author: WINCH, J

text:
    ADMIRALTY.
    [Cuyahoga (8th) Circuit Court,
    December 9, 1907.]
    Marvin, Winch and Henry, JJ.
    *Saginaw Bay Transportation Co. v. Portage Entry Quarries Co. (Two Other Cases.)
    State Courts Have no Admiralty Jurisdiction.
    The courts of Ohio have no admiralty jurisdiction and can not apply the federal statute limiting the liability of an owner of a vessel in a negligence case.
    [Syllabus by the court.]

      Roger M. Lee, for plaintiff.

      Goulder, Holding cfi Hasten, for defendant.
   WINCH, J

The proposition that the verdicts in these three eases, all of which depend upon the same facts, were not supported by sufficient evidence, was argued to us with so much earnestness that we have reviewed the evidence with more than usual care. "While there is an irreconcilable conflict between the evidence given by the plaintiff’s witnesses and that given by the defendant’s witnesses, still we think that the evidence of one of the witnesses for the plaintiff, Alexander F. MeDougall, has an air . of verisimilitude, and that if he was believed by the jury, as they seem to have believed him, their verdict is warranted by his evidence. He was an eye witness of the collision and his attention was attracted by what he saw. He observed what was occurring as he passed on towards the east, on his way to dinner. Some discrepancies in his testimony are explained by the fact that he was moving on slowly during the progress of events, so that he observed different events from different viewpoints. He went back after dinner to see what damage had been done. Why should he do this if he had not seen the occurrence, just as he relates it, before dinner? We can not believe that his story is ■either imagined or invented. Reading it through, one gains the impression that he was a truthful witness, stating what he saw without exaggeration or intention to deceive. Of course he testifies as a fact whiqh he saw that the schooner Hattie struck the scow, when it may be that the scow was so low below the dock that he could not see the scow itself but only her deck load. In this he was giving his conclusion that the Hattie must have ■struck the scow based upon his observation of the direction in which the schooner was headed, as he saw it, and the position of the scow as indicated by boxes upon her which he could see. This does not weaken his testimony materially.

Having read and weighed his testimony carefully, we are unable to say that the verdict is against'the weight of the evi•dence.

As to limitation of liability, we are not disposed to follow the Pennsylvania ease cited by counsel for plaintiff in error. We think the better rule is discovered by a study of the cases of Duffy v. Gleason, 58 N. E. 729, and Gleason v. Duffy, 116 Fed. 298. From these cases, and others cited by counsel for defendant in error, we gather that the limitation provided by tbe federal statute is to be administered only in courts of admiralty.

The courts of this state have no such jurisdiction and never had. It is distinct from the law and equity jurisdiction vested in our state courts, and is regulated by rules of its own. Furthermore, were the state court to undertake to apply the federal limitations statute, it could.not- do so in this ease, because the same was not properly invoked. There is no allegatioh in the answers that the negligence complained of resulted without the privity or knowledge of the owner seeking the limitation. This defect we consider fatal. The pleadings do not properly raise the issue suggested. Relief of the kind now claimed may yet be granted in a court of admiralty, notwithstanding the judgment. See the ease last cited. '

We find no prejudicial error in the charge. It is true that the court repeatedly dwelt upon the proposition that the jury must find that a collision occurred between the schooner Hattie and the scow before it could bring in verdicts for the plaintiffs, without following up that statement each time with the further charge that they must also find that damage resulted from such collision, but we do not think that the jury was misled by this. In one place, at least, he qualified his statement and said that if they first found that the schooner struck the scow, they should next proceed to find out how much damage was done. That they followed his directions is shown by the figures in their verdicts. As sensible men they were not unmindful of the fact that a collision without damage to the scow would furnish no basis for verdicts for the plaintiffs.

There was no error in refusing the defendant’s requests to charge nor was there prejudicial error in charging that the-transportation company and Mr. Gould were partners in the. operation of the steamer Rhoda Emily. ’

Coming now to the question of excessive damages allowed to the Portage Entry Quarries Company, we think the point well taken and the computations made on pages 38, 39 and 40 of the brief of counsel for plaintiffs in error seem to be sustained by the record. Nor is this excess of $181.52 offset by the refusal of the trial court to permit said plaintiff to amend its petition so as to entitle it to prove some $187 more damages by reason of loss of use of the stone boxes. No exception was taken to this, by the plaintiff or offer to prove made, so that this item is one of the merest conjecture. •

We find no other error in any of the cases. It follows that the judgments in favor of Joseph Croze and Thomas J. Prender-gast are affirmed, and if the Portage Entry Quarries Company remits $181.53 from its judgment, that judgment will also be affirmed; otherwise it will be reversed, because it is excessive.

Marvin and Henry, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    WILLS.
    [Cuyahoga (8th) Circuit Court,
    April, 1907.]
    Marvin, Winch and Henry, JJ.
    Minot L. Newton v. Laura M. McKinstry.
    1. After-Acquired Real Estate Passes Under Residuary Clause of Will.
    Section 5969 R. S. (Sec. 10579 G. C.) provides that after-acquired real estate, as well as personal property, shall pass under the will “if such shall clearly and manifestly appear by the will to have been the intention of the testator.” While this intention must “appear by the will,” still testator’s circumstances and surroundings may be considered, but they must be the circumstances surrounding her at the date of the will, and not long-afterward.
    .2. Residuary Devise Passes After-Acquired Real Estate.
    A disposition by will of “all the rest and residue of my estate and property,” makes it “clear and manifest” that the testator intended that any real estate she might acquire after making the will, should pass under it.
    [Syllabus by the court.]
   WINCH, J.

This is an action brought for the partition of certain lands as to which it is claimed Caroline Newton, under whom all the parties claim, died intestate. The common pleas court found that the land in question passed under the will of Caroline Newton and dismissed the petition.

A consideration of the case requires a construction of said will and a determination of whether real estate acquired by the testator after she made her will, passed under it.

It seems that Caroline Newton, wife of Lucius Newton, on June 7, 1887, was the owner of a farm of 14.42 acres in Rich-held township, Summit county, Ohio, worth about $2,000, and a small amount of personal property. She then had live children, and on said day made the will in question, in which after making certain bequests, she left the residue of her estate to her husband in trust, for the benefit of her daughter, the defendant, Laura M. McKinstry.

On September 20, 1893, her husband, Lucius Newton, a thrifty farmer, worth about $14,000, made his will, giving all his property to his wife. Lucius lived until December 4, 1896, when, he died seized of the premises here involved, which together with all his estate, under the terms of his said will, passed to his widow. But she had lost her mind sometime before her husband died and was so mentally infirm that a guardian was appointed for her six days after her husband’s death. Whether she was non compos at the time her husband drew the will, in 1893, does not clearly appear, and is perhaps unimportant. Mrs. Caroline Newton lived several years after her husband’s death, never regained her mind, and died April 13, 1902.

The plaintiff claims that it was never the intention of Caroline Newton to place in the hands of a trustee for the use of her daughter, Laura H. McKinstry, so large a fortune as $16,000, but that she intended to make provision for her only to the extent of her then independent means, which amounted to about $2,000, the 141/Ó acre farm, and a small amount of personal property.

He concedes that personal property acquired by Mrs. Newton after she made the will, passes under it, but says that the rule is different with regard to after-acquired real estate, and our attention is called to Sec. 5969 R. S. (.Sec. 10579 G. C.), which has been the law of this state at least ever since the constitution of 1851 was adopted.

That section reads as follows:

“Any estate, right or interest, in lands or personal estate or other property acquired by the testator after making his will, shall pass thereby, as if held or possessed at the time it was made, if such manifestly appears by the will to have been his intention. ’ ’

Referring again to the will for the words particularly affecting this controversy we read, in item II:'

“All the rest and residue of my estate and property real and personal, including 14.42 acres of land in * * * Rich-field, Summit county, Ohio, as trustee, in trust for my daughter Laura M. MeKinstry, of Cleveland, Ohio.”

We are constrained to hold that the intention of the testator, as shown by the will, was to devise all after-acquired property she might die seized of. Such is the natural and ordinary import of the language used.

The question now raised is lent color only by the fact that the after-acquired property is seven times as much as she possessed when she made her will and that it came to her when she was incapable of making a new will. These.are facts outside of the will, and the statute says that the intention must be gathered from the will. Of course, one’s intention may be gathered from his circumstances and surroundings, but they must be the circumstances and surroundings at the time of the making of the will, and not long years afterward.

Again, no question is raised as to the language being sufficient to dispose of after-acquired personal estate. Such has been the holding of the courts from the earliest times that persons have been permitted to pass on their property to the objects of their bounty, by will; but it is said that in the absence of a statute, in Ohio, real estate acquired after the execution of a will did not pass by the will and as to such property the testator died intestate. Smith v. Jones, 4 Ohio 116.

Now we have, not only the statute referred to, but the rule, “that the testator will not be presumed to have intended to leave any of his estate undisposed of.” Davis v. Corwine, 25 Ohio St. 668, 675.

The statute, it is true, uses the words, “if such shall clearly and manifestly appear by the will.”

As to these words we agree with Judge Cook of the seventh circuit court:

“The words, ‘clearly and'manifestly’ as used in Sec. 5969 E. S., should receive but little consideration in construing wills; and where it reasonably appears from the will that the testator intended to devise after-acquired lands, the intention should be given effect notwithstanding these intensives.” Carrel v. Carrel, 24 O. C. C. 416.

Again we'have here a general residuary clause: “all the rest and residue of my estate and property.”

