text:
    NOTES WITHOUT CONSIDERATION IN THE HANDS OF THIRD PARTIES.
    Court of Appeals for Geauga County.
    James P. Regan v. C. C. Sherman.
    Decided, 1913.

      Promissory Notes — Burden of Proof that Plaintiff Acquired Title in Due Course: .
    By virtue of Sections 8157 and 8164, General Code, in an action on a promissory note by an endorsee wbo acquired title from tbe original bolder, when it is shown that tbe title of tbe original bolder was defective by reason of misrepresentation and fraud in procuring tbe note and failure of consideration therefor, tbe burden is on tbe bolder to prove that be acquired tbe title as a bolder in due course.

      C. A. Wilmot, for plaintiff in error.

      If. O. Bostwick, contra.
    Norris, J.; Metcalfe, J., and Pollock, J., concur.
   The plaintiff in error was plaintiff below, and in his petition the plaintiff sought to recover from the defendant, Sherman, on three promissory notes of three hundred dollars each, and the foreclosure of a mortgage securing those notes. • The three notes were given to the Morning Star Manufacturing Company. The plaintiff in his petition alleges that he is the holder in due course of these notes before due, and seeks to recover judgment on these three causes of action and a foreclosure of the mortgage.

The defendant, in his answer, admits the exeution of the notes, but says that they were given to the Morning Star Manufacturing Company for a threshing machine, and that it was represented to him at the--time of the purchase of this threshing machine, that it was a first class machine in every way, better than any other on the market, and would do better work and had no superior for the separation of grain from the straw under all conditions; and that there was a warranty that the machine was of that character; and that relying upon these representations and this warranty and trusting the representations of the company in that respect he took the machine and executed- these notes; that it turned out that the machine was utterly worthless, the representations were not true, and there was a breach of the warranty. The machine would not do any work, and they tendered it.back to the company, and the company failed and refused to make a good machine, or make their warranty good, and failed to furnish another machine, and by reason of these facts there was an entire failure of consideration for these three notes.

The case went to trial to a jury on the first three causes of action, but it appeared as to" the first note by the plaintiff’s testimony that he acquired that after its maturity; the other two he claims to have acquired before maturity. Testimony was offered by the plaintiff tending to show that he, at a certain time, and before the maturity of the second and third notes acquired them before due. These- notes, with a lot of other potes were given him, and he took them to a bank in Napoleon, perhaps the one where this manufacturing company did business, and deposited them for collateral security to his note for six thousand dollars, which he took and gave to the manufacturing company, and took no note back. That subsequently he was compelled to pay the note to the bank and took up these notes with others; and that at that time and previous thereto the company had gone into bankruptcy. When he took them first they were indorsed by the manufacturing company through its secretary.

On trial of the ease the defendant offered proof tending to establish the allegations of the answer, and we think the testimony very clearly does establish the truth of those allegations. That is, that the machine was worthless, that the representations were made as- claimed, and that the machine was tendered back, and the various other allegations in the answer there is proof tending to support.

Complaint is made of refusal to charge as requested, and the admission of certain testimony. A verdict was returned for the defendant. It is claimed here that the court erred in refusing to charge two requests, the first a request for the direction of a verdict in favor of the plaintiff as to the second cause of action, and the other a request to direct a verdict as to the third cause of action.

There was no evidence in this case on the part of the defendant tending to prove that the plaintiff, at the time he acquired these notes had knowledge of their infirmity, that is that they were given for a worthless machine, and that the consideration therefor had failed, and the misrepresentations with reference to this machine, and a determination whether under a case at law as it now stands it was required of the defendant, is a determination of all the questions in this case.

Section 8164 of the code as to commercial papers reads as follows:

“Every holder is deemed prima facie to be a holder in due course, but when it is shown that the title of any person who negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired title acquired the title in due course.”

Section 8157 states what the plaintiff must prove to show he is a holder ifl due course:

‘ ‘ One is a holder in due course who has taken the instrument under the following conditions: That it is complete and regular on its face. That he became the owner of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact. That he took it in good faith, and for value. That at the time it was negotiated to him he had not notice of any infirmity in the instrument or defect in 'the title of the person negotiating it.”

Plaintiff offered proof to show he was the owner of the note. Defendant offered proof tending clearly to establish, under this section of the statute, an infirmity in this instrument, that he had a defense to it as against the payee of the note, and this question arises, was the plaintiff under this statute under those circumstances required to prove that he became the holder of it without notice of any infirmity in the instrument? The plain reading of the statute would seem to us to so indicate, and this statute has been before a circuit court and received á construction. The case of Thompson v. The Bank, 13 C.C. (N.S.), page 515, the second proposition of the syllabus reads as follows:

"Under the provisions of Section 8110, General Code, in an article on a note by an endorsee the burden is on the holder of the note to show, when a defense has been established against the original payee, that he or some one under whom he claims acquired the title as a holder in due course.”

And the court by Judge Wildman in that case after reciting these statutes and referring to the old rule of the common law which perhaps put the burden of showing that fact upon the defendant, uses this language in his opinion:

‘ ‘ In other words if a defense is established against the original payee, then the holder who claims to be the holder in due course, in order to substantiate that claim, must prove the fourth condition to which I have referred as embodied in General Code 8157: that is at the time it was negotiated to him he had no notice of the person negotiating it. Taking the sections together the burden, after the establishing of a defense against the original payee, is shifted to the holder of the instrument to .prove as a negative fact lack of knowledge of any infirmity in the instrument or defect of the title of the person negotiating it. ITe must show that he had no knowledge of the defense so established.”

Applying that rule to this case: the defendant did show, as we think, a complete defense against the payee of this note and that thereby under these statutes and this ruling with respect to them the burden was shifted to the plaintiff then to prove that he was an innocent holder of the note in due course and had no notice of any infirmity in it. No such evidence was offered in the case as shown by this record. Now of course if that burden was upon the plaintiff then the requests to charge to direct a verdict in favor of the plaintiff was not proper and there was no error in refusing them. Again, we think the court erred in admitting exhibits A and B, letters addressed to Mr. Durfee, if I remember the name. I can not see how these letters were competent evidence in any way, but there was abundant evidence to show, that this machine was worthless without them, so they were not prejudicial to the plaintiff in error. The view we have taken of this case is that the judgment of the court below should be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    PROOF AS TO THE CORRECTNESS OF AN ACCOUNT.
    Circuit Court of Cuyahoga County.
    George S. Beckwith v. The Cleveland Telephone Company.
    Decided, December 11, 1911.

      Account — Acknowledgment of Correctness.

    While it may not ordinarily be true that an account, the items of which are disputed in an action therein, gan be said to have been acknowledged by mere implication, yet an express and unequivocal acknowledgment is by no means always necessary to afford sufficient foundation for an inference that an acknowledgment is intended.

      Joseph L. Stern, for plaintiff in error.

      Kline, Tolies & Morley, c.ontra.
    I-Ienry, J.; Winch, J., and Marvin, J., concur.
   The parties to this proceeding in error stand in the relation opposite to that in which they stood below. There, the action was for telephone rentals and for long distance toll charges covering a period of many months. It is ■conceded here- that the rental claimed was properly allowed in the verdict and judgment below; but it is contended that the proof of the correctness of the account for long distance tolls is insufficient to sustain the burden of proof raised by the denial interposed by the defendant below.

. One contention at first relied upon, is admittedly not presented on this record, namely, that the record discloses no evidence of a schedule of long distance rates as of the times of the accruing of the various items of plaintiff’s cause of action, such as to satisfy the provision of the’contract which is the foundation of the account sued on. This leaves simply a question of the weight of the evidence.

We have examined the bill of exceptions, and while it does not anywhere appear that the defendant below ever acknowledged, in terms, the correctness of the long distance toll account, still he made no objection to the items thereof when the same was submitted to Mm, and from time to time thereafter he put off the collectors with the plain intimation that he would pay if given time. It may not ordinarily be true that an account, the items of which are disputed in an action thereon, can be said to have been acknowledged by mere implication, yet an express and unequivocal acknowledgment is by no means always necessary to afford sufficient foundation for an inference that an acknowledgment is intended.

We hold that the circumstances' of these acts, as disclosed by the evidence, are such as to warrant the jury in finding, as they did find, that the account sued on was correct, and the judgment is affirmed.


text:
    FAILURE TO ESTABLISH HABITUAL DRUNKENNESS.
    Circuit Court of Cuyahoga County.
    F. W. Cadwell v. Herma M. Cadwell.
    Decided, December 16, 1911.

      Alimony — Habitual Drunkenness.

    Proof of four protracted sprees during a period of ten or twelve years, does not establish habitual drunkenness.

      B. E. Lee, for plaintiff.

      B. Pearce, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The issues upon this appeal are narrowed by the elimination of those relating to the divorce sued for by the plaintiff below and denied by the judgment of the court of. common pleas. There the defendant, having filed her answer and cross-petition, praying for alimony and custody- of the two children of the parties, was awarded the relief prayed for in such measure that the plaintiff has appealed. The ground of alimony alleged is habitual drunkenness; but the evidence shows, during the period of ten or twelve years, but four instances of inebriety on the part of the plaintiff. These instances, it is true, were of aggravated character, consisting of long sprees; but the separation of the parties appears to have been occasioned immediately, not by any of these lapses, but rather by a somewhat ill-grounded jealousy on the part of the defendant. Since she left her husband she has lived at her parents’ home in Toledo with her two children, now nine and ten years old respectively. After her departure, the plaintiff indulged in a spree which was apparently superinduced by that occurrence. Except during these sprees, the plaintiff seems to have been a sober and hard-working man. It is worthy of remark that the defendant knew, at the time she married him, that he had not always been strictly temperate. Apart from this circumstance, however, we can not hold, upon this evidence, that the plaintiff is guilty of habitual drunkenness within the meaning of the alimony statute.

