author: KING, J.

text:
    EVIDENCE.
    [Erie (6th) Circuit Court,
    December 2, 1898.]
    King, Haynes and Parker, JJ.
    James M. French, Admr. v. Carkin, Stickney & Cram.
    President of Corporation Cannot Testify to Transaction With Deceased Partner of Firm Suing Corporation.
    In an action between a partnership and a corporation, evidence of the president of the corporation as to a claimed arrangement of a matter in controversy with a member of such partnership is not admissible under Sec. 6242 R. S. (Sec. 11495 G. C.) «.ter the death of such partner.
    Error.

      Theodore Alvord, for plaintiff.

      H. L. Peeke, for defendant.
   KING, J.

When the ease came on for trial the defendant sought a continuance and offered the affidavit of its attorney, H. L. Peeke, to show that W. S. Carkin was a material witness for the defendant, without whose testimony the defendant could not safely proceed to trial, and showing further that the said W. S. Carkin was the president of the defendant corporation, and setting forth, with some legal conclusions, that he had an arrangement with E. M. Colver, the deceased partner, by which the account had been settled, or. perhaps, that before the services had all been rendered he had had an arrangment with E. M. Colver whereby the said Colver had agreed that he would perform all the services that were required in matters in which Carkin, Stiekney & Cram were parties for $100.00, and that thereafter he had paid to the said E. M. Colver the said sum of $100.00. That is in substance what is set forth in the affidavit. It might not perhaps all be reconcilable with the facts in the ease, but it contains enough to show that he claimed to have made an arrangement Avith Colver that either the account as rendered had been settled for $100.00 and paid, or that he had an arrangement by which the services to be rendered had been agreed to be for the price of $100.00.

It perhaps is not material just exactly what he claimed he would testify to any further than to an arrangement he had made with E. M. Colver in his lifetime by which this account had been fully settled. As to the payment of it, that amounted to nothing more than the fact that the corporation had paid $100.00, Avhich Avas admitted by the plaintiff, in fact, the $100.00 claimed to have been paid and which the defendant claimed was in settlement had been applied on account by the firm of Colver & Colver before the death of E. M. Colver. So there was no dispute as to the amount that was paid, the only question being as to its effect; and the claim that it Avas a. settlement in full of this account or under the arrangement made by him with E. M. Colver in his lifetime.

The affidavit as submitted was examined by the opposite party and it was admitted that if W. F. Carkin was here he would so testify; and thereupon the case was not continued but they went to trial. On the trial the affidavit was offered as the evidence of W. F. Carkin. It was objected to and some portions of it ruled out, other portions received. The portions ruled out related to the claimed arrangement with E. M. Colver in his lifetime, and it is claimed that that-was erroneous. It is a question of considerable importance and some difficulty. It was ruled out uj>on the ground that W. E. Carkin was the representative of this corporation and that under the statute, Sec. 5242 R. S. (Sec. 11495 G. C.) which prohibits an opposite party from testifying in an action brought by or against an administrator or executor of a deceased person, that Mr. Carkin was of such a character as a witness that he would not be competent to testify to anything that took place between him and the decedent.

There are several provisions of the statute, which I will notice later. I first want to look at this proposition from the standpoint which is taken here by the plaintiff in error, and upon that we are cited to two eases which, it is claimed, uphold the theory that Mr. Carkin’s testimony here was competent. One is that of Cochran v. Ahnactt, 39 Ohio St. 312, 314, where it was held that the defendant is a competent witness to transactions with a deceased agent of the plaintiff, though not occurring in his presence, if within the scope of such agent’s authority. This was not an action brought by an administrator or an executor of a deceased person, but the owner and holder of a promissory note brought suit upon it against the maker. The maker answered admitting his liability but set up that he had paid to apply upon it $200.00 and therefore was entitled to that much more credit than was given him. The plaintiff denied the payment. The issue was whether it was paid, and on the trial of the issue thus made the defendant, upon whom was the burden of proof, went upon the witness stand as a witness in his own behalf and was permitted, over the previous objection, as a competent witness to prove the payment, although it ivas admitted that such alleged payment was made to Wheeler Cochran in the presence of the plaintiff and that Wheeler Cochran was the agent of the plaintiff and that he had since died. That, of course, makes an entirely different ease than we have here. The parties to the action are alive and in court and able to testify, competent under the statutes and one of them goes upon the witness stand and testifies to a transaction with the plaintiff’s agent who has since the transaction unfortunately died.

The Supreme Court held it was competent and affirmed the judgment of the court of common pleas admitting it, and yet so able a lawyer and judge as Judge Okey of the Supreme Court founded considerable of an argument in a dissenting opinion in favor of the objection to that testimony. After citing all the statutes and several of the cases cited under them and showing what had been the spirit of the legislature in its passage of those statutes, and in the numerous amendments that have been made since their original passage, he says (p. 319) :

‘ ‘ Experience at length satisfied the legislature that, however full and explicit, however carefully prepared, such limitations and restrictions might be injustice would sometimes be done by adhering literally to the terms of the statute. The wit of man could not provide in that way for all cases concerning which provision should be made. Sometimes injustice would arise by excluding evidence which should, in justice, be admitted, but more frequently by admitting evidence which should be excluded. The result was the incorporation of the above quoted clause in the statute, which, construed as it should be, not strictly but liberally, fairly excluded the evidence of Almack as to the payment alleged to have been made to one who could neither meet him face to face nor answer him by deposition. I disagree entirely with the narrow construction placed on this remedial statute. Indeed, if Almack was competent, under such circumstances, to prove the payment by his own oath, I am at a loss to imagine, a case in which the provision should be applied.
“In my opinion the clause quoted will occasion no serious inconvenience in practice. It is not likely to be applied by judges, either in admitting or excluding evidence, in such manner as to do injustice; and where testimony is received or excluded by force of it, I apprehend the ruling should not be reversed unless it clearly appears that injustice had been done. However that may be, the clause is the declared will of the legislature, and we are not at liberty to disregard it. ’ ’

A short time after that, another ease (Keyes v. Gore, 42 Ohio St. 211), arose in the Supreme Court and Judge Okey was still upon the bench and he delivered the opinion of the court. It was argued he had undergone a change of heart on that point. In that case it was held -.

“In an action to recover real property, in which the plaintiffs relied upon a deed claimed to have been made to their father, since deceased, where the question was whether the deed •had in fact been executed and delivered, the widow of the decedent, not being a party, is a competent witness to prove such execution and delivery, notwithstanding the last clause of Sec. 5242 E. S. (See. 11495 G-. C.) ; and the fact that her right to dower in the premises may depend on the validity of the deed, will make no difference.”

Now, perhaps all of that does not go very far towards deciding this question, but cite one or two general authorities which indicate what the courts have held generally as to the policy of these statutes. Abbott, Trial Evidence, 60-61; Greenleaf, 333; Lawson v. Bank, 1 Ohio St. 200, 210; Goaf v. Werthweine, 1 Handy 20.

In the conclusion which in a discussion of this matter we have arrived at, we are satisfied, however, to rest on the reading of the statutes themselves and such construction as we think these sections ought to receive.

It is said in argument that the sections except Sec. 5240 are sections which are limitations upon the right of a witness to testify, and that all persons are competent witnesses and made so by Sec. 5240 E. S. (Sec. 11493 G. C.), and that the other sections which simply limit their right to testify with respect to certain matters or as against certain persons or parties are limitations only upon that right to testify; and when we come to the clause that relates to the construction of these statutes, which shall give effect to their spirit as well as their letter, we are confined only to tlie enlarging powers of the statute rather than their limiting and restrictive ones.

We don’t think that is a correct statement or a proposition that is applicable. The first Sec. 5240 says all persons are competent witnesses, except those of. unsound mind, children under ten years, etc.

Then Sec. 5241 R. S. (Sec. 11494 G. C.) provides the following persons shall not testify, and they are persons who shall not testify on account of certain relations. There is in that this provision, in clause 5,

“A person who, if a party would be restricted in his evidence under section five thousand two hundred and forty-two, shall, where the property or thing is sold or transferred by an executor, administrator, guardian, trustee, heir, devisee, or legatee, be restricted in the same manner in any action or proceeding concerning such property or thing.”

Section 5242 R. S. (Sec. 11495 G. C.) provides:

“A party shall not testify where the adverse party is the guardian or trustee of either a deaf and dumb or an insane person, or of a child of a deceased person, or is an executor or administrator, or claims or defends as heirs, grantee, assignee, devisee or legatee, of a deceased person, except-”

The first is a general disqualification clause. It is followed by certain others which limit that disqualification. To what?

One of those limitations I might as well notice is the second.

