text:
    PROXIMATE CAUSE OF INJURY TO A LOCOMOTIVE FIREMAN.
    Circuit Court of Lucas County.
    Carl E. Powers v. Hocking Valley Railway Co. and Lake Shore & Michigan Southern Railway Co.
    Decided, June 26, 1909.

      Negligence'■ — Fireman Suffered Injuries in Carelessly Stepping from Ms Engine — Proximate Cause — Placing Guard Rails and LigMs on Bridges not a Duty of Railway Company■ — Section 3805, Providing ' Joint Liability for Lessor and Lessee of Railway Tracks.

    1. Where a fireman is injured in stepping off his engine backwards and in the dark, and without making'any efiort to discover where he was stepping, the fact that his reason for getting off was that the engine was out of repair and needed attention does not constitute the proximate cause of his injury or render the railway company’ liable therefor.
    2. Nor does the fact that the engine happened to be standing at the time on a -bridge which was unlighted and not provided with guardrails add to the responsibility of the .company or-■ eliminate the . element of plaintiff’s own negligence as to his safety.
    Kinkade, J.; Parker, J., and Wildman, J., concur.
   The court of common pleas directed a verdict in favor of both defendants at the close.of the plaintiff’s evidence. Referring to .the negligence charged against the Lake Shore, we think it very doubtful whether the amended petition stated a cause of action, and if the trial court had sustained the demurrer which was filed by the Lake Shore we probably would have affirmed its action in this regard. There is no evidence of. any lease of the .Lake Shore tracks to the Hocking Company. True, there is an admission in the record that the Hocking Company at the time of the injury to plaintiff was using that part of tbe Lake Shore property with the knowledge and consent, of the Lake Shore. We do not think the section of. the statute (3305) cifed,' has any application to the case at bar. Even if a lease were shown, the provision of this section, are to cover obligations of the company to the public, as was said by Judge Taft in the 72d Fed. Rep., 745 and 753, and do. not apply to a case "such as is here presented. The plaintiff was in no sense an employe of the Lake Shore Company and that company did not owe to him the duty of exercising ordinary care in furnishing him a safe place to work. Upon careful consideration of the record we fail to find any evidence tending to show that the Lake Shore Company omitted any duty owing by it to the plaintiff, and our conclusion is that the trial court was correct in directing a verdict in favor of that company.

As to the Hocking Valley Company, the negligence charged was a defective engine, failure to light the bridge and failure to place guard-rails on the bridge. It is entirely clear that the defective grate bars can not in any way be regarded as the proximate cause of the -plaintiff’s injury. At most they mere’y explain why the plaintiff left his engine when he did. He might have left the engine for any one of many purposes, and if he had alighted as he did in this case the result would have been precisely the same. If a man jumps off an engine in the dark and in so doing goes over the side of a high trestle or bridge, it is not very material'just what particular duty he was intending-to perform. The plaintiff had a right to get off his engine whenever he so desired in the performance of any act connected with his work which might be proper for him to perform. Had he left the cab to oil some part of the engine or for any other purpose the same thing which happened here must have befallen him. As to the lighting and the guard-rail: It is too clear to need comment that had the bridge been lighted as plaintiff claims it should have been, then the absence of guard-rails would have been known to the plaintiff and in that event he would have assumed the -risk of using the bridge in that condition. Hence the only complaint is the failure to light the bridge. Taking plaintiff’s own story as to how He was hurt, and we have read the evidence with care, it is certainly difficult to comprehend how he could have possibly been more reckless of his own safety. No one can read his evidence and reach -any. other conclusion than that he stepped down out of the cab in the dark backwards without the slightest concern for his own safety. The company is not charged with negligence in not furnishing lanterns for the use of its men when in dark places, but the charge and claim is that places of this kind should be lighted so that the railroad men may go without the aid of lanterns, and if the company does not light all places along its track, and especially places near a railroad yard, then trainmen may assume that whenever and wherever the train or engine chances to stop, that is a safe place to step off backwards in the dark, without taking any precaution to learn what the real surroundings are. It scarcely seems necessary to do more than to state such a proposition in order to make manifest the unreasonableness of it. Railroading is hazardous work, and it is common knowledge that railroad property is not generally lighted. Switch and signal lights are not intended to light up the yards, but are intended to indicate the position of switches and targets. They are no more intended to illuminate railroad property generally than the signal lights o.n vessels are intended to light up the lake or the ocean. The railroad business in this country is not in its infancy and the manner of moving trains and cars is thoroughly known. The fact that railroad tracks and trestles are not commonly lighted is well known, and it is also common knowledge that the bridges and trestles are not provided with guard-rails to keep the men from falling off. Neither are there guard-rails on the tops of freight cars to keep brakemen from falling off while funning along the top of the train in the dark. As has been said railroading is dangerous work at best, and no one engaged in it is warranted in going heedlessly about the discharge of duties requiring great care.

No system of fixed lights along a railroad property could afford the protection to the men, with the constant changing of positions of both men and cars, that is furnished by the individual lanterns in the hands of the men. The universal custom on all well-managed railroads is sufficient proof that the way the work is being done is the practical way to do. The Legislature of Ohio has enacted a great many laws for the protection of railroad employes and t-he safety of persons and property being transported over railroads, embracing the lighting and heating of cars, air brakes, safety appliances, blocking of frogs, and a great many other things which might be enumerated, and it is certainly worthy of note that with all the attention this important subject of railroading has been given by the Legislature, no one has ever thought it necessary to require that railroad bridges and trestles must be lighted and equipped with guard rails so that train men who thoughtlessly step off the train in the dark at such points will not get hurt. ,

The Hocking Valley Company had no right to light this bridge or to place guard rails upon it, as it was the property of the Lake Shore Company. It will be said that this being true, then the Hocking Company had no right to use it in that condition. Had the bridge and the tracks been upon the property of the Hocking Valley Company, we do not think any obligation would have rested upon that company to light the bridge and erect the guard-rails as contended for by plaintiff.

That plaintiff alighted from the engine entirely of his own motion is evidenced from what he says he did and said at the time. He told the engineer what he was going to do and proceeded to do it. The record does not show what the engineer said. If the plaintiff had been allowed to leave in the bill of exceptions what was first printed there and afterwards erased (but still is in such form as it can be read), we think it would fall very far short of the -effect claimed for it in argument concerning this conversation. At any rate, it is not now a part of the record, and we see no prejudicial error in the rulings of the court in this regard. Our conclusion is that the record discloses no omission of duty on the part of the Hocking Valley Company, hence the action of the court of common pleas in directing a verdict for that company was correct and the judgment entered thereon will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    INJURY AT A CROSSING OF ELECTRIC AND STEAM RAILWAY TRACKS.
    Circuit Court of Hamilton County.
    The Cincinnati, Dayton & Toledo Traction Co. v. William O. Holbrock.
    Decided, May, 1909.

      Negligence — Special Instructions to Jury — Denial of a Right — Error— Evidence — Settlement with One Joint Tort Eeasor — Section SJ/JiS-S.

    1. A covenant by a plaintiff that he will not sue one joint tort feasor is not a bar to an action brought by him against another joint tort feasor. ' ■
    2. It is erroneous to' refuse to give a special instruction asked for by the defendant to the effect that if the jury found that the, injury was due to the negligence of the tort feasor who was not a party to the action, and the defendant was not negligent, the verdict should be for the defendant.

      W. C. Shepherd and Murray Seasongood, for plaintiff in error.

      C. M. and E. W. Cist, contra.
    Tbe plaintiff, a passenger on a traction car, was injured at a crossing of traction and steam railway tracks, the injury consisting chiefly of disfigurement of his face. A judgment was entered below in his favor for $3,000 • against the traction company. A settlement had previously been made with 'the steam railway company.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   The admission of evidence of the defective brake and the condition of the track was proper as tending to prove the negligent act complained of, which, although charged in broad and comprehensive terms, comes within the rule stated in the case of Davis v. Guarnieri, 45 O. S., 470.

We think the court erred in sustaining the objection to the following question put to the attending physician:

“Wasn’t it possible at the time to have removed the oil and other substance that is now shown there ? ’ ’

.But by subsequent questions and answers the error is shown 'to be not prejudicial. •

There' was no error in permitting the plaintiff, to describe the effect of the scar on his face in his business relations.

Special instruction number ten given at the request of plaintiff ‘is as follows:

“It was the dirty of the motorman on approaching each of the sepárate tracks of the railway company to look and listen before proceeding with his street car upon said track, and if you find his failure to perform this duty directly contributed to cause the collision between the street car and the locomotive and the ‘ injury to the plaintiff, then the defendant, the traction company, is liable in this case, and it will be your duty to find a verdict for the plaintiff.”

The provisions of Section 3443-6, Revised Statutes, do not relieve the motorman from the duty of exercising care for the safety of the passengers, and unless he did look or listen he could not hear or see the signal from the person sent forward to ascertain if the way is clear. There was therefore no error in giving the instruction.

The first special instruction'requested by the defendant to be given in writing before argument was as follows:

“The fact that the railroad company was negligent will not excuse the traction company if it also .was negligent; but if you find that the railroad company was negligent and that the plaintiff was injured by reason of its negligence and that the traction company was not negligent, your verdict will be for the defendant."

This instruction required the jury to first find that the defendant traction company was not negligent, and is so plain and simple that it is difficult to conceive upon what theory the court refused to give it.

Special instruction number three excludes all negligence other thán that of the motorman and was properly refused. The error, if any, in refusing to give instructions four and five was cured by giving number nine. So likewise the subject-matter of number eight is fully covered by numbers six and seven. _

Exhibit number three offered in evidence by the defendant is only a covenant on the part of plaintiff not to sue.the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, and as such is not a bar to an .action against the defendant, an alleged joint tort-feasor. Cooley on Torts, Section 161; City of Chicago v. Babcock, 143 Ill., 358.

