text:
    PASSENGER. INJURED WHILE DOJINC AN UNNECESSARY THING.
    Court of Appeals for Hamilton County.
    The Cincinnati Traction Company v. Josephine Keil.
    Decided, June 14, 1915.

      Negligence — Passenger on Summer. Car — Unnecessarily Steps on Wheel-guard and is Injured — Appliance May he Continued in Use Without imputation of Negligence, When.

    1. The case of a woman who turned her ankle, and in falling was otherwise injured, hy unnecessarily stepping on the wheel-guard of a summer car, does not present a case of negligence on the part of the traction company -or of lack of contributory negligence on her own part.
    2. An appliance not obviously dangerous, which has been in daily use and has uniformly proved safe, may he continued in use without an imputation of negligence.

      Kinkead & Rogers, for plaintiff in error.

      Horstmwn & Horstman, contra.
   Jones (Oliver B.), J.

The action below was brought in the Superior Court, of Cincinnati by the plaintiff, defendant in error here, against the Cincinnati Traction Company, plaintiff in error here. The plaintiff sought to recover damages for personal injuries claimed to have been sustained by her when she was about to alight from a street car operated by the defendant company and upon which she was a passenger.

The accident happened about seven o ’clock on Sunday morning after the car had been brought to a stop at the intersection of Fourth and Sycamore streets; and the ear was one of the ordinary type single-truck summer cars, with seats running across the car the entire width of the car with passageways or aisles between them, and a step or running-board along the outer side of the ear from which the seats were entered.

The negligence on the part of the traction company complained of by the plaintiff was in the use of a wheelguard upon the floor of the car partly projecting from beneath the seat into the passageway in front of the seat, in such a way as to interfere with her exit from the car, and to subject her to slipping or stumbling over it. Plaintiff further charged negligence in the use and maintenance of such wheelguard in regard to its form, size and condition, claiming that its surface should have been corrugated or at least roughened, or by keeping it painted to have prevented it from becoming smooth or shiny.

The testimony of plaintiff reveals that she knew of the existence and location of this wheelguard, and that when about to leave the car while it was stopped at the place of her destination she placed her right foot on the floor between this wheel-guard and the outside sill or edge of the ear floor and her left foot upon the top of the wheelguard, and that her left ankle turned under her in such a manner that she sat down on the top of that foot, resulting in a severe injury to her ankle and limb, and her thumb was injured at the same time in grasping the upright stanchion of the car to save herself from falling.

The defendant denied negligence on its part, and pleaded contributory negligence on the part of the plaintiff in failing to see the wheelguard and to avoid injury from it.

A careful consideration of the evidence shows that plaintiff was familiar with this type of car and knew of the existence and character of the wheelguard, having frequently used such cars; it also shows that her injury did not' arise from stumbling over the wheelguard or falling from the car, but indicates that her foot slipped or her ankle turned from stepping upon the wheelguard, just as a similar accident might have happened to her ankle, by a false step upon the running-board or any other portion of the car, or upon the street or sidewalk. The evidence further shows that the wheelguard was of the kind in general use upon summer cars of the type in question, and that the defendant company had for a number of years used many cars of that type. It further showed that it was necessary in single-truck open cars either to have a wheelguard similar to that in question or to raise the floor of the car about three and a half inches, and that such increase in the height of the floor of the car would so increase the height of the running-board or step, or the distance from it to the floor of the car, as to be more fruitful of accident than the danger from stumbling over the so-called obstruction of this character of wheelguard. It was in evidence that the defendant company had summer cars with higher floors in which there were no wheelguards, but that these cars had been purchased to accommodate a safety brake known as the “slipper brake” for use on heavy grades in the city, the elevation of their floors being made with a view to affording the-necessary space for such brake rather than for the purpose of eliminating such a wheelguard.

The evidence shows the exact size and location of this wheel-guard with reference to the space between the seats, and it is clearly shown that a passenger could step into or out of the car without being compelled to step upon the wheelguard.

The court is of the opinion that the verdict of the jury, which involves a finding of negligence on the part of the company as well as lack of contributory negligence on the part of the plaintiff, is not sustained by sufficient evidence.

The fourth special charge asked by the defendant before argument to the jury is as follows:

‘ ‘ From the mere fact that the plaintiff was injured, you may not infer that the company was negligent. If you find that the wheelguard, as respects its type and location, was of an approved kind in general use by street railroad companies throughout the country on single-truck summer ears, then I charge you that the traction company was not negligent in adopting and using that type of wheelguard upon the car in question.”

The charge was improperly refused by the court. The following authorities support the proposition that an appliance not obviously dangerous, that has been in daily use and uniformly proved safe, may be continued to be used without the imputation of negligence. Graef v. Phila. & Reading R. R. Co., 161 Pa. St., 230; Adduci v. Boston Elevated Ry. Co., 102 N. E. (Mass.), 316; Werbowlsky v. Ry. Co., 86 Mich., 236.

The case of Farley v. Philadelphia Traction Co., 132 Pa. St., 58, involved an accident arising from a wheelguard similar to the one in the case at bar. In that case the court held that the use of such a wheelguard was not negligence on the part of the street railway company, and that it was not error to enter a judgment of non-suit.

The court also improperly refused to give the fifth special charge, which is as follows:

“A common carrier of passengers does not owe to a passenger the highest degree of care absolutely, but only the highest degree of care consistent with the practical operation of the road in view of danger to be reasonably apprehended and the purpose to be served. If, therefore, you find that in the present ease the company exercised that degree of care which ordinarily prudent street car companies under like circumstances use, I charge you that the company was not guilty of any negligence and your verdict should be for the defendant company.”

The evidence shows that the use and maintenance of the wheel-guard upon defendant’s ear in the manner in which it was placed and in use on the car was not negligence, and no other negligence was claimed or shown on the part of defendant.

The motion of defendant for an instructed verdict in favor of defendant, made at the close of plaintiff’s evidence and renewed at the close of all the evidence, should have been granted.

The judgment below is therefore reversed, and judgment will be entered here for plaintiff in error.

Jones (E. IT.), J., and Gorman, J., concur.


source: Caselaw Access Project

author: Gorman, J.

license: Public Domain

text:
    FAILURE OF MACHINERY TO MEET REQUIREMENTS.
    Court of Appeals for Hamilton County.
    Fairbanks, Morse & Company v. The Snook-Veith Lumber Company.
    Decided, December 4, 1916.

      Conditional Sales — Tender Bach of Property Sold — Not Necessary to Relieve Purchaser from. Further Payments, When — Failure of Thing Sold to Meet Test — Dissatisfaction May he Shown Otherwise Than hy Tender Back.

    1. Under a conditional sale of machinery which has failed to meet the requirements of the purchaser, the fact that the title has remained in the vendor relieves the purchaser from the necessity of tendering the property back in order to be released from making further payments.
    2. Nor will failure to offer to return the machine be construed as a waiver of the right to claim it has not met the required test, where the evidence with reference to the test and the dissatisfaction of the purchaser therewith was such as to satisfy the jury that the stipulated requirements had not been met.

      Otis H. Fisk, for plaintiff in’ error.

      Goth, Howard & Bailey and Henry L. Bockel, contra.
   Gorman, J.

The ease below was tried to a jury and a verdict rendered in favor of the defendant below, and upon that verdict judgment was entered. The plaintiff in error, who was the plaintiff below, asks for a reversal of that judgment in this proceeding.

It appears from the record that on or about the 4th day of April, 1911, a contract was entered into between the parties to this proceeding whereby Fairbanks, Morse & Company sold to the Snook-Yeith Lumber Company a certain mechanical equipment to be used in connection with the operation of the Snook-Yeith Lumber Company’s lumber plant in St. Bernard, Ohio, the equipment consisting of a 100 horse-power gas engine, cylinder generators and other equipments and attachments. The contract price of the purchase was $8,700. The contract was in form a conditional sale, whereby the title to the property was to remain in Fairbanks, Morse & Company until the price was fully paid.

After the engine, generator and appliances were installed the defendants began the use thereof, and also began payments on the purchase price. By the terms of the contract defendant was to pay in installments; and at the time this suit was brought the defendant had paid of the $8,700 all but $2,900.

The defendant company had considerable trouble with the engine by reason of breakages in the cylinder-heads and bearings and other parts, and complained of these defects from time to time to Fairbanks, Morse & Company. Finally, after much discussion and correspondence between the parties, an agreement was entered into between them about December 15, 1913. This agreement was in the shape of a letter from Fairbanks, Morse & Company to. the Snook-Veith Lumber Company and the acceptance by the Snook-Veith Lumber Company of the proposition contained in the letter. That agreement was as follows:

“Fairbanks, Morse & Co. to furnish you with a suitable engineer to operate the 100 H. P. engine of our make at your plant during regular schedule working hours for a period of two months. The Snook-Veith Lumber Company to pay this engineer at the rate of $20 per week for his time. If at the expiration of the two months the engine has been kept in operation during regular schedule working hours without interruption due to defects, the Snook-Veith Lumber Co. is to pay the balance due on their account at the completion of this two months’ period. If there is interruption in the operation of the engine due to defects, Fairbanks, Morse & Co. are to remove the engine and generator and credit the Snook-Veith Lumber Co. with the balance of their account, thereby closing the entire transaction.”

