text:
    FINDINGS OF FACT MAY BE ORDERED RETURNED THOUGH NOT REQUESTED BY COUNSEL.
    Court of Appeals for Mahoning County.
    Eliza Simms, Administratrix of the Estate of Arthur Simms, Deceased, v. The Stark Electric Railway Company.
    Decided, October 20, 1916.

      Findings—Court May on Its Own Motion Order Special Findings of . Fact Returned—Judgment May he Entered on Said Findings Where Inconsistent with the Verdict—Duty of an Interurian Railway Oom/pany Toward an Intoxicated Passenger Who Refuses to Pay Sis Fare.

      . 1. It is within the discretionary right of the trial court, even against the objection and exception of both parties, to require the jurors, if they render a general verdict, specifically to find upon particular written questions of fact and return written findings thereon.
    2. If the special findings of fact returned by the jury in obeience to the direction of the court, are inconsistent with the general verdict, the former shall control and it is not error for the trial court to enter judgment thereon.
    3. A railroad company operating its cars by .electricity in the open country is not negligent in requiring an intoxicated man to leave its car in the night time for the non-payment of his fare at a " regular stop for the discharging and receiving of passengers on a public highway, when he, although noticeably intoxicated, was able to walk and talk intelligently.

      H. H. Em merman, for plaintiff.

      Han-t (& Koehler, contra.
   Pollock, J.

The plaintiff in error began an action in the court of common pleas of this county against the defendant in error, alleging in her petition that the defendant was operating an electric railroad from the city of Alliance to the village of Sebring; tha,t. the plaintiff’s intestate, at the time alleged, purchased'a ticket and became a passenger on one of defendant’s" cars, .in-'" tending to ride from the city of Alliance to Sebring; that he was unlawfully ejected from the car by the conductor at a stop on defendant’s road known as No. 47. She further alleges that at the time Arthur Simms was ejected from defendant’s ear he was intoxicated and by; reason thereof was stupid and bereft of intelligence and unable to take care of himself, which was known to the conductor of defendant’s car at the time he was ejected; that it was in the'night time, and that there was no direct road from the stop where he was ejected to Simms’ home except along the line of defendant’s railway where ears were passing frequently at a high and dangerous rate of speed; that shortly after ^Simms was ejected from defendant’s car he was struck by another car of defendant company and killed. She asks damages for negligently causing the death of her intestate.

An answer was filed denying the acts of negligence and alleging that Arthur Simms was guilty of contributory negligence in going upon the private right-of-way of defendant company.

The evidence adduced at the trial in the court below shows that Arthur Simms took passage on one of defendant’s cars at the time alleged, standing on the back platform; that he was intoxicated, and when asked for his fare or ticket he insisted he had a ticket but could not find it. The conductor left him standing on the platform and when the car stopped at the station known as No. 47 to discharge and receive passengers, the conductor again approached him for his fare, and as he did not- produce his ticket or offer to pay his fare, the conductor told him he would have to leave the car. Thereupon he left the car, which proceeded on its journey, leaving Simms standing at the side of the track.

This stop was on a public highway which crossed the tracks of defendant company at right angles, and was a regular stop on defendant’s railroad for discharging and receiving passengers. Shortly afterwards the deceased was found lying on defendant’s track a short distance east of the spot where he was ejected. He had been struck by one of defendant’s cars and injured so that he died shortly thereafter. From Stop No. 47, on the public highway, east to. the point where Simms was struck and killed was the private right-of-way of the defendant company.

On the trial of the case, the court, at the close of the argument, without being requested by either party, submitted five written interrogatories to the jury with instruction that, if they returned a general verdict to return written findings of facts thereto. The jury retired, and afterwards returned a general verdict for the plaintiff and therewith returned answers to the interrogatories submitted by the court.

Upon motion of the plaintiff, the court refused to enter judgment on the general verdict, 'but upon the motion of defendant gave judgment for defendant on the findings of fact contained in the answers to the interrogatories.

The plaintiff claims that the court erred in entering judgment for the defendant upon the finding of the jury to the interrogatories submitted by the court, and refusing to give judgment on the general verdict, for the reason that the court is without authority to require the jury to find specially on particular questions of fact except upon request of a party.

Section 11458 of the General Code provides that the verdict of a jury must be either general or special. The next section defines a general verdict and the following section defines a special verdict. Section 11461 provides that unless otherwise directed by the court, the jury may render either a general or a special verdict and the section following requires the court, on request of either party, to direct the jury to return a special verdict.

We see that under the provisions of Section 11461 the kind of a verdict the jury shall return, whether special or general, does not depend alone upon the request of the parties or the will of the jury, but the court may direct the jury to render either a special or general verdict. Section 11463 provides that upon request of either party, the court shall instruct the jury, if it returns a general verdict', specifically to find upon particular questions of fact to be stated in writing, and shall direct a written finding thereon.

This is usually done by submitting to the jury written interrogatories and directing that if they shall find a general verdict, that they shall make written findings thereon. The next section provides that if the special finding of fact is inconsistent with the general verdict the former shall control.

The plaintiff in error insists that the court can not, except upon a request of one of the parties, require the jury to return with the general verdict specific findings upon proper questions of fact in accordance with the provisions of Section 11463 of the General Code, and if the special findings' of fact 'by the jury are inconsistent with the general verdict, enter a judgment upon the special findings of. fact.

It is evident from a reference to the section of the General Code, which is referred to, that the statute under which the court directs a jury to return a special finding of fact with the general verdict does not specifically provide for the court upon its own motion making such direction, so that if it was not error for the court to do so it must be under the inherent power of the court to direct and control the procedure in the trial of a case.

"We find from an examination of the legal history of the English jury law that the jury had a right to return either a general or a special verdict and the court had no power over the jury to control the form of verdict. (Third Blackstone Com., 377.) This right does not seem to have been accorded to the jury by the courts of this country, or at least the jury has not exercised this privilege. The right of the court to inquire of the jury in regard to its acts while in the jury room considering the case after it had been submitted to the jury was recognized by the Supreme Court of Massachussetts. Hix v. Drury, 5 Pickering, 296.

The practice became common for the trial court to interrogate the jury at the time they returned their general verdict in regard to the grounds on which it was founded, or they could require them to return with their general verdict a finding as to certain facts, the existence of which were material in determining the rights between the parties. This was done upon the direction of the court under its discretionary power for the purpose of enabling tbe court to determine tbe materiality of tbe question upon which the jury based their verdict. Lawler v. Earle, 5 Allen (Mass.), 22; Spoor v. Spooner, 12 Metcalfe, 281; McMasters et al v. The Insurance Co., 25 Wendell, 379-381; Smith v. Putney, 18 Me., 91; Walker v. Walker, 13 N. H., 196.