“When the action or proceeding related to a contract made through an agent, by a person since deceased, and the agent is competent to testify as a witness, a party may testify on the same subject.”
“If a party, or one having a direct interest, testify to transactions or conversations with another party, the latter may testify as to the same transactions or conversations.”
“If a party offer evidence of conversations or admission of the opposite party, the latter may testify concerning the same conversations or admissions.”
“In an action or proceeding by or against a partner Or joint contractor, the adverse party shall not testify to transactions with, or admissions by, a partner or joint contractor since deceased, unless the same were made in the presence of the surviving partner or joint contractor; and this rule shall be applied without regard to the character in which the parties sue or are sued. ’ ’

It might be questionable for a moment what that clause means, but while it may have more than one application, I think it is evident that it is applicable to a case where under the law of Ohio a partnership sues by its firm name. Then there are certain other exceptions that are not material here; and now, at the end of these, the legislature have adopted this, which, as Judge Okey says, and well says: “After having made numerous other amendments, after having incorporated into this statute various limitations and exceptions as eases arose or were called to their attention, they found that perhaps the subject of legislating upon each case as it might arise would be indefinite, and so they say: “When a case is plainly within the reason and spirit of the last three sections, though not within the strict letter, their principles shall be applied.”

What are the principles to be applied in this case, or what is the principle to be applied under this statute, not within its letter but within its spirit? Isn’t it to exclude where a claim or defense is based upon a transaction with a deceased person, and the title to the plaintiff in the case, or the defendant, as the case may be, comes from the deceased person as to the evidence relating to the validity of that claim or to its satisfaction and payment, if you please, so far as that evidence is made up of conversations, agreements or contracts with the person who is dead and who at the time of the transaction owned an interest in it and had an interest in it, had title to it — that such evidence shall be excluded? The Supreme Court might well say when the parties were all in court and alive and are competent to testify, they will not exclude the testimony of one of them who. had had a conversation with a deceased person who, if living, would be nothing but a witness in the case and would never occupy any other relation, even though he had been connected with the transaction as an agent; but the parties were in court and each one was competent -to testify to all the facts that related to the claim, whatever it was. So they admit the testimony of Hie widow, wlio is not a party to the ease at all and who has no direct interest in the transaction, because a judgment upon it could not in any wise bind her, as they are careful to say in their opinion. They say she was competent to testify like any other witness, because whichever way this judgment had gone it would never bind her if she claimed to have interest in the property. In other words, if she had dower interest in it, she could have brought her action and this judgment would not be a bar nor have any effect upon her right.

This claim is to be treated exactly as if it was the claim of a deceased person. The statute had- said it should be. It says where it comes from a partnership or a community of interest and one of the community owners is deceased, that then the opposite party shall not testify to anything that was said or done with him in his lifetime. Now, the opposite party in this case is a corporation, and transacts all its business by agents, hut it has two classes, those which the law creates and those which are created by the acts of those legal agents. Its board of directors and its president are its living representatives to •fransact numerous classes of business, in fact, all the business within the scope of its charter where necessary to carry its prescribed objects and purposes into effect, but these may employ thousands of others as agents. They are special agents, they are not of the class of the president and of the board of directors and secretary. Now, the president of a corporation speaks for it in a multitude of cases. If the corporation be sued, he may employ lawyers without authority from the board of directors; he may pay and settle with lawyers without authority from the board of directors; he may commence actions to recover property belonging to the corporation or rights in property, or assets that it has, without consultation with the board of directors. He has, in fact, unlimited power to do all those things which will carry on and enable the corporation to carry on the purposes for which it was organized. He could not by his power dispose of ihe very corporate entity; he could not dispose of the whole of the corporate property, but if the business of the corporation was that of selling goods, he could sell goods and so he could collect the pay, and so he could compromise indebtedness, and so he could do everything except to mortgage the corporate entirety for the security of its debts, and for that he must have the assent of the board of directors; but he could do those things that are necessary to carry out the purposes of the corporation.

Now, when sued, why should not this rule be. invoked against his testifying to conversations with a deceased person ? This account is a fair illustration of what the statute is intended to do. Here is an account that begins in April and runs along item by item until the last of August. This witness makes an affidavit, or an affidavit is made for him, which says that he would testify here that in September or before September 6, maybe after all these services were rendered, he made an arrangement with E. M. Colver by which he was to get $100 in full of everything that he had or expected to do, which sum was thereafter paid. He is corroborated in that by the fact that $100 is paid and by the letter that accompanied the draft, to the extent that he was to receive $100 or something. It there indicates it was for securing one bond for releasing one dredge, and the account shows that other dredges were released and other services were rendered, amounting, as I say, to something over $400.00. If that is what he intended to testify, he is contradicted by his own admissions that he had paid other amounts of money on this account besides the $100.00. The payments ran up, as he claimed, and as was admitted by the plaintiff, to about $250. Well now, it would seem this is a very pertinent case to apply a rule like that, and we are unanimously of the opinion, though it may be a question of some doubt, that this section should be applied in its spirit to exclude exactly that kind of testimony, and we do not find any error in this judgment, and therefore affirm it.

Haynes and Parker, JJ., concur.


source: Caselaw Access Project

author: FARR, J.

license: Public Domain

text:
    CIVIL RIGHTS — THEATERS.
    [Jefferson (7th.) Court of Appeals,
    December Term, 1917.]
    Pollock, Metcalfe and Parr, JJ.
    Malinda Guy v. Tri-State Amusement Co.
    Race Segregation in Picture Theater Violates Civil Rights Law.
    The proprietor of a picture show who refuses another the right or privilege of sitting in a certain or particular part of the theater or auditorium during the performance or display of pictures and such refusal is on account of race or color and for no other reason is liable to be penalized under Sec. 12941 G. C.
    [Syllabus by the court.]

      Edward McKinley and E. DeWitt Ershine, for plaintiff in error.

      Marry L. May and W. C. Brown, for defendant in error.
    ERROR.
   FARR, J.

This is a 'proceeding in error brought to reverse a judgment of the court of common pleas of this county and the parties sustain the same relation here as in the court below. On December 17, 1916, Malinda Guy, the plaintiff in error, filed her petition in the court below seeking to recover from the Tri-State Amusement Co. for an alleged violation of Secs. -12940 and 12941 G. C., which provide that there shall be no denial of privileges at inns, places of amusement and certain other places, to a citizen, by reason of color, except for reasons applicable alike to all citizens regardless of color.

The plaintiff alleges in her petition that on or about August, 1, 1916, she went into the Olympic Theater in the city of Steubenville in company with one Isaac E. Stady, á colored man, and a theological student of 'Wilberforce University, she herself being a colored woman. She further alleges in her petition that she purchased two tickets at the price of ten cents each; that she surrendered the tickets to the person at the entrance, passed into the theater, and was seated in the fifth row, tlie second seat in, in the center tier of seats. That the usher approached her and requested her to abandon her seat and be seated on the right hand side or in the right hand tier of seats in said theater.

It is further alleged in the petition that she left said theater surrendering her tickets at the window where she had received them. To this petition an answer is filed by the defendant company, the defendant in error here, stating or admitting that it had rules and regulations providing for the conduct of people within said theater and that it was the duty of its usher or ushers to show people to their seats in said theater, but denying that there had been any discrimination against Malinda Guy, or Isaac E. Stady by reason of their color. The cause came on to be heard and was tried to a jury. There was a verdict for the defendant and judgment upon the verdict, and to which error is prosecuted in this court.

As above stated the action below is predicated on Secs. 12940 and 12941 G. C. The former section reads as follows:

“Whoever, being the proprietor or his employe, keeper or manager of an inn, restaurant, eating house, barber shop, pub-lie conveyance by land or water, theater or other place of pub-lie accommodation and amusement denies to a citizen, except for reasons applicable alike to all citizens and regardless of color or race, the full enjoyment of the accommodations, ad vantages, facilities or privileges thereof, or being a person who aids or incites the denial thereof, shall be fined not less than fifty dollars nor more than five hundred dollars or imprisoned not less than thirty days nor more than ninety days, or both. ’ ’

And the latter section provides as follows:

“Whoever violates the next preceding section shall also pay not less than fifty dollars nor more than five hundred dollars to the person aggrieved thereby to be recovered in any court of competent jurisdiction in the county where such offense was committed. ’ ’

The petition below sought to recover under and by favor oC this latter section. Mrs. Guy says that she purchased said tickets for admission on said evening of August first; entered said theater, surrendered the tickets, went down five rows from the rear of the theater, and sat down in the second seat in from the aisle in the center section of seats; that soon after she had taken her seat she looked back and saw her companion, Mr. Stady, conversing with the usher, Mr. Russell, who came to her a few minutes later and asked her in a genteel manner to take a seat on the other side, designating the right hand side of the theater; that she asked the usher why, and he said again, “Will you kindly take a seat on the right hand side of the theater?” She again interrogated him to know why, and he said, “On account of your color.” This testimony is substantially corroborated by Mr. Stady. He says that he had a conversation with the same usher and was going to sit with his companion, Mrs. Guy, when the usher forbade him to do so, and he then said he had gone to the theater in company with her and he wished to sit with her. The usher said that he could not do so in the center section, and that he must be seated on the right hand side of the theater. Mrs. Guy then returned to where Mr. Stady was, and the two left the theater together but later returned in company with a friend, who liad some conversation with the usher with reference to the matter and it is not denied that the usher stated tha't he had invited the two colored persons to be seated on the right hand side of the theater on account of their color.

