author: JONES (E. H.), P. J.

text:
    MUNICIPAL CORPORATION — VAGRANTS.
    [Hamilton (1st) Court of Appeals,
    May 10, 1915.]
    Jones, Jones and Gorman, JJ.
    In re Baldridge (Bader, Superintendent v. McCartin).
    Ordinance Denominating Vagrants as Loiterers .Not Invalidated Thereby.
    Wkile cities are without authority to punish loiterers as such, They have ample authority to punish vagrants, and an ordinance passed in the exercise of such power is not invalid because the word “loitering” is used in defining the offense, and in creating the class of vagrants contemplated.
    Error.

      Walter M. Schoenle, City Sol., and E. S. Morrissey, Pros. Atty. of municipal court, for plaintiff in error, Ferd Bader, superintendent of the Cincinnati workhouse.

      Jas. J. McCartin, in propria persona and for John Bald-ridge.
   JONES (E. H.), P. J.

John Baldridge was convicted of a violation of See. 907 of the ordinances of Cincinnati, which we reproduce below.

Baldridge was discharged from prison by the insolvency court on a writ of habeas corpus, on the ground that said ordinance is invalid. In so deciding, it appears that the learned judge felt bound by the decision of the circuit court in Howard, In re, 33 O. C. C. 634 (15 N. S. 171). The court in that case held that the ordinance upon which that prosecution was based was invalid for the reason that the state of Ohio through its general assembly had not delegated to the city the power to pass such an ordinance.

This calls for a comparison of the ordinances to see whether or not the present ordinance bears the infirmity which was pointed out in the ordinance involved in the Howard case. That ordinance reads as follows:

“Section 907. If * * * any person shall be found loitering about any common barroom, dram shop, gambling house or house of ill-fame, or wandering about the streets either by night or day without any lawful means of support,” etc., such person shall be fined, etc.

The agreed statement of facts embodied in the bill of exceptions herein states that Baldridge “was arrested and prosecuted by virtue of See. 907 of the code of ordinances of the city of Cincinnati, passed February 4, 1913, which section reads as follows:

“ ‘Be it ordained by the council of the city of Cincinnati, state of Ohio.
“ ‘Section 1. That Sec. 907 of the code of ordinances be amended to read as follows: Section 907. Loitering — Any person found loitering about any street, alley, avenue, park or public or private place within the city of Cincinnati without legal means of support, who being able to work for the support of himself or herself at honest industry, intentionally lives idly and without endeavoring in good faith to obtain lawful work or employment, shall be deemed a vagrant and, on conviction thereof, shall be fined not less than one or more than fifty ($50) dollars for each offense. ’
“That the said John Baldridge was tried on or about the 23d day of February, 1915, and convicted of said offense.”

Some question was raised in oral argument about the affidavit upon which Baldridge was arrested, and the claim was made that it did not state faetsi sufficient to constitute an offense under the present ordinance.

The papers in the case in the municipal court were not in evidence in this ease. No documents are attached to the bill of exceptions, and it contains copies of none. This case was submitted to the insolvency court on an agreed statement of facts, to which reference has been heretofore made. That statement of facts contains no reference to the affidavit for arrest and it can not be regarded as part of the record in the ease under review.

The record here presents but one question, i. e., the validity of the ordinance of February 4, 1913. It shows that Baldridge was arrested, prosecuted and convicted for its violation. This ordinance defines “vagrancy” and fixes a penalty therefor.

Section 3664 G-. 0., authorizes such legislation by a municipality:

“Section 3664. To provide for the punishment of persons disturbing the good order and quiet of the corporation, by clamor and noise in the night season, by intoxication, drunkenness, fighting, using obscene or profane language in the streets and other public places to the annoyance of the citizens, or otherwise violating the public peace by indecent and disorderly conduct, or by lewd or lascivious behavior. In like manner to provide for the punishment of any vagrant, common street beggar, common prostitute, habitual disturber of the peace, known pickpocket, gambler, burglar, thief, wateh-stuffer, ballgame player, a person who practices any trick, game or device with intent to swindle, a person who abuses his family, and any suspicious' person who can not give a reasonable account of himself. ’ ’

The former ordinance which was declared invalid in Howard, In re, supra, differed from this in that it prohibited “loitering” only, and made no mention of “vagrant” or ‘ ‘vagrancy. ’ ’

While the statute gives authority to punish all vagrants, the ordinance only embraces by its terms a class of vagrants described therein, and in this respect the lawmaking body of the city has not exercised all the power granted to it. By the former ordinance it was sought to punish loiterers1, not all loiterers, but only such as were described therein. But it was invalid, and so decreed, because of the lack of any authority in cities to punish “loiterers,” as such. There is given ample au-thorityto punish vagrants, and this ordinance passed 'n the exercise of such power is hot to be overthrown because the word “loitering” is used in defining the offense, and in creating the class of vagrants contemplated.

Wo are of the opinion, therefore, that the city acted entirely within the power delegated by said Sec. 3664 G. C. in passing the existing ordinance, and that it is a valid enactment.

Judgment reversed.

Jones (O. B.), and Goman, JJ., concur.


source: Caselaw Access Project

author: POWELL, J.

license: Public Domain

text:
    LIMITATIONS — TRESPASS.
    [Stark (5th) Court of Appeals,
    March 24, 1917.]
    Powell, Houck and Shields, JJ.
    Louisville Brick & Tile Co. v. Calmelat et al.
    1, Limitations Run from Act of Permanent Trespass.
    Under the doctrine of permanent trespass or nuisance, for which but one action lies, and for which damages may be awarded In solido, when a man commits an act of trespass upon another’s land, and thereby injures such other at once and to the full extent that such act will ever injure him, he is liable at once for this one act and all its effects; and the time of the statute of limitations runs from the time of such act of trespass.
    2. Limitations Applicable to Continuing Trespass.
    When an owner of land rightly and lawfully does an act entirely on his own land, and by means of such act puts in action, or directs a force against, or upon, or that' affects, another’s land, without such other’s consent or permission, such owner or actor is liable to such other for the damages thereby so caused the latter, and at once the cause of action accrues for such damages; and such force, if so continued, is continued by an act of such owner or actor, and may be regarded as a continuing trespass or nuisance; and each additional damage thereby caused is caused by him and is an additional cause ef action; hence, until such continued trespass or nuisance by adverse use ripens into and becomes a presumptive right and estate in the former, the latter may bring his action.
    Error.

      A. M. McCarty and John C. Welty, for plaintiff in error.

      Hart & Koehler, for defendants in error.
   POWELL, J.

The parties stand in this court in the inverse order to that m which they stood in the court below, the plaintiff in error being defendant in that court, and the defendants in error, plaintiffs. We will refer to them in this opinion in the order in which they stood in the trial court.

The plaintiffs are the owners of a tract of land described in the petition. The defendant is a manufacturer of brick, tile and other clay products. Its plant is located immediately west of the premises of plaintiffs. It owns and operates continuously sixteen tile or brick kilns, and had so owned and operated said plant for more than four years immediately preceding the commencement of this action. In the manufacture of its products it is alleged that large quantities of smoke, soot, cinders and gas constantly emanate from its kilns, and the same are cast over and upon plaintiffs’ said lands, the comfort of plaintiffs interfered with, and said lands depreciated in rental value by reason thereof, to plaintiffs’ damage in the sum of $2,000, for which they ask judgment.

On the trial of the action in the court below, plaintiffs recovered judgment. Defendant seeks a reversal in this court.

The principal contention of the parties is as to the application of the statute of limitations, which is pleaded as a defense. The first kilns of the defendant were built in 1892. There were eight of them. In the year 1900 the plant was destroyed by fire. It was then rebuilt and eight more kilns added, and it has been operated continuously from 1901 until the present time with sixteen kilns. The proper judgment to be rendered depends on the character of the trespass complained of. If it is what, in law, is known as a permanent nuisance, then a cause of action arose in favor of plaintiffs when the first eight kilns were constructed in 1892, and any right of recovery was barred by the statute of limitations at the commencement of this action.

“When a man commits an act of trespass upon another’s land, and thereby injures such other at once and to the full extent that such act will ever injure him, he’is liable at once for this one act and all its effects and the time of the statute of limitations runs from "the time of such act of trespass.” Valley Ry. v. Frame, 43 Ohio St. 623, 625 [4 N. E. 88],

■ ■ This is the doctrine of permanent trespass or nuisance, for which but one action lies, and for which damages may be awarded in solido. It is wholly an action for trespáss. Williams v. Pomeroy Coal Co. 37 Ohio St. 583; Ballantine & Sons v. Public Service Corp. 86 N. J. L. 331 [91 Atl. 95], and Downs v. Greer Beatty Clay Co. 29 O. C. C. 328 (9 N. S. 345).

A private or continuing nuisance is defined to be:

“Anything done to the hurt or annoyance of the lands, tenements or hereditaments of another, and not amounting to a trespass.” 3 Stephen’s Commentaries (1st Ed.) 499, and Goodall v. Crofton, 33 Ohio St. 271 [31 Am. Rep. 535].
“The business of burning brick is a lawful one, and whether or not it is a private nuisance depends upon the circumstances of each particular ease.” Downs v. Clay Co. supra.
“And when the owner of land rightly and lawfully does' an act entirely on- his own land, and by means of such act puts in action, or directs a force against, or upon, or that affects another’s land, without such other’s consent or permission, such owner or actor is liable to such other for the damages thereby so caused the latter, and at once a cause of action accrues for such damages; and such force, if so continued, is continued by the act of such owner and actor, and it may be regarded as a continuing trespass or nuisance; and each additional damage thereby caused is caused by him and is an additional cause of action; and until such continued trespass or nuisance by adverse use ripens into and becomes a presumptive right and estate in the former, the latter may bring his action.” Valley Ry. v. Franz, supra, and Mansfield v. Hunt, 10 Circ. Dec. 567 (19 R. 488).

There are numerous authorities in Ohio and elsewhere supporting the doctrines above laid down. The court in the instant ease is required to decide which of the two Mnds of action is presented by the record.