See Crabtree v. State, 30 O. S., 382, 386, et seq.; Bean v. Green, 33 O. S., 444; Union Mutual Life Ins. Co. v. Reif, 36 O. S., 596.

The prayer for alimony is therefore denied.

The defendant’s prayer for the custody of the children may be sustained under General Code, Sections 8032 to 8035. Under all the circumstances we think it is better for them that they should remain, in general, with their mother, unless either shall, being over ten years of age, otherwise elect. Until such contrary election is made, the general custody of the children is therefore awarded to the mother, with the privilege to the father, at his own expense, to take and keep them in his custody for the period of two months each year in the summer vacation beginning at the close of the school year. For the support of the children, we order that the plaintiff pay to the mother, on the first day of each month, beginning on the first day of January, 1912, the sum of $30, and we adjudge the costs of this suit against him, including an attorney fee to defendant’s counsel for her defense of this action in the court below, and for his services as such attorney in this court, the sum of $175.


text:
    WHEN AN ALLEGATION AS TO THE HAPPENING OF A 6 CONTINGENCY HAS BEEN TRAVERSED.
    Circuit Court of Cuyahoga County.
    Bernard Schatzinger v. The Lakeview Land & Improvement Company.
    Decided, December 16, 1911.

      Pleading — General Denial.

    Where a petition discloses upon its face that a contract sued upon provides for the payment of the sum demanded only upon the happening of a contingency named, an answer by way of a general denial is sufficient to traverse the petition’s allegation that such contingency has been satisfied.

      P. G. Eassulker. for plaintiff i-n error.

      Frank Higley, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   .The parties stand here as they stood below. There Schatzinger commenced his action upon a contract by which he undertook to build certain houses and repair others for the defendant company for 10 per cent, of the cost, to be paid him when all said houses should be sold and paid for.

On the trial it developed that at the time the action was commenced, some of the houses had not yet been paid for, nor was it then certain that the outstanding leases thereof with option of purchase by the lessees, would culminate in outright sales. At the time of trial, however, all the houses were sold and paid for.

Upon a motion to direct a verdict, after all the evidence was in, the court took the view that the action had been prematurely brought, and that the defendant’s motion was sufficient to raise this point, notwithstanding that the defendant, by its- answer, had not specially pleaded the facts above recited, and had sought to introduce them under a general denial. The motion was therefore granted.

In assigning error upon this ruling of the court, the plaintiff in error claims that the premature commencement of the suit was a matter of abatement merely wbieb could not be raised by general denial, but must be specially pleaded under tbe code as at common law. We have examined the authorities cited from code states, some of which show that matter in abatement, especially if not clearly disclosed on the face of the petition, can not be taken advantage of by demurrer to the petition, but only by answer. Other authorities cited show that matters of abatement, not disclosed on the face of the petition, must be brought upon the record as new matter by answer, before they can be made available as a defense. In other cases, where the lapse of a certain period of time is a condition precedent to the maintenance of an action, though not an essential part of the cause of action, the non-fulfillment of such a requirement must be specially pleaded, or else it is to be deemed to have been waived by the defendant.

We find no case under the code which is squarely in point; but on principle we hold that where, as in this case, the petition discloses upon its face that the contract sued on provides for the payment of the sum demanded only upon the happening of a contingency named, an answer by way of a general denial is sufficient to traverse the petition’s allegation that such contingency has been satisfied. In other words, the petition here, having alleged that the plaintiff was not to be paid until all the houses were sold and paid for, it follows that a general denial of the allegations of the petition amounts to a traverse of this averment, and puts the plaintiff upon proof. We think, however, that the court, in directing a verdict upon this ground, should have qualified the judgment as he instructed the jury to qualify the verdict, by stating therein that it proceeded solely upon the ground of the action being preinaturely brought. Burt v. Wilcox Silver Plate Co., 41 O. S., 204.

This error may, however, be cured in this court by modification of the judgment, which, we make accordingly. As thus modified, the judgment is affirmed.


text:
    EXTENT OF A MASTER’S DUTY IN FURNISHING A SAFE PLACE TO WORK.
    Circuit Court of Cuyahoga County.
    The Marble & Shattuck Chair Company v. Stanislav Mondrzecki.
    Decided, December 16, 1911.

      Negligence — Duty of Employer as to Furnishing Safe Place to Work— Contributory and Comparative Negligence — Charge.
    1. It is the duty of an employer to exercise ordinary care for his employe’s safety, but this duty is not absolutely and at all events to provide a safe or a reasonably safe place to work and .safe or reasonably safe instrumentalities, but only to exercise ordinary care so to do.
    2. It is error to charge in a personal injury case that the plaintiff is entitled to recover if he has proved all his allegations of negligence against the defendant, without reference to the defense of contributory negligence and without qualification as to comparative negligence.

      Reed, Russell & Eichelberger, for plaintiff.

      E. G. Powell, contra.
    ITenry, J.; Winci-i, J., and Marvin, J., concur.
   The judgment in this case must be reversed for error in the charge.

At page 185 of the bill of exceptions, the court said:

“It was the duty of the defendant company, the employer, to furnish its employe, the plaintiff, with a reasonably safe place and reasonably safe instrumentalities to protect himself from such dangers in the performance of his work as in the exercise of ordinary care can be provided against.”

It is the duty of the employer, as well as of the employe, to exercise ordinary care for the employe’s safety, but as often said, the duty of the employer is not absolutely and at all events to provide a safe or a reasonably safe place, and safe or reasonably safe instrumentalities, but only to exercise ordinary care so to do. The error is repeated and emphasized at page 190.

At page 188 the court said:

‘ ‘ So, gentlemen, of the jury, if you .believe from the proof that the plaintiff has maintained, by a preponderance of the evidence, his claim that the machine or appliance furnished to him, and his instructions with regard thereto, constituted want of care or negligence on the part of the defendant, then the plaintiff is entitled to recover.”

This broad statement is, of course, untrue. It might well be that contributory negligence on the part of the employe would prevent recovery.

At page 188, again, the court said:

‘ ‘ If you find that the defendant was negligent, as charged by plaintiff, in the respects charged in the petition, and you also find that the plaintiff was guilty of negligence in the respects charged by the defendant, then I say to you, the plaintiff may still recover.”

While this is literally true under the Norris act, where the employe’s negligence is slight and that of his employer is gross in comparison therewith, it is not true as a general proposition, and should therefore have been strictly qualified. The qualification made by the court is not such as to prevent the instruction above quoted from being misleading.

At pages 192 and 193 the court charges the jury on the subject of damages, without cautioning them concerning the diminution of damages provided for by the Norris act in case the verdict is given thereunder for the plaintiff notwithstanding the latter's contributory negligence. It is true that the court, earlier in the charge, had read this provision of the Norris act, but he failed to clearly couple the extract thus read with the general and unqualified instructions in regard to the measure of damages found on the pages last above indicated.

For the errors thus pointed out, and because the charge is misleading, the judgment is reversed.


text:
    INJURY FROM FALLING OVER. PROTECTION FOR. A NEWLY MADE SIDEWALK.
    Circuit Court of Cuyahoga County.
    The City of Cleveland v. Adela Brooks.

    Decided, November 15, 1909.

      Municipal Corporation — Negligence in Guarding Neu> Cement Bidewallc —independent Contractor.

    A municipal corporation is not liable to one injured by stumbling over a wire netting placed around a newly made cement sidewalk to prevent pedestrians from stepping upon it, by independent contractors employed by the municipal corporation to lay the sidewalk, the municipality having no notice, active or constructive, of the manner of guarding the sidewalk.

      Newton D. Baker, for plaintiff. '

      F. G. Scott, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.

      Affirmed without opinion, 83 Ohio State, 468.

   Adela Brooks was injured by a fall over a wire netting stretched across the sidewalk on the southerly side of Euclid avenue in the city of Cleveland. The sidewalk, at the point .named, was at the time being relaid by Leek & McGrath, under a contract made by them with the city. The evidence tends to show, and for the purpose of this opinion will be treated as showing, that this netting was so stretched across the sidewalk by Leek & McGrath as to pr.event pedestrians from stepping, on to the newly-laid cement. The netting was not high enough to prevent one who in walking brought his feet against it from falling over, and was well calculated to cause one thus walking against it to fall.

The city offered no evidence on the trial of the case.

The evidence of the plaintiff having been introduced, the jury • was charged and a recovery was had.

Before the ease was submitted to the jury a motion was- made by the city that the court direct a verdict in its favor. This motion should have been sustained.

There was no evidence tending to show that this netting had been across the sidewalk for a sufficient length of time so that it was the duty of the city to know about it, and the only ground upon which the plaintiff below could recover was upon the claim that the city was liable for any damage resulting from the obstruction of the sidewalk in this manner by its contractor.

