text:
    INSURANCE POLICY INTERPRETED “MOST STRONGLY AGAINST THE INSURER.”
    Court of Appeals for Mahoning County.
    Leah M. McKelvey et al v. The Eureka Fire & Marine Insurance Company and The Security Fire Insurance Company.
    Decided, October Term, 1913.

      Wire Insurance — Policy Construed in Harmony with the Known Intention of the Parties Thereto — Other Insurance Permitted, by Agent with Full Knowledge.

    If an agent of a fire insurance company, who has authority to write insurance, deliver the policy and collect the premium, and who has been correctly informed of other insurance on the property, attaches a slip containing the following, “Other insurance permitted to the amount of $ — ,” to a policy which provides that it shall be void if the insured has other insurance on the property, unless the agreement is endorsed on or added thereto, that no officer, agent or other representative of the company shall have power to waive any of the provisions or conditions of the policy, delivers the policy and collects the premium, he complies with the provisions permitting concurrent insurance, and the company is estopped from defending because of other insurance known to the agent at the inception of the contract.

      Hine, Kennedy Manchester, for plaintiffs in error.

      J. W. Mooney, contra.
    Pollock, J.; Metcalfe, J., and Norris, J., concur.
   The plaintiffs in error held a policy of fire insurance issued by the defendants in error, insuring a dwelling-house to the amount of five hundred dollars, and a barn to the amount of one thousand dollars. During the life of the policy the barn was totally destroyed by fire.

The plaintiffs brought an action in the court of common pleas of this county against the defendants to recover the amount of insurance on the barn.

The insurance companies filed an answer containing several defenses, a jury was waived and the action submitted to the court, which resulted in a judgment in favor of the defendants. To reverse that judgment this action is prosecuted.

The only defense in the action below, that is now under consideration, is that the policy was void for the reason at the time it was issued the plaintiffs had other insurance on these buildings.

The finding of facts made by the court below sets out that the policy contained the following provision:

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto * * * shall be void if the insured now has or shall hereafter procure any other contract of insurance, whether valid or not, on the property covered in whole or in part by this policy.
“This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions, no officer, agent or representative shall have such power or be deemed or held to have waived such provision or condition unless such waiver, if any, shall be written upon or attached to, or shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured, unless so written or attached.”
¡

Also, that at the time this policy was issued these buildings were insured by two other policies in other insurance companies, to the amount of seventeen hundred and fifty dollars; that no written application was made by plaintiffs for this insurance, but at the time this policy was verbally applied for, the soliciting agent of the defendants was informed that these buildings were then covered by other insurance.

The defendant had supplied the soliciting agent with blank policies and authorized him to write insurance, deliver the policy and collect the premium. The agent, before he delivered the policy, attached to it a slip containing, among other things, the amount of insurance on each building, and also the following: ‘ ‘ Other concurrent insurance permitted to the amount of $.....”

It is urged that the insurance company ib now estopped from defending on the provision of the policy quoted above, by reason of the knowledge that its agent had of the concurrent insurance on the property at the time he issued this policy, that under policies containing similar provisions the Supreme Court of this state has held that the insurance company does not waive these provisions simply because the agent had notice or knowledge of the condition which rendered the policy void, and received the premium. Ins. Co. v. Titus, 82 Ohio St., 161; Ins. Co. v. Cook, 62 Ohio St., 256; Ins. Co. v. Meyers & Co., 62 Ohio St., 529.

It will be noticed that in the two cases last cited the condition which it is claimed waived the provision of the policy, occurred after its delivery. In the case of Insurance Co. v. Titus, supra, the mortgage incumbrance which rendered the policy void was placed on the property after the insurance had been issued,, except the additional insurance of two hundred dollars.

The Supreme Court does not in any of these cases distinguish between conditions which were prohibited by the policy which existed and were known to the soliciting agent at the time the policy was delivered, and those which arose and came to the agent’s knowledge after its delivery.

The holding of the Supreme Court above- referred to seems to be against the weight of authorities when the condition which avoided the policy existed at the time of its inception, and the agent of the defendants had knowledge of these conditions at the time he wrote and delivered the policy and- accepted the premium. The weight of authorities appears to be that where the agent who has authority to write insurance, delivers the policy and receives the premium was informed of other insurance by the insured and then delivered the policy and received the premium, without making the endorsement, the company is estopped from defending a claim for loss under the policy by reason of concurrent insurance existing at the inception of defendants’ policy. 1st Vol. Fire Insurance, by Clement; page 418, and cases cited; 2d Vol. Fire Insurance, by Clement, page 106, and cases cited; Ostrander on Fire Insurance, Section 243; Cooley on Insurance, Sections 2479 and 2482; Seats v. Insurance Ass’n, Vol. 104, Pacific, 185 and 189; Spalding v. Fire Ins. Co., 52 Atlantic, 858.

Our attention has been called to the case of The Northern Insurance Company v. Grandview Building Association, 182 U. S., 308, cited in the case of Insurance Co. v. Titus, supra. The great weight that should ordinarily be given to a decision of the Supreme Court of the United States is weakened in this case by the fact that three of the justices of that court dissented, and for this reason, the decision has not been generally followed by the state courts. Yance, in his work on Fire Insurance, on page 366, refers to this case and points out the reasons for not following it as authority.

We refer to the fact that the greater weight of authority seems to be against the rule announced by our Supreme Court, only for the purposes of showing that the rule should not be applied to cases in which there are other facts in addition to those in the eases before the Supreme Court.

In this case the agent of the insurance company was informed by the insured at the time the application was made, of the prior insurance and he then attached to the policy the slip containing the following: “Other insurance permitted to the amount of $....” We have here the two facts combined, that the agent of the insurance company when he wrote the policy knew of the insurance, and attached to this policy a consent for other insurance, complete in every respect, except that the amount permitted was left blank.

To carry into effect the intention of the parties at the time it was entered into should be the governing principle in the construction of a contract. The Supreme Court say, in the case of Mintier v. Mintier, 28 Ohio St., page 307:

“In giving construction to a contract, the intention of the parties will govern; and words which, in their strict legal-import, are at variance with that intention, will be rejected, or construed so as to comport therewith.”

And also further say, in the case of Mosier et al v. Parry, 60 Ohio St., page 388;

“Where the language of a contract is of doubtful import, it is proper to ascertain the circumstances which surrounded the parties at the time it was made, the object intended to be accomplished, and the construction which the acts of the parties show they gave to their agreement, in order to give proper instruction to the words they have used in the instrument, and to determine its legal effect.”

At the time this contract of insurance was entered into both the insurer and the insured knew that the buildings covered by their policy was covered by other insurance, and that this policy was intended to be additional'insuranee on the property.

“The words used in a policy of insurance should be interpreted most strongly against the insurer where the policy is so framed as to leave room for two constructions.” Ins. Co. v. Kearney, 180 U. S., 132.

And in the opinion in this case, on page 186, Justice Harlan says:

“This exception rests upon the ground that the company’s agents, officers or attorneys prepare the policy, and it is its language that must be construed.”

In the case we are considering it was the insurance company’s agent that attached the slip containing this consent for other insurance, and following the rule above stated the doubt as to the construction that should be given this by reason of the words and character, “other insurance permitted to the amount of $....,” should be interpreted most strongly against the insurance company.

