirmed.

Smith and Swing, JJ., concur.


text:
    ACCOUNTING — EQUITY—MORTGAGES.
    [Hamilton (1st) Court of Appeals,
    July 19, 1915.]
    Jones, Jones and Gorman, JJ.
    Otto Krippendorf v. Helen M. Ormsby.
    (3 Cases.)
    1. Reference to Master Commissioner Proper in Equitable Proceeding to Construe and Enforce Contract and Accounting.
    A suit to construe and enforce a contract and for an accounting thereunder, for a decree ■ for the reconveyance of realty and for general relief is. a cause in equity, all matters being triable to a court and not a jury, comes within the provisions of Sec. 11490 G. C. and reference to a master commissioner is not an abuse of discretion by the court.
    2. Judgment Debtor Contrary to Judgment Creditor Cannot Compel Foreclosure Sale.
    A judgment debtor in a foreclosure suit cannot compel a sale under decree of foreclosure and order of sale contrary to the wishes and right of a judgment creditor who is the owner of the judgment and mortgage in issue, and the trial court properly on application of the judgment creditor properly ordered recalls of orders of sale issued upon the precipe of the judgment debtor therein.
    3. Prayer for Equitable Relief Effective to Cure Technical Defects in Terms of Pleading Setting Out Salient Facts in Issue.
    A contract to reconvey property to grantor upon payment of money advanced or loaned by grantee acting, as attorney for the grantor is in the nature of a mortgage; hence, notwithstanding the petition in an action to reconvey and for an accounting, and praying for specific performance and equitable relief does not in terms designate the contract as a mortgage, nór set out the relation of attorney and client, if it sets forth the salient terms of the contract and does in fact state a cause of action for a redemption of the mortgage and shows that the grantee holds the property in trust for grantor, the court may, under the general prayer for equitable relief, order the reconveyance and an accounting.
    Error.

      J. M. Dawson, for Krippendorf.

      J. C. Martin, and Wm. M. Fridman, for Helen M. Ormsby.

      Young & Young, for Geo. S. Ormsby.
   JONES, O. B., J.

Three proceedings in error have been brought in this court, growing out of an action in the superior court of Cincinnati in which the defendant in error was plaintiff, and the plaintiff in error was defendant, and in which plaintiff sought to require the defendant to reconvey to her certain real estate which she had conveyed to him under a certain contract in accordance with the terms of which he was to advance certain money and out of it to pay certain liens upon said real estate, and to hold and rent same and out of the income pay taxes, make repairs and improvements, and the end of three years upon repayment to him of the amount advanced to reconvey said real estate to her.

The University of Wooster was made party defendant and filed a cross petition setting up a mortgage made by the defendant below to it to secure a loan of $5,000 upon lot 49 which was the improved portion of said real estate, and a judgment was afterwards entered on said cross petition finding the amount due under said mortgage and ordering the foreclosure of same and sale of the premises covered by the mortgage on the failure to pay the amount so found due.

The case proceeded as between the original plaintiff and defendant, and was heard upon her second amended petition, the answer of defendant thereto, and the reply to said answer. Upon said hearing the court decided in favor of the plaintiff and found upon the evidence that the allegations of her second amended petition were true, and that she was entitled to have the contract performed by the defendant and its' provisions enforced against him, and that she was entitled to have a re-conveyance of all the property mentioned in said contract, imposed by him, excepting the mortgage to the University of Wooster free from all. encumbrances, upon the payment by her of such sums with interest as had been advanced by defendant upon her account under said contract; and for the purpose of stating an account showing the amount so due from plaintiff to defendant the court appointed Murry M. Shoemaker as a master commissioner with all the power of a referee, to take such an account and to ascertain and report to the court the amount so due to the defendant.

The first proceeding in error, No. 304, seeks to set aside this judgment as being erroneous and invalidl, and questions the powder of the court to appoint a master commissioner as therein provided.

The cause is one in equity, being a suit to construe and enforce a contract and for an accounting thereunder, for a decree for the reconveyance of land and for general relief. These are all matters triable to a coui’t and not to a jury, and come within the provisions of Sec. 11490 G. C. Under this section reference to a master commissioner is discretionary with the court, and in this case the court has in no way abused its discretion.

The second proceeding in error, No. 461, was brought for the purpose of reviewing the final judgment and decree of the superior court which was entered in said case upon the report and finding of the master commissioner and referee appointed therein and wdiich fixed the amount ordered paid by the plaintiff to the defendant in full satisfaction of all amounts advanced and paid by him under said contract, and provided that upon such payment by the plaintiff said defendant should reeonvey all of said real estate free and clear of all incumbrances.

In this proceeding in error a complete bill of exceptions w^as filed, but the original pleadings and papers having been filed in the first case, No. 304, were not refiled herein out only such papers as had been filed in the lower court subsequent to the original proceeding in error. And the transcript of the docket and journal entries in the lower court filed in this second case included only those subsequent to February 2, 1914, being a continuation of the transcript filed in case No. 304. As each of these proceedings in error is technically distinct from the other, there might be a question as to the power of the court' to consider one case as merely a supplement of the other, but as the main question involved is the same in both cases, they will be treated together and considered as one.

The third proceeding in error, No. 577, involves the right of a judgment debtor in a foreclosure suit to insist upon a sale under decree of foreclosure and order of sale, contrary to the wishes and right of the judgment creditor who is the owner of said judgment and mortgage.

A decree in foreclosure was taken upon the cross petition of the University of Wooster under its mortgage made to Otto Krippendorf upon Lot 49, part of the real estate involved in said contract, and an order for sale had been issued upon the precipe of the attorneys for the University of Wooster and the property was advertised thereunder for sale by the sheriff, whereupon George S. Ormsby the father of Helen M. Ormsby, for her protection and assistance purchased from the University of Wooster all its interests under said mortgage and judgment and recalled said order for sale.

Afterwards, Otto Krippendorf, the judgment debtor in said decree of foreclosure, without authority from or notice to said George S. Ormby or the University of Wooster filed a precipe for a second order of sale, which was, issued by the clerk, and sale was advertised thereunder by the sheriff. Upon motion George S. Ormsby was made party defendant, and he made application to the court for an order to set aside and recall the second order of sale which had been issued at the instance of said defendant, Otto Krippendorf; which motion upon hearing the court granted, and made an order setting asidle and recalling said second order of sale. Said defendant, Otto Krippendorf , also moved the court to require said George S. Ormsby to give security for costs, he being a nonresident of Hamilton county, Ohio. This motion was denied by the court on the ground that it appeared to the court that Ormsby was the owner of the mortgage and judgment interest in said real estate, which afforded ample security for costs. To this order the defendant Krippendorf also excepted.

