text:
    CARRIERS.
    [Hamilton (1st) Court of Appeals,
    February 14, 1916.]
    Jones, Jones and Gorman, JJ.

      James F. Bennett v. Pennsylvania Co. and Pittsburg, C. C. & St. L. Ry.
    Agreement by Carrier to Render Additional Service does not Render Contract Void.
    The waiver by a carrier of one of the provisions of a uniform contract of shipment, thereby giving to the shipper a service other and greater than that specified in the contract, does not render the contract void ■ under the Ohio statute relating to unlawful preferences for transportation wholly within the state, unless the discrimination thereby given to the shipper is unjust or unreasonable and can fairly be considered as granting some privilege or concession not enjoyed by others similarly engaged.
    ERROR.

      Blade, Swing & Bloch, for plaintiff in error.

      Maxwell & Ramsey, for defendants in error.

      Motion to certify record overruled, Pennsylvania Co. v. Bennett, 61 Bull. 182.

   JONES, E. H., J.

The discrimination inhibited by Sees. 508, 564, 567 and 568 G-. C., is such an one as is unjust or unreasonable and can fairly be considered as giving some substantial privilege or concession not enjoyed by others similarly engaged.

Our statutes are practically libe tbe provisions of tbe Interstate Commerce act, and are to be alike construed. In. Union Pac. Ry. v. Grain Co. 178 Fed. Rep. 223, it was beld:

- “Tbe interstate commerce does not prohibit tbe giving of all preferences and advantages or the production of all prejudices and disadvantages. It prohibits only those that are undue and unreasonable. ’ ’

Hutchinson, Carriers (3d ed.) See. 538:

“All special contracts or traffic arrangements between carrier and shipper are not forbidden or condemned, but only such as operate unfairly and evidence undue favoritism towards one, or deprive another of his just rights. ’ ’

The facts stated in the petition are not alone sufficient to warrant therefrom a conclusion that there was an unlawful discrimination in this case. The burden rests upon the railway company to prove that the favor shown the shipper constitutes an undue preference or unjust discrimination. Interstate Commerce Commission v. Railway, 43 Fed. Rep. 37:

“Where a railroad company is charged with violating the interstate commerce act, by the issuance of ‘party-rate tickets’ at less than the rates charged single passengers, the burden of proving that such lower charge constitutes an undue preference is upon the person making the charge.”

The judgment is reversed and the cause remanded to the superior court for further proceedings.

Jones, 0. B. and Gorman, JJ., concur.


source: Caselaw Access Project

author:
RICHARDS, J.
      Kinkade, J.,

license: Public Domain

text:
    TELEPHONES AND TELEGRAPHS.
    [Lucas (6th) Court of Appeals,
    February 23, 1915.]
    Rilla Davidson, Admrx. v. Toledo Home Tel. Co.
    1. Evidence of Custom of Telephone Linemen to Use Guy Wire for Support on Poles in Making Repairs. Competent.
    Where an employe making repairs at the top of a telephone pole and supporting himself in part by the aid of a guy wire, which was claimed to he defective, fell, by the breaking of the guy wire, and was killed, evidence of a custom, usage, habit or general practice of employes to use the guy wire as a support, known to the employer, or which by the exercise of ordinary care should have been known by it, is competent.
    2. Custom or Usage Competent to Determine Negligence of Act.
    While neither custom nor usage can justify or excuse a negligent act, they may be competent evidence to aid a court in determining whether a given act was negligent, the ultimate question being whether under all the circumstances ordinary care was exercised.
    [Syllabus by the court.]
    EkROB.

      0. S. Brumbach, for plaintiff in error.

      Boyle, Lewis, Lewis & Emery, for defendant in error.
   RICHARDS, J.

John H. Davidson, the decedent, was an employe of the Toledo Home Telephone Company as a lineman and lost his life as a result of an injury received on December 16,1913, by falling from a pole of that company located near West Woodruff street in the city of Toledo. It is admitted that the company had in its employment a large number of workmen and had not paid into the state insurance fund the premium provided for by the Workmen’s Compensation law. At the close of the evidence offered on behalf of the plaintiff, the court, on motion, directed a verdict for the defendant .'company and on that verdict judgment has been rendered.

The petition alleges that in the performance of the duty of. the decedent as a lineman he had climbed a pole of the company and in connection with a fellow workman was making certain repairs. It is further averred that the decedent to steady himself upon the pole in the way that had been customary,- placed his leg against or upon a guy wire and that the guy wire suddenly broke and be was precipitated to the ground a distance of about thirty feet. It is averred that it was and had been customary for linemen in performing that duty to use the guy wire as he was doing, and that that custom or usage was well known to the company, and that this guy wire was old, rusty and defective.

The plaintiff in undertaking to make out a case offered evidence for the purpose of proving the practice or custom of workmen engaged in the performance of the duties about which the decedent was employed, to use the guy wires for the purpose of supporting themselves while performing similar duties on poles of the defendant company. This evidence was rejected and the plaintiff not being allowed to introduce evidence of the usage or custom of devoting the guy wires to this purpose, it resulted that the trial judge directed a verdict for the defendant. Much of the evidence which was offered on this branch of the case was incompetent and was rightly rejected, but a majority of the court are of opinion that some of it which was rejected was competent and should have been received. The trial judge appears to have entertained the view that the existence of a custom or usage was not a matter of fact to which a witness should be permitted to testify. We hold, however, that a witness who is properly qualified, should be allowed to testify as to the existence of a custom or usage of which it is shown he has knowledge, and that such testimony is not matter of opinion but is as to the existence of a fact.

One Louis J. Higgins was called as a witness and it developed that he had been employed in line work for the Toledo Home Telephone Company from about February, 1912, to September, 1913, and was familiar with the methods in which such work was ordinarily performed by linemen in the employment of that company. He was asked this question, “What, if any, use was customarily made of the guy wire upon the poles like the one from which Mr. Davidson fell, by the men at work on the pole, to support themselves?” This question was objected to by counsel for the defendant, whereupon the plaintiff offered to prove by the answer of the witness that the men did the work customarily by leaning against the guy wire, or by putting their leg over it, as they might find it convenient, to help themselves in doing their work. The trial judge in sustaining the objection, stated that the objection was not only to the form of the question, but also as calling for a conclusion of the witness. We think the court erred to the prejudice of the plaintiff in sustaining the objection to this question and other questions .of like character. The examination of the witness showed that he was testifying, or attempting to testify, to the manner in which linemen ordinarily supported themselves on poles in the performance of their duties at and before the date of the decedent’s fatal injury. If this evidence and other of like character had been admitted and had shown that the practice was uniform, extending over such a period prior to the injury as would authorize the jury to find that the company knew the guy wires on its poles were being used for that purpose, then a question of fact would have been raised as to the negligence of the defendant company. The evidence, if received, would have tended to show such practice and we think it was prejudicial error to exclude the same. The primary purpose of a guy wire is, of course, to be what its name indicates and thus furnish support and stability to the pole, but we suppose it is competent to show by evidence, if it is a fact, that the guy wire is commonly used for an additional purpose, for instance, to furnish support and stability to workmen while on the pole; and if the evidence should show that the guy wires of this company were commonly devoted to that additional purpose, at and before the fatal injury to the decedent, and to the knowledge of the company, then the inquiry would properly be made whether the company was guilty of any want of ordinary care in maintaining the guy wires, in view of such general use, and whether, in view of such evidence, the injury could reasonably be anticipated. We do not mean to intimate that the evidence was of such a character as would have justified the jury in finding the existence of such practice or custom, but only that the evidence tended to show the same and should have been received.

It is insisted in argument by counsel for the defendant in error that the result .reached in the court of common pleas is required by the decision of the Supreme Court in Cincinnati Gas & Elec. Co. v. Archdeacon, 80 Ohio St., 27 [88 N. E. Rep. 125; 23 L. R. A. (N. S.) 910; 135 Am. St. Rep. 735]. Much similarity exists between the two cases. In that case, however, the doctrine of contributory negligence was applicable and to that extent the remarks of the Supreme Court are not pertinent to the case at bar. It will also be noticed that no attempt was made in that case to show by evidence that the appliances on the pole were devoted to any other than their primary purpose. In the course of the opinion Shauck, Judge, speaking for the court, uses the following language, p. 40:

“In the exercise of such foresight would it have been foreseen that these conditions, inaccessible to persons not engaged in the dangerous occupation of maintaining the lines,, might naturally lead to injury to those so engaged? The obvious and known purpose of guy wires is to give stability to the poles to which they are attached. The obvious and known purpose of the stirrups or steps, with which this pole was supplied, was to furnish the means of ascent and descent to those who were charged with maintaining the lines. # * * In view of the considerations actually presented, can it be said that the injury to the decedent was a consequence to be anticipated in the exercise of ordinary foresight ? ’ ’

The court in that case very properly concluded that the injury could not reasonably be anticipated and therefore held the company was not liable, and the same result would doubtless be reached in the ease at bar unless by the evidence it can be made to appear that it was common practice at and prior to the date of the fatal injury to the decedent, to use the guy wires in the manner claimed, and that the existence of such practice was known to the defendant company or should have been known by it in the exercise of ordinary care. It thus becomes apparent that the existence of a general practice to use the guy wires in that manner was one of vital importance.