The apparently harsh rule of the common law as expressed in the case of Ellis v. Bitzer, 2 Ohio, 89, should not be extended beyond its terms. In that case the court found that Williams and Adkins were by the compromise to be wholly discharged from liability on account of the trespass, and hence all the other trespassers were discharged.

The defendant w.as clearly negligent and the verdict is fully sustained by the evidence. In the absence of any opportunity to observe the plaintiff — the scars on his face and his general condition as the result of the collision — we are not warranted in holding the amount of damages excessive.

The refusal to give special instruction number one in writing before argument as requested by defendant was certainly prejudicial, because it was important for the jury to know that the negligence of the railway company would in no way bind the defendant unless by its own negligence it contributed and besides, as said in the case of Monroeville v. Root, 54 O. S., 523, at 527: “the courts can not say that there is no substantial error in a denial of the right. "

Judgment reversed and cause remanded for-a new trial.


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    ENFORCEMENT OF BOND ON APPEAL IN DIVORCE AND ALIMONY CASE.
    Circuit Court of Hamilton County.
    George H. Embshoff v. Lillie Embshoff.
    Decided, June 5, 1909.

      Divorce and Alimony — Adequacy of AUmony can not he Collaterally Attacked — But the Installments may he Collected hy Execution— Action on Appeal Bond — Jurisdiction under Section 587 where an Equitable Issue is Tendered.

    Overdue installments of alimony are in legal effect a judgment, -which may be enforced by an action on the bond given on appeal from the order fixing the amount of alimony without first obtaining consent of the court rendering the decree.

      Eugene C. Pociey, for plaintiff in error.

      Chas. H. Jones, for the wife.
    In the court below the wife in this case was decreed $4.50 per week alimony. The husband appealed to the circuit court, which granted the same judgment as the common pleas, and remanded the case to the common pleas for execution. Thereafter the common pleas court committed the husband to jail for contempt in failing and refusing to pay the judgment, and the wife brought an action before a justice of the peace on the bond for appeal to the circuit court for $40 unpaid alimony. Judgment having been granted by the justice, the ease was appealed to the common pleas by the surety on the bond, where judgment was again obtained on the bond by the wife. From that judgment the present proceedings in error were prosecuted, the surety claiming that the jurisdiction of justices on appeal bonds is limited by Section 587; that the bond (sued on in this case) to secure execution of the judgment in the circuit court was released by that court when it remanded the case to the common pleas for execution; and that suit could not be brought upon the bond without the consent of the court, citing Guenther v. Jacobs, 44 Wis., 354, which holds:
    “No other court, without leave of the court in which the divorce has been granted, can take jurisdiction of an action on the bond given by order of the divorce court to secure payment of alimony; and upon application for such leave the divorce court may order or withhold payment of arrears in whole or in part, and may grant or refuse leave to enforce such payment by action at law or on the bond, and the action when brought-with its leave is as subject to its discretionary control as the judgment itself.”
    Giffen, P. J.,; Swing, J., and Smith, J., concur.
   While the case of Guenther v. Jacobs, 44 Wis., 354, sustains the contention of counsel that the demurrer to the petition should have been sustained, yet the decisions in this state lead to a different conclusion.

Alimony decreed in installments may be enforced by execution. Piatt v. Piatt, 9 Ohio, 37.

The adequacy of alimony decreed can not be collaterally drawn in question especially by a stranger to the suit. Hare v. Gibson, 32 O. S., 33.

The 'husband is not complaining, and the installments due are in legal effect a judgment, the collection of which may be' enforced by an action upon"the appeal bond, without first obtaining the consent of the court rendering the decree.

Judgment affirmed.

Same judgment in case No. 4715.


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    LIABILITY FOR. LIQUOR TAX WHERE SALES ARE SMALL.
    Circuit Court of Lucas County.
    Katherine Watson v. Thomas Biddle, Treasurer.
    Decided, July 2, 1909.

      Tax on Liquor Business — Traffic Carried on in Small Quantities — Seller Liable for the Tax — Notwithstanding the■ Sales are Made in Connection with an Illegal Business — Section JjS6Jr9.

    1. The purchase of a few pints of beer at a time and the sale of it.at a ' profit constitutes trafficking in intoxicating liquors' as defined by the statute, and renders the seller liable to payment of the tax on trafficking in spirituous, vinous, malt or other intoxicating liquors.
    2. The fact that the sales are made in connection with-an illegal busi- ' ness does not*har the state from enforcing collection of this tax.
    Kinkade, J.; Parker, J., and Wildman, J., concur.
   We have examined the briefs submitted by counsel, and we have read with a great deal of care the evidence in this case, the whole of it. It seems to us that the evidence here clearly shows that it was the habit at this house, which was presided over by Katherine Watson, to procure beer for .people who came there, selling, it to them, or, as she says, delivering it to them, and making forty cents a pint profit. We can see no difference between purchasing a few pints of beer and selling it to a party at an increased price of forty cents a pint,' and. purchasing a very much larger quantity of beer and selling it at any other profit. It seems to me on reviewing this evidence in detail, that the attempt here on the part of the keeper of this resort is a mere subterfuge, nothing short of it; it is a mere method by which the law is avoided, and if this could be countenanced, we see no reason why a saloon might not be in the immediate vicinity, for that matter, either upstairs or down stairs, in connection with this kind of a resort and might have a dummy waiter, and if the dummy refused to work a waiter that was not quite so dumb could be substituted, so the place could be carried on with the same result that-has been carried on here, a profit to every sale.

It has not been urged here as it was in one case that we have examined, that the tax could not be insisted on here because the parties were engaged in an. illegal business, and in violation: of the statutes of Ohio, and that they could be punished in that way. But that is not the law. And it is well that it is not, because, as said in that case, if that were so then the parties' who were violating the law might escape paying the tax while those who were not violating it would have to pay.

We have read the evidence of all the inspectors and considered the report, which is somewhat brief, most of it getting into .the examination and going in without objection, but we think under the form that the examination took, the report, brief as it is, and for what it is worth, is competent evidence in the case. The evidence in the ease as a whole shows that this constitutes a trafficking in intoxicating liquors' as defined by the statute. Of course the tax being upon the duplicate makes a prima facie case under the statute, not only of the amount and its non-payment, but of the validity of the tax. We have considered the record without special regard to that. We think the showing is ample here 'to make the'finding that the petition should be dismissed and the injunction prayed for denied, and that will be the ruling ,of the court.


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    DETERMINATION OF LIABILITY UNDER. A BOND.
    Circuit Court of Hamilton County.
    The City of Cincinnati v. J. H. Baumer et al.
    Decided, June 13, 1908.

      Bond — For Performance of Public Work — Default of Contractor— Methods of Ascertaining Liability of Sureties — Discretion in Re-letting Contract — Section 1536-553. ' •
    In the absence of a showing of abuse of discretion, the sureties of a defaulting contractor for public work will not be heard to complain, because the contract was relet to the next lowest and best bidder and the loss thereby sustained was taken as the measure of their liability.

      Jonas B. Frenkel, for the Water Works Trustees.

      City Solicitors, for the City.

      D. F. Cash, for the defendants.
    Giffen, J.; Swing, P. J., and Smith, J. concur.
   The bond in suit is statutory (See. 1536-553 R. S.), and in determining its effect reference should be had to the statute which authorizes its execution and prescribes its objects. Secrist et al v. Barbee & Royston, 17 O. S., 426.

The damages could be easily ascertained in two ways, either by reletting the contract to the next lowest and best bidder, or by readvertising and reletting to .the lowest and best bidder. The commissioners of water works in the exercise of the discretion conferred by statute relet the contract to the next lowest and best bidder -at a loss of more than twice the amount of the bond, and there is nothing in the record showing any abuse of discretion, or 'that a readvertisement would have resulted in loss to the city.

Judgment reversed and judgment for plaintiff in error.


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    EQUITY AND ACCOUNTING.
    Circuit Court of Hamilton County.
    James Story v. Mrs. M. W. Knapp et al.
    Decided, May, 1908.

      Conversion — Claim for Recovery on Account of — Not Equitable and not Appealable, When — Creation of Trust in a Publication — Action for Profits Resulting — 'Jurisdiction as to Copyrighted Booh Plates and in Actions for Recovery of Specific Personal Property — Pleading.

    1. A claim for wrongful conversion does not become an equitable action by reason of a mere averment that the amount due is unknown, coupled with a prayer for an accounting, when the allegations of the petition do not otherwise require a decree granting equitable relief; this being true, such an action is not appealable.
    2. Where a publication is given by its founder in trust to a society, and in reliance on the trust thus created large sums were contributed by members of the society which were- used in extending the circulation and value of the publication, equity will not require the trustees of the society to account to the estate.of the donor of the publication for profits derived herefrom.
    3. There can be no recovery of profits arising from the publication of the books of an author unless the books were copyrighted, and in that event the state courts would be without jurisdiction.

      4: An action for recovery of book-plates and electrotypes is an action for recovery of specific personal property and can not be determined by the circuit court on appeal.

      Roettinger & Gorman and Province Pogue, for the ancillary trustees and creditors.

      J. W. Sparrow, C. A. J. Walker, C. W. Baker and David Davis, for the Knapp estate.

      Peck, Shaffer & Peck and W. A. Hicks, for the Bible School.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   The claim of Jackson W. Sparrow, as administrator de bonis non of the estate of Martin W. Knapp, deceased, to. the-money on deposit in the Second National Bank and the Cincinnati Savings Society in the name of Martin W. Knapp at his death is based upon the wrongful conversion of the same by the defendant trustees, and does not arise from the same transaction, nor transactions connected with the same subjects of action as the equitable claims stated in his petition. The averment that he does not know the exact amounts and therefore asks an accounting does not make it an equitable cause of action. There is no averment , that the accounts are complicated or involved, or that the banks refuse to disclose the amounts, nor is there any .other averment in his petition or in the answer of the trustees requiring a decree granting equitable relief in relation to such deposits.