The third proceeding in error was brought to secure a reversal of these two orders. In the opinion of this court the action of the court below upon both of said motions was both proper and legal. But neither of said orders is a final order which can be reviewed by proceedings in error by this court, and the petition in error in case No. 577 will therefore be dismissed at the costs of plaintiff in error.

The main question in the first and second proceedings in error is as to the correctness of the judgment below finding the equities in favor of the plaintiff.

The evidence shows that Mrs. Ormsby being the owner of a handsome dwelling on the lot known as No. 49 of the Foote subdivision, was in embarrassed circumstances, a'decree of foreclosure having been taken upon the mortgage on said property by the University of Wooster, and it was about to be sold to satisfy the judgment of such foreclosure; that other judgments had been taken against her for money; and the taxes on said property were unpaid. When in search of assistance towards the raising of money necessary to adjust her financial difficulties she met Otto Krippendorf who is an attorney at law and who agreed to act for her as such and to advance money necessary to prevent the sacrifice of her home. To effect this purpose it was agreed that Krippendorf would raise money to the amount of $7,500; that a conveyance of said lot No. 49, together with three other lots, would be made to him by Mrs. Ormsby; and that out of the $7,500 he was to pay all tax claims on lot 49, the court costs and judgment in said foreclosure case brought by the University of Wooster, and certain, improvements to the premises on lot 49; and the form of contract to this effect was drawn by said Krippendorf and executed by Mrs. Ormsby and Krippendorf in the presence of two witnesses, and duly acknowledged by both of them before a notary public.

It appears from the evidence that by virtue of this contract, and a deed made at the same time as a part of the same transaction by Mrs. Ormsby to Mr. Krippendorf, her title in said four lots was vested in Krippendorf who was then acting as her attorney and trustee, under the terms of said contract. The sheriff’s sale in the foreclosure ease of the trustees of the University of Wooster was confirmed and a deed was executed by the sheriff conveying lot 49 to the trustees of the University of Wooster, who, carrying out an arrangement previously made with Mrs. Ormsby, received at the hands of Krippendorf sufficient money to pay the court costs and tax claim and to reduce their indebtedness from Mrs. Ormsby down to $5,000 for which Krippendorf executed a mortgage to them upon said lot 49.

By the terms of said contract Krippendorf agreed to re-convey to Mrs. Ormsby, upon the termination of said term of three years, to-wit, on May 6, 1912, the same interest in said four lots provided she pay to him in gold coin the principal sum of $5,000 and interest and $2,500 and interest, together with all incidental sums by way of taxes, assessments, interest on mortgages, charges for improvements or otherwise, and interest at 6 per cent per annum from the date of maturity. The contract further gave to Mrs. Ormsby during its existence a right to accelerate a reconveyance of said property providing she assume and take subject to the mortgage of $5,000 and all other claims and demand® growing out of the contract.

A careful consideration of this contract in connection with the evidence given shows that its whole purpose, and the purpose of the conveyance made by Mrs. Ormsby to Krippendorf, was simply to furnish the means for securing money, which he agreed to raise and advance on her account. In other words, this so-called contract was in fact a mortgage. The conveyance was undoubtedly made to him by her and at her request by the trustees of the University of Wooster, for the purpose of vest- ■ ing title in him as her trustee for her benefit and at the same time to secure hint in the repayment of any money necessary-to be advanced by him. Although the contract is drawn in an involved and extremely vague way, it shows evidence of having been prepared either by a lawyer who was without sufficient experience to clearly state what was intended to be covered in it — to provide proper security for himself in advancing funds and at the same time protect the rights of his client who was to be the beneficiary of such advancement; or else it was the product of a crafty and unscrupulous lawyer, -who, seeking to take advantage of a confiding client ignorant of such documents, at the end of her resources and eager to find a way out of her financial difficulties, created a document under which he might if occasion arose claim to be the absolute owner of the property and hold her to the exact time fixed for reconveyance under the strict letter of the contract in the manner of an historical Shylock.

The fact that Krippendorf failed in any way to report his expenditures to Mrs. Ormsby or to furnish to her an account of the amount of his advancements under the contract, and that he failed to keep the property rented or in repair, and the further fact that the value of the property has largely appreciated, taken in connection with his testimony as given in this case, places him in anything but a favorable attitude before the court. He had hardly signed the contract under which he appeared as the friend and benefactor of Mrs. Ormsby until he laid plans to repudiate it and his testimony indicates a constant effort on his part to retain for himself the property which he obtained as a trustee for a client, and, failing to hold it, to require her to pay the largest amount possible to him in excess of all advancements and interest.

There is no question but that this contract was drawn as a security for a loan or advancement to be made by Krippendorf on behalf of Mrs. Ormsby and, under the doctrine of the case of Wilson v. Giddings, 28 Ohio St. 554, it must be held to be a mortgage. As was said in the ópinion of the court in that case, at page 565:

“There is no principle in equity more firmly settled on authority than that evéry contract for the security of debt, by the conveyance of real estate, is a mortgage, and that all agreements of 'parties tending to alter, in any subsequent agreement, the original nature of the mortgage, is of no'effect. * * *
“The rule is general that where a contract and conveyance are made upon a negotiation for a loan of- money, a court of equity will always construe the conveyance to be a mortgage, whatever may be the form of the contract. * * *
“Whatever form the transaction assumes; whatever covenant there may be in the conveyance, or in an agreement accompanying it, if it was founded upon a loan of money, and intended by the parties to be a mortgage, courts of equity will always so construe it.”

It is not necessary to multiply authorities to sustain the principle that once a mortgage is always a mortgage.

Nor is it necessary to cite cases that a party occupying a trust relation cannot take advantage of his position.

Counsel for plaintiff in error concedes both of these propositions, but he relies upon a criticism of the pleadings and insists that a technical meaning be placed upon them. It is true that the petition does not in terms declare the so-called “contract” to be a “mortgage,” but it does set out the salient terms of the contract, and does in effect state a cause of action for a redemption of a mortgage although in terms it asks for a reconveyance of real estate under the terms of the contract, praying for specific performance, and at the same time praying for general relief.

It is true that the petition does not set out the relation of attorney and client as existing between Mr. Krippendorf and Mrs. Ormsby, but it does set out enough of the terms of the contract to show that he held this real estate as her trustee with an obligation to reconvey to her.

It is also true that the reply undertakes improperly to set’ out this relation of attorney and client as between these parties. Such an allegation in the reply cannot be considered as enlarging the ease of the plaintiff as made by the petition. Hilsinger v. Trickett, 86 Ohio St. 297 [99 N. E. Rep. 305; Ann. Cas. 1913 D. 421n].