For the error in excluding evidence offered by the plaintiff on that subject,- and for directing a verdict for the defendant, the judgment will be reversed and the cause remanded for a new trial.

Chittenden, J., concurs.

Kinkade, J.,

dissenting.

This judgment of reversal goes much further, of course, than deciding merely that the plaintiff had the right to introduce competent evidence along the lines stated in the foregoing opinion. The judgment entered here means that if on a retrial the plaintiff produces competent evidence tending to show that the telephone company knew that its linemen were using the guy wires as the one described in this case was used, then the question whether the company did in fact know of such use, or by the exercise of ordinary care would have known of it, must be submitted to the jury and in ease the jury find, upon evidence sufficient to justify such finding, that the company is chargeable with knowledge of such user, then, as a matter of law, there arises out of that situation thus established a duty on the part of the telephone company to exercise ordinary care to construct and maintain all its guy wires so that they will be reasonably safe for use by linemen to sustain themselves while they are upon the pole, quite regardless of the fact that the guy wires were put there for a wholly different purpose.

To state the proposition as it will be applied to situations in general, I understand it to be this: That whenever an employer learns that his employes have abandoned the use of suitable and sufficient appliances furnished for their convenience in a given line of duty, and have voluntarily and wholly without suggestion or invitation so to do from the employer, adopted the practice of using other appliances and constructions found near at hand which were constructed by the employer for a wholly different purpose and with no thought or intention upon his part of making them suitable or sufficient for the other uses to which his employes have elected to subject them, then the employer, if he wishes to safeguard himself against claims for damages resulting from injuries occurring on account of the insufficiency in any particular of these appliances and constructions to sustain all the strains and demands of the new uses voluntarily put upon them by his employes, must positively forbid each of his employes to use the appliances for the purposes for which they were never intended, and stand ready at all times to establish in court, by a preponderance of evidence, that he did forbid such use, or he must pursue the only other course left, — that is to say, he must forthwith undertake the task of making the appliances reasonably safe for the new uses to which his employes have elected to subject them and if he fails to exercise the full measure of ordinary care in seeking to accomplish this, such failure will make him liable for all damages his employes may sustain by reason of injuries resulting from the insufficiency of such appliances to answer the necessities of the new uses imposed upon them.

Counsel for the plaintiff frankly and consistently contended in the trial below and in argunient here, that he had the right to prove that it was the habit of linemen when upon the poles to use, for the purpose of sustaining themselves, anything found there, no matter what, or for what primary purpose it had been placed there originally; that they might leave in the repair wagon the safety belts furnished by the company for use by the linemen in such cases and not use them at all, and that the same guaranty by the company of safety and sufficiency that would 'attend the use of the safety belts applied with equal force to every other appliance and construction found upon the poles or within the reach of the men when on the poles, when these latter were voluntarily substituted for the former by the employes.

Numerous illustrations might be put showing the impracticability and, I might well say, the utter impossibility of keeping pace with any such varying and shifting duty, to say nothing of what seems to me to be the gross injustice in the claimed duty. The practical effect of the proposition, if sound, is to enable employes to say to their employer, in substance, about this: “While it is true that when we entered your employ you had exercised ordinary care in every respect to make the place of our employment reasonably safe and the appliances with which we were expected to work reasonably safe for our use, nevertheless, we of our own motion, and without any suggestion at all from you that we should so do, elected to abandon the appliances which you furnished and substituted others not intended for like uses and we have been injured wholly by reason of this substitution and, therefore, you must respond to us in damages for those injuries because you knew of the substitution and you failed to make tbe appliances which we elected to use as substitutes for the ones you furnished, equally as safe and sufficient as those you did furnish. ’ ’

In this ease had the company omitted to supply the linemen with safety belts, this omission would have been the first ground of negligence charged in the plaintiff’s petition, and one of the first things plaintiff’s counsel would have attempted to prove on the opening of the trial would have been the negligence of the company in not furnishing safety belts, and he would have sought to sustain this by proving that it was the custom of all other like companies to equip their men with safety belts so that when the men reached' the top of a pole, or any point on the pole, where they had work to do, they could easily make their positions there entirely safe by passing their safety belts around the pole which would enable them to freely use both hands in doing their work instead of being obliged to hold on to the steps, the pole or the cross-arms with their hands.

A safety belt not furnished would have been described over and over again as a thing of the greatest importance, and the omission to furnish it would have been dwelt upon as complete proof of the heartless indifference and gross negligence of the company.

A safety belt that is furnished is quite a different affair. In fact, it is of little or no use and may be left in the repair wagon standing near the pole particularly if, as in this case, it is the foreman’s safety belt that is so left in the wagon. Why is this ? Manifestly, it is for the very simple, plain reason that the safety belt was furnished in this case and had it been used for the purpose for which it was specially intended and was suitable, this accident would never have happened. The company not having been negligent in failing to furnish a good and sufficient safety belt, and the belt, though in the repair wagon and near at hand, not having been used, it became necessary to find some other act or omission of the company which constituted negligence and hence the development of the theory manifest in this record. I can not think that the proposition of law presented by counsel for the plaintiff in error is sound. I see no ground upon which the plaintiff can recover in this action even though the facts when established are found to be as favorable to the plaintiff as claimed in argument by plaintiff’s counsel. For the reasons stated, I think the judgment entered below in favor of the defendant in error should be affirmed.

On Application for Rehearing, June 7, 1915.

RICHARDS, J.

The original opinion in this case,. announced on February 23, 1915, having been by a divided court, and the application for rehearing having been thoroughly argued in briefs filed by counsel, we have given a re-examination to the questions involved. Such re-examination has not resulted in any different conclusion than that which was heretofore announced in this case.

A majority of the court are of opinion that evidence of a custom, usage, habit or practice of using the guy wire as an additional support to workmen, generally followed and known to the defendant, or practiced for such length of time that it should by ordinary care have been known to it before the fatal injury, is competent evidence in this case. We understand that there is a material difference between custom and usage, habit or practice. Usage, as has been well said, does not imply immemorial existence or general prevalence as does custom. In the consideration of this case we have not used the words usage or habit or practice as meaning the same thing as custom. General custom may itself come to have the force and effect of law. In many cases evidence of usage or habit or practice may be admissible to show whether the defendant has been guilty of negligence or the plaintiff guilty of contributory negligence. A good illustration of this is found in a decision by the circuit court in Lucas county, entitled the Lake Shore & M. S. Ry. v. Botefuhr, 30 O. C. C. 67 (10 N. S. 281). That decision was concurred in by all the judges sitting, namely, Haynes, Parker and Taggart, JJ., and was affirmed by the Supreme Court, without opinion 78 Ohio St. 413. The syllabus and the opinion in the case, considered together, show the varying uses of the words custom and habit. It was held in that case that evidence of the habit or custom of the conductor representing the company was admissible not only npon the question of whether the company was in the exercise of ordinary care, but also upon the question of whether the deceased, being aware of the custom and of the habit of the conductor, was guilty of contributory negligence or exercised ordinary care. Parker, J., in the course of the opinion, uses this language, p. 72

11 The evidence in the case, we should say, is hardly sufficient to establish a custom having the force of law, and perhaps not one having the force of an established and promulgated rule binding upon all employes of the company, at all times and places. But we think it is quite sufficient to show this habit in the performance of the work upon the part of this conductor and this trainman when working together in the making up of that train # *

The court says this on page 71:

“As to the admissibility of evidence of this character, we think there can be no question. ’ ’

And the court cites the following earlier decisions of this court establishing that doctrine: Carl v. Pierce, 10 Circ. Dec. 711 (20 R. 68), affirmed no op., Hunt v. Carl, 64 Ohio St. 578; Pennsylvania Co. v. Mahoney, 12 Circ. Dec. 366 (22 R. 469).