The causes of action thus stated are for the recovery of money only and therefore not appealable (City of Wellston v. Morgan, 59 O. S., 147; Lange v. Lange et al, 69 O. S., 346).

Although the publication known as the Revivalist was originally the property of M.artin W. Knapp, we find that by the declaration of June 21, 1900, he gave the same in trust to the society known as “God’s Bible School,” and by subsequent declarations ratified such gift. Large sums of money were contributed evidently upon the faith of such declarations and the trust thereby. created, and materially aided in establishing the paper and increasing-its circulation. • It would therefore be contrary to every principle of equity to- now require the trustees of the society to account to the administrator for the profits and to' deliver to him the publication and the rights incident thereto.

The conclusion -applies as well to the publication known as Sparkling Waters. The demand for an account of the profits arising from the publication and sale of certain books written by Martin W. Knapp has no foundation unless the books were copyrighted by the author, and in that event, the validity of the copyright being involved, the state courts are without jurisdiction.

The cause of .action stated in the petition of the -administrator for the recovery of the book-plates and electrotypes existing at the death of Martin W. Knapp is -one for the recovery of specific personal property and can not be' heard and determined by this court on appeal, and the judgment, of the common pleas court as to the right of possession anc| the -title to. such property as well as the money in bank is final. The appeal of such causes of action should therefore be dismissed for the want of jurisdiction, and petition of the administrator as to all other causes of action be dismissed. We are of opinion that $2,000 is a reasonable compensation for services rendered by counsel who represented the trustees in the common pleas court and that $200 is a reasonable compensation for the services rendered by the master. There being no dispute as to claims of creditors such finding and decree as counsel shall agree upon may be entered, and the cause will be remanded to the common pleas for execution.

       For opinion in another branch of the same case, see. Story v. Knapp et al, 5 O. L. R., 55,


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    ACTION FOR. BREACH OF WARRANTY OF GOODS.
    Circuit Court of Lucas County.
    Voorhees Rubber Company v. Union Supply Company.
    Decided, June 26, 1909.

      Evidence — Objections to Questions Should be Mude before Answered— Traveling Salesman — Services by, Outside of Regular Line of Work — Warranty of Goods — Custom—Contracts.
    1. It is not correct practice to postpone an objection to a question until it develops what the answer will be, and then move to strike the answer out; and where it becomes necessary to move to strike out part of an answer, the motion should clearly state what part of the answer is embraced therein, or it.will be the duty of the court to overrule the motion.
    2. While it is true that a traveling salesman, charged only with the duty of selling goods, has no power to modify a contract made for his employer, it is possible that he has rendered services for his employer in the way of adjusting differences which may have arisen or in completing the contractual relation, which are not within his ordinary line of duty.
    3. The same rule which permits a buyer to sue on a breach of warranty without first returning the goods, also relieves him from the necessity of shipping out the goods which he still has remaining on hand with the accompanying risk of injury to his trade, after a reasonable test has made it apparent that the goods are of inferior quality.
    4. While custom may aid in construing a contract, and parties will be considered as having entered into a contract with reference to an established custom, yet custom can not be substituted for the plain provisions of the contract.

      H. J. Chittenden and C. W. Kirkley, for plaintiff in error.

      E. E. Davis, contra.
    Kinkade, J.; Parker, J., and Wildman, J., concur.
   Jury waived and tried to the court. The errors relied on are, first, admitting incompetent evidence; second,, excluding competent evidence; and third, verdict contrary to the evidence. We have examined the record with care, and if counsel will read the record with equal care we think they will see that the claims urged in argument as to the errors of the trial court on matters of evidence are not sustained by the record in this, that the objections and- motions to strike out are not timely or properly made. We do not regard it as correct practice to defer objecting to a question or answer until after counsel sees what the answer is to be, and then object and move to strike it out. Where a question calls for conversation which is regarded as incompetent evidence, cqunsel may not delay objecting until the conversation is given, and then if found to be undesirable object and move to strike out. When a motion is made to strike out evidence the motion should state clearly what part is asked to be stricken out; otherwise the motion should be denied. Counsel would have some difficulty in this case in designating just what was embraced in certain motions of this kind that were made.

The contention of counsel for plaintiff in error that a traveling salesman whose duty is only to sell goods has no power to modify a contract made for his employer is correct, as a general proposition. . But it is not necessary to hold that Mr. English had power to modify the contract between the parties in order to sustain the decision of the trial court. That he performed services for his employer in connection with completing the contractual relations between the parties and later on, in adjusting differences that arose, somewhat put of the ordinary duties of a traveling salesman, is clearly manifest. As general sales manager he seems to be about the only one speaking for his 'corporation employer, .except one Mr. Covalt, occupying a like position and performing similar services,

With the element of express warranty as to the quality of these goods, the defendant in error needed no modification on which to base an action for breach of warranty. Counsel are familiar with the case in 39 O. S., 671, and'other decisions of our Supreme Court, that where there is an express warranty the buyer does not need to return the goods in order to recover for breach of warranty. That there was an express warranty in this case we think was clearly shown, and that there was a breach of that warranty was established by the evidence presented by the defendant' in error. The tests made by the defendant in error were'sufficient to show that the goods were of inferior quality. It was not the duty of the defendant to further demoralize its own business by shipping out to its customers for trial the remainder of the goods, as the only method of demonstrating their unfitness for use. Such a course could not benefit either party to the contract.

Much of the evidence offered on the trial for the purpose of establishing a custom which was claimed would have defeated the counter-claim was properly excluded by the trial court. We think even more of it might have been excluded. We do not see how the custom contended for could in any way be permitted to contradict the contract between the parties. 'Custom often aids in construing a contract, but it can not be substituted for the plain provisions of a contract, at variance with the terms of the custom. In order to maintain that one party to a contract has empowered the other party to the contract to decide any and all questions which might arise between them touching the subject-matter of the contract, we are inclined to think the party making such claim would need something stronger than a custom of the trade. We are not unmindful of the wonderful scope sometimes given to this doctrine that parties must have entered into a contract with reference to the well known and fully established custom, but we are not aware of any well considered case extending the doctrine to the length contended for here.

We find no prejudicial error in the record, and the judgment of the court of common pleas will be affirmed.


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    INJURY TO EMPLOYE FROM EXPOSED COG WHEELS.
    Circuit Court of Hamilton County.
    Laidlaw-Dunn-Gordon Company v. George J. Miller.
    Decided, July 10, 1909.

      N'egligence — Doctrine of Assumed Risk without Application — Where there has been a Failure to Afford Protection Against Injury by Machinery — Unsafe Place to Work by Reason of Slippery Condition of Floor — Charge of Court — ■Evidence•—Section J¡SGJi-89c.

    1. The doctrine of assumed risk has no application where the risk which it is alleged was assumed arose out of a violation of the statutory obligation of the master to protect his employes against injury by machinery and appliances.
    2. It -is not error to- exclude the opinion of an expert witness as to whether certain cog-wheels were “exposed,” where the jury viewed the premises and had before them the evidence with reference to said gearing.
    3. A charge of negligence in permitting oil and grease to accumulate on the floor where plaintiff was obliged to stand while at work, is eliminated from the case by a finding by the jury that the accident was due to .exposed gearing; and the judgment will not be reversed because of refusal to give special charges relating to either assumption of risk or the slippery condition of the floor.

      Robertson & Buchwalter, for plaintiff in error.

      Stricker & Johnson, contra.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   The acts of negligence complained of in the- amended petition are:

1st. “That the defendant carelessly and negligently failed to enclose said cog-wheels in a casing, box, or in any other manner to properly guard or protect him against danger while engaged in the operation of said lathe.”
2d. “That the defendant further negligently and carelessly caused and permitted oil and grease to accumulate upon the floor on which the plaintiff was- obliged to stand to operate said lathe, thereby causing the floor to become slippery, unsafe and likely to cause the plaintiff to fall while operating said lathe.”

It will be seen from the above that'this action is brought under Section 4364-89c, Revised Statutes, relating to protection against' injury by machinery.

The jury in addition to its general verdict in favor of defendant in error, also in answer to an interrogatory propounded by plaintiff in error, found that the approximate cause of the injury was, “in that the defendant knowingly allowed the cogwheels to be exposed in a. manner that was dangerous to the man operating the machine.”

From the evidence in the record and the finding of. the jury, we are satisfied that plaintiff in error was negligent in respect' to a duty imposed upon it by this statute.- This law has heretofore been before the courts and construed. Ziehr v. Maumee Paper Co., 7 C. C.—N. S., 144; Bresewski v. Royal Brush & Broom, Co., 8 C. C.—N. S., 457; Republic Iron & Steel Co. v. Yanuszka, 166 Fed. R., 684.

Under the statute and these decisions the doctrine of assumed risk has no application where the alleged risk assumed is in violation of a master’s statutory obligation to protect machinery and appliances.

We do not think there was error in the trial court refusing to admit the testimony of the witness Muller as to his judgment as an expert as to whether gearing on the lathe in question was an exposed gearing or whether the cog-wheels were exposed or not. This was the issue of fact which the jury were called upon to determine. They had viewed the premises and had the evidence, and the judgment or opinion of a witness in this regard could not have availed them anything.

“A question to a witness which calls for his opinion on- the precise -issue which the jury is sworn to determine from the evidence is incompetent.” Fowler v. Delaplain, 79 O. S., 279.

We find no error in the court refusing the special charges asked by plaintiff in error. Some contain the question of assumption of risk on the part of the plaintiff by reason of the exposed cogwheels, while others relate to the oily condition of the'fioor.

