author: Smith, J,

text:
    (First Circuit — Warren Co., O., Circuit Court
    April Term, 1898.)
    Before Cox; Swing and Smith, JJ.
    THE FIRST NATIONAL BANK OF FRANKLIN, OHIO, v. WALTER C. SCHAEFFER et al.

      Banicing corporation — Authority to guarantee bonds sold—
    A banking corporation in selling bonds not their property has no authority in law to guarantee their payment. But the bank may, in making the sale, enter into a contract to repurchase them at same price on demand, and such contract will be enforced.
    Error to the Court of Common Pleas of Warren county.
   Smith, J,

One of the principal contentions of counsel for the plaintiff in error in this case is, that the court of common pleas erred in overruling the motion for a new trial, filed by the Bank, based on the ground that the verdict of the jury was against the weight of the evidence in this, viz.: that the issue as submitted to the jury was, whether a guaranty sued on, was based on the consideration that the bank being the owner of $3700 of the bonds of the Alpha Paper Company, exchanged them with Schaeffer for a like amount of the Friend & Forgy Paper Company bonds,and as a part consideration therefor, the Bank, and Anderson & Boynton, signed the written agreement sued on, which attempted to guaranty the fulfillment of the contract between the Alpha Company, and said Schaeffer, one of the terms of which was that the Alpha Company would pay to said Schaeffer the principal of these bonds of the Alpha Company at a certain date. These allegations were explicitly denied by the answer of the bank, or that there was any consideration to the bank for its execution of this contract of guaranty — and whether there was. such a consideration as the one alleged was one of the principal questions of fact submitted to the jury.

In the original petition filed by]|the [plaintiff, it !|wae averred that about April 15, 1893, the bank had sold to Schaeffer $3700 of the bonds of the Friend & Forgy Company, and as a part of the transaction, and as an inducement to Schaeffer to purchase them,it agreed to re-purchase them from him at par at any time that he desired. That he after-wards frequently, before March 5, 1895, requested it to repurchase them from him and pay him the par value of $3700 and interest, as it had agreed to do, but it neglected and failed to re-purchase them. It further averred that on March 5, 1895, a written agreement was made between the Alpha Company and himself, whereby the Alpha Company was to deliver to plaintiff $3700 of their bonds in lieu of the $3700 of the Friend & Forgy bonds held by plaintiff, and to pay said $3700 Alpha bonds, December 15, 1895, and that thereupon, on that day (March 5, 1895), the bank, [in consideration of the surrender by plaintiff of his said bonds issued by the said Friend & Forgy Paper Company, and the release thereby of said bank from its agreement to purchase said bonds as aforesaid], and Anderson & Boynton, in consideration of the advantage to accrue to them and said Alpha Paper Company by the completion of said contract, and the receipt by plaintiff of the Alpha Company bonds, did execute the written guaranty sued1 on, and thereby agreed to guaranty the payment of said $3700 of the Alpha Company bonds on December 15, 1895.

At the trial of the case, after the introduction of the evidence in the case, the plaintiff applied to the court for leave to amend his petition by striking therefrom the allegation shown above between the brackets. This was allowed by the court, and as we understand, the effect of this was to make the claims of the plaintiff, in so far as any consideration for this guaranty on the part of the bank is concerned, to stand on the ground that the bank at the time of the exchange made by Schaeffer of his $3700 of Friend & Forgy bonds for the Alpha Company bonds, was really the owner of the Alpha bonds, and therefore had the right to’sell them and guarantee their payment, and that by the amendment plaintiff abandoned the claim that there was a good consideration for the bank doing this, because it had originally agreed to re-purchase the Friend & Forgy bonds on demand. And as we understand it, this question of the ownership of the Alpha bonds by the bank was the one submitted to the jury.

The verdict having been found in favor of the plaintiff, a motion for a new trial was filed, and this was overruled by the trial judge in an elaborate opinion, a copy of which we have seen. In that opinion he states very clearly and explicitly,that if the right of the plaintiff to recover depended upon the fact that when the exchange of bonds was made, the bank was the owner of the Alpha bonds, that the verdict ought not to stand, for there was no evidence to show this; and we may say, that an examination of the bill of exceptions fully confirms this statement, and the bank having no ownership of the bonds, nor any interest in them so far as the evidence'discloses, its attempted guaranty of the contract between Schaeffer and the Alpha Company, did not in any way bind the bank, for neither it nor its officers had any legal right or authority to do so, and the act of its officers was a nullity.