But as stated above, the trust relation sufficiently appears from the allegations of the second amended petition.

The action being in equity and the prayer for relief being a general one, the court has jurisdiction to grant relief warranted by the facts as proven.

Lockhart v. Leeds, 195 U. S. 427 [25 Sup. Ct. Rep. 76; 49 L. Ed. 263]; Haggart v. Wilczinski, 143 Fed. Rep. 22 [74 C. C. A. 176]; Bexford v. Woodland Co. 208 Fed. Rep. 295; Central Improvement Co. v. Steel Co. 210 Fed. Rep. 696; 16 Cyc. 106.

The defendant below contends that under a strict construction of the contract upon which he relies Mrs. Ormsby failed to perform her obligation to convey to him, as provided by Par. 8, said real estate, free and clear of all claims, demands and incumbrances. From the fact that he drew the quitclaim deed, which she executed, at the same time as the contract and that he did not ask for any other deed or further conveyance from her, it must be held that the quitclaim deed then executed by her was substituted in place of the deed referred to in Par. 8. It is natural to believe that, in her harassed and helpless condlition she relied upon him to free her property from its incumbrances, and clearly did not intend to obligate herself to first free it from incumbrances for the privilege of conveying it to him in order that he might hold the title entirely free except for the mortgage to be placed on it by him for $5,000 to the University of Wooster.

The construction of the contract claimed by the defendant is contrary to the evidence and contrary to its own terms. The unreliable and contradictory statements given by the defendant in his testimony with regard to the $2,000 consideration named in the deed from Mrs. Ormsby to himself lead us to give doubtful credence to his testimony, and to feel, that he will be amply repaid in the amount found by the court below to be due him for advancements.

In this amount was included a $500 attorney fee, as fixed by Par. 5 of the contract. It should be observed that nowhere in the contract does Mrs. Ormsby agree to pay this fee, nor is it in any way made a charge upon said real estate or considered as one of the advancements to be made by Krippendorf under the contract. The evidence shows that this fee was only for services rendered in connection with this real estate and the making and performance of this contract. It is extremely doubtful whether, under all the circumstances of the case, such an allowance should be made, but as no objection was made by plaintiff below to its allowance and as there is no cross petition in error in this case on behalf of Mrs. Ormsby, we have concluded not to disturb the finding as made by the master commissioner and confirmed by the trial court. ,

A careful consideration of the numerous points of error relied upon by plaintiff in error convinces us that there is no prejudicial error shown by the record as against him, but that substantial justice has been done.

The judgment below is therefore affirmed.

Jones, E. H., and Gorman, JJ., concur.


author: RICHARDS, J.

text:
    ELECTRICITY — MUNICIPAL CORPORATIONS— STREETS.
    [Lucas (6th) Court of Appeals,
    June 7, 1915.]
    Richards, Chittenden and Kinkade, JJ.
    Ellen Huss v. Toledo Railways & Light Co.
    1. Private Electric Light Company May Erect and Maintain Poles and Wires in Front of Residence Property for Lighting Streets Notwithstanding Private Lighting is also Conducted thereon,
    A private company may erect and maintain in the streets of a municipality and in front of residence property, electric light poles and wires for lighting the public streets under contract with the city, and such construction does not invade the rights of the abutting owner; and such owner cannot maintain injunction even' though a portion of the current carried is for private purposes, provided such additional use does not impair the abutter’s property in any essential degree.
    2. Municipal Authorities Regulate Location of Poles and Wires in Streets.
    The location of the poles and wires for lighting the public ■ streets rests with the city authorities and will not be interfered with by the courts in the absence of fraud or an abuse of discretion.
    [Syllabus by the court.]
    Appeal.

      Charles A. Thatcher, for plaintiff.

      Tracy, Chapman & Welles, for defendant.
   RICHARDS, J.

This action was commenced by filing a petition in the court of common pleas on April 30, 1915, seeking to enjoin the defendant from erecting poles and stringing wires thereon in front of the property of the plaintiff on Williams street in the city of Toledo. To this petition the defendant filed an answer in which it avers that it has a contract with the city of Toledo, by the terms of which it is to furnish street lights for the streets, boulevards and parks in the city of Toledo, and is proceeding to erect a line on Williams street for that purpose, having received a permit therefor from the proper officials of the city. The defendant further avers that no wires are to be placed on the line of poles except suelvas carry current for the above purposes.

The evidence discloses that the plan of construction involves the placing of only one pole in front of the premises of the plaintiff, and the precise location of that pole has been heretofore fixed .by order of this court. It appears further from the evidence that the plan involves the placing of eleven high tension vires to be used almost, if not entirely, for street lighting purposes. The poles are also to carry four wires composing a 3-phase, 60 cycle, A. C. circuit, carrying 4600 volts. No serious question can be made as to the right of the defendant to construct the line in the place located, for the purpose of street lighting, including the eleven wires carrying current for are lights; but it is strenuously insisted that the defendant has no right to erect or maintain the four other wires which are used not only for street lighting, but for other private purposes. The evidence discloses that these four wires compose one circuit and that such method is proper for good construction. It appears that the current from these four wires is used for lighting the streets; the drives, walks and buildings in Walbridge Park; the union depot and the grounds and streets adjoining the same; and also for general lighting of the fire departments on Broadway, and lighting and power at the waterworks station on Broadway, and general distribution of incandescent lighting in the vicinity of Broadway and extending to Glendale avenue. None of the wires named will carry current to be used solely for private incandescent lighting, nor solely to carry energy for private power plants. On the contrary, the four wires named serve a dual purpose, one of the chief purposes being the lighting of the public streets in that portion of the city. It does not appear from the evidence that the use of a portion of this current for private purposes has necessitated, or will necessitate, any larger poles or wires, or a greater number of wires or cross-arms.