The petition alleges that the defendant, by reason of the smoke, soot, cinders and gas emitted from defendant’s kilns and cast upon plaintiffs’ lands, '“has injured the vegetation, crops and shrubbery growing upon plaintiffs’ premises” within the four years immediately preceding the commencement of the action.

It further alleges “that by reason of the soot, cinders and offensive gases so cast upon and about the premises of plaintiffs, the comfort of the plaintiffs has been interfered with, said premises rendered uncomfortable for habitation, and greatly depreciated in rental value, for said period of four years, all to the injury and damage of the plaintiffs in the sum of two thousand dollars. ’ ’

The complaint last above quoted is certainly of the character of a permanent trespass) or nuisance, for which but one action for damages can be maintained, and that action is barred by the four-year statute of limitations.

The charge first above quoted for damages to “vegetation, crops and shrubbei’y” of plaintiffs is as plainly a continuing trespass, for which an action will lie, as the other is a permanent trespass', and upou this charge alone the court finds plaintiffs were entitled to recover in this action; and there being no other error prejudicial to the rights of the plaintiff in error complained of, or shown by the record, the court has arrived at the conclusion that said judgment should be affirmed.

Judgment affirmed.

Shields and Houck, JJ., concur.


author: FERNEDING, J.

text:
    jSRROR — PROHIBITION.
    [Franklin (2nd) Court of Appeals,
    March 7, 1916.]
    Kunkle, Allread and Ferneding, J,T.
    Kanawha & M. Ry. v. Common Pleas Court et al.
    1. Writ of Prohibition Based on Want of Jurisdiction, not Substitute for. Error Proceedings.
    The writ of prohibition cannot be made a substitute for error proceedings; to invoke this writ there must be an absolute want of Jurisdiction.

      2. Question of Jurisdiction Determinable by Issue of Fact.-
    Jurisdiction is determined by the pleadings; hence when a petition contains an averment, sufficient to invoke the jurisdiction of the court, the question of jurisdiction must be met by tendering an issue of fact which the court has jurisdiction to decide, the decision of which may be reviewed on error. This rule is not changed by an admission of counsel that the averment in question is not supported by the facts. Under such conditions the remedy is error and not prohibition.
    In PROHIBITION.
    W. N. King and E. J. Jones, for applicant.
   FERNEDING, J.

An ex parte application is made for a writ of prohibition against further proceedings in the case of Clarence C. Caseboli against the applicant in a proceeding pending in the common pleas of Franklin county. This writ can not be made a substitute for a proceeding in error. State v. Montgomery Co. Common Pleas, 58 Bull. 224 (decided by the Supreme Court June 3, 1913 and State v. Brough, 94 Ohio St. 115 [113 N. E. 683].

In order to invoke the writ, there must be an absolute want of jurisdiction. Jurisdiction is determined by the pleadings. It is admitted in the ease at bar that the petition contained an averment that the applicant’s railroad extended into Franklin county. This averment was sufficient to invoke the jurisdiction of the common pleas of Franklin county. The case is similar to that of a party brought in from another county because of a joint liability with a party over whom the court has jurisdiction. See Allen v. Miller, 11 Ohio St. 374 .

In such case the question of jurisdiction must be met in that ease by tendering an issue of fact which the court has jurisdiction to decide and the decision may be reviewed on error. We think this rule is not changed by the fact that counsel for the plaintiff in the action in the eourt of common pleas admitted on the hearing of a motion to dismiss for want of jurisdiction that the railway company did- not extend into Franklin county. This admission formed no part of the pleadings and would be merely evidence upon which the court of common pleas might be justified in acting in determining the issue of fact as to jurisdiction.

We have therefore reached the conclusion that the applicant's remedy is error and not prohibition.'

Application refused.

Kunkle and Allread, JJ., concur.


author: JONES (E. H.), J.

text:
    DRAINS AND DITCHES.
    [Clinton (1st) Court of Appeals,
    February 22, 1915.]
    Swing, Jones and Jones, JJ.

       Wilson Twp. (Trus.) v. Gilbert et al.
    1. Request for Tiling Not Necessary, When Township Trustees Proceeding Under Petition Prayihg for Same.
    Under Sec. 6644 G. C., It Is unnecessary, when township trusteed are proceeding under a petition containing an express prayer for the tiling of a ditch, that, one or more of the parties interested should make a written request, at the hearing of the petition, that the tiling be done.
    2. Township Trustee May Petition for Township Ditch in His Capacity of Property Owner.
    There L no inhibition against an owner of real estate filing or joining in a petition to township trustees for an improvement of a ditchi merely because at the time he happens to be a member of the board of township trustees, and the proceedings for such improvement are not invalid where the record shows that such trustee took no part, as trustee, in the proceedings by the board of trustees in relation to the matter, and that all proceedings were conducted by the other members of the board who constituted a quorum and had power to act.
    ERROR.

      Joe T. Dorn, Pros. Atty., P. B, Aldridge and James M. Morton, for plaintiff in error.

      W. I. Stewart and Ha/yes & Uwyes, for defendants in error.

      Motion to certify overruled by Supreme Court April 6, 1915, Gilbert v. Wilson Tp. (Trus.) 60 Bull. 144.

   JONES (E. H.), J.

A petition, in error was filed in this court seeking a reversal of the judgment of the court of common pleas in setting aside the action of the township trustees of Wilson township in certain proceedings had before said trustees for the cleaning, altering and tiling of a certain ditch. . .

This ditch was originally constructed about the year 1903, and the petition filed with the township trustees, upon which the proceedings under review are based, prayed that “you. may establish, deepen, straighten, alter the course of if necessary, and tile with proper underground drain tile that part of the township ditch known as the Aaron Gilbert Ditch petitioned for by Aaron Gilbert and located and established by the trustees of said township about August, 1903, described as follows1:” etc.

It was held by the common pleas court on petition In error that under siich a petition the township trustees had. no authority to order that said ditch or any part thereof be tiled, unless one or more of the parties interested should make a written request, at the hearing of the petition, that tiling be done, in accordance with the terms of Sec. 6614 G. C.

This section has application, as we think, to proceedings in the establishment and construction of a ditch where the petition does not contain an express prayer for tiling. The proceeding under - review, however, was manifestly brought under See. 6644 G. C. which relates to altering, deepening, widening, enlarging, repairing, boxing or tiling a ditch already established and constructed, as was this Gilbert ditch:

“Section 6644. The trustees may cause a ditch, or part thereof, located and constructed „under any law, to be altered, deepened, widened, enlarged, repaired, boxed or tiled, and like proceedings shall be had, so far as applicable, as is required in the location and construction thereof. The expense thereof shall be apportioned as is provided in this title for original construction.”

The petition filed with the trustees, out of which this controversy arose, asks, among other things, that the ditch be tiled'. The transcript of the proceedings before the township trustees shows, by written objections filed and claims of various kinds presented by those interested, that the tiling was- an important part of the improvement under consideration.

It seems to us that it would be a vain thing in such a proceeding to require those desiring an enclosed ditch, or a tiled ditch, to renew this prayer, or to filo any sort of a written requests when the original petition, as we have said, clearly embraced the tiling of the ditch.

Counsel for defendants in error lay stress in their brief upon the fact that Mr. Peele, petitioner for the improvement, was at the time the petition was filed and during the pendency of the proceedings, a member of the board of township trustees, and that by reason of his holding his said position he had no right to file the petition.

The statute provides that a majority of the board of township trustees may act in any matter, and we find no inhibition against an owner of real estate filing or joining in a petition for an improvement of a ditch merely because at that time he happens to hold the office of township trustee or other office. The record shows that he took no part, as trustee, in the proceedings by the board of trustees in relation to this matter, but that all proceedings were conducted by the other members of the hoard, who constituted a quorum and had power to act.

We find that there was error in the judgment of the common pleas court in reversing so much of the proceedings! of the trustees as ordered the ditch to be tiled.

We have examined the other errors assigned in the petition in error filed in the common pleas court, and fail to see where there was any departure from the provisions of the statute in the action of the trustees.

Judgment reversed.

Swing and Jones (0. B.), JJ., concur.


author: JONES, P. J.

text:
    INSURANCE.
    [Hamilton (1st) Court of Appeals,
    April 15, 1918.]
    Jones, Gorman and Hamilton, JJ.
    Hartford Fire Ins. Co. v. Cincinnati Ice Mfg. & Cold Stor. Co.
    1. Policy not Invalidated for Fraud Because Loss by Collapse is Termed Fire Loss.
    Liability under a Are Insurance policy, to which Is attached a “lightning clause” covering a direct loss occasioned by lightning without stating or repeating contract stipulations as to fire thereby as contained In the body of the policy, will not be avoided for fraud and false swearing In that the affidavit for proof of loss Improperly termed the loss "a fire loss,” especially since there was no attempt to mislead or defraud insurer, though the building collapsed during a storm but no combustion occurred and the question at Issue was whether the loss occurred from lightning or wind.
    2. Valued Policy on Ice Plant Includes Cooling Tower.
    The valued policy rule, prescribed by Secs. 9583 and 9584 G. C., is applicable, under a policy covering an Ice making plant, to the cooling tower and the machinery contained therein, where the machinery and buildings are used as an entirety and come within the terms of the valued policy act both as to the amount of damages and pro rating of the loss.
    3. Photographs of Collapsed Buildings to Show Path of Destruction Included Building in Question, Executed.
    Photographs of collapsed buildings which it is claimed were In the path of the storm prevailing at the time plaintiff’s building collapsed, are properly excluded, the buildings shown being located many squares distant from plaintiff’s building and the record fails to show that they were in the path of the particular windstorm which the insurance company claims destroyed plaintiff’s building.
    4. insurance Company Denied Right to Refuse to Name Appraiser.
    An Insurance company improperly refuses to name an appraiser in accordance with the provisions of the policy in suit, when the only reason for so doing is that work has been done in the way of restoring the damaged property.
    6. Finding Wall Destroyed by Lightning not Disturbed.
    If the evidence is conjectural as to whether the collapse of a building was due to the force of the wind or to a bolt of lightning, and an explanation Is offered as to how a bolt of lightning might have damaged a wall and thus caused the collapse without combustion occurring, a finding by the jury to the effect that the fall of the building was due to lightning will not be disturbed by a reviewing court.