The authorities are abundant that such words preclude an intention to dife intestate as to any property of which the testator may die seized. An instructive case on this subject and one containing a statute like ours and giving the history of such legislation is Winchester v. Foster, 57 Mass. 366, the opinion of the court being delivered by Shaw, C. J., in 1849.

The blending of the real and personal property and their disposition by apt words as a single gift, repel the suggestion that the testator may have had one intention as to her after-acquired personalty, and another intention as to her after-acquired realty. The intention as to the personalty being clear and manifest, established by repeated adjudications, it can hardly be said that the same intention as to the realty is not equally clear and manifest.

At least, in the absence of authority to the contrary, we are compelled to hold that the will of Caroline Newton passed lands acquired by her after she made her will, and it follows that the judgment of the common pleas court must be affirmed.

Marvin and Henry, JJ., concur.


author: MARVIN, J.

text:
    CHARGE TO JURY — ERROR—EVIDENCE.
    [Cuyahoga (8th) Circuit Court,
    January 23, 1907.]
    Marvin, Taggart and Donahue, JJ.

      Hollenden Hotel Co. v. Lulu Jackson, Admr.
    1. Judgment not Set Aside on Weight of Evidence not Contradicted But Contradictory and.Inconsistent.
    Where the evidence of a witness as to the instructions he had given plaintiff’s decedent, although uncontradicted by any other witness, is in other particulars so contradictory and inconsistent with itself as to indicate that his testimony is from impressions rather than from distinct recollections, a judgment will not he set aside as against the weight of the evidence.
    2. Charge as Whole Correctly Given not Erroneous Because Paragraphs not Complete Statements.
    A charge to a jury is to be construed as a whole, and if, construing the whole charge, the law of the case appears to have been correctly given to the jury, and in a way that will reasonably enable them to understand the rules of law which they are-to apply to the evidence before them, the charge will not he held erroneous simply because every condition to a recovery or a defense is not embraced in each paragraph, and the paragraph excepted to is not in itself calculated to mislead.
    Error.

      Kline, Tolies & Goff and Ford, Snyder <& Tilden, for plain-fifí in error.

      McGrath & Stern, for defendant in error.

      Affirmed, no op., Hollenden Hotel Co. v. Jackson, 78 Ohio St. 440.

   MARVIN, J.

The parties are reversed here from the standing which they bad in the court below; suit being brought in that court by the administratrix of Albert Jackson, deceased, against the Hollen-den Hotel Co., a corporation, conducting a hotel in this city, and recovery was had for the alleged wrongful death of Albert Jackson.

The Hollenden Hotel Go. in carrying on the business of a hotel has four steam boilers in the basement and a corps of men to do the work attendant upon the keeping in operation those boilers. Three of the boilers are kept in commission, as it is called, one being out of commission all of the time, or substantially so.

On Saturday night, the steam is taken off from some one of' the boilers, and that boiler is cut off from opei’ating, and it is left in that condition until the Tuesday morning following, when the boiler thus out of commission is washed out, and again made ready for being put into commission, and that was done at the time when Jackson was killed by scalding steam let in a boiler which he was undertaking to clean, on April 12, 1904.

It is said in the petition below, that the defendant below was negligent in that it had no rules for the conduct of the business of handling the boilers; that it was a dangerous business; that it was a business which reuqired that there shall be some fixed rules for its management. It is said on the part of the plaintiff below that not only was there negligence in the failure to provide rules, but on the occasion of Jackson’s death he was ordered to go into a boiler, steam was turned into the boiler while he was in there washing it out, and he was scalded to death.

The defendant says it had proper rules which, if they had been observed, would have saved this man from the accident which resulted in his death, and that on the occasion of his going into the boiler he was distinctly ordered by his foreman, Samuel A. Schad, who was the assistant engineer, to stay out of the boiler, until he (Schad) should return. The situation was about this: that this Tuesday morning, April 12, 1904, Jackson, who was a laborer, and whose duty, ..among ..other duties, was the washing out the boiler, went, by the direction of Schad, on top of one of the boilers. The manhole on the top of the boiler was open. Schad went away while Jackson was on top of the boiler with a hose in his hand, through which water was coming, and during the absence of Schad, Jackson went into the boiler, and while in there somebody turned the stop-cock on and let the steam into the boiler. The evidence as to the rules is such that surely the jury could not have found that there were any such rules published to these men employed about the boilers as there should have been. Schad said, it was my rule that nobody was to go into the.boiler without first reporting to the fireman that he was going in, and he considered the rule to be that men were not to go into the boilers without first reporting, but nowhere does he say that there were any rules established by anybody w’ho had authority to enforce them. He.says that he told ■the men who were there, employed about the boilers, that they ■were not to go into the boilers until he told them so to do, but" he does not seem quite sure about.it being a rule, indeed he is very indefinite himself as to what the rules were, and the jury certainly would not have been justified in finding that there were proper rules in-force. But, if Jackson finding the instructions given'to him at that time to be such as they were claimed to be, then his administratrix was not entitled to recover in this caáe. Now the evidence on that point is not quite clear. Schad, who was Jackson’s superior, says that Jackson went upon the top of the boiler, and the boiler was some eight feet high; that he took a step ladder to get up there, and that he (Schad) handed him the hose, so that he could connect it there, and that he had the hose in his hand, and he (Schad) then said, “I am going away, don’t go into the boiler until I get back. ’ ’ Carr, who was, as Schad says, ten, twelve or fifteen feet away, testifies that he did not hear Schad give this direction to Jackson not to go into the boiler until he came back. Nobody is able to say that that is not true, and in the nature of things it is quite possible that no one heard any order given, even if it was given to Jackson. Schad said he did, but Schad is evidently testifying from an impression rather than from a distinct recollection; for Schad says in one place that Jackson was doing nothing. In another part of his testimony Schad says that Jacks on was turning water into the boiler with the hose at the time he left, and that he was bending over to see where to place the hose, while he says in another place in his testimony, that the water had not yet been turned on; yet in another part of his testimony he says that the water was being forced in. Now that does not indicate that he was testifying from recollection, but it does indicate that he is reasoning it out. If he recollected that he told him to do a certain thing, he would have had a clearer recollection of what Jackson was doing when he' left; Jackson was put up there to clean up the boiler; if" he had no instructions and if there were no such rules as would require that some orders be given when one was to go into the boiler so that the steam would not be turned on, then he was not negligent, and it was negligent for th'e company to be without rules and to allow that steam to go in there. And so we would not reverse the ease on the weight of the evidence.

But the charge is complained of because it is said that under the charge a recovery might have been had, even though Jackson was negligent in going into the boiler, without giving notice that he was going in, or for any other reason that he was negligent. The court at the request of,the defendant, below, gave this in its charge :

“If the jury find from the evidence that plaintiff’s intestate was instructed by his superior officer not to enter the boiler in question until said superior officer should return to said boiler room and that in violation of said instructions plaintiff did enter said boiler and receive the injuries which resulted in his death, then his administrator could not recover. ’ ’

Now of course no complaint is ¡made on the part of the hotel company to that; it was law applicable to the case. It is said, however, that another rule inconsistent to ^hat was given in the general charge of the court when this was given:

“Tt is claimed by the defense, that he (Jackson) was directed not to enter the boiler without informing the fireman. I say to you that if the deceased was directed not to enter the boiler until he, the assistant engineer, returned, by the assistant engineer, and in violation of that direction he entered the boiler, and one of the fireman without knowledge of his presence in there turned on the blow-off cock, and the steam backed up into the boiler and scalded him to death, his testatrix could not recover, for the reason that if such are the facts found by you, that is, if you find the fact to be that he was directed not to enter until the assistant engineer returned, then he failed in his duty to himself and to his employer, and his failure would be the cause of his death, and he would be guilty of contributory negligence, and a recovery would be barred by that fact.”

Now, it. is not denied that that is the law. It is telling the jury of certain circumstances under which the plaintiff below could not recover, and it is not insisted that it is not true, as here stated, but it is said that the implication is that if the decedent had in violation of instructions gone into the boiler and the steam had been turned on by one of the employes of the Hollenden Hotel Company with knowledge of the presence of Jackson in the boiler, there could have been a recovery; that is, there could not be a recovery if this steam was turned on without knowledge, and it implies that notwithstanding the negligence of Jackson in going into the boiler in violation of express instructions, that there could be a recovery, if the steam had been turned on with knowledge of his presence, and that if the same was turned on by a fellow-servant with knowledge, still there ought to have been a recovery. We doubt very much whether that would be so, because the circumstances might be such, that it might be wanton. But, however, it may be there is an implication in this; that there could be a recovery notwithstanding the negligence of Jackson in going into the boiler in violation of the instructions he received, and the steam was turned on with knowledge of his presence there. We suppose it would be wrong if the court had so charged. It would hardly seem possible, however, that the jury could have gone wrong and misunderstood the language of the court, especially after being instructed in this wise:

“I say to you, gentlemen of the jury, that if he (Jackson) was directed not to enter the boiler until the assistant engineer returned, by the assistant engineer, and in violation of that direction he entered the boiler, and one of the firemen,-without knowledge of his presence in there turned on the blow-off cock, and the steam backed up in the boiler and scalded him to death, his administratrix could not recover, for the reason that if such are the facts found by you, that is, if you find the fact to be that he was directed not to enter until the assistant engineer, returned, then he failed in his duty to himself and to his employer, and his failure would be the cause of his death, and he would be guilty of contributory negligence, and a recovery would be barred by that fact. ’ ’

Now taking this charge altogether we find that the court had property instructed the jury as to the law applicable to the case, as will be found in the ease of the Ohio & Indiana Torpedo Co. v. Fishbern, 61 Ohio St. 608 [56 N. E. 457; 76 Am. St. 437].