In the case of City of Circleville v. Neuding, 41 Ohio St., 465, it was held:

“Where a city contracted for the construction of a cistern, eighteen feet wide and twenty feet deep, in a street, and before the cistern was completed a horse fell into it and was^ killed, for want of sufficient protection around and over the excavation, to guard animals in the proper use of the street from danger, held, that the city was liable for the loss of the horse, although it did not reserve or exercise any control or direction over the manner of doing the work, except to see that it was done according to specifications which were a part of the contract. ’ ’

In the opinion the court called attention to the fact that such an excavation in a street, unless protected to guard persons and animals using the street from falling into it, was necessarily dangerous, and that the city was under statutory obligations to keep the streets open and in repair and free from nuisance, and it could not cast this duty upon the contractor so as to relieve itself from liability to one who should receive any injury. And this language is used:

“But the public in the use of the streets may rely upon the legal obligation of the city to beep them free from dangerous places, or if such places become necessary to be made in the course of an improvement or work necessary or proper for the city to do, that it shall so guard them that no injury shall result in the ordinary use of the street.”

This was a case then in which the very thing to be done made a dangerous place in the street.’ The city knew that such dangerous place must be made in the street, and the law is that the city was bound to see that a proper guard should be placed to keep from falling into this dangerous place any person or animal traveling upon said street, but in the case before us it isn’t that there was a dangerous place in the street that causer) the accident, but that of placing a guard to keep people from going upon a certain part of the street, not because that part of the street was dangerous by reason of the work there being done, but to prevent from going upon a place which it would be disagreeable for them to walk upon, which guard was so placed as to make it dangerous.

In the case of Covington & Cincinnati Bridge Co. v. Steinbrock and Patrick, 61 O. S., 315, the syllabus reads:

“When danger to others is likely to attend the doing of certain work, unless care is observed, the person having it to do is under a duty to see that it is done with reasonable care, and can not, by the employment of an independent contractor, relieve himself from liability for injuries resulting to others from the negligence of the contractor or his servants.
‘ ‘ The ruined walls of a building of the defendant, measurably destroyed by fire, were left standing, a 'menace to the public and the property of others in the vicinity. He was ordered by the inspector of buildings to take down the walls; and, for the purpose, employed a contractor to do the work, for an agreed consideration, and stipulated he should save him harmless for injuries to others in doing the work. The east wall, by reason of the negligence of the contractors in attempting to pull it down, fell outward upon and injured the property of the plaintiffs situated across an alley from the wall. Held-. The defendant is liable for the injury.”

And at page 232 of the opinion in that ease, this language is •used:

“The doctrine of independent contractor, whereby one who lets work to be done'by another, reserving no control over the performance of the work, is not liable to third persons for injuries resulting from negligence of the contractor or his servants, is subject to several important exceptions. One of these * * * is where the employer is, from the nature and character of the work, under a duty to others to see that it is carefully performed.”

And then quoting from the case of Bower v. Peate (1 L. R., Q. B. Div., 321, 326) it is said:

“That a man who orders a work to be executed from which in the natural course of things, injurious consequences to his neighbor must be expected to arise, unless means are adopted by which such consequences may be averted, is bound to see to the doing of that which is necessary to prevent mischief, and can not relieve himself of his responsibility by employing some one else — whether it be the contractor employed to do the work from which the danger arises or some independent person — or . to do what is necessary to prevent the act he has ordered done from becoming unlawful.”

In the case of City of Columbus v. Penrod, 73 O. S., 609, the city had given a license to Penrod to use a part of the street for the placing of building materials for use in the construction of a building on adjacent property, and the court held that where such a license is given to do a thing which would be in the nature of things dangerous, the city would be liable if it was so negligently done that an innocent party was injured by reason thereof. But, they say, this is not the rule where the thing to be done is not necessarily dangerous, and having called attention to the eases which hold that where work is to be done in a street either by a licensee or by a contractor which is necessarily dangerous, the city is liable for the negligence of the licensee or the contractor, the court say:

“These cases, read in the light of the facts, an excavation in the sidewalk, necessarily dangerous, in the one ease, and in the other an obstruction in the street, not necessarily dangerous, consisting of building materials, are not in conflict, and the present case being one of an obstruction in the street, not necessarily dangerous, we are not required to determine whether Clark v. Fry, in so far as it applies to excavations or obstructions necessarily dangerous is too broad, or whether in a ease of permit to the owner of adjacent property to make an excavation in the street for some lawful purpose incident to the use of his property, it would be the duty of the city to see that a nuisance is not created.”

But the court says in the syllabus in this case, as follows:

“A permit by a city to use part of the street for the placing of building materials for use in the construction of a building on the adjacent property is the mere regulation of a right of the property owner to make such use of the street and not a license to do an act in the street which bnt for such license would be illegal or a nuisance, and a city by giving such permit is not charged with the duty of seeing that the place is guarded, and will' not be liable in damages to a person injured in consequence o'f the omission to guard such place with barriers or lights unless it had notice, express or implied, of such omission and after such notice was guilty of negligence.”

We are of opinion that in the ease at bar there was no obligation npon the city to see to it that the guard which the contractor might place abont the work that he was doing, which work would not in itself constitute a danger to the public, was not dangerous; or in other words, the city was not bound to see that the work was so guarded that there could be no danger from the guard itself.

The result is that the judgment of the court of common pleas is reversed and the cause remanded for further proceedings.


text:
    DISTRIBUTION UNDER. A WILL.
    Circuit Court of Cuyahoga County.
    Arthur R. Teagle, Executor, v. Arthur R. Teagle et al.
    Decided, November 15, 1909.

      Wills — Construction.
    A testator devised the residue of his estate, “to the surviving children (or their heirs) of my sister Elizabeth, and my sister Mary, and my brother Arthur, share and share alike.” Held: There being nineteen living children of Elizabeth, Mary and Arthur surviving at testator’s death, and a grandchild of Elizabeth, child of her son who died before testator, that the residue of testator’s estate should be divided into twenty equal parts and one part distributed to each of the children of Elizabeth, Mary and Arthur and one part to the grandchild of Elizabeth.

      Wm. M. Raynolds, for plaintiff in error.

      Thompson & Sine and F. A. Quail, contra.
    Marvin, J.; Winci-i, J., and ITenry, J., concur.
   Tbe only question to be determined in this case is tbe meaning of Clause 8 in tbe last will and testament of Frank Teagle, deceased, which, will was duly admitted to probate. That clause reads:

“All the rest and residue of my .property of every description I give, devise and bequeath to the surviving children (or their heirs) of my sister Elizabeth Hollis Teagle Ferris, of Salthorp, Swindon, England, and my sister, Mary Teagle Godwin, of Seagry, England, and my brother Arthur R. Teagle, of Cleveland, Ohio, share and share alike.”

The sister Elizabeth named was the mother of several children who survived the testator, and of one child who died before the execution of the will, leaving a child. The sister Mary was the mother of several children, and the brother Arthur was the father, of several children.

The testator left other brothers, and at least one other sister. To some of these and to the children of some of these, bequests were made in the will. To some no bequests were made.

It is urged on the one part here that the property bequeathed by this clause of the will should go one-third to the sister Mary Teagle Godwin, one-third to the brother Arthur R. Teagle, and one-third to the children of Elizabeth. Our attention is called to a great number of authorities on the meaning of the words share -and share alike, and the holdings by the courts are not altogether uniform, nor can they all be reconciled with one another, but we think the natural meaning, the plain obvious meaning, of the words as used in this.will is that whoever the parties are to whom this property is to go, each is to take an equal share with the others, so that if anything is given by this will to Mary or Arthur, each must taken an equal share with each of those who take under the bequest to the surviving children (or their heirs) of Elizabeth. “Share and share alike” to the ordinary mind means in equal parts, and unless the words are used in such wise as to show that some other meaning is to be attributed to these words, they must be held to mean in equal parts. And we think clearly from the language of the will itself, and a fair construction of the words, that nothing is bequeathed to Mary and nothing is bequeathed to Arthur, but that the children of Mary and the children of Arthur are the beneficiaries provided for. This construction requires no change in the wording of the clause at all.

As was said in argument of this case applied to other things than, persons this would be the other meaning.

Suppose one said I have been traveling in Europe and 1 was much impressed with the art exhibits of Paris, and Florence and Borne. Would anybody d<oubt that what was meant was that he who said it was much impressed with the art exhibits of Paris, and the art exhibits of Florence, and the art exhibits of Borne ? Suppose one said, I have been traveling about the country and I find great beauty in the autumn leaves of Cuyahoga county, and Summit county, and Lorain county. Would anybody doubt that what was meant was that great beauty was found in the autumn leaves of each of these several counties, and not simply that the great' beauty was found in the autumn leaves of Cuyahoga county, and that great beauty was found, without reference to autumn leaves, in Summit and Lorain counties? The question answers itself.

Finding as we do that the meaning of the testator is perfectly plain in so far as bequests are made to the children and not the parents, certainly so plain that it would require such evidence of extrinsic facts as to deprive the words of their ordinary meaning, and finding in this ease, if all the evidence produced were competent, no such extrinsic facts as would justify a holding that these words do not mean what they seem on their face to mean, we reach the conclusion that the bequests are to the children of Mary and Arthur, as well as to the children of Elizabeth.