The practice was within the discretion of the court and could be exercised by it even against the objection of both parties. Spoor v. Shelburne, 131 Mass., 429; Barston v. Sprague, 40 N. H., 22; Walker v. Bailey, 69 Me., 354.

When the answers to these special findings were irreconcilably inconsistent with the general verdict, or the answers to the interrrogatories showed that the verdict was founded upon 'unsubstantial grounds or a misconception of the case, the verdict was set aside. 28 Am. & Eng. Encycl. (1st Edition), 397; Richardson v. Ware, 62 N. H., 80; Pierce v. Woodword, 6 Pick., 206; Parrot v. Thatcher, 9 Pick., 426.

Many of the states now have statutory provisions, similar to those of this state, requiring the court on the request of the parties to direct the jury to find specifically upon particular questions of fact, and return their finding of fact with the general verdict. These statutory provisions do not affect the discretionary power of the court to require the jury to return with the general verdict findings of certain facts which had been recognized by the court before the enactment of the statute, but only extended the right to the parties to demand their submission. Both are in the interest of justice in order to determine whether the general verdict of the jury is based upon the real issues joined in the action. The trial court should have equal power to direct the procedure in the trial of a cause before it with that of the parties.

The right of the court upon its own initiative to require the jury to return specific findings of fact with a general verdict, has been affirmed in a number of states having statutory provisions giving to either party the right to request the court to direct a jury to make such findings and return with their general verdict. Those returned by direction of the court will have the same effect. upon the general verdict as those sub-mitted by request of the parties. Thompson on Trial, Section 2673.

The statute, Section 11463, was adopted from the statute of Indiana on the same subject, and the presumption is that it was adopted with reference to the construction "placed upon the Indiana statute by the courts of that state. Gale v. Priddy, 66 O. S., 405.

The Supreme Court of that state have held that the trial court, under their statute, had the right to submit interrogatories to the jury to be answered by it in case a general verdict is returned.

‘ ‘ The court may, of its own motion, propound to the jury interrogatories to be returned with the general verdict.” Senhenn v.City of Evansville, 140 Ind. 675 (40 N. E., 69); Killian et al v. Eigenmann, 57 Ind., 480; Louisville & C. Co. v. Worley, 107 Ind., 320 (7 N. E., 215); Halstead v. Wood, 95 N. E., 429.

We think the court did not err in submitting to the jury these interrogatories, but was within the discretionary right of the court.

An examination of these interrogatories shows that they were 'all, except the first and fourth, subject to the objection that they were not findings of facts alone, but mixed finding of fact and law. Brier Hill Steel Co. v. Ianakis, 93 O. S., 300.

The fourth interrogatory and its answer are not material to any issue in the case.

'The first interrogatory and its answer read as follows:

“State, if possible, the nature and extent of decedent’s intoxication? A. ITe was intoxicated but not to the extent that he did not know what he was doing at the time of getting off the ear.”

We have examined the evidence in this case, and while the decedent was under the influence of intoxicating liquor at the time he boarded and remained on defendant’s car, yet there was nothing in his conduct that would indicate or notify the conductor of defendant company that he was in a helpless condition, or in fact was not in a condition to know where he was and his surroundings and fully care for himself.

We think that the answer of the jury to this interrogatory is fully justified by the evidence.

He was asked to leave the ear because he had not paid his fare. He said he had a ticket, but neither produced the ticket nor offered to pay his fare in case he could not find it, and when requested to leave the car he did so. He was requested to leave the ear and did leave the car at a regular stop of the defendant company for discharging and receiving passengers and where other passengers were alighting from the car. After this he went upon the private right-of-way of the defendant company and was there struck and so injured 'by another car of defendant company that he' died. There is no testimony tending to prove that defendant’s employees, in charge of the car which actually inflicted the injury that caused the death of plaintiff’s intestate, were in any way negligent. An electric railroad company operating its cars in the open country is not negligent in requiring an intoxicated man to leave its car in the night time for non-payment of his fare at a regular stop for discharging and receiving passengers on a public highway when he, although noticeably intoxicated, was aible to walk and talk intelligently. Elliot on Railroads, Section 1637; Roseman, Admr., v. The Carolina Central R. Co., 19 L. R. A., 327; Korn v. C. & O. Ry. Co., 125 Fed., 897 (63 L. R. A., 872); Bageard v. Traction Co., 64 N. J. L., 316; Smith v. Railroad Co., 114 N. C., 728 (25 L. R. A., 287); Wood v. Commissioners, 128 Ind., 289-291.

The. railroad company was not required to anticipate that any injury would result to plaintiff’s intestate from its requiring him to leave the car at this place after a failure to pay his fare.

After a full consideration of all the evidence we think the judgment of the court 'below is manifestly right and for that reason we are hot authorized to reverse the judgment.

The judgment of the court below is afSrmed. Exceptions noted.

Metcalf, J., concurs; Spence, J., dissents.


source: Caselaw Access Project

author: Hughes, J.

license: Public Domain

text:
    RECOVERY OF MONEY PAID ON A FORGED INDORSEMENT.
    Court of Appeals for Crawford County.
    The Second National Bank of Bucyrus, Ohio, v. The New First National Bank of Columbus, Ohio.
    Decided, May 10, 1917.

      Negotiable Instruments—Money Paid Upon Forged Indorsement— Evidence—Hearsay Rule—Exception Thereto.

    1. A bank which cashes a draft, upon a forged indorsement of the name of the payee, and forwards the same to its correspondent bank with an indorsement by such forwarding bank, of guaranty of all prior indorsements and receiving credit therefor, will be required to repay the amount to its correspondent bank upon discovery of the forgery, even though said draft had been paid by the drawee and the drawee had been repaid voluntarily by said correspondent b^nk.
    2. Declarations or statements of a person are admissible in evidence in ah action between third parties when it appears, (1) that the declarant is dead; (2) that the facts declared of is in relation to a matter concerning which the declarant was immediately and personally cognizable; and (3), that the declaration was at variance with the interest of the declarant.

      Benjamin Meek, for plaintiff in error.

      Edward Vollrath, contra.
   Hughes, J.

~ This is an action to reverse the judgment of the court of common pleas entered upon a directed verdict for the plaintiff •at the close of all the evidence. The facts, briefly stated, are as follows:

On the 31st day of October, 1910, the Zanesville & Western Railway Company made a pay-roll draft payable to the order of James Horton, a supposed employee. Horton was a fictitious person. His name appeared upon the pay-roll through the fraud of Louis Irvin, who was at the time a clerk in the office of the division engineer at Bucyrus, Ohio.