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

Taggart and Donahue, JJ., concur.


text:
    INTOXICATING LIQUORS.
    Marvin, Winch, and Henry, JJ.
    Roy Murray v. Tom L. Johnson, Mayor.
    Absence of Complete Bill of Exceptions Prevents Review of Action on Jones Law Petition.
    No review of the finding of the mayor on the merits of the case, in passing upon a Jones law petition can he had, where the bill of exceptions does not contain all of the evidence adduced before the mayor.
    [Syllabus by the court.]
    Error.

      W. B. Wheeler and K. F. Leet, for plaintiff in error.

      Max Meisel, George Shaw and H. F. Payer, for defendant in error.
   WINCH, J.

This action is brought to review the actions of the mayor of the city of Cleveland in granting a “wet” petition under the Jones law, for certain territory now within the city of Cleveland, but formerly in the city of Glenville, which, before its annexation, went “dry” at an election held under the Beal law.

We regret that the merits of the controversy can not be settled in this.action, because we have no sufficient bill of exceptions exhibiting all the evidence adduced before the mayor.

The jurisdiction of the mayor to hear and determine the petition presented to him depended upon the facts shown as to said Beal election in Glenville and the subsequent annexation of that city to the city of Cleveland, for there was no controversy as to the sufficiency of the petition in itself on its face.

It is claimed that all the facts represented to the mayor were included in an agreed statement of facts submitted to him, but we have no certificate from the mayor to that effect. All that has been presented to- this court is a document purporting to be a “record of hearing and agreed statement of fact, Local Option law.” This document we have treated as a transcript and also as a bill of exceptions.

“The following is a correct copy of the boundaries of said district and the proceedings had thereon.”

Then follows a copy of a notice of public hearing, copy of docket entries, showing that Mr. Williamson filed objections and C. A. Leisher filed an affidavit and that a statement of facts, agreed upon was filed. Then follows a copy of the agreed statement of facts and after that a communication from the mayor to the city clerk, certifying that he had examined at a public hearing, duly announced, “the petition attached hereto,” filed July 29. 1907, ‘ ‘ and find on August 26, 1907, that the said petition is sufficient. ’ ’ Said petition is not attached, as certified.

The last entry in this bill of exceptions is as follows:

“The above and foregoing is a true and correct copy and transcript of the record and agreed statement of facts in the hearing upon the aforesaid petition, and said transcript and record of said hearing is hereby approved, signed, sealed and made a part of the record in this case, all of which is correctly done this 5th day of September, A. D. 1907.”

It will be noticed that there is no certificate that this bill of exceptions contains all the evidence given and offered at the hearing; it does not state that the agreed statement of facts was used in evidence, nor. that the same was all the evidence received. It simply shows that the agreed statement of facts was filed, as was also an affidavit and certain objections, the contents of which are not divulged, but which may also have been offered in evidence.

Indeed the communication from the mayor to the city clerk would indicate that all the mayor did was to examine the petition itself, which he found sufficient, apparently upon inspection, without other evidence being adduced before him.

The only error complained of depending upon the facts presented to the mayor and there being no bill of exceptions showing said facts, we can not review his action in this proceeding. Hence it Avould be useless to allow a petition in error to be filed, and therefore, the motion for» leave to file a petition in error in this case is overruled.

Henry and Marvin, JJ,, concur.


author: POLLOCK, J.

text:
    ERROR-PARTIES.
    [Ashtabula (7th) Court of Appeals,
    September Term, 1914.]
    Pollock, Metcalfe and Spence, JJ.
    William G. Haas v. Burton E. Thayer, Treas.
    Presumption That Demurrer Overruled Without a Statement Showing' Upon Which of Two Grounds it Was Based Was Sustained on Proper-Ground.
    When a demurrer to a petition, which contains two grounds, a mis-joinder of parties defendant and. that the petition does not state facts which show a cause of action, is sustained, without stating upon which cause the demurrer was sustained, and the plaintiff declining to plead further the action is .dismissed, a reviewing court cannot reverse the judgment of dismissal of action against one of the defendants, if the demurrer was properly" sustained upon either ground.
    [Syllabus by the court.]
    ERROR.

      H. E. Hammar, for plaintiff in error.

      H. E. Starkey and F. R. Hogue, for defendant in error.
   POLLOCK, J.

The plaintiff in error, William G. Haas, brought an action in the court of common pleas of this county against the defendant, Burton E. Taylor, who was, at the time of the matters, complained of in this petition, treasurer of this county, and the defendant, P. G-. Remick, who was auditor of the county at that time.

The plaintiff claimed that he was a resident of the state of Pennsylvania and was the owner of a certain gasoline launch v that he leased this launch to one William Dehring on condition, that it should not be taken out of the state of Pennsylvania;; that Dehring, in violation of this agreement, brought the launch into this county and was selling intoxicating liquors in violation of the Rose law, this law being in effect in this county at that time. Dehring was arrested and plead guilty to the charge. The defendant auditor then placed the tax known as the Dow tax on the tax books of the county against, Dehring, and the defendant treasurer, in order to collect this tax, levied on the launch and was proceeding to sell in order to pay this tax when the plaintiff in error brought an action to enjoin the treasurer from proceeding further in the sale of the launch.

This case was prosecuted through all the courts of this state, resulting in a judgment in favor of the plaintiff Haas. The plaintiff then brought this action in the court of common pleas to recover damages which he claims he sustained by the unlawful taking and keeping of the boat, and the petition further claims that, while the boat was in the possession of Thayer under his proceeding, he negligently and carelessly left it in the lake so that it was damaged by freight-boats, and that after that he pulled it up on the beach and negligently and carelessly left it uncovered so that it was damaged.

Both of these defendants filed a demurrer to the petition, on two grounds: first, a misjoinder of defendants; and, second, that thé petition did not state facts sufficient to constitute a cause of action. The court in passing upon the demurrer sustained it, and the judgment on the demurrer is as follows:

“This day came the parties, by their attorneys, and this cause came on to be heard upon the demurrer to the petition, heretofore filed herein; on consideration whereof said demurrer is sustained. And the plaintiff excepts. ’ ’

After his demurrer was sustained, the plaintiff not wishing to plead further, judgment was entered against him and the action dismissed, and this proceeding in error is prosecuted to reverse the judgment of the court below for error in sustaining the demurrer.

The petition does not charge that Remick did anything more than simply place the Dow tax on the tax books of the county against Dehring; that the further proceedings as to levy and sale of the boat were done by Thayer under the statute requiring him to levy on and sell the property in which intoxicating liquors are sold, in order to pay the Dow tax. The plaintiff is not now claiming that he can recover damages for the taking possession of this boat and proceeding to sell it to pay this tax, but it is claimed that the allegations which charge Thayer with negligently taking care of the property while in his possession, resulting in damage, made a good cause of action, and that the general' demurrer to the petition should not have been sustained. We agree with the contention of plaintiff in that regard, but nothing further need be said in regard to this question for the reason that we believe the judgment ,of the court below should be sustained notwithstanding the petition did state a good cause of action.

It is now admitted by the attorney for plaintiff that there was a misjoinder of parties defendant in this action. The petition does not charge Remiek with having anything to do with the possession and care of the boat. All he did was to place the Dow tax on the books of the county against Dehring. The other acts in the proceedings to collect taxes were done by Thayer, the treasurer. The demurrer was rightfully sustained on the ground of misjoinder of parties, but not on the ground that the petition did not state a cause of action. The court sustained the demurrer without stating on which ground, and upon the plaintiff’s refusal to plead further the court dismissed the action.

Section 11309 G. C. provides that the defendant may demur to the petition when it appears on its face that there is a mis-joinder of parties, either plaintiff or defendant, or that the petition does not state facts which show a cause of action; so that the demurrer should be sustained if the petition fails under either of these conditions', and the court was right in sustaining the demurrer, even though the petition might be good on one ground, and, when the plaintiff declined to plead further, in dismissing the action.

The supreme court of Florida, in the case of Gainesville & G. Ry. v. Peck, 55 Fla. 402 [46 So. 1019], say:

“When any ground of demurrer to a declaration is sustained, the demurrer to that declaration is sustained. In ruling upon a demurrer the court either sustains or overrules the demurrer generally. It is of no consequence that the court may, in terms, overrule one or any number less than the whole of the assignments of error. The sustaining of any ground is as effectual as the sustaining of the demurrer generally. The court is not required to specify the particular ground or point of law in his ruling upon a demurrer where several substantial matters of law are stated, though it may be more convenient to the party demurring for the court to do so.”

And again, the supreme court of Alabama, in the case of Terry v. Allen, 132 Ala. 657 [32 So. 664], lay down the same rule, as follows:

“Sustaining of one ground of demurrer to a eomplaint, though others are overruled, warrants final judgment against plaintiff, he not amending.”

The presumption is always in favor of the decrees of a court being made upon proper ground, and error must always affirma tively appear before a reversal can be had.- This principle was announced by our supreme court in the case of Johnson v. Mullin, 12 Ohio 10. And in the case of Warder v. Jacobs, 58 Ohio St. 77 [50 N. E. 97], the supreme court say:

“ It is an established rule of reviewing courts that the error, for which a judgment may be reversed, must affirmatively appear on the face of the record.”

The presumption is that the court, in passing upon the demurrer in this case, sustained the demurrer on the proper ground, that there was a misjoinder of parties, and the judgment could not be reversed unless it affirmatively appeared that it was only sustained on the other ground. For this reason the judgment of the court below must be affirmed.