In the view we take of the case, the assumption of risk on the part of the defendant in error not being in the case, and the jury having specifically found in answer to the interrogatory propounded that the accident was due to the cog-wheels being exposed, the second act of negligence complained of is also out of the case.

We do not think the verdict [$3,000] is excessive. The statute provides “That for injury not resulting in death, plaintiff may recover a sum not exceeding $3,000 as the jury may find proportioned to the pecuniary damages resulting from the injury.”

This, therefore, being strictly within the province of the jury to determine from all the evidence, such finding will not be disturbed. There being no errors in the record the judgment will be affirmed.


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    PROCEDURE UNDER. THE JONES LOCAL OPTION LAW.
    Circuit Court of Hamilton County.
    Ex parte Petition to Prohibit the Sale of Intoxicating Liquors as a Beverage in the Residence District of Hyde Park.
    Decided, March 22, 1909.

      Liquor Laws — Jurisdiction of the Circuit Court — Discretion in Betting a Case for Trial — -Time for Filing Findings of the Judge and for a N-ew Trial.

    1. The circuit court has jurisdiction to reverse the judgment in a Jones law local option case and remand the case tor a new trial, notwithstanding no express provision therefor is contained in the act.
    2. The setting of cases for hearing and the granting of continuances are largely matters of judicial discretion, and error will not lie to the action of a court with reference to these matters unless an abuse of discretion is shown.
    8. A reasonable time should be allowed for a new trial after the filing with the clerk of the municipality of the findings of the judge od the original hearing.

      Herron, Gatch & James, for the petitioner.

      Jerome D. Creed, for the contestants.

      Giffen, P. J.; Smith, J., and Swing, J., concur.
   The act “to further provide against the evils resulting from the traffic in intoxicating liquors by providing for local option in residence districts of municipal corporations” (98 O. L., 68) having been held constitutional, this court is authorized, when a petition in error is filed in accordance therewith, to reverse the judgment and remand the case for a new trial, although no express provision-therefor is contained in the act. Lessee of Cochran’s Heirs v. Loring, 17 Ohio, 409; Missionary Society v. Ely et al, 56 O. S., 405.

The provision of the act conferring final jurisdiction upon this court means simply, as shown by the latter part of the sentence, that “there shall be no appeal or error proceeding allowed from such a decision.”

The setting of a case for hearing, especially when involving questions of public interest, and the action of a court in refusing a continuance are largely matters of judicial discretion to which error wili not lie unless such discretion be abused; and we find no such abuse as was prejudicial to the rights of plaintiff in error.

While the act requires.the findings of the judge upon the original hearing'to be filed -with the clerk of the municipality or council not more than forty days from the filing of the petition, there is no provision fixing a time within which the new trial shall be had and the findings filed with the clerk — hence a reasonable time, under all the circumstances, will govern.

The questions put to the witness; Kramer, at page 105 of the bill of exceptions, involved what he himself recognized as conclusions of law and drew out no facts from which to determine whether the district described in the petition was residential; but his testimony at page 102 shows it to be such.

Finding no prejudicial error in the record the judgment will be affirmed.


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    CARE AT A RAILWAY CROSSING.
    Circuit Court of Fayette County.
    B. & O. R. R. Co. v. Hush K. Stewart.

      Negligence — Buggy Struck by Train at Railway Crossing — Evidence Establishing Negligence in Nailing to Look and Listen — Error in Refusing to Direct Verdict for the Railway Company.

    It is error to overrule a motion to direct a verdict for the defendant railway company in a crossing injury case, where the testimony offered on behálf of the plaintiff shows that she was familiar with the crossing and its surroundings and the schedule of the trains, and that others similarly situated as herself with reference to the crossing heard, the warning whistle and saw the approaching train in ample time for her, had she been proceeding with due care, to have become aware of the approach of the train and avoided the collision.

      Cummings, McBride & Wolfe and F. A. Durban, for plaintiff in error.

      Humphrey Jones, contra.
    Dustin, J.; Wilson, J., and Sullivan, J., concur.
    Heard on error.

       Affirmed by the Supreme Court without report, Stewart v. B. & O. Railroad Co., 77 Ohio State, 603.

   We do not deem it necessary to state bere the issues between the parties and upon which the judgment; sought to be reversed by the plaintiff in error, was entered in the court below, since they fully appear on the face of the record. A number of grounds of error are set forth in the petition in error, and yet but two were seriously urged and relied upon by counsel, viz.: That the court below erred in overruling the motion of plaintiff in error to direct the jury to return a verdict in its favor at the conclusion of the testimony of plaintiff below; and, that the whole testimony produced to the jury shows the verdict is manifestly against its weight. If the record shows upon its face either of these errors to be manifest, then the other grounds set forth in the petition in error are no importance.

Upon the first ground, counsel for plaintiff in error claims that the testimony of plaintiff below shows that Mrs. Stewart was negligent in aproaching the crossing where the accident occurred, and that her negligence was the proximate cause of her injuries. The care required of her depended upon the suroundings of the crossing, her knowledge of the same, and of the time trains were scheduled and expected to pass at this point. The testimony of plaintiff below shows that Mrs. Stewart knew the crossing well, and its surroundings, from having frequently used it coming from and going to her home; also that she knew that it was near or about the time that the train with which she collided was expected to pass. As she was passing along in front of the cemetery, named and located in the record as a point from which a train- coming from the east could be seen, after passing the elevator located at the station to the east, many of the witnesses called by the plaintiff below, who were in and about this cemetery, heard the whistle sounded on the approaching train. Some of those who heard it watched Mrs. Stewart, because notwithstanding the signal she continued on toward the crossing, apparently not heeding the signal and unconscious of the train’s approach.

These witnesses were located at the time the signal was given precisely as Mrs. Stewart was in relation to the crossing, and the buildings claimed to have been obstructions. The wind was from the same direction as to them as it was to her. She claims to have been listening for signals and the noise of an approaching train, and heard neither. There was no occasion for these other witnesses listening for either, and yet they heard the signal distinctly. The care devolving upon her was to look and listen — to look for the purpose and with the intent of seeing, and to listen for the purpose and with the intent of hearing the approach of a train. Neither the wind n.or the obstructions near the station interfered with the plaintiff’s other witnesses below from hearing the signal; hence the query naturally follows, if she was listening, with the purpose and intent of hearing, why did she not hear the whistle? If it was the noise of her buggy, it was her duty to have stopped it. Penna. Co. v. Morel, 40th Ohio State, 338.

A railroad crossing is a known place of danger. Where‘the surroundings increase the danger, greater care must be observed by the traveler upon the highway in approaching for the purpose of crossing. As Mrs. Stewart approached the crossing, the care devolving upon her increased as she neared it; and after she passed into the cut, where she could not see, her duty to listen continued, and if prevented from_ heariiig by the noise of her buggy, it was her duty to have stopped the noise and listened with the purpose and intent of hearing. As she could not see up and down the track just before going upon the crossing, it was her duty to have stopped and listened before attempting to cross. According to her own testimony and that of other witnesses called by plaintiff below, she did not do this at any point before going -upon the crossing. This was all shown by the testimony of the witness called by the plaintiff below, and in our opinion was negligence upon the part of Mrs. Stewart, but for which the accident would not have occurred. The negligence charged against the railroad company may be conceded, but notwithstanding its negligence, had Mrs. Stewart not been negligent, she would not have been injured. The testimony of defendant below did not support the averments of the petition of plaintiff below that Mrs. Stewart was not negligent.

Therefore the motion of plaintiff in error for a verdict in its favor, at the conclusion of the testimony of plaintiff below, should have been sustained and the petition of plaintiff below dismissed. There are no .other errors apparent upon the record prejudicial to plaintiff in error. The judgment of the court below will be reversed and the judgment which should have been rendered upon the motion in the court below will be rendered here, and the petition of defendant in error dismissed at his costs. Exceptions for defendant in error may be noted.


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    OWNERSHIP OF PROPERTY AS BETWEEN HUSBAND AND WIFE.
    Circuit Court of Hamilton County.
    Edward H. Van Ingen v. Gus J. Peterson et al.
    Decided, May 1, 1909.

      Presumption — As to Husband’s Means being Used in the Purchase of Property Standing in the Name of His Wife — Action to Subject to Husband’s Debts — Burden of Proof — Circumstantial Evidence.

    The rule that the burden of proof rests upon the plaintiff, and does not shift to the defendant by reason of presumptions in his favor, applies to an action to subject to a husband’s debts property conveyed to his wife; but on account of the relation of husband and wife less evidence is required to raise a presumption in favor of the plaintiff in such an action, and where circumstances do raise a presumption that the property was paid for from the husband’s means, the fact that the wife remained silent during the trial when proof that her money was used in the purchase might easily have been produced if in existence, together with inconsistent statements previously made by her, is a sufficient. basis for a decree against her.

      C. B. Wilby, for plaintiff.

      C. W. Baker and Thorne Baker, contra.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   The plaintiff avers that the real estate described in the petition was purchased by the defendant, Gus J. Peterson, and the title taken in the name of his wife with intent to hinder, delay and defraud his creditors.

The burden of proof rested upon the plaintiff and did not at any time by reason of presumptions in his favor, or by a prima facie ease made, shift upon the defendants.

In Klunk v. Railway, 74 O. S., 125, the third proposition of the syllabus is as follows:

“The rule is that he who affirms must prove, and when the whole of the evidence upon the issue involved leaves the case in equipoise, the party affirming must fail.”

There is no good reason why the rule thus stated should not apply to a case of this kind, although the relation of husband and wife piay with less evidence raise a presumption or establish a prima facie case in favor of plaintiff.