The division engineer prepared the time sheets for the month. After signing, approving and sealing them in an envelope, he deposited them in the office mail box to be transmitted to the home office.

Irvin abstracted the envelope from the mañ box and, after opening the same, wrote in the name of James Horton as an employee, placing opposite his name the amount supposed to have been earned by him during the month, and then replaced the envelope in the mail box.

"When the draft was returned, by similar fraud, Irvin abstracted it from the returning mail, forged the endorsement of Horton and deposited the same with the Second National Bank of Bucyrus, receiving in cash the amount for which it was drawn.

The Bucyrus bank forwarded it to the plaintiff bank, with all prior endorsements guaranteed over its endorsement, and the plaintiff bank in turn offered it to the Toledo bank and the draft was, by the Toledo bank, presented to the railroad company and paid.

Thereafter the railroad company discovered the fraud and forged endorsement, returned the draft to the Toledo bank and received credit therefor. The Toledo bank in turn returned it to the Columbus bank and received credit therefor, but when the Columbus bank returned it to the Bucyrus bank demanding credit therefor, the same was refused and this suit was to recover thereon.

We have related the history of but a single draft. There were two drafts involved, but the history of one is the history of both.

At the trial, the court permitted a witness to relate a statement made by Louis Irvin, after he had been arrested for the forgery, in which Irvin stated the facts above chronicled in so far as they concerned his connection with the forgery.

Before this evidence was introduced, it was shown that Irvin was a clerk in the office of the division engineer; that he had access to the mail and that he had died shortly after his arrest.

There are two questions involved for determination:

First. Is the Bucyrus bank liable to the Columbus bank under the above outlined facts? And,

Second. Is the statement of the deceased Irvin competent ?

Mr. Daniel, in his work on negotiable instruments, Section 1369 and following, says:

“It is a general principle of law that money paid under a mistake of fact, may be recovered back. And accordingly where one pays money on forged paper by discounting or cashing it he can always recover it back, provided he has not himself contributed materially to the mistake by his own fault or negligence, and provided that by an immediate or sufficiently early notice he enables the party to whom he has paid it to indemnify himself as far as possible.”

Along this same line it has been held that the action for money had and received, lies in all 'cases where one has the money of another which he can not in equity and good conscience retain. It lies, therefore, for money paid on a negotiable instrument by mistake or upon a consideration which has failed, because in such case the plaintiff did not intend to give his money to the defendant and later can not conscientiously retain money for which he has given no equivalent. 3 R. C. L., page 1291, and note 4.

So also, money paid upon the forged endorsement of a bill or check may be recovered. The holder, whether he endorses the instrument or not, warrants the genuineness of all prior endorsements. If, therefore, an instrument upon which the name of a prior endorser has been forged is paid, the amount may be recovered from the party to whom it has been paid or from any party who endorses -it subsequent to the forgery. 3 R. C. L., 1296, note 11.

And so where a stranger to the instrument forges the payee’s endorsement thereto and transfers it to another who presents it to the drawee and receives payment, it is held that the payee may recover the amount from the person thus receiving payment.

Hence, if the facts in this case have been proved by competent evidence, the judgment of the trial court is correct.

Was the evidence of the statements of Louis Irvin, deceased, competent?

This evidence is clearly hearsay and if competent it must come within one of the exceptions to the general rule that hearsay evidence is not proper evidence.

It has been laid down in the text-books that an exception to the hearsay rule admits declarations of deceased persons under certain circumstances.

“But, to render them admissible, it must appear that the declarant is deceased; that he possessed competent knowledge of the facts, or that it was his duty to know them; and that the declarations were at variance with his interest. When these circumstances concur, the evidence is received, leaving its weight and value to be determined by other considerations. .

“The ground upon which this evidence is received is the extreme improbability of its falsehood. The regard which men usually pay to their own interest is deemed a sufficient security, both that the declarations were not made under any mistake of fact or want of information on the part of the declarant, if he had the requisite means of knowledge, and that the matter declared is true.” Greenleaf on Evidence, Sections 147-148.

This rule has, in a way, been recognized by our Supreme Court in the case of Bird, Admr., v. Huston, 10 O. S., 418.

In a well considered ease reported in 16 Iowa Reports, at page 81, County of Mahaska v. Ingalls, the court has held that verbal declarations aré receivable in evidence in an action between third parties when accompanied by the following prerequisites: first, that the declarant must be dead; second, the declaration must have been against the pecuniary interest of a declarant at the time it was made; third, the declaration must be of a fact in relation to a matter concerning which the declarant was immediately and personally cognizable; and, fourth, the court should be satisfied that the declarant had no ¡probable motive to falsify the fact declared.

We hold, therefore, that the evidence of the declarations of Louis Irvin, deceased were properly admitted.

It must follow, that the judgment of the trial court is correct and must be affirmed.

Render, J., and Crow, J., concur.


author: Farr, J.

text:
    LIABILITY OF GUARDIAN UNDER. CONTRACT FOR BENEFIT OF WARD.
    Court of Appeals for Makoning County.
    Thomas Payne v. Frank Rech, as Guardian.
    Decided, March 14, 1917.

      Guardian of Minor—Bight of Action Against, in Bepresentative Capacity.

    Wkere tke guardian of a minor contracts witk a tkird person for services to ke rendered in kekalf of suck ward or kis estate, and suck services are rendered, suck tkird person can not maintain an action at law to recover for suck services against tke guardian in kis representative capacity.

      Fred J. Seim and S. G. Simpson, for plaintiff in error.

      J. S. C. Lyon and S. B. Mitchell, contra.
   Farr, J.

Thomas Payne, the plaintiff in error, brought an action in the municipal court of the city of Youngstown to recover from the defendant in error, Frank Rech, as guardian of his minor son, Leo Rech, for services claimed to have been rendered by said Payne by agreement with said guardian, in connection with a suit for damages brought by the nest friend of said minor for some personal injury claimed to have been sustained by. said.minor in an accident on one of the numerous railroads of said city of Youngstown. The petition in the court below alleges that said Payne, 'by agreement with said guardian, assisted in. the prosecution of said claim for damages in the way of making investigations, securing witnesses and otherwise aiding in the successful conclusion of the litigation incident thereto. Said cause was duly heard in the municipal court, from the judgment of which an appeal was taken to the Court of Common Pleas of Mahoning County where a trial to a jury resulted in a verdict for plaintiff. A motion for a new trial was made and sustained; application made and leave given to withdraw the answer, which was a general denial; a demurrer was then filed to the petition which was later sustained and the plaintiff not desiring to plead further, error is prosecuted in this court; the parties sustaining the same relation here as in the court below.