Metcalfe and Spence, JJ., concur.


author: KINKADE, J.

text:
      ERROR — INSURANCE.
    [Lucas (6th) Court of Appeals,
    February 28, 1916.]
    Kinkade, Chittenden and Richards, JJ.
    Ohio National Life Ins. Co. v. Harmon G. Vernier.
    1. Court of Appeals not Precluded from Reversing on Weight of Evidence Because Trial Court Refused to Set Aside Verdict.
    Refusal by a trial court to set aside, on the weight of evidence, a verdict on retrial in that court after having set aside upon ' that ground a verdict in a former trial, does not preclude the court of a.ppeals under Sec. 11577 C. C., from reversing the judgment on second trial on the woight of evidence.

      .2. Rule of Two Reversals on Weight of Evidence Limited to Each Court.
    While Sec. 11577 G. C. denies the right to set aside a verdict a second time by the same court, yet it does not follow that a reviewing court may hot reverse on that ground, the case never having been reversed on that ground in the higher court.
    3. Evidence of Insurance Written by Agent Competent in Defense in Action for Compensation.
    Evidence of the total amount of insurance written by an agent is competent in an action by him against an insurance company for salary claimed to be due, as bearing upon the question of whether the allegations of the petition that he had fully performed all of the conditions of his conduct were true and, particularly with respect to his loyalty thereto.
    4. Statements by Employe Against Interest Competent to Show Manner of Performance of Contract.
    Statements against his interest made by an insurance agent in the office of his counsel are competent evidence to show the manner of performance of his contract.
    [Syllabus approved by the court.]
    ERROR.

      0. 8. Brumback, for plaintiff in error.

      Ernest F. Baker, for defendant in error.
   KINKADE, J.

Harmon G. Vernier brought an action in the court of common pleas to recover salary claimed to be due him as an agent ■of the plaintiff in error, and monies withheld by the company from amounts payable to him, by reason of a guaranty obligation that he had given to insure the payment of shortages on the part of another agent. The petition contained four causes of action, the first cause of action being for salary and expenses, and the fourth cause of action, to recover the money retained by the company, belonging to him, as I have mentioned. The other two causes of action were withdrawn by the court from thé consideration of the jury. The jury returned a verdict in favor of the plaintiff for the amount claimed, with interest.

The plaintiff in error urges four grounds as justifying a reversal of this judgment, namely, the refusal of the court to permit the filing of an amendment to the answer, offered at the opening of the trial; errors in the admission and rejection of evidence; refusals to charge before argument as requested; and error in the charge.

The amendment to the answer tendered related only to attorney’s fees sought to be recovered by the' defendant below by reason of the character of the action. In view of the fact that the jury found in favor of the plaintiff, we think nothing further need be said about this assignment of error here.

We find no error of the trial court with respect to the refusals to charge before argument, as requested by defendant.

On pages 62 and 63 of the reeord, the defendant offered to show certain statements made by Vernier against his interest. This evidence was excluded by the court on the ground that it could only be competent as tending to impeach the statements of Vernier, and that the proper basis had not been laid, making it competent for that purpose. On page 64 the ruling of the court was withdrawn and the defendant was permitted to go into this subject. But for this withdrawal, and the evidence following, we think the rulings made on pages 62 and 63 would have been clearly erroneous and prejudicial.

On pages 80 and 81 of the record, the defendant sought to show the total amount of insurance written by Mr. Vernier during the term of his employment by the company. This evidence was objected to, objection sustained and exception saved. This evidence was surely competent as bearing upon the question of whether the allegations of the plaintiff that he had fully performed all the conditions of his contract, were true, and particularly with respect to his loyalty while so performing. We think the ruling of the court in this respect was erroneous and prejudicial.

Defendant also sought to show that at a meeting in the office of plaintiff’s counsel where several parties were present, Mr. Vernier made statements against his interest. This evidence was rejected and exception saved. We think it was clearly competent as bearing on the issues of the case, for the same reasons mentioned above in respect to evidence excluded.

In the general charge, page 117, the court instructed the jury that, with respect to the defense of fraudulent conduct on the part of Vernier, set up in the answer, the burden was upon the defendant to prove that by,a preponderance of the evidence. .While it is true that the answer sets forth, with full detail, many respects in which Vernier had not complied with his contract, but had, on the contrary, violated his contract, we think it entirely clear that evidence offered by the defendant to sustain the facts alleged in the answer in this respect could have been received under a general denial. Mehurin v. Stone, 37 Ohio St. 49, 50. The charge in the respect mentioned we think was erroneous and prejudicial to the defendant.’

We have examined the evidence in this ease with great care, and we are very clearly of the opinion that the verdict and judgment are not sustained by sufficient evidence, and particularly with respect to the allegation in the plaintiff’s petition that he had performed all and singular the conditions of his contract. The performance of an agency contract of the character of that in issue in this ease of necessity involves loyalty on the part of the agent, and it was a part of the plaintiff’s case, to prove by a preponderance of the evidence that he had discharged the duties imposed upon him by the contract with loyalty and fidelity to his principal. We think the verdict and judgment with respect to his conduct in this regard are so manifestly at variance with the evidence as to necessitate a reversal.

It is claimed by the defendant in error that this court can not reverse the judgment on the ground that it is contrary to the evidence, under Sec. 11577 G. C. a verdict in favor of Vernier, and against' the insurance company, rendered in a former trial of this action, having been set aside upon that ground by the court of common pleas. We are informed by counsel that upon the hearing of the motion for a new trial in this case, the trial court declined to pass upon the question of the sufficiency of the evidence for the reason that that question had been passed upon, as stated, at a former hearing of the case, and that, consequently, he was precluded, by reason of Sec. 11577 G. C. from considering that alleged error. In view of these facts, it is urged here that, inasmuch as the trial court could not set the second verdict aside on the ground mentioned, it must follow this court cannot do so, because we can only reverse for errors committed by the trial court. We cannot concur in this construction of the section mentioned. While the right to set aside the verdict a second time is denied by the same court, we think it does not follow at all that this court may not review the ease on that assigned error, the case not having been before reversed in this court on that ground.

For the reasons stated, the judgment of the court of common pleas will be reversed and the cause remanded for further proceedings according to law.

Richards and Chittenden, S3., concur.


author: JONES (O. B.), J.

text:
    ADVERSE POSSESSION.
    [Butler (1st) Court of Appeals,
    1914.]
    Swing, Jones and Jones, JJ.
    Lemon Tp. (Trus.) v. Elizabeth Beatty.
    Statutory Provision Permitting Adverse Title to Control Unopened Streets Applicable Only to Municipalities.
    Section 11220 G. C., permitting title to an unopened street or alley to ripen through adverse possession for more than twenty-one years, applies only to streets and alleys located within municipalities, and cannot be enforced against the state or any of its subdivisions other than municipalities.

      B. F. Harwitz, for plaintiff.

      Woodruff & Schelhorn, for defendants.
   JONES (O. B.), J.

This is an action brought by plaintiffs as trustees of Lemon -township, Butler county, Ohio, alleging that' as such trustees they have charge of all public highways within their township that are not county roads; and that as such all highways in unincorporated villages and hamlets are public highways under their control. They seek to enjoin the defendant from obstructing an alley adjoining her premises on the south and west, •claiming that she has maintained an obstruction thereon in the way of a stable, bárn and other buildings.

The defendant admits that plaintiffs have charge of such highways, but denies that there is or ever has been an alley lying in the rear of her premises as alleged,in the petition, or that it was ever laid out or dedicated to public use, and alleges that the land in question has been enclosed by a fence, with building thereon, and held by defendant and her grantors in open, notorious and continuous adverse possession for more than twenty-one years last past, by reason whereof plaintiffs, if they ever had any rights therein, are now precluded from the use of same for alley purposes.

The lots owned by defendant were originally known as lots Numbers 1 and 2, and subsequently as lots Nos. 52 and 53, •of the Paper Mill Addition to Amanda, Ohio. The proof shows that this subdivision was regularly laid out and a plat of the same adopted and acknowledged by Charles F. Gunckel, trustee, on March 25, 1890, and by him recorded on January 5, 1891. This subdivision was made of land lying adjoining to the incorporated village of Amanda, but is itself outside of the corporate lines, and is not within a municipal corporation. The plat shows an alley connecting with an alley previously laid out within the corporation and running westward south of the west end of said lot No. 1 a distance of 76 feet, and then west to the railroad line, which was the west line of the subdivision: then the alley is shown irregular in width west of the west end of lot No. 1 bounded by the west line of that lot, which is at right angles to the south line, and which is 34 feet long; and bounded on the west by the east line of the railroad. • From the north line of lot No. 1 it follows the railroad a uniform width along the west line of the subdivision.

The evidence shows, without question, that this alley was regularly dedicated and became a public alley and the title thereto was vested in fee in the county under the terms of Sec. 8 of the act of March 3, 1831 (29 O. L. 350) ; afterward found in Sec. 2604 R. S. and See. 1536-69 Bates’ R. S.; and now in Sec. 3589 G. C.

Defendant, however, claims to have acquired title by prescription, by virtue of the terms of Sec. 11220 G. C. and has submitted evidence tending to show that this alley was enclosed along with the lots in such a manner as to exclude the public for more than twenty-one years, and to come directly within the terms of the statute above mentioned.