It is said in 12 Cyc. 1079, that, “What is negligence and what is due care may depend upon the customs and habits of people in the same place and under similar circumstances.” We suppose it to be well-established law that custom or usage can not excuse or justify a negligent act, but may be evidence on the question whether the act was negligent; or to put the same thing in other phraseology, what usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it is usually complied with or not. Of course, the ultimate question in this case was as to whether, under the issues made in the pleading, the defendant was guilty of negligence, and the existence or nonexistence of the claimed custom or practice was only material in so far as it bore on the question of whether it had or had not failed to exercise ordinary care.

In view of the failure of the company to comply with the Workmen’s Compensation law, the question of the contributory negligence of the deceased may not be important but the principle applies equally to the claimed negligence of the defendant com-' pany.

A majority of the court are of opinion that the application for a rehearing must be denied.

Chittenden, J., concurs.


author: POWELL, J.

text:
    COUNTIES — PARTIES—TORTS.
    [Licking (4th) Court of Appeals,
    March Term, 1916.1
    Shields, Powell and Houck, JJ.
    Joseph Brownfield et al v. Leon Clapham.
    1. Right of Party Suing in Tort to Join Joint Tort Feasors as Parties.
    A party suing in tort has the right to join or omit to join the different joint tort feasors as parties to his action for damages.
    2. County Commissioners, not State Highway Commissioner, Responsible for Injuries to Traveler on Road Reconstructed by State Aid.
    The duties of the state highway commissioner with reference to the construction of roads by means of state aid are ministerial or advisory, and the responsibility for keeping in a condition for safe travel a road undergoing such reconstruction rests upon the county commissioners, and liability arises against them where a traveler over such road who is injured as a result of negligence by the contractors in the prosecution of the work.
    ERROR.

      J. W. Horner, Pros. Atty. and Fits gibbon, Montgomery & Black, for plaintiffs in error.

      Smythe & Smythe, for defendant in error.
   POWELL, J.

This action was brought by tbe next friend of the defendant, Leon Clapham, a minor, to recover damages for personal injuries sustained by him by reason of the alleged negligence o'f the defendants, the county commissioners of Licking county, Ohio, in the construction of an improved public highway.

The negligence complained of was the stretching of a fence wire across a public road leading from Granville to Newark, and which road was under process of improvement by the construction of a cement track upon said road.

The petition sets' out the negligence complained of and the acts out of which the accident grew, and the plaintiff below, now defendant in error, Leon Clapham, was injured.

No question is made as to the injury suffered hy the defendant in error-, or as to the serious nature of the same.

The plaintiffs in error complain that they are not liable for damages, and urge several reasons why the verdict of the jury, awarding such damages, should be set aside.

The errors charged and insisted upon are:

1. That the contractors who were constructing said improved highway, and who were made defendants to the original petition, had been dismissed from the suit.

2. That the county commissioners are not liable.

3. That the evidence shows contributory negligence on the part of the plaintiff below.

As to the first error complained of, viz: that Gregg and Pletcher, the contractors, had been dismissed from the suit. We think there was no error on the part of the court in such action; that the petition shows that if there was any liability on the part of Gregg and Pletcher it was because they were joint tort feasors with the commissioners in the acts out of which such accident occurred, and that a party suing in tort has the right to join, or omit to join, the different joint tort feasors in his action for damages.

It was not necessary to have made Gregg and Pletcher defendants in said action if plaintiff had seen fit to sue the commissioners alone, as he had a right to do; and having such right, we do not think there was error on the part of the court in dismissing them fro-m the action.

The second alleged ground of error is of more difficulty and of more importance, viz: that the commissioners of the county were not liable in damages for the injuries sustained. It is con-ténded that because the road in question was being improved under the supervision of the state aid department the liability, if any, for negligence can not rest against the commissioners, but only against the state highway commissioner, or parties under him, having immediate charge of such improvement work.

Section 2408 G. C., provides for the liability of county commissioners for acts of negligence in the beeping of public highways in repair. It is contended that this section is repealed by implication by the statutes relating to the construction of public roads by means of state aid,- or under the provisions of the state aid statutes. It is not claimed that this section of the statutes is expressly repealed.

Upon examination of the statutes the court is of the opinion that the provisions of law relative to the construction of public highways by means of state aid do not repeal by implication the authority of the commissioners in the construction, improvement and repair of public roads, nor do such statutes relieve the commissioners from liability for not keeping the public road specified in said section in repair. We think that if the acts complained of constitute negligence on the part of the officers having charge of such road, and a liability accrues thereunder, such liability accrues under and by virtue of the provisions of Sec. 2408; and while the provisions of the statutes relating to the construction of roads by state aid requires that the contract for the improvement should be made by the state highway commissioner, yet it must be made with the consent and approval of the county commissioners, and that all the duties required of the state highway commissioner in the construction of such road are duties which are ministerial or administrative and relate wholly to the expert knowledge which such highway commissioner is supposed to have relative to the construction of such roads; that the responsibility for keeping the public roads in repair while such construction work is in process rests wholly with the commissioners, and that it is their duty to provide for safe travel upon the public highways of the county upon state and county roads.

The court is of the opinion that the commissioners are liable for damages in cases of this hind.

It appears from the record that the plaintiff below, who was a minor eighteen years of age, was riding upon a motor cycle at the time when the accident complained of occurred; that a fence wire had been stretched across the road, which was in process of improvement, as a barricade to prevent travelers passing over the road while the cement, out of which the improvement was made, was green; that the wire was left bare and unguarded and could not be easily seen by travelers upon such highway; that plaintiff, with a friend, both of whom were riding the same motor cycle, ran into such wire, and by reason thereof the injuries complained of occurred. Was the act of the commissioners, or the contractors who were working under the supervision of the commissioners and the state highway commissioner, in placing such wire across the road, an act of negligence which would render them liable for damages? The court is of the opinion that it was; that a barricade of this kind should not have been placed upon such road without some notice attached thereto that there was such a barricade; that if damages were sustained by reason thereof a liability ensued on the part of the commissioners; and we think that there was such liability in this case.

We think there was no error on the part of the court below which would justify this court, as a reviewing court, in setting aside the verdict and the judgment rendered thereon.

We have examined the record with particular reference to each error assigned on the part of the plaintiff in error, and think that the judgment of the court below should be affirmed.

Judgment affirmed.

Shields and Houck, JJ,, concur.


text:
    ERROR — TRIAL.
    [Coshocton (5th) Court of Appeals,
    1913.]
    Powell, Voorhees and Shields, JJ.
    Compton-Price Piano Co. v. Thomas C. Stewart, et al.
    Error in Directing Verdict on Statement of Counsel.
    For a court to direct a verdict for the defendant, after hearing counsel state their case to the jury, is an arbitrary and unreasonable exercise of judicial authority and such an abuse of discretion as to require a reversal of the judgment by the reviewing court, where after the statement by counsel for the plaintiff had been challenged by the court no opportunity was given to modify or explain or add to the statement so made.
    Error.

      C. R. Bell and C. 0. Turner, for plaintiff in error.

      J. C. Adams, for defendants in error.
   POWELL, J.

This action was commenced before a justice of the peace to recover a judgment for a balance due upon certain notes executed by the defendants in error to the plaintiff in error, the amount of said notes being $276, exclusive of interest. A chattel mortgage had been given by the defendants to secure the payment of said notes. This chattel mortgage was given by the defendants upon a piano and other property; $22 was paid by the defendants upon the purchase price, $12 of which should have been credited upon the notes, and the same was so credited. The piano was replevined by the plaintiff and sold for the sum of $105, which amount was also credited upon the notes, leaving a balance of $164.85, exclusive of interest, due and unpaid upon the notes from the defendants to the plaintiff. The ease was taken by appeal from the judgment of the justice of the peace to the court of common pleas, where pleadings were filed setting up the respective claims of the parties, and at the trial in that court upon the appeal, the plaintiff, by his counsel, stated his case to the jury that had been impaneled to try the same, together with the evidence by which he intended or expected to support the same. The defendants, by their counsel, then made a statement of their defense, upon which the court announced that he would direct a verdict for the defendant upon the theory that the evidence which the plaintiff intended to offer, as shown by the statement of its counsel, would not sustain a verdict in its favor, and the court did so direct a verdict without giving to plaintiff’s counsel any opportunity to explain or qualify the statement that had been made by him with reference to the evidence that he intended to introduce.

The statement of counsel is a part of the trial of cases and is provided for by See. 11447 G-. C.