It will be observed that the issue raised here is whether a third person contracting with a guardian of a minor, whereby services are rendered by such third person in behalf of the estate of such ward can maintain an action against such guardian in his trust capacity, or whether suit can be maintained only against the guardian personally.

Judge Rock el observes in his Ohio Probate Practice, Yol. 2, Section 1402, under the head, "Employment of Attorneys, Agents,” etc., in part as follows:

‘ ‘ The guardian likewise has a right to employ agents wherever necessary, but allowance for these matters, rests largely if not entirely in the discretion of the probate court. ’ ’

Judge Y7oerner pertinently observes in his "American Law of Guardianship ’ ’ at page 185, in part as follows:

"As a general proposition, guardians can not by their contracts bind either the person or estate of their wards. Such contracts bind the guardians personally, and recovery thereon must be had in an action against them, not against the ward. Rollins v. Marsh, 128 Miss., 116, 118; Adams v. Jones, 8 Mo. App., 602; Dalton v. Jones, 51 Miss., 585; Elson v. Spraker, 100 Ind., 374.”

And to the same effect said author states the rule at pages 164, 272, 281 and 470, and at page 192 he observes:

"Actions on such contracts must be brought against the guardians personally, not against their wards. Forster v. Fuller, 6 Mass., 58; Stevenson v. Bruce, 10 Ind., 397; Tobin v.-, 2 Strobh. L., 3; Hunt v. Maldonado, 89 Cal., 636.”

Likewise it is stated in 21 Cyc., at page 193 as follows:

“Actions by Third Persons Against Guardian or Ward—Actions Against Guardian—According to. the weight .of authority;. a suit against a guardian on a contract touching his ward’s estate is personal against him and he can not be sued on such contract in his representative capacity so as to make the estate of the ward liable to be taken on execution.”

And again at page 115, it is likewise stated that a guardian can not by his contract bind either the person or estate of his ward, even for the benefit of the ward, whether for support and maintenance or in the management of his estate, and that the guardian is personally and solely liable, and the text is supported by a large number of cases from more than a score of states. The foregoing text is supported by 15 Enc. of L. (2d Ed.), page 77. The Indiana law relating to guardianships is very similar to that of Ohio and the above cited case of Elson v. Spraker, 100 Ind., 374, is in full accord witht the foregoing and cites the earlier cases of Lewis v. Edwards, 44 Ind., 333; Stevenson v. Bruce, 10 Ind., 397; Clark v. Casler, 1 Ind., 244. To Massachusetts does Ohio owe her greatest debt for probate law and procedure, and the above case of Rollins v. Marsh, 128 Mass., 116, is well in point in principle with the case at bar. In above case it is held that:

“A contract by a guardian for the support and care of his ward binds the guardian personally and not his ward.”

The foregoing is supported in principle by Elliott on Contracts, Vol. 1, Sections 522 to 526 inclusive. The case of Hurd et al v. Ry. Co., 4 N. P., 404, is in point with the case at bar and in which it was held that an action could not be maintained for attorney fees against the administrator of an estate or the guardian of minor wards heirs at law of such estate for legal services rendered in behalf of such estate. The above case was affirmed in Connell v. Baumback, 18 C. C., 502, first section of the syllabus as follows:

“There is no cause of action that can be maintained against either of these representative parties, either the administratrix or the guardian, in their representative capacities.”

..It .is well settled in this jurisdiction that a suit can not be maintained against an executor or an administrator for services rendered by an attorney in behalf of such estate. Thomas, Adm’x, v. Moore et al, 52 O. S., 201, 205; 1 Rochet, Section 507; McBride v. Brucker, Adm’r, 5 C. C., 12; 3 C. D., 7; Mellen v. West, Adm’r, 5 C. C., 89; West v. Dean, 8 C. D., 779; Lucht, Adm’r, v. Behrens, 28 O. S., 231; In re McAlpin, Decd., 8 Dec., 654, 656.

It is urged in argument, however, that such action may be maintained under favor of paragraph 5 of Section 10933, G. 0., which reads as follows:

“To pay-all just debts due from such ward out of the estate in his hands, and collect all debts due- to the ward; in case of doubtful debts, to compound them to appear for and defend, or cause to be defended, all suits against his ward.”

How less could a guardian’s duties be defined and still permit him to serve in a trust capacity for a minor, so frequently incapable of representing or understanding his own interests? The very nature of the relation between guardian and ward suggests the impropriety of permitting the guardian by contract to bind the ward’s estate in such manner as to render it liable to execution. The above section is not susceptible of such interpretation as to permit the maintenance of a suit against a guardian in his representative capacity.

The cases of Kingsbury v. Powers, 22 N. E., 479; Bemiss v. Bemiss, 110 U. S., 42; In re Haynes, 12 N. E., 60; Fillmore v. Wells, 15 Pac., 343; 18 N. H., 15; 21 N. H., 204, are cited by plaintiff in error as sustaining his right to recover from the guardian in his representative capacity but a careful examination of said cases discloses that they pass only upon the right of a guardian to employ counsel or incur other expenses in the interest of a ward’s estate and that such services are a proper credit against such estate, and in one instance, at least, that a court of equity would so decree. Said cases are correct in principle, but not in point with the case at bar. The reason for the rule that an action at law can not be maintained against a guardian as such is obvious; there can be no contractual relation between a minor and another person; he e'an not bind his estate nor can it be directly obligated except through the medium of the probate court,, created for the express purpose of safe-guarding all such interests. To hold otherwise would be to destroy in part, at least, the rather,delicate fabric of probate jurisprudence. Persons contracting with guardians if not aware of their representative capacity, have the right of action against such guardian personally, and are no worse off when the truth is.discovered. If fully advised, they must assume the risk which they voluntarily incur. The law of Ohio does not provide for the filing of a claim against the estate of a ward, but it was held in the case of Turner v. Flagg (Appellate Court of Indiana), 33 N. E., 1104, that where a person has a legal and equitable claim against the estate of an infant ward, he may present his claim against the guardian in the probate court and secure an order for the payment of such amount as the court may deem proper. It was likewise held in Appeal of Price (Penna.), 9 Atl., 856. It is certain, however, that he may maintain an action against the guardian personally, or act through the medium of the guardian’s account in the probate court.