If there were any denial of that fact the record settles it once and for all at page 36, in the examination of Mr. Russell, who was the usher on that occasion. He says: “I said, ‘kindly remove to the other side of the house.’ She said, ‘Why?’ I said, ‘On account of your color.’ ” So that Mr. Russell admits that the request for the removal to the right side of the auditorium was because they were colored persons.

It is urged in argument that the Tri-State Amusement Co. operating this theater had the right to make such reasonable rules and regulations as they saw fit to make with reference to the seating of persons in their theater, and that they were permitted to make a rule authorizing or requiring their usher to show people to seats within their theater. There can be no question but what such rules would be permissible under the law of this state. However, it must be noted from said Sec. 32940 that it is provided that all citizens regardless of color or race shall have the full enjoyment of the accommodations, advantages, facilities or privileges thereof, that is, at inns and other places enumerated in said statute.

The matter of these people being seated within the theater was a privilege, and if this section of the General Code is rightly understood, it is not simply a privilege of seeing the pictures or hearing the music, or meeting and greeting their friends, but all patrons are entitled to fully enjoy alike, all the privileges accorded to patrons within the theater.

It might be contended here that these persons had just as good an opportunity to see the pictures or vaudeville performance if such there may have been, seated on the right hand side, as if they were seated in the center section. However, if these colored people were required to be so seated they would only be allowed partial enjoyment of the privileges of that theater, because white persons were permitted to occupy the center section as well as other parts of the auditorium; that is to say, they could enjoy the privilege of seeing the pictures, they could enjoy the privilege of hearing the music,, they might enjoy the privilege of greeting their friends and acquaintances. within the building, yet at the same time they were certainly denied some of the privileges that were given to persons of the white race, because the latter might enjoy the additional privilege of the center section of seats.

For instance, if two persons of the white race had purchased tickets for a like consideration and seated themselves in the center section of seats under the rules and regulations of this theater they would not have been called upon to have taken seats on the left hand side or right hand side. Therefore, these colored people were directed to sit upon the right hand side of the theater, which was a place set apart for their use and they were not permitted to sit in other parts of said auditorium. It is urged, and with considerable force in argument, that theater managers have a right to make such reasonable rules and regulations for the conduct and control of people within their theater, as may seem to them, necessary, however the provisions of said Sec. 12940 must be kept in mind wherein it is provided that privileges shall be extended alike-to persons of all races. Therefore, no rules or regulations can be made in violation of or that would contravene this section of the statute.

Somewhat helpful is a well considered case from this immediate jurisdiction; it is the Youngstown Park and Fall St. Ry. v. Tokus, 37 O. A. & C. 573 (22 N. S. 276; 4 App. 276). This was a ease where two young colored persons, Tokus and his sister, attended a Sunday S’chool picnic; having purchased tickets they went upon the floor of the dancing pavilion, and after having been there some time they were bidden by the person in charge of the platform, to leave, which they did.

Suit was brought and in passing upon the case it is held:

“A proprietor of a public dancing pavilion, who ejects another therefrom, after he had been admitted thereon on account of his color or race and for no other reason, is liable to pay a penalty, under See. .12941 G, C.”

The very section upon which suit is predicated here.

Tokus and his sister were well behaved and orderly colored persons. It was hinted and even suggested that by reason of greater grace of movement on the dancing floor than some of the other dancers, jealousy of persons of the white race was excited, and for that reason their dismissal was brought about.

What are the circumstances in this case? Here were this young theological student and this lady, both persons of good character. Was there any reason why they should be discriminated against? Is it not true that under the provisions of the foregoing sections of the statute they were discriminated against? To hold otherwise, would be to render these sections as sounding brass. Said sections were passed by our legislature not for an imaginary, but a real purpose. A little more consideration, a little more willing obedience to these laws, on the part of the people of the white race might render some of the problems which have arisen a little less perplexing.

The charge of the court below was clear, concise and explicit. The jury certainly did not comprehend it. The record clearly discloses a violation of these sections of the statute; that the plaintiff in error here was entitled to recover under said Sec. 12941 there can be no question.

It follows, therefore, that by reason of the jury failing to .comprehend the instructions of the court, that the ease must be reversed and remanded for a new trial, which is done accordingly.

Pollock and Metcalfe, JJ., concur.


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

text:
    DEATH — NEGLIGENCE.
    [Hamilton (1st) Court of Appeals,
    February 12, 1914.]
    Swing, Jones and Jones, JJ.

      Cincinnati & Columbus Traction Co. v. Murphy.
    1. Degree of Comparative Negligence of Master and Servant Is Question for Jury.
    The negligence of an employer being shown by evidence and the negligence of the employe established by circumstances of his death, the degree of negligence is a question for the jury under proper instructions.
    2. Employe Electrocuted Within Ten Feet of Machine on Which Employed not per se Negligent.
    Whether an employe, who had reported for duty at the usual time, was at the place during working hours at which his work was performed and came in contact with wires causing his death by electrocution within less than ten feet of the machine upon which he was to work as soon as the foreman had finished his breakfast, was acting within the scope of his duties is a question for the jury.
    3. Presumption of Freedom from Negligence by Both Parties.
    In an action by an administrator for damages for death of a deceased employe, based upon the alleged negligence of the employer as the cause of death, the law primarily presumes that both parties are free from negligence.
    [Syllabus approved by the court.]

      ERROR.

      C. B. Matthews and Harry Klein, for plaintiffs in error.

      D. W. Murphy and Thos. L. Michie, for defendant in error.

      Motion to certify overruled, Cincinnati & C. Trac. Co. v. Murphy, 59 Bull. 174.

   JONES (E. H.), J.

This action was brought in the court of common pleas by defendant in error, Daniel W. Murphy, as administrator of the estate of Otto Smith, deceased, for damages on account of the death of the intestate, caused, as alleged in the petition, by the negligence of the plaintiff in error, The Cincinnati & Columbus Trac. Co., of which company the decedent was at the time of his death an employe. He had been called from his usual work as a bridge carpenter in the employ of said company to assist in the repair of the generator of said company at its substation at Madeira — a station on the line of said company’s road. The machinery of this substation had been burned out during a storm, by reason of which an emergency had arisen requiring an extra number of men to string wires and do other work necessary to restore normal conditions so that the ears could be operated over the road.

The petition alleges that while so employed at said time and place the plaintiff’s said intestate was electrocuted, and that his death was caused by physical contact of both his hands with two wires which the defendant then had at its said station and which were used to charge its generator.

The facts as shown by the evidence are, that the storm which resulted in the damage took place on a certain Saturday evening, and that during the whole of the following day, Sunday, the decedent, together with the other employes called upon, was engaged in stringing wires at the said place; that he worked until the evening of said day; and that he then went to his home and returned on the following morning at about the usual hour of beginning work to resume his labors at said substation. His foreman, at the time of or shortly after decedent’s arrival, went to the second floor of the building in which the power machinery was located to eat his breakfast with the family of the station agent who occupied said floor as his home. The work on the previous day consisted in part in stringing wires from a box car some little distance away from the substation, in which a generator had been temporarily placed, to the machinery in the first floor of this substation. These wires were taken into the building at or near one of the windows in the second story and were carried down to the first floor along the wall upon one side of the stairway leading to the rooms above. It was while waiting for the foreman to finish his breakfast that the decedent in some manner came in contact with these wires, and by reason thereof came to his death.

The negligence complained of in the petition is that the defendant company left said wires without any insulation, and unguarded, that the intestate had no knowledge that they were charged with an electric current and no warning was given him of the danger, and that he was not aware nor had he any means of knowing of such danger.

The trial below resulted in a verdict for the plaintiff, defendant in error here, upon which judgment was afterwards rendered, and it is to reverse that judgment that this proceeding in error is prosecuted.

It is contended in the brief for plaintiff in error, first, that the decedent’s death was the result of his own wilful and deliberate act; in other words, due solely to his own negligence.