That the court may direct a verdict or arrest the case from the jury and enter a judgment of dismissal of plaintiff’s petition and for costs, after the opening statement of counsel for plaintiff has been made and before the introduction of any evidence in the case, has been held to be the law in the case of Cornell v. Morrison, 87 Ohio St., 215 [100 N. E. Rep. 817], but in such case it must appear that such statement gives in detail all the evidence plaintiff proposes to offer in support of the averments of his petition, and if such statement be challenged by opposite counsel or the court, fair opportunity must be given for it to be explained and qualifiéd and for additions to be made thereto if any part of the evidence has been overlooked, and then if it be apparent that such qualified statement does not state such facts which, if true, will sustain the material averments of the petition, it becomes the duty of the trial court to arrest the case from the jury and enter judgment, dismissing the petition and for costs.

The record in this case discloses that the court below proceeded to direct a verdict without permitting any opportunity to plaintiff’s counsel to amend or qualify his statement to the jury, and without any opportunity to add to or explain any of the things stated by such counsel in such opening statement. The record does not show what such opening statement to the jury was, as the same was not taken down at the time it was made, but it does show that, after such statement was challenged by the court, counsel for plaintiff requested to be permitted to amend his statement, and the court refused to allow such amended statement to be made and no opportunity was given to qualify or explain the matters complained of. This, we think, was an unreasonable and arbitrary exercise of the authority of the court, and was such an abuse of its discretion as requires a reviewing court to .set; aside the verdict rendered upon such direction to the jury and to reverse the judgment rendered thereon.

'The record shows that the court, after such direction had been given, permitted an amended statement to be made, and the same was entered as a part of the bill of exceptions, and which we have examined. This amended statement sets out a cause of ’action which, if sustained by the proof, entitles plaintiff to recover judgment thereon; and plaintiff should have been permitted on the trial to submit the same, together with his evidence, under proper instructions from the court, to the jury for determination. The verdict of the jury so ordered will be set aside and the judgment of the court of common pleas will be reversed. The cause will be remanded to that court for a new trial and for such other proceedings as are authorized by law.

Voorhees and Shields, JJ., concur.


author: GORMAN, J.

text:
    FRAUD — RESCISSION.
    [Hamilton (1st) Court of Appeals,
    October 23, 1915.]
    Jones, Jones and Gorman, JJ.

      Lizzie Gaisser v. John Hansen et al.
    1. Liability for Innocently Making False Representations as to Value.
    Under the rule that one who obtains the property of another through untrue statements, though in ignorance of their falsity, must be held responsible for a legal fraud, the grantee of real property is required to make good to a widow as grantor the amount of loss sustained by her by reason of her reliance on representations made by him as to the value of certain bank stock given to her in part' payment, for real estate.

      2. Vendee Misrepresenting Value of Stocks Applied on Purchase of Realty Given Option of Making Vendor Good or Submitting to Rescission.
    In an action for rescission of a contract for sale of real estate and reconveyance of the property to plaintiff, on the ground of misrepresentation as to value, a court of equity, upon finding that the misrepresentations were made as to a material fact and not as an expression of opinion will give the defendant the option of making the plaintiff whole as to the amount lost by reason of such misrepresentations or a reconveyance of the property upon receiving the return of the consideration.
    Appeal.

      Herrlinger & Dixon and Healy, Ferris «fe McAvoy, for plaintiff.

      Frank FL. Kunkel, for defendants.

      Motion to certify record overruled, Hansen v. Gaisser, 61 Bull. 96.

   GORMAN, J.

It appears from tbe record in tbe case that tbe plaintiff, prior to March 27, 1912, was tbe owner in fee simple of certain real estate known as No. 1015 Main street, in the city of Cincinnati, which she was willing to sell for $14,000, and had offers to purchase the property, but not at this price. The defendant John Hansen had been her tenant for a long time in a part of the premises, and her brother, E. William Oesper, the other defendant, occupied an office in a part of the building for several years prior to said date.

Hansen, learning that the plaintiff was willing to sell her property, asked that he have the first refusal or option on the property, and proposed to pay therefor $11,000 in cash. After plaintiff had agreed to accept $11,000 in cash, Hansen proposed verbally to plaintiff’s brother that he have the privilege of turning over to plaintiff certain stocks and a certain amount of cash, and give his note secured by mortgage on the property which he proposed to purchase, for the balance. He proposed this because he said he had not sufficient cash and that these stocks would be tbe equivalent of cash.

This plaintiff had known the defendant Hansen for many years, and she and her brother were on the intimate terms usually existing between brother and sister. She had great confidence in her brother and also had confidence in Hansen, her tenant. After her brother had talked to her, she agreed to sell the property and receive in payment the stock, money and note and mortgage above mentioned upon Hansen’s representation that the stocks were the equivalent of cash.

It appears that her brother thereupon prepared a paper for her to sign in form making the proposal to sell come from her, whereas the proposal to buy came from the defendant Hansen. The following is the proposal:

“I, the undersigned, authorize E. W. Oesper to sell my house and lot No. 1015 Main street, Cincinnati, Ohio, for the sum of eleven thousand ($11,000) dollars on the following terms, to-wit, to take the following stock in part payment:

“16 shares 2d National Bank stock to value of $ 3,760
16 shares U. S. Printing to value. 1,456
Cash. 1,084
$6,300
‘ The balance the purchaser to give mortgage on this property to run 5 years at 6 per cent interest, the purchaser to have the privilege of paying $500 at any time. I will pay the taxes due in June, 1912, to the amount of $72. All other taxes and assessments to be paid by the purchaser.
“(Sgd.) Lizzie G-aisser.
“I accept the above proposition.
“(Sgd.) John Hansen.”

The evidence tends to show that this paper was signed on or about March 27, 1912, although the negotiations were carried on for perhaps a week prior to that time. It further appears that during the negotiations, either before or at the time this proposition was signed by the plaintiff, her brother assured her that the stock of the Second National Bank was good, that he had bought some himself. Hansen told her the stock was worth $235; that he had paid $235 for it, and it was worth that and he was putting it in at $235 to her. The evidence discloses that she knew nothing about the value of the stock and that she relied upon the representations of Hansen and her brother. She had a right to rely upon tbe representations of Hansen in view of his friendly relations and long acquaintance with her, and she had a right to rely upon the representations of her brother as to the value of the stock.

After the agreement was entered into it was consummated by the conveyance to the defendant Hansen of the premises by Mrs. Gaisser. Hansen delivered to Mrs. Gaisser sixteen shares of Second National Bank stock, sixteen shares of United States Printing Company stock, paid her $1,084 in cash, and executed and delivered his note and mortgage for $4,700 in accordance with the terms of the agreement. She placed the stock in a box of the Second National Bank, and in less than, three weeks from the date of the consummation of the transaction the Second National Bank was known to be hopelessly insolvent, its entire capital stock and the greater part of its surplus wiped out under the orders of the Comptroller of the Currency and an assessment of one hundred cents on the dollar was then levied against the stockholders.

The evidence tends to show that at the time this agreement was entered into, March 27, 1912, this stock was worth about five dollars per share, or the entire sixteen shares were worth about $80. We think the evidence tends to show that Hansen believed the stock to be worth $235 when he bought it and when he put it in to Mrs. Gaisser at that price. The evidence does not disclose that Hansen had any fraudulent intent in representing the stock to be worth $235 per share, but he honestly believed it to be worth that, and it is probable that Oesper, the brother of plaintiff, believed the stock to be worth something in the neighborhood of $235, although he himself had bought the stock some time before at $210. The evidence discloses that Oesper was anxious to consummate this sale. He was to get a commission from his sister on the sale. He was on friendly terms with Hansen and anxious to please him.

As soon as the plaintiff discovered that the stock was practically worthless, she tendered it back, together with the United States Printing Company stock and the cash she had received and the note and mortgage, and offered to cancel the mortgage, and she also asked for a reconveyance of the real estate. In other words, she rescinded the contract in so far as she could, as promptly as it could be done after the discovery of the fact that the Second National Bank stock was almost valueless. Hansen having refused to make a reconveyance, this action was brought praying for a recission of the contract and a reconveyance of the real estate.

We shall not undertake to analyze the evidence but the statement above made substantially represents the facts necessary to be set out in the consideration of the legal questions involved.

It is claimed by the plaintiff that the representation by Hansen that the Second National Bank stock was worth $235 is tantamount to a guaranty that the stock was worth that amount; whereas it is claimed by the defendant Hansen that he acted in good faith and without any fraudulent motive or intent, and that he honestly believed the stock to be worth the amount which he said it was worth, and furthermore that it was but an expression of his opinion as to the value of the stock, and therefore the representation did not amount to a guaranty and a rescission should not be awarded.