There is no error in the holding of the court below, and it is therefore affirmed.

Pollock, J., and Metcalfe, J., concur.


author: Shields, J.

text:
    DAMAGES FOR. BREACH OF PROMISE TO MARRY.
    Court of Appeals for Stark County.
    Robert R. Jacob’s Administrator v. Ellen W. Canine.
    Decided, February Term, 1917.

      Breach of Promise to Marry—Contract May he Inferred from Conduct and Declarations, When—Amendment of Petition After Verdict Alleging Ruthless and Wanton Conduct on the Part of the Defendant as a Basis for Exemplary Damages Not Erroneous—New Trial Can he Granted on Newly-Discovered Evidence Only Upon a Showing of Due Diligence—Admissions of Plaintiff to Third Parties—• Death of Defendant After Return of an Adverse Verdict.

    1. In an action for breach of promise to marry it is not erroneous to instruct the jury to the effect that if the conduct, acts and declarations of the parties are shown to have been such as would lead reasonably prudent men to infer that they intended to become man and wife, the jury would be justified in concluding that a contract for marriage had been entered into between them.
    2. The general rule, which limits recovery for breach of promise to the pecuniary loss sustained, does not apply where the promise was broken abruptly or under humiliating circumstances; and an instruction to the jury that, if the making and breaking of the promise was ruthless and wanton, exemplary damages may be awarded is not erroneous, and where the petition contains no allegation upon which such damages might be based the trial judge may, sua sponte and even after a verdict challenging the award of such damages, order that the petition be so amended as to conform to the facts as shown by the evidence.
    3. Counsel for the defendant in a breach of promise action, who have offered evidence as to the adventuresome character of the plaintiff, must be presumed to have notice of the range of testimony which such a charge would undoubtedly draw out, and can not on motion for a new trial claim due diligence in the preparation of his case with reference to meeting the evidence offered for the. purpose of refuting the charge so made.
    4. Newly-discovered evidence, tendered in support of a motion for a new trial, and having reference to alleged admissions made by the plaintiff as to her relations with the defendant, should be- scruti-

      nized closely and received with caution, and as the effect of such evidence would be to discredit or impeach the plaintiff it must be regarded as cumulative and not material to the issue and insufficient to sustain the motion.
    5. The death of a defendant in an action for breach of promise, after the return of an adverse verdict and the filing of a motion for a new trial, does not work an abatement of the action under Sections 11397 and 11235, General Code.

      Webber & Turner and Wendell Eerbruck, for plaintiff in error.

      J. M. Bailey and Poniius & McDowell, contra.
   Shields, J.

This is an action brought in the court below by Ellen W. Canine, plaintiff below, to recover $50,000 damages of Robert R. Jacob, defendant below, for an alleged breach of promise of a contract of marriage.

The petition of the plaintiff is in the usual form and the answer of' the defendant is a general denial. The trial resulted in a verdict and judgment in favor of the plaintiff in the sum of $10,500, and a petition in error is filed in this court to review the proceedings of said trial and to reverse said judgment.

Numerous grounds of error are alleged in said petition in error for said reversal, "and while we will consider such grounds of error as were specially urged in oral argument upon this court in behalf of the plaintiff in error, it will be apparent that for want of time and space for an opinion, several of the allegations of error therein can only be generally referred to.

First, as to the specification of error under subdivisions Nos. 1 and 2 relating to the admission and rejection of evidence during the trial. Under this head we are not cited to any specific instances in the record where the rulings of the court below are claimed to have affected the interests of the plaintiff in er.ror prejudicially in either of the respects mentioned, hence we were obliged to rely upon a reading of the record to determine whether or not there is any good and sufficient ground for the contention made. In a volume covering several hundred pages of testimony, it is not unnatural to find more or less technical errors, and'we find this record not to be an exception to'the rule, and we further find that in some instances the court below admitted and rejected testimony, which action of said court was erroneous, but not prejudicially erroneous, and we therefore hold that such rulings of said court afford no ground of error for which the judgment below should be set aside.

As to the specification of error "under subdivisions Nos. B and 4 in respect to the court below overruling the motion of the defendant below, submitted at the close of the case of the plaintiff below, and again renewed at the close of all the evidence in the case, an examination of the entire evidence in the bill of exceptions is found not to be necessary to satisfy the court that under the well recognized rule of law in this state making it the duty of the trial court to submit to the jury for determination all disputed questions of fact arising out of the trial of a ease, under proper instructions, the trial court in this instance did not commit error in overruling said motion. In thus holding we recognize the faith of the agreement made between the parties hereto as the same appears on page 384 of the record whereby the question of a common law marriage was to be eliminated from the case, and which was so eliminated by an express instruction of the trial court to the jury as the same appears on page 385 of the record, and which is as follows:

“The question of a common law marriage you will not consider in any way, shape or form, as that has been taken out of the case by agreement of counsel for both plaintiff and defendant.”

Hence our examination of the record evidence was not made without a due observance of - the limitations of this agreement and the same will be observed in the further consideration. of the case.

As to the specification of error under subdivision No. 5, it is urged that the court below erred in its charge to the jury. Among other things, on p. 391 of the record said court instructed the jury as follows;

“The consideration of a contract in law is mutuality of promise, whereas a consideration in marriage is the affection between the parties; but we must say that every civil contract is founded upon a consideration, and so we say in law that the consideration for a contract of marriage is a mutual promise made by each of the parties. In testing this kind of a contract as we do ordinary civil contracts it is essential to constitute a contract to marry that there must be a meeting of the minds of the contracting parties, that is, there must be an offer on the one side and an acceptance on the other. Also contracts of marriage may be inferred from the acts and the declarations and from the conduct of the parties. 'That is, if the acts and declarations and conduct of the parties are such as would lead reasonably prudent men to believe and infer that the parties intend that they should become man and wife then the jury would be justified in concluding under all the circumstances that a contract of marriage had been entered into between the parties.”

It is the two latter clauses of said paragraph that are objected to as being erroneous, commencing with “Also .contracts of marriage may be, ’ ’ etc., and running to the end of the paragraph. Referring to said instruction, counsel for plaintiff in error in their behalf say:

“In the instruction given, the trial judge distinctly told the jury that if it is found from the evidence that the intention to marry resided in the minds of the parties the jury would be justified in finding that a contract of marriage had in fact been entered into.”