The evidence in the case fully establishes the negligence of the traction company. The evidence shows that when the intestate quit his work on Sunday evening and left for his home the current was not turned on and these wires were not charged. There is some little conflict upon this point, but the evidence in favor of this view greatly-preponderates. In fact, about the only evidence to the contrary is that of Mr. Charles E. Smith, the foreman above referred to, whose testimony is on page 57 of the bill of exceptions:

“Question: Can you say whether Otto Smith knew that those wires were charged on Monday morning or not?'
“Answer: He-should have known it; he knew that they would have to be charged to run the road or to run the rotary, and he knew that they were charged on Sunday evening before he left there, because we started up the- machinery before he left.”

But the same witness (bill of exceptions, page 48) had previously stated:

“Answer: No sir, there was no current in those wires on Sunday. ’ ’

The negligence of the defendant company having been proven, and granting that the circumstances of the death showed negligence on the part of decedent, the question of the degree of negligence of each became one for the jury, by the provisions of See. 6245-1 G. C., under proper instructions from the court.

The charge of the court seems to us to contain a full and clear explanation to the jury of the rule with reference to the doctrine of comparative negligence. Such being the case, we have no authority to disturb the verdict of the jury even though the evidence might tend to show negligence on the part of the plaintiff’s intestate.

Another point urged by counsel for plaintiff in error in argument is that at the time of the accident the decedent was not acting for the defendant traction company within the course of his employment or the scope of his duties. The evidence bearing upon this point has been summed up in what was said above with reference to the time of the accident and the place where it occurred. The decedent came in contact with the wires which caused his death within less than ten feet of the machine upon which he was to work as soon as the foreman finished his breakfast. The lips of the decedent having been instantly sealed by death, no one knows or ever will know just why he was upon the stairway at the time, and no satisfactory inference can be drawn. He may have been on his way to ask his foreman some question with reference to his work, or it is possible that he expected to rest upon the steps while waiting. In either event we think the jury would be justified in finding that he was acting within the scope of his employment; and plaintiff having shown that decedent had reported for duty at the usual time, and that he was at the place where during working hours his work for the day was to be performed, we think it cannot be said as a matter of law that he was not acting, at the time, within the scope of his employment, and was not about his master’s business. The supreme court of Ohio, in the ease of Lima Ry. v. Little, 67 Ohio St. 91 [65 N. E. 861], has held that this question is one of fact to be submitted to the jury under proper instructions from the court.

The third point urged in the brief, namely, that the jury and court cannot guess as to the liability of the defendant, is disposed of bjr what has been said above. There was ample evidence tending to show negligence on the part of defendant. The law presumes at the outset of the case that both parties are free from negligence, and the plaintiff below as well as the defendant had the benefit of this presumption. There having been evidence of negligence on the part of defendant, and assuming that the jury would be warranted in finding that the plaintiff’s intestate was also negligent, and the relation of master and servant or employer and employe having been shown, the ease was one for submission to the jury under the authority of the section of the General Code above referred to.

We find no error in the proceedings in the court below, and believe that substantial justice has been done. Judgment affirmed.

Jones (O. B.), J., concurs.

Swing, J., not participating.


author: HOUCK, J.

text:
    SCHOOLS.
    [Fairfield (5th) Court of Appeals,
    April 26, 1917.]
    Powell, Houck and Shields, JJ.

      Samuel H. Layton v. Jerry R. Clements et al.
    1. Time not Essence of Contract in Employment of School Superintendent.
    The provision of Sec. 7702 G. C., that the term of a superintendent of schools must end on August 31, is directory and not mandatory, time not being the essence of the contract.
    2. Statutory Protection of Teacher Dismissed Without Charges Applicable to School Superintendent.
    The provision of Sec. 7701 G. C., that no “teacher” shall be dismissed by a board of education unless charges are first reduced to writing and an opportunity given for defense before the board or a committee thereof, covers superintendents of public schools, and the dismissal of a superintendent without observance of these provisions may he enjoined.
    S. Board of Education Judicially Denied Power to Abrogate Contract, Though Made by Predecessors.
    A court will not permit a board of education to abrogate and hold for naught a contract entered into by its predecessors unless it first establishes its legal right so to do, nor will it remit to an action at law a party suffering from the annulling of such a contract.
    [Syllabus by the court.]
    Appeal.

      M. A. Daugherty and J. W. Deffenbaugh, lor plaintiff.

      Ruble, Courtright, McCleery & Shell, for defendant.

       Motion to certify overruled by the Supreme Court, Clemmons v. Layton, 62 Bull. 315.

   HOUCK, J.

The petition in substance avers that on May 27,1915, plaintiff was elected to the office and position of superintendent of schools, for the city of Lancaster, Ohio, by the board of education of said city; that his term of office was for three years from September 1, 1915; that his salary was fixed at $2,200 per year, payable in monthly installments of $188.33 1-3; that he holds a state life certificate as a teacher in the high schools of Ohio; that he accepted said employment and is now discharging the duties of same; that his salary has been paid up to July 1, 1916; that the defendant, Jerry R. Clements, claims to have been elected superintendent of said schools by the board of education of said city of Lancaster, for the year commencing September 1, 1916, and is now assuming and attempting to act as such; that he is attempting by force and otherwise to get possession of the boots and papers pertaining to said position, and by force and otherwise and against the law and rights of plaintiff seeks to assume and perform the duties of superintendent, as aforesaid; that the other defendants herein are aiding and assisting said Clements in his unlawful acts and attempt to prevent the plaintiff from acting as such superintendent and in the performance of his official duties.

Plaintiff prays for an injunction restraining each and all of the defendants from in any way interfering with him in the' performance of his duties as superintendent aforesaid, and from the payment of any salary to the defendant, Jerry R. Clements.

The defendants filed an answer denying all of the material allegations of the petition.

Upon these pleadings and the evidence the cause was submitted to this court. The undisputed evidence in this case is:

That on May 29, 1913, the plaintiff was elected superintendent of the Lancaster schools for a period of two years, commencing on July 1, 1913; that he accepted and performed the duties of said position; that on May 27, 1915, he was elected for a period of three years at a salary of $2,200 per year, term to commence on July 1, 1915, and that he accepted said position and entered upon the discharge of his duties and has been paid his salary to July 14, 1916; that the membership of the board of education prior to January 1,1916, was as follows: G. E. Miller, J. T. Oberdorfer, L. G. Silbaugh, J. D. Yan Gundy and L. E. Eyman, and that subsequent to that date its membership consisted of J. T. Oberdorfer, Lee 0 ’Grady, J. D. Yan Gundy, Ralph W. Wolfe and L. E. Martin.

Minutes of board of education meeting held May 1, 1916:

“The following resolution vras read. Resolved: Be it resolved by the board of education of the city of Lancaster, Ohio,
“1st. That by reason of the inefficiency, neglect of duty and improper conduct of S. H. Layton, superintendent of said schools, the said S. H. Layton is by said board of education of the city of Lancaster, Ohio, hereby discharged and dismissed as such superintendent of the said Lancaster schools, the said discharge and dismissal aforesaid to become effective on the 30th day of June, 1916.
“2d. That upon the passage of this resolution, the clerk of this board be, and he is hereby ordered to serve a copy of said resolution on said S. H. Layton, within five days from the date of the passage hereof, and of his service to make due return forthwith to this board.
“Offered by J. T. Oberdorfer, seconded by Lee O’Grady. The vote on the above resolution was as follows: T. D. Yan Gundy, yes; Lee 0 ’Grady, yes; J. T. Oberdorfer, yes; Ralph W. Wolfe, yes; L. E. Martin, yes. The president then declared the motion carried.
‘■‘Upon calling for remarks before vote on the above resolution, Supt. Layton said: ‘I would like to demand more specific charges. ’
“No other remarks were made and motion to adjourn was carried.
“T. D. VAN Gundy, Pres.,
“W. A. Thompson, Clerk.
“A copy of the above resolution was placed in the hands of Supt. S. IT. Layton, by the clerk of the board of education of Lancaster, Ohio, on May 4, 1916.
“W. A. Thompson, Clerk.”