The Supreme Court of this state has said:

“Provisions for forfeiture are to receive, when the intent is doubtful, a strict construction against those for whose benefit they are introduced.
“If it be left in doubt, in view of the terms of the instrument and the relations of the contracting parties, whether the given words were used in an enlarged or a restricted sense, other things being equal, that construction will be adopted which is most beneficial to the promisee,” Webster v. Ins. Co., 53 Ohio St., 558.

In the opinion in this case, on page 563, Justice Spear says:

“Perhaps technically speaking the claim is not one of forfeiture, for forfeiture is a deprivation or destruction of a right in consequence of the non-performance of some obligation or condition, and we are not accustomed to associate the idea of forfeiture with a contract which has not existed, but manifestly the law as to forfeiture will furnish a guide to the proper disposition of the question.”

This language of Spear, Justice, is applicable to the case at bar. To adopt the construction claimed by the defendants in error that this policy should be read as though the word "none” was written in the blank after the dollar mark, would be permitting the defendants to receive premium on a contract of insurance which never had any existence; where the agent that had authority to write insurance knew of the existence of the condition that made the contract void at the time he delivered the policy and received the premium. This should not be done unless the clear construction of the policy required it. Following the above rules, what was the intention of the parties to this contract, gathered from a construction of the policy, the condition of the property, with reference to other insurance, the knowledge that the parties had, at the time the contract was entered into, of the other insurance, and the object intended to be accomplished. The better and sounder reasoning is that the insurer intended, by attaching this slip containing the provision permitting other insurance, the same to be a compliance with the other provision of the policy requiring that the agreement to permit other insurance be endorsed on the policy, and that the insured accepted it in that belief. The insured, when he agreed to purchase this insurance, intended it to be an addition to.the amount of insurance that was then upon this property. He knew that the agent, when he delivered the policy, had knowledge of the other insurance, and seeing this slip attached to the policy, would place no other interpretation upon it than that it was a permission for other insurance.

A construction should not be given to an insurance policy that is opposed to the intention of the parties, gathered from the policy and known circumstances at the time the contract was made.

Our attention has been called by the defendants to four cases, where slips were attached to the policies containing permission for concurrent insurance with a blank as to the amount permitted, similar to the one in the policy in suit, in which it has been held that a slip containing such a blank did not authorize concurrent insurance.

The first case is Labelle v. Insurance Co., 28 Southwestern, page 133 (Texas). In this case the additional insurance was placed on the property after the policy in suit had been issued, and neither the company nor its agent had any knowledge of the additional insurance until after the property had been destroyed by fire.

In the cases of Ins. Co. v. Biglow, 37 Southern, 210 (Florida); Miller v. Ins. Co., 128 N. W., 609 (South Dak.); and Fountain v. Ins. Co., 134 N. W., 1090 (Iowa), and while the other insurance was on the property at the time the policies were issued, yet the agent of the company issuing these polices had no knowledge of the existence of the concurrent insurance at the time the policies were issued.

We think these cases are distinguishable from the case at bar, where the agent was notified by the insured at the time he made the application that there was other insurance on the property, and after receiving this notice he attaches the slip containing permission for concurrent insurance, with blank amount, and delivers the policy. The judgment of the court below is reversed, and judgment for the plaintiffs.


source: Caselaw Access Project

license: Public Domain

text:
    DEFENSE OF FORMER ADJUDICATION BEFORE A JUSTICE OF THE PEACE.
    Circuit Court of Cuyahoga County.
    C. E. Howard v. J. Koblitz & Company.
    Decided, May 22, 1912.

      Former Adjudication — Justice Judgment Appealed- and Case Dismissed for Want of Prosecution — No Bar to Another Action.

      A judgment of a justice of the peace appealed to the common pleas court where the case is subsequently dismissed for want of prosecution is no bar to a subsequent action upon the same cause of action or a part thereof.

      J. H. Saltsman, for plaintiff in error.

      F. C. Scott, contra.
    Niman, J.;'Winch, J., and Marvin, J., concur.
   C. E. Howard brought suit against J. Koblitz & Company in the court of common pleas to recover damages of said defendants for the alleged conversion of certain wooden pulleys. The defendants filed an answer to the petition, in the second defense of which was set forth a prior recovery upon the same cause of action by the plaintiff against the defendants. The defendants in said second defense alleged, "that in the action before one one John V. Grinley, then a justice of the peace in and for Cleveland township in said county and state, for the same cause of action alleged in the petition in this case, said plaintiff C. E. Howard, recovered a judgment against these defendants. ’ ’

A reply ivas filed to this answer in the following terms:

“Now comes the plaintiff, and for his reply to the answer of the defendant, says: that an action was brought before Justice Grinley for part of the cause of action alleged in this cause, but further says that same was appealed to the court of common pleas and dismissed for want of prosecution.”

A motion for judgment upon the pleadings was made by .the defendants and granted by the trial court.. This proceeding in error is prosecuted to reverse tbe judgment so rendered in favor of the defendants below on the pleadings.

As the pleadings stood when the motion was heard, it was admitted that the plaintiff had recovered a judgment in the justice court upon a part, at least, of the same cause of action set forth in the petition; that this judgment has been appealed from the court of common pleas and that the cause so appealed had been dismissed for want of prosecution.

The question to be determined here, then is whether the plaintiff in this action is barred from maintaining the same by reason of the recovery in the justice court of a judgment on the same cause of action, which had been appealed from and the appeal dismissed without trial upon the merits.

The precise question involved here was passed-upon by this court March 24, 1911, in the case of Artino v. Leparo where, on a similar state of facts, it was held that the plaintiff was not barred from maintaining another action on the same claim involved in the former action.

Adhering to the ruling in that case, we hold that the court of common pleas erred in granting the motion for judgment on the pleadings, and the judgment of the court of common pleas is therefore reversed and remanded for further proceedings according to law.


text:
    ACTION FOR INJURIES FROM FALLING INTO AN OLD CISTERN.
    Court of Appeals for Hamilton County.
    William P. Devou v. Annie Hughes.
    Decided, July 5, 1913.

      Landlord and Tenant — Liability of Owner'for Injury from Falling Into Cistern — Necessary Proof as to Defective Condition.

    In an action against a landlord for damages for injuries, sustained by a daughter of a tenant who fell into an abandoned cistern in the back yard while hanging out a washing, an allegation that the cistern was completely concealed from view by a growth of grass and weeds and that the cover of the cistern was in “an unsafe, unsound, rotten and dangerous condition,” is not supported by proof which goes no further with reference to the cover of the cistern than to show that the rim was broken off.

      Jackson & Woodward, for plaintiff in error.

      Johnson & Levy, contra.
    Swing, J.; Jones, E. H., J., and Jones, O. B., J., concur.
   This was an action in the court of common pleas by Annie Hughes against William P. Devou for damages resulting from injuries received by Annie Hughes by falling into a cistern which was located upon the premises of said Devou. The gist of the action is thus set out in.the amended petition of the plaintiff:

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

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

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

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

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

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


text:
    PEDESTRIAN STRUCK BY AUTOMOBILE AT STREET CROSSING.
    Court of Appeals for Cuyahoga County.
    Herman Schmidt v. Jennie Schalm.
    Decided, December 24, 1913.