Upon the acceptance of this proposition by the Snook-Veith Lumber Company the parties agreed to begin the operation under this test on February 1, 1914. An engineer, Mr. Henry, was sent by Fairbanks, Morse & Company to take charge of the engine and machinery on or about the 1st of February, 1914, and he operated it for a period of two months, at the expiration of which time Fairbanks, Morse & Company claimed that the conditions of the test had been complied with and that they were entitled to the balance of the purchase price, $2,900. The Snook-Veith Lumber Company denied that the conditions of the test had been complied with, and claimed there had been two or three shut-downs due to defects in the engine, and therefore refused to pay the balance of the account.

The issue in this case was whether or not the test agreement had been fully carried out by Fairbanks, Morse & Company. Much evidence was produced pro and con, and upon the submission of the case to the jury under the instructions of the court a verdict was returned in favor of the Snook-Veith Lumber Company, defendant below.

It is claimed by plaintiff in error that there was no evidence to support this verdict. An examination of the record satisfies us that there was evidence upon which the jury could reasonably come to the conclusion it did, that there was a failure of the test upon the part of Fairbanks, Morse & Company, and that it was not entitled to recover.

It is also claimed by Fairbanks, Morse & Company that the Snook-Veith Lumber Company failed to tender back the engine and appliances at the end of the test period — two months. It was not necessary, in the opinion of the court, that a tender of this engine and machinery should be made to Fairbanks, Morse & Company by the defendant company, because under the contract the title to this property remained in Fairbanks, Mbrse & Company, and it was only the possession which it was necessary for them to secure; and under the contract they had the right to take possession of the machinery at any time, upon the failure of the Snook-Veith Lumber Company to pay for the same.

It is claimed, however, that the failure to tender back this property indicates that the Snook-Veith Lumber Company waived its right to claim that the test had not been complied with. There is evidence tending to show that the president of the Snook-Veith Lumber Company was not satisfied with the test and notified the representative of Fairbanks, Morse & Company that the test had not been fulfilled and that the engine was not satisfactory and that it had not operated, without interruption due to defects, for a period of two months. All these questions of fact were for the jury under proper instructions. It was their province to pass upon the evidence, weigh the same, and to pass upon the credibility of the witnesses and determine what weight should be given to the testimony of each witness. We are not prepared to say that the verdict is so manifestly against, the weight of the evidence as to warrant this court in setting aside the verdict of the jury and the judgment of the -court.

Upon a review of the whole case we find no error in the record to warrant this court in setting aside the judgment, and the same is therefore affirmed.

Jones (E. H.), P. J., and Jones (Oliver B.), J., concur.


author: Jones (Oliver B-.), J.

text:
    LIABILITY FOR. FALSE REPRESENTATIONS AS TO VALUE.
    Court of Appeals for Hamilton County.
    Leslie Johns v. Charles H. Hopper.
    Decided, November 27, 1916.

      Warranty — Liability for Representations Which Proved to be False— • Case of a Vendor Seeking to Retain Benefit from the Sale — Distinguished From that of an Agent Acting in Good Faith. '
    Liability on the part of an agent for damages on account of false representations as to the value of a'thing sold does not arise in the absence of a showing of bad faith, or that the belief of the defendant as to the truth of the representations was not justified by the facts.

      John Nichols and Frank P. Shaw, for plaintiff in error.

      Charles F. Malsbary and Frank E. Wood, contra.
   Jones (Oliver B-.), J.

This was an action in the court of common pleas for damages for false representations in the sale of stock of the Williams Shoe Company. The defendant sold the stock as an agent of the Williams Shoe Company, and shortly after the plaintiff had paid for the stock and the certificates had been issued but before he had received them, that company was thrown into the hands of receivers, and the stock proved to be worthless.

Plaintiff sought to rescind the sale and to recover the amount which he had paid for the stock. The Williams Shoe Company was not made a party, and the ease proceeded to trial before a jury as an action for money. The trial resulted in a’verdict for defendant, on which judgment was entered. Error is prosecuted in this case to reverse that judgment and for a new trial.

. It is'contended that the trial court erred in refusing to give a special charge requested by plaintiff before argument, as follows:

“If you find the plaintiff was induced to purchase the stock, by means of representations made by the defendant to plaintiff, however honestly made, and the representations so made by the defendant were material and substantial, affecting the identity, value or character of the stock, that the plaintiff had a right to rely upon them, and that he was induced by them to make the purchase, and that said representations were false, although at the time they were made by the defendant he believed them to be true, you will find for the plaintiff.”

This charge is claimed to be taken almost verbatim from the opinion of the Supreme Court in Mulvey v. King, 39 O. S., 491, counsel for defendant in error in their brief quoting the language of the opinion, beginning in the last paragraph on page 494. But in their quotation they omit the first sentence of that paragraph, which states:

“It may be considered as well settled in this state, by the cases above cited, that an action for damages caused by misrepresentation can not ordinarily be maintained, without proof of actual fraud, or such gross negligence as amounts to fraud.”

The special charge as drawn fails to include the element that the defendant, who it is claimed made the false representation, is claiming the benefit of the contract. In the case of Mulvey v. King, suit was brought by a vendor of real estate against his vendee, upon a promissory note which was executed as part payment of the consideration of the purchase, and the defendant was there permitted as against that claim to set up the false representation of fact affecting the identity and value of the real estate.

In this case the suit is not against a vendor of stock who is seeking to retain purchase money, but is against an agent who had no interest in the sale other than his salary as such agent. It was admitted in the trial of the case by counsel for plaintiff, that defendant did not wantonly and wilfully make a false statement. And even if that admission is not to be considered, the. question of his good faith was a fact submitted to the jury, and their finding was in favor of defendant.

If the representations of defendant should be treated as amounting to a warranty of the character of the stock, it would be merely the warranty of an agent for his principal, and the right of action on such warranty would be against the principal and not against the agent.

This special charge would impose upon the defendant an abso-lute liability irrespective of his good faith, even though his belief in the truth of the representations made by him were justified by the facts. This would be contrary to the doctrine announced in Taylor v. Leith, 26 O. S., 428.

The ease of Gaisser v. Hansen, recently decided by this court, referred to in the argument of counsel, was one in which the purchaser of real estate paid the purchase price in part by the transfer of certain bank stock, which he represented to be of a particular value when in fact it was almost worthless, although the vendee had not knowledge of such fact at the time of the purchase. This court held that under the evidence the vendor was entitled to rely upon the representations of the vendee as to the value of the stock, and he would not be permitted under the circumstances to retain the real estate without making good the entire purchase price which the vendor had not received because of such representation. That ease therefore does not control the case at bar and is not in conflict with the rulings of the trial court.

In our opinion, therefore, it was not error in the trial court to refuse this special charge.

Criticisms are made as to several portions of the general charge of the court, but considering'this charge as an entirety we are of the opinion that the law of the case was fairly stated, and we find no prejudicial error in it.

It is further claimed by plaintiff in error that the court erred in refusing to admit the testimony of a witness as to representations made to him and other persons by defendant similar to those claimed to have been made to the plaintiff. Under the law as laid down in Insurance Co. v. Reed, 33 O. S., 533, we think the court was right in rejecting this evidence. It would only be admissible, if at all, to show that the defendant knew the statements to be false, and as there is no evidence tending to show such knowledge — and in fact the plaintiff in the trial disclaims making such a charge against defendant — we find no error in the refusal to admit such evidence.

A careful consideration of the entire record fails to reveal any error to the prejudice of plaintiff in error, and the judgment will be affirmed.

Jones (E. H.), P. J., and Gorman, J., concur.


author: Chittenden, J.

text:
    INSTRUCTIONS TO JURY IN A WILL CONTEST.
    Court of Appeals for Lucas County.
    Anna Strick et al v. John Kiss, Guardian of Joseph Kiss, an Infant.
    Decided, November, 1916.

      Evidence — Preponderance of, Not Sufficient to Set Aside a Will — Pre- ■ ' sumption of Validity Arising From Probate Must Also be Overcome — Limitation of Testimony of Experts as to Mental Condition of Testator.

    1. In an action to contest the validity of a will it is necessary for the . trial judge to charge the jury, by some appropriate language, that the evidence offered against the validity of the will must be sufficient to preponderate over the evidence offered in its support, supplemented by the presumption raised by the statute by virtue of the probate of the will, before the jury will be justified in returning a verdict against the validity of the will.
    2. In the examination of a non-expert witness as to the mental condition of the testator, the questions should be restricted to the present opinion of the witness as to the testator’s mental condition at the time the witness had him under observation.

      Cornell Schreiber, for plaintiffs in error.

      Sala <& Carabin, contra.
   Chittenden, J.

Error to the court of common pleas.

This action was brought to contest the validity of the will of Joseph Vavrek, deceased. The jury returned a verdict finding that the paper purporting to be the last will of Joseph Vavrek was not his last will and testament, and judgment was entered in accordance with such verdict.

It is claimed that the judgment is erroneous because it is manifestly against the weight of the evidence, and because of error in the admission of evidence and error in the'charge of the court.