It is seldom possible to prove a conveyance to be fraudulent by other than circumstantial evidence, and yet the defense is susceptible .of direct and positive proof, peculiarity within the knowledge of the defendants.

While some of the cases seem to hold that the burden of proof is cast upon the defendant wife, yet they really go no further than the above stated rule, and only require her to meet the case made by plaintiff’s evidence.

The insolvency of the husband, his relation to the purchase and subsequent management of the property, called for an explanation by the wife which she attempted to give in her examination before a notary public, at another time before a referee in bankruptcy, and at the trial of this case in the court of common pleas.

The plaintiff offered at the trial in the court her declarations thus made for the purpose of showing the improbability of her claim, that at the time of the first purchase she had one thousand dollars in currencj"- which she had earned and saved before her marriage and carried on her person or kept'in bureáu drawer for several years. Neither the husband nor the wife testified in this court; but his declarations were offered by the plaintiff.

It is claimed by counsel for the defendants that plaintiff is bound by the declarations thus offered whether for or against him.

The true rule, however, would seem to be as stated in the case of Bears v. Cooley, 10 N. Y., 93:

“Where the declarations of a party are proved against him, what he says in his own behalf at the same time is competent, but not conclusive evidence in his favor. ’ ’

In this case Mrs. Peterson’s testimony that she had one thousand dollars in currency, and where and how long she kept it, was offered for the very purpose of .showing by her own declarations its improbability and inconsistency. •

Her failure to testify in this hearing, although present, gave additional force to her former contradictory and inconsistent statements, to-wit:

First. That the cash payment was $300, and subsequently when the receipt was found that i-t was $100.

Second. That her.husband did not know that she had the $1,000 until .the purchase was made, and yet before that time her husband had scolded her for leaving the money in her room.

Third. That although she had $1,000 in currency, which was earning nothing, she made a cash payment of only $100 and gave interest bearing obligations for the rest of'the purchase money.

It is true as claimed by counsel for defendants that there is no direct testimony that the husband paid the purchase money out of his own means, but the circumstances are such as have in like cases been held to raise a presumption that it was so paid.

It works no hardship to the defendant wife to require her to rebut this presumption, and we are constrained to hold that she has failed to do so, although the evidence for that purpose, if available at all, was within easy reach.

Decree accordingly.


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    DAMAGES AGAINST A POLICEMAN FOR. ASSAULT.
    Circuit Court of Hamilton County.
    Gustave A. Ringhand v. Edward F. Grannan.
    Decided, April 17, 1909.

      Police — May Arrest Without Warrant and Without Explaining Reason, When — Interference of By-stander — Assault of Officer on Bystander ■ — Verdict Awarding Damages Sustained■ — Charge of Court.

    In an action against a policeman for damages for assault and battery, where the officer answers that the plaintiff interfered when he was attempting to arrest a third party and that he used no more force toward plaintiff than was necessary to prevent such interference, the law is correctly stated to the jury when they are told that the defendant as a peace officer was justified in arresting without warrant one found violating a valid city ordinance, and that the officer might use such force as.was necessary to defend himself from attack by the offender, and this he might do without notifying him of the cause of his arrest.

      Thos. L. Michie and A. C. Fricke, for plaintiff in error.

      Cogan & Williams, contra.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   This was an action for damages for assault and battery, instituted in the superior court of Cincinnati by Grannan, defendant in error, against Ringhand, plaintiff in error, a policeman of the city of Cincinnati.

Ringhand plea,ded justification of his conduct on the ground .that Grannan interfered with him in the discharge of his duties while he was attempting to arrest third parties who were disorderly; and sets up in his answer that if he laid hands upon the plaintiff, he used no more force than was necessary to prevent such interference.

The trial of the case resulted in a verdict and judgment of three hundred dollars in favor of the plaintiff. Error 'has been prosecuted to this court to set the judgment aside. ■

An examination of the evidence satisfies the.-court that'the verdict and judgment are fully sustained thereby. The jury found upon the facts for the plaintiff, and unless there is other prejudicial error in the record the judgment must be affirmed.

In this regard the court is of the opinion that the law was correctly stated to the jury by the trial court,.both in the general and special charges; the burden throughout being to the effect that the defendant as a peace officer was justified in arresting one without a warrant, found violating a valid ordinance- of the city, and that the officer might use such force as was necessary to make the arrest in order to defend himself from the attack of the offender, and this he might do without notifying him of the 'cause of the arrest.

This left it for the jury to- determine the one fact in the case as to whether or not there was an assault and battery as claimed, and the jury found in favor of plaintiff.

We do not think the verdict is excessive, and finding no errors in the record the judgment is affirmed.


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    TRANSFER. OF FRI50NER. FROM WORK HOUSE TO ' PENITENTIARY.
    Circuit Court of Hamilton County.
    William Harrington v. Ferdinand Bader, Superintendent.
    Decided, March 20, 1909.

      Sentence — Interruption in the Running of — Transfer of Prisoner from Work Ilotise to Penitentiary — Then Back 'to the Work House— Habeas Corpus — Sections 57>t8 and'VjO.'i.

    Where it is discovered that one of the prisoners in a work house is an escaped convict from the penitentiary, it is better practice to await the expiration of his work house sentence and then re-arrest and re-commit him to the penitentiary under the provisions of Section 7404; but the transfer of the prisoner from the work house to the custody, of the chief of police, as the first -step in his return to the penitentiary, will be presumed to have been accomplished by legal process, and upon his return to the work house after completing his term in the penitentiary habeas corpus will not lie for his release, at least until the time his work house sentence would have éxpired had there been no interruption by transferring him to the penitentiary.

      Thomas H. Darby, for petitioner.

      John M. Thomas, contra.
    Harrington, the plaintiff in error, a prisoner in the Cincinnati work house, filed a petition in the court of common pleas.for a writ of habeas corpus, which having 'been denied, error was' prosecuted thereto.
    Harrington ivas committed to the work house by the police court under sentences which aggregated- more than five years. On the day following his commitment he was surrendered by the superintendent of the. work house to the chief of police, who turned him over to authorities from the Ohio penitentiary, who claimed he was an escaped convict. He was returned to .the penitentiary and three years later, having served out his term in the penitentiary, he was brought back to Cincinnati and again incarcerated in the ivork house to serve out the interrupted sentence pronounced by the police court.

      At the hearing on habeas corpus, it was claimed in Harrington ’s behalf that the order of release from the work house, under which he ivas returned to the penitentiary, ivas equivalent to a discharge from further imprisonment under the said worlc house commitment, and that the said commitment was ineffectual to justify his recomitment to the work house after said release and discharge therefrom.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   On July 31, 1905, the plaintiff in error was sentenced to the work house of the city of Cincinnati to serve three successive sentences each of six months’ imprisonment and fine of $300 ivith costs for housebreaking. On August 1, 1905, he was delivered to the chief of police of the city of Cincinnati under the following order:

“State of Ohio, Hamilton County, ss. Police Court of the City of Cincinnati.
“To the Superintendent of the Work House:
“Deliver to Paul M. Millikin, Chief of Police of the City of Cincinnati, the body of Wm. Harrington, now in your custody, charged ivith housebreaking, committed July 31, 1905, for new trial.
“By order of court.
“Attest: Aug. Kirbert,
“ (Seal). Clerk of the Police Court,
“By F. G. Good, Deputy.
“Cincinnati, 8-1, 1905.”

Counsel assume that.the effect of this order was an unconditional suspension of the sentences which amounted to a final discharge of the prisoner; but there is nothing upon the face of it to indicate that any suspension or modification of the sentences was intended.

The presumption-is that the removal of the prisoner from the ivorkhouse into the custody of the chief of police ivas -by- legal process, as contemplated by Section 5748, Revised Statutes, and if not, the sentences continued in full force ivithout loss of time b.y the prisoner. .

- It appears, however, from other evidence, not the best, that he was delivered to the chief of police for the purpose of being returned to the Ohio penitentiary, whence he had escaped. It is unnecessary to determine whether this delivery was authorized by law on demand of the warden of the penitentiary, because under the several commitments his time would not in any event expire till December 21, 1910.

The better practice no doubt would be to await the expiration of his term in the work house when the warden could, under Section 7404, Revised Statutes, arrest and recommit him to the penitentiary.

The prisoner is not now, at least, entitled to a discharge, and the judgment of the common pleas court dismissing his petition and remanding him to the custody of the superintendent' of the work house will be affirmed.


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    LACK OF VIGILANCE ON THE PART OF A MOTORMAN.
    Circuit Court of Hamilton County.
    The Interurban Railway & Terminal Company v. Frederick J. Treuheit.
    Decided, July 24, 1909.

      Negligence — Motorman Injured in Collision — Lack of Caution on His Own Part — Verdict in His Favor not Sustained by the Evidence.

    A motorman is lacking vigilance and caution who leaves a meeting-point on the assumption that, because he saw there the regular crew of the car he was to meet, therefore the car must have arrived, when as a matter of fact the approaching car was not in charge of its regular crew on that day; and he can not recover - from the company for injuries sustained in the resulting collision.

      Frank F. Dinsmore, for plaintiff in error.

      C. S. Schneider and James E. Robinson, for Treuheit.
    The defendant in error, plaintiff below, while employed as a motorman by the railway company, was severely injured in a collision, due to the fact that he left the car barn under the impression that the car which he was scheduled to meet at that point had arrived, whereas -the regular crew on the approaching car, whom he saw at the car barn, were not on that run on that ,clay.: . The jury gave him a verdict of $3,500.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   The main ground of error urged and relied upon in the above case is that the verdict and judgment of the trial court is not sustained by sufficient evidence.

We are of the opinion that his objection is well taken and that the judgment should be set aside.

Treuheit was due at Coney Island barn at 7:20 A. m. on the morning of the accident where he was to wait, meet and pass run No. 1, the car from Bethel, which reached the barn at 7:22.

