author: Winch, J.; IIenry, J., and Marvin, J.,

text:
    WHEN AN UNCONSTITUTIONAL LAW IS VALID.
    Circuit Court of Cuyahoga County.
    Wm. F. Betz et al v. John I. Nunn, as Treasurer of Cuyahoga County, Ohio.
    Decided, October 27, 1905.

      Constitutional Law — Proceedings Under an Unconstitutional Law May ■ l)e Valid, When.

    Proceedings under laws of general nature which are made to apply only to a certain locality are not invalid where laws applying to the whole state contain the same provisions as the laws in question.

      31. IF. Cope, for plaintiff.

      O. IF. Stage, contra.
   Winch, J.; IIenry, J., and Marvin, J.,

concur.

Plaintiffs are tlie owners of real estate in what is known as Sewer District No. 24 in the city of Cleveland, and brought their action against the treasurer of Cuyahoga county to restrain him from collecting an assessment of five mills on the dollar on their said property, for sewer district purposes.

The case was heard on appeal and the only reasons urged as ground for the relief prayed for are that said Sewer District No. 24 was created on November —, 1901, under an unconstitutional statute, and the assessment or levy was made in April, 1902, under a like unconstitutional statute. The two laws referred to are Section 2406, sub-sections 1 to 36 inclusive, referring to the creation of sewer districts and taxation for sewer purposes, and Section 2689a, limiting levy for sewe'r district purposes to five mills on the dollar. Both these acts refer specially to Cleveland and are said to be in contravention of Section 26, Article II of the Constitution, by reason of the fact, it being claimed that they are laws affecting matters of a general nature which should have uniform operation througout the state.

We find it unnecessary to pass upon the constitutionality of these special acts, even conceding that they might be viewed as unconstitutional in the light of more recent decisions of the Supreme Court.

The former act, Section 2406, sub-sections 1 to 36, was before the Supreme Court in the case of Hayes & Sons v. City of Cleveland, 55 O. S., 117, in 1896, and not then held unconstitutional.

This act was passed April 16, 1883, and is entitled “An act to provide for the construction and repair of sewers in cities 'of the second grade of the first class” (80 O. L., 143). Its provisions apply to no other city than Cleveland.

Sections 1 and 5 of this act provide that the board of improvements in Cleveland shall devise a plan of sewerage and divide the city into sewer districts. These two sections are identical with general laws then in force, applying to all cities and villages, and then known as Sections 2366 and 2370 of the Revised Statutes, originally Sections 602 and 603 of the old municipal code, found in 66 O. L., 251, which were not repealed by the special law for Cleveland, unless it be by the implication that the later special law superseded the old law.

Under a familiar rule of construction applied in the case of Shoemaker v. City of Cincinnati, 68 O. S., 603 and 609, if this special law for Cleveland is unconstitutional, its enacting clause is unconstitutional and leaves the old law in force for Cleveland, with full authority under the general law in the council of the city of Cleveland to. create Sewer District No. 24, in the manner stated in the petition.

So, too, as to the second law complained of, Section 2698®, as amended May 10, .1902 (95 O. L., 508), it is said that this act provides for the levying of an assessment of five mills on the dollar for sewer purposes within the city of Cleveland, and is unconstitutional not only because in contravention of Section 26, Article II, already referred to, but because it is contrary to the provisions of Section 2, Article Nil, which provides that laws shall'be passed, taxing by uniform rule, all real and personal property.

We do not find that authority for the levying of the tax or assessment here complained of in the section just referred to. The only part of that section applicable to this case reads as follows:

“ The aggregate of all taxes levied or ordered -r * * shall not exceed in any one year, in cities of the second grade of the first class (Cleveland) * * * for sewer purposes five mills.’’
That is a limitation upon the general statute then in force, Section 2683, which reads in part as follows:
“In addition to the taxes specified in the last section (for general purposes) the council in such city and village may levy taxes, annually, for any improvement authorized by this title, and for the following purposes:
“20. For the construction and repair of sewers, drains and ditches, and where the corporation is divided into sewer districts, the levy shall be by sewer districts.”

Other general laws provide for sewer district bonds, sinking fund and levies therefor by sewer districts.

We apprehend that the .levy in Sewer District No. 24 complained of, was under authority of the general statutes applying to all cities, and if the limitation of such levy to five mills attempted by the act of May 10, 1902, is unconstitutional, such limitation in nowise affects the validity of the levy which happens to be just five mills, the limit so unconstitutionally provided.

The petition is dismissed.


source: Caselaw Access Project

author: Winch, J.; IIbnry, J., and Marvin, J.,

license: Public Domain

text:
    CONTRACTS FOR. SERVICES REQUIRING MECHANICAL LEARNING.
    Circuit Court of Cuyahoga County.
    F. E. Cudell v. The City of Cleveland et al.

    Decided, June 26, 1905.

      Municipal Corporations — Officers—Contracts Entered Into Toy Unconstitutional Officers Boto Validated — Contract for Personal Service Requiring Slcill Need Not l)e Advertised.

    1. Where a board of city hall commissioners appointed under an unconstitutional law, have been employed or reappointed by the proper officers under a later constitutional act, tlieir acts or contracts if approved by the appointing officers are valid and binding.
    2. Where the contract to be entered into is for personal services of a lrind requiring skill and technical learning the statutory provision that where the contract involves the expenditure of more than $500, it shall be advertised and bids received does not apply.

      George A. Groot, for plaintiff.

      N. D. Balter, contra.

       Affirmed without opinion, Cudell v. City of Cleveland, 74 Ohio State, 476.

   Winch, J.; IIbnry, J., and Marvin, J.,

concur.

In this action the plaintiff seeks to restrain the city of Cleveland, its auditor, treasurer and board of city hall commissioners, from carrying out a contract said board has made with the defendant, J. Milton Dyer, wherein it is provided that said Dyer is to prepare plans, as an architect, for a eity hall to be erected by the city of Cleveland, and to furnish said city plans, specifications and drawings therefor, and do all the architectural service required of him in said contract, for which services the city agrees to pay said Dyer an amount equal to five per centum of the amount expended in the actual construction of said building, when completed. It is estimated that said percentage will exceed $75,000.

It appears from the petition that the board of public service of the city of Cleveland, duly endorsed said contract as follows:

“To the extent that the making or approval of the foregoing contract lies within the powers vested in the board of public service of the city of Cleveland, the same is hereby approved and adopted. ’ ’

It is alleged that said contract is illegal and void for two reasons:

First. Beca,use the so-called board of city hall commissioners is an unconstitutional body, incompetent to act in the premises and bind the city.

Second. Because the contract involves the expenditure of more than $500 and the commissioners did not advertise for bids and let the contract to the lowest bidder, as required by law in such cases.

To this petition a general demurrer has been filed which properly raises all the questions of law necessary to a determination of this ease.

As to the first proposition it appears that the board of city hall commissioners was appointed under an act of the Legislature passed April 19, .1898 (93 O. L., 549), which authorized the appointment of such a board in the city of Cleveland alone, and is admitted to have been unconstitutional.

The general municipal code passed October 22, 1902, by Section 216, paragraph 4 thereof, undertook to prolong the life and powers of this board, as well as that of the like board of market house commissioners for the city of Cleveland, but this court, in the case of Slatmyer v. Springborn, held that said fourth paragraph of Section 216 so far as it related to said market house commission, was unconstitutional, and said board without vitality and power. That decision was recently affirmed by the Supreme Court, and, were it not for the allegation in the petition that the board of public service approved the contract in question, we should have to make the same holding with regard to the city hall commission in this case.

In connection with that fact our attention is called to the last half of the first paragraph and the second paragraph of s'aid Section 216, which reads as follows:

“That whenever any city has in contemplation or in process of construction, or furnishing, a city hall, the director of public service may provide for the employment of five citizens of said city, to be named by them, not more than three of whom shall belong to the same political party, who shall constitute a commission under the supervision and direction of the directors of public service, for procuring the necessary land for the construction and furnishing of said city hall. Said commissioners shall have power, subject to the approval of the directors of public service, to acquire, in the name of the city, by appropriation or purchase, land for city hall purposes, ’ ’ etc. 1 ‘ Shall make all contracts necessary for the construction and furnishing of such city hall, which contracts shall be in the name of the city, and shall be made after advertisement and bidding as provided by law, for the making of other municipal contracts, and shall be subject to the approval of the directors of public service. Such commissioners shall select from their number a president, and may appoint a clerk, and shall keep a full record of their proceedings,” and then follows a provision as to their compensation.

There can be no question as to the constitutionality of what has been just quoted. It is general and applies to all cities in Ohio. Have the directors of public service of the city of Cleveland acted under it and virtually employed, or re-appointed, the five citizens named under said unconstitutional act of April 19, 1898, as a commission to buy land, employ architects, approve plans and make contracts for a city hall, subject to then-approval ?

We think the petition sufficiently shows that they have, and that the approval of the contract in question by the directors o f public service establishes the existence and powers of the defendant commissioners as such board.

So finding, it follows, that the first objection to the contract in question is not well taken.

The second objection is based upon Section 143 of the municipal code, which provides among other things:

“When any expenditure within said department (of public service) other than the compensation of persons employed therein, exceeds five hundred dollars, such expenditure shall first be authorized and directed by ordinance of council, and when so authorized and directed, the directors of public service shall make a written contract with the lowest and best bidder after advertisement, for not less than two nor more than four consecutive weeks in a newspaper of general circulation within the city.”