Minutes of board of education meeting held May 25, 1916:

“The following resolution was offered by J. T. Oberdorfer, seconded by Lee O’Grady:
“Resolution. There being a vacancy in the office of superintendent of schools of the city of Lancaster, Ohio, on and after the 30th day of June, 1916, therefore,
“Be it Resolved by the board of education of the city of Lancaster, Ohio, that Lewis D. Bonebrake be, and he hereby is, employed and elected to the position of superintendent of the schools of said city of Lancaster, Ohio, for a term of two years, at an annual salary of $2,500 per year; said term of Lewis D. Bonebrake as such superintendent as aforesaid shall begin on the 1st day of July, 1916. On call of roll of board, the vote on the above resolution was as follows: Oberdorfer, yes; Van Gundy, yes; O’Grady, yes; Wolfe, yes; Marten, yes; said resolution receiving a majority of all votes of said board of education, the president of said board, J. D. Van Gundy, declared the said Lewis D. Bonebrake duly elected and employed as such superintendent of the schools of the city of Lancaster, Ohio, in accordance with the terms, conditions and specifications of said resolution. ’ ’

Minutes of board of education held May. 25, 1916:

“Board of education of Lancaster schools met in adjourned session with following present: J. D. Van Gundy, Dr. Lee O’Grady and L. E. Marten.
“Clerk reported that contract for south building improvement had been approved by city solicitor and placed in hands of the Gosling Plumbing Co. for signature.
“The following resolution was offered by O’Grady, seconded by L. E. Marten:
“Be it resolved by the board of education of Lancaster city schools, Lancaster, Ohio, that the clerk of this board be instructed to ask Mr. S. H. Layton for all keys to buildings'and for the custody of any property said Mr. Layton may have in Ins possession belonging to the said board of education and Lancaster schools. Boll call as follows: Van Gundy, yes; O’Grady, yes; Marten, yes. Besolution adopted.
“Motion by O’Grady, seconded by Marten, that clerk be instructed to have the grass cut on north school grounds. Motion carried.
“Adjourned to meet July 8, 1916.
“J. D. Van GuNdy, Pres.
“W. A. ThompsoN, Clerk.”

Minutes of the board of education meeting held July 27, 3916:

“The following resolution was read by the clerk: Besolution: There being a vacancy in the office of the superintendent of the schools of the city of Lancaster, Ohio, caused by the death of Superintendent-elect Lewis D. Bonebrake, Be it resolved, by the board of education of the city of Lancaster, Ohio, that J. B. Clements be, and he is hereby employed and elected to the position of superintendent of the schools of said city of Lancaster, Ohio, for a term of two years, at an annual salary of $2,500 per year. Said term of J. B. Clements as such superintendent as aforesaid shall begin on the 1st day of September, 1916.
“Offered by Lee 0’Grady, seconded by L. E. Marten. On roll call of the board the vote on the above resolution was as follows:
“Oberdorfer, yes; Van Gundy, yes; O’Grady, yes; Marten, yes; Wolfe, yes. Said resolution receiving a majority of all of said board of education, the president of the said board, J. D. Van Gundy, declared the said J. B. Clements duly elected and employed as .such superintendent of the schools of the city of Lancaster, Obio, in accordance with the term, condition and specifications of said resolution.

Plaintiff was ready and willing to and did perform all tlic duties of superintendent of schools of the city of Lancaster, Ohio, and did all that was necessary to be done until defendants placed new locks upon the doors to the superintendent’s office and refused him admittance thereto, which was on or about the -day of August, 1916.

It is not claimed that any charges were preferred against the plaintiff as provided by Sec. 7701 G. C., or that he was given an opportunity to be heard either by the board or a committee thereof.

Under these facts this court is called upon to determine hs to whether or not the plaintiff is entitled to the relief prayed for in his petition.

The defendants contend that plaintiff’s petition should be dismissed for the following reasons:

1st. That the plaintiff has no valid and binding contract of employment with the defendant board of education.

' 2d. That if plaintiff has any right of action against the defendants that it is one in law and not equity.

Learned counsel for the defendants urge that because the term of employment does not end with the 31st day of August, as provided by See. 7702 G. C., that plaintiff has no valid contract.

This provision, as we view it, is directory and not mandatory. A board of education may employ a superintendent for a term not to exceed five years, but it may employ one for less than that period, which was done in the present case. The essence of the contract under consideration is not time, and therefore we do not think the claim of the defendants in this regard is well taken.

The contract was for three years, and it must be admitted that at the time it was entered into it was done in good faith and considered binding upon all of the parties thereto.

Plaintiff performed his part of the contract and defendants accepted it for one year and then the personnel of the board of education changed and an attempt was made.,to annul said contract on the part of the board of education.

No opportunity was given the plaintiff to be heard as to any alleged inefficiency, neglect of duty or improper conduct on his part. But the legislature of Ohio has seen proper to place a protection around teachers and superintendents of schools by the enactment of a wise statute, the provisions of which are clear, definite and certain. Section 7701 G, C. provides:

“Bach board may dismiss any appointee or teacher for inefficiency, neglect of duty, immorality, or improper conduct. No teacher shall be dismissed by any board unless the charges are first reduced to writing and an opportunity be given for defense before the board, or a committee thereof,” etc.

Defendants insist that from a proper construction of the above statute we are bound to reach the conclusion that a superintendent is not a teacher.

It seems to us that'this construction would lead us to conclude that the legislature had a' higher regard for the protection of a janitor or a primary teacher than it did for the efficiency, protection and safety of its “guiding star of the school system,” its superintendent.

"We are bound to disagree with the construction urged by learned counsel for the defendants, and hold that a superintendent of schools is a teacher and is entitled to all the protection placed about him by the provisions of the statute just referred to.

The contract before us is a solemn and binding obligation between the parties to it, and can not and should not be set aside and held for naught, unless there has been some violation of its terms and provisions.

“What act of omission or commission on the part of the plaintiff has been proven that would warrant a court in setting aside his contract of employment in this case? We are unable to find any.

A contract entered into between a board of education and an individual is just as binding on the parties as if made between individuals; and a court will not permit a board of education to abrogate and hold for naught a valid contract made by its predecessors in office, unless it first establishes its legal right so to do. In the case at bar there is certainly no evidence warranting it.

Coming now to the second proposition urged by the defendants. Has the plaintiff pursued the proper remedy? Counsel for defendants in their brief say:

“The defendants did everything they could do to get rid of the plaintiff. They demanded the beys. When this was refused they toob possession of the office, changed the locbs on the doors, and with force bept him out. True, he came into the room while they were holding a meeting, but he was not invited and did not tabe part in the proceedings. He certainly was not recognized by the board. ”

Where do we find the equities in this case in the face of such admission of facts, and the further fact that the defendant Clements with the approval of the other defendants herein had taben charge of some of the school papers, and the plaintiff, by means of locbs and force, was bept from performing the duties of his position as superintendent of schools notwithstanding the fact that he had a valid contract so to do? What was plaintiff’s duty in the premises — to use force against force, or to seeb redress in a court of equity whereby he might be' restored to his just and equitable rights?

But it is insisted that he is not a public officer and therefore his remedy was in damages to be obtained in a court of law.

We do not deem it necessary to discuss this question at great length, because in the light of the conceded facts in this case it is obvious that under the law the plaintiff’s relationship to the defendants was of such a character that he was fully justified in seebing relief in a court of equity.

We are of the opinion that the plaintiff is entitled to the relief prayed for in his petition.

Decree and judgment accordingly.

Powell and Shields, JJ., concur.


author: HAMILTON, J.

text:
    DIVORCE AND ALIMONY.
    [Hamilton (1st) Court of Appeals,
    January 28, 1918.]
    Jones, Gorman and Hamilton, JJ.

      Virginia Lape v. Elmer Lape.
    1. Weekly Allowance of Alimony In Divorce Payable from Husband's Property Valid.
    While an allowance of alimony to a wife in a decree of divorce for the aggression of her husband cannot be based on future personal earnings or wages of the husband, yet under Sec. 11991 a decree for weekly payments of specified sums may be made if based on property owned by him when the allowance is made.
    2. Weekly Allowance of Alimony Presumed Decreed in Accordance With Law.
    An allowance of alimony payable in weekly installments will be presumed, on application for modification thereof, to have been made in accordance with law and that the husband was possessed of property out of which the allowance could be legally decreed in the absence of a showing to the contrary.
    [Syllabus approved by the court.]
    Erkor to insolvency court.

      Bolsinger, Kuhn & Bolsinger, for plaintiff in error.

      Oteen N. Kinney, for defendant in error.

       Reversing Lape v. Lape, 62 Bull. 398.

   HAMILTON, J.

On September 23, 1913, plaintiff in error was granted a divorce from defendant in error, together with permanent alimony in the sum of six dollars per week, by the insolvency court o.f Hamilton county, Ohio.

On June 9, 1916, defendant in error, defendant below, filed a motion in that court to modify the alimony decree, and upon the hearing of said motion the court sustained the same and modified the decree b yterminating the alimony.

The plaintiff, plaintiff in error here, prosecutes error to this court.