It therefore made no difference to him, as was testified, whether the car upon which Thornton and Baker were motorman and conductor, was an extra car or not. The schedule in this regard had not been changed, and while the evidence is conflicting as to the matter of. orders between the dispatcher and the conductor, yet -under rule 27 issued by the company it was the duty of the motorman to be vigilant and cautious and not depend entirely upon-the signals,-brakes, or .rules of the company for safety, and therefore we do not think that he could or should have relied upon the fact that he saw Purcell and Newton, who usually had this run, at the barn, to absolve himself from his own neglect, if in leaving the barn before the car from Bethel arrived, he afterwards collided with it. The evidence shows ■that crews are often changed and new men placed upon runs, and it would seem that the schedule as adopted by the company should control.

Further, we are of the opinion that after leaving the Coney Island barn the testimony shows that by the exercise of ordinary care and prudence he could and ought to have discovered the presence of the car from Bethel in time to have avoided the collision. He was going on an up grade at about six miles an hour and saw the roof of the approaching car some distance ahead of him but failed as we think the evidence discloses to have exercised the ordinary care .and prudence he should, for while he testifies he reversed the motor, yet there is strong evidence that he was not giving the attention he should to the movement of the car, and that after the accident an examination of the controller showed the reverse handle was in the position of going ahead, running east. .• ■

It is unnecessary in this view of the case to consider other errors assigned, and as the judgment of the court below is. not sustained by sufficient evidence the same is reversed.


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    AS TO AGREEMENTS TO FORBEAR. SUIT.
    Circuit Court of Lucas County.
    William A. Leflet v. O. A. Browning.
    Decided, June 12, 1909.

      Limitation of Actions — Effect of an Agreement to Forbear Suit on a Condition Famed, — Positive Evidence Required as to Existence of Such an Agreement — Failure óf >Consideration.

    Evidence of some conversation between the parties to the effect that if they could not settle'their differences they would arbitrate, does not constitute evidence of a positive agreement to forbear suit on a condition named, and does not preserve the claim against the running of the statute of limitations.

      J. Y. Todd, for plaintiff in error.

      Mulholland & Hartman, contra.
    Kinkade, J.; Parker, J., and Wildman, J., concur.
   The common pleas court withdrew, from the .consideration of the jury all claims in the answer and cross-petition except the failure of a part of the consideration of one of the notes sued on, for the reason that the claims were shown by the evidence to be barred by the • statute of limitations. Leflet claimed in his cross-petition that there was an agreement between him and Browning that he should not bring suit, and that Browning would waive the statute of limitations, and hence the running of the statute was thereby suspended. The allegations of the cross-petition are carefully drawn and present this issue, but á careful reading of the record fails to disclose any evidence to sustain the allegations in this regard.

A positive agreement to forbear suit on a - condition named made before the statute has barred the. claim, would no' doubt preserve the claim against the statute, but nothing short of such an agreement will do so. Mere negotiating or general talk between the parties to the effect that if they can not themselves settle their differences, then they will arbitrate, is not sufficient. In some states it has been held that where the statute requires a new promise or acknowledgment to be in writing in order to sustain an action on a barred claim, a promise to forbear suit if the statute is waived, will not be sufficient to suspend the running of the statute unless the latter promise be in writing. The Supreme Court of Maine has so held, and insists that to hold otherwise is to furnish an easy method of avoiding the provisions of law as to the new promise or acknowledgment being in writing.

But we do not find it necessary to pass on this point in the case. We have read this record with care, and in our opinion there is no evidence in the record tending to show that any agreement to forbear suit by Leflet in case Browning would waive the statute of limitations was ever made. We think the evidence clearly showed that the running of -the statute was never suspended, and that the trial judge was correct in his ruling in this respect. lie is fully sustained by the authorities in the conclusion reached. We find no prejudicial error in the record and the judgment of the court of common pleas will be affirmed.


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    INSTRUCTIONS TO JURY IN ACTION FOR. PERSONAL INJURIES.
    Circuit Court of Hamilton County.
    Cincinnati Traction Company v. John Oberschmid.
    Decided, March 30, 1908.

      Negligence — Preponderance of Evidence — Charge of Court — Error—• Proximate Cause.

    A charge of court is erroneous which permits the plaintiff to recover on a preponderance of the evidence, regardless of his own possible negligence, and without the negligence of the defendant being the direct or proximate cause.

      Kinkead, Rogers & Ellis, for plaintiff in error.

      F. H. Freericks, contra.
    Smith, J.; Swing, P. J., and Giffen, J., concur.
   The first ground of error urged is that the verdict below is against the weight of the evidence,' but upon an examination of the record we do not think this is well taken.

The second ground is that the court erred in giving special charges Nos. 1 and 2. •

According to charge No. 3, the sole evidence required to'defeat plaintiff’s claim was such as was shown by a “preponderance” of the evidence offered either by the plaintiff or by the defendant, while as a matter of law, if plaintiff’s evidence raised a presumption of negligence that .contributed directly to the injury, and this was not removed, then plaintiff would not be entitled to recover. We think without this element being present in the charge, that it ivas error to give the charge as appears in the record.

Special charge No. 2 is, we think, also erroneous, in that it does not' correctly state the rule under which plaintiff could'recover; for while the injury to plaintiff might have been due to negligence on the part of defendant, yet the plaintiff himself must be free from negligence, and this is omitted from the charge.

As given in the record, the charge permits, the plaintiff to recover damages even though he was at fault himself, and without the defendant’s negligence being the direct or proximate cause of the injury.

We do not think the objections raised to the portions of the general charge on pages 6 and 8, even if erroneous, are prejudicial to plaintiff in error.

It would have been better perhaps to have stated the matter of the “sudden jerk” of the car differently, but as the charge as a whole fairly sets forth the law of negligence, we find no prejudicial error therein.

Judgment reversed.


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    SETTLEMENT OF GUARDIAN’S ACCOUNT.
    Circuit Court of Hamilton County.
    Ellis B. Gregg, Guardian, v. Ralph and Edith Klein, Minors, et al.
    Decided, 1908.

      Final Order — Jn the Matter of a Q-ioardian’s Account — Jurisdiction of the Probate Court in the Matter of Settlement of Accounts and of the 'Common Pleas on Appeal — Sections 52Jt" and 6Jt07.

    Inasmuch as the prohate court has exclusive jurisdiction to'settle'accounts of guardians, the common pleas can acquire no jurisdiction on appeal so long as any item of such an account remains undetermined. .

      Ellis B. Gregg and Wm. F. Fox, for plaintiff in error.

      Harry R. Weber, guardian ad litem, for minor defendants in error.
    Plaintiff in error, Ellis B. Gregg, guardian of the estates of the minor defendants in error, filed an application' in the probate court for allowance of compensation as attorney for himself as.guardian in defending litigation concerning real estate in which his wards had an interest, which litigation was not then and is not yet at an end. . The probate court allowed him compensation for ordinary services, but expressly continued so much of said application as related to attorney’s fees in the real estate litigation until the final result thereof. Appeal was taken to the common pleas court, which court, of its own motion, appointed a guardian ad litem, who- filed a motion attacking the jurisdiction of said court to entertain said, appeal, the chief reasons being that the order appealed from was not a finality, and if it were it was not the settlement of the guardian’s account.’. The motion was granted in part and overruled in part and the court retained for hearing so much of the appeal as related to the allowance for ordinary compensation.
    Thereupon error was prosecuted to the' circuit court, and at the hearing in this court, which was more than four months after the final order on said motion in the common pleas court, the guardian ad liiem on behalf of his wards asked leave to file a cross-petition in error assailing the jurisdiction of the common pleas court on the same grounds set forth in his motion to dismiss the appeal. Objection was made by the plaintiff in .error to the filing of this motion on the ground that the four months had elapsed.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   Upon application to the probate court by the plaintiff in error as guardian for an allowance for extraordinary services including those as attorney at law, the same was granted in part, and continued in part until the litigation in which the services'were rendered was fully determined.

On appeal by the guardian to the common pleas court, a motion by the guardian ad litem to dismiss the appeal was-sustained as to so much of the application as was not finally determined by the probate court, and -overruled as to the residue. To the jiidgment granting the motion in part the guardian prosécutes error, and the guardian ad litem asks léave to file a cross-petition in error assailing the jurisdiction of the common pleas court.

There are two reasons for holding that the common' pleas court acquired no jurisdiction:

1st. There was no final determination of the application by the probate court.

2d.- When finally determined the allowance or disallowance would not be a settlement of the guardian’s account within the meaning of Section 6407, Revised Statutes-.

Under Section 524, Revised Statutes, the probate court has exclusive jurisdiction to settle accounts of guardians, and so long as any item of such account remains undetermined. or- for good cause should be continued, the account itself is not settled, and the common pleas court acquires no jurisdiction by appeal. The record discloses no abuse of discretion by 'the court, and if it did the remedy would be by mandamus compelling the cdur.t to act.

Again even had the court finally passed upon each item of extraordinary services set forth in the application, and made an allowance to the guardian, it would not have been a settlement of the guardian’s account within the meaning of the statute, but only a determination of certain items which could properly be stated in the account when filed, and subject to exceptions by others interested in the settlement of the estate. McMahon, Admr., v. Ambach & Co. et al, 79 Ohio State.

The cross-petition in error of the guardian ad litem may be filed, the judgment of the common pleas court reversed, and the cause remanded .to that court with instructions to dismiss the appeal for want of jurisdiction.


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    NEGLIGENCE AT INTERSECTION OF STREETS.
    Circuit Court of Hamilton County.
    The Cincinnati Traction Company v. Marie Sanders.
    Decided, July 3, 1909.

      Collision between Car and Wagon — Degree of Care Required of Motorman — Negligence of One Riding in Wagon in not Warning Driver —Charge of Court — Pleading—Proximate Cause.