It will be noticed that a distinction is made between the compensation of persons employed, and contracts involving other expenditures. The same distinction is made in the paragraphs last quoted from Section 23 6:

“The board subject to the approval of the directors, has power to employ architects and to make contracts” for certain other purposes, it being provided that the latter contracts .only “shall be made after advertisement and bidding as provided by law for the making of oth.er municipal contracts.”

A comparison of the general section applying to municipal contracts (143) and the special section (236) applying particularly to this case, and for that reason furnishing us the rule by which we should be governed in determining the issues herein, shows the common sense distinction made by the Legislature and its evident intention to exempt from advertisement, and bid, contracts for personal services.

The reasonableness of such construction is most strikingly illustrated in the present case. An architect is an artist, his work requires taste, skill and technical learning, ability of a high and rare kind. Advertising might bring many bids, but it is beyond a peradventure that the lowest bidder would be least capable and most inexperienced and absolutely unacceptable. As well advertise for a lawyer or civil engineer for the city and intrust its vast affairs and important'interests to the one who would work for the least money. We find no merit in the contention.

The demurrer to the petition is sustained.


text:
    RIGHTS OF A DECEDENT’S ESTATE IN A LIQUIDATING LOAN COMPANY.
    Circuit Court of Cuyahoga County.
    George W. Downer, Administrator of the Estate of R. N. Pollock, Deceased, v. The State Savings & Loan Co. et al.
    Decided, June, 1905.

      Executors and Administrators — Set-off.
    Where property of a decedent has come into one’s possession after the death of the decedent, no right of set-off exists in favor of that person, as against the personal representative.
   Winci-i, J.; ITenry, J., and Marvin, J.,

concur.

This case is here upon appeal and was heard upon demurrer to the answer -of the defendant loan company.

The petition alleges that plaintiff! is the- duly appointed and acting administrator with the will annexed of Robert N. Pollock, deceased, who died in May, 1901; that at the time of his death said Pollock was the owner of ten shares of the capital stock of the defendant loan company, of the par value of $100 each, the certificates for which said shares came into the possession of plaintiff and are now held by him as such administrator; that in July, 1902, subsequent to the death of said Pollock, said loan company went into voluntary liquidation and after paying all its debts and liabilities there remains in the hands of its liquidating trustees, who are made defendants in the action, assets of the corporation sufficient to pay its stockholders from eighty to ninety per cent, of the par value of their stock; that distribution of such assets has been made by said trustees to all other stockholders, but that they refuse to pay plaintiff his distributive share on account of said ten shares held by him, though requested.

The prayer of the petition is for an accounting and for judgment for the amount found due plaintiff on said shares.

A joint answer is filed by the defendant loan company and its liquidating trustees, which substantially admits all the allegations of the petition, but pleads, as an off-set to plaintiff’s claim, an indebtedness of said R. N. Pollock in the sum of $5,000, which beeatne due from him to the defendants December, 1900, some five months before Pollock’s death. It is further alleged that said claims were duly presented to plaintiff and allowed by him as valid claims against the estate of which he is administrator, but not paid by him; that the estate is .insolvent and unless off-set of said claims is allowed against the claim of plaintiff, that defendants will be entirely defeated from collecting more than a nominal amount of said indebtedness.

To this answer, as stated, plaintiff demurred, and the only question for determination is whether the claim of defendants is of such character that they should be allowed to off-set it against plaintiff’s claim.

Had the loan company gone into liquidation before Pollock’s death so that in his lifetime a right accrued to him to demand and receive from said company in money his distributive share of its assets, it would seem that the company could have off-set his indebtedness to it and applied his distributive share upon said indebtedness. That not having occurred, what rights, if any, became fixed and determined upon Pollock’s death?

On the one side it seems clear that title to Pollock’s shares of stock passed to his administrator in trust for the benefit of his creditors, with the right and duty, on the part of the administrator to sell said shares, as provided in the statutes, i. convert the same into money, and distribute the proceeds thereof to the creditors of the estate.

On the other side the loan company, upon the allowance of its claim by the administrator, which was in no sense a preferred claim, became entitled to share, pro raía, in the assets of Pollock’s estate.

Can the loan company, by any act of its own, change this course of distribution? It must be conceded that the administrator had no claim against the loan company amounting to a cause of action by virtue of the certificates of its stock to the defendants, the authorities are uniform that the debt of the decedent could not have been deducted from, or set-off against, the purchase of the stock (Dayhuff v. Dayhuff’s Administrator, 27 Ind., 158, and cases there cited). On page 160 of this case the judge delivering the opinion says:

“To allow a set-off in such cases would disturb the due course of administration and distribution of the estate. ’ ’

The same proposition is made in all the cases cited'and appears to be sufficient reason for the conclusions reached. Among the cases so cited is the case of McDonald v. Black’s Administrator, 20 Ohio, 185, which is more in point as an authority, not only because it is a decision of our Supreme Court, but because the facts of the case are more nearly like the case at bar. The fourth paragraph of the syllabus reads:

“A party receiving property, part of the assets of an estate, can not when sued for it, set-off a debt due from the estate to him. ’ ’

The action was brought by the administrator of Black to recover against McDonald one-third of the insurance money collected by him after Blackis death on account of the loss of a steamboat which belonged in equal parts to Black, McDonald and another; McDonald received from the insurance company two-thirds of the amount, being his own and Black’s shares,.but refused to pay Black’s share to his administrator, claiming that be had a right to set-off advances made by him for Black on the purchase of the boat and one-third of payments he had made for the boat’s debts.

The judgment of the common pleas court allowing no set-off was affirmed. On page 196, Judge Ranney delivering the opinion and considering the claim for advances made for Black in the purchase of the boat, said:

“If McDonald advanced money for Black, Black became his debtor for the amount. If money had come to the hands of McDonald before the death of Black, the right to set-off might have existed. The moment Black died all his creditors had an equal right to a pro rata dividend of his property, uppn which no liens existed; and it would be entirely inadmissible to hold that one creditor could get property into his hands belonging to the estate, and thus indirectly by an off-set obtain the full payment of his debts, while others might receive but a part, or nothing at all. No right of off-set existed in this ease at the death of Black, and none could be acquired afterward by a seizure upon the assets of the estate.”

Judge Ranney’s conception of McDonald’s acts as a “seizure upon the assets of the estate,” is applicable to the acts of the defendants in this ease. They had no right to take Pollock’s stock from the administrator, sell it and apply the proceeds to Pollock’s debt to them, nor can they accomplish the same result by indirection.

For error in overruling the demurrer to this answer, the judgment is reversed.


author: Winch, J.; I-Ienry, J., and Marvin, J.,

text:
    PROPERTY RIGHTS GROWING OUT OF THE MARITAL RELATION.
    Circuit Court of Cuyahoga County.
    William N. Ashbaugh, Receiver, v. Mary A. McGillin et al.
    Decided, June 26, 1905.

      Husband and Wife — Jurisdiction of Circuit Court as to Property Rights of.

    While tlie circuit court has no jurisdiction to dissolve the marital relation, yet in a case properly before it on appeal, it has full and complete jurisdiction to hear and determine ali questions involving-property rights growing out of the marital relation.
   Winch, J.; I-Ienry, J., and Marvin, J.,

concur.

This case is here on appeal. The petition asks that certain lands be subjected to the payment of a judgment, that the liens on the lands be marshaled and said premises sold, etc. By subsequent pleadings filed in the case the action has become one in partition, as there are three heirs interested in the lands. It is conceded that the premises can not be divided into three parts, but must be sold and the proceeds divided after payment of liens upon the various interests.

Parties have agreed as to the marshaling of liens, but one issue remains for the- determination of the court and that is raised in the following manner’:

One of the three heirs has filed an answer in-this court, since the appeal, in which he sets forth that a certain Ethel Howard, alias McGuire, claims to have some interest in said real estate as wife of another defendant, Vincent A. McGuire. lie further avers that she is not in fact the wife of said McGuire, but asks that she be made party, required to answer, and on final hearing be adjudged to have no interest in said premises.

Ethel McGuire answered, claiming to be the wife of said Vincent A. McGuire, and as such entitled to dower in the premises and praying that upon sale thereof she be awarded the value of her contingent right of dower therein.

Vincent A. McGuire filed an answer denying the allegations in the answer of said Ethel McGuire.

When the case was called for trial counsel for Ethel McGuire desired leave to withdraw her answer and demur to the jurisdiction of the court. The court refused leave to withdraw said answer but entertained the demurrer, which is based upon the proposition that the issue involves the question of marital relations between said Vincent and Ethel over which the common pleas court has exclusive and final jurisdiction.

Overruling said demurrer for the time being, the court heard the evidence oji the issue joined with said Ethel McGuire, from which it appeared to the satisfaction of the court that said Ethel Howard, alias Ethel McGuire, was never married to and was never the wife of said Vincent A. McGuire, and announced that it would so find as a fact. Said. Ethel McGuire refused to introduce any testimony under her answer. It remains to announce our final ruling on the demurrer to the jurisdiction, so-called.

While the proposition stated by counsel for Ethel McGuire is sound, and this court recognizes that it has no jurisdiction to dissolve the marital relation, it is of the opinion that it has full and complete jurisdiction, in a case properly before it on appeal, to hear and .determine all questions involving property rights growing out of the marital relation. We conceive the issue here made raises such a question and therefore overrule the demurrer.