"We assume that the defendant has the right in this state, without any doubt, to erect and maintain a line of poles and wires for the purpose of lighting the public streets of the municipality, and the question here for determination is whether that right is in any wise curtailed by the fact that the same line of poles and wires carries current which is used in part for private purposes. The leading case in Ohio on this matter is Callen v. Light Co. 66 Ohio St. 166 [64 N. E. Rep. 141; 58 L. R. A. 782]. In that case it was announced by the court that it was a diversion of the street from the purposes to which it was dedicated, for a private lighting company to erect poles and string wires thereon of electric light cable lines for furnishing light and energy to private takers. It was further held in that case that this diversion of the street from the purposes for which it was dedicated was not relieved against by the fact that a fire alarm box used by the city was placed on the pole erected adjacent to plaintiff’s property. It is true that the question to be determined in the case of Callen v. Electric Light Co. supra, was not precisely the same as that which we have for determination, because in that case the company had no contract for lighting any of the streets of the city in the neighborhood where the plaintiff’s property was located, nor was it in fact furnishing or proposing to furnish any such service at that place, and hence it could not claim the right to erect or maintain the line of poles and wires at that place for street lighting purposes. In the consideration of that case the Supreme Court, speaking through Spear, J., discusses in detail the question now under consideration in the instant case. It is said in the course of that opinion that the case is to be determined by a consideration of the question whether or not the acts of the defendant complained of constitute in an essential degree a taking of property within the meaning of the constitution, and it is further stated by the court, in substance, that the defendant did not have the right to place permanent erections in the street in front of the plaintiff’s property if by so doing, it in any appreciable degree impaired the owner’s access to the lot, or otherwise interfered with the full enjoyment of the lot for all purposes to which it was adapted, or of the street itself. It must be borne in mind, in considering the discussion of that case and the conclusion reached by the court, that it had under consideration a case in which the electric lighting provided by the defendant was not of the streets, but that it was wholly for private use and, therefore, was not in any sense a street purpose, but was solely a private one. The fundamental principle was stated by the court that the city’s control of the streets is confined to street purposes and is not for general municipal purposes. Nevertheless, the court used this language on page 180:

"Whatever is a necessary incident to that use, the city may provide. Sewers, for instance, drain the surface water and thus relieve the streets from impairment and destruction, and in this respect sewers are for a street purpose; while, in addition, they may drain abutting property, thus tending to promote the public health, and in this respect they serve a municipal purpose. The same may be said as to water supply for cleansing and sprinkling the streets, and by owners of property abutting for cleaning and domestic uses, and for the extinguishment of fires. Light, also, is necessary for street purposes, and is convenient for the use of citizens, thus serving two uses, one a street purpose and the other a municipal purpose.”

The fact that fire alarm apparatus was a strictly municipal convenience was held not to justify the construction, for it was apparent that this apparatus might properly be constructed on a short post in an unobjectionable location. The language above quoted is a clear declaration by'the Supreme Court that poles and wires constructed for purposes of furnishing light for the public streets may serve as well a dual purpose, and if such dual purpose did not result in impairing the plaintiff’s property in any essential degree, or to any appreciable extent, then injunction would not lie.

The doctrine is well announced in 1 Joyce, Elec. Law (2 Ed.) Secs. 233, 276 and 333. The author of that work in an illuminating discussion of the question, reaches the conclusion that if a line of poles and wires is erected for the purpose of lighting the public streets, it is not an additional burden that the same line also carries current used for private purposes.

We conclude from the evidence in this case that no appreciable or essential additional burden is cast upon the plaintiff’s property by the fact that the current for lighting ' the public streets which is carried on some of these wires, is also used for various private purposes.

It is insisted by the plaintiff that the line of poles and wires should have been constructed on another street or on the opposite side of Williams street. No abuse of discretion is shown on the part of the city authorities in locating the line at the place where it has been located, with the pole in front of plaintiff’s property placed where directed by this court, and we apprehend the true rule to be that in the absence of fraud or an abuse of discretion, a court will not interfere with the action of the municipal authorities on that matter. Of course, the right of the defendant to maintain this line could only extend for the time during which it supplies light for lighting the public streets of the city.

The injunction will be so modified as to allow the erection and maintenance of the pole on plaintiff’s property at the place indicated, only, and in other respects will lie dissolved.

Chittenden and Kinkade, JJ., concur.


author: MEALS, J.

text:
    MUNICIPAL CORPORATIONS — WORK AND LABOR.
    [Cuyahoga (8th) Court of Appeals,
    November 15, 1915.]
    Meals, Grant and Carpenter, JJ.
    Otto Stange v. Cleveland (City).
    Power of Charter City to Regulate Hours of Day Labor on Public Improvements Before State Act Takes Effect.
    A municipality having adopted a charter pursuant to Art. 18, Sec. 3, of the constitution, the Home Rule amendment, may enact police regulations which differ from police regulations enacted by the general assembly. Hence, an ordinance of a charter city, prescribing an eight hour day labor limitation on public work in pursuance of Art. 2, Sec. 37, of the constitution, and imposing a penalty for its violation, is a valid enactment, notwithstanding it was passed and took effect prior to the enactment and taking effect of Act 103 O. L. 854 (Secs. 17-1 and 17-2 G. C.), includes all workmen so engaged, and applies to'violations thereof occurring before the state act took effect.
    Error.

      Squire, Sanders & Dempsey, for plaintiff in error.

      John N. Stochwell, city solicitor, Arthur F. Young, assist., city solicitor, for defendant in error.
   MEALS, J.

The plaintiff in error was convicted in the. municipal court of violating ah ordinance of the city of Cleveland providing for an eight hour day on public work. The judgment of the municipal court was affirmed by the court of common pleas. Error is prosecuted to the latter judgment.

The affidavit filed in the municipal court against the plaintiff in error charges the latter as follows: That on December ], 1.914, Otto Rtange then and there being the superintendent and person in charge and control of a certain plant known and designated as '‘Casey and Company,” at which said plant work of a public nature was then being conducted, to-wit; work on the installation of a water filtration plant for the city of Cleveland, a municipal corporation, unlawfully did then and there permit the workmen in his employ and under his control at said place as aforesaid to labor more than eight hours per day; that said labor so performed as aforesaid not being then necessary as an extraordinary emergency and said laborers so mentioned as aforesaid not then and there being policemen or firemen.

To this affidavit a demurrer was interposed on the ground that the same did not state facts sufficient to constitute an offense against the laws of the state of Ohio, which demurrer was overruled.

The principal question presented to us relates to the action of the court in overruling the defendant’s demurrer. Other questions are made by the record, but they are of secondary importance.

It is contended by the plaintiff in error that the ordinance for the violation of which he was convicted, is void.

Section 37, Art. 2 of the constitution of Ohio, as amended in 1912, provides:

“Except in cases of extraordinary emergencies, not to exceed eight hours shall constitute a day’s work, and not to exceed forty-eight hours a week’s W'ork, for workmen engaged on any public work carried on or aided by the state, or any political subdivision thereof, whether done by contract, or otherwise.”