But while the trial court held that the bank was not the owner of the $3700 Alpha Company bonds received by Schaeffer, and never had been, he desired to grant a new trial upon the ground that the original petition had stated a good consideration, viz., a sale by the bank to Schaeffer of the Friend & Forgy bonds and the agreement of the bank to re-purchase them at par on demand; and that it was sufficiently alleged that this was the consideration of the written guaranty. We are of the opinion that if there had been such a contract on the part of the bank in the sale to Schaeffer of the $3700 Friend & Forgy bonds, that it would have made the bank liable for the performance thereof, And if such re-purchase had been demanded and refused, that plaintiff would have had a good cause of action against the bank for the breach of this contract. But we think it does not follow, that because Schaeffer on taking certain steps might have had a claim against the bank, that such fact would give to the bank legal right to guarantee any contract which Schaeffer might make with reference to said bonds with another person, or of such a contract as was made in this case. But the argument of the court is, that as the petition originally set out the contract of the sale of the $3700 Friend & Forgy bonds by the bank with the agreement to re-purchase them on demand, and that the evidence heard, tended to support this allegation, and that the bank made this guaranty m consideration of its thereby being discharged from its original liability, and that the amendment made no change as to the real cause of action, but only alleged a different way in which the bank was interested in effecting the exchange of the bonds, that this was not a material variance.

As to this who think the amendment made at the trial was material, and changed the ground upon which plaintiff claimed the right to recover. He in effect claims to recover only on the ground that the bank at the exchange owned the Alpha bonds, and thus might properly guarantee their payment, and expressly withdraws the claim that it was to relieve the bank of its former liability. It is evident that the case subsequently proceeded upon thisjitheory, and counsel for the bank might well have foreborne to offer evidence as to the original agreement, or to have had the court charge the jury on these questions, But we[] think it is sufficient to say that the question whether" there [¡was this original liability, was not submitted to the jury or passed on by them, as to whether it was a consideration for the guaranty. The court said the evidence tended to show it, but by the amendment the question was not submitted tó the jury; and if so, their verdict ought not to be considered as passing upon or settling it.

So. far as we can see, as to the bank there was no consideration for this written guaranty. It was not the owner of any of the bonds exchanged, and therefore it was without power to guarantee their payment. Anderson & Boynton might bind themselves to do so, and they did; but the bank, a creature of the statute, occupies a different position and can only make such contracts as are authorized by law. As already stated,the bank might legally have bound itself to re-purchase these bonds. But this is not an action for the breach of any such contract. To make it liable,the request should have been made and the bonds tendered for such purpose. This having been done, in an action brought to recover damages for the breach of said contract, the bank would have been liable.

We are of the opinion,then, that the court erred in refusing to grant a new trial based on the ground that the verdict was against the evidence, and a new trial will be awarded.


source: Caselaw Access Project

author: Douglass, J.

license: Public Domain

text:
    (Fifth Circuit — Licking Co., O., Circuit Court
    March Term, 1898.)
    Before Adams, Douglass and Smyser, JJ.
    LEVI LESCALEET v. MARGARET RICKNER et al.

      Covenant against encumbrances runs with the land—
    (1.) A covenant in a deed that the land is free from incumbrances is a covenant running with the land for the benefit of all subsequent grantees, and is not broken until eviction.

      Trusts exempt from statute of limitations—
    (2.) One of the requisites to establish a resulting trust in the case of a conveyance made by deed absolute on its face, on the ground that the purchase money was furnished by the party claiming the trust, is that the money' should have been furnished con tempóranepusly.with the purchase. . , >

      Resulting trust — Requisite to establish—
    (3.) It is not every relation called trust, that is exempt from the statute of limitations, but only those trusts peculiarly cognizable in a court of equity.
    Error to the Court of Common Pleas of Licking county.
   Douglass, J.

This action is brought to engraft a trust upon certain land, or an investment in land,claimed to belong to the estate of one George Lescaleet, which it is claimed was wrongfully invested by Richard Lescaleet, the title being taken in his own name.

For the purpose of the errors assigned here, the matter of $700, is eliminated from our inquiry; also respecting the matter of the Buckingham lien, etc.; and the matter resolves itself to the question respecting the thousand dollars which grew out of the breach of warranty against incumbrances.

This transaction covered thirty odd years, and a brief recitation of the facts will lead us up to the question that is before this court.

In January, 1849,William W. Hollister executed a mortgage to Joseph Taggart, covering the 106 acre tract in controversy. In September, 1849, Hollister conveyed this 106 acres of land to George Lescaleet, by deed of general warranty. In 1855, Taggart brought a suit to foreclose against Hollister and 'Geo. Lescaleet. George Lescaleet, pending this proceeding, in 1858, died testate, leaving a widow (Cordelia), and children, of whom Richard was one, and who was also executor of his father’s estate. All these parties, at the death of George Lescaleet, were made, defendants in that suit. In 1861, the property was sold to Thomas O’Bannon. The same year O’Bannon conveyed the 106 acres to Stanbery, and he conveyed to Richard Lescaleet for $1800, and he in turn executed notes and mortgage to O’Bannon for $1800. Negotiations were then begun to secure from Hollister the price of this breach of warranty. This, as the record discloses, was consummated a year later, and paid off part of Richard’s debt for this 106 acrres of land. It is not asked to disturb the decree rendered in respect to Buckingham’s claim, but the decree otherwise and as to the other parties is said to be erroneous. The main contention is as to the thousand dollars which Richard Lescaleet received from Hollister by reason of breach of covenants in Hollister’s deed against incumbrances; and was this assets of the estate of George Lescaleet? Or, conceding that he received the same, did it come to him as devisee or heir? A solution of this question leads us to inquire whether its investment in real estate created a trust. If it was assets of the estate, and by its investment became a resulting trust, then the statute of limitations could have no application, and a sale of the lands was proper. The trust established, relief could be had.