Decree may be taken finding that said Ethel McGuire has no interest in the premises in question.


author: Winch, J.; Henry, J., and Marvin, J.,

text:
    COLLISION BETWEEN VEHICLE AND ELECTRIC CAR.
    Circuit Court of Cuyahoga County.
    The Cleveland Electric Railway Company v. George A. Boltz.
    Decided, November 19, 1905.

      Evidence — Witnesses—Street Railways — Duty to Keep Cars Under Control — Opinion Evidence Based Upon Results Inadmissible — Where ■ Evidence Impeaching Witness Confined to Matter in Deposition.

    1. Where the opinion of a witness as to rate of speed of a car is based, upon the results of a collision, his evidence should be excluded.
    2. Where evidence of one who was a witness at a former trial is taken by deposition, the evidence of one called to contradict him must be limited to matters about which he was examined when the deposition was taken.
    3. It is error to charge that it is the duty of the company to operate its cars in a safe manner and keep them under control.

      Squire, Sanders c& Dempsey, for plaintiff in error.

      N. Marks Flick, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

Plaintiff below, defendant in error, was a liveryman and on October 20, 1901, he let a rig, consisting of a trap and a pair of cob horses, to two ypung men, who with three others, their friends, were driving westerly on Francis street in the city of Cleveland, and turning into Willson avenue, a street running north and south, when the accident complained of occurred.

Tt seems that the team drove out of Francis street on a trot and the pole of the trap struck the right-hand front corner of a car belonging to plaintiff in error which was proceeding northerly on the westerly track on Willson avenue. One of the horses was thrown down and so injured that he had to be shot; the other horse was somewhat injured and the trap was damaged.

The liveryman brought his action against the railway company-alleging negligence on its part in the operation of its car, in that the same was run at a reckless and dangerously high rate of speed, was not kept under control by the motorman and no gong or other warning was given as it approached the intersection of the two streets named.

Verdict and judgment being for the plaintiff below, the case was brought here ' upon petition in error alleging numerous errors, all of which we have considered, but this opinion will briefly review only those errors occurring on the trial of the case on account of which -we think the judgment should be reversed.

On page 56 of the record it appears that George White, one of the young men who was in the rig, was asked:

“Q. Now, when you saw this car I will ask you to give us about the rate of speed, in your judgment?”

Over the objection of the defendant the witness was permitted to answer and said:

“A. Well, the way we were hit, and the team, I should judge about seventeen miles an hour.”

A motion to exclude this answer was overruled, which we think was clearly erroneous; the witness had previously stated, page 53, “I just about saw it (the’car), being in the back seat,” so that his opinion was evidently based upon the results of the collision as he says, and not upon any observation of the motion of the car.

The same witness (page 80) was asked the following question:

“Q. What was the reason, in fact, that you did not stop the rig before the collision ? ’ ’

Over objection of defendant he answered:

“A. Well, the ear was going so fast we didn’t have time to get out of the way. ’ ’

Motion to exclude this answer was overruled, which was error; it was for .the jury to say why the team was not stopped; the witness’ opinion was incompetent.

The motorman, whose testimony was taken by deposition, was asked upon cross-examination as to certain testimony given by him at a former trial of the case before a justice of the peace; in this manner ground was laid for his contradiction and, on the trial in the common pleas court, B. J. Sawyer was introduced for that purpose. His examination, however, was not confined to the matters brought to the attention of the motorman and thus fhe witness Sawyer was allowed to bring to the jury many statements claimed to have- been made by the motorman before the justice, which the latter had no opportunity to explain. This was clearly contrary to law. King v. Wickes, 20 Ohio, 88.

Plaintiff’s first request to charge was given and is as follows:

“The driver of the trap had a right to presume that the motor car was being run in a safe, prudent and careful manner, and that if the car was approaching a crossing at a dangerously rapid rate of speed, that the person in charge of the motor would give notice of his approach by sounding a gong or bell or otherwise giving notice of his approach.”

The use of the -word “safe” vitiates this charge, and it should not have been given.

It is the duty of the railway company to exercise ordinary care, commensurate with its business; to run its cars in a safe way would be more than is required of prudent and careful men.

Plaintiff’s third request, which was given, is as follows:

“It was the duty of the motorman to keep his car under control so that he could stop said car in time to prevent injury to persons who could not see said car on account of obstructions to view caused by the building on the corner.”

Such is not the law; all that is required of'the motorman is that he exercise ordinary care to keep his car under control.

The charge as requested should not have been given.

Plaintiff’s fourth request was given and is open to criticism as charging that it is the duty of the railroad company “to use such ordinary care as to control said car.” The phrase is dangerous and misleading; if it means that the ordinary care to be used is such as insures control of the car, it is not the law. The proper expression would be: “to use ordinary care to control said car.”

Upon page 302 of the record it appears that defendant’s counsel was cross-examining the witness Sawyer as to his memory of what occurred on the trial before the justice of the peace and the following is shown to have occurred:

“ Q. Did you have any other lawsuit the next day in Brown’s court? A. I don’t know, Sir. Crawford.
“Exception by defendant.
‘ ‘ The Court : • Sustained.
‘ ‘ Q. Did you have a lawsuit the day before ?
‘ ‘ The Court : Sustained.
“Q. Did you have a lawsuit that week?
“The Court: Sustained.
“Mr. Crawford: There is no objection.
“Mr. Flick: Well, there is objection to all that.
‘ ‘ The Court : It isn’t fair to the witness.
“Mr. Crawford: I except to the remark of the court.”

We think it was the trial judge who was not fair under the circumstances; the cross-examination was legitimate and had not been pushed to such extremes as to call forth the remark of the court. Said remark tended to prejudice the defendant’s case before the jury.

For the errors enumerated the judgment is reversed.


text:
    PROXIMATE CAUSE OF DROWNING FROM A DOCK.
    Circuit Court of Cuyahoga County.
    Theodore C. Bender, Administrator of the Estate of Frank Pesta, Deceased, v. Marcus A. Hanna et al.
    Decided, November 10, 1905.

      Negligence — Evidence, When Insufficient.

    Where the evidence as to the physical cause of an accident is largely inferential and would lead to an equally natural inference precluding negligence, it is the duty of the trial judge to withdraw . the case from the consideration of the jury.

      II. F. Payer, M. B. Excoll and B. M. Morgan, for plaintiff in error.

      E. K. Wilcox, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

This was an action brought by plaintiff, as administrator of Frank Pesta, to recover damages for the death of the latter, alleged to have been caused by the negligence of defendants.

At the conclusion of plaintiff’s evidence, the trial judge sustained a motion of the defendants to direct a verdict in their favor.

It appears that Pesta on the night he met his death was engaged with others in unloading a vessel moored at the defendant’s dock; having finished his task he left the boat with about a hundred others, and some twenty minutes later was seen struggling in the water, about one hundred feet from where he left the boat, and was drowned.

There was evidence tending to show that there were no lights on the dock and that the night was very dark. Nobody saw Pesta fall into the water and there was no evidence tending to show how be got into it.

Counsel for plaintiff in error claim that the failure of defendants to light the premises was the proximate cause of Pesta’s death.

Quoting from their brief:

“On this point, the testimony showed without any question whatever, that Pesta got off the boat onto the dock, picked up his tools and started for home. Within one hundred feet or so of the place where seen just before falling, he was next seen in the water and was there drowned.
‘ ‘ The testimony tended to show that the man was in a position where, on the one side he was confronted with a net work of tracks covered with cars moving, or liable to move at any time. On the other side, the dock amounted to a dangerous precipice, with the water at the bottom. A mis-step in one side would precipitate him into the water; or a car might run over him on the other side. lie fell into the water. It was so dark that a man could not see more than two or three feet in front of him. There is absolutely nothing in the case from which contributory negligence can be inferred. Suicide is out of the question. A case is tried on the probabilities. The plaintiff’s theory is that Pesta stepped or fell off the dock on account of stumbling or losing his footing in some way in the darkness. What other theory is possible? None.”

We think that upon this statement of the case by counsel, the judgment of the common pleas court must be affirmed.

If it be true that there is absolutely nothing in the case from which contributory negligence can be inferred, it is equally true that there is absolutely nothing in the case from which the neggence of defendants can be inferred. Both knew, or had equal means of knowing, that it was dark and dangerous upon the dock that night.

Until some fact, besides the darkness, is shown, which explains how Pesta came to be in the water, nobody will know whose fault it was that he got there.

The trial judge rightly refused to let the jury guess upon the subject. Railway Co. v. Andrews, 58 O. S., 426; Railway Co. v. Marsh, 63 O. S., 236; United States v. Ross, 92 U. S., 281; Gerwe v. Consolidated Fireworks Co., 12 C. C., 420; Connell v. Miller, etc., Mfg. Co., 19 Bull., 22.

Judgment affirmed.


text:
    TO SUBJECT PROPERTY TO PAYMENT OF JUDGMENT.
    Circuit Court of Cuyahoga County.
    Maggie Ilkovis v. Joseph Conrad et al.
    Decided, November 10, 1905.

      FraucUilent Conveyance — Who May he a Creditor.

    1. One who holds a judgment against another for a wrong sounding-in tort may maintain an action to set aside a conveyance in fraud Of creditors.
    2. Any one is a creditor who has a right by law to demand and re1 cover from another a sum of money on any account whatever.
    W. G. Rogers, for plaintiff.