It wdll be observed that no penalty is provided for the violation of this section. Therefore, to enforce its mandate, an act was passed by the general assembly on April'13, 1913, entitled, “An act to provide for an eight hour day on public work in the state, or any political subdivision thereof, or by contractors or subcontractors on behalf of the state or any political subdivision thereof, and penalties for violation of same.” This act provides as follows:

“Section 1. Except in eases of extraordinary emergency, not to exceed eight hours shall constitute a day’s work and not to exceed forty-eight hours a week’s work, for workmen engaged on any public work carried on or aided by the state, or any political subdivision thereof, whether done by contract or otherwise: and it shall be unlawful for any person, corporation or association, whose duty it shall be to employ or to direct and control the services of such workmen to require or permit any of them to labor more than eight hours in any calendar day or more than forty-eight hours in any week, except in cases of extraordinary emergency. This section shall not be construed to include policemen or firemen.
“Sec. 2. Any person who shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction be fined not to exceed five hundred dollars or be imprisoned not more than six months or both.
“See. 3. This act shall be in force and applicable to all contracts let on and after July 1, 1915.”

Sec. 3, Art. 18 of the constitution, as amended in 1912, provides:

“Municipalities shall have authority to exercise all powers of. local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general law's. ’ ’

Sec. 7, Art. 18 of the constitution readp as follows:

“Any municipality may frame, adopt or amend a charter for its government, and may, subject to the provisions of sec.tion 3 of this article, exercise thereunder all pow'ers of local self-government. ’ ’

The court will take judicial notice that on July 1, 1913, in pursuance of the authority given by the latter section, the city of Cleveland, by a vote of its people, adopted a charter for its government. Section 196 of this charter provides as follows:

“T-Tmirs of Labor. Except in case of extraordinary emergency, not to exceed eight hours shall constitute a day’s work, and not to exceed forty-eight hours a week’s work for workmen engaged in any public work carried on or aided by the municipality, whether done by contract or otherwise. The council shall by ordinance provide for enforcement of the provisions of this section.”

As in the case of the constitutional provision on the same subject, no penalty is provided in the charter for the violation of this section. Therefore, to enforce compliance with Sec. 196 of the charter, the city of Cleveland, on October 13, 1914, passed the following ordinance:

“Section 1. Be it ordained by the council of the city of Cleveland, state of Ohio: That except in cases of extraordinary emergency not to exceed eight hours shall constitute a day’s work and not to exceed forty-eight hours a week’s work, for workmen engaged on any public work carried on or aided by the city of Cleveland, whether done by contract or otherwise, and it shall be unlawful for any person, corporation, or association who shall employ or direct and control the services of such workmen to require or permit any of them to labor more than eight hours in any calendar day or more than forty-eight hours in any week except in cases of extraordinary emergency.
‘ ‘ Section 2. Any person who shall violate any of the provisions of this ordinance shall be guilty of a misdemeanor, and upon conviction, be fined in any sum not to exceed $500, or be imprisoned not more than six months, or both.
“Section 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law.”

The plaintiff in error was convicted of violating this ordinance.

Counsel for the plaintiff in error contend that the ordinance is in conflict with the general law and therefore void.

Section 3, Art. 18 of the constitution, as amended in 1912, is a grant of powers from the people of the state to the municipalities of the state. Fitzgerald v. Cleveland, 88 Ohio St. 338; State v. Lynch, 88 Ohio St. 71; State v. Edwards, 90 Ohio St. 305.

Until the adoption of this amendment the municipalities of the state, “in their public capacity, possessed such powers and such only as (were) expressly granted by statute and such as (were) implied as essential to cany' into effect those which (were) expressly granted.” Ravenna v. Pennsylvania Co. 45 Ohio St 118 [12 N. E. Rep. 445].

By the adoption of this amendment municipalities were empowered “to adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws.” That the ordinance under consideration is an exercise of local police power seems plain. Is it in conflict with the,act of the general assembly of April 28, 1.913, entitled “An act to provide an eight hour day on public work”? While the operation of this act was suspended until July 1, 1915, we shall assume for the purposes of this case that it embodied the law and the policy of the state on the subject to wdiich it related from and after its passage.

By its terms the act of the general assembly was applicable to contracts only which were “let on and after July 1, 1915.”

The provisions of the ordinance of the city were substantially similar to those of the state enactment, except that they became applicable to “all workmen engaged on any public work” from and after November 22, 1914. Thus the state denounced and penalized the act of employing workmen on public work for a longer period than eight hours in any one day or forty-eight hours in any one week, after July 1, 1915, while the city provided a penalty for the commission of a similar act prior to July 1, 3 915.

But it is claimed that inasmuch as the statute was in effect from and after April 28, 1913, and that the policy of the state was declared therein, the ordinance penalizing such act committed prior to July 1, 1915, was in conflict with the general law and void.

The fallacy of this argument seems apparent. The case is not similar, as argued by counsel, to one wherein the congress of the United States, in the exercise of its exclusive power to legislate upon a subject, “manifests its purpose to call that power into effect and at once remove that subject from the sphere of state action.” Here the power of the state is not exclusive. It is concurrent; the municipality being granted like power by the constitution “to adopt and enforce within its limits local police, sanitary and other similar regulations,” subject only to the limitation that such regulations shall not be in conflict with state law.

Municipal police regulations, therefore, are valid unless inconsistent, with state law; for it is only when they come in conflict with each other that the ordinance must yield to the paramount law. “Indeed,” said Judge Cooley in his work on Constitutional Limitations, page 279, “an act may be a penal offense under the laws of the state and further penalties, under proper legislative authority, be imposed for its commission by municipal by-laws, and the enforcement of one would not preclude the enforcement of the other.”

An ordinance or municipal by-law and a state law are not necessarily in conflict merely because they relate to the same subject. If they are consistent both may stand and the penalties imposed by both may be enforced. This seems to be the uniform holding.

In Rogers v. Jones, 1 Wend. (N. Y.) 237, 261 [19 Am. Dec. 493], the court said:

“But it is said that the by-law of a town or corporation is void if the legislature has regulated the subject by law. If the legislature has passed a law regulating as to" certain things in a city, I apprehend the corporation is not thereby restricted from making further regulations.”

Perhaps it is not necessary to multiply cases on this subject, but a reference to two or three will probably not be amiss.