We are of the opinion that the statement made by Hansen as to the value of the stock was not an expression of an opinion, but was a statement of fact as to the value, and that he must be held to the value which he placed upon this stock. The consequences to Mrs. Gaisser, the plaintiff, were just as disastrous as though Mr. Hansen had knowingly made a false statement as to the value of the stock. Her loss was just as great as though he had falsely and fraudulently represented the stock to be of the value of $235. He had no right to make a representation of this character to her, unless he knew the stock to be of the value which he put upon it. As was said by Judge Cooley in the ease of Converse v. Blumrich, 14 Mich. 109, 123 [90 Am. Dec. 230]:

"The courts must look at the effect of untrue statements upon the person to whom they are made, rather than to the corrupt motive of the one making them. If one obtains the property of another by means of untrue statements, though in ignorance of their falsity, he must be held responsible as for a legal fraud.” See also Holcombe v. Noble, 69 Mich. 396 [37 N. W. Rep. 479],

In Mulvey v. King, 39 Ohio St. 491, which was an action at law and not one in equity,.the court on page 494 employs this language:

“It may be considered- as well settled in this state, by the cases above cited” Taylor v. Leith, 26 Ohio St. 428; Aetna Ins. Co. v. Reed, 33 Ohio St. 283; Allen v. Shackelton, 15 Ohio St. 145, “that an action for damages caused by misrepresentation can not ordinarily be maintained, without proof of actual fraud, or such gross negligence as amounts to fraud. When, however, a person claims the benefit of a contract into which he has induced another to enter by means of misrepresentations, however honestly made, the same principles can not be applied. It is then only necessary to prove that the representation was material and substantial, affecting the identity, value or character of the subject-matter of the contract, that it was false, that the other party had a right to reply upon it, and that he was induced by it to make the contract, in order to entitle him to relief either by rescission of the contract or by recoupment in a suit brought to enforce it. ”

Now in the case at bar the defendant Hansen is seeking to hold the benefit of a contract entered into between himself and Mrs. Gaisser. This is an action in equity, and whatever may be the rule at law with reference to actual fraud, we apprehend that it will not be denied that in equity it is not necessary that the fraudulent intent be- shown in order that a court of equity may grant relief to a complainant against consequences which result from a misstatement of fact by a person who secures a benefit or advantage thereby. In this case the representation as to the value of this stock was material. It is not probable that Mrs. Gaisser would have sold her property for $3,760 less than $11,000. It is not probable that she would have taken the stock of the Second National Bank at $235 per share had she known that it was practically worthless. So there can be no question but that it was a material representation, nor can there be any question but that it was false, although not known to be false by Mr. Hansen. Nor can it be questioned tha,t Mrs. Gaisser relied upon the representation made by Hansen; and from her acquaintance with Hansen and her relations towards him she had a right to rely upon his representations. So that we think the rule laid down in Mulvey v. King, supra, is not only a sound rule as applied to a legal ease, but also a much sounder rule when applied to a case in- equity. <

It can not be claimed, we think, that Hansen’s statement as to the value of this stock was an expression of opinion. He did not put it as an expression of opinion, but as a statement of fact, and it will be found that the cases in which a person is permitted to express an opinion and not to be held liable, present quite a different situation from the case in which a person makes a representation of fact on which another relies and has a right to rely and which is material to the transaction.

We have come to the conclusion in this case that if the parties can be put in statu quo this court should grant a rescission of this contract, but we are not prepared to say that the parties can be restored to the situation in which they were at the time this contract was executed. It is quite probable that the value of this real estate has increased since the sale was made, and a rescission of this contract would give the benefits of this enhanced value to the plaintiff and deprive the defendant of this advantage when he had no intention of committing a wrong. We are of the opinion,,therefore, that the defendant should be given the option of accepting a decree of rescission, or a decree allowing the plaintiff compensation for the loss which she has sustained on the Second National Bank stock.

There is evidence tending to show that the real value of this stock on March 27, 1912, the time this contract was entered into, was about five dollars per share according to the books. This is the testimony of Mr. Gutting, the assistant cashier of the bank. We are not speaking now of the market valué of the stock .because there is no evidence of sales having been made about the time this contract was entered into. Furthermore, it is not a question of what was the market value of the stock under the representations made, but wdiat was the real value of this stock. Mrs. Gaisser had a right to expect $11,000 or the equivalent thereof for her property. She thought she was getting the equivalent of $11,000, and she was justified in believing this on the representations of Mr. Hansen. We find, therefore, that in this ease there should be a rescission of this contract, unless the defendant Hansen is willing to compensate Mrs. Gaisser for the loss she has sustained because of his misrepresentation as to the value of the Second National Bank stock. If Hansen is willing to compensate her to the extent of $3,680, which is the difference between the actual value of the stock and the value as represented by Hansen, a decree may be entered accordingly; otherwise, a decree may be entered rescinding the contract.

We are of the opinion that this course is warranted by this court sitting as a court of chancery, under the authorities. Pomeroy, Eq. Jurisp. (3 ed.) Sec. 237, p. 342:

“If a court of equity obtains jurisdiction of a suit for the purpose of granting some distinctly equitable relief, such, for example, as the specific performance of a contract, or the rescission or cancellation of some instrument, and it appears from, facts disclosed on the hearing, but not known to the plaintiff when he brought his suit, that the special relief prayed for has become impracticable, and the plaintiff is entitled to the only alternative relief possible of damages, the court then may and generally will, instead of compelling the plaintiff to incur the double expense and trouble of an action at law, retain the cause, decide all the issues involved, and decree the payment of mere compensatory damages.”

In 24 Am. & Eng, Enc. Law (2 ed.) 616, we find a correct statement of the law as we understand it:

‘ ‘ Although in a given case a court of equity refuses to grant rescission of a contract procured by fraud, because this relief would, under the circumstances, be inequitable, still as the court has jurisdiction of the cause for the purpose of granting purely equitable relief, it may proceed to do complete justice between the parties by making such a decree as the merits of the ease will warrant, and thus it may give damages for the fraud, though this relief is purely legal.”

In support of this proposition see the following cases: Betts v. Gunn, 31 Ala. 219; Shaeffer v. Sleade, 7 Blackf. (Ind.) 184; Carroll v. Rice, Walk. Ch. (Mich.) 374; Holland v. Anderson, 38 Mo. 55; Grymes v. Sanders, 93 U. S. 55 [23 L. Ed. 798]; Thorne v. French, 4 Misc. 436 [24 N. Y. Supp. 694]; McDaniel v. Lee, 37 Mo. 204.

A decree may be entered in. this ease in accordance with these conclusions..

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


author: SHIELDS, J.

text:
    RAILROADS.
    [Ashland (5th) Court of Appeals,
    January Term, 1914.]
    Powell, Voorhees and Shields, JJ.

      Baltimore & Ohio Ry. v. George E. Koons, Admr.
    Failure of Driver Approaching Crossing to Act upon Seeing Possible Danger not Contributory Negligence.
    A special finding- by the jury that the decedent could have seen as far as a point named by them in the direction from which the locomotive which struck and killed him was approaching, is not equivalent to a finding of contributory negligence or inconsistent with a general verdict in favor of the administrator, inasmuch as he may have looked but been misled as to the speed of the locomotive or the absence of danger signals upon which he had a right to rely and thus been led to believe he could cross the track in safety.
    Error.

      Arrel, Wilson, Harrington & DeFord and C. P. Winbigler, for plaintiff in error.

      E. M. Palmer and L. J. Myers, for defendant in error.

      Motion to certify record overruled, Baltimore & O. Ry. v. Koons, 59 Bull. 206.

   SHIELDS, J.

In tbis proceeding a reversal is sought of the judgment rendered by the court of common pleas of Ashland county, Ohio, upon a verdict for the defendant in error in an action for damages for personal injuries alleged to have been sustained by one Will A. Koons at a public highway crossing in the village of Sullivan in said county, which said injuries so received by him resulted in his death, and which were caused by the alleged neglect of the plaintiff in error.

Tn his second amended petition in the court below, it was alleged by the plaintiff that on January 23, 1908, the defendant company maintained three tracks that crossed a public highway in said village, one of which was used as a main line, one a side track and the other a spur track, all passing over said highway east and west, and which highway was a much traveled thoroughfare running north and south through said village, that on said date the defendant company maintained a depot building located a few rods east of said crossing, and a water tank and watering station east of and close to said depot; that on said date the said Will A. Koons was driving with a team of horses and wagon along said public highway approaching said crossing from the north; that at the point where said highway crossed said tracks the view to the east side of said highway was obstructed by box cars standing on said spur track, and by other obstructions on defendant’s right of way on the north side of said tracks, east of said crossing, all of which was well known to the defendant; that at the time said Koons approached said crossing the weather was dark and cloudy, the wind was blowing hard from the northwest and snow was falling in large quantities and blown in gusts by the wind, all of which tended to obstruct his view as he approached said crossing; that as he drove toward and upon said crossing not knowing of the approach of any train, the defendant ran one of its locomotives with a car attached thereto upon and over said main track at a very high and dangerous rate of speed, omitting to give any signals by bell or whistle or otherwise of the approach of said locomotive and car over said crossing, and failed to maintain a headlight on said locomotive or other light or signal to indicate its approach, and as the said Koons drove on to said crossing, without fault or neglect on his part, the defendant carelessly and negligently ran said locomotive against him and his wagon and violently struck and killed him and demolished his wagon; that the defendant failed to take any precautions whatever for the safety of said Koons and might have avoided striking and killing him by the exercise of ordinary care. Damages in the sum of $10,000 were prayed for.