There remains, however, the question of the right of the grandchild of Elizabeth, Francis J., son of her deceased son, Frederick, who died prior to the date of the will. We are of opinion and hold that the words “or their heirs” include this grandson of Elizabeth.

The only words which we find to be ambiguous in this clause of the will are these words “or their heirs,” and we must suppose that the testator meant something by the use of these words, and the most obvious meaning would seem to be that he meant to include the children of any one of Elizabeth’s children not living.

One of Elizabeth’s children died since the will was admitted to probate, and of course the parties who would be entitled to the estate of that child would take his share here. ' This brings us to the conclusion that the estate should be divided into twenty equal parts, and divided one part to each' of .the children of Mary, one part to each of the children of Arthur, one part to each of the children of Elizabeth, now living, one part to the grandchild, Francis J., and one part to the proper representatives of her deceased son, Francis William.

The decree to be taken will be the same as that taken in the court of common pleas, except that the share which Francis William would take, if he were living, should go to the administrator of his estate, or the executor of his will, instead of directly to his children. This, from the fact that when the testator died, the interest of Francis William vested and whatever personal property was coming to him from this estate would be a part of his estate- to be administered upon.


text:
    DETERMINATION OF VALIDITY OF NOMINATION PAPERS.
    Court of Appeals for Wood County.
    The State of Ohio, on Relation of Thomas J. Miller, v. George M. Brubaker et al, as Deputy State Supervisors and Inspectors of Election in and for Wood County.
    Decided, October 31, 1913.

      Elections — Authority of Board of Deputy State Supervisors to Determine Validity of Nomination Papers — Sections 4818, 5005 and 5006.
    1. -Section 4818, General Code, confers general authority upon deputy state supervisors of elections To pass upon the validity of nominating papers.
    2. The filing of written objections with the deputy state supervisors of elections to the validity of nominating papers then in the hands of that board clothes the board with authority to pass upon the validity of such papers, and the jurisdiction of said board in that behalf is in no way affected by the subsequent withdrawal of said objections.

      N. B. Harrington and E. M. Fries, for relator.

      Clyde B. Fainter, Benjamin F. James, Datus B. Jones, Bufus B. Moore and Earl D. Bloom, contra.
    Richards, J.; Kinkade, J., and Chittenden, J., concur.
    Appeal from Court.of Common Pleas of Wood County.
   This case is pending in this court on appeal, and I will announce briefly the conclusion at which the court has arrived. The case has been submitted on the pleadings and evidence and certain statements of counsel.

It appears from the pleadings and the evidence that the nominating paper on behalf of the Citizens party was filed with the board of deputy state supervisors of election at Bowling Green on August 30th, 1913, and that on the 4th day of September a formal written objection thereto was filed with that board by Rufus B. Moore. Thereafter this written objection which had been filed by Mr. Moore was withdrawn; just the circumstances under which it was withdrawn do not appear in the evidence, but it is sufficient for the purposes of this case that it appears from the evidence that the paper was carried away from the office of the deputy state supervisors of election by him. Subsequently other written objections were filed by him to certain nominees named by the Citizens party in the city of Bowling Green, and later the matter came on for hearing before these deputy supervisors of election. They found that the objections which had been filed were well taken and should be sustained, and held that the names of the nominees for the Citizens ticket should not be placed on the ballot to be voted on November 4th of this year.

This action in mandamus was brought immediately thereafter by Mr. Miller as a tax-payer, citizen and resident of the city of Bowling Green, asking an order of the Common Pleas Court of Wood County, in which the petition was filed, that these names be ordered placed on the ballot, including also in his petition the names of four candidates for ward eouncilmen as well as the candidate for mayor and other city officials.

Our attention has been called to Section 4818 of the General Code and Sections 5005 and 5006 of that code. I will not take the time to read these sections, but it seems from the language of the section first cited that general authority is given to the deputy supervisors of election to pass upon the validity of nomination papers. Section 5005 has in it a provision, in substance, that if written objections are not filed within five days after the nomination papers are filed with that board that they shall be held valid, if they are in apparent conformity with the statutes.

It is contended by counsel for plaintiff that the first written objection that was filed can not be considered because it was withdrawn by the person who filed the same with the board, and that therefore the board was powerless to consider and pass upon the validity of the nominating papers.

We do not think it necessary to decide, and do not decide, whether formal objections in writing must be filed with the board of deputy state supervisors before they have power to pass upon the validity of nominating papers. We think that the first written objection, which, was filed on September 4th, was in and of itself ample to clothe the board with authority to pass upon the validity of the nominating papers which had been filed, if written objections were necessary for that purpose; and, it is clear to this court that it could not be deprived of its jurisdiction or power by the withdrawal of that paper. It is not only reasonable to suppose, but from the facts disclosed in this case it is clear, that many were interested in these proceedings besides Mr. Moore who filed the objections, and he could not deprive the board of jurisdiction by carrying off that paper from the office of the board. To so hold would open the door to fraud. A case might readily be supposed where a person filing the written objections would do so having in his mind the plan of withdrawing them as soon as the five days had elapsed, his scheme being to dissuade others from filing like objections. We hold that power to-act was not taken away from the board by the removal of this paper from its office, any more than the powers of a court to rule on a demurrer would be ended by a removal of the demurrer from files of the court. The principle is somewhat similar to a case brought for the contest of a will. If, in such a case, the plaintiff should see fit to wait until the time for other actions of that sort had elapsed and then withdraw his petition, and if he could by so doing deprive others of the right to contest the will, it would result in grave injustice.

Such procedure has been condemned by the Supreme Court in Bradford v. Andrews, 20 O. S., 208. The court speaking through Welch, J., say on page 220:

“When the'jurisdiction of the court has once attached in such a case, I suppose it is not in the power of the petitioner to withdraw the action against the will of the other parties in interest. The status of the parties, as plaintiffs or defendants, is merely nominal. Those named as defendants have a right, equally with the nominal plaintiff, to insist upon a contest. Otherwise, there would be no safety to the defendants who happened to be identified in interest with the plaintiff, except in the commencement of separate similar actions, or the filing of a cross-petition by each. We need not, however, decide this question, for the precaution was taken in the present ease to file such cross-petition before the period of limitation had expired or the original petition had been dismissed.”

Similar rulings have been made in the federal courts denying the right of petitioners in bankruptcy to withdraw from the proceeding. In re Bedingfield, 96 Fed., 190; In re Cronin, 98 Fed., 584. See also State, ex rel Buel, v. Joyce et al, 87 O. S., 126.

The board of deputy state supervisors acted favorably upon the written objections which had been filed by Mr. Moore, and the law seems to have been uniformly held in an unbroken series of decisions in this state that the action of the board under these circumstances is final. Necessarily the power to render a final decision in eases of that kind must be reposed by the-General Assembly somewhere and in somebody, and the General Assembly has seen fit to repose that power in the power of deputy state supervisors of elections and if they shall disagree it is provided that the matter shall be referred to the Secretary of State and the decision of that officer is made final by Sections 5006 and 5007, General Code.

On the hearing of this case no fraud was shown nor claimed to have been committed by the board of deputy state supervisors. That board held that the written objections were well taken and sustained them, and this court is without authority to interfere with the conclusion reached by that body.

The announcement which has been made perhaps .does not determine the status of certain of the nominees for ward offices, but we fail to see under the showing made in the pleadings and the evidence such a clear right in the relator as would entitle him to the relief as to the ward candidates, and as was state in 87 O. S., 126, before a party is entitled to the relief which is provided by a writ of mandamus the right should clearly appear. We hold that the relator has not made such a showing as entitles him to the relief sought in this case and his petition will therefore be dismissed.


text:
    FREEDOM OF SPEECH JN DISCUSSING FITNESS OF CANDIDATES FOR. OFFICE.
    Circuit Court of Cuyahoga County.
    James M. Shallenberger v. The Scripps Publishing Company; and Thomas H. Bushnell v. The Scripps Publishing Company.

    Decided, November 23, 1909.

      Libel — Expressing Opinion as to Candidate’s Fitness for Office — Malice Unimportant.

    If one is of the opinion that a candidate for the office of judge of the common pleas court is unfit to be a judge, he has the right to say so, and it is a matter of indifference whether, in giving expression to such opinion, he was influenced by malice or not.

      H. H. McEeehan and Gage, Wffbu-r WilUmis, for plaintiffs in error.

      T. H. HogseU'and G. M. Dahl, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.

      Affirmed without opinion, Shallenberger v. Scripps Publishing Co., 85 Ohio State, 492.

   The question in these cases is whether the court erred in sustaining in each case a demurrer to the petition.

The language used in this opinion will speak of but one petition, because the same is equally applicable to each.

It would not be profitable to set out at length the allegations of the petition, nor the entire article published which, it is charged, is the basis for recovery. The carefully prepared opinion rendered in the court below seems to us to fully justify the decision there made.

In argument here that opinion is criticized because of the language used in reference to a number of the statements in the published article, that such language in a publication would not be libelous if the criticism of the candidate were made in good faith. It is urged that this begs the real question, because the petition here charges that the language was used maliciously and for the purpose of injuring the defendant. The exact language of the petition in that regard is this:

“Plaintiff further says that on the said 21st day of August, 1908, with the intent and for the purpose of wilfully and maliciously injuring the plaintiff in his good name, character, and reputation, and in his said profession, did write, compose,” etc.