The court properly instructed the jury that proof of the probate of the will made a prima facie case in favor of the defendants of the due attestation, execution and validity of the will, and that the jury would be required to find in favor of its validity, unless such evidence was rebutted by other evidence in the ease and by a preponderance thereof. The court then proceeded to charge the jury as to what was necessary to constitute a valid will, and .then charged as follows:

“The burden is upon the contestant to show by a preponderance of the evidence that this writing, already admitted to probate, was not so executed. If you find the preponderance of the evidence with the contestant on this disputed fact, you will not proceed further but return a verdict finding the writing not to be the last will of Joseph Vavrek. But if you find that they have failed to prove this, then you must consider the further evidence.”

In the succeeding paragraph of the charge the jury were told, in effect, that a valid will could only be made by a person of sound mind and not under restraint, and that in the case at bar the validity of the will, as regards those qualifications, is evidenced by the will, the proceedings in the probate court and the order admitting the will to probate in that court, but that there was also evidence before the jury which they might consider as tending to rebut and overcome the prima facie case. The latter paragraph did not discuss preponderance of evidence, but only stated that there was some evidence tending to rebut the prima facie case in favor of the validity of the will. Later in the charge the court said:

“Your verdict will be determined by your conclusion whether-a preponderance of evidence exists in favor of the contestants. Preponderance of evidence means evidence which you find worthy of some credibility and of greater persuasive power than the evidence to the contrary. Preponderance exists if you are persuaded more by the evidence upon one side than upon the other side. It exists also when you find evidence worthy of some consideration and no evidence to the contrary.”

Again, the court said:

“You are to find each fact according to the weight of the evidence relevant to such fact.”

And again:

“Compare the testimony of each witness.' Remember the circumstances and surroundings of the witness and parties and thus fairly find where the preponderance of evidence lies. You are not compelled to avouch the truth of the facts you find, but you are obliged to ascertain whether or not there exists in this action a preponderance of the evidence in favor of the facts claimed by the contestant, the plaintiff here. If you find no preponderance you can not find in favor of the plaintiff. If the evidence upon the issue on the trial before you balances equally upon, the one side or the other the plaintiff fails. The defendants do not sustain the burden to prove the will by a preponderance of the evidence. If, however, by a preponderance of the evidence you find that Joseph Vavrek was not of sound mind and memory the plaintiff is entitled to a verdict and finding that the will probated was not the last will of the decedent. And if the preponderance of the evidence shows that the will of Joseph Yavrek was executed by the decedent while under restraint then your verdict should find this will not to be his will. ’ ’

The last quotation is from the concluding paragraph of the court’s charge.

It will thus be seen that the charge emphasized the instruction that the verdict was to be governed by the jury’s finding upon the preponderance of the evidence, and the preponderance defined in the charge was in accordance with the charge in the trial of ordinary civil actions.

It has been held by the court of appeals of this district in a number of decisions that this is not a correct statement of the law in this respect in the trial of a will contest case. The correct instruction was announced in ease No. 150 in the court of appeals, Carr v. Carr, decided June 30, 1913, as follows:

‘ ‘ It devolved upon the plaintiff to overcome net only the evidence introduced in support of the validity of the will upon the trial, but also the presumption of the validity of the will arising from its being admitted to probate.”

This rule was also announced in case No. 164, court of appeals, Garrett et al v. Perrigo et al, decided January 5, 1914.

This court also applied the rule in a case heard in Cuyahoga county entitled Blake et al v. Smith et al, decided January 11, 1915, in which, cáse one of the principal errors alleged was a failure to instruct the jury as to the proper effect to be given to the order of probate. In that case we heard additional arguments upon the question, both orally and by brief, and re-examined the question, as a result of which we stated that:

“We adhere to the position that it is necessary for the trial judge in a will contest case to state to the jury that the evidence offered against the validity of the will must be sufficient to preponderate against the evidence offered in its support, supplemented by the presumption raised by the statute by virtue of the probate of the will, before the jury will be justified in returning a verdict against the validity of the will. ’ ’

This was the principal error inducing a reversal of the judgment entered in the Common Pleas Court of Cuyahoga County in that ease.

The rule announced by this court as above indicated is in accordance with, and made mandatory by, the decision of the Supreme Court in Hall v. Hall, 78 O. S., 415, 416. The journal entry in that ease recites:

‘ ‘ That the jury was not instructed, as it should have been instructed, that before they would be entitled to return a verdict setting aside the will they must be able to find that the evidence adduced by the contestant, Charles F. G-. Hall, outweighs both the evidence adduced by the defendant, Anne S. Hall, and the presumption arising from the order of the probate court admitting the will to probate as the valid last will and testament of Mercy A. Hall. ’ ’

For the error of the court in its charge as above indicated the judgment will be reversed.

We find no other prejudicial error in the record justifying a reversal, but inasmuch as the cause is to be remanded for a new trial we call attention to certain evidence that was admitted. Certain non-expert witnesses were asked as to their opinion of the mental capacity of the testator at a time when the testator does not appear to have been under their observation. In the ease of Carr v. Carr, supra, we called attention to the correct rule as to this class of evidence. The question should call for the present opinion of the witness as to the mental condition of the testator at the time when such person was under his 'observation. The evidence of such non-expert witnesses is to be limited to the time when they were present and observing the person about whom they are testifying. Runyon v. Price et al, 15 O. S., 1.

It is claimed on behalf of the defendant in error that the judgment should be affirmed under the doctrine announced in the second syllabus in McAllister v. Hartzell, 60 O. S., 69. We express no opinion as to whether or not the doctrine of that ease is applicable in a will contest case, but even if it were applicable as contended, the state of the evidence as disclosed by thq bill of exceptions is not such as to permit this court to dispose-of the case under the rule of McAllister v. Hartzell.

The judgment of the common pleas court will be reversed and the cause remanded for new trial.

Richards, J., and Kinkade, J., concur.


author: Jones (Oliver B.), J.

text:
    DEFINITION OF NEXT OF KIN.
    Court of Appeals for Hamilton County.
    Jane Champlin v. John M. Walsh, Executor of the Will of Marcena Malisa Goldsmith, Deceased, et al.
    Decided, May 29, 1916.

      Distribution — Determination as to Next of Kin of One Who Died Without Issue — Section 8574.
    The next of kin within the sixth clause of Section 8574, General Code, of one who died leaving no issue, and whose father and mother are both dead and left no issue surviving them, are the descendants of her grandparents, or her great grandparents, or her great great grandparents, as far back as it may be necessary to go.

      Hicks & Hicks, for plaintiff in error.

      John M. Walsh, for executor.

      James R. Jordan, for defendants in error.
   Jones (Oliver B.), J.

The final judgment in this case, in the court of common pleas, ordered distribution of the property undisposed of by the will of Marcena Malisa Goldsmith — one-half of that which came to her from her husband, to-wit, the real estate and certain bonds — to Moses Goldsmith, the brother of the whole blood of her deceased husband; and provided that “the other one-half of said surplus of said bonds, together with any undevised balance of the personal estate of said testatrix remaining after the payment of debts and legacies as above provided, shall be paid and distributed in accordance with the provisions of the General Code of Ohio applicable thereto.”

This case, on error from the common pleas court, was heard in this court before the judges of the sixth district, who affirmed the judgment of the common pleas court so far as this matter was concerned, and modified it in some other respects. The parties, 'however, bring it again to the attention of the court because of their failure to agree as to what, provisions of the General Code of Ohio apply to the distribution of this particular property.- The property consists of a house and lot in Madisonville and government bonds of the value of about three thousand dollars, all of which came to the testatrix by devise from her deceased husband, Charles N. Goldsmith, and one thousand dollars which was acquired by the testatrix from other sources.

There is no question about the one-half of the property which came from her deceased husband going to his brother, Moses Goldsmith. The contention submitted to the court is, that because testatrix had no issue, and her father and mother who are both deceased left no issue surviving her, and her next of kin are the descendants of her grandparents or great-grandparents, that she left no next of kin within the sixth clause of Section 8574 of the General Code, and that Moses Goldsmith would therefore take under the terms of Section 8576.

The right to the one-half of the real estate and the bonds taken by Moses Goldsmith, as to which there is no dispute, is given him by Section 8577, General Code. The claim he makes as to the balance of the property is under Section 8576, General Code. By its terms this latter section would operate only where “there is no person entitled to inherit it under the next three preceding sections.” The next of kin of the wife, however, claim under Section 8574, clause 6, which is as follows:

“If the father and mother are dead, the estate shall pass to the next of kin, and their legal representatives, to and of the blood of the intestate.”

Counsel for Moses Goldsmith contend that this clause undertakes to make two classes of “next of kin” — those of the blood of the intestate, and those not of the blood of the intestate. And he undertakes to say that the only next of kin of the blood of the intestate would consist of the children and their issue and the father and mother and their issue. We find no support for this contention. They may be nearer blood relatives, but the grandparents and their issue, and the great grandparents and their issue, are also blood relatives, as far back the line as it is necessary to go to find the nearest blood relatives.