      Contributory Negligence — By Woman Crossing Street in Front of Approaching Automobile — -Misconduct of Counsel in Referring to Liability Insurance Company as Interested in Case on Trial.

    1. A woman who attempts to cross a street in front of an approaching automobile in broad daylight, and is struck and injured, is not entitled to a verdict for damages against the owner of the machine, for the reason that she was manifestly guilty of contributory negligence, either in failing to look in the direction from which vehicles might be expected, or in stepping in front of the machine notwithstanding the evident peril in so doing.
    2. In an action for damages against the owner of an automobile, intimations by counsel that some insurance company is interested in preventing a recovery, or questions to prospective jurors, in their examination on their voir dire, as to whether they are connected in any way with any liability insurance company, is prejudicial to the rights of the defendant and highly improper.

      Guthery & Guthrey, for plaintiff in error.

      Harry F. Payer, contra.

      Meals, J.; Grant, J., concurs; Winch, J., not sitting.
   Jennie Schalm recovered a judgment in the court below against Herman Schmidt for personal injuries sustained by her in being struck by an automobile. Error is prosecuted in this court to reverse this judgment.

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

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

The conductor of the street car, who was standing on the rear platform thereof and who was offered as a witness on behalf of the plaintiff, testified that when he first saw the automobile it was thirty or forty feet east of the crossing; that the brakes were set and the rear wheels thereof were locked and sliding; that when the automobile was about ten or fifteen feet from Mrs. Schalm “it turned around suddenly, almost whirled in its tracks. The rear wheels skidded on the pavement, which was wet, and 'the rear left fender struck Mrs. Schalm. She did not move either way from the position in which she had stopped the second time. When the automobile stopped it was facing northeast ; the front wheels were up near the curb stone and the rear wheels were passed the 5.1st street crossing; the front part vf the machine being east of the crossing. When Mrs. Schalm was picked up she was eight or ten feet west of the east crossing and about eight feet from the north rail of the west-bound car track.”

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

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

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

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

In Shott, Admr., v. Korn, decided July 23, 1913, and reported in 17 C.C.(N.S.), 393, the Court of Appeals of the First District held that it was not “error to instruct a verdict for the defendant owner of an automobile in an action for the death of a pedestrian where it appears that the deceased attempted to cross a well lighted street in front of the approaching machine which was in full view with its lamps burning.” In the opinion the court said;

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

The court further said:

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

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

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

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

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

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

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

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


text:
    LIABILITY FOR INJURY CAUSED BY HOLE IN STREET.
    Court of Appeals for Hamilton County.
    The City of Cincinnati v. Josephine Hiles.
    Decided, July 6, 1914.

      Negligence — Municipality Permits Hole to Remain in Street — Woman Steps Into It and, is Injured — Contributory Negligence on Her t Part Defeats Recovery.

    Where the city permits a bad hole to remain in a street and a street car passenger, who had knowledge of the existence of the hole, steps into it in alighting from the car and is injured, the direct cause of the accident is not the negligence of the city in permitting the street to get out of repair, but the contributing negligence of the one so injured in not observing proper care in using the street.

      Alfred Bettmcm and Coleman Avery, for plaintiff in error.

      Horace A. Reeve, contra.
    Swing, J.; O. B. Jones, J., and E. H. Jones, J., concur.
   This case is in this court on error to the judgment of the Superior Court of Cincinnati, wherein defendant in error recovered a judgment against the plaintiff in error in the sum of $1,250.

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

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

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

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

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

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

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

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

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

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


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    DISTRIBUTION OF RESIDUE OF ESTATE.
    Court of Appeals for Wood County.
    Joseph A. Holmes as Executor of the Will of Peter Fackleman, Deceased, v. Heinrich Fackleman.
    Decided, May 8, 1913.

      Wills — Construction of Devise of Residue Bequeathed to Nephews and Nieces.

    The testator bequeathed the residue of his estate to the children of his two sisters, share and share alike. Held: That the division should be made among said children per capita and not per stirpes.

      Fries, Powel Smiley, for plaintiff.

      Benj. F. James, contra.
    Kinkade, P. J.; Richards, J., and Chittenden, J., concur.
    Appeal from Court of Common Pleas of Wood County, Ohio.
   This was an action in the court of common pleas to secure the construction of the will of Peter Fackleman, deceased. The clause in dispute was paragraph number three of the will which reads as follows:

“Third: I give, devise and bequeath all the residue of my estate after paying my just debts, funeral expenses, and erecting the monument heretofore mentioned to the children of my sisters, Margaret Fackleman and Marion Fackleman, to be equally divided between them share and share alike. If any of the children of my said sisters shall have died leaving children, then it is my will that the share of the said child or children of my said sisters, Margaret Fackleman and Marion Fackleman, shall be equally divided among the children of such deceased child or children.”

The only portion of this paragraph to which we need give any attention is the first clause. The two sisters mentioned, Margaret and Marion Fackleman, were dead at the time of the execution of the will. One of them had nine children living, and the other four. The sole question is should the estate of the testator be divided into two parts, one half going to the nine children of one sister and the other half to the four children of the other sister, or should the estate be divided into thirteen parts, one thirteenth going to each child.

We are very clearly of the opinion that the latter method of division is the proper one under the clause of the will quoted, and we think this conclusion is fully sustained by the following cases: Huston v. Crook, 38 O. S., 328; Mooney, Guardian, v. Purpus, Executor, et al, 70 O. S., 57; Hughes et al v. Hughes et al, 82 U. S., 408 (same case in 118 Ky., 751); McIntyre v. McIntyre, 192 U. S., 116.

We think the authorities cited, to sustain the contention that the estate should be divided into two parts, one of each to go to the children of each sister, are not in accord with the holdings of our own Supreme Court, nor in accord with the language of the United States Supreme Court in the ease cited above.

We hold that the estate should be divided into thirteen parts, and passed to the children of Margaret and Marion Fackleman as an entire class, share and share alike as-stated in the will, each taking a thirteenth part.


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    STATE NOT ANSWERABLE FOR INJURIES SUSTAINED AT THE HANDS OF ITS OFFICERS.
    Circuit Court of Cuyahoga County.
    Ellen Hunt v. State of Ohio.

    Decided, May 22, 1912.

      Damages for Incarceration in Hospital for Insane — Action Against State Gan Not be Maintained.

    1. The state is not answerable in damages to an individual for an injury resulting from misconduct or unauthorized exercise of power by its officers and agents in governmental matters.
    2. Notwithstanding an enabling act authorizing the suit to be brought, a petition asking damages for the alleged wrongful act of a probate judge in adjudging the plaintiff insane and for acts of violence and other forms of mistreatment claimed to have been inflicted upon her by the officers and employees of a state hospital where she was committed, does not state a cause of action.
    Niman, J.; Winch, J., and Marvin, J., concur.

      med without opinion, Hunt v. State, 88 Ohio State, 599.