Because of this language, it is said that the court below was not justified in treating the criticism, of the plaintiff as having been done in good faith.

If this language carries with it more weight than the statement that “the publication was false” the question still remains whether a fair construction of the language used was libelous. It seems to us that it is- clearly shown in the opinion of the learned judge below that a fair construction of all the language is, that in the opinion of the writer the plaintiff was unfit to be a judge of the court of common pleas, and that being true, we hold that it is a matter of indifference whether in giving expression to such opinion he was influenced by malice or not; if it was the writer’s opinion, he had a right to say so, -regardless of what feelings he may have had toward the plaintiff.

, As has already been said, we content ourselves with expressing our concurrence with the opinion of the court below, and we do not regard the criticism of the use of the words “in good faith” made in the argument here, as justifying any change from the conclusion there reached.

The judgment of the court of common pleas is affirmed.


text:
    STORE PATRON INJURED ON ESCALADER.
    Circuit Court of Cuyahoga County.
    The May Company v. Cora Cummings.

    Decided, November 22, 1909.

      Negligence — Assumption of Rislc — Knowledge of Defect.

    One who goes upon an escalader with knowledge that it is out of order and in a dangerous condition, can not recover if she is injured by reason of the defect of which she knew:

      Hoyt, Dustin, Kelley, McKeehan (& Andrews, for plaintiff in error.

      McGrath & Stern, contra.
    Marvin, J.; Winci-i, J., and Henry, J., concur.

       Affirmed without opinion, Cummings v. May Company., 83 Ohio State, 503.

   The parties to this action here stand in a relation opposite to that in which they stood in the court below.

The terms plaintiff and defendant used in this opinion refer to the parties as they stood in the original ease.

Suit was brought by Cora Cummings against the May Company to recover for damages suffered by her on the 12th day of February, 1907, while she was in the store of the defendant as a patron.

The department which she was about to patronize was on the second floor, necessitating her taking some means of going up one story. To do this, she took what is called an ‘ ‘ escalader, ’ ’ which is a constantly moving pathway, constructed on an incline, reaching from the first to the second floor of the store of the defendant, so that one stepping upon it is carried, without taking any steps, from the first to the second floor, or from the second floor to the first floor. While on this escalader, going up, her skirt was caught upon some device connected with the escalader, and she was thereby injured. She charges that this injury was caused solely by the negligence of the defendant. The language of the petition charging negligence is in these words:

“Which negligence consisted in the failure of said defendant to keep said escalader in .repair, and in safe and proper condition, and in permitting the same to be and remain in a defective and dangerous condition as above mentioned; that the defendant was negligent in not having and keeping the aforesaid hinges or knuckles covered with rubber or some other substance that would avoid the slippery condition thereof; and was negligent in failing to have an attendant in charge of said escalader to properly warn, conduct and direct its patrons' while using the same; and it was negligence on the part of the defendant to use and operate said escalader while in said defective condition.”

One of the defenses set up by the defendant was that the plaintiff contributed by her negligence to the injury which she^ received. The result of the trial in the court below was a verdict and judgment for plaintiff.

By proper proceedings the case is here for review.

At the close of the evidence on the part of the plaintiff, the defendant moved the court to direct a verdict for it.' This motion was overruled, and this is charged as error.

The testimony of the plaintiff herself shows that she was entirely familiar with this escalader and its use; that within a week or ten days of the time of her injury she was upon it; that it then exhibited the same want of proper covering for the knuckles that it exhibited at the time of her injury. Her testimony also shows that her injury resulted from the slipping of her feet upon these knuckles. But for such slipping she would not have been injured. She not only had used the escalader at the time spoken of about a week prior to her injury, but she had used it frequently within a few months of her injury, and she observed, as she says, this defective condition, and not only so, but she had been employed in this store and knew all about the way in which the escalader was used and to what extent there was any supervision of it by anybody. She knew too that the second story could be reached by a passenger elevator, in constant operation, and that this story could also be reached by a convenient stairway. The very defects which she says existed in this escalader were open,-plainly to be seen, and she had actual knowledge of their existence as shown by her testimony.

We think clearly that she was not entitled to a recovery and that the court below should have directed a verdict in favor of the defendant.

Numerous errors are complained of as to the charge of the court, but, holding as we do, it would be fruitless to discuss these various questions. •

On the part of the defendant in error it is urged that the defendant below was bound to exercise the same c^ire for, the protection of the plaintiff as is required of a common carrier of passengers.

• The argument is made on the part of the plaintiff in error that this proposition is not the law. But it-is unnecessary here to determine this question, because whatever duty was owing by the defendant to the plaintiff, her own negligence, as shown by her own testimony, so contributed to her.-injury as to preclude her right to recover.

The eases cited and quoted from in the brief ¡of the plaintiff in error fully sustain this proposition. I

We content ourselves with a quotation from bjut one, namely, Railway & Terminal Company v. Hancock, 75 Ohio St., 88, the third clause of the syllabus of which case reads as follows,:

“In a suit against an interurban electric railway company for injury to a passenger by reason of his arm being struck by a car passing upon an adjoining track, it is not error for the court to instruct the jury that if they find that there were four iron bars, extending horizontally across the window of the ear, equally distant from each other, the top one approximately twelve inches from the windowsill, and that plaintiff while sitting in the car permitted his arm or any part thereof to extend or project out beyond or over the rods, and that said act directly contributed to the accident, the plaintiff would be guilty of contributory negligence and can not recover.”

And in the opinion by Judge Spear, at pages 111, 112, this language is used:

“To say that as a rule of law a passenger on such car may be heedlessly negligent, exposing his person to needless danger, and visit the consequences on the Interurban Company, upon showing negligence on its part, appears to us to be without reason, nor is it supported by authority. On the contrary, the generally recognized rule is that a passenger can not cast upon the carrier responsibility for an event which, except for his own contributing negligence, would not have happened, and the law, as always held in this state, does not undertake, when both parties have been negligent, to measure the degree of the negligence of each.”

We have carefully examined the supplementary brief filed by the defendant in error in so far as the position is there maintained that one may select between several paths in going from one place to another and is not necessarily negligent because of selecting the least safe path. We do not regard that point as important in the present case. It is not because ‘the plaintiff selected the least safe path, but that she selected a pathway, the defects of which were known to her, that precludes her right to recover. The ground upon which this reversal is made seems to be so thoroughly well established in Ohio that we have not felt it incumbent upon us to go outside of the state for authorities upon the question. See Baker v. Pendergast, 32 Ohio St., 494; Village of Conneaut v. Naef, 54 Ohio St., 529; City of Dayton v. Taylor’s Adm’r., 62 Ohio St., 11.

In this case the language of the court is such as to indicate that the plaintiff was not entitled to recover because of an assumption of risk, and with the same propriety it might be said in this ease that the plaintiff assumed the risk, with full knowledge of the danger; but whatever term be used, the result is- the same, that the plaintiff was negligent, by reason of which she can not recover. See also Norwalk v. Tuttle, 73 Ohio St., 242.

Judgment reversed.


text:
    APPROPRIATION OF LAND FOR PARK PURPOSES.
    Circuit Court of Cuyahoga County.
    Frank Seither et al v. City of Cleveland.

    Decided, December 17, 1909.

      Appropriation — Remaining Lands — Measure of Damages.

    1. In an appropriation case, where the defendant owns land on both sides of a railroad and the corporation appropriates all he owns on one side of the railroad, it is for the jury to say whether the land on the other side of the railroad is such “remaining portion” of the defendant’s lands as to entitle him to compensation for depreciation in its value by reason of the -talcing of the land appropriated.
    2. In estimating the value of land sought to be appropriated for park purposes, its adaptability for park purposes is a proper element of value for the jury to consider.

      Smith, Taft & Arter, for plaintiff in error.

      N. D. Baker, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.

      Affirmed without opinion, City of Cleveland v. Seither, 86 Ohio State, 357.

   Tbe city of Cleveland having decided upon a system or plan of public parks for the use of its inhabitants by proper legislation, appropriated certain lands of the plaintiff in error. Othér lands adjoining or near to these lands were some appropriated and some purchased by the city. As to those not purchased, and with the owners of which the city could not agree, proceedings were instituted in the court of insolvency of this county, to have the compensation to which the owners of the several tracts appropriated would be entitled assessed by a jury. Among those whose compensation was thus to be ascertained were the plaintiffs in error. They owned a parcel of land through which a railroad passed, the grade of the railroad being considerably lower than the surface of the adjoining land. There was a bridge over the railroad, uniting the land which was on opposite sides of the railroad.

The lands appropriated were wholly on the westerly side of the railroad, the easterly boundary being the line of the railroad’s right-ofrway. The appropriation included all of the land owned by plaintiffs in error on that side of the railroad. The plaintiffs in error sought to show that the appropriation of this land on the westerly side of the railroad would depreciate the value of the land on the easterly side and that therefore they would be entitled to have as compensation not only the valúe of the land taken, which was something more than nineteen acres, but a sufficient amount to compensate them for the depreciation of the value of the land which would remain on the easterly side of the track.

The language of the statute fixing the oath to be administered to the jury requires that they assess the compensation which ought to be paid to the property owner for the land appropriated and, in addition thereto, ascertain how much less valuable the remaining portion of said property will be in consequence of such appropriation.