A careful consideration of the evidence submitted fails to convince the court that she and her predecessors have had such possession for the full period of twenty-one years prior to February 13, the date on which the petition was filed. On the contrary, a number of her witnesses testified distinctly, in answer to leading questions, that the lots were enclosed with fences, and whether they so intended it or not .their testimony, construed literally, would exclude any part of the alley from the enclosure.' There is no question but that there was an old fence on the south and west lines which constituted part of the enclosure of the land subdivided, previously known as “Dickey’s •Woods.” These old fences, however, would not exclude the public from the alley, and the testimony as to when the other fences were built is not clear and convincing, but on the contrary seems to indicate that they were not built until some time after the ownership of Susan Nichol, and probably shortly before she conveyed to J. M. Williamson by deed dated August 30, 1893. It is clear, under the evidence, that the barn which is complained of and which constitutes the principal obstruction was not placed upon this lot earlier than September, 1893, that being the time when Mr. Williamson took possession of the property, the bam having been moved there by him after he had taken possession; so that this obstruction occurred within the period of twenty-one years.

It is well settled in Ohio that the owner of abutting property can acquire no right in a public highway by encroachment or occupation thereof, however long continued, where such encroachment or occupation is of a temporary character like the erection of fences or walls, and the planting of shrubbery and trees, and where it is upon that part of a street or highway not required at that time for public use. Lane v. Kennedy, 13 Ohio St. 42; McClelland v. Miller, 28 Ohio St. 488; Little Miami Ry. v. Green Co. (Comrs.) 31 Ohio St. 338; Lawrence Ry. v. Mahoning Co. (Comrs.) 35 Ohio St. 1; Lake Shore & M. S. Ry. v. Elyria, 69 Ohio St. 414 [69 N. E. 738].

This question has been quite thoroughly examined and the decisions of this state considered and reviewed in Heddleston v. Hendricks, 52 Ohio St. 460 [40 N. E. 408], tbe third syllabus of which reads:

‘ ‘ The right of an adjacent land owner to enclose by a fence however constructed, a portion of a public highway, can not be acquired by adverse possession, however long continued.”

And Judge Minshall, in the opinion of the court, at page 465, says:

‘ ‘ The general rule is that the statute of limitations does not apply as a bar to the rights of the public unless expressly named in the statute, for the reason that the same active vigilance can not be expected of it as is known to characterize that of a private person always jealous of his rights and prompt to repel any invasion of them. ’ ’

The case of Winslow v. Cincinnati, 9 Dec. 89 (6 N. P. 47), which is a decision of the superior court of Cincinnati in general term, contains a good discussion of the law in regard to adverse possession of a public highway by fencing.

In our opinion, the evidence does not bring the claim of the defendant within the terms of Sec. 11220 G. C. but this section, however, applies only to streets or alleys within a municipality. We know of no case in Ohio where the statute of limitations has been enforced against the state or any of its subdivisions other than a municipality.

A decree will be entered granting the prayer of the petition, and requiring the defendant to remove the obstructions maintained by her upon the alley in question.

Swing and Jones (E. H.), JJ., concur.


author: Per 'Curiam.

text:
    CRIMINAL LAW — DELINQUENCY.
    [Perry (5th) Court of Appeals,
    June Term, 1914.]
    Shields, Powell and Yoorhees, JJ.
    William Willison v. State of Ohio.
    Requirements of Affidavit Charging Crime of Contributing Dellrv-quency of Minor.
    In a prosecution for contributing to the delinquency of a minor, the affidavit, in order to charge a crime, must allege that the minor is under eighteen years of age, and is a delinquent within the meaning of the statute, and that the defendant is guilty of contributing to such delinquency.
    ERROR.

      T. B. William,s, for plaintiff in error.

      Thos. M. Potter, Pros. Atty., for defendant in error.
   Per 'Curiam.

The plaintiff in error, William Willison, filed bis petition in error to review the judgment of the probate court of Perry county made in the exercise of its juvenile jurisdiction against him upon a complaint filed charging him with contributing to the delinquency of one Henry Bateson, a minor under eighteen years of age, and also the judgment of the court of common, pleas, affirming the judgment of the said probate court.

Numerous errors are charged, but two only are urged to the court as being sufficiently erroneous to authorize the reversal of the judgment below. The first is that- the affidavit upon which he was arrested and tried is insufficient in law to sustain the-action of said court. And secondly, that the sentence was excessive.

We have examined the record carefully and we find that the affidavit itself was attacked immediately on the arrest of the defendant, Willison. A motion was filed to quash the same and when it was overruled, a demurrer was filed attacking the sufficiency of such affidavit. This demurrer was overruled and the cause submitted to the court on evidence. The defendant was found guilty and sentenced to one year in the workhouse and to pay a fine of $200.

This court is of the opinion that the affidavit is insufficient;, that in cases of this sort there are two elements that enter into the crime charged, viz: that a minor child under eighteen years of age is a delinquent within the meaning of the statutes; and secondly, that the person charged is guilty of contributing to such delinquency.

Section 1644 G. C. as found in Act 103 O. L. 869, defines the words “delinquent child” and specifies the acts that constitute any minor under the age of eighteen years a delinquent. There are a number of specifications in this section when applied to such minor which constitute him a delinquent within the meaning of the statute.

The affidavit, in order to set out a crime, should not only charge that the party against whom the affidavit is filed was violating some one of the criminal statutes of the state in contributing to such delinquency, but it should charge also that such child was delinquent and specify the particulars in which such delinquency exists.

The affidavit in this case charges that the defendant, Willison, furnished intoxicating liquors to the said Harry Bateson to be drunk by the said Harry Bateson as aforesaid, and specifies that such liquors were not furnished by a physician in the regular line of his practice, thus charging that the defendant was guilty of furnishing intoxicating liquors, but it does not specify that the said Harry Bateson either drank these liquors, or violated any of the criminal laws of Ohio, or did any of the-acts specified by See. 1664 as constituting delinquency on his part.

It further charged that the said Willison did permit said Harry Bateson to be in and about a certain house in said county, which house was controlled by the said Willison and in which there was permitted to be conducted and carried on at the instance of the said Willison a game of cárds for money.

Now it is contended that this shows that the said Bateson was guilty of delinquency, or in other words was a delinquent.

The statute provides tbat any minor under fourteen years of age who “knowingly patronizes or visits a policy shop or place where any gambling device is or shall be operated” is a delinquent.

This affidavit does not charge Harry Bateson with knowingly visiting either a policy shop or a room where gambling is carried on. It simply charges the defendant with permitting him to remain in a room under his control where gambling was carried on, and for aught that appears in the affidavit, he might have entered such room without any knowledge whatever that the same was used for gambling purposes.

We think the affidavit is defective in that there is no such sufficient averment therein as would constitute the- said Harry Bateson a delinquent child, and of course, if there was no delinquency, the defendant could not be guilty of contributing to a delinquency that did not exist. We think the demurrer ought to have ‘been sustained.

It will be the judgment of this court that the judgment of the juvenile court finding the defendant guilty as charged in said affidavit, and the judgment of the court of common pleas affirming the same, will be reversed and set aside and the cause will be remanded to the juvenile court of Perry county with instructions to sustain the demurrer to such affidavit.

Shields, Powell and Voorhees, JJ., concur.


author: MEALS, J.

text:
    AUTOMOBILES — ERROR.
    [Cuyahoga (8th) Court of Appeals,
    December 24, 1913.]
    Winch, Meals and Grant, JJ.
    Herman Schmidt v. Jennie Schalm.
    '1. Woman Crossing Street in Broad Daylight Cannot Recover for Being Struck by Automobile.
    A woman who attempts to cross a street in front of an approaching automobile in broad daylight, and is struck and injured, is not entitled to a verdict for damages against the owner of the machine, for the reason that she was manifestly guilty of contributory negligence, either in failing to look in the direction from which vehicles might be expected, or in stepping in front of the machine notwithstanding the evident peril in so doing.
    2. Misconduct of Counsel in Referring to Liability Insurance Company as Interested in Case on Trial.
    In an action for damages against the owner of an automobile, intimations by counsel that some insurance company is interested in preventing a recovery, or questions to prospective jurors, in their examination on their voir dire, as to whether they are connected in any way with any liability insurance company, is prejudicial to the rights of the defendant and highly improper.
    Error.

      Gufhery & Gufhery, for plaintiff in error.

      Harry F. Payer, for defendant in error.
   MEALS, J.

Jennie Schalm recovered a judgment in the court below against Herman Schmidt for personal injuries sustaiped by her in being struck by an automobile. Error is prosecuted in this •court to reverse this judgment.

At the close of the plaintiff’s evidence given on the trial, the defendant moved the court to instruct the jury to return a verdict for the defendant, which motion was refused. At the conclusion of all the evidence offered in the case this motion was renewed. It is claimed by the defendant that the court erred in overruling these motions.