   On the 17th day of May, 1911, the Legislature passed an act, entitled, “An act for leave to sue the state of Ohio, to adjudicate a claim of Miss Ellen Hunt, ’ ’ and which was in the following language:

“Whereas, one Ellen Hunt, of Cleveland, Ohio, was herein-before, to-wit, on the 2d day of September, 1897, adjudged insane and committed to the Cleveland State .Hospital for the insane; and
“Whereas, said Ellen Hunt claims said adjudication and said commitment were illegal; and
“Whereas, said Ellen Hunt claims to have suffered great damage, thereby; now therefore,
“Be it Enacted by the General Assembly of the State of Ohio:
“Section 1. That the said Ellen Hunt be and she is hereby permitted and empowered to commence an action in the Court of Common Pleas of Cuyahoga County against the state of Ohio, that the said claim as hereinbefore set forth may be properly determined; service of process shall be made upon the attorney-. general who shall represent the state in this action. Should the said Ellen Hunt recover judgment in said action, then in that event the Auditor of State is authorized and directed to issue a warrant for the amount of such recovery and costs in favor of said Ellen Hunt.”

After this act was passed, Ellen Hunt brought suit in the court of common pleas against the state of Ohio, and in her amended petition sought to recover damages for the alleged wrongful act of the probate judge of Cuyahoga county in adjudging her insane, and for acts of violence and other forms of mistreatment claimed to have been inflicted upon her by the officers and employees of the Cleveland State Hospital where she was committed.

A demurrer to the amended petition was filed by the state on the ground that it did not state facts sufficient to constitute a cause of action against the defendant in favor of the plaintiff.

The demurrer was sustained, and the plaintiff not desiring to amend or further plead, judgment was entered thereon against her. This proceeding in error is prosecuted to reverse the said judgment.

The act in question attempted to create no cause of action. Reference to the preamble shows that the Legislature merely recognized that the plaintiff in error claimed to have been illegally adjudged insane and committed to the state hospital for the insane, and to have suffered groat damage thereby; The bar that stood in the way of her suing the‘state was removed, in order that her claim might be determined. The validity of her claim was in no way recognized or approved. This was left to be dealt with by the courts, ánd determined by reference to established legal principles.

The principle of law that the state is not answerable in damages to an individual for an injury resulting from misconduct or unauthorized exercise of power by its officers and agents in governmental matters, is universally established. The rule and the reason therefor are stated by Story, in his work on Agency (9th Ed.), Section 319, in this language:

“It is plain that the government itself is not responsible for the misfeasance, or wrongs, or negligences, or omissions of duty of the subordinate officers or agents employed in the public service, for it does not undertake to guarantee to any persons the fidelity of any of the officers or agents whom it employs; since that would involve it in all its operations, in endless embarrassments and difficulties, and losses, which would be subversive of the public interests.”

See also, Lewis v. State, 96 N. Y., 71; Bain v. State, 86 N. C., 49; College, etc., v. Cleveland, 12 O. S., 375; Cincinnati v. Cameron, 33 O. S., 336; Robinson v. Greenville, 42 O. S., 625.

Under this principle of law, the amended petition of the plaintiff in the court below stated no cause of action against the defendant, the státe of Ohio, and the demurrer was properly sustained.


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    ACTION ON COGNOVIT NOTE ONCE IN JUDGMENT.
    Circuit Court of Wood County.
    Hubbard S. Woodbury v. Fred J. Bollmeyer & Co. and J. H. Sherwood et al.
    Decided, May 3, 1912.

      Promissory Notes — Judgment on Cognovit Note Vacated and New Trial Granted — Competency of Testimony of the Widow of One of the Mahers — Burden of Proof.

    1. In an action on a promissory note, where one of the makers is denying that he executed the note or that there was consideration therefor, it is not error to permit the widow of the other maker to testify as to certain matters which arose between herself and her husband when no other person competent to be a witness was present.
    2. Where judgment taken on a cognovit note is vacated and a new trial awarded with the assent of counsel, and one of the defendants is denying consideration, the case stands as though no judgment had ever been entered, and the burden of proof follows the rule laid down in 81 Ohio State, 121.

      L. H. Morgan and Ladd & James, for plaintiff in error,

      F. H. Wolf and N. R. Harrington, contra.

      Kinkade, J.; Wildman, J., and Richards, J., concur.
    Error to the Court of Common Pleas of Wood County, Ohio.
   This is a proceeding in error to reverse a judgment of the court of common pleas entered in favor of the defendant in error, J. H. Sherwood, in an action based upon a promissory note. At the May term, 1908, of the Court of Common Pleas of Wood County, Ohio, plaintiff in error, Hubbard S. Woodbury, took judgment upon a cognovit note against all of the defendants in this action. At the same term, in July, 1908, J. H. Sherwood sought to have this judgment vacated as against him, setting up that he had a valid defense thereto, to-wit: that he had never executed the note, and that the same was without consideration. A hearing was had at that term and a finding made in favor of Sherwood upon that application. The journal entry covering the action of the court at that time appears to have been prepared by Handy & Wolf, counsel for Sherwood, and to have been approved by Lewis W. Morgan, attorney for Hubbard S. Woodbury.

Instead of following the usual practice of suspending the judgment pending hearing of the question as to the validity of the defense presented by Sherwood, the journal entry approved by counsel for both sides as stated, goes much further than is usual and vacates the judgment and grants' Sherwood a new trial. After reciting that the court has had presented evidence tending to show that a defense existed in behalf of Sherwood, to-wit, that he never executed the note, that his signature thereto was a forgery, and that he should be given an opportunity to defend, the entry says:

“It is therefore adjudged that said judgment be and the same is hereby opened up and vacated and a new trial is granted to the said J. H. Sherwood.”

Then follows a statement preserving liens, etc., pending the trial, usually found in entries' of this character. No exception was taken to this action of the court. Following the vacating of the judgment, the case was continued for nine terms.

The amended answer of Sherwood was filed iii February; 1911, setting up the fact that he had never executed the note, that his signature thereto was a forgery and that the note was without consideration. The case coming for trial at the May term, 1911, was submitted to a jury on June 8th, and» a verdict was rendered in favor of the defendant Sherwood. A motion for a new trial was overruled and judgment entered on the verdict.

Two grounds are assigned here why this judgment should be reversed. First, it is said that the court admitted incompetent evidence in this: that it permitted the wife of Bollmeyer, who was the daughter of one of the makers of the note, to testify in the case, and also permitted Sherwood to testify, and it is said in view of the fact that Fred J. Bollmeyer was at the time of the trial dead, and in view of the further fact that Mrs. Bollmeyer was testifying to certain matters which arose between herself and her husband when no other' person competent to be a witness was present, that the evidence of both of these witnesses was incompetent. It is not contended that Woodbury is the assignee of the deceased maker, Bollmeyer, but it is said that the relation of the parties is such that he falls within the spirit of the law prohibiting parties thus related from testifying. We are unable to sustain the contention of counsel for plaintiff in error as to either point. We think the testimony of both witnesses was competent.