In its answer the defendant set up two defenses, one being in effect a general denial of the negligence charged, and the other being a charge of contributory negligence upon the part of said Koons.

The plaintiff’s reply contained a general denial of the contributory negligence charged.

A verdict of $800 was awarded the plaintiff, and by a petition in error filed the case is brought before us for review.

Said petition in error contains numerous assignments of error, but the plaintiff in error specially urges upon the attention of this court what is designated therein as the ninth assignment of error, namely:

‘ ‘ That the general verdict returned by the jury is clearly inconsistent with the special findings of the jury and contrary to the clear weight of the evidence and the law of the case. ’ ’

It appears that said cause was tried at a former term of said common pleas court and the judgment of said court was reversed by the circuit court and on being taken to the Supreme Court on error it was by said court remanded for a new trial, which resulted as hereinbefore indicated. Upon the hearing in this court it was stated by counsel for the plaintiff in error that the evidence upon the last trial was substantially the same as upon the first trial, hence the finding made by the circuit court renders it unnecessary to consider the errors assigned here at any length, except as to the legal effect of the special finding of the jury.

At the close of the testimony of the plaintiff below a motion was made that the trial judge instruct the jury to return a verdict for the defendant below which was overruled, and said motion was renewed at the close of all the testimony in the case which was likewise overruled, and in overruling said motions it is contended that said court erred. Under the evidence contained in the bill of exceptions, we are of the opinion that the action of the court below in this respect was proper and furnishes no ground of reversible error.

At the request of the defendant below, said court submitted to the jury for answer two interrogatories, to be answered and returned as answered, with the general verdict. Such interrogatories and answers were as follows:

First. “For what distance could Koons have seen engine 2626 approaching the crossing from, the east if he had exercised ordinary care in looking in that direction as he drove from the spur track on to the side track?” Answer. “About to the car house. ’ ’

Second. “Was the crossing signal by a whistle given as the train approached the car house from the east?” Answer. “We think not. ’ ’

The defendant below moved said court for a judgment in its favor on the special verdict and finding of the jury, notwithstanding the general verdict, which was overruled, and judgment was entered on the general verdict returned by the jury. The plaintiff in error contends that by this special finding of the jury the said Koons was guilty of contributory negligence and that the defendant in error was thereby precluded from a recovery in this action. In other words, that this finding of the jury was irreconcilably inconsistent with its general verdict, and that therefore the latter can not stand but must give way to this special finding.

Section 11463 G-. C., provides:

“When either party requests it, the court shall instruct the jurors, if they render a general verdict, specially to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon. The verdict and finding must be entered on the journal and filed with the clerk. ’ ’ .

Section 11464 G-. C., provides:

“When a special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly.”

In Davis v. Turner, 69 Ohio St. 101 [68 N. E. Rep. 819], it is held:

“To be inconsistent with the general verdict as contemplated by Sec. 5202 R. S., it must appear that the special findings are irreconcilable, in a legal sense, with the general verdict; and to justify the court in setting aside or disregarding the general verdict on the ground that it is inconsistent with such special findings, the conflict must be clear and irreconcilable. ’ ’

While we have read the bill of exceptions in this case we do not feel called upon to enter upon a lengthy discussion of the evidence contained therein in passing upon the question made, namely., the legal effect of this special finding of the jury as bearing upon the question of the alleged contributory negligence of the deceased.

Is the answer to the first interrogatory clearly and irreconcilably in conflict with the general verdict? We think it is not. In Cleveland, C. & C. Ry. v. Crawford, 24 Ohio St. 631, it is held that:

“Ordinary prudence requires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a known railroad crossing, should use them for the purpose of discovering and avoiding danger from an approaching train; and the omission to do so, without a reasonable excuse therefor, is negligence, and will defeat an action by such person for an injury to which such negligence contributed. But the omission to use such precautions, by a person injured, will not defeat his action, if, by due diligence in their use, the consequence of the defendant’s negligence would not have been avoided. Nor will the failure to use such precautions be regarded as negligence on the part of the plaintiff, if, under all the circumstances of the case, a person of ordinary care and prudence would be justified in omitting to use them.’’

In commenting upon the foregoing decision the judge announcing the opinion in the case of Steubenville & W. Trac. Co. v. Brandon, 87 Ohio St. 187, 194 [100 N. E. Rep. 325], says:

‘ ‘ The effect of the entire holding is that the omission to look is not negligence in all cases and as matter of law, and it remains the law of Ohio today, though there are a number of decisions of courts of other states, notably Massachusetts, which appear to hold a more rigid rule. It is the Ohio rule respecting the crossing of a steam road, and, for a much stronger reason, the rule as to crossing a street railway track. ’ ’

Did the deceased look to see if a train was approaching before attempting to go upon and over this crossing? The testimony of several witnesses tends to show that he did, that is, he looked to the east and in the direction that the train was approaching before going upon the main track. True he may not have been able to see for any considerable distance east of the crossing before reaching the main track on account of the box cars standing on the spur track as claimed, but that he was looking east as he drove upon the main track is evident. The jury found that he so looked and could see the train approaching as far east from the crossing as the ear house, and it is argued that this finding shows such contributory negligence upon his part as to defeat the right of his administrator to recover. But does the answer to said interrogatory clearly and unmistakably show that he was guilty of contributory negligence? While the answer shows that the deceased could see for the distance mentioned, it does not state or even imply that he did not look. Aside from the testimony referred to in this respect, he may have looked and listened before attempting to pass over the crossing, and the presumption is that he did.

In the case of Interurban Ry. & Term. Co. v. Hines, 32 O. C. C. 355, 356 (13 N. S. 168), which was a case involving the alleged running of a street car at a street crossing resulting in the death of decedent, it was held that:

“As to whether or not the decedent stopped, looked and listened before attempting to cross the track of the railway company, we are not prepared to say but that she did, and she at least had the right to assume that the plaintiff company in the handling of its cars would exercise ordinary care towards her at this particular time and place under all circumstances. But if the evidence would not justify such an inference and was wholly lacking upon this point, there is the legal presumption in her favor that she did look and listen.” Baltimore & P. Ry. v. Landrigan, 191 U. S. 461 [24 Sup. Ct. Rep. 137; 48 L. Ed. 262],

He may also have been misled by not hearing any signals or warnings given of the approach of the locomotive which he had a right to anticipate would be given, and supposing and believing that he could cross the track in safety attempted to so cross and was injured. Tinder such circumstances, could it be claimed that he was guilty of such contributory negligence as would defeat an action to recover? Under the holding in Schweinfurth v. Railway, 60 Ohio St. 215 [54 N. E. Rep. 89], we think he ought not be deprived of such right. Whatever the conduct of the deceased may have been, was it not a question for the jury to determine what a reasonably prudent man would and should have done under like circumstances? At best it was a question on which different minds might honestly differ, and it was therefore for the jury to determine whether or not he was guilty of contributory negligence. Lake Shore & M. S. Ry. v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403]; Cincinnati St. Ry. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276]; Steubenville & W. Trac. Co. v. Brandon, 87 Ohio St. 187 [100 N. E. Rep. 325],

The finding by the jury was not one of contributory negligence but that the deceased could have seen east of the crossing for a distance as far as the car house. This was a finding of fact — one growing out of a logical rather than a legal deduction from facts. Negligence and contributory negligence are mixed questions of law and fact to be determined by the jury, under proper instructions, so in this case we think that the effect of the special finding of the jury was one of both law and fact, not of law only, and that such finding is not conclusive of the right of the administrator to recover herein. The contention of the plaintiff in error in this respect therefore is not sustained.

It is also urged that the verdict of the jury is clearly against the weight of the evidence and contrary to law. An examination of the bill of exceptions shows no little conflict of evidence given by the respective parties hereto on matters material to the several issues involved, but aside from the former judgment of the circuit court in this respect, the judgment of this court is that the verdict of the jury is sustained by the evidence and that the same is not manifestly against the weight of the evidence or contrary to law.