In the case of Hong Shen, Ex parte, 98 Cal. 681 [33 Pac. Rep. 799], the statute of the state of California provided that no opium should be sold until the seller had labelled the opium “poison” and had ascertained that the person purchasing knew its poisonous character and that it was to be used for a ligitimate purpose. The city ordinance absolutely prohibited the sale except upon the prescription of a physician, yet the court held there was no conflict in the two regulations. In the opinion in the case the court said:

‘‘While the regulation is different from that of the state there is no conflict, and therefore it is not in violation of the constitutional provision quoted above. There are the very best of reasons why cities should be authorized to impose penalties in addition to those inflicted by the laws of the state. Particular acts may be far more injurious, while the temptation to commit them may be much greater in a crowded city than in the state generally. They - consequently require more severe measures for prevention. State laws are, of course, for the general good and cannot always answer the peculiar wants of particular localities. ’ ’

Hoffman, In re, 155 Cal. 114 [99 Pac. Rep. 517; 132 Am. St. Rep. 75], the statute of the state provided a certain penalty for the adulteration of milk, and that all milk which did not conform to a certain standard should be deemed adulterated. The city of Los Angelés passed an ordinance fixing the standard much higher than that fixed by statute. The statute fixed the standard at 3 per cent of butter fat, while the ordinance fixed it at three and five-tenths per cent. It was insisted that the state having thus provided a standard 'for pure milk, the attempt of the city ordinance to vary this standard created a conflict in the law, with the necessary result that the ordinance must fall. In that case the court held in the syllabus that:

‘ ‘ The mere fact that the state, in the exercise of the police power, has established certain regulations by statute, does not prohibit a municipality from exacting additional requirements so long as there be no conflict between the two, and so long as the requirements of the municipal ordinances are not in themselves pernicious as being unreasonable and discriminatory both will stand, nor is it any objection to the validity of the ordinance than its regulatory provisions and the penalty for its violation differ from those of the state law. ’ ’

In the course of the opinion the court say:

“If the state should pass a law declaring it unlawful to erect a chimney of a height exceeding 150 feet, would any one seriously contend that a city of the state within the earthquake zone might not, by ordinance, in the clear exercise of the police power, for the benefit of its citizens still further restrict the height of chimneys'? Such, in principle, is the present case. The legislature has in effect declared that it shall be unlawful to sell milk containing less than eleven and five-tenths per cent solids, three per cent of which solids shall be milk fat. An ordinance of a municipality requiring of the milk vended therein a larger percentage of solids, if not in its exactions unreasonable, does no violence to the law of the state. The state declaration merely is that milk shall not be sold- containing less than eleven and five-tenths per cent of solids, three per cent of which shall be milk fat. If the city of Los Angeles had provided that milk might be vended which contained less per cent of milk fat than that exacted by the state law, there would be a plain case of conflict. The municipality would be endeavoring to legalize that which the state had declared to be unlawful, but what the city has in fact done has been to impose not fewer but additional qualifications upon the milk which may be vended to its consumers. The state, in its law, deals with all of its territory and all of its people. The exactions which it prescribes operate, (except in municipal affairs) upon the people of the state, urban and rural, but it may often and does often happen that the requirements which the state sees fit to impose may not be adequate to meet the demands of densely populated municipalities so that it becomes proper and even necessary for municipalities to add to state regulations provisions adapted to their special requirements. Such is the nature of the regulation here questioned. ’ ’

A similar question arose in Bellingham v. Cissna, 44 Wash. 397 [87 Pac. Rep. 481]. There the charter of the city granted to the city of Bellingham full power to regulate and control the use of its streets. A state law was passed making it a misdemeanor to drive an automobile in the streets of any city faster than twelve miles an hour. Later the city of Bellingham passed an ordinance fixing the máximum speed at which a machine could be driven, in the same parts of the city, at six miles per hour. It was insisted that the ordinance must fall because in conflict with the state law, but the court decided upon the soundest principles that there was no conflict and that it was competent for the authorities of Bellingham to prescribe a rate of speed less than that which the state law permitted.

The plaintiff in error was a member of the firm of Casey & Company, a partnership, which entered into a contract with the city on April 30, 1914, for the construction of a part of the filtration plant at the Division Street Pumping Station, This was prior to the adoption of the ordinance but subsequent to the adoption of the city charter. It is claimed that the passage of the ordinance impaired the obligation of his contract and that it is inapplicable thereto.

Without regard to the provision of the contract “that the contractor agrees that he will comply with the provisions of the labor laws of the city of Cleveland and the state of Ohio, particularly as outlined in Sec. 196 of the. city charter,” we think it is a sufficient answer to this claim to state that the police power granted by the constitution to the municipalities of the state is a power which may not be alienated or surrendered by contract or otherwise. Butcher’s Union Slaughter House Co. v. Live-Stock Landing Co. 111 U. S. 746 [4 Sup. Ct. Rep. 652; 28 L. Ed. 585].

After a careful review of the record we find no error therein, and the judgment is affirmed.

Grant and Carpenter, JJ., concur.


author: FERNEDING, J.

text:
    APPEAL — EXECUTORS AND ADMINISTRATORS*
    [Darke (2nd) Court of Appeals,
    May 1, 1914.]
    Allread, Ferneding and Kunkle, JJ.
    Ida F. Miller v. John W. Miller, Admr.
    Order of Probate Court of Appointment of Administrator in Place of Unsuitable Executor Named in Will not Subject to Vacation by Appeal.
    An order by the probate court, a finding that the person designated in the will is not a suitable person to administer the estate, appointing as administrator of the estate of a decedent a person other than the one named in the will, is not subject to review by appeal.
    Error.

      Martin B. Trainor, for plaintiff in error.

      D. W. Bowman and John F. Maher, for defendant in error.
   FERNEDING, J.

We have been favored in the consideration of this case by exhaustive briefs of counsel on both sides, which have been of valued service to the court in the conclusions arrived at.

The one question for solution presented seems to be whether or not an order of the probate court appointing one, not the party designated by the will as the administrator of the estate, is subject to review by appeal.

Michael Miller of this county died, leaving a last will duly probated, item 4 of which provides: “I do hereby nominate and appoint my trusty daughter, Ida F. Miller, my executrix of this my last will and testament,” etc. The probate court appointed her brother, John W. Miller, administrator with the will annexed of the estate of Michael Miller, deceased, a certified copy of the journal entry from the probate court pertaining to said appointment being as follows:

“This day this cause came on to be heard upon the application of Ida F. Miller, to be appointed executrix of the estate of said Michael Miller, deceased, upon the evidence and argument of counsel, and the court being fully advised in the premises do find that said applicant is not a suitable person to administer said estate, and do find that John W. Miller is a suitable person to act as such administrator, etc. Therefore the court do hereby appoint said John W. Miller administrator with the will annexed of the estate of Michael Miller, deceased.
“Thereupon came said administrator, etc., and filed herein his application for such appointment and also presented herein his bond as such administrator, etc., in the sum of $32,000.00 with John Gilfillan, E. G. Howell, A. Z. Bruss and O. P. Wolvertion as sureties thereon according to law. And this bond is approved by the court and ordered made a matter of record of this court, as required by law and letters are issued accordingly.”