In the present case the court left to the jury to determine whether the land on the opposite side of the railroad from that appropriated, was a residue or “remaining portion” of the premises of the plaintiffs in error in such wise as to entitle them to compensation on account of its being rendered less valuable by reason 'of appropriation. This, the plaintiffs in error urge, was erroneous, and insist that the court should have said to the jury that such land was a “remaining portion” and that the jury should inquire how much, if any, less valuable such remaining portion was by reason of the appropriation.

There was no error on the part of the court in submitting this question to the jury. The question has frequently been before the courts and the authorities are that where lands are physically separated in such wise that it is a question whether the two parts can be used together, that question shall be submitted to the jury. See Kossler v. Railroad Company, 208 Pa. St., 50.

A more serious complaint made, however, on the part of the plaintiffs in error is that the court excluded from the jury all evidence as to the value or fitness of these premises as a public park. Evidence had been introduced as to the fitness of these lands for a park. Such evidence, or a considerable part of it, went in under the objection of the city, and the court at the request of the city said to the jury in its charge:

‘ ‘ If you 'find from the evidence that the only demand for this property for the purposes of a public park is the demand of the city of Cleveland for that purpose, then I say to you that you must not consider any of the evidence presented in this proceeding so far .as it shows the value of this parcel for such purpose. You must not consider the adaptability of this land for public park purpose at all, unless you first find that there is some general demand for the land for that purpose. ’ ’

The court again said to the jury in directing them how to ascertain the compensation to be paid for the land taken:

“But you must not give too free a flight to your fancy in this regard. It is not any use that the land might be put to; there are a great number of things that it might be used for that it probably never will be used for. That can add nothing to its present value. But if there are any uses that it may be put to in the near future that are probable, reasonably probable, that affects its present market value.” -

It will be seen by this last quotation from the charge that the court inadvertently used the word “any” where he said “It is not any use that the land might be put to.” It is clear that the' court inadvertently used the word “any” in this sentence, where he meant to use the word ‘ ‘ every. ’ ’ The court did not mean to say to the jury that they could not consider any use to which the land might be put to, but that that they could not consider every use to which it could be put.

However, the jury undoubtedly understood it to mean the same as though the word “every” had been used, and this raises the question raised by the prior part of the charge, given upon the request of the city.

The theory upon which the court gave this charge, and excluded from the consideration of the jury its value or fitness for the purposes of a public park, was that the owner being entitled only to a fair compensation for the property taken, could not take advantage of the fact that the city alone wanted this property for park purposes, and that to allow the owner to have the amount to be paid to him increased because of the fact that he held a piece of land which the city must have, he could, so to speak, “hold up the city” and make it pay whatever price he could show it would be worth for its purpose, when it might be many times the value which it would be worth for another purpose, and the court in so charging, applied apparently the decision of the Circuit Court of Huron County in the case of Gibson v. The City of Norwalk, 13 C. C., 428. That was a case in which the city of Norwalk had appropriated certain lands to be used as a basin or reservoir for storing water for the use of the city, and the court held that the fact that the lands appropriated were especially adapted to the purpose for which the city desired to use them could not be taken into account in determining the compensation to be awarded. The first clause of the syllabus reads:

“In ascertaining the market value of land sought to be ap- • propriated by a city for water works purposes, the fact that said lands are specially adapted for reservoir purposes is not admissible in evidence and can not be considered by the júry determining its market value.”

If that is a proper statement of the law applicable to the case under consideration, it would justify the action of the court in this case in this regard and we proceed, therefore, to consider the question of whether that case should be followed.

In Railroad v. Longworth, 30 Ohio St., 108, the second paragraph of the syllabus reads (speaking of the compensation to be awarded):

“In ascertaining these amounts, the jury are to take into consideration the real value of the land taken and the diminished value to the remainder, and may for that purpose take into account, not only the purposes to which the land is- or has been applied, but any other beneficial purpose to which it may be applied, which would affect the amount of compensation or damages.”

And in the opinion at page 111, Judge Johnson quotes with approval the following language from the case of The Queen v. Brown, L. R., 2 Q. B., 630:

“A jury, whether the dispute be as to the value of land required to be taken by the company, or as to compensation for damages by severance, in assessing the amount to which the land owner is entitled, have to consider the real value of the land, and may take into the account not only the present purpose to which the land is applied, but also any other more beneficial 'purpose to which, in the course of events at no remote period it may be applied, just as an owner might if he were bargaining with a purchaser in the market.”

In the case of James Goodin et al v. The Cincinnati & Whitewater Canal Company et al, 18 Ohio St., 169, the fourth paragraph of the syllabus reads (speaking of the assessment of compensation in cases of appropriation) :

‘ ‘ The rule of valuation in such cases is what the interest of the canal company was worth, not for canal purposes merely, or for any other particular use, but what it was worth generally, for any and all uses for which it might be suitable. ’ ’

And in the opinion, at page 181, this language is- used:

‘ ‘ The true value of anything is what it is worth when applied to its natural and legitimate uses; its best and most valuable uses. The estimate should have been given of its value generally for any and all uses, and not for any particular and especially not for any inferior or inappropriate use.”

In the case of Currie v. Railroad Co., 52 New Jersey Law, 381, the fourth paragraph of the syllabus reads:

“The rule, that the special advantages of the land to the party acquiring it by condemnation shall not swell the compensation of the landowner, applies- to cases where the taking, which is advantageous to the purchaser, is not pecuniarily disadvantageous to the seller. If, however, the advantageous feature is of such a nature that it has commercial value in the hands of either, then a fair estimate of such value is a proper part of the just compensation which the owner is entitled to receive.”

And the fifth paragraph reads-:

“The situation and surroundings of land sought for railroad purposes may impart to it a special value for such purposes generally; where such a value is shown, the owner may reap the benefit of it when compelled to part with his land by condemnation.”

And on page 397, the court in its opinion uses this language:

“Under the law as thus expounded the landowner in the present case should have been permitted to produce evidence as to the situation and surroundings of his land as they existed at the time of the location of the company’s route, for the purpose of demonstrating, if he was able, that there resulted to his land from these circumstances a special value growing out of the best use to which, from its situation, it was presently adapted. Guarded by the exclusion of speculative opinions upon the one hand, and of the individual advantages to the condemning agent upon the other, such a course will best secure to the owner of the lands taken that compensation for their general value which is guaranteed by the Constitution whenever private property is taken for public use.”

In Mississippi & Rum, River Boom Co. v. Patterson, found in the 25th Co-Operative Edition of the United States Supreme Court Reports, at page 206, the court in the fourth and fifth paragraphs of the syllabus use this language:

“4. In determining the value of land appropriated for public purposes, the inquiry must be, what is the property worth in the market, from its availability for valuable uses, both now and in the future.
“5. In estimating the value of the lands sought to be taken by a boom company for a boom, its adaptability for boom purposes is a proper element of value for consideration.”

And in the opinion, this language is used:

“So many and varied are the circumstances to be taken into account in determining the value of property condemned for public purposes, that it is, perhaps, impossible to formulate a rule to govern its appraisement in all cases. Exceptional circumstances will modify the most carefully guarded rule; but, as a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may reasonably be expected in the immediate future.
“The position of the three islands in the Mississippi fitting them to form, in connection with the west bank of the river, a boom of immense dimensions, capable of holding in safety over twenty millions of feet of logs, added largely to the value of the lands. The boom company would greatly prefer them to more valuable agricultural lands, or to lands situated elsewhere on the river; as, by utilizing them in the manner proposed they would save heavy expenditures of money in constructing a boom of equal capacity. Their adaptability for boom purposes was a circumstance, therefore, which the owner had a right to insist upon as an element in estimating the value of the lands.”

This question is discussed and a great number of authorities cited in Lewis on Eminent Domain, Section 706 of the Third Edition (old Section 478). See also Brown v. Weaver Co., 3 L. R. A. (New Series), p. 912.

From the authorities to which attention has already been called, including those cited under the above section of Lewis and from what seems to us the better reasoning, we reach the conclusion that the court erred in excluding from the jury all consideration of the fitness and value for park purposes of the land taken in this appropriation. As well said in a number of the cases, it is difficult to frame a. rule which shall be applicable in all cases, but it seems an anomalous thing that if property is specially suitable for a particular use that fact may not be shown when the value of such property is to be ascertained. This would certainly be true if it was a case of bargain and sale of property; and the owner of property appropriated for public use is not to be a loser by the fact that under the law he is forced to part with his property. He is entitled to be fully compensated for the value of the property, and while this does not entitle him to “hold up” the public because he happens to have the only parcel of land which will answer the purpose of the public, still he is not to be cut down to what the land would be worth for a purpose to which it is less fitted than for the purpose for which it is appropriated.

Every use for which the land is suitable should be taken into account in determining its value, and taking into account such uses, including the use for which the appropriation is made, the jury should say what the fair value of the land is, and this does not require of the jury nor must not permit the jury to put a speculative or an exorbitant price upon the land, but to determine and allow what, all things being taken into account, the land is fairly, worth.

Without going into detail on the rulings on evidence, it is sufficient to say that whatever evidence was excluded, which under the proposition enunciated would have aided in determining the fitness of the value of the land for park purposes, should have been admitted.