      1. In an action for damages on account of injuries sustained in a collision between an electric car and a wagon at the intersection of two streets, the admission of the plaintiff who was seated with the driver that she saw the car coming nearly half a square away, but made no attempt to warn the driver, raises a presumption of negligence on her part which would entitle the street railway company to an instructed verdict in its favor, in the absence of testimony that the motorman saw the peril of the plaintiff and failed to exercise proper care to avoid a collision.
    2. Proper care on the part of a motorman under such circumstances is not “to do all he can to avoid a collision,” but merely to exercise ordinary care.
    3. Where the defense is a general denial, an allegation that the accident was due solely to the negligence of the plaintiff serves no good purpose and is misleading.

      Kinkead, Rogers & Ellis, for plaintiff in error.

      Orville K. Jones and J. W. O’Hara, contra.
    The defendant in error was riding in a one horse wagon with .a driver, and in crossing Broadway at Eighth street a ear coming from the north on Broadway collided with the wagon and she was thrown from the wagon and injured. At the trial below she was given judgment for $550.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   The admission of plaintiff that while sitting on the seat with the driver she. saw the approaching car nearly half a square away, in the absence of any attempt to warn the driver, raises a presumption of negligence' on the part of plaintiff which was not removed and entitled the defendant to an. instructed verdict, unless.there was testimony tending to prove that the motorman as alleged in the petition saw plaintiff’s peril and failed to exercise ordinary care to avoid a collision. There was some such testimony and the motion was properly overruled. Upon that issue the negligence of the motorman was the more proximate cause.

It was not his duty, however, as stated in the general charge "to do all he could to avoid such collision.” He was required to exercise a proper degree of care under the circumstances, to-wit, ordinary care.

The charge of the court on the subject of burden of proof was misleading as the jury may well have inferred that the defendant was required to prove that the accident was due solely to the negligence of the plaintiff or the driver as averred in its answer, although it denied all negligence on its part. Such an answer is itself misleading and serves no good purpose when the defense relied'upon is a general denial.

In view of negligence of plaintiff and the want of sufficient evidence of negligence of the motorman after he became- aware of the plaintiff’s peril, the motion for a new trial should have been granted; also on the ground that the verdict was not sustained by sufficient evidence.

Judgment reversed and cause remanded for a new trial.


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    AUTHORITY TO APPOINT CONSTABLES FOR. THE PROBATE COURT.
    Circuit Court of Franklin County.
    State of Ohio, ex rel Thomas A. Curran, v. F. M. Sayre, County Auditor.
    Decided, February 8, 1909.

      Court Constable — Act 'Relating to, Unconstitutional — But has been Repealed by County Salary Law — Construction of the Words “Other Employes” as Used in This Act.

    Section 553, Revised Statutes, is not in contravention of Section 26, Article II of the Constitution of Ohio; but has been repealed by the county officers’' salary law, Yol. 98 O. L., p. 89, which provides that the county shall allow the probate judge a certain sum out of the county treasury to pay the salary of all his “deputies, assistants, clerks, bookeepers, and other employes as may be necessary,” etc.' The phrase “other employes” includes court constables.

      George B. Okey, for the plaintiff.

      Earl T. Webber, contra.
    Dustin, J.; Wilson, J., and Sullivan, J., concur.
    In mandamus.
   We are of the opinion that Section 553, Revised Statutes, providing for the appointment of court constables in the probate courts of counties having more than 70,000 population, is not in contravention of Section 26, Article II, Constitution of Ohio. It is an act of a general nature and of uniform operation throughout the state in all counties containing more .than 70,000 inhabitants, and was enacted for the purpose of meeting conditions liable to occur only in large counties. It is on a par with the election, law, held to be constitutional,, which provides that the polls in cities of more than 300,000 inhabitants shall open at 5:30 a. m. and close at 4 p. m., instead of at the hours provided for opening and closing in smaller towns and cities. Gentsch v. State, ex rel McGorry, 71 O. S., 151.

But we are also of the opinion that the foregoing act has been repealed by the more recently enacted county officers’ salary law, Volume 98, page 89, which provides that the county shall allow the- probate judge a certain sum out of the county treasury to pay-the salary, of all his “ deputies, assistants, clerks, bookkeepers, and other employes as may be necessary,” etc. We think the phrase, “other employes” covers court constables. Section 23 of the act provides for the repeal of all acts inconsistent with the foregoing. The inconsistency is, to us, apparent.

The rule that a general act does not repeal by implication a former special-one-does not apply, for the repeal in this instance is not by implication but by express language. Although the act in question is not specifically named, the legislative intent seems to be clear.

The writ, therefore, will be denied and the petition dismissed at the costs of the relator.


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    RECOVERY ON A CONTRACT NOT RIGIDLY PERFORMED.
    Circuit Court of Hamilton County.
    Mathew Ryan v. August Schardt.
    Decided, January 11, 1909.

      Contracts — Failure to Laterally Perform — Preponderance of Evidence— Burden of Proof — Charge of Court.

    1. A contractor may recover notwithstanding his contract has not been rigidly 'performed.
    2. There are no degrees of preponderance;' if the evidence preponderates at all, however slightly, it is sufficient.

      Charles F. Williams and Horace A. Reeve, for plaintiff in error.

      Closs & Luebbert, contra.
    Smith, J.; Swing, P. J., and Giffen, J., concur.
   We do not think the judgment of the trial court should be. reversed on the ground that the verdict is not sustained by sufficient proof nor do we find error in the trial court refusing the special charges asked for by plaintiff in error. The rigid .rule contended for in these charges has been relaxed and where formerly no recovery could be had on a contract like the one in suit unless the agreement was strictly performed, yet now where the contractor acts in good faith there may be such a recovery although the contract may not have been literally performed. Kane v. Stone & Company, 39 O. S., 1.

There is error, however, in. the general charge of the court in this: The court does not definitely or clearly define to the jury the meaning of the burden of proof or the preponderance of the evidence. Also in those portions of the charge where the court speaks of the drain as -One which an ordinarily reasonable and prudent man would have had constructed through his property. This was not the question for the jury but the action was upon a written contract, the performance of which was disputed. Also in charging the jury that the defendant must show that the sewer or drain as built by the plaintiff does not comply with the terms of the agreement. This burden was upon the plaintiff to show, that it did.so comply, and it was also.error to charge that, the burden of proof should be established by a fair preponderance of the evidence. There are no degrees in preponderance; if the evidence preponderates at all, however slightly, this is sufficient. Russell v. Russell, 6th C. C., 294.

No other errors appearing in the record, for the above reasons the judgment, .of the trial court is reversed.


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    AMENDMENT AFTER. R.EVER.SAL.
    Circuit Court of Hamilton County.
    Estella B. Hieatt v. Susan W. Simpson et al.

    Decided, April 10, 1909.

      Pleading> — Authority to Amend after Reversal by the Supreme Gotirt— Payment of Taxes under a Mistalce of Law but with Knowledge of the Pacts. ■
    Where tile Supreme Court sustains a demurrer and remands the case ■for further proceedings, the circuit court has authority to allow an amendment to j;he pleading to which the demurrer was'directed.

      W. T. Porter, for plaintiff.

      Wm. Worthington and Outcalt & Hickenlooper, contra.
    Giffbn, P. J.; Smith, J., and Swing, J., concur.

       For the common pleas and circuit court opinions in this case prior to its being taken to the Supreme Court, see 5 N. P.—N. S., 513, and 4 O. L. R., 136.

   The Supreme Court having rendered the judgment that this court should have rendered, to-wit, sustained the demurrer to the answer, and remanded the cause to this court for further proceedings according to law, the authority to allow an amendment to the answer, under Section 5116, Revised Statutes, is the same as if this court had, instead of overruling the demurrer, sustained the same. The case of Covington & Cincinnati Bridge Company v. Sargent and other like cases apply only where final judgment has been rendered.

The amendment to the answer presented contains facts sufficient to show a forfeiture under Section 2852, Revised Statutes, of at least the ten and one-half acres of land sold to Van Tress.

The payment of taxes under a mistake of law with full knowledge of the facts, can not, when made* voluntarily, be recovered.

It is unnecessary to now determine how much, if any, ivas so paid, or whether the other real estate was forfeited to the persons next entitled thereto in remainder, so long as the proposed amendment states a good though partial defense. If counsel for defendants elect to accept the offer of plaintiff to allow a lien for taxes paid -by them there will be no difficulty in entering a decree to that effect after proper pleadings are filed.

Leave to file amendment granted.


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    ACTION AGAINST FOREIGN RAILWAY CORPORATION.
    Circuit Court of Hamilton County.
    The Northern Pacific Railway Company v. Jacob Baum.
    Decided, January 11, 1909.

      Attachment — Action before Justice of the Peace — Foreign Railroad Gwporations — Jurisdiction over Personally and over the Properti/ of — Sections 6JtTS, 6J/S9 and 6J/96.

    1. Sections of the code of civil procedure relating only to jurisdiction over the person are not applicable under the section relating to attachments where jurisdiction is sought over the property attached.

      2. The right of attachment against personal property of a foreign railroad company, having no place of business or officer upon whom summons can be served within the county, is given under Sectiou 6489, and such a company is not exempted from attachment by the provisions of Section 6478.

      George Hoadly, for plaintiff in error.

      Jacob Shroder and Joseph B. Derbes, contra.
    Smith, J.; Swing, P. J., and Giffen, J., concur.
   In this case we think the judgment of the court below should be affirmed. The proceeding as instituted in the magistrate’s court was in attachment against the plaintiff in error within the provisions of Section 6489, and personal property of the railway company was attached.