      Black, Swing & Black, J. W. Mooney and R. M. Edmonds, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, Osear Stoehr, Galvin & Galvin and J. L. Kohl, for defendant in error.
   JONES, P. J.

This is an action brought by defendant in error, the Cincinnati Ice Mfg. & Cold Storage Co.,- as plaintiff below, against plaintiff in error, the Hartford Fire Insurance Co., as defendant below (which parties will be hereinafter referred to, for convenience, as plaintiff and defendant, respectively), to recover upon four policies of insurance for a loss to the buildings and ice manufacturing machinery of the plaintiff claimed to have been caused by lightning.

■ There is no question but that the cooling-tower situated upon the roof.of the highest building did fall down during a storm, resulting in serious damage and loss to plaintiff. No part of the property, however, was consumed by fire nor so far- as the record shows was combustion started as a result of the lightning. The main contention between the parties is whether the fall of the .cooling-tower and the damage occasioned thereby resulted from lightning or was caused by the severe- windstorm.

■Upon trial to a jury a verdict was rendered in favor of the plaintiff upon which judgment was entered. It is sought in this proceeding to secure a reversal of. that judgment.

The first ground urged for a reversal by plaintiff in error is that defendant in error was chargeable with -fraud and false swearing in the proofs of loss made by it to the insurance company, and .that the court refused to give the insurance company’s special charges 9 and 10 which sought to make void the policy because of such false swearing. • '

The clause of the policy, under-which this defense, is made is as follows:

“This entire policy shall.be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject, thereof; or if -the interest of the insured in the property be not truly stated herein-, or in case of any fraud or false swearing by the insured touching-any matter relating to this - insurance or the subject thereof, whether before or after a loss.” '■ ■

■ Each, of the policies , sued upon insured plaintiff in stated-sums “against all direct loss by fire, except as hereinafter provided” on certain buildings and structures; also upon certain boilers,, .engines, ice machines, machinery, shafting,.- hefting, pulleys, pipes, etc., therein situated, occupied and used in manufacturing ice and in refrigerating their cold storage rooms.

It is stipulated in a printed form in the body of the policies ‘ ‘ that the company shall" not be liable for loss caused ■ directly or indirectly- by invasion,” etc.; ‘‘nr (unless-fire ensues, and, in that;evgnt for the damage by fire only) by explosion of any kind, or lightning; but liability-for direct damage by lightning may be assumed by specific agreement-hereon.” “If a building or any part thereof fall, except-as-the result of fire; all Insurance by . this, policy on such building „or fits contents -shall- immediately cease.” .

By a printed slip, however, attached to the policy and made’ part of it, designated as “Lightning Clause,” it is provided: “This policy shall cover-any direct loss or damage'caused by lightning (meaning thereby the commonly accepted- use of the term-‘lightning,’ and in no case to include loss or damage by cyclone, tornado or-wind-storm) not exceeding the sum insured, nor the interest of.-.-the insured in the property, and. subject- -in all-other respects to the terms and conditions' of this policy. ”

By thes'e provisions it was undertaken to insure the property, against damage by' lightning, whether or not fire ensued, nfid any direct loss or damage-caused by lightning although not the-result of actuab ■ combustion. ■ Nowhere in the policy outside of the two- above references is loss resulting from lightning mentioned-or provided.-, for' except by classing it as a-fire loss.; The proofs.-of loss submitted by the-insured to, the' company used the word “fire”, as-, it appears throughout' the;policy-to describe-the loss,; and while théy specifically refer to each-policy of insurance--against: loss; or-damage-, by fire according* to ¡the terms and conditions -printed, therein,, - and specifically state.-that’ a fire occurred-rby;.which- the property- described, -in said-policy was, destroyed-or damaged;, said fire originating-“from ¡stroke of-lightning,.”, and. otherwise.refer to. fire as the" cause of’ damage,there is no direct- statement -in the affidavits, that the building; or. any part of the property insured was consumed by fire, or that any combustion ensued, but merely that loss and destruction resulted.

The word “fire” is evidently used as a generic term to cover all losses protected by the policy and can not be construed to refer to losses by combustion alone. The record contains much interesting testimony given by expert scientists as to the nature and manifestations of lightning and electrical discharges from the clouds during thunder storms, but it is apparent that exact rules can not be adduced from the phenomena collated as to what results follow when a building is “struck by lightning.” Lightning is always accompanied by some flash of light caused by incandescence or burning of gas, so to that extent fire is a usual manifestation. The damage caused by lightning, however, by a shock knocking down a tree or building, is not necessarily followed by or the result oí combustion, yet it would be a direct loss or damage caused by lightning within the terms of the “Lightning Clause” in these policies, and the contrast between the terms of the lightning clause and the provision in the body of the policy above refererd to which exempts such damage unless fire ensues is a recognition of this difference. While that may not be material it is shown by the record that the proofs of loss used in this instance were prepared on blank forms printed for the use of the insured in such cases of loss and conform to the language of printed policies used for fire losses which by the addition of the printed lightning clause stipulation have been adapted also to insure against lightning.

There is no question but that the ordinary fire policy such as was used in this case would cover damage from water or from, smoke or from the collapse of a building which was the result of fire although actual combustion may not have entered into the particular loss itself, and undoubtedly these policies as enlarged by the addition of the lightning clause cover damage by lightning where combustion is not an element.

Placing this construction, therefore, upon the policy and proof of loss, and considering the testimony of Mr. Schell and Mr. Lippincott, called on behalf of the insurance company, and of the officer and employee of the insured, we can not find that there was any evidence of fraud or false swearing introduced which would require or justify the giving of special charges 9 and 10 — as they must be given or refused in the exact language in which they were presented — and the court therefore was not in error in refusing them. Undoubtedly a provision in a policy avoiding liability under it for fraud or false swearing occurring in the proofs of loss is upheld and constitutes a complete bar to any recovery under the policy, Capital Fire Co. v. Beverly, 8 Circ. Dec. 37 (34 R. 468), but it is a general rule that misstatements in a proof of loss to forfeit the policy must be not only false, but unlawfully false. A mere innocent mistake will not amount to fraud or false swearing within the provisions of the policy. (4 Cooley Briefs on the Law of Insurance, 3415.) We also find that the part of the general charge as given by the court in relation to this claim of false swearing was a proper charge and all that the defendant was reasonably entitled to.

The plaintiff in error next urges as? a ground of error that the verdict and judgment are excessive, and that the charge of the court in fixing the amount of recovery is erroneous because the pro rating clause in the policies in suit was disregarded, and because the other concurrent insurers were necessary parties to the action. It is particularly urged that even though the valued policy rule provided by Secs. 9583 and 9584 G. C. might be applied to the first paragraph of the description of the property improved, limited particularly to the buildings, it could not apply to the property constituting the cooling tower and ice making machinery as detailed and described in the second clause of the property insured for the reason that the latter must be deemed personal property or chattels, as distinguished from real estate.

A very lengthy and impressive discussion is furnished by counsel for plaintiff in error in numerous briefs to support this contention, but the correctness of their position depends upon a conclusion that the judgment of the Supreme Court in the case of National Fire Ins. Co. v. Dennison, 93 Ohio St. 404 [113 N. E. 260], is not sound law and does not properly construe Secs. 9583 and 9584. In our opinion, the decision in that case is correct; but if counsel are right in this contention they must ad-dr.ess their argument to the Supreme Court rather than to the court, of appeals, as this court is conclusively bound by the decision. of the..Supreme Court and it is useless for counsel to undertake to. have us disregard or refuse to follow it.

The case of Insurance Co. v. Luce, 5 Circ. Dec. 211 (11 R. 476) r holds, that property situated and used as was the ice machine property in this ease constitutes fixtures, and whether technically a part of the real estate itself or not, the items enumerated in the second paragraph of the description of property in .the-policies all constitute "structures” within the terms of See.. 9583. • The testimony of Mr. Siegel giving the details of the'items included in this property and the damage thereto, none" of which testimony was challenged or disputed, shows that the building, fixtures and machinery were used as an entirety and came within the terms of the valued policy act and the authorities above, mentioned both as to the pro rating and as. to the amount of the damages. The court, therefore, did not err in refusing to give special instruction No. 11 or in its general charge instructing the jury that these items properly were "structures” within the contemplation of the law of the state of Ohio.

It is also urged that the trial court erred in excluding photographs representing damage by wind to other buildings in Cincinnati which were claimed to have been in the path of the storm in which plaintiff’s1, buildings were damaged.

The admission of such evidence was largely in the discretion of the- trial Court. It appears that the two. photographs offered represented collapsed buildings which were located many squares away from the property involved in this case, and the record fails to show definitely and conclusively that they were in the path of the particular wind-storm which defendant contends caused plaintiff’s damage- We can not say that the court erred in refusing to.admit, this evidence.

Nor-, da. we- find that the court erred in allowing questions to be asked of. Mr. Lippineott, the insurance adjuster, as to the extent of plaintiff’s loss — especially so, as the witness failed to directly answer the question excepted to in such a way as to fix any definite sum.

There is no question but that under Weil v. Connecticut Fire Ins. Co. 37 O. A. & C. 263 (23 N. S. 281), and other- cases cited, the insurance company was entitled, upon its disagreement with the insured as to the extent of the loss, "to have an ap-praisement by virtue of the terms of the insurance policy; but when the insured named its appraiser and requested, the insurance company to also name an appraiser in accordance with the provisions of the policy, the insurance company'could not refuse to do so merely because work had been done by the insured in the way of restoration of the property damaged.

As a part of its general charge, the court said:

“The first question you will determine when you retire for deliberation will be, what caused the loss and damage? If you find from all the evidence, facts and circumstances of this case that the loss and damage was caused by a stroke of lightning, then your verdict should be for the' plaintiff.”

While it is true that this'-clause taken alone would be erroneous, though positive in its form, it must be taken in connection with all the remaining parts of the general charge- which set out and discuss the different defenses of the insurance company and cover the entire case. We can not therefore say, considering the charge as a whole, that the use of the language quoted, taken with the remainder of the charge, served to mislead the jury, or was so prejudicial to the defendant as to require a reversal.