The purpose of inserting the words “of the blood of the intestate” seems to be to exclude relatives by affinity claiming through a husband or wife. Strictly speaking, the widow, is not classed as next of kin, nor is a surviving husband; but under general definitions that are sometimes given, either of these might be included within the term. The Century Dictionary as one definition, defines “next of kin” as “the relatives of a decedent entitled to his personal estate under the statute of distribution.” And “kin” is defined as “relationship; consanguinity or affinity.” Among the definitions of the term “next of kin” found in 29 Cye., 1044, are: “nearest of kin; nearest in blood relationship; nearest of blood, ’ ’ etc.

In Armstrong v. Grandin, 39 O. S., 368, an order of the probate court to distribute and pay over funds to the next of kin and representatives of said intestate according to the provisions of the statute, etc., was construed to include the widow, although not strictly within the meaning of next of kin. It is agreed that there are living relatives of Marcena Malisa Goldsmith who can be found, who are descendants of either her grandparents, of her great grandparents or of her great great grandparents, whose names and proximity to the testatrix have not yet been fully ascertained. The nest of kin thus found are entitled to take this property under the terms of General Code, 8574.

Jones (E. H.), P. J., and Gorman, J., concur.


author: Allread, J.

text:
    PRESUMPTION THAT EVIDENCE JUSTIFIED THE INSTRUCTION GIVEN.
    Court of Appeals for Hamilton County.
    Eliza Samuels v. The Cincinnati Traction Co.
    Decided, March 31, 1915.

      Charge of Court — Instruction as to Contributory Negligence Will be Presumed to Have Been Justified — Where Bill of Exceptions Contains Only Part of the Evidence.

    Where the bill of exceptions contains only a part of the evidence, and it is complained that the court erred in mating any reference in its charge to the jury to the subject of contributory negligence as to which the pleadings tendered no issue, a reviewing court will presume that the evidence justified an instruction on that subject.

      George J. Slaline and Matthews & Matthews, for plaintiff in error.

      Joseph WiVby, contra.
   Allread, J.

The plaintiff below, who is also plaintiff in error, claims to have been injured while in the act of alighting from a street railway ear. The negligence charged against the company is the premature starting of the car. The answer is a general denial. The trial resulted in a verdict and judgment for defendant.

The plaintiff took a bill of exceptions embodying the entire charge of the trial court, but only a small portion of the evidence. The only assignment of error urged by counsel in this court is that the trial court erred in charging the jury upon the subject of contributory negligence. It is not contended that the charge given is incorrect in the abstract, but it is urged that it was improper for the court to charge upon that subject at all.

The bill of exceptions recites that “the plaintiff to maintain the issues on her part introduced the evidence of certain witnesses. ’ ’

There is no statement of what the evidence on behalf of plaintiff tended to prove. It is not a conclusive presumption that the plaintiff’s evidence was confined strictly to the averments of her petition; nor is it inconsistent with the record, that evidence may have been offered on behalf of plaintiff tending to raise an inference of contributory negligence.

The fact that the pleadings tender no issue upon contributory negligence is not the only test as to whether contributory negligence may become an issue for the consideration of the court and jury. In the very recent case of The Rayland Coal Company v. McFadden, Admr., 90 O. S., 183, the law arising out of the eases of Cincinnati Traction Company v. Forest, 73 O. S., 1, and Cincinnati Traction Company v. Stephens, Admr., 75 O. S., 171, is discussed, and the doctrine clearly established that notwithstanding the pleadings tender no issue of contributory negligence, yet if the evidence offered by plaintiff creates an inference of contributory negligence, the trial court is justified in instructing the jury upon the law of contributory negligence as applicable to the evidence so offered.

In the absence of a showing to the contrary, we are bound to presume that the evidence justified the charge of the trial court, for it is a principle constantly applied by reviewing courts that all reasonable presumptions consistent with the record under review must be indulged in favor of regularity and against error.

There being no error manifest upon the record, it follows that the judgment of the court of common pleas should be affirmed.

Ferneding, J., and Kunkle, J., concur.


author: Powell, J. Shields, J.,

text:
    MOTION TO DIRECT A VERDICT NOT A SUBMISSION OF THE CASE.
    Court of Appeals for Stark County.
    City of Canton v. Walter Pryke.
    Decided, December 5, 1916.

      Motions by Both Defendant and Plaintiff at Close of Plaintiff’s Evidence —Not a Waiver by Defendant of the Right to Introduce Evidence and Submit Cause to the Jury on the Facts-.

    1. A motion made by the defendant, at the close of the evidence offered hy the plaintiff, to direct a verdict in favor of the defendant is not a submission of the defendant’s case and can not be made so by the plaintiff’s joining in such motion. Such a motion by the defendant tests tjie sufficiency of the plaintiff’s evidence, and is in nowise a submission of defendant’s case.
    2. A motion by defendant to direct a verdict in his favor made at the close of the evidence of plaintiff is equivalent to a demurrer to the plaintiff’s evidence and under the code practice if overruled, the defendant has a right to introduce his, testimony and have the cause submitted to the jury on the facts; and the nature of such a motion by defendant is not changed by plaintiff joining in such motion.
    3. Where it appears that at the close of the testimony offered by the plaintiff, a motion was made by the defendant to direct a verdict in its favor, and a motion was also made by the plaintiff to direct a verdict in his favor and the motion of the defend- ' ant was overruled, the defendant then had the right to go forward and offer his evidence and have the whole cause submitted to the jury on the facts; and when the motion of plaintiff was sustained and a verdict for plaintiff was directed by the court, such action on the part of the court deprived the defendant of its constitutional right to a trial by jury.
    4. The right of trial by jury should ever be held inviolate, and if a party who is entitled to such trial waives such right, the record must disclose such waiver in unequivocal terms.

      Walter S. Buff and Clarence A. Fisher, for plaintiff in error.

      Webber & Turner, contra.
   Powell, J.

Error to the Court of Common Pleas of Stark County.

The defendant in error, Walter Pryke, recovered a judgment against the city of Canton for damages arising from the -loss of the personal services of his wife, by reason of the negligence of said city in the maintenance of its streets and street crossings. Said judgment is brought into this court by petition in error for review. The question presented to us for adjudication is one of procedure and not one arising out of the merits of the case.

The record shows that when the case was on trial in the court of common pleas the plaintiff, Pryke, offered his testimony and rested his case. The defendant, City of Canton, then moved for a directed verdict in its favor, whereupon the plaintiff joined in said motion, asking a directed verdict in favor of the said plaintiff. The court overruled the motion of defendant and sustained the motion of plaintiff, directing a verdict in his favor in the sum of $2,500, which verdict was returned by the jury, and the judgment thereupon was entered. Defendant filed a motion for a new trial, which was overruled, and a bill of exceptions was taken, containing the entire record, and the same was filed in this court with the petition in error.

Did the court err in its action on said two motions for a directed verdict? We are of the opinion that it did.

The conduct of the trial of a cause in the court of common pleas is provided for by Sections 11447 and 11448 of the General Code. By subdivision three of said Section 11447 it is provided as follows:

“3. The party who would be defeated if no evidence were offered on either side, first must produce his evidence, and the adverse party must then produce his evidence.”

Pursuant to this direction plaintiff offered all his evidence and rested. Defendant then, by his motion for a directed verdict, submitted for the consideration of the court the evidence offered by the plaintiff, with the claim that even if its truth were admitted it would not make a case that would entitle the plaintiff to a judgment in his favor. The action of the defendant was equivalent to a demurrer to the evidence, the only difference being in the legal effect of an order sustaining the same. Formerly on an order sustaining a demurrer to the evidence, a non-suit was entered, which did not bar a second suit on the same cause of action; but now a judgment entered on an order sustaining a motion to direct a verdict is res judicata and no second suit can be maintained; otherwise a motion to direct a verdict and a demurrer to the evidence are one and the same thing. A motion by the defendant to direct a verdict at the close of plaintiff’s case is not a submission of the defendant’s case and can not be made so by the plaintiff’s joining in such motion. He had nothing to submit that was not already submitted when he had offered his evidence and rested his ease. His joining in defendant’s motion does not change the nature of it. It is still a motion testing the sufficiency of the plaintiff’s evidence, and is in no wise a submission of defendant’s case. •

It is said, however, that the record does not show a prejudicial error in the action of the court; that the defendant'should have stated what he intended to prove by the evidence to be offered. We do not subscribe to this view. The statute above cited prescribes what the record should show. It should show that the plaintiff offered his testimony and rested; that a motion to direct a verdict was filed by the defendant and overruled; that the defendant then offered its evidence, or refused to offer any, as the case might be, and rested. If its motion to direct a verdict was then renewed as required by law, the whole case would be before the court and jury; and a motion by the plaintiff for judgment on the whole case would be a submission of the whole ease to the court, as a matter of law and without the intervention of the jury.

A ease can not be submitted and adjudicated on the submission of one side only. If it is ¡submitted on the evidence it must be submitted on the whole evidence, and the record must so show. If on a motion for judgment on the pleadings it must be on all the pleadings in the ease and not on any one of them. It is not necessary in this ease to show what the evidence to be offered tended to prove. It is only necessary to show that the defendant had evidence to offer, or if it had none to offer that it rested its case. This, the record does not show, and the court erred in directing a verdict for plaintiff and in entering judgment thereon without such evidence having been offered.