The only question urged by counsel for defendant in error is: Can the trial court, upon the granting of a divorce, decree alimony by way of payment of a specified sum per week? It is not claimed that the decree should be modified on account of any changed conditions justifying same.

In the instant case a divorce was granted Virginia Lape with a decree for alimony as follows:

“The plaintiff is hereby allowed as reasonable permanent alimony the sum of sis ($6) dollars per week beginning September 13, 1913, and payable on each Saturday thereafter.”

It will be noted that the decree did not provide that the payments should be made “Until the further order of the court,” and it is therefore not subject to modification, if legally authorized under the statute, unless changed conditions on the part of either or both of the parties were shown to exist justifying such modification.

The law is well settled that jurisdiction to decree alimony is such, and such only, as is given by statute. This is true whether the action is one for divorce and alimony, or for alimony only. The power in the court to decree alimony where a divorce is granted the wife for aggression of the husband, is provided for by Sec. 11990 G. C., which is as follows:

“When a divorce is granted because of the husband’s aggression, by force of the judgment the wife shall be restored to all her lands, tenements and hereditaments, not previously disposed of, and the husband barred of all right of dower therein. If she so desires the court shall restore to her any name she had before such marriage, and allow such alimony out of her husband’s property as it deems reasonable, having due regard to property which came to him by marriage and the value of his real and personal estate at the time of the divorce. ’ ’

The method of payment of “such alimony” is provided for by Sec. 11991 G. C., as follows:

“Such alimony may be allowed in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or installments as the court deems equitable. If the wife survives her husband, she also shall be entitled to her right of dower in real estate not allowed to her as alimony, of which she was seized during the coverture, and in which she has not relinquished her right of dower.”

It will be seen from a plain reading of Sec. 11990, that where a divorce is granted the wife on account of the aggression of the husband alimony can be allowed only out of her husband’s property owned by him at the time of the granting of the divorce, and can not be based upon future personal earnings or future wages. Future personal earnings or future wages can not be considered as property, as was held in Home Discount Co., In re, 147 Fed., 538-548. The fourth paragraph of the syllabus in this case contains the following language:

“A bankrupt’s right to earn wages in the future and dispose of the fruits of his labor is not ‘Property’ as that term is used in Bankr. act, July 1, 1898, Chapt. 541, paragraph 70, 30 Stat. 565, vesting all the bankrupt’s property not exempt in his trustee,” etc.

Bouvier’s Law Dictionary defines “property” as “The right and interest which a man has in lands and chattels to the exclusion of others.”

Also, the same authority gives:

“Property is said to be real and personal property.”

It is therefore plain that by no stretch of the imagination, nor by any strained construction of the term “property,” could it be claimed that future personal earnings or future wages come within the meaning of the term “property” as used in the statute.

It is urged that the case of Frickel v. Granger, 83 Ohio St. 101 [93 N. E. 527-32 L. R. A. (N. S.) 270; 21 Ann. Cas. 1347], supports the proposition that it is within the jurisdiction of the court to base a decree for alimony on future personal earnings and future wages. “We do not so construe that case. The first paragraph of the syllabus is as follows:

“Alimony is not due and payable as debt, damages or penalty; but is an award by the court upon consideration of equity and public policy and is founded upon the obligation, which grows out of the marriage relation, that the husband must support his wife, which obligation continues after legal separation without her fault.’'’

This proposition is entirely reconcilable with the view that a decree for alimony must be based on property owned by the husband, at the time of the granting of the divorce.

The court decided what alimony was, and why it was provided, and finds that under the marriage relation there remains an obligation on the part of the husband after the dissolution of the marriage contract, which obligation is to the effect that the wife after divorce should not be turned out into the world penniless while the husband retained all of their joint accumulation, but that the obligation continued after legal separation, to the extent that the court could by a decree by way of alimony permit the wife to take away with her such part of her husband’s property as the court might deem equitable and proper.

It follows that a decree for alimony to the wife, where a divorce is granted because of the aggression of the husband, must be based on property owned by the husband at the time of the granting of the divorce; and that a decree for alimony based on future personal earnings or future wages is not authorized under the statute.

We are of the opinion that, having granted to the wife a divorce on account of the aggression of the husband, and finding the husband to have property out of which alimony may be decreed, the court under Sec. 11991 G. C., has jurisdiction to order such alimony paid in weekly payments or other installments as it may deem proper. We hold that decreeing a specified sum to be paid each week is decreeing a sum of money within the meaning of the statutes. In such cases, the jurisdiction of the court is continuing and ambulatory in its nature, and a decree for weekly payments of a specified sum is as effectual as if a new decree for such specified sum was entered separately each week upon a -weekly application during the continuance of the decree.

In the instant case the trial court at the time of granting the divorce had power to decree alimony by way of payment of a specified sum each week, provided the court found the husband to be possessed of property out of which the sum was allowed. The record discloses that at the hearing of the application to modify the decree, it was admitted that at the time of the original hearing of the case the husband was possessed of both real and personal property, but the record does not disclose what iacts with reference to this property were shown to the trial court, and in the absence of anything in the record to show the contrary it will be presumed that the court proceeded according to law and found the husband to be possessed of property out of which alimony could be legally decreed.

The judgment modifying the decree and discontinuing the alimony will be reversed and held for naught.

Jones and Gorman, JJ., concur.


text:
    EXECUTORS AND ADMINISTRATORS.
    [Knox (5th) Court of Appeals,
    October 25, 1917.]
    Powell, Houck and Shields, JJ.
    Clifford Blocher et al. v. Ida Blocher Trick et al.
    Renunciation by Widow of Provision for Her Benefit Accelerates Division of Property Among Devisees.
    Where a widow elects not to take under the will of her deceased husband, which creates a trust in her favor, her renunciation, in the absence of any other disposition of the property covered by the said trust, accelerates the enjoyment of the property by the remaindermen, subject to the dower interest of the widow therein but without terminating another independent trust created by said will.
    [Syllabus by the court.]
    Appeal.

      Harry W. Koons, for plaintiff.

      L. C. Stillwell, for defendant in error.
   HOUCK, J.

This is an action in partition which was originally commenced in the common pleas court of this county, and is here on appeal from the judgment of that court.

While the action is one in partition, yet the question for determination by this court is as to the true construction of items 2 and 3 of the last will and testament of John M. Blocher, deceased. These items read:

“Item 2. I desire the home property, business building and flats located at corner of High and Sandusky streets, in Mt. Vernon, Ohio, to remain in my name, as a part of my estate, for a period of ten years, unless my wife should die sooner, and desire that the same shall be managed by my executors hereinafter named, and from the proceeds arising therefrom, should the same be sufficient, and if not then from any property that I may leave, I direct my said executors to pay to my said wife, Malinda Blocher, the sum of three hundred dollars each and every year during her natural life, the same to be paid monthly, the same to be in lieu of her dower interest and distributive share in my estate.
“Item 3. At the end of said ten years, or at the death of my said wife, should she die before that time, I direct that my said executors shall sell said real estate, and from the proceeds arising therefrom divide the same share and share alike among my living children, or those that are living now, namely, Harry G. Blocher, Ida Blocher Trick, Bird Dixon, Clifford Blocher and Grace Rawlinson, and should any of said children die before the disposition of said property, then I desire that the children of any child so dying shall have the share of the child dying. However, it is my will, and I hereby direct that the share from the proceeds of said property going to my son Harry C. Blocher shall be kept and managed by said executors, and the proceeds from the same be paid to my said son, and at the death of my said son Harry C. Blocher then I direct that said executors shall pay the said amount so held in trust for Harry C. Blocher to his two children share and share alike.”

So far as the facts in this case are concerned they were submitted on an agreed statement of facts entered into by and between the parties to the suit. We think it necessary to refer to but two of them, because for a proper determination of this case it is not necessary to consider more than these two, namely, that Malinda Blocher, the widow of John M. Blocher, elected not to take under the last will and testament of her said husband, and, second, that all of the allegations in the petition of plaintiff are true.

The first question to be determined is with reference to the proper construction to be placed upon item 2 of said will, in view of the election of the widow of John M. Blocher not to take under the provisions of bis will. We must determine whether or not the renunciation of the widow has the effect of accelerating the enjoyment of the remainder-men.

It was a legal right extended to Malinda Blocher, the widow of John M. Blocher, to refuse to take under the provisions of his will, and in our judgment this renunciation on the part of the widow terminated the trust created in item 2 of the last will and testament of John M. Blocher, deceased, and such act on the part of the said widow accelerated the enjoyment of the devisees, because in the absence of any other disposition the property described in said item 2 passed intestate to the children of the testator, and said children took the property devised to them in item 2 as intestate property, subject, however, to the dower interest of the surviving widow therein.