' The main contention, however, is that the verdict was contrary to the manifest weight of the evidence. ■ ■

The record discloses very interesting testimony in regard to the cause of the injury and the character of the storm. It is argued on behalf of the insurance company tliat the evidence conclusively shows that the collapse of the cooling tower and-the consequent damage to the building was caused by wind, and to support.their contention they have produced the testimony of the United States weather reports and, the observer as to the local record of the direction and velocity of the wind, amount of rain and general characteristics of the unusual storm which visited the locality at the time of the.damage. They also argue that lightning would necessarily have shown some fusing or burning of the metals or wood showing the track taken by the electric current and that the lightning would have followed water pipes which extended higher and outside of the brick wall. On behalf of the plaintiff it is with equal force contended that the evidence submitted conclusively shows that the time of the actual collapse of the cooling tower and the consequent damage coincided exactly with a stroke of lightning and severe thunderclap which' was testified to by numerous railroad men and others who were in the immediate vicinity and that it preceded by some distinct period of time the strong wind which followed. It is insisted that this was absolutely shown by the fact that the dense ammonia fumes were blown from the collapsed building south and southeast under the Eighth street viaduct and as far as Pearl street down Eggleston avenue, upon which the railroad tracks were located and on which tracks and the adjoining switch tracks a number of witnesses were then engaged in shifting ears. It is also insisted on behalf of plaintiff that the brine pipe offered the best conductor for the electricity, so near the top of the building that it would be preferred by the electric current to either the water pipe or the brick walls, and that the lightning might well have demolished enough of the brick wall to reach this brine pipe and follow it down to the earth without showing other evidence than the broken wall at the top which caused and was obliterated by the falling of the cooling tower.

While, of course, in the very nature of things a difficult question is raised as to just what caused an accident such as this, the issue is one which is peculiarly the province of the jury to decide. A careful consideration of all of the minute and interesting evidence and careful arguments of counsel submitted in this case fails to convince the court that the verdict of the jury can be held contrary to the manifest weight of the evidence; nor do wo find in the numerous points suggested any prejudicial error which would require a reversal of the judgment, which therefore must be affirmed.

Hamilton, J., concurs.


author: RICHARDS, J.

text:
    CONTEM PT — DIVORCE—SENTENCE.
    [Lucas (6th) Court of Appeals,
    December 13, 1916.]
    Samuel Elmer, Rhynard v. Robert S. Gardner, Sheriff.
    1. Order in Divorce Proceeding to Pay Clerk Stipulated Sum Monthly for Future Use of Children not Collaterally Attackable in Habeas Corpus.
    The court of common pleas has power and jurisdiction in an action for divorce to order the payment of a fixed sum monthly to the clerk of the court to he kept intact by him for the future use and benefit of the children until the further order-of the court, and such order cannot be Questioned collaterally in ha-beas corpus.
    2. Imprisonment for Fine and Costs in Contempt.
    Statutes authorizing punishment for contempt of court are strictly construed and in a conviction under Sec. 12142 G. C. the person convicted cannot be sentenced to remain in prison for nonpayment of fine and costs.
    3. Opportunity to Resentence Allowed In Contempt to Correct Illegal Sentence.
    Where the conviction for contempt of court is lawful, but the sentence imposed is illegal, reasonable opportunity will be given, the proper tribunal to resentence before the discharge in habeas corpus becomes effective.
    [Syllabus by the court.]
    Habeas corpus.

      Hankison, Axline & Deeds, for petitioner.

      J. C. D’Alton, Pros. Atty., and W. T. 8. O’Hara, for defendant.
   RICHARDS, J.

The petitioner, Samuel Elmer Rhynard, has duly applied to this eourt for a writ of habeas corpus, and counsel representing the defendant have been notified, and the application heard on its merits.

It is claimed that the petitioner is unlawfully restrained of his liberty in the jail of Lucas county by the sheriff of said county. On this hearing it appears that the petitioner had begun an action in 1914 for divorce from his wife, Pernie Rhynard. and that such proceedings were had that he was granted a divorce from her in the court of common pleas. The parties had two minor children. Shortly after the decree of divorce, which also provided for the custody of the minor children, was rendered, the cause came on further to be heard on a motion of Mrs. Rhynard to modify the decree as to the custody of the children, and the decree was thereupon so modified as to give her the custody of one of the children until the further order of the court, and to give the nominal custody of the other child to the husband so long as the child remained in the Ohio Soldiers and Sailors Orphans’ Home in Xenia. The portion of the order immediately following is that which is claimed to be beyond the power and jurisdiction of the court, and is that against which special complaint is made, and for the failure to comply with which the petitioner is imprisoned. It reads as follows:

“It is further ordered that commencing May 1, 1915, and on the first' day of each and every month thereafter, until further order of the court, the plaintiff Samuel E. Rhynard pay to the clerk of the common pleas court of Lucas county, Ohio the sum of twenty ($20.00) dollars, which said money shall be’'kept intact by said'clerk of court for the future use and benefit of said minor children until further order of this court.”

A careful examination of the language of this portion to which objection is particularly made will disclose that it is not subject to all of the criticisms charged against it. It is said that the court had no power or jurisdiction to provide for the ae-cumülátió'fi of' a' fund' which might be used at some time in the future for the benefit of the minor children. The children had, of course, been supported in the past, and the language of the decree, prohibits using the money to be paid by the father of the children, in satisfaction of any claim for their support already furnished, and. contemplates that it shall only be used for such support as may be furnished them after the date of the decree. The court would, of course, retain jurisdiction of the children thereafter without specifically so providing in the decree, but the decree, nevertheless, clearly and by particular language retains such jurisdiction and control of the children and the fund, subject to the further order of the court.. It can not fairly be said that .the decree contemplates the accumulation indefinitely of a. fund to be used in the remote future for the benefit of the children. A more reasonable construction is that the order contemplates the payment of the money to the clerk of the court of common pleas to be safely kept until the court should be better advised as to the specific application to be made of it for the benefit of the minor children. That determination might be made at any time after entering the decree providing for the payment. We are of the opinion that the court had jurisdiction to make this order and did not exceed its power in so doing, and its judgment can not be collaterally impeached in habeas corpus. Bly v. Smith, 94 Ohio St. 97.

Samuel Elmer Rhynard was prosecuted in contempt proceedings for failure to comply with this order and on such prosecution was adjudged to be guilty and was sentenced to pay a fine of fifty dollars and the costs of prosecution and to be committed to the Lucas county jail for a period of ten days, and to stand committed in such jail until the fine and costs were paid,-oivhe was otherwise released according to law. The conviction was evidently under Sec. 12142 G. C. which reads as follows: • ' i

“Sec. 12142. The court shall then determine whether the accused is guilty of the contempt charged. If it be adjudged that he is guilty, he may be fined not exceeding five hundred dollars, or imprisoned not more than ten days, or both.”

Statutes authorizing punishment for eontempt must ■ be strictly construed, and nowhere in this section' is there contained any authority to adjudge that the defendant shall be imprisoned until the fine .and costs are paid. The sentehce may be for such sum as is warranted by the facts and within the limitation named in the section, and the sentence of imprisonment can not exceed the limit specified in thé statute, to wit, ten days. In the case under consideration the: sentence is that the petitioner be confined in the jail until-the fine and costs are paid or until he is otherwise released according to law. The court was without power to sentence the petitioner-' otherwise- than as fixed by the Terms of the statute. ' »'.■ ■ ■-■■■•

The principle has been directly so announced in Lubbering v. State, 10 Circ. Dec. 508 (19 R. 658), and has been reannouneed by the circuit eourt in this county in Miller and Diehl v. Toledo Grain & Milling Co. 11 Circ. Dec. 629 (21 R. 325). It follows that the writ of habeas corpus should issue and that the petitioner is entitled to his discharge from this sentence.

We discover, however, no illegality apparent in the record in the conviction of the defendant on the charge of contempt and the petitioner is not, therefore, entitled to his discharge without reasonable opportunity being given to the proper authorities to see that he is re-sentenced on said conviction. I call attention to Medley, In re, 134 U. S. 160, 174 [33 L. Ed. 835; 10 S. Ct. 384]; also, Savage, In re, 134 U. S. 176 [33 L. Ed. 842; 10 S. Ct. 389]; also, Bonner, In re, 151 U. S. 242 [38 L. Ed. 149; 14 S. Ct. 323], The proper procedure in cases of this character is discussed and clearly announced in 12 R. C. L. 1252, Sec. 70. In the cases above cited the Supreme Court of the United States had under consideration a situation where the sentence was illegal but the conviction lawful, and were confronted with the practical question of what should be done with the petitioner when the writ of habeas corpus was issued; and in each case delayed the taking effect of the order until such time as the proper authorities could be notified and have opportunity to take such action as they saw fit.

While the writ of habeas corpus is awarded in this case and the petitioner ordered discharged, a copy of this opinion will be furnished to the trial judge in the eourt of common pleas who sentenced the petitioner, for such further action as he may wish to take on the conviction of the petitioner in the contempt proceedings.

The discharge in habeas eorpus is ordered not to take effect until four o’clock this afternoon.

Of eourse, nothing in this opinion is intended to express the views of this eourt in a case in which the contempt consists in the omission to do an act which the accused can yet perform and the finding and judgment of the court so show, as provided in Sec. 12143 G. C.