It is strongly contended in argument that the defendant waived its right to have its case submitted to a jury, and that it consented to have its ease passed on by the court, or that the court should direct such verdict .to be returned as the pleadings and the evidence would warrant.

The right of trial by jury should ever be held inviolate, and if a party who is entitled to a trial of his cause by a jury; waives such right, the record ought to disclose such waiver in unequivocal terms. What does this record disclose that can be construed as a waiver of a jury trial, and submission of the same to the court without the intervention of a jury.

The record shows that the court overruled the motion of defendant for a directed verdict and sustained the motion of plaintiff for such verdict. After this had been done, counsel for the plaintiff said: “We now ask that the case go to the jury on the facts.” Counsel for the defendant then said: “We object and insist that it is not the correct procedure.” The court then submitted the case to the jury by directing it to return a verdict for the plaintiff in the sum of $2,500, which it did.

The majority of the court do not think that this constitutes a waiver of any of its rights on the part of the defendant. It was and is more of a protest to the action of the court in sustaining plaintiff’s motion for a directed verdict, the motion for which had already been sustained. There remained nothing to submit except a direction by the court to the jury to retire and return a verdict in an amount fixed by the court.

“The right of trial by jury being guaranteed to all our citizens by the Constitution of the state, can not be waived or violated by either legislative act or judicial order or decree.” Gibbs v. Village of Girard, 88 Ohio St., 34.

In the able opinion in this case, at page 47, the court says:

‘‘ So long as the trial by jury is a part of our system of jurisprudence, its constitutional integrity and importance should be jealously safeguarded. The right to trial by jury should be as inviolate in the working of our courts as it is in the wording of our Constitution.”

A majority of the court think there was no waiver of any rights on the part of the defendant; that the court erred in sustaining plaintiff’s motion for a directed verdict, and in directing the jury to return the verdict that was returned.

Said judgment will, therefore, be reversed and the cause remanded to the court of common pleas for a new trial, and for such other proceedings as are authorized by law. Judgment reversed.

Houck, J., concurs. Shields, J., dissents.

Shields, J.,

dissenting.

I dissent from the conclusion reached herein by my associates, basing such dissent upon the conclusion stated in the majority opinion in respect to the court below denying to the defendant its constitutional right of trial by jury.

In referring to the parties herein they will be referred to in the same relation as they were in the action below.

The proceeding instituted here is to reverse the judgment of the court of common pleas rendered in an action brought by the plaintiff to recover damages for loss of the services of his wife, Elizabeth Pryke, because of the injuries alleged to have' been sustained by her by tripping and falling over a defectively constructed gutter plate at the intersection of Cherry avenue and Fourth street in the city of Canton, caused, as alleged, by the negligence and carelessness of said city.

An answer was filed denying the negligence charged and denying all liability on the part of said city.

Trial was had and at the conclusion of the evidence introduced on behalf of the plaintiff upon motions submitted for a directed verdict by both the plaintiff and defendant, as hereinafter more particularly set forth, the trial court directed the jury to return, a verdict for the plaintiff in the sum of $2,500, which was accordingly done and judgment was entered upon said verdict.

The petition in error alleges several grounds for the reversal of said judgment, but the principal grounds argued and relied on are contained in what are designated as grounds Numbers 6 and 8, which are as follows:

“6. The court erred in directing a verdict in favor of the defendant in error after said court has overruled the motion of the plaintiff in error to direct a verdict in its favor, and said court in refusing to permit the plaintiff in error to introduce any testimony, deprived it of its constitutional right of a trial by jury as guaranteed to it by Section 5, Article I of the Constitution of the state of Ohio.
“8. There is further error in the record and proceedings-in this, that at the close of the evidence offered by the defendant in error the plaintiff in error having made a motion for the direction of a verdict in its favor and the court having then and there overruled the same, and without giving the plaintiff in error any opportunity to introduce its testimony in defense and as against its offer to so introduce its testimony in defense, directed a verdict on the sole evidence of the defendant in error, to all of which the plaintiff in error then and there objected and protested; and the plaintiff in error says that thereby the court deprived' the plaintiff in error of its constitutional right of a trial by jury as guaranteed it under Section 5 of Article I of the Constitution of Ohio, and that the act of said court in so directing a verdict in favor of the defendant in error and refusing to permit the'plaintiff in error to present its evidence to the jury for its consideration, was an arbitrary and unreasonable exercise of judicial authority.”

It appears from the record that at the conclusion of the plaintiff’s case the defendant submitted the following motion:

“Now comes the defendant and moves the court to arrest this case from the jury and direct a verdict in favor of the defendant for the’reason that the evidence produced on the part of the plaintiff is insufficient in law to sustain the plaintiff’s cause of action, and for the further reason that plaintiff has not claimed any actual notice on the part of the city of the defective street and there is no evidence of any constructive notice sufficient to warrant the court in submitting this cause to the jury.”

'It appears that upon the submission of the foregoing motion of the defendant, the plaintiff likewise submitted the following motion:

“Now comes the plaintiff, the defendant having moved the court to direct a verdict for the defendant, and joins, in such motion and asks the court to direct a verdict for the plaintiff.”

Here the record shows that the foregoing motions were submitted; it was argued that the motion of the defendant was passed on and ^overruled by the trial court before the motion of the plaintiff was made, and that, therefore, the two motions were not before the trial court for determination at the same time. Whatever the fact, the court can only accept the record as showing the proceedings upon the trial, and referring to the record we find the following after the submission of said motion for a verdict by the defendant: “Motion overruled.”

After referring to the fact that both the defendant and plaintiff submitted motions for a directed'verdict, the following appears :

‘ ‘ The Court: The record should show that Mr. Turner made his motion before the court overruled the defendant’s motion. The fact is Mr. Turner and myself spoke at the same time and the stenographer took my remark and turned around and asked what Mr. Turner had said because of the fact that both spoke at the same time; Mr. Turner was right there and he was diligent in the matter, he attempted to protect the rights of his client.
“Mr. Ruff: The motion of the defendant having been overruled, the defendant, the City of Canton, now offers Miss Tyrone Bloomfield as a witness on behalf of said defendant to give testimony in its behalf.
“Mr. Turner: I want the record to show that plaintiff’s counsel at this point interposed and objected to the statement made by counsel for the defendant, in view of the fact that the court has not passed upon either pf the motions submitted at this time and the statement dictated by counsel in the record as a statement of fact does not comport with the facts.
“The Court: The objection by counsel for plaintiff is well taken and sustained. At the conclusion of the plaintiff’s ease, and after the plaintiff had rested his ease, counsel for defendant made the motion hereinbefore set forth. The court had stepped down from the bench to listen to the dictation and Mr. Turner, counsel for plaintiff, had also stepped to the stenographer’s table and was listening to the dictation. At the conclusion of the dictation Mir. Turner and the court spoke at the same instant. The court overruling the motion made by the counsel for the defendant and Mr. Turner making a motion to the effect that the case should be taken from the jury and a verdict directed in favor of the plaintiff. The record should show that immediately following the motion by counsel for defendant the motion was made by Turner as counsel for the plaintiff.
“And the court coming now to pass upon the motions made by the respective counsel overrules the motion made by counsel for the defendant and sustains the motion made by counsel for the plaintiff, to which ruling of the court counsel for defendant excepts.
“Counsel for plaintiff: We now ask that the casé go to the jury on the facts.
“Counsel for defendant: We object and insist that this is not the correct procedure.
“Court: Inasmuch as it is a question of the case to be submitted to the jury, I think under the 88th 0hio State the court has no alternative in the matter and must submit the case to the jury, which it will do.
“Gentlemen of the jury: Motions have been made in this case in such a way and to such an extent that it has become the duty of the court to direct you in your finding in this case. It is the duty of the court and I now direct you that you shall return a verdict for the plaintiff in this case and in the.sum of $2,500. You may retire and you may return a verdict for that amount.
“Now comes the defendant and excepts to the court directing a verdict in favor of the plaintiff in the sum of $2,500.”

Upon the foregoing record, did the court err in directing a verdict for the plaintiff?

Courts have full control of their records, and while it is apparent that some confusion arose due to the fact that both the court and counsel were talking at the same time after the submission of said motions for a directed verdict, there is no room for doubt, as shown by the record, that said motions were submitted to the court before either was passed upon.

The statute plainly regulates the method of procedure of trials. Here it appears that after the plaintiff had submitted his case a motion was made by both the defendant and the plaintiff for a directed verdict. While recognizing the distinction between a non-suit under the former code practice and the legal effect of a directed verdict under the present code provision, the question arises upon the record as to what additional legal right, if any, did the plaintiff acquire by the submission of his motion for a directed verdict in connection with that of the defendant? The plaintiff’s case was then already made and it would seem that the submission of said motion in' no wise changed the situation. The question and the only question before the trial court was on the sufficiency of the evidence introduced upon the part of the plaintiff to make his case under his petition, as raised by the defendant’s motion to direct a verdict in favor of the defendant on the ground “that the evidence produced on the part of the plaintiff is insufficient in law to sustain the plaintiff’s cause of action.”