The plaintiff in' error contends that under Section 6478 it is exempt from such proceeding. We think, however, that this action relates -only to the service of process against a railroad company under certain restrictions whereby jurisdiction of the corporation is personally sought and is not in conflict with Section 6489, where jurisdiction over property of a foreign railway company is secured by an attachment; whereupon Section 6496 and following sections provide how the matter or thing attached shall be disposed of and upon its sale thé manner in which the proceeds shall be applied to the payment of the indebtedness.

It is not sough't-to bring the corporation personally into court, but the plaintiff in error being a foreign corporation with no officer upon whom a summons can be served or place of doing business in the county and the claim being a debt or demand arising upon contract, the right of attachment against the property of such a corporation is given by this section. It is evident that the sections of -the code of civil procedure relating only to the jurisdiction over the person are not applicable under the section relating to. attachments where jurisdiction is sought to be obtained over the property attached. We are of the opinion therefore there is no error in the judgment of the court below and the same is affirmed..


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    DISCRIMINATION IN THE MATTER. OF VEHICLE LICENSES.
    Circuit Court of Hamilton County.
    The Village of Delhi v. Adam Story et al.
    Decided, April 10, 1909.

      License Fees for Vehicles — Ordinance Rendered Invalid by Providing Unequal Fees for Vehicles of the Same Glass — Recovery of Excess Collected.
    An ordinance which provides that a license fee of $25 shall be paid by each wagon hauling sand, fire-clay, safes, engines, boilers or logs, and other wagons of the same class pay only $10, is unreasonable and can not be enforced.

      F. M. Coppock and J. L. Logan, for the Village of Delhi.

      John R. Holmes and John V. Campbell, contra.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   The only question raised in the. above case is whether or not the ordinance, adopted on February 20-, 1907, by the village of Delhi, whereby said village exacted a license fee of $25 for each wagon hauling sand, fire-clay, .safes, engines, boilers or logs, and for other wagons of a similar character, a fee of $10, is reasonable.

The object of a license fee is to reimburse a municipality for the cost of issuing the same and the expense of police supervision, and the right to license and regulate confers no taxing power. Cincinnati v. Bryson, 15th Ohio, 625.

Any discrimination in an ordinance like the one in question against other people of the same class is illegal. It would seem in the case at bar that such discrimination exists, and as ivas brought out in argument at the hearing of the case the excess over and above the $10 charged was a tax upon the sand business in the village of Delhi.

We can not but hold, therefore, that where the council exacts a license fee of $10 for two-horse wagons without springs hauling lumber, ice, coal, and other heavy articles, -and a fee of $25 for'the owners of wagons exactly the same, but-used'in hauling sand, such a difference in the amount of the fee shows a discrimination that is unequal and unfair.

The defendants in error having paid the entire amount exacted, and the court below having overruled the demurrer to the amended and supplemental petition, and having entered judgment in favor of the defendants in error for the excess over and above the license fee of $10', as provided in said ordinance, the same is hereby affirmed.


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    MULTIFARIOUS OFFICE HOLDING.
    Circuit Court of Franklin County.
    The State of Ohio, ex rel Attorney-General, v. Frank Gebert.
    Decided, October, 1909.

      Office and Officer — Dual Office Holding Not Incompatible, When — Capacity of an Ohio Man to Fill with Honor at One and the Same Time Legislative, Judicial and Executive Offices.

    The offices of mayor and of member of Congress are not incompatible and may be held by one person.
    Dustin, J.; Sullivan, J., and Allread, J., concur.
    Quo warranto.
   In November, 1907-, Carl C. Anderson was elected and qualir fied as mayor of the city of Fostoria. Frank Gebert, defendant, was- at the same time elected president of the city council of said city. .

In November, 1908, said Anderson was also elected a member of Congress of the United States. He continued to. serve as mayor of Fostoria, however; but on the 20th day of February, 1909, he left Fostoria for AYashington, D. C., where he remained until the filing of the petition herein. March 16, 1909,' he qualified as a member of Congress, and entered at once upon- the arduous work of tariff revision. Directly he had- qualified as ¡ a member of Congress, the city eouncil of Fostoria, by resolution, declared his office as mayor vacant, and that defendant, Gebert, had succeeded to it by virtue of Section 132 of the municipal code. Gebert forthwith took oath to faithfully discharge his duties, gave bond, which was approved, and has since been assuming to act as mayor.

It is agreed “that Carl C. Anderson has not failed, neglected and refused to perform any of the duties of the office of mayor of the city of Fostoria, excepting in so far as his absence' in the city of Washington, “ * * * may be regarded as an implied failure, neglect and refusal; and that he has not removed from the city' of Fostoria, excepting in - so far as his' absence in the city of Washington, as aforesaid, may be regarded as a removal:”

The statutes do not cover the case, and it is left to the court to say, under a quo warranto proceeding against Gebert, whether the common law holds the offices of mayor and of member of Congress to be incompatible.

Offices are considered incompatible when one is subordinate to, or in any way a cheek upon, the.other; or when it is-physically impossible for one person-to discharge the duties of both.

The latter element is eliminated from- this case, for although Mr. Anderson can not discharge the duties of mayor while absent in Washington, listening to or engaging in the debates of- the national Congress, the statutes have made-provision for temporary absences and furnished a substitute mayor in-the president of the city council (see Section 132, municipal code). And this court will take judicial notiee that a member of Congress is not always engaged in the work of legislation. Most of his time is spent at home, engaged in correspondence with his ambitious constituents, or “on the stump.” His absences, therefore, on congressional duty, are always temporary.

On the other point, however, it is urged by counsel for defendant that the offices of mayor and member of Congress are incompatible, because one is legislative and the other is executive and judicial; and that it is contrary to the spirit of our government to unite the three co-ordinate powers in one person.

This would be quite forcible if the powers were exercised in the same jurisdiction. If, for instance, the mayor should «be elected a member of the city council of Fostoria and attempt to discharge the duties of both offices; for, in that case, he would find himself as mayor in a state of incompatibility with himself as a member, of council;, for he would have a veto power over the legislative acts of a body of which he was a member. .

So, if he were a member of the state Legislature as well as mayor, he would, as legislator, have the power to vote upon acts regulating, his own duties and ..emoluments as mayor.

These instances come within the. common law definition above stated, and the only remedy ip a divorce on the old and familiar ground of incompatibility.

But what connection can. there be between federal legislation and the official duties of a mayor ? None, that we perceive. For, whether as a- member of. Congress- he revises .the. tariff up or down, he is powerless, as mayor of Fostoria, to enforce it,, nullify it or construe it. Neither is he beholden t.o Congress, in any way for his honors ox- emoluments as mayor.

It has never been doubted in Ohio that the mayors of small cities and villages could legally exercise their statutory powers in criminal hearings. A mayor is an executive of the. city in the enforcement of its ordinances; and a representative of.the.state, with the judicial powers of a justice of the peace, in respect to crimes and misdemeanors. These duties have not been regarded as incompatible. Nor, in our view, are the duties -of mayor and member of Congress.

Indeed, it may alxnost be said to .be a part of the comxxion- law, that an Ohio man may occupy-as niany offices as he can be elected or appointed to, . It is left to his .own sense of fitness and propriety as to whether he should ever decline .any. ;

A judgment of ouster may be entered- against the defendant.


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    LIABILITY FOR. INSURANCE ASSESSMENT.
    Circuit Court of Hamilton County.
    John Leverone v. Sanford Brown, Receiver.
    Decided, May 8, 1909.

      Mutual Benefit Insurance — Liability of Members of an Insolvent "Company to Assessment — Defenses. . '
    The holding in the case of Swing v. Crane, as to defenses a member of a mutual insurance company may set up against an assessment, does not militate against the findings of a trial court or the conclusions that may he reached in an action to enforce payment of such an assessment.

      M. F. Galvin, for plaintiff in error.

      W. T. Porter, for Sanford Brown, receiver, defendant in error.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   We are of the opinion that the judgment as rendered by the court below should be affirmed and the petition and cross-petition in error should both be dismissed.

Under the evidence and by virtue of By-law 16 of the Chamber of Commerce Mutual Insurance Company, plaintiff in error was a member of the company up'to thirty days after September 1, 1904; this being so, he would be liable for assessments made'up to that period.

It had theretofore been decided by the Superior Court of Cincinnati in General Term and affirmed by the Supreme Court, that the company was insolvent and that certain death claims had accumulated for which those who were members during said interval were liable.

We do not think the holding of this court in Swing, Trustee, v. Crane et al, 11 C. C.—N. S., 297, that a decree by the Supreme Court in a suit for ouster of a mutual insurance company would not conclude any stockholder or member from questioning his liability for an assessment, or from setting up any other defense he might have in a suit to collect any such assessment, militates against the findings of the trial court or the conclusion reached herein.

In the suit at bar; plaintiff in error set up such defenses as he had, and the court, held-that as against the amount claimed defendant in error was entitled to recover only a part thereof.

Ih the Crane case one of the defenses was the statute of limitations.

In view of the .entire evidence showing plaintiff in error to have been a member of the company as hereinbefore set forth, we think the judgment of the court below is correct and the same will be affirmed.


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    PROSECUTION OF ERROR. TO CHARGE OF COURT.
    Circuit Court of Hamilton County.
    Abraham Scheinesohn v. Simon Lemonek.
    Decided, July 3, 1909.
    Where error is prosecuted to the charge of the court, the record should show that the charge as embodied therein embodies all that the court said to the jury on the subject complained of.

      Hoffman, Bode & LeBlond, for plaintiff in error.

      Frank Seinsheimer, contra.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   The record does not show that the charge complained of was all that was said to the jury by the court upon the subject in litigation. For aught that appears the errors claimed to exist may have been corrected.

However, the, court is of the opinion that in the charge, in its entirety, there is nothing prejudicial to plaintiff in error and the judgment is affirmed.