Chittenden and Kinkade, JJ., concur.


author: PER CURIAM.

text:
    BANKS AND BANKING-TAXATION.
    [Clermont (1st) Court of Appeals,
    October, 1917.]
    Iones, Gorman and Hamilton, JJ.
    Milford National Bank v. Cleona Searles, Aud.
    Real Estate Value by Bank at less than Shown by Tax Duplicate as Element in Fixino Value of Shares for Taxation.
    In considering the value of the resources of a bank for the determination of the value of its shares for taxation, a bank may-carry its real estate upon its books at such value as it may deem proper, but if that amount is less than the amount at which its value stands on the tax duplicate, then to the extent of that difference it is not included in its statement of resources, and the deduction to be made by the auditor under G. G. 5413 of the value of its real estate as it stands on the duplicate cannot be in excess of the amount at which it is included in its statement of resources.
    [Syllabus approved by the court.]
    In May, 1916, the cashier of the Milford National Bank duly filed with the county auditor of Clermont county in accordance with Sec. 5411 G-. C. a sworn statement of the resources and liabilities of said bank with a detailed statement of the names and holdings of the several stockholders therein.
    This statement showed that the stock was divided into 600 shares of the par value of $100 each, and for the purpose of fixing the value thereof showed that the bank had capital stock, $60,000; surplus, $60,000; undivided profits, $5,450; unpaid dividends, $730, making a total of $126,180.
    Included in the resources of the bank making up this sum was the real estate investment consisting of the banking house owned by the bank, in which it did business, which was carried on the books of the bank at a valuation of $20,000, as set out in said statement. This real estate was listed for taxes as such, on the real estate tax duplicate of said county, at a valuation of $25,080.
    To fix the total value of the shares of stock in said bank the county auditor, acting by virtue of Sec. 5412 6. C. deducted from said total of $126,180 said real estate value of $25,080 and thus fixed tbe taxable valuation of said shares, excluding real estate, at $101,100.
    The county auditor thereupon transmitted to the tax commission a copy of such report with the valuation, of such shares so fixed by him. And the tax commission, in due course coming to act on such valuation and return under the provisions of Secs. 5619 and 5620 G. C, made an addition to the total valuation of $126,180 as fixed by the county auditor, of the sum of $4,530, and fixed the total valuation of skid shares of bank stock at $130,710.
    The amount of this addition is the difference between the valuation of the real estate of the bank as carried on its books and shown in its statement, viz., $20,000, and the valuation as it stands on the tax duplicate, viz., $25,080, which is $5,080. But from this sum, however, the tax commission deducted an item, shown in the statement, of “current expenses and taxes paid, $550,” making the net addition the sum of $4,530.
    Plaintiff seeks an injunction against the collection of taxes upon this, increase.,

      X>. W., Murphy, for plaintiff.

      Joseph McGhee and Chcurles G. White, for defendants.
   PER CURIAM.

The decision of this ease involves a construction of Sec. '5412 G. C.:

“Upon receiving such report the county auditor shall fix the total value of the shares of such banks, and the value of the property representing the capital employed by unincorporated banks the capital stock of which is not divided into shares, each, according to their true value in money, and deduct from the aggregate sum so found, of each, the value of the real estate included in the statement of resources as it stands on the duplicate. Thereupon he shall make and transmit to the annual state board of equalization for banks a copy of the report, so made by the cashier1, manager or owner, with the valuation of such shares or property representing. capital employed as so fixed by the auditor. ” ■ /' ; ■ '

The real estate of the bank is valued arid listed for taxation on the regular real estate tax duplicate of tbe county under the general laws relating thereto just as all other real'estate is valued and listed (Sec. 5409 G. 0.). If this particular real estate belonging to the bank is there listed at too high a valuation the law provides a method for securing a proper reduction. This valuation can not be changed or affected by any action taken in the valuation of the shares of stock in the bank.

The provision requiring the deduction from the aggregate valuation of the shares of stock of the value of the real estate, included in the statement of resources as it stands on the duplicate, is for the purpose of preventing double taxation on that part of the resources invested in real estate on which taxes are paid as such.

The bank can carry this real estate upon its books at such value as it may deem proper, but if that amount is less than the amount which stands on the tax duplicate,, then to the extent of such excess it is not included in the statement of resources. The deduction to be made is the value on the duplicate which is included in the statement of resources.

In this case it can be seen that if the total resources of $126,-180 include real estate of only $20,000 in actual value, then there must be $106,180 in other assets instead of $101,100 as fixed by the auditor, and the tax commission was justified in increasing that valuation. The deduction of $25,080, the fpll-.yalue. of the real estate as it stands on the duplicate, from the total resources as returned by the bank, unless such increase is made, would decrease the valuation of such other assets $5,080, which would not be authorized by law. • ■

The value of the real estate for the purposes of taxation has been'fixed by the agencies provided by law at more than $20,000, to wit, $25,080; and if that amount is to be deducted in fixing the valuation of the bank shares on which stockholders are to be taxed, at least that amount must appear in the statement of resources.

The action of the tax commission in increasing the valuation of the assets of the bank so that they would include the full value of the real estate as it stands on the duplicate, which is the amount deducted in fixing the value of the shai'es, was in accordance with the facts and the law.

The relief prayed for by plaintiff must therefore be denied and the petition dismissed.


author: CHITTENDEN, J.

text:
    WILLS.
    [ICnox (5th) Court of Appeals,
    April 14, 1917.]
    Robert S. Hull v. Geo. W. Chisholm. Sun Lumber Co. v. George W. Chisholm.
    Chittenden, Richards and Kinkade, JJ., of the sixth district, sitting by designation.
    Limitation Over after Devise of Fee Void.
    Where, by the terms of a will a fee Is clearly given, a limitation over of the remainder Is void as inconsistent with the fee granted.
    [Syllabus by the court.]
    Error.

      Edward Kibl'er, F. 0. Levering and Greer t& Cromlcy, for plaintiffs in error.

      A. A. StaseV, J. B. Graham and W. A, Hosack, for defendant in error.
   CHITTENDEN, J.

The same question is involved in these two actions. They were argued together and will be disposed of together.

The actions are brought to recover possession of specific real estate, the title to which is determined by a construction of the will of Sarah Hutchinson. Sarah Hutchinson died on October 23, 1895, leaving a last will and testament which was duly probated. The will reads as follows:

“In the name of the benevolent father of all:—
I, Sarah Hutchinson, of the city" of Mount Vernon, Ohio, do make and publish this my last will and testament, viz.:
Item 1st. I will that all my just debts and funeral expenses be first fully paid; and if I have not erected a monument for my late husband and myself I direct that such monument he erected at a cost not to exceed the sum of two hundred and fifty dollars.
Item 2nd. I will and bequeath to Alice V. Hutchinson of the city of Mount Vernon all the property of which I may die seized or possessed, both real and person, to her and her heirs and assigns forever, subject to payment of the debts, expenses and cost of monument mentioned in Item 1 above.
Item 3rd. I will and direct that in case of the death of the said Alice V. Hutchinson without leaving any child or children that whatever may remain of the property willed to her in the 2nd item of this will shall be equally divided between my nephews George B. Stahl of Mount Vernon, Ohio, and Oscar S. Blaney of Marshalltown, Iowa, and in case of the death of the said Oscar S. before the said Alice V. Hutchinson then the share of said Oscar S. in said residue shall go to the said George B. Stahl.
In witness whereof I have hereunto set my hand and seal this 22nd day of July, A. D. 1882.
Sarah Hutchinson.
Signed, sealed and acknowledged by the said Sarah Hutchinson as her last will and testament in our presence and signed by us in her presence and in the presence of each other and at her i*equest.
¥m. McClelland,
W. C. Culbertson.”

Alice V. Hutchinson was the daughter of a servant of Mr. and Mrs. Hutchinson and lived with them from the time of her birth. She took the name of Hutchinson and was never known by any other name until her marriage. After the death of Sarah Hutchinson, Alice V. Hutchinson was in possession of the real estate in question until the 6th day of June, 1904, when she sold and conveyed the property to one Banner Allen, from whom the title passed through other parties to the defendants in these actions. Alice V. Hutchinson had no child or children, and died on the 15th day of April, 1915, without leaving any property of any kind or nature.

.... . It- is .the contention of the plaintiff that Alice V. Hutchim s.on tools,only a life estate in the property that remained after the payment of the debts and funeral expenses of Sarah Hutchinson and. the erection of the monument provided for by the will. ,

T.he. defendants contend .that Alice V. Hutchinson took a title.in fee.simple and that the devise of what remained of the property at the death of Alice V. Hutchinson, to the nephews of Sarah Hutchinson, is void. .. . .

The case has been skillfully argued both orally and by brief. The questions involved are so manifestly controlled by judicial decisions in this state that we think it unnecessary to discuss the cases and the opinions cited, in an opinion in this case.

,. We hold that Alice V. Hutchinson took a title in fee simple and that the defendants hold the property by a valid title, upon authority of Brodman German Protestant Widows’ Home v. Lippardt, 70 Ohio St. 261 [71 N. E. 770; 1 Ann. Cas. 875]; Clora Blee Tracy et al. v. Miranda Blee et al. 38 O. A. & C. 461, 22 N. S. 33; and Steuer v. Steuer, 28 O. C. C. 145 (8 N. S. 71). We also call, attention, to the statement of the law as found in 40 Cyc. Í587. "

The. judgment of the, court of common pleas in each case will be reversed;, and, inasmuch as the title to the property depends Upon the-construction of;the will, and a remanding of the case for new trial could result in nothing other than a decree in favor of the defendants, ■ this court will proceed to enter the decree that should have been entered by the common pleas court, dismissing the petition of the plaintiff in each case, at his costs, and quieting the title of the defendants ih'the property in question.

' Kinkade and Richards, JJ., concur.'


author: MIDDLETON, J,

text:
    DIVORCE AND ALIMONY.
    [Ross (4th) Court of Appeals,
    January 21, 1918.]
    Middle.ton, Walters, and Sayre, jj.
    George Clough v. Isabella Long et al.
    1. Not Always Continuing Jurisdiction in Alimony becree May' Be Final.
    While as a general rule the jurisdiction of a court in alimony proceedings is a continuing jurisdiction it does not necessarily follow that every decree in alimony may be open to change' or modification and that the court may not by its decree, or the parties by their agreement when the same has been judicially sanctioned by a decree ef: the court, completely • foreclose any right to a future revision or change thereof. . ... .....
    2. Gross Sum in Alimony Paid Rec«gnlzed as Final.
    When a gross sum is allowed as and for alimony and full payment thereof has been made such allowance is generally recognized as a final adjudication of the rights of the parties and the court’s jurisdiction is at an end. . .
    3. Real Estate Decreed in Fee Simple as Alimony Allowance Final as
    to Jurisdiction. ' '•
    Real estate decreed in fee simple-as an allowance in gross for alimony is final in so far as it relates to such property and the court has no jurisdiction to modify or change such a decree at a subsequent term. •
    [Syllabus by the. court.]
    EkRORj
    . Elijah Outright, Jr., George- B. Ohey and G, A. Baddiffe, for plaintiff in error.