      Aaron Halm and Hills, McGraw c& Van Herveer, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

This was an action to set aside a deed from defendant, Joseph Conrad, to his son, George J. Conrad, and subject the property therein described, one parcel on Broadway in the city of Cleveland and the other on Pulaski street in the same city of Cleveland, to the payment of a judgment obtained by plaintiff against said Joseph Conrad in an action in tort.

Plaintiff having brought suit on her said claim against Joseph Conrad,- trial was had which resulted in a verdict for plaintiff, but defendant’s motion for a new trial was granted on March 24, 1902. The next day, March 25, 1902, defendant executed the deed in question, to his son, but the wife of said Joseph Conrad and step-mother of this son, George, did not sign said deed or release her dower in the premises.

April 1, 1902, George deeded the Broadway property to the defendants, Cianciola, and the wife of the father signed said deed, relinquishing her dower in that parcel.

April 7, 1902, upon re-trial of said action, plaintiff again prevailed and recovered judgment against said Joseph Conrad.

We are not disposed to interfere with the present title to the Broadway property, for the Ciándolas appear to have paid full value therefor, without notice of any of plaintiff’s claim.

As to tbe Pulaski street property, in addition to the suspicious nature of tlie transaction between father and son occurring at the time it did, and the fact that the father still continues in the receipt of the rents and profits of the premises, we are satisfied, from the evidence, that the son never paid the father any consideration for the transfer.

Father and son both testify that the son paid the father $4,000 in cash at about the time the deed in question was delivered, and both claim that they kept this large amount in cash in the house, the son being unmarried and living with the father. The father says he frequently scolded the son for keeping so much money in the house, but from his own story, he did the same thing himself. He accounts for the disbursement of this money in the payment of certain debts and mortgages on the Broadway property, but we think that all the money he used in the manner lie claims, came from the purchasers of the Broadway property, all of which he himself received, both the cash paid and proceeds of the mortgage given by said purchasers.

Evidently to help out this situation, anticipating that the court might find that said $4,000, the full value of both premises, was not paid in cash, notwithstanding the sworn statement of both father and son that it was so paid, both testify that as additional compensation the son verbally agreed to support his father and mother so long as they might live. “Falsus in uno, falsus in omnibus.”

The statement is not to be believed, especially in view of the explanation accompanying it, that he made this promise to secure a release of his step-mother’s dower, she refusing to sign the deed, because if she did, after the father’s death the step-soil might turn her out of doors. She has not yet relinquished her doiuer in the 'Pulaski street properly. She probably signed the deed to the Broadway property because the purchasers did pay for that property.

We find that Joseph Conrad deeded the Pulaski street property to his son, George J. Conrad, without consideration, for the purpose of putting it beyond the reach of his creditors, and particularly for the purpose of hindering, delaying and defrauding the plaintiff.

The proposition that because the judgment of plaintiff is based upon a demand arising in tort, he is not entitled to the benefit of the statutes, 4196, 6343 and 6344, which authorize actions by creditors to set aside fraudulent conveyances, is not sustained by authority. Wait on Fraudulent Conveyances, 123, and cases cited in note.

In Stanley v. Ogden, 2 Root (Conn.), 261, quoted with approval- in Walsh v. Miller, 51 Ohio State, 462, 486, it is said: “He is a creditor who has a right by law to demand and recover of another a sum of money on any account whatever.”

Decree may be drawn as prayed for with reference to the Pulaski property.


text:
    TRANSFER. OF DEVISE BY CODICIL.
    Circuit Court of Cuyahoga County.
    James Wade, Executor and Trustee of the Estate of Nicholas Bartlett, Deceased, v. Charlotte L. Bartlett et al.
    Decided, November, 1905.

      'Wills — Construction of Codicil.

    Where the language of a codicil is, “Whereas in said will the one-third equal share in said property was devised to nay son N without the intervention of trusteeship, and whereas since the execution thereof good and sufficient reasons satisfy me that the same is required in liis case as well as in that of his sister, now I do therefore revoke the said devise and bequest to him and d'o transfer the same to his wife and children instead”; Held: That the codicil did not enlarge the trusteeship provided for the sister but transferred the devise from N to his wife and children.

      Sullivan (& Lcmgin, attorneys.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

Nicholas Bartlett by item one of his will, directed that all his household furniture, carpets, pictures, bric-a-brac, books, clothing and things used in and about his residence be divided equally between his three children, Charlotte L. Bartlett, Lydia M. G-errard and Nicholas Bartlett, Jr., the children of the deceased child to take the parent’s share.

By item two of his will testator directed that all the balance of his personal property be converted into money and divided in the same manner.

By item three of his will testator devised all of his real estate to his executor in trust, to be sold by him and converted into money, and authorized the executor to sell the same at private sale and upon such terms and conditions as should seem fit to him, and until he should so sell, to rent and receive the rents and profits, and, after sale, to divide the net proceeds as provided regarding his personal property.

This will was dated September 29, 1892, and was deposited with the probate judge of Cuyahoga county.

On August 21, 1.895, testator desiring to make a codicil to his will and not having the will before him, executed the following:

‘ ‘ Codicil to my last will, dated in 1892, and filed in the office of the Probate Court of Cuyahoga County, Ohio:
“Whereas, in that will James Wade, Esq. the executor thereof was also constituted trustee, for the due protection of the interest of my eldest daughter, Miss Charlotte L. Bartlett, in the property therein devised, for reasons well understood and that still exist; and
“Whereas in said will the one third equal share in said property was devised to my only son Nicholas Bartlett, Jr., without the intervention of trusteeship, and whereas since the execution thereof good and sufficient reasons satisfy me that the same is required in his ease as well as in that of his sister, I do now therefore revoke the said devise and bequest to him, and do transfer the same to his wife, Mrs. Minnie Bartlett, and to their children, surviving me, now Lucretia, Mary and Nicholas, instead; and
“The said James Wade, Esq., is hereby constituted trustee in that behalf also (without bond) to make effective this bequest substituted.”

After testator’s death said will and codicil were probated and plaintiff became executor and trustee as therein named, and brings this action .for a construction of said will and codicil with regard, to the nature and extent of his trusteeship thereby created.

It appears that the eldest daughter was and is insane and that the son’s habits troubled the father.

There is some little ambiguity occasioned by the wording of the codicil, in that it. seems to speak of a general trusteeship for the daughter, Charlotte, while the will provides and defines the terms of a trust upon which her real estate, only, shall be held.

The scheme of. the will is simple and clear; testator willed directly to the insane daughter one-third of his personal property; that the executor could then turn over to the guardian for her.

But as to real estate, to avoid trouble in its division and recourse to court proceedings to effectuate a sale thereof, necessary incidents should the title to one-third thereof be vested in an insane person, testator devised it in trust to his executor, whom he vested with power and discretion in its sale.

We think the codicil, so far as it relates to a trustee for Charlotte, clearly refers only to testator’s real estate as devised in trust to his executor by the third item of the will.

The sole purpose of the codicil appears to be to substitute the wife and children of Nicholas Bartlett, Jr., in his place as beneficiaries under the will. Remembering the trust therein created because of the insanity of Charlotte, testator continues the trust for the purpose expressed by himself, “to make effective this bequest substituted,” and for no other purpose, that we can discover, if indeed it was necessary in the codicil to say anything about the trust created by the will. Tt is urged by the executor that the codicil' should be construed as creating him a general trustee for all the property left to both Charlotte and the wife and children of Nicholas, but if the testator intended any such thing, he did not express such intention in his codicil and the will and codicil are readily construed without recourse to such intendment.

If it was testator’s intention by his codicil to create any other trust than that mentioned in the will, he neglected to state any terms or conditions, limiting or defining the same, or prescribing its administration, and the court can not state them for him.

The executor is directed to administer the estate as if the names of the wife and children of Nicholas Bartlett, Jr., were inserted in the place of the name of said'Nicholas Bartlett, Jr., wherever the same occurs in the will.

Judgment accordingly.


author: Winci-i, J.; Henry, J., and Marvin, J.,

text:
    DETERMINATION OF AUTHORITY OF? AGENT.
    Circuit Court of Cuyahoga County.
    American Sugar Refining Company v. The Cleveland Steel Canal Boat Company.
    Decided, December 1, 1905.

      Agency — A Question for the Court — When Evidence of Authority is All in Writing.

    Where all the evidence as to an agent’s authority is in writing, it is the duty of the court to construe it and instruct the jury whether or not the agent had authority to do the particular act in question.

      Gwrfield, Howe & Weslenhaver, for plaintiff -in error.

      Goulder, Holding <£■ Mas ten, contra.
   Winci-i, J.; Henry, J., and Marvin, J.,

concur.

By the consideration of the common pleas court defendant in error recovered a judgment against plaintiff in error, for work and labor performed in handling certain freight and for freight charges advanced and paid by the canal boat company for the sugar company.

To state all the facts of the case, which are somewhat numerous and involved, is unnecessary. Counsel in the case will understand our rulings on the errors assigned for review in this court, without such statement, and there are no particular propositions of law in the ease of interest to the bar at large.

It is clear that the crucial proposition in the case is whether or not the trial judge was right in ruling that there was no evidence proving that one Oxley was the agent of the canal boat company in the making of the certain special contract regarding the matter in controversy which the sugar company claimed it had made through him.

Oxley was shown to be an agent of the canal boat company in certain matters, as he' was of other forwarding companies; the trial judge permitted him to give his instructions from his principal, which were verbal, and to describe his duties, and from the record it is clear that he had no general authority to make the special contract claimed.