The other ground upon which it is sought to have the judgment reversed is that the court committed an error in 'saying to the jury indhe charge, that the burden was upon the plaintiff to maintain his cause of action against Sherwood by a preponderance of the evidence. Counsel for plaintiff in error contends that a different rule applies in a case of this kind where a judgment is opened up and a defense thereto let in, than would apply if it were an action upon the note by Woodbury against Sherwood, and insists that in this action the burden is upon Sherwood to maintain by a preponderance of evidence the defense to the judgment which he claims, and counsel intimate in argument. that perhaps the defendant should be required to establish a defense other than a mere denial of the plaintiff’s claim.

We are unable to agree with this position. It is our opinion that when the judgment is suspended and particularly in this case where, with the assent of- counsel, the judgment is vacated in the journal entry and a new trial granted, that the ease stands between the plaintiff and Sherwood precisely as though no judgment had ever been entered and that the plaintiff has the burden of proof to sustain his cause of action by a preponderance under the rule stated in Ginn, Admr., v. Dolan, 81 O. S., 121.

We think the court of common pleas stated the rule correctly as to the burden of proof in the charge to the jury, and finding no error in the case prejudicial to the plaintiff in error, the judgment of the court of common pleas will be affirmed.


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    GARAGES INCLUDED IN THE CLASS OF SHEDS OR BARNS.
    Circuit Court of Cuyahoga County.
    Joseph Gross v. Isador Whitelaw.
    Decided, May 22, 1912.

      Building Restrictions — Garage is a Shed or Barn — Estoppel.
    1. A garage may not be built upon a lot restricted against the building of sheds and barns.
    2. Failure by one lot owner to object to the building by others of garages upon 14 out of 800 lots in an allotment as to which a uniform plan of improvements and restrictions has been adopted for the benefit of all the lots, will not estop said lot owner from enforcing the restriction with respect to another lot in his neighborhood.

      Hidy, Klein & Harris and H. Swing, for plaintiff.

      Fred Desberg, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
   This action was brought to prevent the defendant from building an automobile garage for his own private use upon his premises which are situated on South Boulevard in the city of Cleveland. > !

Defendant’s lot is one of some eight hundred lots, all of which are subject to the same restrictions, imposed by the original proprietor, who laid out the entire property for select residence purposes.

To accomplish this it was provided by deeds to purchasers in this allotment that the several lots should each and all be used for residence purposes only, that no intoxicating liquor should ever be sold upon them, that no building should be erected costing less than $3,000 nor nearer the street line than thirty feet, and that no shed, barn or shop should be erected or placed on any of said lots. By the deeds only hedges or iron fences are permitted, none to be nearer the street than forty feet.

The garage proposed to be built by defendant will cost $1,000 or $1,200.

This structure can not be built because of two prohibitions contained in the restrictions: it is a building which will cost less than $3,000 and it comes within the meaning of the general words “shed and barn.”

The derivation of the word “shed” indicates that it is a place erected for shelter and the word is frequently compounded with other words indicating the things usually sheltered in it, as “wood shed, carriage shed, cow shed,” etc. If automobiles are sheltered in a building designed to shelter them, such building may properly be called an automobile shed, and in common speech one frequently hears this expression, though owners of automobiles and such sheds have imported the French word “garage,” which they use more commonly these days in speaking of the building in which they keep their automobiles, which latter they commonly call motors. It is a matter of taste or style.

The word “barn” originally meant a place where farm produce is .stored, but many people in the city call the building in which they keep their horses and carriages a barn, while more properly it should be called a stable, though some have both stables and carriage sheds or carriage houses, as they prefer to call them.

The evident intention of the general restriction imposed on all the lots in this neighborhood is to keep the back yards free from such buildings as are commonly erected in back yards. The restriction was drafted before automobiles had come into common use, but can it be said that defendant may build a structure which he calls a garage as long as keeps an automobile, and a shed or barn after he disposes of his automobile and stores something else in it?

The particular use to which he proposes to put this building does not change its character completely; it is still a shed.

In evidence it was shown on the trial that there are fourteen lots among the eight hundred in this allotment on which garages have been built without objection being made by plaintiff. One is across the street from plaintiff’s premises and another in the same block. Defendant’s lot is immediately in the rear of plaintiff’s lot.

It is claimed by defendant that because plaintiff never attempted to enjoin the erection of said fourteen garages, he is estopped from asking the enforcement of the restriction to the defendant’s deed.

The doctrine of estoppel is not to be applied here. Had the plaintiff erected any of these fourteen garages, or built one on his own premises, he would not come into court with clean hands and should have no relief; or, if garages had been built on so many lots that it appeared that the prohibition had been waived by mutual consent, and that the character of the neighborhood had changed, a court of equity would be slow in enforcing the restriction as to one particular lot; but we see no reason why plaintiff in this case is not entitled to the relief he prays for, and judgment is rendered for him.


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    MONEY NOT EQUITABLY DUE SHOULD NOT BE RECOVERED
    Court o£ Appeals for Hamilton County.
    Caroline Bauer v. Louis E. Nickol et al.
    Decided, July, 1914.

      Equity — Refusal to Sold Mortgagor Except as Indemnitor — Application of the Principio that “He Who Seehs Equity Must do Equity.”

    The mortgage which the plaintiff seeks to foreclose in this case can be regarded only in the light of an indemnity, and under the equity rule that “if money is not equitably due it ought not to be recovered,” the petition is dismissed at plaintiff’s costs.

      Oscar W. Kuhn, for plaintiff.

      Stephen W. Jones and Edward A. Tepe, contra.
    Jones, E. TL, J.; Swing, P. J., concurs; Jones, O. B., J., not sitting.
    “This is an equitable action, and if the money is not equitably due it ought not to be recovered.’’
   This is the first sentence in an opinion by Judge Welch in the case of White, Adm’r, v. Turpin, 16 O. S., 270.

The above case was tried in this court on appeal from the court of common pleas, and is an action brought by the plaintiff for the foreclosure of a mortgage and marshaling of liens. The nature of the action can be briefly described by quoting from the defeasance clause of the mortgage which is tlie basis of the action:

“Provided Nevertheless, That whereas the said Caroline Bauer has advanced as a loan to Louis E. Nickol, the husband of the said Josephine B. Nickol, the sum of $2,500 with which to enable him to build upon the premises of said Caroline Bauer, known as No. 2811 Woodburn avenue, Walnut Hills, Cincinnati, Ohio, certain new bakeovens for the use of Louis E. Nickol in carrying on a bakery in said premises, and to make certain other repairs, alterations and improvements in and upon said premises which the said Louis E. Nickol has agreed to take under a lease from the said Caroline Bauer for a period of ten years from the 1st day of June, 1909. And whereas the said Caroline Bauer in order to obtain the said $2,500 has been compelled to mortgage her said premises to the East Walnut Hills Building & Loan Company by the terms of which mortgage she is to make certain weekly payments of dues, interest and premiums until said loan is repaid in full. And whereas the said Louis E. Nickol has agreed to repay said loan by assuming and agreeing to pay the loan of Caroline Bauer to the East Walnut Hills Building & Loan Company and an additional weekly payment of $2.50 on the principal; now if the said Louis E. Nickol shall pay said loan in manner and form as agreed to be paid by the said Caroline Bauer, including the additional weekly payment of $2.50 for the purpose of hastening the payment of said loan, then this mortgage shall be void; and in case of default in making any of said weekly payments to the said East Walnut Hills Building & Loan Company on said mortgage, the said Caroline Bauer shall have the immediate right to foreclose this mortgage and recover for the full amount that may be due upon the mortgage given by the said Caroline Bauer to the said East Walnut Hills Building & Loan Company at that time.”