The next question that arises is as to whether or not the claim of counsel for Harry C. Blocher is well taken, namely, that by reason of the termination of the trust created in item 2, by the refusal of the widow to take under the will, that thereby the trust created for Harry C. Blocher also becomes inoperative. To this doctrine and theory we cannot subscribe. The trust estate created for the benefit of Harry C. Blocher -was independent and separate from any other provision contained in the will of John M. Blocher, and, as a matter of laiv, we find the trust estate created therein is not terminated.

Thus it must follow, from what we have already said, that in our judgment the plaintiffs are entitled to the relief prayed for in their petition, and partition is hereby granted, and this cause is hereby remanded to the common pleas court for execution of the judgment herein entered, and for further proceedings as required by law.

Powell and Shields, JJ., concur.


author: CARPENTER, J.

text:
    BANKS AND BANKING.
    [Cuyahoga (8th) Court of Appeals,
    January 21, 1918.]
    Carpenter, Grant and Lieghley, JJ.
    Ellen Morgan, In re Est.
    1. Deposit of Money in Name of Two Persons or Survivor Does not Pass Title.
    Section 9790-1 G. C., having reference to hank deposits made in the names of two persons and payable to either of them or the heir of either of them, is for the protection of banks receiving such deposits; hence, while payment may be made under the authority of this statute to the survivor of either, such payment does not determine the question of title to the fund.
    2. Title to Money Deposited by Mother in her Name and Daughter Payable to Survivor Passes to Mother’s Estate on Her Death.
    A direction given by a mother to a bank in which she was depositing money, that it should be paid to herself or her daughter or the survivor of either of them, was not a gift inter vivos to the daughter, nor in any way a testamentary disposition of the fund; therefore, upon the death of the mother title to the fund passed, to the personal representative of the mother and not to the daughter.
    Error.

      W. J. Hamilton, for plaintiff in error.

      E. J. T hoi ah en, for defendant in error.
   CARPENTER, J.

From the statement of facts, it appears that Ellen Morgan, having a deposit of $1,038.88 with the Society for Savings, went with her daughter, Lilly Morgan Fetzer, to Society for Savings and said to the officer in charge that she wanted her daughter to have this money, and that if they would agree to pay to said daughter whatever might remain in said account at her (the mother’s) death, provided she should die first, that she (Ellen Morgan) would leave such account with the bank subject to the right of withdrawal by either daughter or herself until the death of either herself or said Lilly Morgan. The •bank having assented to this proposition, said Ellen Morgan caused the name of her said daughter to be added to her own on said bank book, to which was added the words, “Mrs. Morgan or Lilly Fetzer, payable to either or the survivor.’’ The record of the account, as kept by the bank, used this language. The mother placed the book in a safe deposit bos to which the mother alone had access, and it was found there at the time of her death.

The common pleas court, on appeal from the judgment of the probate court, rendered judgment against the plaintiff, Lilly M. Fetzer, holding that the money in said deposit belonged to the estate of said Ellen Morgan. The case is here to reverse this judgment. We find no error in this case to the prejudice of the plaintiff.

Section 9790-1 G. C. provides that where a deposit has been made in any bank, savings bank, etc., in the names of two persons, payable to either, or to either or the survivor, such deposit or any part thereof or any interest or dividend thereon may be paid to either of said persons, whether the other be living or not, and the receipt of the person so paid shall be a valid and sufficient release and discharge to the bank for any payment so made.

It is evident that this statute was enacted solely for the benefit of the bank, and not for the depositor. It will be observed that it relates to the payment only, and protects the bank from further obligation and avoids suits that would otherwise be likely brought against it. It would scarcely be claimed by any one that this statute related in any manner to the title to moneys on deposit at the death of the depositor. It is claimed, however, that inasmuch as the bank agreed to pay to either said Ellen or her daughter Lilly, as above set foi’th, on the consideration that the deposit would be allowed to' remain subject to withdrawal by either, that thereby the bank became obligated under the doctrine that an agreement made on a valid consideration by one person with another to pay money to a third can be enforced by the latter in his own name, and therefore the title to this property at the death of Ellen passed or devolved by operation of law to Lilly. The statement itself shows the absurdity of the claim. The fallacy is discoverable in that it assumes payment creates title. The bank held the money, the title of wTr’ch was in the mother, and the agreement of the bank to pay, even on consideration, could not change the title. True, if Lilly had drawn out any or all of this money and had spent it, which she had full right to do, there would be nothing left to which title could be asserted. But as to the title to the money remaining in the bank during the life of the mother there can be no question, for it is conceded that Lilly had not contributed to the fund; being the mother’s at the time of her death, it would descend as a part of her estate unless the transaction at the bank created a right of title at the death of Ellen. It is not claimed that the transaction amounted to a testamentary disposition. As between Lilly and her mother there passed no consideration. It could not be said that it was a gift inter vivos, because there was not an irrevocable delivery; in fact there was no delivery. The donor retained the right to its use. And there is no claim that it was a gift causa mortis, or a testamentary disposition.

In our opinion the plaintiff utterly fails to make her case, and we therefore affirm the .judgment.

Grant and Leighley, JJ., concur.


author: Jones (O. B.), J.

text:
    DESCENT AND DISTRIBUTION — WILLS.
    [Hamilton (1st) Court of Appeals,
    May 4, 1914.]
    Swing, Jones and Jones, JJ.
    Broermann, Jr. v. Kessling et al.
    1. Per Capita Distribution Rather Than Per Stirpes Preferred.
    As a general rule, where a testator has left undetermined the proportions in which his beneficiaries are to take, the courts, favoring equality, will direct the distribution to be per capita rather than per stirpes.
    2. Devise to Grandchildren Construed Per Capita,
    A testator devised certain real estate “to the children of" each of two daughters named, “all said children being my grandchildren, to have and to hold the same for the said grandchildren, their heirs and assigns forever." On the death of the wife of the. testator, who was given a life estate in the real estate in question, there were, surviving her, two children of one daughter, and twelve children of the other daughter. Held: That each of the fourteen grandchildren takes an undivided one fourteenth of the real estate in question.
    [Syllabus approved by the court.]

      Appeal.
    F». J. K uertz, for plaintiff.

      Badger & Ulrey, G. A. Leach, W. J. Greed, J. D. Greed, Fred P. MuJdkauser and Samuel B. Hammel, for defendants.
   Jones (O. B.), J.

This is an action for partition, heard on appeal from the court of common pleas. It is sought to partition real estate devised under clause 1 of item 3 of the will of John B. Cook, deceased. The only question in the case is whether the devisees named in that clause take per capita or per stirpes.

After first giving a life estate in all of his real estate to his wife by item 3 of his will, he disposes of it after her death by separate clauses in the same item, devising different parcels of real estate to different relatives. The language in clause 1 is as follows:

“I give and devise to the children of Elizabeth Boewer, and the children of Marianna Broermann and Frederick Broer-mann, all said children being my grandchildren, the following real estate, to wit: [Here follows description of property.] to have and to hold the same for the said grandchildren, their heirs and assigns forever.”

The widow, Mary E. Cook, died in January, 1913, two children of Elizabeth Boewer and twelve children of Marianna Broermann and Frederick Broermann surviving her. The question is whether the Boewer children each take one-fourth of this property and the Broermann each one-twent3r-fourth, or whether each of the fourteen children take one-fourteenth.

No provision was made in the will for testator’s daughters, Elizabeth Boewer and Marianna Broermann, and the latter at least is still surviving, and as stated at the trial both were in life at the time of the making of the will and probably at the death of the testator.

As a general rule, where the testator has left undetermined the proportions in which his beneficiaries are to take, the courts, favoring equality, will direct the distribution to be per capita rather than per stirpes. Thus where a devise is to the children of several persons, whether it be to the children of A and B, or to children of A and the children of B, they take per capita and not per stirpes. Beach, Wills, 504, Sec. 304, and 2 Jarman, Wills (6 ed., Bigelow), 204, (1050).

Where all the persons entitled to share stand in the same degree of kin to the decedent, as, for instance, all grandchildren, and claim directly from him in their own right, and not through some intermediate relation, they take per capita. 1 Schouler, Wills (5 ed.), Sec. 538.

Wherever as a class the beneficiaries are individually named, or are designated by their relationship to some ancestor living at the date of a will, whether to the testator or some one else, they share per capita and not per stirpes, and especially if they are-all of the same degree. 1 Schouler, Wills (5 ed.), Sec. 540, and Page, Wills, Sec. 558, p. 648.