Whether or not Oxley had special authority conferred upon him to make the special contract, or at least, whether or not the canal boat company induced the sugar company to believe that Oxley had such special authority, upon which belief it acted, depended upon the construction to be put upon certain letters and telegrams which passed between the parties, and at least one of these telegrams was so worded as to require construction, the language used therein being somewhat ambiguous.

All the evidence regarding this special authority of Oxley being in writing, it was the duty of the trial judge to construe the writings and determine the question as a matter of law and instruct the jury accordingly. This he did, holding that Oxley .was not the agent of the canal boat company for the purpose claimed, and ruling out all evidence as to the terms of the contract alleged to have been made by Oxley with the sugar company.

We find no error in this ruling; the record supports it.

Having ru.led out all evidence with regard to the arrangement claimed to have been made by Oxley with the sugar company, the trial judge nevertheless submitted to the jury the questions whether or not the canal boat company had ratified it and it is claimed that in so doing an anomalous practice was engaged in.

We think this criticism of merit, but no prejudice to plaintiff in error can be predicated upon it; the error was in submitting the question of ratification to the jury at all. The record does not show ratification. The special contract claimed by the sugar company appears to ns to have been wholly without consideration. If Oxley ever made any such contract as is claimed by the sugar company, it was to the effect that he would procure the sugar to be forwarded to Cleveland by other forwarders, who were to be and were paid their charges by the sugar company, and that the canal boat company would receive the sugar at its warehouse in Cleveland, handle it for nothing and also pay part of the freight bills in distributing it to points beyond Cleveland.

As the canal boat company had no contract with the sugar company to receive and distribute any certain quantity of sugar in a season, but had agreed to the handling and forwarding only when sugar was shipped in its own boats and the freight thereon was paid to it, we can see no reason why Oxley should have made such a contract or why the sugar company should be bound by it, but he made it and communicated the fact to the canal boat company.

The latter received the sugar and distributed some of it, after it learned of the claims of the sugar company, but the matter was kept open by correspondence between the parties and we think that under the circumstances of the ease, as disclosed by the evidence, there was no proof of ratification made.

Some exceptions to rulings on evidence are called to our attention. We find no error in the rulings with regard to Oxley’s testimony as to his agency; he was permitted to testify as to instructions received bjr him and his general course of dealing. But manifest error was committed in permitting Wheeler, managing officer of the boat company, to testify that neither he nor the company, through any agent, had anything to do with making the arrangement claimed by the sugar company. This evidence was of a hearsay character, so far as it referred to the acts of an agent, and the witness’s conclusion, -so far as it referred to the agent’s authority. However, it subsequently developed that Oxley was the only agent referred to and his authority became a question of law which the court determined, arriving at the conclusion stated by the witness, and that conclusion was supported by sufficient competent evidence. We think the jury was not influenced by the improper admission of this evidence, which, perhaps, might have had undue weight with a jury. We therefore hold that under the circumstances no prejudice resulted from permitting the witness Wheeler to give his opinion as to Oxley’s agency.

Finding no prejudicial error in the record, the judgment is affirmed.


text:
    DISREGARD OF EVIDENCE AS TO INJURY NOT AVERRED.
    Circuit Court of Cuyahoga County.
    The Cleveland Electric Railway Co. v. John Stanton.

    Decided, December 22, 1905.

      What is Sufficient Charge to Disregard Evidence.

    Where evidence has been introduced concerning an injury not averred in the petition, and counsel for plaintiff subsequently asked the court to instruct the jury to disregard any claim made upon account of that particular injury, whereupon the court said to the jury: “Very well, gentlemen, counsel for plaintiff requests that the testimony regarding plaintiff’s deafness be withdrawn from your consideration,” it is a sufficient charge to disregard.

      Squire, Scmders c& Dempsey, for plaintiff in error.

      Hart, Cornfield .c6 Ccmfield, contra.

       Affirmed without opinion, Cleveland Electric Railway Co. v. Stanton, 75 Ohio State, 568.

   Winch, J.; Henry, J., and Marvin, J.,

concur.

This was a personal injury damage case in which the verdict was returned for the plaintiff.

The errors complained of have required an examination as to rulings on evidence, the weight of the evidence and the charge.

Only one ruling on evidence has been called to our attention. The court allowed the plaintiff to testify, over the objection of the defendant, that the plaintiff’s hearing was affected. Subsequently counsel for plaintiff requested the court to instruct the jury to disregard any claim made on account of deafness, whereupon the court said to the jury: “Very well, gentlemen, counsel for plaintiff requests that the testimony regarding Stanton’s deafness be withdrawn from your consideration.”

It is claimed that evidence as to deafness was not admissible under the petition in which it is alleged:

“Plaintiff says that said car started suddenly, and with a severe jerk and threw him off said car, injuring his hip and head, and injuring him all over his body. Plaintiff says that he was then taken to a hospital where he remained about three months and that ever since said injury has been under the constant care of a surgeon, and has not fully recovered from the injury to his hip, and that he is still lame and compelled to use crutches; and that by reason of said injuries received, the injury to his hip will be permanent.”

Doubtless under the allegation that plaintiff’s head was injured, he might prove injury to an organ thereof, to-wit, his ear. Perhaps, as the only permanent injury complained of was his hip, he might not be permitted to show a permanent injury to his ear, resulting in deafness, if he claimed that the deafness was permanent. However, we think the request of his counsel, stated loosely 1o the jury by the trial judge, as it was, still amounted to taking from the jury all consideration of the question of deafness, and there is no suggestion made that the verdict was excessive; and its smallness, $600, leads us to believe that the jury did not include in it any compensation for the deafness of which they had heard.

As to the weight of the evidence, there is some conflict in it, such as we find in most personal injury cases; plaintiff claimed that as the ear on which he was riding slowed up at the crossing of Ridge avenue on Lorain street, he went upon the back platform of the car for the purpose of alighting from it when it came to a full stop. He had a dinner pail in one hand and a shovel in the other; he says that passengers got on at Ridge avenue, and before the car fully stopped and before he had time to alight, it started suddenly and with a severe jerk threw him from the platform to the ground.

Defendant claimed that plaintiff attempted to alight from the ear while it was in motion, and did so in such a stupid manner that he was thrown to the ground by.reason of his own negligence. This'issue of fact was clearly made and exhaustively presented to the jury; they found for the plaintiff and we think the record exhibits sufficient evidence tending to prove the plaintiff’s claim to warrant such finding and that it would be improper for this court to say that the verdict was clearly against the weight of the evidence.

It is said that the charge was erroneous in one paragraph quoted in plaintiff in error’s brief, in which it is claimed that the trial judge assumed that the car had slowed down and was suddenly started up. We think this paragraph of the.charge should be considered in connection with the balance of the charge on the same subject which immediately precedes it and, when so considered, the charge appears to us to be without fault. The criticism of the one paragraph referred to is hardly fair; the court, just before using the language complained of, had said:

“The allegations of negligence upon which this action is based, as I have already stated, is the sudden starting of the car at or near Ridge avenue, and that this sudden starting came after the car had slowed down and plaintiff had taken a posi-, tion near the steps upon the rear platform of its ear for the purpose of alighting therefrom when it came to a stop. * * * I may say to you that if you find from the evidence that Stanton was not thrown from the car in this manner, that there can be no recovery hr this action for him, and your verdict shall be for the defendant.”

We find no prejudicial errors in the record, and the judgment is affirmed.


author: Winoii, J.; Henry, J., and Marvin, J.,

text:
    CAUTION TO JURY TO DISREGARD QUESTIONS IMPROPERLY ASKED.
    Circuit Court of Cuyahoga County.
    Kornfeld, Executrix of Leopold Kornfeld, Deceased, v. Simon Kornfeld.
    Decided, December 22, 1905.

      Trials■ — Misconduct of Counsel — Sow Cured.

    A statement by the court that counsel has persistently asked improper questions, accompanied by a caution to the jury to disregard such questions and to draw no inference as to what tbe answer would have been had the witness been permitted to answer them, cures any error because of the misconduct of counsel.

      Thomas Robinson, for plaintiff in error.

      Kerrwish, Chapman ■(& Kerrwish, contra.
   Winoii, J.; Henry, J., and Marvin, J.,

concur.

This proceeding in error was brought to reverse a judgment recovered by defendant in error against plaintiff in error on an account for personal services rendered to plaintiff in error’s testator during his lifetime, at an agreed price of ten dollars per week. The answer admits the employment, but denies the correctness of the account, alleging that it had been “balanced, settled, satisfied and paid.” The evidence fully shows without contradiction, that the rate per week was $10. The only real issue for the jury to determine was whether the plaintiff had got his money as he went along.

It is said that the judgment should be reversed because of error in ruling out certain evidence, because the verdict was against the weight of the evidence, because of misconduct of attorney for plaintiff below in the trial of the case, and for error in the charge.

The only error in ruling on evidence called to our attention is the exclusion of a portion of testator’s will offered by defendant below as tending to show provision for any possible indebtedness that might have accrued to plaintiff from the estate.

To our minds the will as offered tended to the opposite conclusion. At any rate it threw no light upon the issue being tried and was properly excluded.

Nor can we say that the verdict was against the weight of the evidence. The bill of exceptions shows that the question of the' credibility of the witnesses was particularly inquired into and, as they were before the jury which had the benefit of observing tlieir conduct on the stand, we are loath to say that the jury was not warranted in reaching the conclusion stated in the verdict.