The defendant, Louis E. Nickol, occupied the premises leased to him by plaintiff herein, and conducted a bakery therein, for about fifteen months, when he failed in business and was declared a bankrupt. We find that up to the time of his said failure, he complied with his agreement and paid to the building association the dues, interest and premium and an additional $2.50 per week upon the principal of said loan. In addition to the $2,500 borrowed by Mrs. Bauer from the building association, Mr. Nickol spent in making the improvements upon her property $800 of his own money. His rent was paid at the rate of $60 per month, according to the terms of the lease. About half the cost of the improvements was paid by him during his brief tenancy. Shortly after he became a bankrupt and was forced to quit business. Mrs. Bauer, his lessor, assumed charge of her property and make a new lease to one Anthony Lass, for a term of five years, at $90 per month.

The defendant, Josephine B. Nickol, is the wife of Louis E. Nickol, and executed the mortgage herein sought to be foreclosed, upon her individual property, as a guaranty to Mrs. Bauer that the terms of the lease would be complied with by her husband. The lease provided that the bakeovens and other improvements, when made, should be a part of the real estate, and become the property of the lessor, Mrs. Bauer. No issue is made as to her right and title to said improvements.

Judge Welch, in the opinion in the case of White, Admr., v. Turpin, supra, asks the question: “In equity and justice then, ought this money to be paid a second time by the administrator?” The question before us is a similar one, viz: In equity and justice ought Mrs. Nickol be compelled to pay the balance due on the loan from the building association? A strict construction of her contract would possibly require an affirmative answer, but the day is past, if any day there ever was, when one must be awarded the “pound of flesh” for the sole reason that it is “so nominated in the bond.” It has long been a familiar maxim in equity that “he who seeks equity, must do equity.”

The demand of plaintiff in this action is harsh, unreasonable and unjust.

Mrs. Bauer will receive during the five years term for which Mr. Lass has rented her property in additional rent which will accrue to her by reason of the improvements made on her property by Mr. Niekol, sufficient money to pay the balance due to the East Walnut Hills Building & Loan Company on her loan; then she will still have the property and the rentals therefrom for many years to come. She has made no offer, whatever, to the defendant, Mrs. Niekol, either of the premises or of the additional rents derived or to be derived from the improvements made thereon. So far as the proceedings in this court show, there has been no offer or tender of any nature made by the plaintiff, and no disposition manifested by her to work out a just solution of the situation which Mr. Niekol’s unforeseen business reverses and bankruptcy brought about.

We hold that, in view of the unexpected developments of the ease and the short duration of Mr. Niekol’s tenancy it can not be successfully contended that Mrs. Niekol could be held under her mortgage, except as an indemnitor against loss on the part of Mrs. Bauer. “In ascertaining the intention of the parties the court must take into consideration not only the language of the contract, but the situation of the parties and the circumstances surrounding them at the time the contract was made” (22 Cyc., 85). Applying this rule, we are of the opinion that the most a court of equity could say for the mortgage held by Mrs. Bauer is that it can only be regarded in the light of an indemnity, the office of which is to protect Mrs. Bauer from any actual loss by reason of the transaction. In the trial of the case no effort was made to show that any loss was sustained by Mrs. Bauer. She suffered no loss by the transaction. On the contrary, we think the evidence shows that she gained thereby. The money sought to be recovered by her is, therefore, not equitably due, and as said by Judge Welch, “If the money is not equitably due, it ought not to be recovered.”

The petition of plaintiff will be dismissed at her costs, and defendants may go hence without day.


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    BARRING OF A CLAIM AGAINST HEIRS OF A TRUSTEE.
    Court of Appeals for Hamilton County.
    Kate Robson et al v. Fannie R. Evans et al.
    Decided, June 15, 1914.

      Trusts — Running of the Statute of Limitations — As to a Claim Against the Estate of a Trustee — Bar Not Prevented from Falling by Continuation of the Trust — Partition—Sections 10876-7-8.
    Beneficiaries under a trust can not maintain an action against the heirs and legatees of the deceased trustee or enforce a claim against their interest in the trust property, where no claim was asserted against his estate within the time fixed by the laws of administration.

      Bettinger, Schmitt & Krcis, for plaintiffs.

      Herman P. Goebel and Oliver M. Dock, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.
   William Robson, a resident of Newport, Kentucky, died in May, 1880, leaving a considerable estate consisting of both personal property and real estate situated in Kentucky and Ohio. By his will, probated in Campbell county, Kentucky, an authenticated copy of which was filed in Hamilton county, after making certain devises and bequests he devised and bequeathed all the remainder of his real and personal estate in equal shares to his five children and to a granddaughter, who was the only representative of a deceased son.

Shortly after the death of William Robson an arrangement was made among his devisees whereby it was agreed that no partition or division of the real or personal property should be had for ten years, but that it should be taken charge of, managed and controlled by one of the sons, Charles Robson, for the benefit of all. Under this management Charles Robson took possession of the real and personal estate and managed the same up to the time of his death in October, 1897.

Shortly after the death of Charles Robson it was agreed by the interested parties that George A. Robson, his brother, should succeed Charles Robson as trustee under the previous arrangement and that he should hold and manage all of the property for the benefit of all, as had been done by his deceased brother.

At that time Kate Robson, the widow of Charles Robson, as his executrix rendered an account and obtained a receipt for stocks, notes and bonds turned over to George A. Robson as such trustee, and also made to him a cash payment which represented. the income collected by her after the death of Charles Robson and before the appointment of George A. Robson as such trustee. It being discovered later that the amount of this cash payment was larger than it should have been, George A. Robson repaid to her the amount of such overpayment.

George A. Robson continued to act as trustee up to the time of his death which occurred about a year later, and after that time a new trustee who is still acting was agreed upon.

Under the will of Charles Robson, which was probated in November, 1897, he devised and bequeathed all of his property, which included his one-sixth share of the estate of his father William Eobson, to his widow Kate Eobson for life, and after her death to their children. This widow and children as plaintiffs, in December, 1910, filed a petition praying for partition of the real estate devised by William Eobson and that the one-sixth interest which belonged to them by virtue of the will of their father Charles Eobson be set off to them in severalty.

To this petition a cross-petition was filed containing two causes of action, the first of which set out certain facts as to the-description of the real estate and as to he charges made against some heirs, and as to the relationship of the parties, none of which raised questions involved in this appeal.

Under the second cause of action the cross-petitioners charge that Charles Robson as trustee during his lifetime collected large sums of money as rents and income from the real and personal property for which he did not account to the beneficiaries of the trust; that he also did not acccount for all the personal property which came into his possession and that the plaintiffs after his death as his heirs have failed to so account to defendants for such personal property or to turn over the rents, income and profits thereof to them, although requested so to do; they pray that the plaintiffs may be required to render such an account, and that their interest in the real estate be charged with the amounts found due on such account, and if the account exceeds the distributive share of the plaintiffs then they pray for judgment against them for the amount of such excess.