It is said that the language used in a charge to a jury is sometimes capable of more than one construction, but we do not think it too much to say that a fair and reasonable construction of the language used in the foregoing paragraph admits of but one meaning, and one in harmony with the other parts of said charge on the same subject. Counsel for plaintiff in error contend that a construction and meaning of said charge is as above stated by them. We do not so construe it, and applying the rule of construction mentioned, we think it means that marriage contracts anay also be inferred from the acts, declarations and conduct of the parties and not from the evidence that the intention to marry resided in their minds. As laid down in Volume 4, Ruling Case Law, Section 26:

‘ ‘ The promise may be inferred from the circumstances which usually attend an engagement. And so it has been held that a promise may be inferred from proof of intimate and frequent association at the time of and prior to the engagement; of the voluntary admissions and declarations of the defendant, including his admissions made by letter and declarations and admissions of the plaintiff made in the defendant’s presence, and preceding the alleged breach; or of acts or conduct of the plaintiff in the presence of the defendant, her declarations or statements made in his presence; and, in certain cases, the acts and declarations of the plaintiff, without the presence of the defendant, such as her preparations for the marriage, and communications by her to her own family of the fact of her engagement to marry.”

This view is sustained by many decisions in this state and elsewhere. In thus instructing the jury we do not think the trial court erred to the prejudice of the plaintiff in error.

It is also contended that the court below erred in charging the jury upon the subject of punitive damages. Counsel for plaintiff in error say that plaintiff’s petition contained no allegation for such damages; that no intimation was given by counsel for the plaintiff during the entire trial that such damages would be claimed, or were claimed; that no request was made by the defendant in error for any charge upon said subject, but that the trial court charged the jury on said subject as the same appears on p. 397 of the record:

“If the defendant’s conduct in the matter of promise and the breaking of it, if you find it was ruthless and wanton toward plaintiff, you may if you think it proper under all the circumstances of .the case, in addition to compensatory damages award exemplary damages in such sum as you may think proper under the circumstances.”

We do not understand that said charge in form is objected to or that the same is not proper, if the question of punitive damages was in the case, bnt counsel for plaintiff in error contend that such damages have no place or right to be considered in said case, and therefore the court below erred in so instructing the jury. . And in this connection, also, the right of the trial court, sua, sponte, to consider an amendment to be made to the plaintiff’s petition after verdict is challenged.

Strictly speaking the basis of recovery for damages in a civil action is the cause of action set up in the plaintiff’s petitiov. but the evidence in the trial of such case may lead to such developments, apparently outside of the strict letter of the petition, as to require the court to instruct the jury as to the legal effect of such evidence. For instance, in an action for damages for assault and battery it is held in the case of Roberts v. Mason, 10 O. S., 277, that where an action “involves the ingredients of fraud, malice or insult, a jury may go beyond the rule of mere compensation to the party aggrieved and award exemplary or punitive damages. ’ ’ This- case was for damages for assault and battery only, but it appears that the scope of the evidence was such as to show the existence of malice and insult, and the jury were instructed that if the circumstances as shown in'the evidence warranted it, they might award exemplary or punitive damages in addition to compensatory damages. No special averment of exemplary or punitive damages in the petition was made in that case, but the elements of malice and insult appear to have been developed in the proof during the progress of the trial. So in the case before us, if the petition charged and the evidence disclosed wantonness or malice or other grounds of aggravation in the relations of the plaintiff in error toward the defendant in error, the damages would not be confined to the actual' pecuniary loss suffered by the defendant in error, but the jury would be authorized to allow exemplary or punitive damages in addition to compensatory damages, and in a proper case where the evidence justified it, it would be the duty of the trial court to instruct the jury upon the same, even in the absence of any request on the part of counsel, the duty-of the trial court being to instruct the jury upon the law arising out of the pleadings and evidence in the case. And in a proper ease, the trial court may charge that vindictive damages are recoverable. In this connection, we cite the ease of Duvall v. Fuhrman, 3 C. C., 305, which was affirmed by the Supreme Court, Judge Cherrington speaking for the court, after discussing the right of the jury to consider the property rights of the defendant in that ease, after the breach of the contract, says:

“It is well settled that the jury may give punitive damages, on account of the conduct of the defendant subsequent to the breach of the contract, even on account of the defense he sets up, the testimony he gives, and the manner in which he conducts the defense before the jury. It was claimed by the plaintiff below that the conduct of the defendant'below was peculiarly insulting on the trial, and intended to degrade and disgrace her. If the jury so believed, they might give vindictive damages without any regard to his property, no matter when it was acquired. ’ ’

True, the general rule is that in a ease for breach of contract the party’s recovery is limited to the pecuniary loss sustained, but it is held that this general rule does not apply to a case for breach of promise of marriage, wherein if the promise is shown to have been broken abruptly or under humiliating circumstances, or if the defendant acted maliciously and in a way •to injure the plaintiff’s character, punitive damages may be recovered. Johnson v. Travis, 33 Minn., 33; Thorn v. Knapp, 42 N. Y., 474; McPherson v. Ryan, 59 Mich., 33.

Here the jury were instructed upon the subject of punitive damages on the theory, no doubt, that the evidence called for such instruction, although it appears that an amendment was ordered to be made to the plaintiff’s petition having special reference to this subject of damages, -after trial, presumably to conform the same to the case made by the evidence, under statutory authority, as claimed, and to which reference will hereafter be made.

Here the record shows the entire history of the incidents leading up to this suit, including the trial, and it was for the jury to say what the conduct of the plaintiff in error toward the defendant in error was, whether or not under all the evidence there was good and sufficient cause shown to authorize the application of the rule of law given to them in charge by the court, and if so, to what extent, in the exercise of a sound discretion.

As was said by the distinguished judge in announcing the opinion in the case of Roberts v. Mason, supra, as illustrating the rule of law therein laid down:

“In a case of this kind, twelve intelligent and impartial men, acting under oath, and subject in a proper case to the control of the court, are not likely to do any great wrong; and it seems to us that the power which this rule confers upon a jury may, in practice, operate as a salutary restraint upon the evil passions of bad men.1 ’

We think the instruction given was proper and in so giving it the trial court did not commit prejudicial error to the cause or interests of the plaintiff in error.

It is also argued that the court below erred in ordering upon its own motion, after verdict but before the journal entry overruling the motion for a new trial was filed, the plaintiff’s petition to be amended by inserting at the end of the twelfth line of the second page thereof the following:

“And that each and every act of defendant in promising to marry plaintiff and his subsequent refusal to marry her are ruthless and wanton. ’ ’

This amendment, it is claimed, was ordered to be made under favor of Section 11363 of the General Code, which provides:

“Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect, or by inserting other allegations material to the ease, or, when the amendment does.not sub-sequently change the claim or defense, by conforming the pleading or proceeding to the facts proved. When an action or proceeding fails to conform to the provisions of this title, the court may permit either to be made conformable thereto, by amendment. ’ ’

!