The accident occurred on the morning of September 19, 1911, at the intersection of Superior avenue and East 51st street, in this city. The plaintiff alighted from an east-bound street car, on the east crossing of 51st street, walked around the rear end of the car and started to walk north across Superior avenue. When she had crossed the east-bound track and had reached the devil strip, she stopped. She says that she looked up and down the street, but saw no danger and started to cross the street. Other than this, she says she has no recollection of what occurred. When she had reached the devil strip the street car from which she alighted, had advanced in an easterly direction about fifty feet or more, and the automobile which struck her, according to the testimony offered by her to sustain her case, was about thirty or forty feet east of the east crossing of 51st street traveling west at a rate of speed of about twenty-five miles an hour, with the “left wheels,being just about the north rail of the west-bound track and the right wheels over toward the curb.”. Tt was daylight and there was nothing on the street to obscure her view of the machine. If she looked up’and down the street as she says she did, she must have seen its approach. She then “started to go ahead .again. She took three or four, possibly five steps which took her about four feet beyond the north rail of the west-bound track where she stopped suddenly and stood as one dazed.” Had she “stood still where she first stopped,, the automobile would have passed her without striking her. When she stopped at the point four feet beyond the north rail, she was right in the path of the automobile if it had gone straight ahead. ’ ’

The conductor of the street car, who was standing on the rear platform thereof and who was offered as a witness on behalf of the plaintiff, testified that when he first saw the automobile it was thirty or forty feet east of the crossing; that the brakes were set and the rear wheels thereof were locked and sliding; that when the automobile was about ten or fifteen feet from Mrs. Schalm “it turned around suddenly, almost whirled in its tracks. The rear wheels skidded on the pavement, which was wet, and the rear left fender struck Mrs. Schalm. She did not move either way from the position in which she had stopped the second time. “When the automobile stopped it was facing northeast ; the front wheels were up near the curb stone and the rear wheels were passed the 51st street crossing; tbe front part of the machine being east of the crossing. When Mrs. Schalm was picked up she was eight or ten feet west of the east crossing and about eight feet from the north rail of the west-bound ear track. ’ ’

One other witness gave testimony in support of the plaintiff’s case, but his testimony is not in conflict with that which was given by the conductor of the street car, but tends to corroborate it. The plaintiff claims that her injuries are directly attributable to the negligent rate of speed at which the automobile was being operated at the time she attempted to cross the street. When she stopped on the devil strip she was in a position of safety. Had she maintained this position it is admitted that she would not have been injured. If she looked up and down the street, as she says she did, she must have seen the automobile. If she saw the machine she was clearly guilty of negligence in walking in front of it. If she did not see it, it is certain that she did not look to see it, as the machine was but thirty or forty feet away from her and her view of it was unobstructed. If she did not look, knowing that automobiles and other vehicles were likely to be passing that point at that time in a westerly direction, she was guilty of contributory negligence. Any other rule would throw the whole burden of care upon the driver of the automobile and relieve pedestrians in the street of any duty of care whatsoever. The law is otherwise.

We are therefore of the opinion that the plaintiff’s conduct as shown by the evidence offered by her, leaves no rational inference but that she was negligent in walking in front of the defendant’s automobile, and that her own negligence contributed directly to the injuries which she sustained.

In Cleveland Elec. Ry. v. Wadsworth, 25 O. C. C. 376 (1 N. S. 483), the plaintiff alighted from an east-bound car at Aubumdale avenue, East Cleveland, and “walked around the end of the car across the first track and onto the devil strip toward the second track at an ordinary gait, and as he was still stepping forward and was about to touch the south rail of the west-bound track, he saw the west-bound ear and its headlight in front of him, and some portion of the ear struck him and knocked Mm down and injured him.” He neither stopped to observe nor did he look eastward upon the west-bound track. Had he done so as was his duty before going upon the westbound track, he might have seen the approach of the car wMch struck him. The court held that while the railroad company was undoubtedly negligent in running the west-bound car which struck the plaintiff at too great a rate of speed in passing the car that was stopping at the crossing, the plaintiff himself was guilty of negligence contributing to his injury and therefore could, not recover. TMs case was affirmed by the Supreme Court.

And so in the case at bar, it is immaterial that the automobile which struck the plaintiff was being driven at a negligent rate of speed at the time of the accident. The plaintiff having contributed to her own injuries can not recover against the defendant, no matter that he was negligent.

In Shott v. Korn, 34 O. C. C. 260 (17 N. S. 393), the court of appeals of the first district held that it was not “error to instruct a verdict for the defendant owner of an automobile in an action for the death of a pedestrian where it appears that the deceased attempted to cross a well lighted street in front of the approaching machine which was in full view with its lamps burning. ” In the opinion the court said:

“The accident occurred at 8:37 o’clock on the evening of May 5, 1912. Benjamin Shott was killed by being struck by an electric automobile, the property of Edna Farrin Korn, at the intersection of Rockdale avenue and Reading road, in this city. Shortly before the accident it had been raining, but it was not raining at the time. The automobile was going south on Reading road, and the decedent, Shott, was preparing to cross Reading road from east to west. The automobile had its lights burning, and the street at that point was lighted by electric lights so that Shott could have seen the automobile and the driver of the automobile could have seen Shott. There were no obstructions in the street. One witness alone saw the accident; this was Mr. Downing, who was standing at the intersection of the two streets. He testified: ‘I saw a pedestrian half across the street and a machine coming from the northern intersection of Rockdale avenue and Reading- road. I paid only casual attention to it. at the time, but when I saw neither the pedestrian nor the machine slacken, of course that was a realization that there was-an accident imminent. I did not see the actual contact of the machine and the body, because of the automobile — the machine coming between my line of vision and the decedent — but I heard him strike the ground. I judge the ear ran in the neighborhood of 75 or 80 feet after striking the man.’ ”

The court further said:

“From the evidence it seems clear to us that Shott was guilty of contributory negligence and that his death was caused by it. The machine was in plain view quite a distance before he started across the street. There wás nothing to obstruct his view and there was nothing to obstruct his mind or prevent him from, exercising the prudence which he should have exercised in looking for approaching vehicles when about to cross the street.. He seems to deliberately have walked in front of the approaching machine. Under the evidence we think the court was justified in directing the jury to return a verdict for the defendants-The facts were really not in dispute and it became a question of law for the court.
“We are of the opinion that the circumstances of this case admit of no rational inference but that of negligence on the part of the plaintiff. Of this we believe no two reasonable minds, could disagree. It therefore became the duty of the court on the defendant’s motion, at the close of the evidence offered by the plaintiff, to direct the jury to return a verdict for the defendant. It follows that the court erred in not so doing. ’ ’

One other question is made by the record of this case which we deem of sufficient importance to notice briefly. While it is not. necessary that we should pass upon it in Hew of the conclusion, we have reachecj in the case, we think that a word or more upon the subject involved therein will not be amiss as a guide to the future conduct of this class of cases.

In the course of the impaneling of the jury, and while one of the prospective jurors was being examined on his voir direr and in the presence of those who were later sworn as jurors in the case, counsel for the plaintiff 'remarked that doctors would probably be ealléd upon to testify as to tbe physical condition of the defendant, both by the plaintiff and the insurance company.

Of course, no insurance company was a party to the action and on the record no insurance company was concerned in the outcome of the action. The court sustained an objection to this remark, and instructed the jury to entirely disregard any remarks made about an insurance company being connected with the case, as there was none and that the defendant in the case was Herman Schmidt. Counsel for the plaintiff thereupon stated that the remark was a slip of the tongue.

However this may have been, counsel for the plaintiff had effectually apprised the prospective jurors present that concealed under the coat tail of Herman Schmidt, the defendant in the action, an insurance company was interested in the outcome of the case. The true defendant was thereby made to bear the burden of whatever prejudice existed in the minds of the jurors against insurance companies. This was manifestly unfair to him, as under a policy of casualty insurance the liability of the insurer is usually limited to a fixed amount. A recovery in excess of this amount in an accident ease must be borne by the insured. Thus the defendant might have been very greatly prejudiced by such a remark. Moreover, an insurance company, if there be one that is in anywise interested in the outcome of the case, that is not a party to the action and does not have the right to plead or defend in the action, nor the right to show the nature and extent of its obligation to the defendant, should not be prejudiced in its rights by such remarks. The rights of the parties to an action should be determined by the pleadings and the evidence in the case and not by some extraneous consideration. Such remark as that referred to, if made purposely could have no other object than to prejudice the jury against the defendant, and is obviously improper.

Further in the impaneling of the jury counsel for the plaintiff asked several members of the panel who were later sworn as jurors in the case whether or not they were connected with an insurance company. Objection was made by counsel for the defendant to this line of inquiry, which the court overruled, remarking at the same time that counsel for the plaintiff should confine his questions to liability insurance companies. The purpose of these questions is manifest, and it is equally manifest that they were improper. In permitting them to be asked the court clearly erred. What difference did it make to the plaintiff whether an insurance company was interested in the outcome of the ease or not? Her rights were not affected nor did they depend upon any such consideration, and if the trial had been properly conducted, she could not have been prejudiced by the fact that an insurance company was obligated to the defendant to bear some part of the judgment recovered’ against him. Besides the jury in all probability would not have known that an insurance company was in any way interested in the ease had her counsel not called their attention to that fact. The suggestion that an insurance company was the real party in interest in the action, and that the qestion asked in the impaneling of the jury were asked for the purpose of safeguarding the rights of the plaintiff, does not appeal to us. On the contrary, we believe that this contention but thinly veils a subterfuge.

After a very careful consideration of the question presented and an examination of many authorities on the subject, we have concluded that this practice is improper and must cease. We hope, therefore, that our conclusion in this regard, while not material to our decision in this ease, shall serve the purpose of apprising all parties in interest that in the future we shall regard the admission of evidence or statements of counsel, tending to show that an insurance company is interested in the' outcome of the trial, as reversible error.

We think the court erred in overruling the motion of the' defendant to direct a verdict for him, for which reason the judg-' ment is reversed and the cause is remanded for further proceedings according to law.

Grant, J., concurs.

Winch, J., not sitting.


author: SWING, J.

text:
    MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Court of Appeals,
    July 6, 1914.]
    Swing, Jones and Jones, JJ.
    Cincinnati (City) v. Josephine Hiles.
    Woman Knowing of Defect Stepping off Street Car Into Hole in Street: Guilty of Contributory Negligence.
    Where the city permits a bad hole to remain in a street and a street car passenger, who had knowledge of the existence of the hole, steps into it in alighting from the car and is injured, the direct cause of the accident is not the negligence of the city in permitting the street to get out of repair, but the contributing negligence of the one so injured in not observing: proper care in using the street.
    Error.

      Alfred Bettman ancl Coleman Avery, for plaintiff in error..

      Horace A. Reeve, for defendant in error.
   SWING, J.