This case was disposed of below upon demurrer, and was brought into this court by the defendants on appeal, and all of the questions presented here are raised upon the demurrer to the second cause of action set out in the petition.

There is no claim made that the widow and children of Charles Robson, plaintiffs herein, themselves collected" any money either as trustees or tenants in common of the real estate, or as joint owners of the personal property, for which they have not accounted. The defendants are seeking to hold, against the share of the property to which they are entitled under the will of Charles Robson, claims for money which they allege Charles Robson had collected or obtained possession of and failed to account for to them.

Under the family arrangement Charles Robson was the trustee of an express trust. His position as trustee ended at his death and he was succeeded by a new trustee in the person of his brother. The claim made by defendants against the plaintiffs is not to account for money collected or property received by them either as trustees or co-tenants since the death of Charles Robson. The gist of their action is the failure of Charles Robson to properly account for the money and property received by him as such trustee during his lifetime. Upon his death, -although the trust continued to exist, his trusteeship terminated and it became the duty of his executrix to turn over to the succeeding trustee all of the property of said trust and to render to him a complete account of her administration; and at the same time, it became the duty of the succeeding trustee, or upon his failure the duty of the beneficiaries to demand such an accounting from the executrix of the estate of Charles Robson. At his death whatever was owing from him to the beneficiaries or to his succeeding trustee became a debt of the estate, and they were to that extent creditors of the estate and should have presented their claims to the executrix for allowance and payment. Any claim against him in relation to such trust accrued at the time of his death — the termination of his trusteeship. Being an accrued claim it should have been enforced against his estate within the time fixed by the laws of administration, and the fact that it was not enforced against the estate of Charles Robson does not warrant defendants to now assert it as a claim against his legatees and devisees or against their interest in the trust property. The only cases in which the heirs, devisees and legatees might be held liable are under the provisions of Sections 10876, 10877 and 10878, General Code. Arbaugh v. Mellett, 5 C. C., 297; Roth v. Hummel, Ct. Index, June 10, 1913; Hall v. Blumstead, 20 Pick (Mass.), 2.

The claim presented by defendants is not of a character that could be enforced under these sections; and if it were, the time for its enforcement is barred by tbe limitation contained in Section 10878.

The cases as -to a continuing trust, cited on behalf of defendants, might be applicable if this were a proceeding against Charles Robson now in life, but the fact that the trust is still continuing does not alter the obligation put upon his estate for the settlement, so far as his trusteeship is concerned.

The demurrer to the second cause of action set up in defendants’ cross-petition will therefore be sustained, and a decree for partition may be had. .


text:
    INJURY TO PASSENGER ALIGHTING FROM STREET CAR.
    Court of Appeals for Hamilton County.
    Cincinnati Traction Co. v. Harry Luebkert.

    Decided, June 2, 1913.

      Negligence — In Attempting to Step from a Gar in Motion — Answer by Jury to Interrogatory May be Disregarded, When.

    Where the evidence clearly indicates that the car was in motion at the time plaintiff attempted to step off, a contrary answer by the jury to an ambiguously worded interrogatory will not prevent a reversal of the judgment.

      Kinhead & Rogers, for plaintiff in error.

      Horsiman & Horstman, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J, concur.
    Error to common pleas court.

      Dismissed by the Supreme Court, November 18, 1913, on motion of the plaintiff in error at his costs.

   The action below was brought by Henry Luebkert to recover damages for personal injuries received by him in alighting from a .street ear on which he was a passenger at Twelfth' and Main streets in Cincinnati, Ohio. The car ran east on Twelfth street and stopped just before it reached Main street for passengers to get off, and then turned the corner southward down Main street.

Plaintiff alleges in his petition that when the car stopped at the usual place for passengers to alight, he and other passenjgers prepared to alight from said car by means of the front platform and steps provided for such purpose; that two or three passengers immediately in front of plaintiff succeeded in so alighting, and plaintiff was preparing to step from the front steps of the front platform when the conductor signaled for the car to proceed and the motorman, responding to the signal, started the car while plaintiff was in the act of getting off, and he was thus caused to fall on the street his feet landing on the street while with his hands he still held to handle bars alongside of the front steps and was dragged and his back was struck severely against the front steps and front part of said car.

The traction company denies that plaintiff was injured while he was alighting from the car after it had been brought to a full stop, but avers that his injuries were caused by his leaving the ear while it was in motion rounding the curve at the corner turning into Main street.

The issue raised therefore is a direct one of fact. The testimony is unusually clear and without conflict. It appears that two, probably three, passengers preceded Luebkert in going to the front of the ear when it neared Main street for the purpose of getting off. Two of these were called as witnesses by plaintiff, and gave their testimony. Both of them agree that they preceded plaintiff and that the car had stopped for the discharge of passengers and had started up again before either of the three attempted to get off. Bolander, who was in the lead of the three, waited for the car to swing around the curve so he could step off conveniently on the sidewalk. Zimmerman who followed him also says that he got off while the car was in motion, and plaintiff himself testified that he waited inside the vestibule and on the “top step” to let the other three get off before he stepped on the lower step to get off, and then' he realized the ear was moving, and being timid beeause of his unsound leg, but unable to remain standing on the step, stepped or fell down to the street and still holding the handle bar was dragged by the car a short distance until it was stopped, and he was thus injured.

As these three pasengers got off one after the other with plaintiff last, as all agree, and as both Bolander.and Zimmerman are clear that the car was moving when they each got off, and as the car made no stop after starting round the curve until the accident had happened to plaintiff, it follows as a physical necessity that the car was moving when plaintiff got on the lower step and stepped off. Plaintiff himself admits it and there is no evidence contradicting it.

A special interrogatory was submitted to the jury in these words:

“Was the car moving in the curve, rounding the corner of Twelfth and Main streets, when Luebkert, the plaintiff, placed himself on the front step preparatory to leaving the car?”

i

To which the jury answered “No.” This carries no particular weight, as undoubtedly plaintiff was inside the vestibule and on the upper step or platform some little time while waiting for those who preceded him to alight, and the wording used in the interrogatory might well be understood by the jury to refer to the period of time when he placed himself on the front platform, or “top step” as he. called it, rather than his position on the lower step, which latter as we have seen must have been while the car was moving around the curve.

The verdict was not sustained by the evidence, and the court below should have granted defendant’s motion to instruct the jury to return a verdict for defendant. Judgment will be reversed, and judgment entered here for defendant.


text:
    REGULATION OF INTERURBAN CARS WHEN ON THE TRACKS OF A CITY COMPANY.
    Circuit Court of Cuyahoga County.
    A. G. Stafford, a Tax-payer, v. The Cleveland Railway Company.
    Decided, May 22, 1912.

      Street Railway Franchise — Regulation of Stopping Places and Fare— Interurban Oars Operated by City Company.

    1. Under a renewal grant of a street railway franchise a municipal corporation has the right to provide that the street railway company may operate “express passenger service and other special cars” and in the regulation thereof the municipality may authorize a special rate of fare upon such cars and that they stop at certain designated places only for the purpose of taking on and letting off passengers.
    2. When the cars of an interurban electric railroad company at the terminus of a street railroad company operating under a municipal franchise are turned over to the latter company and are operated by it on its own tracks, the interurban company retaining no control over said cars when so operated by the other company and having no contract with it as provided in Sections 9130 to 9133, inclusive, General Code, the cars become the cars of the city company and, as such, subject to regulation by the city council, under the terms of the franchise to the city company.