But, the contention is that it is not. The first inquiry as we think is as to whether or not this is a covenant running with the land. We have cited to us numerous authorities upon the proposition, and there is one, 2 Disney, 573, to which I will refer: “The covenant of freedom from incumbrances, in Ohio, is a real covenant running with the land, not broken until eviction.’’ That is the question decided in that case, and is, we think, a well considered case.

In 10 Ohio, 333, after discussing this question generally, and reviewing the subject, the court says:

“The same train of reasoning which led the court to this decision will lead lo a similar result with respect to the covenant against incumbrances. This covenant, like the covenant of seizin, is made for the benefit of the grantee in respect to the land. It is not understood as a contract in which the immediate parties are alone interested, but as intended for the security of all subsequent grantees. If the first grantee continues in possession of the land while his title remains undisturbed, and conveys to a subsequent grantee in whose time an outstanding incumbrance is enforced against the land, justice requires that this subsequent grantee should have the benefit of the covenant against incumbrances, to indemnify himself. We hold, therefore, in accordance with the decision in the case of Backus v. McCoy, 3 Ohio, 211, that a covenant against incumbrances is a covenant running with the land until the incumbrances are removed. And, therefore, that the plaintiff is entitled in this case to recover for the breach of such covenant.”

There are numerous decisions on this question, and it is settled law in Ohio, that it is a covenant running with the land; and, if it is a covenant running with the land, as it is, it would go to the devisee or heir, and the executor would have nothing to do with it. When the breach occurred, it would enure to the benefit of the grantee, who would then have the right.

Now, was this a resulting trust? We think that there was a clear distinction made here, and that the statute relating to trusts was properly limited; that is, that it is not every relation when we are speaking about trusts; that it is that class of trusts that are peculiarly cognizable by courts of equity, and it is only these, that are granted immunity from the operation of the statute of limitations. The controlling question in determining this is as to whether or not purchase was made contemporaneous with payment. I need not more than cite 24 Ohio St., 624; 5 Ohio, 256, and 16 Ohio St., 169. I read from the 24 Ohio St., 624:

‘‘To establish an express trust, in the case of a conveyance by deed absolute on its face, it is requisite that the evidence should be clear, certain and conclusive in proof, not only of the existence of the trust, and that, too, at the time of the conveyance, but also as to its terms and conditions.”

We think that is a matter that is controlling in this case, and it is a condition without which no such trust can be engrafted. It may furnish an occasion, or give rise to an action for money had and received, but this condition is. one that is absolutely necessary. The record does not bear out the fact that this purchase was made at the time that this money was received from Hollister by Richard Lescaleet. The contrary, if anything, is true; that in 1861, this property was purchased by Richard Lescaleet,and that he executed his own notes and mortgage for the full amount, $1800; and, having done so, he sought by a correspondence invoking other parties to his aid to obtain from Hollister a thousand dollars, or as much as he could get to cover the breach of this wararnty against incumbrances; and, while it does not decide this case, we think it is a matter for remark here, that Hollister, in the payment of this as he did in 1862, paid it to Dick Lescaleet; we don’t see that he paid it for the benefit of all of these heirs even. He says: '‘I like Dick,” The inference is strong that he wanted Dick to have it. In a suit at law, if it were not barred by the statute of limitations, it would be a debatable question whether or not these other heirs would have the right, under the circumstances in which this was obtained, to recover their share from Dick Lescaleet.

If it is not a trust, it is barred by the statute of limitations. We think it is not a trust. This record does not disclose facts which warrant us in holding that -this was a trust in any view of the case. One of the requisites to the creation of a trust in this way is that the investment should be contemporaneous with the purchase. If A takes the money of B and purchases a farm, pays for it with’ B’s money, and takes the title in his own name, of course a trust would arise. But that is not this case. Richard Lescaleet purchased this farm and gave his notes. That thousand dollars was simply used to take up a part of that $1800, purchase money note and mortgage which was; the debt of Richard Lescaleet; and, at any rate, this decree would not be right, because it could not cover this entire amount. He had paid on the premises $800, and he was entitled as heir to his share. The devisees, and not the executor, are the only parties who can sue for the breach of covenants running with the land.