If the record stopped here I would say that this action of the trial court in undertaking to render judgment on the motion of the plaintiff as the case then stood was not only irregular, but erroneous, for I am not fully persuaded that the trial court, under the authorities presented, was authorized to enter a judgment in the ease until after all the evidence had been presented upon the part of both the plaintiff and the defendant, or until full opportunity had been offered the defendant to present its defense unless such right was waived, in which event such waiver would be deemed a submission to the court of the questions of law and fact involved. That the defendant had the constitutional right to have its rights passed upon by a jury admits of no question, but it is claimed that this right was waived by the defendant in refusing to introduce any evidence after the, trial court held against it on its motion for a directed verdict. True, it may be said that the court had then already sustained, a motion for a directed verdict on behalf of the plaintiff, who, as already stated, was called upon to sustain the allegations of his petition, which action of the court was of itself harmless; but after the dispute between the court and counsel over the statements of the record was settled, as appears by the record, with the right reserved to the defendant. to make its defense upon the merits of the case, was not the opportunity then expressly offered to the defendant to make such defense and such opportunity declined? Under this record I am of the opinion that the constitutional right of the defendant to have the merits" of its case passed upon by a jury was not denied, but that such right was expressly waived by the defendant’s own voluntary act; and having waived it, the court under the law then became invested with the functions of a jury and passed on the evidence and directed a verdict, which was accordingly rendered by the jury.

For the foregoing reasons I do not concur in the judgment of the majority of the court.


text:
    AWARD FOR. SUPPORT OF ILLEGITIMATE CHILD.
    Court of Appeals for Hamilton County.
    Joseph Scheve v. State, ex rel Josephine Derie.
    Decided, March 27, 1916.

      Bastardy — Preferable Form of Award for Support of Child — Reputed Father May Consent to Pay Weekly — Section 12123.
    Under the provisions of Section 12123, General Code, the reputed father of a bastard child should be adjudged to pay a lump sum, which may be made payable in installments, but where by silence and otherwise he consents to an order for payment of a fixed amount weekly, with the privilege to the parties to apply at any time for a modification of the order, he will not be heard to complain by a reviewing court.

      Dempsey & Nieberding, for plaintiff in error.

      Charles F. Hornberger and Harry B. Weber, contra.
   Gorman, J.

This cause was a second time submitted to this court under an application for a rehearing.

On the original submission this court affirmed the judgment of the court of common pleas, and the court still and now adheres to its former decision.

It appears from the meager record'before us that the plaintiff in error was adjudged the reputed father of a bastard child, in the common pleas court, and thereupon the court adjudged him to stand charged with the maintenance of said child in the sum of five dollars per week until the further order of the court.; and in default of such payment that he stand committed to the county jail of Hamilton county, Ohio. The judgment further provided that upon the birth of said child the said amount may be modified or increased or a lump sum decreed to be paid the mother, Josephine Derie,.in full satisfaction. This entry was made on March 18,' 1914.

On May 6, 1914, Sehreve,'defendant below, moved the court to modify the said judgment and reduce the amount ordered to be paid to said Josephine Derie.

On July 1,1914, the court made this entry:

“By consent of parties the motion to lessen the weekly payments came on for hearing, and it is ordered and decreed that the defendant pay to plaintiff a weekly sum of four dollars per week instead of five dollars as decreed in the temporary judgment hereinbefore given.
“It is also ordered and decreed that the parties may at any time apply for a lessening or addition to the sum herein ordered.”

We are of the opinion that under the provisions of Section 12123, General Code, the court should have adjudged the reputed father to pay a lump sum, which might have been made payable in installments. But in view of the language above set out we fin'd that Scheve consented to this judgment against him, and not that he merely consented to the hearing of the motion as claimed by his counsel. This belief is strengthened when we note that no exception or objection was made to the judgment entry, and that it was more favorable to him than was the judgment entry of March 18, 1914, to which he neither excepted nor objected.

Having consented to this last judgment we see no good reason why this court should now be called upon to reverse a judgment favorable to him and to which his consent was given.

Furthermore, it appears from the entry to which error is prosecuted that the parties were accorded the right to apply to the court at any time, to have this anomalous judgment modified, by increasing or diminishing the sum ordered paid.

For these reasons the judgment is affirmed.

Jones (E. IT.), J., and Jones (Oliver B.), J., concur.


author: Kinkade, J.

text:
    DEMURRAGE ON A CAR. OF COAL REFUSED BY THE CONSIGNEE.
    Court of Appeals for Wood County.
    Toledo & Ohio Central Railway Company v. Harry L. Wilson, Doing Business under the Firm Name of The Prairie Depot Electric Light Company.*
    Decided, October 22, 1913.

      Railways — Demurrage Charges Must be for a Reasonable Period — Consignee Refused to Accept Shipment and Car Was Not Unloaded until Contents Were Sold.

    Where a consignee refuses to accept a car load of freight, the railway company must make disposition thereof within a reasonable time, and a demurrage charge on the car so detained can be made only for a reasonable time.

      Doyle & Lewis, for plaintiff.

      Ora L. Wade, contra.
   Kinkade, J.

This action in the common pleas court was begun to recover an amount claimed to be due the railway company for demurrage on a car claimed to have been held without being unloaded for a given period of time by the defendant. The railway company sought to recover $64.69 as demurrage. The case was submitted to the court of common pleas on a stipulation of counsel for the respective parties, and the evidence. A jury being waived, the court of common pleas found in favor of the railway company for $14.60, and entered judgment accordingly. This is a proceeding in error to reverse that judgment. The claim is made that the finding and judgment of the court of common pleas is at variance with the stipulations made between the parties at the commencement of the trial, and attention is called to the •fact that that stipulation in terms provided that $64.69 was the correct balance due for demurrage, if the defendant was liable.

Upon the hearing of the case here it was stated that the whole matter turned upon the construction and meaning of this'stipulation made at the trial.

The bill of exceptions shows that the case was not only heard upon the stipulations, but upon the evidence as well. It is clearly evident from the record that the common pleas court considered the stipulations mentioned as meaning that if the defendant was liable for demurrage for the whole period which the car remained unloaded, then, and in that event, the amount mentioned in the stipulation would measure and determine the amount of the judgment to be entered.

The defendant ordered a car of coal from a coal company, agreeing to pay a stipulated price per ton for the coal f. o. b. car at the mine. No directions were given by the defendant as to the route over which the coal should be shipped. The coal was shipped over the Pennsylvania Railroad from the Cambridge mine district in Southern Ohio to Toledo and thence to Prairie Depot over the Toledo & Ohio Central Railway. Immediately upon the arrival of the car the consignee gave the railway company notice, and notified the consignor that he refused the ear, which was done solely on the ground that the freight rate of $1.60 per ton was excessive, the consignee claiming that the proper freight rate, had the car been shipped over a direct line and not around by way of Toledo, would have been but $1 per ton. Correspondence ensued between the consignor and the defendant relative to the disposition of the car. The defendant at all times refused to accept the car unless a reduction of the freight of $1 per ton was made. The consignor at all times declined to take any steps looking to any further-disposition of the car of coal, for the reason’ that the consignor claimed that the delivery of the car of coal to the common carrier passed the title therein to the defendant, and that thereafter the consignor had no further concern as to what should be done with the car of coal.

The railway company permitted the car to remain loaded for some sixty-eight days, and then to satisfy its claim for freight at the rate of $1.60 per ton, sold the car of coal, and from the proceeds paid the freight due to- itself and the Pennsylvania Railroad, and credited the balance of $3.04 remaining upon its claim for demurrage.

The common pleas court held that the facts I have enumerated, which are not disputed in the record, justified the railway company in taking a reasonable time within which to dispose of the carload of coal that had been delivered at Prairie Depot and declined by the consignee, the defendant, and that for this time a demurrage charge of $1 per day was a proper charge against the defendant.

The court fixed the reasonable time at fifteen days, gave credit upon the claim thus arising against the defendant for the surplus remaining after the application to the payment of the freight, of the money received for the coal at the sale, and entered judgment for the balance in the amount I have stated.

The position taken by the railway company that it had the right to leave the ear at Prairie Depot as long as it saw fit to do so, whether that be a reasonable time for the disposition of it or not, and notwithstanding the fact that it knew definitely upon its delivery there that the car would not be accepted, and then collect demurrage for the full time that the car should be left there, does not seem tenable.

We think, upon the whole record, the action of the trial court was correct, and the judgment of the common pleas court will be affirmed.

Richards, J., and Chittenden, J., concur.


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

text:
    FIRM INDEBTEDNESS NOT COVERED BY BOND OF MEMBER. OF FIRM EXECUTED AS AN INDIVIDUAL.
    Court of Appeals for Hamilton County.
    O. N. Olmstead et al, Doing Business under the Firm Name of Olmstead Bros., v. Henry W. Albers.

    Decided, April 24, 1916.

      Sureties — Bond Executed by a Member of a Firm Individually — Does Not Cover Firm Indebtedness, When.