As to the misconduct of counsel the record discloses such abuse of a lawyer’s function as to require the rebuke it received from the trial judge, but while censuring counsel and cautioning the jury, the trial judge was of the opinion that the actions of witnesses, by provoking counsel, gave excuse for more or less of the alleged misconduct complained of.

The parties to this case were both Jews. I shall read from page 272 of the record to show the view taken by the trial judge of the misconduct complained of:

"Q. But isn’t it true that after this'lady got married to her husband, a young fellow, a Gentile too—
"To which question counsel for defendant objected.
"The Court: I sustain the objection. Strike out the question so far as given.
"Mr. Robinson: And also it is misconduct on the part of the attorney on the other side.
"The Court: I sustain the objection; it is stricken out.
"Q. Bid you come there in the guise of a Jewish Rabbi with a pair of scissors to circumcise her husband shortly after the old man’s death?
"To which question counsel for defendant objected; which objection was sustained by the court.
“Mr. Kerruish: Well, that is all.
"Mr. Robinson: Now, if the court please, I wish the court to caution Mr. Kerruish not to go on with that style of examination for the purpose of affecting the jury; it is misconduct right straight along. I ask the court not to caution him that that thing must be stopped.
“Ttte Court: Your objection was sustained.
“Mr. Robinson: If the court please, that doesn’t make any difference. Tt seems to be persistent on the part of Mr. Kerruish to inject testimony irrelevant to the case in his question.
‘1 Mr. Kerruish : Oh, no, yon are doing that.
“Mr. Robinson : And that is the very thing that the Supreme Court rebuked him and reversed his ease .for, this persistent act, and Judge Neff did not caution him at the request of the attorney in his case. Now I ask this court here, on the record of the Supreme Court case, to caution him not to indulge in that style of examination again.
“Mr. Kerruish: I ask this court to caution this counsel not to give way to childishness nor to foolishness.
“Mr. Robinson: ' Now, I object to that, if the court please, that statement in the presence of the jury. We want to know whether we have a lawyer here or a mountebank.
“The Court: It isn’t very easy, even for one who has no interest in the matter at all. to determine where propriety ends in this ease or where impropriety begins. I think that during the progress of the trial questions must have been asked by counsel for plaintiff with full knowledge that they were not proper questions — a series of questions to the same witness and asked more than once. It seems to me any lawyer would know they are not proper — a whole series of questions objected to and the objections sustained — one question after another of the same character. I don’t impugn the purpose or motive of counsel, I can not do this, but they are improper. This last inquiry was improper. I can not close my eyes to the character of man —the kind of man that was testifying, and the manner of his testimony, it was well calculated to provoke such questions as have been asked him. the objections to which have been sustained. Now T have nothing more to say so far as counsel are concerned. Now T will say to the jury that the jury bas no right to infer, when a question is asked and not allowed to be answered, the jury has no right to infer that there is any fact in existence warranting that question. You have no right to infer that if it had been allowed to be answered the answer would have been one thing or another thing. Questions are asked by all lawyers that are improper, and. as a rule, thev do it not intending to ask improper questions and without time to think, or under the impulse of the moment, or provocation of the situation; such questions are asked and the objection is sustained; the. jury ought not to be influenced in the least by the fact that such question is asked; it is the answers to questions that make evidence for the, jury, not the questions that are not ans_wered. Now let the jury bear in mind, as to all such instances in the conduct of this trial where questions have been asked on either side by either counsel and' not allowed to be answered. They impute nothing; they import nothing of fact. Yoii look to the answers that are allowed to be made, to questions and to them only. I do not mean by that that you are not to take into consideration the conduct of the witness. You are not to take into consideration or be influenced by the conduct of counsel on either side. Go on.
“Mr. Kerruish: Will you note an exception to the court’s ruling on the exclusion of this evidence?
“Mr. Robinson: Will you also note an exception on the part of the defendant that the court did not caution Mr. Kerruish?
“The Court: What’s that?
“Mr. Robinson: That the court did not caution Mr. Kerruish.
“Ti-ie Court: You both have exceptions.
“Mr. Kerruish: Suppose we take another to the court’s refusal to caution my friend here as I suggested.
“Mr. Robinson: Now there you go again — if Your Honor please.
“The Court: You may note his exception. Now go on with your testimony. ’ ’

The trial judge having witnessed the scenes complained of, saw fit, after cautioning the jury, to permit the trial to go on. The caution was couched in language sufficiently plain and emphatic to guide the jury aright. We must therefore assume that no prejudice resulted from the misconduct complained of.

The error alleged in the charge relates to what was said therein regarding the fact that the defendant below did not testify in the case. She was an executor, but not thereby prevented from testifying; she was shown by the evidence to have knowledge of the facts of the case.

Reference was made during the trial to the fact that she had not testified, as well as to the fact that the plaintiff had not testified. The judge said to the jury that the plaintiff was not permitted to testify because he was suing the executor. He continued, very properly and accurately, and stated the conclusion the jury might deduce from that fact, if they found she must have had knowledge of the facts of the case. We see no error in this part of the charge, and finding no error the judgment is affirmed.


author: Winch, J.; ITenry, J., and Martin, J.,

text:
    AS TO THE VALIDITY OF A NUNCUPATIVE WILL.
    Circuit Court of Cuyahoga County.
    Sampson W. Parsons et al v. Thomas Wass et al.
    Decided, December 22, 1905.

      Nuncupative Wills — Invalid as to Real Estate — Valid as to Personalty —Witness to Whom il is Attempted lo Matee a Devise May de Disinterested.

    1. The fact that a nuncupative will attempts to dispose of both real and personal property does not make it invalid as to the personal property.
    2. Where the witnesses to a nuncupative will are also devisees of real estate under it, but there is no evidence tending to show that at the time the will was made they expected to benefit from it, it is error for the court to direct a verdict declaring the will invalid.

      Kerrwish, Chapman $ Kerrwish, for plaintiff in error.

      H. Remington, T. H. Johnson, C. R. Mégerth, E. Hitchens, E. P. Wilmot and A. W. Lamson, contra.
   Winch, J.; ITenry, J., and Martin, J.,

concur.

In the summer of 1900 Robert Wass, then about ninety years old, and his aged wife Charlotte, were living together in a house on Central avenue, in Cleveland, Ohio. In the early part of August of that year the wife died and about six weeks thereafter Robert AYass also died. So far as is known neither Charlotte nor Robert had near relatives of their blood living in Cleveland or its vicinity. For some years before they died both suffered more or less from the infirmities of age, and their wants were largely attended to by Lucy Douglass and Isabella Mead, housewives who lived near Robert and Charlotte’s residence.

On September 17th of that year, two days after Robert’s death, said Isabella Mead and Lucy Douglass went before a notary public and reduced to writing certain utterances of Robert Wass, alleged to have been made by him on the afternoon of September 14th, the day preceding his death, which words so reduced to writing they then and there subscribed as the verbal last will of said Robert Wass. On October 3d thereafter said paper writing was duly admitted to probate by the Probate Court of Cuyahoga County, Ohio, as the verbal last will and testament of Robert Wass. By the provisions of said will Lucy Douglass and Isabella Mead, the witnesses thereto, were to receive certain real property and the remainder of his property was to be distributed as follows: five hundred dollars to Wesley Parsons and the residue remaining after the satisfaction of said legacy to the children of Harry Parsons, share and share alike. Wesley Parsons and Harry Parsons were nephews of Richard Parsons, who was the first husband of Charlotte Wass.

Within two years after said will was admitted to probate certain persons claiming to be the heirs at law and next of kin to Robert Wass, began proceedings in the Court of Common Pleas of Cuyahoga county, to contest’ the will. Afterward they were joined in said contest by other persons claiming also to be related to Robert Wass, by still others claiming to.be related to Robert’s deceased wife, Charlotte, from whom they allege most of Robert’s property came, and by the state of Ohio claiming that both Robert and Charlotte died without heirs or next of kin and that -the property escheated to the state.

As shown by the bill of exceptions, at the trial of the case in the common pleas court, counsel for the proponents of the will offered and read the will, as certified by the probate judge. He then said: “I’ll not read the testimony that was taken before the probate court. I will now read the application for probate and the journal entry attached,” which he did, as also the certificate of the probate judge.

Thereupon the court asked the question: “Is the testimony part of the record of probate ? ’ ’ And the bill of exceptions continues as follows: “By Mr. Bacon (of counsel for proponents) : Yes, but for the purpose of this hearing the admission to probate and the fact that it was admitted to probate makes a prima facie ease for the defendants — the fact that it was offered and the journal entry and the order of the court. Well, I will read the testimony also.

By Mr. Wilmofc (of counsel for contestants) : We object to that part of the record being offered. By the Court: We will determine all these things at once. You may proceed.

Thereupon Mr. Bacon in behalf of Wesley Parsons, Sampson W. Parsons, Iieni'y B. Parsons, Jr., John T. Parsons, Susan E. Turner, Mary T. Parsons, Martha A. Parsons and Cora E. Parsons read in evidence the testimony taken upon application to probate the nuncupative will of Robert Wass, which is marked for identification Defendant’s Exhibit C. Said testimony is in the words and figures following, to-wit:

Then follows the said testimony in full.

Thereupon counsel for contestants moved the court to direct the jury to return a verdict that the paper writing here offered in evidence is not the valid last mil of Robert Wass, deceased.