"Whenever before the courts for construction, it has been held that this statute gives to the trial court discretionary power over amendments to pleadings, and such amendments may be made by said courts upon their own motion. Becker v. Walworth, 45 O. S., 169-175; Logan, Admrx., v. Thrift, 20 O. S., 62; Benninger v. Hess, 41 O. S., 64-69; Railway v. Wysing, 8 C. C., 211; Bartour v. Miles, 14 C. C., 628-635; Wicker et al v. Messinger et al, 22 C. C., 712.

Here it appears that the amendment made falls within the provisions of said section, and that the action of said court was but the exercise of discretionary power conferred by said section. True, counsel say they were taken by surprise, and it may be they were, but it seems that the trial court “in furtherance of justice” felt called upon to order said amendment made, perhaps to conform the petition to the facts which the evidence tended to prove. An examination of the record fails to show that any objection was made to the introduction of evidence bearing upon the feature of the ease sought to be covered by the amendment, and the court having charged upon the subject of punitive damages as if said amendment had been incorporated in said petition, we think that under said section it was not an abuse of power or discretion upon the part of the trial court in ordering said amendment made.

It is also contended “that the damages awarded to the plaintiff below are excessive in amount, appearing to have been given under the influence of passion or prejudice.” In the absence of a showing in support of this allegation, we take it that a contrary presumption would appear. Quoting from the opinion in the case of Duvall v. Fuhrman, supra, which was a case for damages for breach of promise of marriage, the judge speaking for the «ourt on page 312 says:

“In actions of this nature, the courts rarely interfere to set aside a verdict as excessive. If the damages are so flagrantly outrageous and extravagant, as to evince intemperance, partiality or corruption on the part of the jury, it is the duty of the court to reduce the amount or set the verdict aside, according to the circumstances.”

¥e find none of the elements referred to in the above case present-in this case, and assuming that the jury was composed of fair, upright and intelligent men, we would not be disposed to discredit their judgment by substituting our own in the absence of good and sufficient reasons therefor. This ground of error is held not to be well taken.

It is urged that the verdict of the jury is not sustained by sufficient.evidence, that it is against the manifest weight of the evidence and contrary to law. If counsel are right in behalf of their contention on either of these propositions, then this verdict ought- not to stand. Without rehearsing the evidence embraced in the two separate large volumes making up the record in this case, it will be sufficient to say that we have read all the evidence therein, including the exhibits, ’ and while there appears to be a marked conflict in the evidence of the parties hereto upon the material and controlling issue in this case, namely, whether or not it was a promise on the part of the plaintiff in error to marry the defendant in error and a like promise on her part to^ marry the former and a mutual agreement to marry each other, and that afterward the plaintiff in error,-although requested to do so, refused to marry the defendant in error, and between other witnesses upon other issues involved herein as well, such evidence and all the other evidence relating to'the subject-matter'of this suit involved questions of fact, which were the sole province of the jury to determine, •and having determined them, with, a record before us tending to sustain the claim of the plaintiff below that a promise to marry was made and broken as alleged in her petition, although denied by the defendant below, as a reviewing court we do not feel justified in disturbing the verdict of the jury «or judgment of said court on either of the grounds stated.

.' Thus far we have considered the several contentions of counsel for the plaintiff in error, involving as they do, a review of several of the material questions arising during the trial, and some after trial and before judgment, but we are still met with the question as yet undisposed of, and presented with great vigor by counsel, and that is, the subject of newly-discovered evidence. Indeed, this branch of the case has given the. court more concern than any other. Unlike many, questions that arise out of a case during the progress of a trial, or even after trial, when the determination of an issue rests with the court, the law in most cases furnishes a means of solution, for such questions or issue, and while the law in the case before us also furnishes certain rules as aids in the execution of judicial duty, still the rule to be applied in the ultimate determination of the question made here rests in a sound discretion to be exercised by the court.

The provision relating to new trials is to be found in Section 11576 of the General Code, which provides:

“A former verdict, report or decision, shall be vacated, and a new trial granted by the trial court on the. application of a party aggrieved, for any of the following causes affecting materially his substantial rights. ”'

Subdivision 7 of said section provides that one of said grounds or causes is “newly-discovered evidence, material for the party applying, which with reasonable diligence he could not have discovered and produced at the trial.”

The requisites here pointed out are so plain as that neither time nor space need be taken in their explanation.

Perhaps the best digest of the rules governing courts in granting new trials upon the ground of newly-discovered evidence is to be found in Volume 14, Enc. of Pleading and Practice, p. 791, which is as follows:

“A new trial will not be granted on the mere showing-that new evidence has been discovered. Newly-discovered evidence, 'in order to be sufficient, must fulfill all the following requirements. First, it must be such as will probably change the result, if a hew trial is granted. Second, it must have been discovered since the trial. Third, it must be such as could not have been discovered before the trial by the exercise of due diligence. Fourth, it must be material to the issue. Fifth, it must not be merely cumulative to the former evidence. Sixth, it must be not merely impeaching or contradicting the former evidence.”

It will be observed that the foregoing embraces the general rules applicable to the subject treated of, the law of each state, of course, being governed by the adjudications of such state. In this state, for instance, the law is somewhat different than that stated under the first subdivision of the rules enumerated relating to the legal effect of the alleged newly-discovered evidence. ■ Referring to the case of Moore v. Coates, 35 O. S., 181, Judge Okey, speaking for the court in that case, says.:

“These authorities show that, motions for new trials based on that ground (newly-discovered evidence) are not favored. In construing our former statutes, that rule was not disregarded. The motion was denied if the mover had been guilty of laches. ’ ’

And in Ludlow v. Parks, 4 Ohio, 43045, it was said:

‘ ‘ In considering the motion, the court will not inquire whether, taking the newly-discovered evidence in connection with that exhibited on the trial, a jury might be induced to give a different verdict, but whether the legitimate effect of such evidence would be to require a different verdict.”

See also, Railroad v. Long, 24 O. S., 133; Traction Co. v. Fessler, 12 C.C.(N.S.), 566.

Leaving this subject for the present, let us inquire concerning the history of this action, when it was commenced, etc., as bearing upon the diligence required by said statute, 11576, General Code, as a prerequisite to the granting of a new trial upon the ground of newly-discovered evidence. '

The transcript shows the following:

1915, July 2. Petition filed.