This case is in this court on error to the judgment of the superior court of Cincinnati, wherein defendant in error recovered a judgment against the plaintiff in error in the sum of $1,250.

In said court Josephine Hiles brought her action against the Cincinnati Traction Co. and the city of Cincinnati. The action was for' damages for injuries received by said Josephine Hiles by reason of a defect in one of the streets of Cincinnati, to wit,, Spring Grove avenue, into which plaintiff stepped, and which resulted in quite a serious injury to her. She alleged that-the hole in the street into which she stepped was at a point where the Cincinnati Traction Co. stopped its car on which she was a passenger and at which point she desired to alight; that the city of Cincinnati was guilty of carelessness and negligence in permitting said Spring Grove avenue to become and remain out of repair and permitting said hole to 'remain and be in said pavement, and that said city of Cincinnati was. careless and negligent in that notwithstanding it had caused to be built and maintained an electric lamp near the said halfway stop for the purpose of lighting said Spring Grove avenue at said point, it negligently and carelessly permitted the said lamp to remain nnligbted on the said evening at the time when said accident happened to plaintiff; that said city in the exercise of ordinary care was bound to know that said Spring Grove avenue was out of repair and in a dangerous condition to pedestrians at the time and place where said accident happened to the said plaintiff. She further alleged that when she alighted from the car she was in the exercise of due care and caution and without any negligence whatever, but that the said Cincinnati Traction Co., defendant, was careless and negligent in stopping its said ear and inviting its passengers to alight at a place in Spring Grove avenue which was then and there unsafe and dangerous.

The Cincinnati Traction Co. filed a demurrer to the petition, on the ground' that it did not state a ground of action against the said company and that there was a misjoinder of parties defendant. Said court found this demurrer well taken, and dismissed the traction company, and the ease then proceeded to trial against the city of Cincinnati, with the result herein-before stated.

The case was argued in this court quite a long time ago and has been under discussion by us several times, and only lately have we arrived at a conclusion which is satisfactory to all the. members of the court.

Considerable evidence was heard on the trial, and after a careful consideration we are of the opinion that there is very little, if any, conflict in the evidence. The facts are substantially these: There is no question as to the injuries received by the plaintiff; there is no question but that the street was very much out of repair, not only at the point where the accident occurred, but the street generally was very much out of repair and in very bad condition. The hole in the street into which plaintiff stepped and received her injuries was described as being about four feet long and two feet wide, and at some points as deep as eight inches. It was so deep, in fact, that the rail and ties of the street ear company were exposed to view. The point' at which the plaintiff alighted was called a halfway stop. Not far from this halfway stop was a regular stop, and the evidence shows that at that point the street was in a safe condition, and the evidence further shows that the plaintiff could have stopped. at this latter point without any great inconvenience to herself. The evidence further shows that the plaintiff: had been living opposite to the point where she alighted, for some ten days or more; that she had gotten on and off the car at this point several times previous to the accident and that she was familiar with the condition of the street at this point.

The evidence further shows that the condition of the street was. in plain view from the surrounding houses and sidewalks, and was in no way concealed.

Under these circumstances, has plaintiff any right to recover in this case ? We are of the opinion that she has not. She not only had knowledge in fact, but was bound to know that the street was out of repair at the point where she alighted from the ear. It does not appear that there were any facts existing at the time she alighted which prevented her from using the knowledge which she had as to the bad condition of the street. It seems to us that she did not exercise that ordinary care and prudence which one is bound to use in stepping onto a street which she knows to be in an unsafe condition.

Whether or not the street car company was guilty of negligence in the stopping of its car at a point in the street where the street was in a dangerous condition and inviting the passengers to alight at that point and thereby became liable to the plaintiff, is not here for our consideration, as the plaintiff elected to proceed against the city of Cincinnati, alone.

But it seems to us that the negligence of the city in permitting the street to get out of repair, was not the direct cause of the accident, but rather that the contributory negligence of the plaintiff in not observing the proper care on her part in using the street, was the direct cause of the accident and therefore the city could not be held liable.

Under the facts, we think the court below should have directed the jury to return a verdict for the city, and that the judgment should be reversed, and judgment entered in this court on that ground.

Other errors were assigned, but under the holding at which, we have arrived, they are not material.

Jones (EL 3EL) and Jones (O. B.), JJ., concur.


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    COMPENSATION AND SALARIES — COURTS.
    [Butler (1st) Court of Appeals,
    November 27, 1914.]
    Swing, Jones and Jones, JJ.

      State, ex rel. City Sol. v. Butler Co. Comrs.
    1. City Solicitor Held Prosecutor in Municipal Court.
    It is the duty of a city solicitor to act as the prosecuting attorney of the municipal court of such city.
    2. County Commissioners Required to Recompense City Solicitors for Services in Municipal Court.
    It is the duty of county commissioners to make a proper allowance to a city solicitor for his services in state cases before a municipal court.

      B. F. Primmer, City Sol., for plaintiff in error.

      Benj. A. Bickley, Pros. Atty., for defendant in, error.

      Affirmed, Butler Co. Comrs. v. State, 93 Ohio St. 42.

   JONES (O. B.), J.

This is an action to compel, the board of county commissioners to make an allowance of compensation to the city solicitor for his services as prosecuting attorney of the Municipal Court of Hamilton.

There is no question that the municipal court has the jurisdiction of a police or mayor’s court, and in our opinion Sec. 4306 G. C. and Sec. 1579-122 G-. C. (103 O. L. 353) make it the duty of the city solicitor of Hamilton to act as the prosecuting attorney of such court, and under the terms of Sec. 4307 G-. C. he “shall receive for this service such compensation as council may prescribe, and such additional compensation as the county commissioners shall allow.”

In our opinion it is the duty of the county commissioners by virtue of this section to make a proper allowance to the city solicitor for his services as prosecuting attorney in state cases before the Municipal Court of Hamilton. In making this allowance they can take into consideration the amount of compensation he receives for city eases, and the extent of the services rendered in both city and state cases.

The court below was, therefore, in error.in sustaining the demurrer of defendants below to the petition for mandamus, and the judgment will be reversed and the case remanded for further proceedings.

Swing and Jones (E. II.), JJ concur.


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    LANDLORD AND TENANT — NEGLIGENCE.
    [Hamilton (1st) Court of Appeals,
    July 5, 1913.]
    Swing, Jones and Jones, JJ.
    William P. Devou v. Annie Hughes.
    Proof as to Defective Condition of Cistern Necessary to Hold Land' lord Liable for Injury to Tenant’s Daughter.
    In an action against a landlord for damages for injuries, sustained, by a daughter of a tenant who fell into an abandoned cistern in the back yard while hanging out a washing, an allegation that the cistern was completely concealed from view by a growth of grass and weeds and that the cover of the cistern was in “an unsafe, unsound, rotten and dangerous condition,” is not supported by proof which goes no further with reference to the cover of the cistern than to show that the rim was broken off.
    ERROR.

      Jackson & Woodward, for plaintiff in error. '

      Johnson <£• Levy, for defendant in error.
   SWING, J.

This was an action in the court of common pleas by Annie-Hughes against William P, Devon for damages resulting from injuries received by Annie Hughes by falling into a cistern which was located upon the premises of said Devou. The gist of the action is thus set out in the amended petition of the plaintiff:

“Plaintiff, Annie Hughes, a colored girl, states that on or about the 28th day of July, 1908, her father for the use of himself and family, including plaintiff, rented from the defendant as a tenant from month to month, the second floor of the premises Imown and numbered as 620 West Fourth street, in the city of Cincinnati; that defendant was the owner and in charge of the premises herein referred to and the building thereon, the rooms in which defendant rented to different tenants; that in the rear of said building on said premises and appurtenant thereto was located a yard used by the consent of the defendant in common by the various tenants of defendant including plaintiff and her father for the purpose, among other things, of drying washing, the surface of which was covered with a thick growth of long grass, weeds and underbrush; that concealed under said growth of long grass and weeds in said yard, and located on said premises and completely hidden from view, was a cistern the covering of which the defendant negligently permitted to become concealed from view and in an unsafe, unsound, rotten and dangerous condition of which its existence and the dangerous and unsafe condition — plaintiff and her father were at all time unaware and' in total ignorance; that defendant was at all times during the tendency herein referred to in the control of said premises and in charge thereof, and that on August 6, 1908, that while walking through said yard engaged about the family washing she stepped upon the grass and weeds which had overgrown and concealed the covering of said cistern, and without any fault or negligence on her part in the exercise of due care, but solely by reason of the defective and dangerous condition of said covering and cistern which was concealed in the manner above stated, she fell into same and was hurt.”

At the close of the evidence for the plaintiff, defendant moved the court to instruct a verdict for the defendant, and this motion was renewed at the close of all the evidence, both of which motions were overruled by the court. A verdict and judgment was entered for the plaintiff in the sum of twelve hundred and fifty dollars.

. The evidence clearly shows that the yard was overgrown with weeds and grass, and it further shows that the cistern was concealed from view by this grass and weeds; but as to the covering of said cistern, which was alleged to be defective in that it was in an “unsafe, unsound, rotten and dangerous condition” it is not clearly shown; in fact, all that was shown in regard to it was that part of the rim had been broken off. Whether by reason of this rim being broken the covering was displaced when tbe plaintiff stepped on it or whether it did not properly cover the cistern the evidence does not show. The defendant would have been liable, no doubt, if the evidence had shown either of these facts, but it must be evident that in order to sustain the judgment the evidence should show that the injury was caused by a defect in the cover, and that by simply proving that the rim was broken does not go far enough in proving that the action occurred by reason of the broken rim.