We have also examined the bill of exceptions with reference to the other errors assigned in said petition in error and we find no such errors in the record as require a reversal of the judgment of the court below.

The judgment of the court of common pleas will therefore be affirmed, with costs. Exceptions.

Voorhees and Powell, JJ., concur.


author: JONES, O. B., J. Jones, E. H., J.,

text:
    WILLS.
    [Hamilton (1st) Court of Appeals,
    May 24, 1915.]
    Jones, Jones and Gorman, JJ.

      William Sadler et al, Exrs. v. Catharine Sadler et al.
    Construction of Words "All the Rest, Residue and Remainder” does not Revoke Devise of Realty.
    The provision of a codicil that “all the rest, residue and remainder of my estate I desire to he converted into money by my executors,” does not by implication revoke a clear and certain devise of real estate contained in another item of the will, but refers to the real estate not covered by such item and remaining to be disposed of.
    Error.

      J. T. Bhyno, for executors and for Mary Sadler.

      DeCamp & Sutphin and Frank H. Williams, for Catharine Sadler.

      Motion to certify record overruled, Sadler v. Sadler, 60 Bull. 432.

   JONES, O. B., J.

This is an action brought by the executors at the written request of Catharine Sadler, a legatee, to secure a construction by the court of the will and codicils thereto of Abigail Sadler, deceased, under the provisions of Sees. 10857 and 10858 G-. C.

The will and codicils, omitting the introduction, testatum and attestation clauses, are as follows:

Will dated September 27, 1906.

'‘First I will and direct that all just debts that may exist against me at my decease may be settled.
‘ ‘ Second. To my daughter-in-law, Mary Sadler, wife of my son, William Sadler, I give and bequeath all my personal property of every kind.
“Third. To my daughter-in-law, Mary Sadler, wife of my son, William Sadler, I give, devise and bequeath the farm on which she and my son, William Sadler, and family now reside, being all that certain lot of ground lying next to and on the east side of the Pippin Road, Colerain Township, Hamilton Connty, Ohio, containing about twenty-one 75-100 (21.75) acres, more or less, to her, her heirs and assigns forever.
“I also give, devise and bequeath to my said daughter-in-law, Mary Sadler, wife of my son, William Sadler, the following real estate, to-wit:” (description of 10 and 75-100 acres of land on the west side of Pippin Road omitted).
“Fourth. All the remainder of my real estate, wheresoever the same may be located or situated, I give, devise and bequeath to my son, Charles W. Sadler, for and during his natural life.
“Fifth. Upon the death of my son, Charles W. Sadler, I give, devise and bequeath the remainder of the realty conveyed in item four, to my granddaughter, Edith Sadler, now intermarried with one Oscar Lyman, to my granddaughter, Mabel Sadler, to my granddaughter, Gladys Sadler and to my grandson Chester Sadler, share and share alike, to them, their heirs and assigns forever.
‘ ‘ Sixth. I hereby nominate and ask the court to appoint my son, William Sadler, and my attorney, J. T. Rhyno, joint executors of this my last will and testament.
“I hereby revoke all former wills by me made.”

First codicil, dated August 31, 1910.

“Whereas, I, Abigail Sadler of Colerain Township, Hamilton County, Ohio, did on the 27th day of September, A. D. 1906, make my last will and testament of that date, do hereby declare this to be a codicil to the same.
‘ ‘ I hereby ratify and confirm said will in every respect, save so far as any part of it is inconsistent with this codicil.
“To my husband David Sadler I give, devise and bequeath in lieu of dower all my real estate wheresoever the same may be located or situated, to have and to hold for and during his natural life.
“I hereby revoke item fifth of this my last will and testament.
“Upon the death of my son Charles W. Sadler, I desire that the real estate so devised to him in item four of my last will and testament shall be converted into money by my executors, who also shall act as joint trustees for this purpose, and out of the proceeds of said sale, I give and bequeath to my granddaughter Mabel Sadler one undivided one-third interest, to my granddaughter Gladys Sadler one undivided one-third interest and to my grandson Chester Sadler one undivided one-third interest, to them, their heirs and assigns forever.”

Second codicil, dated March 18, 1911.

“Whereas, I Abigail Sadler, of Colerain Township, Hamilton County, Ohio, did on the 27th day of September, A. D. 1906, make my last will and testament of that date, do hereby, declare this to be a codicil to the same.
“I hereby ratify and confirm said will in every respeet save so far as any part of it is inconsistent with this codicil. I hereby revoke the codicil to my will, said codicil made on the 81st day of August, A. D. 1910.
“I hereby revoke item fourth of this my last will and testament.
“I hereby revoke item fifth of this my last will and testament.
“To my husband, David Sadler, I give, devise and bequeath in lieu of dower all my real estate, wheresoever the same may be located or situated, to have and to hold for and during his natural life.
“All the rest, residue and remainder of my real estate, I desire .to be converted into money by my executors and after the payment of all my debts, funeral expenses and costs of administration, I give and bequeath to my grandson, David Sadler and to Catharine Sadler, the wife of my son Chas. Sadler, share and share alike, to them, their heirs and assigns forever. ’ ’

The question to be determined is what real estate was intended to be included by the language contained in the last paragraph of the second codicil in the following words -.

“All the rest, residue and remainder of my real estate, I desire to be converted into money by my executors,” etc.

It is contended on behalf of Catharine Sadler that this language includes all of the real estate of which testatrix died seized, subject only to the life estate therein devised to her husband, David Sadler, and that in effect it operated as an implied revocation of item third of the original will which devised two tracts, aggregating more than thirty-two acres to Mary Sadler.

On the other hand, the executors and Mary Sadler insist that item third remains in full force unrevoked, and that the clause in question is a residuary clause and applies to and includes only that portion of testator’s real estate which remains after taking out the devise to Mary Sadler covered by item third, and the life estate given to the husband.

Abigail Sadler died August 6, 1912, at the age of 85 years, leaving her husband, David Sadler, 97 years of age, who has died since the hearing of this case in the common pleas court. They had two sons, William and Charles W. William lived with his wife, Mary, on the farm devised to her in item third of the will, and testator and her husband lived with them in the same house. William and Mary have four sons, all of whom are married, David, Jr., Clarence, Albert and Joseph, and William has a married daughter whose deceased mother was his first wife. Charles W. Sadler and his wife, Catharine, have four children, whose names are given in item fifth of the will. About 1909, Charles W. Sadler, being in financial difficulties, left his wife and family and has not been heard from since.

Plausible arguments are made by counsel on each side why the will and codicil should be construed as they desire, because of the personal relations between testator and her respective daughters-in-law, and counsel urge considerations that -should move her to provide for them, and in that way for their families. It is argued on the part of Catharine that the original will practically divided the two farms into equal shares, giving one to each branch of the family; that the first codicil did not change this division as between the two families, and therefore a construction of the second codicil which would result in a practical division of the bulk of the proceeds of the property between Catharine, wife of Charles, representing his branch, and David, Jr., oldest son of Mary and William, representing that branch, would be in keeping with this idea of substantial equality between the two branches, and must be considered as the real intention of the testator.

On tbe part of Mary, it is argued that because she and ber husband and family remained on the farm and took care of testator and her husband, who lived with them, and looked after their property, and David, Jr., was especially attentive in nursing and looking after the wants of his grandparents, that the construction sought on her behalf should obtain.

Such arguments can be of little avail. It is not for the court to consider reasons why testator might wish to favor one of her family or refrain from giving to another. She had the right to dispose of her property by her will, as she saw fit under the law, without regard to moral obligations and without reference to the needs or merits of the several natural objects of her bounty. It is the duty of the court to determine her intention from the language she has seen fit to use in the will, not to speculate from surrounding circumstances as to what her real intentions might have been.

The law of Ohio as to the construction of wills has been clearly stated in numerous eases by our Supreme Court, and in none more so than in Townsend v. Townsend, 25 Ohio St. 477, the syllabus of which is as follows:

“1. In a construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator.
“2. Such intention must be ascertained from the words contained in the will.
“3. The words contained in the will, if technical, must be taken in their téchnieal sense, and if not technical, in their ordinary sense, unless it appear from the context that they were used by the testator in some secondary sense.
“4. All the parts of the will must be construed together, and effect, if possible, given to every word contained in it.
“5. If a dispute arises as to the identity of any person or thing named in the will, extrinsic facts may be resorted to, in so far as they can be made ancillary to the right interpretation of the testator’s words, but for no other purpose.”