Section 10605 G. C. provides:

“The probate court shall issue letters testamentary thereon to the executor if any be named therein if he is legally competent. ’ ’

Counsel for Ida F. Miller in his brief asserts that this provision of the statute is “mandatory,” unless the executor named in the will is legally incompetent. We have no quarrel with this general view, but it is manifest from a consideration of the journal entry that the probate court, for reasons satisfactory to himself, and presumably upon the evidence found that Mrs. Miller was not legally competent. Whether this judgment of the probate court is well founded or not can only be determined by a reviewing court in a case properly brought before such reviewing court where the evidence can be reviewed.

Mrs. Miller sought to bring the case to the common pleas court by an appeal. The court of common pleas upon motion, dismissed the appeal. From this ruling and judgment of the court of common pleas the case is brought to this court for review on error. The only question, therefore, for our consideration is whether the court of common pleas was justified in dismissing the appeal.

Counsel for the appellant rely upon the clause in Sec. 11206 G. C., providing for appeals, from an order removing or refusing to remove an executor, adtministrator, guardian, assignee, trustee or other officer appointed by the probate court.

The order of the probate court from which the appeal was attempted involves an original appointment, and not a removal or a refusal to remove. Counsel for appellant also relies upon Sec. 10859 G. C., which provides:

“From any order, judgment, or decree of the probate court, an appeal may be taken to the court of common pleas, by any person against whom it is made, or who is affected thereby, in the manner provided in other cases. Bills of exception may be taken and allowed upon any decision of the probate, common pleas or circuit court, in such proceedings as in other cases.”

We think it has been sufficiently established that Sec. 10859 G. C. is limited to proceedings affecting orders of distribution and cannot be made to apply to orders affecting original appointments of executors and administrators where the discretion of the original court is involved. Citing Barr v. Closterman, 1 Circ. Dec. 546 (2 R. 390); affirmed, no op., Closterman v. Barr, 27 Bull. 392; Kislingbery v. Donovan, 11 Dec. 535, 542 (8 N. P. 476); Kraner, In re, 19 Dec. 444 (8 N. S. 218); Ebersole v. Schiller, 50 Ohio St. 701 [35 N. E. Rep. 793].

It is contended on behalf of the appellant that See. 11206 G. C. should be liberally construed according to its spirit and reason, and to include eases of original appointment where the court declines to appoint the person or persons named in the will. Referring to the decisions upon this subject, we find that the courts have construed the statute in respect to appeals from the probate court to the common pleas court, strictly, rather than liberally. This policy is stated by Okey, J., in Brigel v. Starbuck, 34 Ohio St. 280, 287:

“An examination of our legislation and decisions shows that it has been the general policy in this state not to permit an appeal from an order appointing or removing a trustee, and that this extends to guardians, executors and administrators. In some states the rule is different. (Citing authorities.) The exception as to an appeal from the appointment of a guardian for a lunatic or an idiot, made, doubtless, by reason of the gravity of the proceeding and its effect upon the person, estate, and family of the ward, tends to prove the general rule in this state, and would seem to require that those who assert other exceptions should be able to point out some provision in terms warranting the appeal.”

In the case of Browne v. Wallace, 66 Ohio St. 57 [63 N. E. Rep. 588], it was held in an appeal under Sec. 11206 G. C., that:

“As the right of appeal exists only by virtue of the statutes, in order to give the appellate court jurisdiction, the statutory provisions must be strictly followed.”

In the case of Collins v. Millen, 57 Ohio St. 289, 298 [48 N. E. Rep. 1097], Judge Bradbury, speaking for the court, says, at page 291:

‘ ‘ The right of appeal is statutory, and We must look to the statutes to ascertain if it has been lawfully exercised'. The party who seeks to exercise this right, must comply with whatever terms the statutes of the state impose upon him as conditions to its enjoyment.”

This policy of construction of statutes in regard to appeals was evidently in the mind of the general assembly in the enactment of Sec. 11206 G. C., for it was expressly provided that appeals may be taken “in proceedings to appoint guardians or trustees for idiots, lunatics, imbeciles or drunkards.”

Under the well-known maxim, “expressio unius est exclusio otter ins” the legislature having expressly conferred the right of appeal in the cases specifically mentioned in the statute, there follows a reasonable inference that appeals were not to be allowed in other cases of original appointments. This construction is also in harmony with sound public policy. If appeals were to be allowed from cases of original appointments, it would often leave estates without any one in charge of the assets while the appointment was being litigated. The dictum of the Supreme Court in the case of Union Sav. Bank v. Tele graph Co. 79 Ohio St. 89, 100 [86 N. E. Rep. 478; 128 Am. St. Rep. 675], to the effect that, “The defendant if it had such an interest in the estate as 'would give it the legal standing to do so, might have attacked the appointment in the probate court, or by appeal or error,” should be construed with the facts of that case.

It was not evidently intended to overrule the cases above cited nor to establish the right of an appeal direct from the original appointment. The court evidently had in mind an appeal from the iinal judgment upon an application to remove an administrator who had been improperly appointed. The case of Schumacher v. McCallip, 69 Ohio St. 500 [69 N. E. Rep. 986], did not involve an appeal from the probate court and is, therefore, not authority on this subject.

The opinion expressed by Judge Ferris, in Oskamp, In re, 5 Dec. 584 (7 N. P. 665), is one of discretion for the probate court. In the case cited in this report the court appointed the party named in the will, and then later removed him. This may be a very proper course in ordinary cases, but we cannot apply that rule in a reviewing court, unless the case is properly before such court with all the evidence bearing upon the propriety of such appointment. For aught we know, and we have nothing before us either in support of or adverse to the proposition, the probate court may have had good ground for the judgment rendered.

Whether proceedings in error in the common pleas court would be available is not involved in the present litigation and we, therefore, express no opinion in respect thereto.

The appeal was properly dismissed by the court of common pleas, and its judgment will, therefore, be affirmed by this court.

Allread and Kunkle, JJ., concur.


author: SWING, P. J.

text:
    AUTOMOBILES.
    [Hamilton (1st) Court of Appeals,
    July 24, 1914.]
    Swing, Jones and Jones, JJ.

      John C. Roth Packing Co. v. Floyd C. Williams, Admr.
    Owner of Automobile Killing Person on Sidewalk Liable for Failure to Keep it in Safe Place.
    An owner of an electric truck, leaving it for the night standing on a concrete floor slanting toward and abutting a sidewalk, and with the brake on and controller removed, is liable for the death of a boy who, while he was walking along the sidewalk, was run over and killed by the truck which was started by some unknown agency.

      Aaron A. Ferris and Thomas H. Morrow, for plaintiff in error.