The special finding of the jury that the accident was caused by “negligence in not keeping the yard in proper condition’* does not throw much light on the question for the reason that it does not point out the improper condition that the yard was in, even if the jury meant that the cistern was in the part of the yard that was not kept in proper condition.

The evidence showed that the injuries were very serious and permanent, and the amount of the judgment was very small. We do not think the judgment is sustained by sufficient evidence, and for this reason it is reversed and the cause remanded for a new trial. We find no other error in the record.

Cause remanded to the court of common pleas for further proceedings according to law.

Jones (E. H.) and Jones (6. B.), JJ., concur.


text:
    ESTOPPEL — PRINCIPAL AND AGENT.
    [Cuyahoga (8th) Circuit Court,
    February 14, 1911.]
    Marvin, Winch and Henry, JJ.
    Louis P. Smith v. Caleb E. Gowan & Margaret K. Smith v. Caleb E. Gowan.
    1. Agent to Sell Can Not Exchange But Acquiescence Estopped Principal.
    Power to an agent or trustee to sell, does not authorize him to exchange, but acquiescence therein until the other party to the exchange has changed his position and the status quo can not be re-established estops the principal from taking advantage of this lack of power.

      2. Acquiescence of Principal in Exchange Estops Principal from Asserting Agent’s Power.
    Where all the stockholders in a corporation except the plaintiff have acquiesced in certain transactions, such conduct on the plaintiff’s part as would estop him from maintaining an action for his own benefit, to have said transactions set aside, will estop him from maintaining such an action for the benefit of the corporation.

      E. L. Peéke and E. J. Pinney, for plaintiffs.

      Squire, Sanders & Dempsey, Kline, Tolies & Morley and Henderson, Quail & Siddall, for defendants.
   MARVIN, J.

Each, of these eases is based on the same state of facts, and each is brought to set aside a transfer of the property of the Cleveland Dredge & Dock Co. to the Great Lakes Dredge & Dock Co. each of which is a corporation, which transfer was made on or about June 30, 1906. The plaintiff in each of these eases was a stockholder in the first named company; the plaintiff, Louis P. Smith, OAvning 48 per cent of the stock, and the plaintiff, Margaret K. Smith, owning 1 per cent of the stock. The balance of the stock was owned, 48 per cent by J. A. Smith, a brother of the plaintiff, Louis P. Smith, and 1 per cent by E. B. D. Smith, Avife of said J. A. Smith, and 2 per cent by James R. Sprankle, now deceased. Indeed, Sprankle was already dead at the time of this transfer and the 2 per cent of the stock which he had owned constituted a part of his estate. The Cleveland Dredge & Dock Co. was the outgroAvth of a partnership which had before its organization existed between the plaintiff, Louis P. Smith, and his brother, James A. Smith. The corporation having been first organized as the L. P. & J. A. Smith Co. and then by reorganization changed to the Cleveland Dredge & Dock Co. the two brothers being equally interested in said partnership. When the corporation was organized, in order to make the number of shareholders sufficient to constitute a board of directors, a share of the stock which was purchased by Louis P. was issued to his wife, Margaret K., and a share of the stock purchased by James A. was issued to his wife, E. B. D., and then two shares were issued to Sprankle, who was a brother-in-law of the Smiths.

It is agreed on the trial that though each of these wives and Sprankle were genuine'stockholders, they became such simply to qualify them to act as directors, so that the corporation might be legally organized. The purchase of the stock by Louis P. and James A. Smith was made by the transfer of the property of the partnership formerly existing between them to the corporation. Manifestly the issue of the stock, as it was issued to the two wives and to Sprankle, was that the two brothers should practically control the corporation, each having an equal interest therein. In 1905, or the early part of 1906, the Cleveland Dredge & Dock Co. was in financial straits. Its creditors were consulted and the result finally was that the management of its affairs was put into the hands of a committee; agreed upon between the corporation and the creditors, and spoken of as the creditors’ committee. This committee undertook to tide the company over its embarrassment, believing that its assets were sufficient to pay all its debts, and much more, provided its business could be carried on and its contracts then existing and partly performed could be completed; that this and the business it was likely to get would eventually pay all the debts and leave a good surplus for the stockholders.

On March 26, 1906, a contract was signed transferring the control of the affairs of the Cleveland Dredge & Dock Co., to this committee, and in terms authorizing the committee to sell the assets of the company, if it should deem it best.

The clause of said contract authorizing the sale is in these words:

“To give to said committee, which they hereby do, full authority and discretion with respect to the management of said company and the disposition of the assets of said company by sale, liquidation or otherwise, in such manner and at such price, as they may deem just and proper, at any time during the continuance of this agreement.”

The committee made the transfer of the property to the Great Lakes Dredge & Dock Co., as already stated, on or about June 30, 1906, the Great Lakes Dredge & Dock Co. undertaking to complete various contracts for the kind of work which was carried on by the Cleveland Dredge & Dock Co. and which it had partly performed, and upon which there had been earned a large amount of money which had been retained as a percentage until the completion of these contracts. Of course it was of great importance to the Cleveland Dredge & Dock Co. that these contracts should be completed so that this retained percentage could be realized. The transfer however made by the .committee to the Great Lakes Dredge & Dock Co. was not made for money, but there was taken in exchange for these assets stock of the Great Lakes Dredge & Dock Co., which stock was issued to a trustee, who still holds it. ■

The purpose of each of the present actions is to set aside this transfer and for an accounting on the part of the Great Lakes Dredge & Dock Co. and the several members of the creditors’ committee and the trustee. Without stopping to examine the terms of the contract of transfer we hold that the authority given to the committee to sell the assets of the Cleveland Dredge & Dock Co.was not an authority to exchange its assets for any other property, except money or its equivalent. An authority to sell is not an authority to exchange. In support of this, attention is called to Cleveland v. State Bank of Ohio, 16 Ohio St. 236 [88 Am. Dec. 445]. In this case the court construed these words:

‘ ‘ To sell said shares or any part therof at such time or times as to them may seem expedient for not less than their par value and to do whatsoever else may seem necessary to secure and advance the interest of the city in the premises. ’ ’

Commenting on these words the court said that such words did not authorize an exchange of the shares of stock for other property.

Certainly the language here construed was as comprehensive as the words of the contract now under consideration, giving the creditors ’ committee ‘ ‘ full authority and discretion with respect to the management of said company and the disposition of the assets of said company by sale, liquidation or otherwise, in such manner and at such price as they may deem just and proper. ’ ’

On the part of the defendants, however, it is urged that whatever rights the plaintiffs might have asserted, if they had acted with promptness upon learning that which had been done in the matter of this transfer, they are estopped from now asserting. As early as July 13, 1906, the plaintiffs knew of this; in any event, on July 25, 1906, L. P. Smith saw the contract between the committee and the Great Lakes Dredge & Dock Co. and they did nothing until October 1, 1906, when Louis P. Smith made a protest against the action which had been taken, but suits were not brought until May 21, 1907.

In the meantime the Great Lakes Dredge & Dock Co. had taken possession of the assets of the Cleveland Dredge & Dock Co., which consisted of some dredges, scows and other machinery and apparatus for dredging, building docks and the like along the lakes. It had made repairs on the property, had divided it, using it with other property of the same kind which belonged to it originally, and had gone on with the completion of the contracts, which, as alread3r stated, had been partly performed by tile Cleveland Dredge & Dock Co., expending large sums of money in the completion of such work and the making of such repairs, and in short had put itself in a very different position from that in which it was with reference to these assets when it first took possession of them, and had made it impossible to restore the status quo. There seems very little doubt that except for the claim that these plaintiffs are stockholders in a corporation and that whatever they may secure by virtue of these several suits would be for the benefit of the corporation,, they would each be estopped from maintaining an action. In support of this, see the United States Rolling Stock Co. v. Atlantic & G. W. Ry. 34 Ohio St. 450 [32 Am. Rep. 380], and the authorities there cited.

■ But it is urged that estoppel which would be effective as against these plaintiffs, were they suing simply for an infringement of a personal right, can not be asserted to the prejudice of the corporation in which they are stockholders. A complete answer to this seems to be furnished by the fact that though the corporation is a legal entity any benefit which could come to-it would be a benefit simply to its stockholders; that substantially all of its stock was owned by the two Smith Brothers; that James A. Smith and his wife are content with what has been done; that so far as appears no complaint is made by the representa* tives of the two shares of Sprankle stock; that there is nobody but these plaintiffs who could be benefited by anything that could come to the corporation, who is not satisfied with the situation as it is in fact practically nobody but the plaintiff,, Louis P. Smith. It would, therefore, seem equitable and just, that what would estop these plaintiffs if each was suing for an individual right should estop them from maintaining these suits. In the case of State v. Standard Oil Co. 49 Ohio St. 137 [30 N. E. 299; 15 L. R. A. 145; 34 Am. St. 541], the first paragraph of .the syllabus reads:

‘ ‘ That a corporation is a legal entity, apart from the natural persons who compose it, is a mere fiction, introduced for convenience in the transaction of its business, and of those Avho do-business with it; but like every other fiction of the law, when, urged to an intent and purpose not within its reason and policy, may be disregarded. ’ ’

Practically each of these suits is brought to vindicate what Louis P. Smith regards as an infringement of his personal right. The amount of stock held by Margaret K. Smith is too insignificant to make the result of this litigation of substantial importance to her, and Louis P. Smith should be treated in this action, notwithstanding there is technically a corporation’s rights sought to be vindicated, as suing for his individual benefit. So treating him, we hold that he is estopped from maintaining the action, and that which estops him estops Margaret K. Smith in her action, and the result is that the petitions are dismissed.

Winch and Henry, JJ., concur.