1915, November 12. Answer filed.

1916, February 18. Verdict for $10,500.

1916, February 21. Motion for new trial filed.

1916, March 2. Death of defendant suggested. .

1916, June 23. H. W. Barnhart, administrator with the will annexed of Robert PI. Jacob, made party defendant and ordered that said action proceed in his name as such defendant.

1916, June 23. Motion to set aside verdict and for a new trial overruled and judgment entered on verdict.

It thus appears that some eight months intervened between the commencement and trial of said action, and that during said time it also appears that depositions of witnesses were taken in the city of Indianapolis, Indiana, at different times, by both the plaintiff in error and defendant in error, under proper notice served for such purpose. That on the occasion of the plaintiff in error taking such depositions, the depositions of Mary Myers and Ida Crane were taken, on whose evidence the motion for a new trial on the ground of newly-discovered evidence is based. It appears that counsel for plaintiff in error were present and cross-examined at the taking of such depositions, thus affording the plaintiff in error opportunity of learning who said witnesses were, their relations to the defendant in error, their occupation, their residence, etc. It likewise appears that counsel for plaintiff in error, after such depositions were taken, served notice to take the depositions of witnesses in said city of Indianapolis for the plaintiff in error, and went to said city for that purpose. In support of said motion for a new trial an affidavit of counsel for plaintiff in error was filed setting forth that neither the plaintiff in error nor his'counsel were in possession of any fact or facts known by said two witnesses or either of them concerning the issues of this case other than as testified to by them in their depositions taken. As the statute cited requires, and as is held in numerous cases of this state, one applying for a new trial on the ground of newly-discovered evidence must show reasonable diligence to obtain the testimony of witnesses sought before trial, and it must further appear that such testimony could not have been discovered and produced at said trial by the exercise of reasonable diligence. Considering the intelligence and experience with the world’s affairs of the plaintiff in error as evidenced by his testimony, his letters to the defendant in error 'and otherwise, 'it would seem that the commencement of this action coupled with his alleged knowledge of the adventuresome character of the defendant in error, as claimed, would have been notice to him to prepare his case accordingly. He knew of the charge made, what range of testimony the charge would undoubtedly take, that the defendant in error then resided and for many years theretofore had resided in the city of Indianapolis, where her friends and acquaintances also resided, and among them the two witnesses named, Mary Myers and Ida Crane, whom he, or at least his counsel, had personally met after the taking of their depositions and interviewed them concerning this case, and also knew that the defendant in error apparently had been disappointed in the testimony given by said two witnesses in their depositions. Under this state of facts, does it appear that reasonable diligence was used to obtain the testimony of these witnesses at the trial and that their testimony could not have been discovered by reasonable diligence? Nothing appears to show that these witnesses, or either of them, were not in the city of Indianapolis where their depositions' could have been taken at any time before trial, if desired. Of course, we are aware it sometimes happens that litigants are deprived of the benefit of the testimony of witnesses, unknown to them at the time of trial, but where a party has knowledge, or the means of knowledge, which if followed up would have led to the discovery of the evidence before trial (as in this ease) and on which an application for a new trial is based, on the ground stated, a new trial will not be granted. Wright v. Southern Express Co., 80 Fed. Rep., 85.

Again, following the suggestion made that the plaintiff in error 'had reason to anticipate the character of the testimony to be produced against him on the trial, in view of the charge made in the petition, we call attention to an extract from the case note made under the case of Graves v. Graves, 10 L. R. A. (N. S.), p. 216, wherein the question of different causes for a hew- trial are discussed.

“Some of the eases turn on the question of negligence in the preparation for trial; and it is held that, where the unsuccessful party has had his day in court, knowing what the issues were, and the sort of testimony his adversary was likely to produce, he should have been ready then and there to meet arid prove its falsity. If any relief is to be granted, it'must be for something discovered after the trial which could not with due diligence have been made available there.”

Assembling all the facts on this branch of the case, we are inclined to the view that the case is one of doubtful propriety, at least, authorizing a new trial on the ground that reasonable diligence has been shown to obtain the testimony of these two witnesses, or that the same could not have been obtained by reasonable diligence.

Said subdivision 7 of Section 11576, General Code, provides that the newly-discovered evidence must also be material to the issue in the case.

Assuming that reasonable diligence has been shown to obtain the testimony of said two witnesses, Mary Myers and Ida Crane, would their testimony be material to the issues here and not be cumulative to the evidence already offered by the plaintiff in error? If no such evidence had been offered, there could be but one answer to the question, because said witnesses in their affidavits state that certain admissions were made to them by the defendant in error—admissions affecting her relations with the plaintiff, in error—which would be competent as evidence against the party making them.

But would the legitimate effect of such evidence, if introduced on the trial, when taken in connection with that already introduced on the trial, be to require a different verdict, as was held in the ease of Moore v. Coates, 35 O. S., 177, already cited? Not that it might produce a different verdict, but would the legitimate effect of such evidence be to require a different'verdict, when considered in connection with that introduced on the trial? It will be noticed that the evidence proposed to be offered is in the nature of admissions only. Under the rules of evidence, admissions made to third parties are always to be closely scrutinized and to be received with great caution. ‘Considering the statements made in said two affidavits, which are substantially the same and which are denied by the defendant in error, the question arises, are they material to the issue in the ease, if testified to, and if material and testified to, would their effect be anything more than to discredit or impeach the testimony of the defendant in error on matters concerning which evidence has already been given? And, further, would not such evidence be, not evidence of new and distinct facts, but of an inconclusive and cumulative character in sustaining the witness, Clara Brown, in her testimony of alleged admissions made to her by the defendant in error? We are of the opinion that it would be, and it is a well settled rule of law that a new trial will not be granted on the ground of newly-discovered evidence when the new evidence relied on is merely cumulative to that introduced at a former trial. So we hold that the evidence proposed as contained in said two affidavits is not material to the issue or issues involved herein and that the court below was not guilty of a manifest abuse of discretion, or of any abuse of discretion, in overruling said motion for a new trial on the ground of newly-discovered evidence.

Considering the provisions of Sections 11397 and 11235 of the General Code, we are of the opinion that the death of the plaintiff in error, under the status of the case at the time of his said death, did not work an abatement of this action, and therefore the court below did not err in ordering said action to proceed in the name of the administratrix of said decedent’s estate.

Finding no error in the record prejudicial to the legal rights of the plaintiff in error, the judgment of the court of common pleas will be affirmed and said cause will be remanded to said court to carry said judgment into execution.

Powell, J., and Houck, J., concur.