      E. K. Wilcox and Geo. D. Rile, for plaintiff.

      Squire, Sanders & Dempsey, M. B. & H. H. Johnson, Blandin, Hogsett & Ginn and Kline, Tolles & Morley, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
   The purpose of this action is to require suburban ears to be operated within the city limits in all respects' as city cars are operated, and at the same rate of fare.

Under the “Taylor” grant or ordinance, so-called, city cars are required to stop to take on and let off passengers at all street intersections and other regular stopping places, and the fare is three cents with transfer for one cent, which is rebated, if the transfer is used.

Suburban cars, after they enter the city, do not stop to take on city passengers, nor will they stop within the city to let them off, as they are returning to the city limits. A city fare of five cents, without transfer privileges, is also charged upon suburban cars.

The defendants to this action are the Cleveland Railway Company, operating under said Taylor grant from the city, and all the suburban or interurban electric railroad companies whose lines reach the city.

On the hearing the interurban electric railroad companies were all dismissed from the action, because no evidence was introduced tending to show that said companies were operating their cars within the city and collecting city fares, and because no evidence was before the court that any of them had entered into such contracts with the city company as are authorized by Sections 9130, 9131, 9132 and 9133 of the General Code of Ohio, which provide that while the cars of an interurban electric railroad company are being operated by it over and along the tracks of a street railway company in a municipal corporation, under a contract entered into between the two companies in the manner provided in said sections, the cars of the interurban company shall be subject to the obligations imposed by and upon the cars of the city company, and the fare charged by the interurbm company within the municipality shall not be greater than that fixed in the franchise held or owned by the .city company.

The only evidence in the case is to the effect that under some arrangement with the Cleveland Railway Company, the suburban cars are turned over to it, when they reach the city limits, and are operated by it and fares collected by it, within the city.

Such being the case, the suburban cars after they enter the city, being in effect cars of the Cleveland Railway Company, and being operated and controlled by it exclusively, the suburban companies are neither necessary nor proper parties to this suit. We have no evidence that they have any interest in the fares collected.

The Cleveland Railway Company claims the right to operate said suburban ears in the manner complained of under Section 24 of the Taylor grant and an ordinance of the city of Cleveland, passed in conformity to said section on December 26, 1911. Said Section 24 reads, in part, as follows:

“The company (that is, the Cleveland Railway Company) may transport along and upon its lines, in suitable cars, such materials, supplies, appliances and tools as it may need for the construction, maintenances and operation of its roads. It may carry upon its passenger cars, or upon other cars, mail for the government of the United States. It may operate funeral-cars, observation cars, express passenger service, and other special cars, at rates to be fixed from time to time by the council of the city of Cleveland, not lower than the rate in force for the carriage of passengers from time to time, as is provided by the terms of this ordinance.”

•Said ordinance of December 26, 1912, reads as follows: •

“Whereas, the Cleveland Railway Company is operating within the limits of the city of Cleveland the cars of the Cleveland, Painesville & Eastern Railroad Company, the Cleveland & Eastern Traction Company, the Cleveland, Southwestern & Columbus Railway Company, the Cleveland, Youngstown & Eastern Railway Company, the Lake Shore Electric, and the Northern Ohio Traction & Light Company by contract between the Cleveland Railway Company and said companies; and
“Whereas, all of said companies are engaged in interurban traffic and said ears are operated from the vicinity of the public square in the city of Cleveland to the various municipalities within and outside of Cuyahoga county; and
“Whereas, all o„f said companies are engaged in interurban traffic and said ears are operated from the vicinity of the public square in the city of Cleveland to the various municipalities within and outside of Cuyahoga county; and
“AVhereas, Section 24 of ordinance No. 16238® authorizes the Cleveland Railway Company to operate express passenger service and other special ears at rates to be fixed from time to time by the council of the city of Cleveland and not lower than the rate in force for the carriage of passengers from time to time, as is provided by the terms of ordinance No. 16238a;
“Noiu, Therefore, Be it Resolved, by the council of the city of Cleveland, that the Cleveland Railway Company in the operation of the cars of the Cleveland, Painesville & Eastern Railroad Company, the Cleveland & Eastern Traction Company, the Cleveland, Southwestern & Columbus Railway Company, the Cleveland, Youngstown & Eastern Railway Company, the Labe Shore Electric Railway Company, and the Northern Ohio Traction & Light Company, is hereby directed to stop the said interurban cars outgoing from the public square only for the purpose of taking on passengers whose destinations are to points beyond the city limits and to stop said interurban cars in-going to the public square only for the purpose of discharging passengers. Whenever practicable, by reason of existing ‘Ys’ and turnouts, the Cleveland Railway Company is directed to give the right-of-way to said interurban cars.
“Be it Further Resolve^, That said interurban cars of said the Cleveland, Painesville & Eastern Railroad Company, the Cleveland & Eastern Traction Company, the Cleveland, Southwestern & Columbus Railway Company, the Cleveland, Youngstown & Eastern Railway Company, the Lake Shore Electric Railway Company and the Northern Ohio Traction & Light Company, operated bjr the Cleveland Railway Company, are hereby designated as special cars and as express passenger cars, and the rate of fare on said cars within the city limits is hereby fixed at five cents without the right of transfer either to or from said interurban ears; except where the right of transfer is stipulated in the suburban grant under which such cars are operated.”

The Taylor grant was a renewal grant, and we hold that Section 24 was within'the power of the city to enact. By said section the city granted the railway company the right to operate express passenger service and other special cars, and reserved the right to fix the rate of fare charged on such special cars, from time to time, the only condition being that the lates for such service and on special cars should not" be lower than the rate in force for the carriage of passengers on regular city cars.

Having reserved this right to fix the rate of fares on special cars, the action of the city council in doing so on December 26, 1911, was within the terms of the contract between the city and the railway company, contained in the grant or franchise, and is lawful and binding upon both the city and the railway company and upon the public, for whom the council, acted, as well.

Nor can there be any question.that under the Taylor grant the company and the city can agree upon proper stopping places for ears and, having .authorized express passenger service, that can only be obtained by eliminating many ordinary stops in the manner provided by the ordinance of December 26, 1911.

Plaintiff suggests that because said ordinance designates the. cars to be specially operated as the cars of the suburban traction companies, "naming them, said ordinance itself is ineffectual to grant the Cleveland Railway Company the right to operate them as it does, but is an effort to authorize the suburban companies to operate their ears in the city in an unlawful manner.

True, the cars are described as the cars of the suburban companies ; they might have been described by color or number; the method used, however, was a convenient and proper one and no difficulty arises from it, for it is plainly stated by the ordinance that “the Cleveland Railway Company, in the operation of the ears (describing them as aforesaid) is hereby directed,” etc. Nowhere in the ordinance is any direction or authority given to the suburban companies, and its entire purport is within the purview of the Taylor grant and it operated upon and binds the Cleveland Railway Company alone.

The petition is dismissed.