    A surety can not be field for a firm debt, wfiere fie testifies tfiat at tfie time fie signed the bond fie did not know the man for whom fie was signing was a member of tfie partnership, and fiis testimony is not denied.

      Shattuck & Hightower, for plaintiffs in error.

      A. L. Herrlinger and Healy, Ferris & McAvoy, contra.

      Affirming Olmstead v. Albers et al, 19 N.P. (N.S.), 177.

   Jones (E. H.), P. J.

.■ The judgment of the superior court is affirmed on the authority of the following: McGovney v. State of Ohio, for the Use of Lee’s Admr., 20 Ohio, 93; Morgan v. Bover, 39 O. S., 324; State v. Medary, 17 O. S., 554; London Assurance Co. v. Bold, 6 Q. B. Rep., 514; Parham Sewing Mach. Co. v. Brock, 113 Mass., 197.

Counsel for plaintiffs in error tries to distinguish the case at bar.from these eases, and in so doing says that in the eases cited the change in the business relationship of the parties to the bond, and especially of the principal obligor, arose after the bond was signed, while in this ease Edwards was a member of the firm when the bond was signed by Albers, who by the terms of the ■bond became surety for Edwards only.

There is this distinction between the cases cited and this case. But Albers, the surety here, claims that he knew nothing about the partnership of which Edwards was a member when he signed the bond, and his statement is not denied. This want of knowledge on the part of Albers, the surety, would seem to warrant the application of the same principle to his case as was applied by the courts in the eases cited and would, we think, by like reasoning exempt him from liability for any joint delinquency shared by Edwards and other members of his firm.

It is also contended that the bond expressly provides for a several or joint defalcation. The language relied upon in this connection is not clear, and gives some color of right to the claim of defendant in error, viz., that this language in the bond is only intended to cover or apply to default growing out of a partnership formed in the future, and had no reference to any then existing joint arrangement to which Edwards was a party.

We think Albers is entitled to have the doubt, if any, resolved in his favor. But on account of the view we take of other aspects of the case the question is unimportant. Tbe money due Olmstead Bros, upon the termination of the Edwards-Evans agency was due from the firm, and until the firm assets and the assets of the members thereof were exhausted there could be no liability on the bond.

The record fails to show that any effort was made to collect the sum here involved from Evans, and we think that is a condition precedent to recovery upon the bond, even though the construction contended for by counsel for Olmstead Bros, as to liability of the surety on the bond for joint malfeasance be correct.

Judgment affirmed.

Jones (Oliver B.), J., and Gorman, J., concur.


author: Grant, J.

text:
    RIGHT OF REVIEW IN NATURALIZATION PROCEEDINGS.
    Court of Appeals for Cuyahoga County.
    In re Naturalization of Vura.
    Decided, October 20, 1913.

      Naturalization — Jurisdiction of State Courts — Procedure and, Review —Courts of Appeals — Error Proceedings.

    1. The Congress of the United States having by apt legislation conferred upon certain state courts the power to admit aliens to citizenship and to administer the naturalization laws of the country, sharing with such 'courts the jurisdiction of the federal courts over that subject, .the power may be exercised according to the laws of pr.ocedure governing the state courts, as an incident to the power conferred, including any right of review to which an aggrieved party may be entitled by state law; and this, although such right of review is withheld when naturalization laws are administered in the federal courts.
    2. Error will lie in the courts.of appeals of Ohio from a judgment of the court of common pleas refusing to admit an alien to citizenship.

      Bartholomew, Beeper & White, for plaintiff in error.

      J. B. Waterworth, contra.
   Grant, J.

Tbis is a petition in error, tbe object and prayer of which is to reverse the judgment of the court of common pleas of this county refusing the application of Stephen Yura for admission to citizenship of the United States, under the laws permitting the naturalization of aliens.

The assignment of error is that the finding of the court below, that the applicant was not entitled to be admitted as a citizen, and the judgment of that court dismissing his application are contrary to the weight of the evidence.

The Government of the United States has intervened in this proceeding, and has been heard at the bar, objecting in limine to this court entertaining the petition in error, on the ground that it has no jurisdiction to hear the controversy and no power to determine the applicant’s contention.

We are first to dispose of this preliminary question. Our immediate jurisdiction, if there is any, is conferred by the organic law of Ohio, under which this court is organized and proceeds.

By that law, Constitution of 1912, Section 6, Article IY, the right and duty of this court to review upon petition in error the action of inferior courts extends to all judgments and final orders of the courts of common pleas. This provision, it is believed, comprehends the case brought before us for review by the present record, the court below being one that has common law jurisdiction, a clerk and a seal.

The right to naturalize.foreigners in the first instance is reserved to the United States by its Constitution, which is the source and foundation of authority in the. whole matter. The language of that instrument in this respect, Section 8, Article I, is:

“The Congress shall have power * * * to establish an uniform rule of naturalization, * * * to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” * * *

By adopting the Constitution, including this provision, the states have made Congress the exclusive depositary of the power to clothe aliens with the rights of citizenship. But it does not follow from this assent that Congress must employ only federal courts or.other agencies in its exercise of the power thus reserved. It is a constitutional principle, too plain for dispute, that even without express authority from Congress the states through their courts or otherwise, may occupy a field of jurisdiction by the Federal Constitution reserved to the general government, when and so long as the latter does not occupy it. Says Cooley, Principles of the Constitution (3d Ed.), page 35:

“The mere grant of a power to Congress does not of itself necessarily imply a prohibition upon the states to exercise the like power. The full sphere of federal powers may, at the discretion of Congress, be occupied or not, as the wisdom of that body may determine.”

And again, page 70, when dealing with the right of Congress to regulate interstate commerce, the same learned author says:

“But the mere existence of this power in Congress does not necessarily exclude the states from all authority whatever which might affect the commerce falling within the control of Congress, provided no aetuál legislation of Congress is interfered with. ’ ’

And he mentions as allowable action by the states, laws establishing quarantine against noxious diseases from foreign ports, and those requiring locomotive engineers to be examined for color-blindness, even while engaged in interstate commercial traffic. The Federal Constitution does not, by its own force, completely provide for the exercise of the powers created by it, except in the relatively few cases of which the Supreme Court must take cognizance.

“For other cases,” says Cooley, page 124, “it is necessary that courts shall be created by Congress, and their respective jurisdictions defined; and in creating them Congress may confer upon each so much of the judicial power of the United States as to its wisdom shall seem proper and suitable, and restrict that which is conferred at discretion. In doing so it may apportion among the several federal courts all the judicial power of the United States, or it may apportion a part only, and in that case what is not apportioned will be left to be exercised by the courts of the states. Thus the states may have a limited jurisdiction within the sphere of the judicial power of the United States, but subject to be further limited or wholly taken away by subsequent federal legislation. Such is the state of the law at this time: many cases within the reach of the judicial power of the United States are left wholly to the state courts, while in many others the state courts are permitted to exercise a jurisdiction concurrent with that of the federal courts, but with a final review of their judgments on questions of federal law in the United States Supreme Court.”

We do not, ■ however, have to rely on this idea — negatively postulated — of the failure of the general government to occupy the .entire field of jurisdiction. We may conceive that if by non-user the United States may thereby impliedly allow state tribunals to act in exercising a power which the Constitution has created, not vainly but to be exercised, with better reason it may reach the same end affirmatively by abdicating in favor of the state courts, by surrendering to them, in whole or partly, or by parceling to them, together with its own judiciary, the exercise of the powers created by the Constitution of the United States in respect of naturalizations. We submit that as matter of history Congress has done both of these things. First, it abdicated to the states. It surrendered to them the entire exercise of the right to admit aliens to citizenship. By the act of 1790, jurisdiction in matters of naturalization was conferred upon state courts exclusively. And, second, it was not till 1802 that the power was extended to'federal tribunals, to be shared by them with the state courts. This duality of jurisdiction has continued unimpaired and unquestioned up to this moment. Indeed it is not, per se, called in question now. The claim of the district attorney’s office, if we understand the argument made at the bar, is this: The right of the state courts to grant or deny naturalization in the first instance is conceded; but it is denied that the right of review at the instance of an aggrieved applicant exists. In other words, while Congress has adopted the state courts as its judicial agents in the matter of admitting aliens to citizenship, it refuses to recognize the procedure of those courts, as prescribed in the statutes by which they are created, and which they are bound to follow and obey. The idea seems to be that up to the point of admitting or refusing to admit the foreigner as a citizen the state courts may act, but that when it comes to the question of a review of their action at the suit of an aggrieved applicant the forum must be changed and the matter disposed of according to the course of procedure of the federal tribunals, which it is said do not allow a review of the case.