For the reasons pointed out, the judgment is reversed and the cause remanded.


text:
    ERROR. IN DIRECTING VERDICT FOR DEFENDANT.
    Circuit Court of Cuyahoga County.
    The Greenhut Cloak Company v. The American Credit Indemnity Company of New York.
    Decided, December 17, 1909.

      Directing a Verdict for Defendant, Where There is Evidence to he Weighed.

    Where there is evidence upon both sides to be weighed, it is error to direct a verdict for the defendant, notwithstanding;the trial judge is of the opinion that, should the jury find for the plaintiff, he would grant a new trial on the weight of the evidence.

      W. D. McTighe, for plaintiff in error.

      White, Johnson, McCaslin c& Gannon, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The parties here are as they were in the court below. The plaintiff, a corporation, was engaged in merchandising in the city of Cleveland. The defendant is in the business of indemnifying merchants on accounts made by their customers, and it has a form of contract by which it makes this guarantee. This form of contract speaks of it as a bond and also as a contract of indemnity.

Without discussing whether technically this is to be callea a bond, or a policy, or a contract of indemnity, a contract under this form used by the defendant was entered into between it and the plaintiff, whereby the defendant undertook to guarantee the plaintiff against loss on accounts which, should become due- to it by its customers. This indemnified for a certain per cent, of losses and upon certain conditions as to things to be performed in the way of notice and the like, on the part of the plaintiff, in order to entitle it to the benefit of the indemnity.

Upon the trial, evidence was introduced tending to show that by reason of the. failure of certain customers of the plaintiff to pay their several accounts, the plaintiff was entitled to recover from the defendant upon his contract of indemnity. Among those accounts was one against A. J. Yan Loan, another against the National Credit Clothing Company, another against the Sampliner Cloak Company, and another against the Hahn-Berno Company. Besides these, there were a large number of other accounts against the customers of the plaintiff included in the suit. When the court came to submit the case to the jury it withdrew from their consideration the four claims above named, saying that the plaintiff was not entitled to recover anything upon any one of these accounts, and it is- this instruction of the court which is complained of in the present proceeding. '

We have examined the evidence carefully upon each of these accounts, and as to the third named, we reach the conclusion that the court was right in withdrawing this from the consideration of the jury. As to the last named, to-wit, the claim against the Hahn-Berno Company, we find that the court erred. There was some evidence on the part of the plaintiff in this, case which should have gone to the jury. The argument made here is that the evidence introduced on the part of the plaintiff in reference to such claim is so completely overcome by the evidence of the defendant, that if the verdict had been rendered by the jury, including this claim, it must have been set aside on the weight of the evidence, and it would have been a vain thing for the court to have submitted to the jury a question, which, if found by them for the plaintiff, would not have been permitted to stand.

This argument has been used a great many times, and to many lawyers seems of weight, but the rule in Ohio is otherwise, and there is this difference to be noticed, that where the court directs a verdict there is not another opportunity for a retrial of the case, whereas, a verdict having been rendered, if the court finds that it should be set aside on account of the weight of the evidence, the party is entitled to a new trial, upon which it is possible that he will produce sufficient evidence to entitle him to such verdict. In any event, it is not an open question in Ohio where there is evidence upon each side to be weighed — that upon one side being set against that of the other — the court is not authorized to direct a verdict, and because a verdict was directed in reference to this claim the judgment of the court of common pleas must be reversed and the case remanded.

. The amount of this claim, if it were to be added to the judgment recovered by the plaintiff in the court below, would take away all the prejudice which the plaintiff suffered by reason of the error found. But we by no means -intimate that if the case had been submitted to the jury upon the evidence the verdict would have been increased at all by reason of this Iiahn-Berno Company claim, but if the defendant desires to avoid a new trial and agrees to have the judgment of the court of common pleas so modified in this court as that the amount of this claim shall be added, the judgment as thus modified will be affirmed. But we have no power to order that this- shall be done, nor do we recommend it to be done; we simply suggest it, leaving the plaintiff to determine for itself whether it cares to have such modification.


text:
    AS TO TAXABILITY OF RAILROAD PROPERTY BEING IMPROVED BY CITY FOR. USE OF A LESSEE.
    Court of Appeals for Hamilton County.
    The Trustees of the Cincinnati Southern Railway v. Charles E. Roth et al.
    Decided, November 29, 1913.

      Taxation — Property Acquired by a Municipality for TJse of Its Own Railway Not Taxable While Being Improved for Railway Use — Section 5356.
    Property acquired by the city of Cincinnati for a viaduct or elevated track and additional terminals for the Cincinnati Southern Railway, owned by said city and operated by a lessee, which property so acquired is being improved by the city for said purpose and when completed is to be turned over to said lessee, is property which is being used in the exercise of a municipal function and while so held by the city is exempt from taxation.

      W. T. Portea' and John B. Sayler, for plaintiff in error.

      Thomas L. Pogue, Prosecuting Attorney, John V. Campbell and Charles A. Groom, Assistant Prosecuting Attorneys, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. PI., J., concur.
   Under an act of the General Assembly found in 93 Ohio Laws, page 637, supplementary to the act under which the Cincinnati Southern Railway was constructed (66 O. L., 80), bonds have been issued — approved by a vote of the people — and with the proceeds the trustees of said railway acting on behalf of the city of Cincinnati have acquired certain land for the purpose and have partially constructed thereon a viaduct extending from ■Eighth and McLean avenue to Third and Front streets in said city. This viadtfet is not yet completed, but has been and will be held by said trustees who are engaged in its construction, and when so completed it will become a part of the Cincinnati Southern Railway, and will then be transferred to the lessee company operating that railway and will be used in connection with it and its terminals.

The question to be here determined is whether this uncompleted viaduct and the land on which is stands should be now listed for taxation, or whether as public property used exclu: sively for public purposes it is not taxable.

The general rule as to taxation of the property of municipal corporations is thus stated in 37 Cyc., 874-5:

“"While in the absence of constitutional prohibition, a state may tax the property of its municipal corporations, or a municipality having general powers of taxation may tax its own property, an intention to tax such property of a municipality as is devoted" to public or governmental purposes will not be implied, but on the contrary such property will be held to be exempt unless an intention to include it is clearly manifested. Lands, buildings and other property owned by municipal corporations and appropriated to public uses are but the means and instrumentalities used for public purposes, and consequently they are exempt from taxation, either by express constitutional or statutory provision, or else by necessary implication. This rule applies not only to counties and incorporated cities, incorporated towns and incorporated villages, but also to such strictly public and governmental bodies as sanitary or levee districts, directors of the poor and reclamation districts.”

In Tan Brocklin v. Stale of Tennessee, 117 U. S., 151, Justice Gray in the opinion of the court at page 173, says:

“General tax acts of a state are never without the clearest words, held to include its own property, or that of its municipal corporations, although not in terms exempted from taxation.” (Citing cases.) “The reasons for this have been well stated in the cases in Massachusetts and New Jersey. Mr. Justice .Devens, delivering the opinion of the Supreme Judicial Court of Massachusetts, said: ‘The property of this commonwealth is exempt from taxation because, as the sovereign power it receives the taxation through its officers or through the municipalities it creates, that it may from the means thus furnished discharge the duties and pay the expenses of government. Its property constitutes one of the instrumentalities by which it performs its functions’ (116 Mass., 194). And Mr. Justice Depue, delivering the opinion of the Court of Errors of New Jersey, said: ‘The-immunity of the property of the state, and of its political subdivisions, from taxation, does not result from a want of power in the Legislature to subject such property to taxation. The. state may, if it sees fit, subject its property and the property owned by its municipal divisions, to taxation, in common with other property within its territory. But inasmuch as taxation of public property would necessarily involve other taxation for the payment of taxes so laid, and thus the public would be taxing itself in order to raise money to pay over to itself, the inference of law is that the general language of statutes prescribing the property which shall be taxable is not applicable to the property of the state or its municipalities. Such property is therefore by implication, excluded from the operation of laws imposing taxation, unless there is a clear expression of intent to include it.’ ”

One of the recent cases upon the question of taxing public property is that of Foster v. City of Duluth, 140 N. W. Rep., 129. The city had purchased property for an incinerator plant, or crematory for the disposal of garbage, and same was constructed thereon and used by the city. The syllabus of the case is as follows:

‘ ‘ 1. The property of the state and of its political subdivisions, arms and agencies, such as cities within its borders, when used for exclusively public purposes, is not subject to taxation, or to proceedings for the assessment of taxes, or for their collection by judgment and sale.
“2. Where real property, acquired by the state, or a city for exclusively public purposes, is, when so acquired, subject to a lien for unpaid taxes, all proceedings taken to enforce such lien, after the property is so acquired for public purposes, are void. ’ ’

The opinion of the court by Justice Bunn is especially strong, and holds that after its purchase by the city the property was devoted to public uses and became public property and was not thereafter subject to taxation.

An instructive case as to the power of a municipality to aid in the construction of a railway, and the taxability of the interest paid to the city by the railroad company on the bonds issued for such aid, is found in United States v. B. & O. R. R. Co., 17 Wall., 322.

As said by Shauck, J., in the opinion of the court in Cincinnati v. Lewis, 66 O. S., at page 55:

“The policy of this state has its foundation in Section 2 of Article XII of the Constitution, which describes the property which shall be taxed as well as that which may, by general laws, be exempted from taxation: ‘Laws shall be passed taxing by uniform rule # * * all real estate and personal property; but * * * public property used exclusively for any public purpose, * * * may by general laws be exempted from taxation.’ That the public ownership of property was not alone thought sufficient to exempt it from taxation is made obvious by the requirement that an exclusive use for a public purpose shall coincide with such ownership.”