      Mr. John P. Phillips and Mr. Lyle, 8. Evans, for. defendants in error. .
   MIDDLETON, J,

Plaintiff in error was the plaintiff below in an' á'ctibn which, he instituted on April 6, 1916, to'recover possession of ’arid' title to certain real estate, hi bis original 'petition'he alleges, in substance, that by the consideration of-the'!coú'rt'"':of common pleas Of this county on December 12;;-I897;!-Virginia : Clough, then the wife of the plaintiff, obtained á decree' of divorce and award of alimony against him ■■ 'that said allowance -in alimony was one in gross for the sum of $2,500 in money and the undivided one-third of a certain farm, situate in said county and known as the Crookham Farm, containing 775 acres more or less, and that the terms of the decree provided that the said Virginia Clough should “have, own, possess and enjoy in fee simple, as and for alimony," the equal undivided one-third part of said real estate. The petition further states that subsequent to this decree, and on or about March 23, 1898, the plaintiff, never voluntarily consenting to said decree and award and never agreeing for a division of his property, but solely for the purpose of carrying said decree and award into effect, and for no other purpose and upon no other consideration whatsoever, executed a deed to said Virginia Clough for certain real estate then and theretofore the property of plaintiff. A full description of the lands so conveyed by said deed is set out in the petition, and it appears therefrom that they amounted to about 369 acres. It further appears from this deed, which is set forth in the petition in full, that in addition to the alimony awarded Virginia Clough the plaintiff received a further consideration of approximately $5 000 by Virginia Clough agreeing to discharge certain indebtedness of plaintiff amounting to that sum. While the petition does not state that the land so conveyed was the land awarded in the decree, it is to be assumed from certain references in the deed that it included the land so awarded and in addition certain other lands which were conveyed presumably for the additional consideration.

The plaintiff further recited in his petition that this property so conveyed was ancestral property and that the said Virginia Clough went into the possession of the same and had and enjoyed the rents and profits thereof until her death November 27, 1910, and that on December 30, 1910, her last will and 'testament was filed for probate in this county, wherein the said Virginia Clough attempted to devise to the defendants in error the real estate described in said deed.

He further alleges in his petition that the purpose of said conveyance, in compliance with said order, decree and award, was for the support and maintenance of Virginia Clough during her lifetime, and that said real estate having been so used by her during her life at her death her rights' thereto terminated and said real estate reverted, and was intended by the plaintiff and the order, 'decree and award of the court to revert to him.

The prayer of the petition is that the title to said real estate be reinvested in the plaintiff and that said award of alimony be modified so as to limit the title of said Virginia Clough to and in said real estate to a life estate.

A demurrer to this petition was filed in the court below, which was sustained, and the plaintiff not desiring to plead further judgment on said demurrer was rendered and he now prosecutes these proceedings to reverse that judgment.

It seems to be conceded by counsel for both parties that the plaintiff-in-error’s right of action and the sufficiency of his petition depends upon the question as to whether or not the court of common pleas of this county has a continuing jurisdiction in the matter of the alimony awarded Virginia Clough, and that the original action for said alimony continued to be and is now pending in said court. While we do not consider this question may be wholly determinative of the issues presented by the petition, in view of other questions that might arise in respect to the deed subsequently executed by George Clough to Virginia Clough, it may be assumed for present purposes that the right now to modify this decree is decisive of the whole ease.

It is contended in support of plaintiff’s right of action that the allowance of alimony rests wholly upon the marital obligation of maintenance and support, and to a great extent is limited to that purpose only, and that the jurisdiction of the court in an alimony matter is a continuing jurisdiction and that the court has full authority at any time subsequent to any allowance of alimony to revise, change or modify the same.

We are not disposed to question seriously any of the propositions so urged, and especially the proposition that the jurisdiction of the court in alimony proceedings is ordinarily a continuing jurisdiction. That question seems to be definitely settled in this jurisdiction at least by the case of Olney v. Watts, 43 Ohio St. 499 [3 N. E. 354], and the very recent case of Smedley v. State, 95 Ohio St. 141 [115 N. E. 1022]; in whieh latter case it is said that,

“It is well settled that the jurisdiction of a court in an alimony case is continuing.”

We are-not, .however, inclined to accept .the rule .so announced -in -this latter case as exclusive, especially in view of the character of the alimony involved in that case and of the award madedherein. While, as we have observed, we admit as a general proposition that such jurisdiction is continuing .it does not necessarily follow that every decree in alimony may be open.to change or modification and that the court may not by its decree, .or the parties by their acts and agreement when the same have been, judicially sanctioned by a decree of the court, completely foreclose any right to a future revision or change thereof. Petersine v. Thomas, 28. Ohio St. 596; Law v. Law, 64 Ohio St. 369 [60 N. E. 560]; Hribal v. Hribal, 31 O. C. C. 15 (11 N. S. 414).

In the case of Petersine v. Thomas, supra, the court speaking through Judge Ashburn say in respect to this question:

“Once this discretionary power of the court, in allowing alimony, has been, fully exercised in a case, it is ordinarily at an end — exhausted. So that, when once the court has allowed to the wife what it considers just and equitable alimony in gross, and a divorce is at the same time granted, she will be deemed to have been allowed her just and equitable portion of her husband’s estate. The court may, however, in the exercise of a sound discretion, grant the divorce, and make the alimony allowed payable in installments, and by continuing the alimony branch of the case, hold the parties and subject-matter, by proper orders, so under its control, as to increase or diminish the allowance as equitable circumstances and justice shall require.”

In Law v. Law, supra, it is held unequivocally that,

“Where the terms of a decree as to the alimony are fixed .by the court, pursuant to an agreement of the parties, they are not subject to modification.”

When a gross, sum is allowed the courts generally recognize it as in ñill satisfaction of all claims and regard the award so made as final and the awarding court’s jurisdiction at an end unless there is- some statutory authority continuing its jurisdiction. Plaster v. Plaster, 47 Ill. App. 290; Stratton v. Stratton, 73 Me. 481; Mitchell v. Mitchell, 20 Kan. 665; Sammis v. Medbury, 14 R. I. 214; Kamp v. Kamp, 57 N. Y. 212; Johnson v. Johnson, 65 How. Prac. 517.

In the ease of Shaw v. Shaw, 59 Ill. App. 268, the court say;

“Where in a decree for divorce the wife is given a gross-sum as her alimony, it is held to be in full discharge and satisfaction of all claims for future support. So far as the decree relates to' that subject it is at an end and the court has no jurisdiction to modify it at a subsequent term. ’ ’

In a case where a gross sum has been allowed and paid, and the decree of the court fully executed, we have found no casé, nor has any been cited to ns, which would authorize the court to deny such a decree the same finality with which other judgments are regained. We think it may be deduced from the authorities on this question that ■ whether the jurisdiction is' continuing or not depends wholly on the character of the decree itself and whether it has been'executed and full payment made thereunder or not.

Referring now to our statutory provisions on this subject. It is provided in See. 11998 G. C. that,

“Upon satisfactory proof of the charges in the petition the court shall * * * give judgment in favor of the wife for such alimony' 'out of her husband’s property as is equitable, which may be allowed to her in real or personal property, or both, or in money, payable either in gross or by installments. ’ ’

It is settled in Gallagher v. Fleury, 36 Ohio St. 590, and Herron v. Herron, 47 Ohio St. 544 [25 N. E. 420; 9 L. R. A. 667; 21 Am. St. 854], that real estate may be decreed in fee simple as an allowance in gross for alimony. The decree in the instant case is one of this character. It is one wholly unconditional. There is no reservation, either express or implied, - in any of the conditions of the court’s order and decree which ■would suggest that the court intended it to be subject to any future revision' or modification. It was in every respect, therefore, a finality so far as the court could make it such. It wasexpressed'in terms which left no doubt whatever that the court intended it to be a final adjudication of the rights and obligations of both parties.

There is nothing disclosed in the petition to justify the claim therein that this real estate was intended by “said order, decree and award to revert to the source from which it came,” and. this allegation must be regarded as a mere conclusion of the pleader without any support thereof to be found in any other statement in the petition.

In Herron v. Herron, supra, the court say :

“This transfer of title was not by any act of the husband, but by the fiat of the eourt. Hence it is to the purpose of the eourt we must look, and not the purpose of the husband. The decree is not difficult of construction. It explains itself.”

While the title in the instant case was conveyed by an act of the husband, yet the consideration for that act is the title conveyed by the decree of the eourt, and that title as so conveyed is the. title which must control the jurisdiction of the court in respect to a modification thereof. It is not, therefore, to the purpose of the husband that we must look in this case, but the purpose of the court in its original award, and if the husband misconceived the latter’s purpose and the scope and effect of its decree he did so at his peril.

The court continuing in Herron v. Herron, say:

“The title received by the wife was as full and ample as though a conveyance from the husband had been made, and she took a title in fee simple. She took as a purchaser.”

So in the instant case Virginia Clough, by virtue of this decree, took a title in fee simple to the lands included in said decree as a purchaser, and a subsequent conveyance of said lands by her husband could not in any manner affect her title thereto theretofore conveyed to her by the decree of the eourt.

We conclude that the decree for alimony involved in this controversy is one not subject to any change or modification, and that any subsequent change in the conditions or circumstances of either party to the original action may not be considered by the court of common pleas as affecting in any manner the finality of its former decree.

The judgment of the court of common pleas is affirmed.