It is hardly conceivable, we think, that a state court clothed with jurisdiction, with the power to hear and determine, can be compelled by construction only to carve up this power and deny a remedy to which he thinks he is entitled to the man of whose petition it has taken jurisdiction and which the law to which that court owes not only its allegiance but its existence gives him. And especially is this difficult to conceive when we consider that he who advances this claim, he who serves this writ of prohibition, gives notice that if the point is yielded and the wronged suitor is turned over to the federal jurisdiction no review will be given him. If the position taken is tenable, then between 1790 and 1802 there was no right of review in naturalization cases. For if the jurisdiction of the state courts was cut off at the point of review, and the federal courts had been given no jurisdiction at all in this class of cases, neither the applicant who considered himself wronged, nor the government which might have thought itself saddled with a bad citizen, had any remedy in law. In our estimation, when Congress selects a state court as its agent it takes the court and all its appropriate and necessary machinery along with it, for better or worse. It thus accepts an indivisible situation on the same ground that the common law of England compels a man to take his wife— “for that he hath adopted her and her circumstances together.” Another conclusion would be worse than illogical; it would be a denial of justice in many cases and would tend to destroy the necessary unity and entirety of its due and orderly administration.

Beyond this, although far inferior to it in point of importance, the case relied on at the bar in support of the district attorney’s opposition to our entertaining this petition in error does not in our opinion support the contention. It is the case of United States v. Dolla, 177 Fed. Rep., 101. The first point of departure between it and the case here, and it is a wide one, is that the appeal there was not that of an applicant to whom citizenship had been denied by the inferior court, but an appeal of the Government, which was urging a reversal, so that his application might be denied. The alleged grievance was not that of a perhaps poor and oppressed alien, but that of a powerful but overreached sovereign. The real point of the appeal is suggested in the bill of exceptions as that of the color line. There seems to have been a suspicion of the old “visible admixture” days; but the bill discloses as an apparently redeeming feature that the applicant had bought a lot in a Savannah graveyard, in which none but whites were allowed to be buried, thus evincing an unwillingness to enter the Jim Crow heaven reserved for those whose color is accidentally black and for those numerous ones of intermediate shades, who did not grow upon trees and whom their white “uncles” were desirous not to have as fellow-citizens here nor as brother saints “over there.”

However, the right of review was refused on two grounds by the United States Circuit Court of Appeals. One was that an application for naturalization is not a ‘ ‘ cáse, ’ ’ within the meaning of the federal statutes allowing appeal and error. Instead, it was held to be a "special proceeding,” for a review in which case those statutes make no provision. "Special proceedings” in Ohio law are, as we think, the subjects of review in this court by the comprehensive terms of Section 12247 of the General Code, already referred to.

The other point in the case cited was that the allowance of the application for citizenship could be attacked by direct action to annul and cancel the order of allowance. And so the Government had a remedy thus given by the act of 1906, and the right of review would be a barren and inappropriate right. This remedy, present in that case, would be wholly wanting in the proceeding at bar; here, the error assigned is that of refusing to admit, and not of admitting, to citizenship. The reason of that case, therefore, fails; and if the case were to be applied as an authority it would defeat and not promote a remedy to which the applicant might in a proper case be entitled.

The brief for the Government in the ease at bar says: "It is hardly conceivable that Congress intended that appeals in naturalization cases should be taken in the state courts while it is not permissible in the federal courts.” We shall not stop to haggle over either the grammar of this argument or the meaning of the word "appeal” as we know it, and can not otherwise know it, under Ohio law; in strictness we know that neither in such cases is an appeal allowed in our state courts.

What we do say is that in our opinion it is quite inconceivable that a court which is allowed to advance a remedy bottomed on merit should refuse to do so.

We shall refuse the motion of the Government to dismiss this petition without examination of its allegations of error, and shall take jurisdiction of the case.

In so deciding we are not only discharging our duty in administering the laws of our state in their integrity — laws indivisible in their administration, as from their nature and intendment they must be — but we are also clearing our oaths of office in seeing that justice is done and in not denying in a proper case the right of judicial review. We also vindicate the wisdom of the maxim, judiáis boni est judisdictionem ampliare; to enlarge his jurisdiction is the part of the good judge. It is not quite true to say that a rejected application may be at once made anew in the same or another court. As the record in the case is transmitted to the Government, and by it sent to other courts for reference, the applicant stands before any later court as a blacklisted man and at a great disadvantage.

Coming now to the charge of intervening error in the action-of the court below in refusing the application for naturalization, we find the material facts to be these:

The applicant, Vura, circulated and used printed cards of the following form and words:

Real Estate and Insurance of All Kinds.
Cuy. Telephone Princeton 2865R.
Vura and Meszaros,
Law Offices.
8115 Holton Ave. Cleveland, Ohio.

Neither of the men whose names appear on that card was a lawyer, nor had either ever been admitted to the bar.

In the month of February last Vura handed one of these cards, on which the name of Meszaros had been erased and that of Istvan overwritten in pencil, to the wife of one Szabo, and requested her to tell her husband to call at his office. This Szabo had made an affidavit in the federal court in this city, before a United States examiner, in an investigation concerning one Steven Kadi. Szabo called accordingly at Vura’s office and the latter told him that he was informed by people in the neighborhood that he, Szabo, had been misinterpreted by the interpreter in the making of the affidavit in question; that Szabo had probably told the truth in what he said, but that having been interpreted wrongly he was likely to get into trouble about it; and that if he, Szabo, would make a signed statement before him, Vura, he could perhaps relieve him from harm. Vura had such a statement already written out when Szabo called at his office, and the statement was of considerable length. Szabo did not read the statement further than to see that his own name was on it, and left without signing.

Vura explained this transaction by saying that he did what he did out of a desire to be well thought of by the Hungarians who dwelt in his neighborhood by being made to appear instrumental in getting a man ont of undeserved trouble. He also claimed that his partner, Meszaros, was an Hungarian lawyer, by which it appears he meant a lawyer in Hungary but not in the United States. Yura produced several witnesses — perhaps five in all — who swore that he was a man of good moral character ; but we attach little or no importance to oaths of that kind, taking them as they run.

The judge of the common pleas court held that Vura had not shown himself to have been of good moral character during the whole of his residence in the United States, and in our opinion the record in the case sustains the finding. The card circulated by Yura held him out as an attorney at law, purposely, as we think, with the expectation that this false pretense- would deceive others into intrusting to him business which he could not perform. It was a palpable deception, a badge of fraud, and an attempt to injure a class of people who would be helpless against his schemes for an ill-gotten gain. Naturalization would only put into his hands additional weapons for the perpetration of his frauds, such as the advantage of becoming a notary public, which we may suspect was a part of his design in seeking to be made a citizen. The calling of Szabo’s wife and of Szabo himself to his office was intended, we can not doubt, to stir up trouble instead of avoiding it. Any act of any person, whether judge or layman, which will render the helpless, because ignorant, stranger within our gates a less easy prey to the wolves in the shape of knowing but conscienceless countrymen, is to be commended by every lawful, means at hand. The affirmance of disabling judgments in cases warranted by the facts and permitted by the rules of law should be included. It is clear to our minds that the application of Yura was rightly rejected. A cloud of such witnesses as Yura brought, swearing on a cartload of Bibles, could not take off all the contrary conclusions which even this short record discloses or suggests. To admit such a man to become a citizen would be to swindle the nation, which once was treason by law.

Since this is a case of first instance in this court, and as like eases may come here for review from time to time, we deem it no impropriety to say, and we say it that it may be depended upon, that we should hesitate a long time before overruling in a matter of naturalization a judge who has had the applicant visibly before him. The right to become a citizen under free institutions and mild government is a grave and important thing. The process should be regarded as the applicant’s civil sacrament. Before being granted it is a high privilege to him to ask for it, and on the part of the Government a bounty or act of grace. When it is granted it assumes proportions of a much more imposing character. It confers upon the petitioner advantages beyond valuing or forgetting. On the admitting government it devolves serious duties of protection and immunity. Until within relatively recent times, naturalization in Great Britain could be accorded only by letters-patent under the great seal, or by act of Parliament, and even then it conferred only qualified privileges, the right to sit in Parliament not being among them.

In a government where the ballot of the felon goes into the box with as much potency as that of the saint, that of the deserved pauper with equal power to that of him who has the most momentous property stake in a government of law and order, it is doubly important that those charged with the high duty of making voters should be vigilant and watchful against unworthy applicants. It was the reproach of Carlyle that he could have little faith in the future of a country where Judas and Jesus are political equals. It is for admitting courts, among other agencies, to see that the Scotchman’s gibe is undeserved by us.

The oath which the new-made citizen must take promises that he is “attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.” The trial court has many facilities, which a reviewing court can not have, for knowing whether that oath is likely to be kept or not. The demeanor of a loafer, the avowal of the wish for anarchy, a whiskey breath, any of the many but undeseribable-on-paper manifestations of general down-at-the-heelness and bad citizenship, may be evidences why the vow will not be observed and why the applicant is not “attached to the principles” of our government, and why he is not “well-disposed to the good order and happiness” of our people.

There is no more imperative duty laid upon the courts than that of doing their part in moulding to good citizenship such part of the material — much of it excellent material and much of it quite the reverse1 — that is being cast upon our shores every day. In this respect the courts can be to the political health of the country what the medical profession at, our ports is to its physical health. Rejection of improper naturalization attempts and deportation of undesirables are both in the line of service to the present and future of America.

For this reason, among others, we repeat that as the duty of review in such cases is cast upon this court, a large presumption in favor of the conclusion reached below will be indulged here. The judgment is affirmed.

Judgment affirmed.

Winch, J., and Meals, J., concur.