“By Mr. Bacon: There is no proof that these people have any right in court. This will has been probated and nothing has been presented against it.
. “By the Court: Their proposition is that it is for the court to say whether or not there are some essential elements which are not present in this will.
“By Mr. Bacon: Before Your Honor passes upon that question we should like to make a motion.
“By the Court: It is not necessary. The defendants have introduced evidence aiid rested. The question is whether they have any right upon their own showing, so I don’t think that question is pertinent. ’ ’

Thereupon, over objections of the proponents of the will the court directed a verdict, as requested, to which plaintiffs in error excepted, and judgment being entered, the case was brought here for review.

In'this court plaintiffs in error, who were the “parties sustaining the will” in the common pleas court, contend that said court erred in directing a verdict for two reasons: 4

First. Because the testimony of the witnesses to the will, taken on its probate, was not properly before the common pleas court for its consideration and ought not to have been considered by it.

Second. Even considering said testimony, still • the prima facie ease made by the will and probate remained sufficient to sustain the will until the contestants offered their evidence, as required by the statute (R. S., 5864).

That the court may direct a verdict in a suit to contest a will, under certain circumstances, has been settled. Wagner v. Ziegler, 44 O. S., 60.

We are inclined to think it equally clear that the testimony of the witnesses to the will, taken in the probate court, is no part of the evidence required to be offered by the proponent of a will, under Section 5864, wherein it is provided that: “He shall offer the will and probate and rest.’’ Keeteman v. Metzger, 23 C. C., 61.

But in this case we have a record which shows that the proponents of the will read said testimony over the objection of the contestants. Having voluntarily offered such additional evidence, if its effect is to destroy the prima facie case made by the will and probate thereof, we think the parties reading said testimony must abide the consequences.

This brings us to a consideration of the second question raised by plaintiffs in error, that the effect of said testimony is not- to destroy their prima facie case; and to understand the propositions made by defendants in error on this point, we must read the statute relating to nuncupative wills:

“See. 5991. A verbal will, made in the last sickness, shall be valid in respect to personal estate, if reduced to writing, and subscribed by two competent disinterested witnesses, within ten days after the speaking of the testamentary words; and if it be proved by said witnesses, that the testator was of sound mind and memory, and not under any restraint, and called upon some persons present, at the time the testamentary words were spoken, to bear testimony to said disposition as his will. ’ ’

It is said that in five particulars, as shown by said testimony of the attending witnesses, the law regarding verbal wills was not complied with:

1. It was not made during the testator’s last illness.

2. There was no animus testcmdi, or intention that the words spoken should operate as a testamentary disposition of property.

3. There was no rogatic leslitm, or calling upon persons present to bear testimony to such disposition as a will.

4. The will is invalid because it attempts to dispose of both real and personal property.

5. The attesting witnesses were not disinterested.

As to the first three objections, we dismiss them with the suggestion that the testimony of the attesting witnesses, which we have carefully read and considered, ended, though not strongly, to sustain the will, and should have been submitted to the jury, unless, for some other reason, verdict was properly directed.

As to the fourth proposition, we find the authorities do not sustain it.

In at least one case in this state a verbal will disposing of both real estate and personal property, was sustained as to the personal property, without reference to the question raised here. Skinner v. Blackburn, 4 C. C., 325.

The Supreme Court of Wisconsin, in the case of Davis, Will, 103 Wis., 455, held that under the statute of that state a nuncupative will is inoperative to transfer title to real estate, but say (page 457) “But this does not prevent such will from being effectual as to the personal property. McLeod v. Dill, 9 Fla., 451.”

In the case of Sadler v. Sadler, 60 Miss., 251, the verbal will' under consideration attempted to pass both real and personal property. The probate of the will was demurred to, the first ground of demurrer being “because it assumed to convey real estate by nuncupation, and the court said that said demurrer was well taken, but went only to so much of the alleged will as undertakes to pass the realty. ’ ’

See also Mulligan v. Leonard, 46 Iowa, 692, and Offutt v. Offutt, 3 B. Mon. (Ky.), 162.

The fifth objection to the will — that the attesting witnesses were not disinterested — -has given us more trouble..

The law says that a verbal will shall be reduced to writing and subscribed by two competent, disinterested witnesses. The will itself and the testimony of. the two witnesses to it, as taken in the .probate court and read in the common pleas court, discloses that the testator attempted to devise certain real estate to said witnesses. The probate judge certifies that before giving their testimony: “On explanation, said Isabella Mead and Lucy Douglass, being mentioned in the verbal declaration of the testator, and benefited by having a devise made to them of a house and lot, voluntarily, and in open court, renounce all interest in the will, without prejudice to any claims that they might have against the estate^ and thereby become competent witnesses.”

That the probate judge was in error as to the effect of this attempted renunciation, is settled by the case of Vrooman v. Powers, 47 O. S., 191.

That the witness as a matter of law, had no actual beneficial interest under the will, by reason of the attempted devise of realty to them, is settled by the statute itself, 5991, for the law provides that only personalty shall pass under the verbal, will.

The presumption is that these witnesses knew the law and therefore knew that the will was ineffectual to benefit them; in other words, they are presumed to have known at the time the testator was speaking to them, that they could not by any possibility receive from, him the real estate which he said he gave them. This presumption is probably very slight, in this case; a consideration .of it, however, leads up to the proposition urged with great force by defendants in error, that if the witnesses believe that they would be benefitted by the will, then they were not disinterested, within the meaning of the statute.

We do not attempt to decide this proposition, nor is it necessary to a determination of these proceedings in error. The record discloses no evidence as to the belief of the witnesses on this subject; the presumption that they knew the law was in nowise overborne, hence the trial judge was in error in deciding, if he did, that the witnesses were not disinterested and the will for that reason invalid. All the claims urged by defendants in error in support of the judgment based upon a consideration of the testimony of the attesting witnesses as certified by the probate court, appearing to us untenable, it seems that the trial judge was not warranted in directing a verdict, and for error in so doing, the judgment is reversed.


text:
    APPROPRIATION OF LAND BY RAILWAY.
    Circuit Court of Medina County.
    The Nypano Railroad Company v. The Wadsworth Salt Company.
    Decided, 1905.

      Eminent Domain — Damages—Misconduct of Parties While Viewing Premises.

    1. Where, upon a view of the premises, one party points out to the jury how it would be impossible for special damages to occur and the other points out how they might occur, both have been guilty of misconduct and the case should be re-tried.
    2. In appropriation leases it is competent to take into consideration evidence of substantial injury and loss to the property (not common to the community at large) caused by smoke, noises and sparks occasioned by running locomotives and cars along the track in front of the property.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

This ‘is a proceeding in error brought to reverse a judgment of ■the common pleas court of said county in an appropriation case wherein the railroad company sought to appropriate a strip of land off of one side of the salt company’s land for switch purposes. The salt company claimed damages not only for the land taken, but also growing out of obstruction to the access to its premises and damages to its business of salt making by smoke and cinders from the railroad. The jury in the probate court awarded $250 for the land taken and $6,750 as damages to the residue of the tract.

It is claimed that said judgment should be reversed for three reasons:

First. Because the verdict is excessive and not sustained by sufficient evidence. On this point it is urged that the obstruction to access was slight and could be overcome at small expense, and that the jury must have given too much consideration to the claim of the salt company that its salt was soiled and rendered unsaleable by smoke from locomotives upon said switch.

It is established by the ease of Railway Company v. Gardner, 45 O. S., 309, that in appropriation cases like this, it is competent to take into consideration evidence of substantial injury and loss to the property (not common to the community at large) caused by smoke, noises and sparks of fire, occasioned by running of locomotives and cars along the track, in front of the .property. Bearing this in mind, we find that the record exhibits evidence tending to sustain the verdict, and we are not disposed to reverse the judgment because the verdict is excessive.

Second. It is said that plaintiff’s sixth request to charge should have been given. It reads as follows:

1 ‘ In this case you were sent to view the premises in controversy herein. In making up your verdict you should not consider as evidence any statements made to you during such view by any of the parties or witnesses herein or any statements of any one else. Nor should you consider as evidence anything you may have seen on such view of the premises where evidence of such fact or facts has been expressly excluded from evidence.”

The first sentence in this request is not only the law, but should have been given, if it stood alone, notwithstanding the record fails to show that the court’s attention had been called to the fact that statements had been -made to the jury during its view of the premises.

The last sentence of Section 6429, Revised Statutes of Ohio, reads:

‘ ‘ The expenses of taking the view shall be taxed in the bill of costs, and no evidence shall be. given on either side at the taking thereof.”

Had the trial judge questioned counsel proposing this charge as to whether any statements had in fact been made to the jury during the view, and counsel had replied, “I don’t know, but there may have been, and as the statute is specific on the subject, I ask the court to charge according to it,” we are of the opinion that the trial judge would have recognized his duty and plaintiff’s right, and charged as requested.

But the second sentence in this request has given us more trouble.

The evidence of facts expressly excluded from evidence mentioned therein, has reference to testimony offered with regard to damages to the business of plaintiff from the blackening of salt by smoke and cinders.

Such evidence, offered by the salt company, was improperly excluded, as we think in view of the decision of the Supreme Court in the case of Railway Company v. Gardner, supra. To be consistent, the trial judge should have charged as requested, but as we hold that it was error to exclude such evidence, it follows that the last sentence of the sixth request of plaintiff does not correctly state the law, and part of the sixth request being bad, it was not error for the court to refuse to give it.