      Littleford, James, Ballard & Frost, for defendant in error.

       Affirmed, no op., Roth Packing Co. v. Williams, 91 O. S. 000: 60 Bull. 232.

   SWING, P. J.

This is an action in this court on error to a judgment of the court of common pleas, in which said court Floyd C. Williams, administrator, recovered a judgment in the sum of $5,000 for the wrongful death of Boy Eyer.

Numerous errors are alleged in the petition in error but only one was urged upon the argument of the ease and in the brief submitted.' This alleged error is that the judgment is not sustained by the evidence.

In the petition, after setting out the appointment of the plaintiff as administrator of the estate of the deceased and the allegation of the corporate capacity of the defendant, the plaintiff alleged that the building of the defendant is so constructed that instead of a continuous front wall along the entire length, there is an open space about fifty feet in length and extending to the height of the first floor; that the second and upper floors immediately above said space are supported on three pillars which are .located on a line with the front wall at a distance of about twenty-three feet apart, and that this open space extends back from the,sidewalk and front wall of the house a distance of about twenty-eight feet; that the floor of said open space is covered with concrete which slopes towards the street; and that on June 14, 1911, said open space was temporarily used for the storage of automobile trucks belonging to the defendant company; that on or about June 14, 1911, said Boy Eyer, deceased, was lawfully on the sidewalk on the north side of Gest street, walking east; that when said decedent arrived at the point in the sidewalk immediately in front of the open space above referred to, an automobile belonging to the defendant company, without any signal or warning, and without any person guiding or controlling it, rushed out of said open space in which it had been temporarily stored, down upon plaintiff’s decedent, and before he could get out of the way, knocked him down and crushed him under its wheels, causing a fracture of the skull and internal injuries from which he subsequently died. Plaintiff further says that said death of the decedent was directly dlue to the position and condition in which said defendant company negligently left said automobile truck, and that decedent at the time was in the exercise of all due and proper care on his part.

Said defendant filed an answer admitting the appointment of plaintiff as administrator of said estate, and that the defendant is a corporation under the laws of Ohio; that.it is the owner of the plant on the north side of Gest street and the open space in said premises as set out in the petition. Defendant further says that said open space was temporarily used for storing automobile trucks belonging to defendant company.

For a second defense, the defendant alleged that at the time of the accident and prior thereto and at the present time, it is in the business of buying, curing and selling at wholesale and retail, meats to be used for food for residents and citizens of Cincinnati and throughout a large portion of the United States; that in the conduct of its business it is the owner of and uses large and extensive buildings and storage warehouses situated on Oehler and Gest streets in said city, and in such business it owns and uses large trucks and vehicles operated by electricity as a motive power, and that each of said trucks weighs about 11,000 pounds; that the garage or storehouse where said trucks are usually stored and kept when not in use, is located on Oehler street; that on or about June 13, 1911, said Oehler street was being repaired by the city of Cincinnati, and by reason thereof defendant could not place or store its said trucks in said garage on Oehler street and was compelled to store its said trucks, for temporary purposes only, and in the night time, in said covered and open space belonging to the defendant, on Gest street, the space described in the first defense herein, and that it was necessary in the usual course of its business to charge with electricity the said trucks for a motive power for use in propelling said trucks on the day following, and so to charge them after the day’s work was done, in the night time from the supply of electricity within the building on Gest street. ■ And on June 13, 1911, about the hour of 8:30 o’clock in the evening of said day, one of the above trucks described. with other vehicles, had been pláced in said open space, when the same truck, alleged in the petition to have run upon and caused the death of plaintiff ”s intestate, and had been charged with electricity, and the brake used on said truck had been set, and the controller on said truck used for turning on and into said truck the current of electricity for its propulsion had been disconnected so that said truck could not move or be put in motion without unlocking the brake thereon, and without connecting said controller with the electric current by some human agency; and said defendant, through its employees and agents, had used all means necessary and ordinarily used under like circumstances to place and keep said truck in a safe and secure position to the end that it could not be used or moved ■except by the agents'or employees of the defendant in the line of defendant’s business as aforesaid; that on the night of June 13, 1911, the night on which plaintiff’s intestate met his death, a group of boys, ranging in age from about twelve to sixteen years, whose names except that of Roy Eyer are unknown to the defendant, the number of boys in said group being also unknown to the defendant, among them being plaintiff’s intestate, Roy Eyer, who was a boy about twelve and a half years of age, none of whom were in the employ of the defendant or under the authority or agency of the defendant, at the hour named, while it was dark, against the repeated warnings of defendant or without notice to the defendant or its employees, one of saidi group of boys, or someone unknown to the defendant, got upon said truck, and .in playing thereon, carelessly or wilfully, and without fault, knowledge or acquiescence of defendant or any of defendant’s employees caused said controller to be connected with the electric current theretofore charged and stored in said truck as aforesaid, and thereby caused said truck to get in motion; and that while said plaintiff’s intestate, Roy Eyer, was on the premises of defendant as a trespasser, and against the warning given theretofore by defendant and its employees, and without any fault on the part of the defendant, the truck so put in motion as aforesaid, and while said plaintiff’s intestate was a trespasser on said premises, and solely through the carelessness and negligence of plaintiff’s intestate, or through the fault or carelessness of some one unknown to defendant, none of whom were in the employ or acting under the authority of defendant, ran upon and caused the death of plaintiff’s intestate.

Full time was given to counsel in the argument of the case orally, and able and elaborate briefs have been furnished us, and we have gone over the evidence very carefully, with the result that we are of the opinion that the judgment is sustained by the evidence. From the evidence the jury had a right to find, as they must have done, that Roy Eyer while walking along the sidewalk next to defendant’s premises was suddenly struck by an automobile truck which darted out of the defendant’s premises, and was killed by said truck. The jury were warranted by the evidence in finding that said Roy Eyer was in no way responsible for the truck leaving its position on the premises of the plaintiff in error and rushing upon him while he was walking along said sidewalk. The evidence does not clearly show the cause which produced the movement of the truck, but the fact remains that the truck was placed by the defendant in a place unguarded and open, and on a floor of cement slanting towards the sidewalk, in a position where it could be easily got at by persons passing along the street who would be inclined from any motive to interfere with it. While there is no direct evidence which shows that defendant’s employees put said truck in motion, which resulted in the death of said Eyer, still it is equally clear that the defendant did not safely guard and place said truck in a safe and proper place, which seems'to us, under the circumstances of this case, to show that the plaintiff’s decedent met his death by reason of the negligence of the defendant in its not placing its truck in a safe and proper place so that it might not injure persons lawfully passing along said sidewalk.

Jones and Jones, JJ.« concur.