In Hill v. Bowers, 120 Mass. 135, Chief Justice Gray, in the opinion of the court, says at page 136: ,

“The general rule is that by a bequest to the children of A and to the children of B, the children take per capita and not per stirpes, in the absence of words indicating a different intention. There are no such words in this will. ’ ’

In the case at bar we fail to see any words indicating any intention different from the general rule as above stated. The language of the will reduces the beneficiaries to a single class, that of grandchildren, in the words “all said children being my grandchildren,” and also, after description of the property, by repetition, in the use of the words “to have and to hold the same for the said grandchildren their heirs and assigns forever. ” While these grandchildren are designated not by individual names, but by the fact of their parentage, they take nothing under a devise from the parent or as representatives of the parent; they take directly as grandchildren of the testator, and, being all of the same class, the general rule must apply and they must take equally or under the per capita rule.

In 40 Cyc. 1490, the following language is used:

“As a general rule the devisees or legatees of a will will if possible be construed to take per capita rather than per stirpes, unless the will shows a contrary intention on the part of the testator, as where the beneficiaries are to take sub-stitutionally; and in ease of doubt tbe statutes of descent and distribution should be followed as nearly as possible. ’ ’

If it were necessary under this rule to refer to our statutes, a reading of Secs. 8580 to 8583 G. C. would convince us that if the parents of these grandchildren were his only children and had predeceased their grandfather, then these grandchildren being of the same class would under the terms of See. 8581 take by inheritance equal shares. Thus we see that the per capita rule would accord with the statutes of Ohio.

It is however argued properly that the entire will must be read in order to put a proper construction upon any ambiguous clause, and it is urged by counsel for the Boewers that the other three clauses in item 3 indicate an intention on the part of the testator to divide the estate equally among the original children or their representatives. The fact that Mrs. Broermann, if not Mrs. Boewer also, are still living and take nothing under the will negatives any such argument. McIntire v. McIntire, 192 U. S. 116, and Blacker v. Webb, 2 P. Wms. 383.

The argument that clauses 2, 3 and 4 indicate a purpose on the part of testator to equalize the division of his property among the representatives of his eight children is not borne out by a consideration of those clauses. The second clause gives a piece of real estate to his sons George and Bernard, and the fourth clause gives two pieces of real estate and certain chattel property to two other sons, Louis and William, and the third clause gives to two grandchildren, each being a daughter of a deceased daughter of the testator, another piece of real estate and certain street railway stock. There is nothing in the record to show that these parcels of real estate are of equal value. The usual presumption would be that they are not of equal value. The testator however desired to so divide his property, and we are not at liberty to speculate upon his reasons for so doing; but the fact that he did so does not in any way aid us in the construction of the language employed in the first clause of the same item. It happens that Marie Catherine Funk and Louisa Eberling, the two deceased daughters named in item 3, clause 3, each had a single child surviving the life tenant, and that neither of said children being mentioned by name in said item each would take one-bal£; but that cannot be used as an argument that they take by representation.

Two of the cases cited by counsel for the Boewers which uphold a division per stirpes, to wit, Bool v. Mix, 17 Wend. 119, and Houghton v. Kendall, 89 Mass. (7 Allen) 72, 77, are cases where an estate for life was given to the child, with the remainder over to the grandchildren, in such a way as to show an intention on the part of the testator to have the grandchildren take as representatives of their respective parents. But in all of the remaining cases cited by counsel, without exception, there have been kinsmen in different degrees of consanguinity, which would require those of the more remote relationship to take as representatives of their parents who would have been in the same class.

These cases therefore cannot control the court in the construction of the ease at bar where all of the beneficiaries are grandchildren who take directly as such and not in the right of their respective parents.

A decree will therefore be entered finding that each of the fourteen grandchildren who are parties to the proceeding is entitled to an undivided one-fourteenth of the real estate described in the petition, and partition had accordingly.

Swing and Jones (E. H.), JJ., concur.


text:
    CONTRACTS — EXECUTORS AND ADMINISTRATORS.
    [Coshocton (5th) Court oi Appeals,
    July 2, 1917.]
    Powell, Houck and Shields, JJ.
    R. D. Keesey v. John E. Glass, Admr.
    Instruction Relating to Contract for Services to Deceased as implied Permitting Inference that Same Evidence Establishes Implied and Express Contract is Erroneous.
    In an action for recovery on a contract for services, it is prejudicial error in charging the jury to speak of the contract as implied, without any explanation as to what proof is required to es- ' tablish an implied contract, but leaving the jury to infer that an implied contract could be established by the same evidence as an express contract, which evidence offered showed to be the character of the contract in suit.
    [Syllabus by the court.]

      ERROR.

      Joseph L. McDowell and W. 8. Merrell, for plaintiff in error.

      F. E. Pomerene and T. E. Wheeler, for defendant in error.
   HOUCK, J.

Error is here prosecuted to reverse the judgment of the common pleas court in this case.

The plaintiff brought suit to recover from the estate of Carrie L. Lahm, deceased, the sum of $4,255, which he claimed to be the reasonable value of certain work and services done and performed by him for the said Carrie L. Lahm prior to her death. The services for which he seeks to recover were performed between March 1, 1911, and January 21, 1915, the answer filed being in substance a general denial. The cause was submitted to a jury upon the pleadings and the evidence, and the jury returned a verdict for the defendant, and a judgment being entered on the verdict, error is here prosecuted praying for a reversal of said judgment.

We have given this case careful consideration, and have read the bill of exceptions, and were materially aided in our examination of the record and the bill of exceptions by the very able oral arguments of counsel, as well as the written briefs in the case filed by them.

Plaintiff in error insists that the trial judge erred prejudi-cially to his rights in the premises in giving to the jury certain written charges before argument, as requested by the defendant. We think it necessary to discuss but two of these requests, namely, Nos. 2 and 3, which are as follows:

“No. 2. I charge you that this is a suit to recover from the estate of defendant’s decedent compensation for his services alleged to have been rendered under an implied contract. Whether the contract is express or implied, the meeting of the minds of the parties upon its terms is necessary to the making of the contract. If the minds of the parties did not meet on any terms of agreement, there is no contract.
“No. 3. If you find from the evidence that at the time plaintiff went to live in decedent’s home he did so under an agreement to render the services shown by the evidence to have been performed by him for decedent, and that be was to receive as compensation therefor his room and board, and with no provision for further or other compensation, then plaintiff can not recover in this action, and your verdict should be for the defendant. ’ ’

"When written requests of propositions of law are asked to be given to a jury before argument the trial judge must give the same if they are sound propositions of law pertaining to the issue or issues raised by the pleadings and applicable to the proven facts in the ease; although a request may be sound, as an abstract proposition of law, yet the trial court would not commit error by refusing to submit it to the jury, unless such be clearly applicable to the issues to be determined and the facts in the ease as established by the evidence.

The question then for our consideration and judgment is: Did or did not the trial judge err prejudicially to the rights of plaintiff in error in submitting to the jury such requests? We must answer this inquiry in the affirmative, and having done so it is our duty to assign our reasons for so doing, which briefly stated are as follows:

We think request No. 2 is clearly misleading and prejudicial to the rights of plaintiff in error. In clear language it states that the services alleged to have been rendered by the plaintiff for the defendant were by reason of an implied contract, and then states, “whether the contract is express or implied, the meeting of the minds of the parties upon its terms is necessary to the making of the contract. If the minds of the parties did not meet on any terms of agreement, there is no contract.”

If the contract was an implied one then it had no connection with an express contract. Then why should any raference be made to an express contract, if the plaintiff did not rely upon such to recover ? The evidence necessary to establish an implied contract is very different from that required to prove an express contract. In an express contract all the terms and conditions are expressed between the parties, and they arrive at their agreement by words either oral or written, while in an implied contract some of the terms and conditions are implied by law by the conduct of the parties. Thus, where one performs for another, with his knowledge, consent and acquiescence, some useful or valuable service, however small it may be, that is commonly charged for, and the same is accepted, a promise to pay what the same is reasonably worth is implied. It will be observed that in the request now under consideration there is no explanation as to what proof is necessary to establish an implied contract, but in effect, at least, the language used would imply that the same proof would be necessary to establish an implied contract as is required in an express contract.

As to request No. 3, we will say as to the real force and effect of the language used — if we are able to properly analyze and interpret same — that the contract was an express one. Both of these requests are vague, uncertain and indefinite, and we think are very misleading and highly prejudicial to the substantial rights of the plaintiff in error.

If we apply the rule of law as herein laid down as a test to tlie above requests, we can reach but one conclusion, and that is that the common pleas court was in error in submitting them to the jury.

Finding error in the record prejudicial to the rights of the plaintiff in error, the judgment of the common pleas court is reversed and the cause remanded to that court for a new trial.

Judgment reversed.

Powell and Shields, JJ., concur.