Walter» and Sayre, JX, concur.


author: ALLREAD, J.

text:
    CONTRACTS — TRADES UNIONS.
    [Franklin (2nd) Court of Appeals,
    March, 1918.]
    Kunkle, Allread and Ferneding, JJ.
    National Decorators & Painters’ Assn. (Local Branch 28) v. B. C. Solt.
    1. Nonunion Master Painter, Accepting Contract Specifying Union Labor, Personally Working, Without Remedy Against Local for Discharge by Owner Because of Strike Threatened.
    A master painter, not affiliated with union labor, having accepted one of several contracts to paint and decorate a photo play theater under specifications, voluntarily submitted by the owner, requiring all work to be done by union labor, and having personally undertaken to do part of the work on his contract though assisted by a union painter, has no right of action against a local branch of union painters for his discharge from the job by the owner of the theater following a threat by a committee of the union local to call off all union men then at work upon the building under the several contracts.
    2. Contract for Exclusive Employment of Union Labor, Voluntarily Specified by Owner, Enforceable by Strike.
    Specifications for the letting of contracts for the improvement of a building, providing for the employment exclusively of union labor in the performance of the contracts, having been voluntarily offered by the owner and approved by the union local, are valid; hence, a local branch and a committee acting for it, have the right to order the withdrawal of union labor from the work when the condition of employment was violated, as in this instance by the letting of a contract for a part of the work to a master painter, who is not affiliated with the union and, though employing union labor, is personally doing the major part of the work himself.
    [Syllabus approved by the court.]
    Error.

      F. S. Monnett, H. H. Felsman and B. J. Beatty, for plaintiffs in error.

      N. B. Collins, for defendant in error.
   ALLREAD, J.

Solt, a master painter, obtained a contract from the Photo Play and Amusement Co., the owner and builder of the Majestic Theater, for the finishing and painting of the woodwork of the lobby and canopy or marquee for the sum of $270.00,

The building was constructed by different contractors under plans and specifications adopted by the owner. These plans and specifications included notice to bidders containing the following clause:

“Union Labor:
“Bach and every contract entered into under these specifications and accompanying plans shall be executed in every detail by union labor.”

Solt personally undertook to do most of the work embraced in -his contract. Later he was assisted by a union painter procured by the superintendent of construction.

Solt admits that he had not for several years held a union card,, nor had he signed the union scale of wages.

It appears that at the time Solt obtained his contract the work upon the building was nearing completion and the time had been fixed and published for the opening of the theater. Work upon other contracts was being executed wholly by union labor, Complaint having been, made to Local No. 248, one of the plaintiffs in error, an investigation was had and resulted in the appointment of a committee who called upon the representative of the owner and notified them that unless Solt was withdrawn the unions would declare him unfair and call off all union labor then at work upori the building.'

Neither in the petition nor in the evidence does it appear that there was any threat of violence, of boycotting or of preventing the employment of other workmen to complete-the building. The sum and substance of the demand and threat was merely the withdrawal of union labor from the work.

This case presents a somewhat, unusual feature.

Modern statutes and modem decisions, we think, recognize the rightful place of labor unions as organizations in the advancement of the interest of the laboring classes and their lights and limitations have been frequently considered. The weight of authority upholds the right of a labor union, in the absence, of an inconsistent contract, to advise and procure the withdrawal of union labor from a given- work either singly or in combination where no violence or other unlawful means are employed and where the object of the strike is not unlawful.

Fulworth Garment Co. v. Garment Workers Union, 28 Dec. 459 (15 N. S. 353); Kemp v. Division No. 241, 255 Ill. 213 [99 N. E. 389; 1913D Ann. Cas. 347; Iron Moulders Union v. Attis Chalmers Co. 166 Fed. 45; J. F. Parkmen Co. v. Builders Trades Council, 154 Col. 581; 16 Ruling Case Law, 444-460.

A strike is defined as “The act of a party of workmen employed by the same master in stopping work altogether at a preconcerted time and refusing to continue until higher wages or shorter time or some other concession is granted to them by the employer.” (Black Law Dictionary.)

Bouvier’s defines a strike as “A combined effort of workmen to obtain higher wages or other concessions from their employers by stopping work at a preconcerted time.”

In Kemp v. Division No. 241, supra, it is said “The threat made by the committee that the members of the union would call a strike of the employees of the railway company unless their demands were complied with, meant no more than that the union employees would be notified to quit in a body at a definite time if the nonunion employees were retained in the service. ’ ’

So here the threat of the committee of the locals to call a strike meant no more than that they would call off the union workmen from the building if their demands were not met by the employer.

This brings us to the legality of the purpose of the proposed strike.

The owner had voluntarily agreed to the exclusive employment of union labor in the execution of every detail. The consideration for this agreement is based upon the presumed advantage arising out of the employment of union labor. The contract was for the benefit of union labor. After the contract had been recognized and acted upon by union workmen the same became a valid obligation. The employer had obtained the benefit of the provision throughout the work of construction and up almost to the time of completion of the building.

The recent cases sustain the validity of contracts by the employer for the exclusive employment of union labor, particularly where the supply of union labor is adequate or where provision is made for the unionizing of workmen in ease of shortage.

National Fireproofing Co. v. Masons’ Builders Assn. 169 Fed. 260; Jacobs v. Cohen, 183 N. Y. 207 [76 N. E. 5; 2 L. R. A. (N. S.) 292, 111 Am. St. 730; 5 Ann. Cas. 280]; Mills v. U. S. Printing Co. 99 App. Div. (N. Y.), 185; Hoban v. Dempsey, 217 Mass. 166 [104 N. E. 717]; 16 Ruling Case Law, 426; Contra, Curran v. Galen, 152 N. Y. 33 [46 N. E. 297; 37 L. R. A. 802; 57 Am. St. 496]; Berry v. Donovan, 188 Mass. 353 [74 N. E 603; 5 L. R. A. (N. S.) 899; 108 Am. St. 499; 3 Ann. Cas. 738].,

Ye are not required to express an opinion as to the natural and constitutional right of labor unions to interfere between employer and other employees who are willing to accept employment. In this case the employer agreed to employ union labor exclusively. There was no duress or unfair means employed to secure the contract. The contract was voluntary and was by implication a recognition of the right of the locals to act on behalf of and in the interest of union labor. The condition in the contract for the exclusive employment of union labor entered into and became a condition of employment in all branches of the building contract and the union workmen had' the legal right to withdraw from the work at any time the condition was violated.

This was the situation as between the union labor employed on the building and the employer and we think it clear that the locals and the committee acting on their behalf had the right, when the condition of employment was violated, to order the withdrawal of union labor from the work.

There is a question raised as to whether Solt’s obtaining the contract and working upon the job was itself a violation of the employer’s contract with union labor.

Solt undertook personally to do most of the work contracted for, although he admits that he was not affiliated with any labor organization and had signed no union wage scale. Lie was of the opinion that his taking the contract was not a violation of the contract for the employment of union labor and the owner and its agents were of the same opinion and acted in good faith, although we believe mistakenly.

Whatever might have been Solt’s right as contractor and as overseer or superintendent of the work, we think under a fair construction of the agreement as to union labor there was a violation of the contract when he undertook to do the work himself. The owner in contracting with union labor clearly contemplated that the work in every detail should be performed by union laboi*. This contract could not, in our judgment, be fulfilled by letting the work to one or more non-union contractors to personally perform the labor.

Solt testified that he examined the portion of the specifications relating to painting before he took the contract. The specifications as to painting referred to the notice to bidders which contained the provisions as to the exclusive employment of union labor.

While Solt testified that nothing was said in his verbal contract as to the employment of union labor, yet we think it sufficiently appears from his ovni testimony that he knew that union labor was required to be employed upon all features of the building.

Solt’s rights are, therefore, under all the evidence clearly subject to the condition as to the exclusive employment of union labor and his right would therefore, rise no higher than that of his employer.

But even if Solt took his contract in ignorance of the condition expressed in the owner’s contract as to union labor, then his right of action, if any would be against the owner and not against the labor organization.

The plaintiffs in error having therefore, acted within their legal rights, the threatened strike was not illegal and the discharge of Solt so far as the plaintiffs in error were concerned is damnune absque injuria. 16 Buling Case Law, 460.

The fact that certain members of the locals obtained employment after the discharge of Solt does not change the legal status. There is no charge of malice and it was a natural and anticipated result that some of the union would be benefited by the performance of the union labor contract.

Plaintiffs in error moved at the close of the plaintiff's evidence and also at the close of all the evidence for an instructed verdict in their favor. The court overruled the motions and submitted the ease to the jury which returned a verdict for $500.00. A judgment was rendered upon the verdict and error is prosecuted to this court.

We have reached the conclusion that the motions of the plaintiffs in error for a directed verdict should have been sustained.

The judgment of the court of common pleas is therefore reversed and final judgment in favor of plaintiffs in error will be ordered.

Kunkle and Ferneding, JJ., concur.


author: HOUCK, J.

text:
    DEEDS.
    [Wayne (5th) Court of Appeals,
    March 22, 1918.]
    Powell, Houck and Shields, JJ.
    John Fawcett Larwill et al. v. John P. Farrelly.
    Legal Effect of Language Used in Deed Naming Use To Be Made of Property.
    The use in a deed of general warranty oi the words, “for the use and sole benefit of the Catholic ch'urch and such other erections as may be needed for the use of the said Catholic church,” does not constitute a condition subsequent or engraft a limitation upon the title, but at most is a mere suggestion or unenforcible request or desire.
    [Syllabus by the court.]
    Error.

      L. R. CriicliftelcL, Sr., and A. D. Metz, for plaintiffs in error.

      John McSweeny and M. P. Mooney, for defendants in error.
   HOUCK, J.

The error complained of in this case is in quieting the title to certain real estate located in the city of Wooster, Ohio, claimed to be owned in fee simple by the defendant in error here, who was the plaintiff below.

. The trial judge in the common pleas court granted to the said Farrelly all the relief prayed for in his petition, thereby bolding that John Fawcett Larwill and the other defendants below', the plaintiffs in error here, had no interest either legal or equitable in and to the real estate in question.

The contention in this lawsuit is as to the legal effect of the following words, “for the use and sole purpose of the Catholic church and such other erections as may be needed for the use of said Catholic church.”