In Collier v. Collier, 3 Ohio St. 369, the law is thus stated:

“A will and codicil are to be taken and construed together, as parts of one and the same instrument, and the intent of the testator gathered from the whole.
“A codicil will not be held to revoke the disposition of a will, further than is clearly expressed or necessarily to be inferred from it.”

The will and the second codicil must therefore be considered together as though they were parts of one and the same entire instrument.

The first codicil having been entirely revoked by the second, it will only be considered, if necessary, for the purpose of aiding to determine the meaning of the language used in the will and the second codicil.

Items fourth and fifth of the will are both expressly revoked by the second codicil. These are the only items expressly revoked. The other portions of the will all remain operative just as they originally stood, except where modified in some respect by the codicil, unless the language used in the will.should compel the court to find a revocation by implication. If the will and codicil can be construed together giving force and effect to every part, they must be so construed that all may stand, and no part will be invalidated or set aside except by clear and decisive terms.

As was stated in Parker v. Parker, 13 Ohio St. 95, at page 110, quoting from Thornhill v. Hull:

“ ‘It is a rule of the courts, in construing written instruments, that when an interest is given or an estate conveyed in one’ clause of the instrument, in clear and decisive terms, such interest or estate can not be taken away or cut down by raising a doubt, upon the extent and meaning and application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving that interest or estate. ’ In pronouncing the opinion in that case the lord chancellor Brougham said: ‘ I hold it to be a rule that admits of no exception, in the construction of written instruments, that where one interest is given, where one estate is conveyed, where one benefit is bestowed in one part of the instrument, by terms clear, unambiguous, liable to no doubt, clouded by no obscurity, by terms upon wbicb, if they stood alone, no man breathing, be he lawyer, or be he layman, could entertain a doubt — in order to reverse that opinion, to which the terms would of themselves and standing alone, have led, it is not sufficient that you should raise a mist; it is not sufficient that you should create a doubt; it is not sufficient that you should show a possibility; it is not even sufficient that you should deal in probabilities; but you must show something in another part of that instrument, which is as decisive the one way as the other terms were decisive the other way; and that the interest first given can not be taken away either by taciturn or by dtibium or by possibile, or even by prdbabile, but that it must be taken away by expressum et cerium”

The first item of the will stands subject only to the further direction that the debts be paid out of the proceeds of the real estate, provided for in the last paragraph of the second codicil. The second item is not changed, though it is agreed that there is practically no personal estate. Likewise it is agreed that there is no change in the sixth item appointing the executors.

The third item is clear and decisive. There can be no mistaking its purpose to devise two specific parcels out of the real estate in fee simple to Mary Sadler. There is, however, no question that this was modified by the grant of a life estate in all the real estate to David Sadler, as made in the next to the last paragraph of the second codicil. This life estate has now been terminated by the death of David Sadler pending these proceedings. But it is claimed that the entire item is revoked by the final paragraph of the second codicil, because by the words “All the rest, residue and remainder of my real estate” — there directed to be sold — it is intended to include all the real estate owned by the testator at the time of her death, subject only to the life estate of her husband.

To require this construction it is argued that the word “remainder” is used in its technical sense of a remainder of an estate in land depending upon a particular prior estate created at the same time and by the same instrument and limited to arise immediately on the determination of that estate; that because the will and codicils were drawn by a lawyer this technical meaning must be supposed to bave been intended, particularly so, because the paragraph in which the word is found follows immediately that in which the life estate is given to the husband, and an interest in remainder in land is most frequently made to take effect after a life estate.

If this meaning had been intended, in the nice use of language by one learned in the law, the words “all the rest and residue” would hardly have been used in connection with the word “remainder,” which would have expressed the intention, alone. And he would have said “the remainder in my real estate,” not “of my real estate.”

The words all the “rest, residue and remainder” are general words commonly employed in a residuary clause of a will, to embrace every species of property, 40 Cyc. 1567. The three words, “rest,” “residue” and “remainder” are given as synonyms in the Century and other dictionaries, and each is defined as being “that which remains after a part is taken, separated, removed or dealt with in some other way.” The Century Dictionary further states: “Rest is the most general term; it may represent a large or small part. Remainder and residue generally represent a comparatively small part, and remnant a part not only very small but of little or no account. ’ ’ The use of these three words “all the rest, residue and remainder of my estate” must be deemed to provide an ordinary residue clause for the disposition of so much of her real estate as had not been disposed of by other parts of the will and codicil.

It is a general rule where the same words are used in different parts of a will, relating to the same subject-matter, they must be presumed to be used always in the same sense, if the context of the will does not show a contrary intention, 40 Cyc. 1402. The word “remainder” is used in the will, both in the fourth and in the fifth items, and it is not used in either in the technical sense claimed for it in the codicil, by counsel for appellants. They concede this as to its use in item fourth, but they claim that its use is technical in item fifth. With this we do not agree. The words “the remainder of the realty conveyed” used in the fifth item, devised “upon the death of my son,” surely mean the same property as “all the remainder of my real estate ’ ’ used in the fourth item. The word ‘ ‘ remainder ’ ’ is used in its ordinary and not in its technical sense in both these items. And applying the general rule, it must be considered to have been used in its ordinary and not in its technical sense in the last codicil, and more especially so, as before stated, because it is there coupled with “rest” and “residue.”

Counsel for appellants rely upon the portion of the clause giving the life estate to the husband in the second codicil, in that it immediately precedes the residuary clause and, as they eon tend, aids the construction sought by them. It will be observed that this clause giving the life estate to the husband is idéntica'! with a similar clause in the first codicil, and that it was there followed by a changed disposition of the real estate devised for life to Charles, providing for its sale, and that the real estate there ordered sold is the same real estate which is ordered sold by the second codicil, if it is so construed as to permit item third of the will to stand, thus evidencing a desire to change her will by codicils only as to that part of the real estate originally left to Charles.

The testator in her last codicil has expressly ratified and confirmed said will in every respect save so far as any part is inconsistent with the codicil. She proceeded to revoke items fourth and fifth which dealt with the real estate left originally to Charles and his family, and revoked the first codicil, which had made a change in the same property, and without revoking or changing in any way the third item, which gave the other part of the real estate to the wife of William, she proceeded to order the rest of the real estate converted into money. Can it be said if she intended to include all of her real estate she would not have expressly revoked item third and provided for the sale of all her real estate in clearer terms than “all the rest, residue and remainder of my real estate ? ’ ’ The use of this residuary phrase implies that a portion has been previously disposed of, and with the clear, decisive and important language of item third in full force, unrevoked, and the declaration ratifying and confirming the will, it can not be said that the gift of the life estate to her husband was alone taken out to leave this residuary estate, or that any revocation of item third can be implied.

Counsel for Catharine Sadler, in argument for the construction they seek, rely largely upon the case of Newcomb v. Webster, 113 N. Y. 191 [21 N. E. Rep. 77], but in the opinion of the majority of the court that case is not controlling. In that case, as said in the opinion of the court, the testatrix “so dealt with the principal real estate described in it as by sale to revoke the gifts mentioned in the second and fourth clauses. She also acquired real estate and entertained a desire that beneficiaries other than those first selected should share in her bounty. These circumstances would naturally require a redistribution of. her estate, and in view of them, we think it clear that the testatrix intended to make new disposition of her entire property. Such is, at any rate, the effect of the language employed by her.”

In that case also, as the court stated, “there was an express revocation of so much of - the will as is inconsistent with the provisions of the codicil,” while in the ease at bar the will is expressly ratified and confirmed save so far as any part of it was inconsistent with the codicil. That case also, on page 197 of the opinion, construes the word “remainder” in the phrase “all the rest, residue and remainder” as we have construed it.

In the ease of Griggs v. Griggs, 80 App. Div. 339 [80 N. Y. Supp. 724], affirmed, Griggs v. Griggs, 178 N. Y. 570 [70 N. E. Rep. 1099], where the will and the language employed are more similar to the case before us than in Newcomb v. Webster, supra, the court distinguished that case and construed the will before it as the majority of the court construe this one.

Numerous authorities have been collated in the exhaustive briefs of counsel, which might be discussed if time and space permitted, but it is sufficient to say that their careful considera-. tion convinces us that the will and codicil should be construed to give full force and effect to item third in the devise there contained to Mary Sadler, and that the residue of the real estate should be sold by the executors under the provisions of the last paragraph of the second codicil, and a decree may be taken accordingly.

Gorman, J., concurs.

Jones, E. H., J.,

dissenting.

The second codicil disposes of all the real estate owned by testatrix. This is my understanding of the language there used.

The devise to Mary Sadler made by item third of the will is therefore inconsistent with the codicil and is revoked by it. This construction is supported by the court of appeals of New York in Newcomb v. Webster, supra; in which the precise question before this court was determined.