In pursuance of the authority contained in Article XII, Section 2, general laws have been passed exempting from taxation the different classes of property enumerated in said section. Such exemptions are set out in the General Code, Sections 5349 to 5365-1 inclusive. The section claimed applicable to the case at bar is General Code, 5356:

‘'Market houses, public squares or other public grounds of a city, village or township, houses or halls used exclusively for public purposes or erected by taxation for stich purposes, notwithstanding that parts thereof may be lawfully leased, shall be exempt from taxation.”

In the Lewis case above cited (66 O. S., 56), the property under consideration was a farm known as the Markley farm which had been purchased by the city for the purpose of locating thereon a reservoir and using it in connection with the city water works, but this plan had been abandoned, other lands acquired, and the reservoirs located elsewhere, and this farm was then rented and used for farming purposes. The court held that it was taxable, not being used in the exercise of a municipal function.

So, in Cincinnati v. Hynicka, Treas., 9 N.P. (N.S.), 273, affirmed without report in Supreme Court, 84 O. S., 446, where wharf property and market place property had been leased to coal companies and railroads and was used entirely for private purposes, it was held to be taxable.

In the ease of Zumstein, County Treasurer, v. Coal & Mining Co., 54 O. S., 264, certain wharf property belonging to the city of Cincinnati had been leased for a period longer than fourteen years. Under Revised Statutes, 2733 (now General Code, 5330) the interest of the lessee was held to be taxable; but the city’s interest as lessor was distinguished from that of the lessee and was held not to be taxable. At page 271 in the opinion Shauck, J., said:

“It is not disputed that if- the lands had not been leased they would be exempt under the terms of the 8th subdivision of Section 2732, and it was held that in order to make such lands taxable the lease must be for a term longer than fourteen years. ’ ’ ,

The question of the power of a municipality to levy taxes, and what constitutes a public purpose or a municipal function, is ably discussed by Diekman, J., in the opinion in the ease of State v. City of Toledo, 48 O. S., 112, in which the court held:

“The supplying of municipal corporations and their citizens with such gas is a public use for purposes for which the taxing power may be constitutionally exercised. ’ ’

The question of whether the property owned by the city of Toledo, and-used for securing natural gas lying outside of the city itself, was taxable or not, was considered by the court in Toledo v. Hosler, Treas., 54 O. S., 418, and the court held that the gas wells, pipe lines, pumping stations and machinery owned by the municipal corporation was public property used exclusively for a public purpose, and was exempt from taxation.

What constitutes a city purpose, or a municipal or public function, as distinguished from private ownership that may sometimes exist in a municipal corporation, has been the subject of frequent discussions by the courts. Different views have been held upon the subjects. The matter is well stated in the opinion of Judge Donahue in the recent case of State, ex rel Toledo, v. Lynch, Auditor, to be reported in 88 O. S.:

“I do not believe that governmental purposes include only the protection of life, liberty and property. On the contrary, I am firmly of the opinion that one of the most important duties of the state is to promote the health, convenience, comfort and welfare of its citizens and advance the standard of citizenship in every legitimate way. But I do not believe it is within the purview of municipal government to invade the sphere of purely private enterprise wholly disconnected and divorced from public needs or public purposes. It is difficult, perhaps almost impossible, to prescribe a limit where governmental functions end and private enterprise begins. In the last quarter of a century our views on this subject have so changed that a limit.fixed along the line of prevailing opinion on that subject at that time would seem absurd now, and so it may be a quarter of a century hence.
“As an index of what has been generally understood to be comprehended in the term ‘governmental powers,’ it is interesting to note that the General Assembly of the state has heretofore conferred upon municipalities by statute the power to own and operate municipal lighting, power and heating plants; .to provide for water supply; public grounds, parks and recreation centers; to hold property for charitable purposes; to establish municipal lodging houses; public baths and bath houses; to prevent the sale and distribution of vicious literature; to provide public libraries and reading rooms, to purchase books, papers, maps and manuscripts therefor, and to receive gifts and bequests of money for that purpose; and to maintain and regulate public band concerts. In addition to this, authority has been granted to municipalities to construct railroads; also to fill and improve lands for terminal facilities; to empower municipalities to erect machine shops and issue bonds to pay for them.; also to construct glass works.
“It is true that statutes authorizing municipalities to build railways have been held unconstitutional (P., F. W. & G. By. Co. v. Martin, 53 Ohio St., 386), but for the reason only that this legislation offended against Section 3 of Article XIII of the Constitution which provides that ‘The General Assembly shall pass no special act conferring corporate powers. ’
“In the case of Walker v. City of Cincinnati, 21 Ohio St., 14, an act authorizing cities of the first class having a population exceeding 150,000 inhabitants to construct a railway, issue bonds for such purpose and levy a tax to pay such bonds, was held to be constitutional. However, the particular thing to which I desire to call attention is the pertinent fact that it was not even suggested in these cases, much less decided by the court, that the authority attempted to be conferred by these statutes did not come within the scope of governmental purposes.”

As is stated above in Judge Donahue’s recent opinion, the building and operation of the Cincinnati Southern Railroad was declared by the Supreme Court in Walker v. City, 21 O. S., 14, to be within the governmental scope of the powers of the

city of Cincinnati.. There was considerable doubt as to the constitutionality of the original law for the construction of the Southern Railroad, and the decision in the Walker case, 21 O. S., 14, was distinguished by the same court in Taylor V. Com’rs Boss Co., 23 O. S., 22, in which case the right was denied to county commissioners and township trustees to embark in the building of railroads; but however the question might be considered if it were presented afresh to the Supreme Court, the .decision in the Walker case has become stare decisis, and our Supreme Court has’ so regarded it in all of the supplementary legislation that has since been held, and which has been repeatedly sustained by the courts. Cincinnati v. Taft, 63 O. S., .141; Thoms v. Greenwood, 7 Am. L. Rec., 320, 6 Dec. Rep’r, 639; Cincinnati v. Ferguson, 12 O. D., 439 (affi’d 66 O. S.,.658); Cincinnati v. Trustees, 1 N.P.(N.S.), 361 (affi’d 70 O. S., 476).

Property therefore acquired for the extension and terminals of said railway, held by the city through the trustees of the railway, not yet turned over to the lessees, must be likewise held by the court to‘be used in the exercise of a municipal function, and therefore not taxable.

Judgment reversed, and injunction allowed.


text:
    INJURY FROM SUPPING WHERE THE DANGER. IS MANIFEST.
    Circuit Court of Cuyahoga County.
    H. J. Dunn v. The Lake Shore Navigation Co.
    Decided, December 17, 1909.

      Negligence — Slippery Threshold on Steamer.

    One who steps upon a smooth, polished, brass threshold of a door on a steamer, such as are usually found on steamers and with which he was familiar, the same being in plain view, and slips and is injured, can not recover damages from the steamboat company.

      D. D. HurTbut and W. G. Ong, for plaintiff in error.

      Goulder, Holding & Hasten, contra.
    Marvin, J.; Winci-i, J., and Henry, J., concur.
   The parties .here are as they were in the court below. The defendant is a corporation owning the steamer Eastland. On the 14th of July, 1907, the plaintiff took passage on said steamer in the morning from Cleveland to Cedar Point, returning to Cleveland on the same boat in the afternoon.

When the steamer arrived at Cleveland it was getting dark and the boat was well lighted b'y electricity. Shortly before the arrival of the boat at Cleveland the plaintiff, who was in the main cabin on the promenade deck, started to walk out onto the open deck outside of the cabin, carrying in his arms his little daughter, about two years old. In passing out from the cabin to the open deck, he stepped on a brass plate across the bottom of the doorway, placed there like a door threshold. This plate was polished and smooth and as his foot stepped upon it he slipped and fell, thereby sustaining an injury, to recover damages for which he brought his action in the court of common pleas. He charges that the defendant was negligent in the. construction and maintenance of said door plate or threshold, and in keeping the same so highly polished. At the close of the evidence on the part of the plaintiff, on motion of the defendant, the court directed a verdict for the defendant, which was rendered and judgment entered accordingly. That judgment is here for review upon proper proceedings.

We are of opinion that there was no error on the part of the court in directing a verdict, as it did. The evidence fails'to show that there was any difference in the construction of this door plate or threshold, or in the maintaining .of it in its polished condition, from that in general use upon passenger steamers. It fails to show that it was an improper construction, or that it was more thoroughly polished than similar door plates or thresholds usually are on steamers. It shows also that the plaintiff had been a passenger on the boat and been all about it on the trip from Cleveland to Cedar Point in the forepart of the day and had had opportunity to see exactly what the condition of this door plate or threshold was, both on the journey to and from Cedar Point; that the lights, at the time of the accident, were sufficiently brilliant, so that a glance on plaintiff’s part to the door plate or threshold would have shown him its condition.

From the evidence introduced the jury would not have been justified in finding that any negligence on the part of the defendant was shown, nor that there was anything about this door plate or threshold which by the most ordinary observation would not have been known by the plaintiff, and on this ground we affirm the judgment of the court below.

Judgment affirmed.