This language appears in the granting clause of a deed made May 27, 1857, by Joseph Tl. Lamvill and his wife, Nancy Q., to the lleverend Amadeus Rappe and others. These grantees and all subsequent grantees by a series of deeds conveyed all their interest in and to said lands described in the said Larwill' deed to the said John P. Farrelly, who is now in possession of same, claiming to be the owner thereof in fee simple.

The granting clause in the Larwill-Rappe deeds reads:

“That the said Joseph II. Larwill and Nancy Q. Larwill, his wife, for and in consideration of the just sum of $1,100 in hand paid, the receipt whereof we do hereby acknowledge, have given, granted, bargained, sold, released and conveyed, and do by these presents give, grant, bargain, sell, release, convey and confirm unto the said Reverend Amadeus Rappe, Frederick Buehholtz and Michael Carroll, and their heirs and assigns forever, for the use and sole purpose of the Catholic church and such other erections as may be needed for the use of said Catholic church, a certain tract or parcel of land situate in said "Wayne county, and described as follows:” (Here the premises are described.)

The habendum clause reads:

“To have and to hold the said described premises hereby sold as aforesaid, or meant or intended so to be, with all the privileges and appurtenances thereunto belonging or in any wise pertaining unto the said Amadeus Rappe and Frederick Bueh-holtz and Michael Carroll, and unto their heirs and assigns forever, for the sole use and benefit of said Catholic church and said other erections as aforesaid, and the said Joseph IT. Larwill and Nancy Q. Larwill, his wdfe, for themselves and for their heirs, executors and administrators, do covenant, premise and agree to and with the said Reverend Amadeus Rappe and Frederick Buchholtz and Michael Carroll, their heirs and assigns, that they, the said Joseph II. Larwill and Nancy Q. Lar-will, his wife, are lawfully seized of the premises aforesaid, and that the said premises are free and clear of and from all "encumbrances whatever, and further that the said Joseph H. Lar-will and Nancy Q. Larwill, his wife, will well and truly warrant and forever defend the premises herein and hereby granted unto the said Reverend Amadeus Rappe and Frederick Buch-boltz and Michael Carroll, and to their heirs and assigns, from the lawful claims and demands of all and every person whomsoever.”

The conceded facts are that the property described in said deed is not used by the Catholic church for church purposes, but its use for same has entirely eeased. That Joseph H. Larwill and Nancy Q. Larwill, his wife, have departed this life, and that tbe plaintiffs in error are their only surviving heirs at law.

The proper solution of one question will determine the rights of the parties to this controversy, namely: 'What is the legal effect, as used in said deed, of the language, “for the use and sole purpose of the Catholic church and such other erections as may be needed for the use of said Catholic church, ’ ’ and, does it constitute a condition subsequent?

A condition will not be raised by implication from a mere declaration contained in an instrument that the grant is made for a particular or certain purpose, unless it is coupled with words clearly showing upon their face such a condition.

In a warranty deed, such as the one now before us for construction, which contains the usual words of warranty and alienation of title of grantors, the law presumes that all of the grantor’s title and interest in the real estate described in said instrument passes to the grantee, unless by some plain language used therein the contrary is shown.

Conditions which in any way have a tendency to destroy or lessen estates are not favored by the law, and thus are strictly construed, and all doubts are resolved against restrictions.

While it is true that no precise form of words is necessary or essential to create a condition subsequent, nevertheless it must be created if in a deed by such terms as to leave no doubt of tbe intentions of tbe grantor so to do.

Tbe Ianguge used by tbe grantors in tbe deed in tbe case at bar is clear, plain and unambiguous, and there is no doubt about its meaning, but as we interpret and construe it, falls far short of being sufficient to create a condition subsequent.

So far as creating limitations upon the title conveyed, it certainly does not. In legal effect it has no force, and tbe most that can be claimed for it is that it might be construed as a mere wish or desire on tbe part of tbe grantors to have tbe property used for the purposes indicated by tbe language; but in effect it is a mere suggestion, an unenforcible request or desire.

An examination of tbe deed nowhere discloses any language that could be construed'as intended to create any limitation upon tbe fee simple title in the grantees, their heirs and assigns, and we find no reservations or limitations contained in said deed.

It is genrally known that when an estate granted is intended to be terminated or forfeited that certain terms are used in the granting clause, or somewhere in the deed, declaring that the estate conveyed is to be forfeited “in the event that” certain conditions are not complied with. But in the deed now before us there is an utter absence of any such provisions.

Courts, in construing deeds and like written instruments, must be guided by the intention of the parties to them, and this must be determined by the language used in the instrument, the question being not what the parties meant to say, but the meaning of what they did say, as courts can not put words into an instrument which the parties themselves failed to do.

The deed in this case is regular upon its face. It conveys certain lands, for a valuable consideration, to the grantees, their heirs and assigns forever, and warrants the title to same against the claims of all others. It contains no words of forfeiture or limitation, nor is there any provision for re-entry. Thus it follows that the mere fact that the present owner of the lands has ceased to use same “for the use and sole purpose of the Catholic church,” etc., would not in law vest the plaintiffs in error with the title to said real estate.

Tt follows from what we have already said that the judgment below is right. We have examined all of the alleged errors, as claimed by plain tilt's in error, and we'find none of them of that substantial nature as would warrant a reversal of the judgment below.

The judgment of the common pleas court is affirmed and the case is remanded to that court for execution.

Powell and Shields, JJ., concur.


text:
    STREET RAILWAYS.
    [Lucas (6th) Court of Appeals,
    April 21, 1917.]
    Powell, Houclc and Shields, JX, of the Fifth District, sitting by designation.
    John Furrer v. Ohio Electric Ry.
    Municipal Speed Ordinance and Testimony as to Speed of Street Car Excluded.
    Where the issue raised is as to whether the ear which caused the accident was being operated at a high and dangerous rate of speed, in excess of the rate prescribed in a city ordinance, and also whether it was equipped with a proper headlight at the time of the accident, it is not error to refuse to admit testimony tending to establish these allegations as to the operation of other cars, where no testimony has been offered'tending to show that such a state of facts existed as to the car which caused the accident; and in the absence of such evidence relating to the particular car involved in the action at bar it is not error to refuse to admit in evidence an ordinance regulating the speed of cars within the municipal limits.
    [Syllabus by the court.]
    Error.

      S. S. Burtsfield, for plaintiff in error.

      Gable & Gable and Smith, Beclcivith & Ohlinger, for defendant in error.
   HOUCK, J.

. The plaintiff in his suit below sought to recover compensation for personal injuries which he claims he received on the evening of February 18, 1916, when an electric car operated by the defendant struck a wagon in which he was riding, throwing him to the ground and thereby causing ¡serious and permanent injuries to his body, and for which he prays judgment in the sum of $25,000.

Plaintiff avers in his petition that said injuries were caused without fault or negligence on his part, and avers that they were caused by the negligence of the defendant, and particularly specifying in his petition a number of alleged negligent acts on the part of said defendant as being the proximate cause of the same.

The defendant filed an answer in the nature of a general denial, and in addition thereto avers that the plaintiff was himself guilty of negligence directly causing and contributing to the injuries sustained by him in consequence of said collision in this, to wit: that he negligently, recklessly and carelessly drove his horse and wagon upon the track of the defendant company in front of its approaching car, although he knew, or by the exercise of reasonable care on his part should have known of the approach of said car, and although he was in fact warned by the watchman at said crossing of the approach of the car in time to have avoided the collision; that said negligence aforesaid of the plaintiff was the sole proximate cause of the accident.

The plaintiff filed a reply to the answer of the defendant denying each and every allegation therein which was not affirmatively stated as a fact in his petition.

Upon the issues thus raised by the pleadings the cause proceeded to trial to a jury. After the plaintiff had offered his evidence and rested his case the defendant moved the court for a directed verdict for the reason that plaintiff had not sustained the allegations of his petition by that degree of proof which the law requires. The trial judge sustained the motion and a judgment for the defendant was rendered. The plaintiff in error seeks a reversal of the judgment below and relies upon the following grounds:

First. The exclusion of certain evidence by the trial court.

Second. In sustaining the motion for a directed verdict.

We have read the bill of exceptions in this ease and given all of the grounds of alleged error careful consideration. Counsel for plaintiff in error urges that the trial court erred in excluding testimony as to- the rate of speed cars generally traveled over the crossing where the accident occurred; also as to whether or not cars generally passing over the crossing in question did so with or without headlights.

The issue raised by the pleadings was as to whether or not this particular car was running at a high and dangerous rate of speed, and in excess of the rate provided by the city ordinance, and whether or not it had a proper headlight at said time. The record fails to show any such proof as to the car in question, and certainly the trial judge did not err when he refused to admit testimony tending to establish these facts as to other cars than the one that is claimed to have caused the injuries to plaintiff. The record fails to show any evidence to establish these facts as to this car, and, further, there being no evidence offered in the ease fixing the rate of speed at which said car was traveling at the time of the collision, the court was not in error when it refused to admit in evidence a city ordinance regulating the speed of electric cars, while being operated within the city limits of Toledo, Ohio.

Counsel for plaintiff in error insists that the trial judge erred in directing a verdict for the defendant when the plaintiff below had rested his case, and insists where the facts necessary to a determination of the issues involved are in dispute, or where there is a conflict in the evidence as to the material facts, and some of the questions of fact are of such a character that different minds might arrive at different conclusions, then these facts must be submitted to the jury to be passed upon and determined by it.

This is a sound proposition of law, but is not applicable to the proven facts in this case. The facts here are not in dispute. No evidence was offered except by the plaintiff, and the motion for a directed verdict in effect was a demurrer to the evidence. So far as the motion was concerned, and the legal effect of same, the defendant admitted all the proven facts, but in doing so contends that in law they are not sufficient to warrant the relief prayed for in the petition of plaintiff. Our examination of the bill of exceptions and tbe entire record in this case convinces ns that the claim of the defendant is well taken.

We think the injuries received by plaintiff were the result of an accident which was unavoidable, and for which no one in law . is liable in damages.

Finding no error in the record prejudicial to the rights of the plaintiff in error, the judgment of the court of common pleas must be affirmed.

Judgment affirmed.

Powell and Shields, JJ., concur.