This conclusion is reached by a majority of the court only, by construing the word “evidence” as used in Section 6429, to mean “testimony.”

Judge ITenry is of the opinion that the view can not be used by the jury as evidence, while the majority is of the opinion that the proceedings for appropriation of land are special proceedings and not a civil action, and that the jury, as assessors, are entitled to take into consideration what they may have learned on view, in arriving at the damages they may assess. (Shortly after this opinion was delivered the Supreme Court decided that Judge Henry was right. Railroad Co. v. Boland, 76 O. S., 376.)

Third. The motion for a new trial was based partly upon misconduct of the parties and the jury occurring at the view, and supported by affidavits showing that plaintiff’s counsel first spoke to the jury, or some of them, calling their attention to the fact that from the construction of the salt company’s buildings smoke from locomotives could not enter to spoil the salt. The representatives of the salt company thereupon directed the attention of members of the jury to salt which was dirty, intimating that the dirt came through windows higher up, but near the switch.

Thus both parties violated the positive injunction of the law. In such cases it will not do to say that the losing party was equally guilty. It is better that the administration of the law be kept free from the least taint of improper practice, than that a verdict rendered under such circumstances be allowed to stand as a penalty upon one party leaving the other party to hold what he may have unduly obtained thereby. There are other methods of punishing the guilty, which should be resorted to by the trial court.

There was no error in excluding the contract offered in evidence by plaintiff.

For misconduct of parties and the jury on the view of the premises, the judgments of the common pleas and probate courts are reversed and the cause remanded to the common pleas court for further proceedings.


author: Wincii, J.; Henry, J., and Marvin, J.,

text:
    ACTION BY ATTORNEY FOR BREACH OF EMPLOYMENT.
    Circuit Court of Cuyahoga County.
    The Village of Lakewood v. George N. Shaver.
    Decided, December 21, 1905.

      Attorney and Client — Breach of Contract of Employment — Damages.
    1. Lpon the breach of a contract employing an attorney for a term of years, he may bring his suit immediately, and recover in one action his full damages to the end of the term for ^ which he was employed.
    2. In assessing the damages for a breach of contract for the services of an attorney covering a period of years, where suit is brought before the expiration of the period of employment, the jury should consider the probability or improbability of the attorney being able to perform his part of the contract, as well as the likelihood that he would be able to earn money at other work, inconsistent with his employment under the contract.
   Wincii, J.; Henry, J., and Marvin, J.,

concur.

This action was for breach of a contract for personal services entered into between the parties under and by virtue of a resolution of the council of the village of Lakewood authorizing the employment of G. N. Shaver as legal counsel for the village for two years at a salary of $1,200 per year, payable monthly, “the said Shaver to draw all ordinances, resolutions, contracts and other documents necessary for the management of the legal department of the municipal government of said village, when requested by said council, shall prosecute and defend all civil cases wherein the village of Lakewood is plaintiff or defendant, and shall render opinions on legal questions pertaining to the business of said village when requested to by said council.

The two years began May 4, 1904. On January 3, 1905, some changes having occurred in the personnel of the council, it passed a resolution annulling Shaver’s contract, and on February 2, 1905, he brought his suit against the village, claiming the sum of $1,600.

It will be noticed that Shaver was discharged from his employment sixteen months before his contract was to terminate and brought his action some fifteen months before said time.

That he had a right to bring suit immediately upon breach of his contract of employment and recover in one action his full damages to the end of the term for which he was employed, even though the case was tried before the contract period had expired, is settled in Ohio. James v. Allen County, 44 O. S., 226.

The court in charging the jury, however, as to the measure of damages, and in applying the rule above stated, instructed the jury that the price agreed upon between the parties would measure the damages and that if they found for the plaintiff they shordd allow him one hundred dollars per month from the day of his discharge to the day of the trial and the same amount of one hundred dollars payable monthly from the day of the trial to the termination of the contract period, less any expenses they might find he would have had to incur for a stenographer, if he had continued in his employment.

We think this rule as laid down by the trial judge, left out some elements which the books give as going to the diminution of the contract price for the time to elapse after the trial,,which should not have been omitted; matters indeed uncertain and difficult to determine, but nevertheless to be submitted to the jury in such cases. For instance, the probabilities as to the plaintiff’s living until the termination of the term and remaining capable of performing his part of the contract.

The rule which we think should have been given to the jury is well stated in the case of Cutler v. Gillette, 163 Mass., 95, where the authorities are collected. The rule there given is the general rule applicable to ordinary employments. However, it sets forth clearly the matters to which we desire to call attention.

On page 97 the opinion in the case referred to reads:

“In estimating his damages the jury has the right to consider the wages which he would have earned under the contract, the probability of whether his life and that of the defendant would continue to the end of the contract period, whether the plaintiff’s working ability would continue, and any other uncertainties growing o\it of the terms of the contract, as well as the likelihood that the plaintiff would be able to earn money in other work during the time. But it is not the law that damages which may be larger or smaller because of such uncertainties are not recoverable. The same kind of difficulty is encountered in the assessment of damages for personal injuries. All the elements which bear upon the matter involved in the prognostication are to be considered by the jury from the evidence in each case they are to form an opinion upon which all *can agree, and to which, unless it is set aside by the court, the parties must submit.”

Now, the charge given by the trial judge in this case failed to submit to the consideration of the jury the probabilities as to the plaintiff’s continuing in life or continuing in ability to render the service contracted for. A lawyer’s ability to render service depends not alone upon th'e state of his health, but upon his continuing as a member of the bar, a matter over which the courts have control by suspension or disbarment. We think that with respect to these two elements, the case of a lawyer under contract to render legal services generally, for a specified length of time, but not intended to take all his time, is not to be distinguished from that of any other employe. See McCannon v. Peck, 9 C. C., 589. With regard to the likelihood that he would be able to earn money in other work during the time, we feel that upon principle and authority the case of an attorney is to be distinguished.

Two cases decided by the Supreme Court of Minnesota make clear this distinction. The case of Williams v. Anderson, 9 Minn., 39, was for damages for breach of a year’s contract for work and labor, with allegation that plaintiff had been discharged without cause. As to the measure of damages in such cases, the syllabus of the case reads:

“In an action upon a contract for services for a specified time at a specified compensation, where, before the end of the time, the employer discharged the employe, and the latter sues for the entire compensation, the defendant may show in diminution of damages, that after plaintiff was dismissed and during the specified time, he engaged in other business.”

The case of Horn v. Western Land Association, 22 Minn., 233, involved the breach of a contract identical in character with that of Shaver in this case. Horn had accepted an appointment from the Western Land Association, a Philadelphia corporation, to represent it as its attorney and to attend to its legal business in St. Paul, Minnesota, for $1,000 per year, payable quarterly. He entered upon his employment, rendered valuable services, but was notified before the year was out that his appointment had been made by mistake and without authority and that another had been appointed attorney for the company. Having sued the company he recovered the full $1,000 with interest on the quarterly payments from the time they became due. The Supreme Court affirmed the judgment and the third and fourth paragraphs of the syllabus of the case read:

“In such case a contract is terminated by a breach on the part of the employer, and the employe, continuing ready and able to perform on his part, is presumptively entitled to recover as damages, on account of such breach, the stipulated yearly salary and interest.
“If after such breach, plaintiff obtains other employment and compensation, inconsistent with his engagement under the contract, that is affirmative matter in recoupment which it is incumbent on the defendant to set up and establish.”

It will be noticed that botli Minnesota actions were brought after the contract period had elapsed, but the latter case furnishing the rule as to the attorney’s contract for services, its exceptional characteristic is readily incorporated in the rule as stated in the Massachusetts case cited, so that it be made to read:

“As well as the likelihood that the plaintiff would be able to earn money at other work, inconsistent with his employment under the contract.”

It may be said that such likelihood is absolutely impossible of proof. This case, however, is to go back for re-trial and we don’t know what effort may be made at the next trial to prove what is now claimed to be impossible of proof. As there may be a new trial, it is the duty of this court finding error in the charge as to the measure of damages at the first trial, to intimate what it considers the true rule to be given in the case.

Whether or not we are right in applying the rule laid down in the Minnesota case to an action brought before the contract term had expired, it is at least useful to call attention to that case, for before this case can be tried again in the court below, the full time for which the plaintiff contracted will have expired.

As to the presumptions and burden of proof where defendant attempts to show diminution of damages by reason of other employment, see Cortegan v. The Mohawk & Hudson River R. R. Co., 2 Denio, 609.

Counsel for defendant in error have brought to our attention the text-books on damages and what they have to say regarding the measure of damages where an attorney is dismissed from his employment. General language used in these books seems to warrant the claims of said counsel that in a case like this, the measure of damages would be the full contract compensation, but we have examined all authorities cited by the authors and find that none of them sustain the text to the extent of making it applicable to a case of employment for general legal services for a term of years.

The cases cited do sustain the rule claimed, as to employment for the prosecution or defense of specific litigation.

We are inclined to think the rule here adopted is more applicable to the special features of the contract for breach of which suit was brought by the plaintiff below.

At any rate, as the charge neglected to bring to the attention of the jury the probabilities as to Shaver’s serving the term of of employment, a matter mathematically demonstrable, the judgment is reversed.

We have examined other errors complained of, but for the one error alone, to-wit, in the charge as to measure of damages, the judgment is reversed.