Carl Norpell, and S. M. Hunter, for Plaintiff in Error,

Kibler & Kibler, and Waldo Taylor, for Defendants in Error.

We think it is unnecessary to say anything further in respect to this, because this covers the whole contention. This was not assets of the estate. This incumbrance was a covenant running with the land. There was no trust. The purchase and payment were not contemporaneous; and if these parties were not barred by the statute of limitations, they could sue at law for their proportion; but they are barred, and this decree is reversed. That reverses the case on the weight of the evidence also, as well as being contrary to law. The case will be remanded for further proceedings.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox. Swing and Smith, JJ.
    JESSE LOWMAN, Administrator of the Estate of John W. Sewall, v. JOHN W. SEWALL et al.

      Action by administrator to set aside fraudulent conveyance of intestate — After decision in proper court, may apply to probate court to sell the land—
    Where,in an action by an administrator to set aside conveyance» made by his intestate as fraudulent, in a court of competent jurisdiction, such court decides that such conveyances were fraudulent and should be set aside, but does not proceed further to order a sale of such property to pay debts of the estate, the administrator may then apply to the probate court to have sucn property sold to pay debts.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

We are of the opinion that the court of common pleas erred in holding that the probate court had no jurisdiction of the action brought in that court by the plaintiff in error as administrator of Sewall’s estate to sell real estate claimed to belong to him at the time of his death, to pay the debts of his estate, and in dismissing such action when brought into the court of common pleas by appeal.

As we understand the facts, an- action was brought by a creditor of Sewall in his life time to set aside certain conveyances of real estate made by Sewall to his wife, and perhaps to others, as being fraudulent as against him and other creditors of Sewall. Proper parties were made, and by the judgment and decree of the court of common pleas said deeds were held to be fraudulent as to the creditors of Sew-all, and they were set aside. Prior to the hearing and decree Sewall died, and Long, who had been appointed administrator of his estate, became a party to the action, and filed an answer and cross-petition admitting and alleging the fraudulent character of the deeds, and asking that they be set aside and the property be sold for the payment of the debts of Sewall.

The action was thereupon appealed to the district court, and in that court, on February 28,1881, a judgment or decree was entered finding that the allegations of the petition as amended and of the cross-petition of Long, administrator, were true, and that they were entitled to the relief therein prayed. The court then found that there was due to the plaintiff from John W. Sewall on the judgment set forth in the petition the sum of 16108.65, with interest from Janu ary 3, 1881, and that the real estate described in his petition and supplemental petition was at the time of the commencement of this suit and of the death of said Sewall the property of said John W. Sewall, and the legal title thereto was held subject to the rights of his creditors to subject the same to the payment of his debts. It was thereupon further ordered that so much of said real estate as may be necessary to pay the debts of plaintiff, and all the right,, title and interest of all the parties to this action in said real estate be sold by Longley, a master commissioner, and that the proceeds be applied to pay taxes, costs and the-claim of plaintiff. And the cause was then referred to the-same master commissioner, to report the amount of the-debts of said Sewall, deceased, other than that of the-plaintiff, and further order for the sale of the residue off said real estate for the payment of said debts was deferred1 until the coming in of said report.

By the judgment thus entered, the deeds in question were not specifically and in terms stated to be fraudulent and void as to creditors, but we think such was the force- and effect of it,and it was found that the plaintiff and Long were entitled to the relief prayed for, and that Sewall at the time of his death was the owner of the real estate, and-that it was subject to the payment of his debts.

Some steps were taken in the district court to carry out this decree; but in 1887, the circuit court, the successor of the district court, being of the opinion that’ the further proceedings to sell the lands covered by the conveyances in question, so set aside, should be stayed, held, on a motion filed by the heirs of Sewall, that • it had not jurisdiction to-proceed to sell the land, but that this should be done in the probate court, and that further proceedings for the sale-of this land in the circuit court should be discontinued— and such an entry was made.

Whether this order of the court was a proper one under •the circumstances of the case, is perhaps not now involved, •It was acquiesced in by the parties, and the case was no-longer pending in the circuit court. But there was the 'judgment of the-court that the deeds sought to be set aside in that case were invalid, and that Sewall died seized off the lands, and that'they were subject to the payment of his debts.

Thereupon, the administrator of Sewall tiled his petition in the probate court, making all of the heirs of Sewall, and persons claiming liens in said lands,parties defendant, setting out the necessary facts that Sewall died seized of the lands described in his petition, (describing only a part of them), and that it was necessary to sell the same to pay his debts. The heirs of Sewall,defendants,claiming that Sew-all at his death was not the owner, this was adjudged against them, on the theory doubtless that the deeds had been set aside by the district court, and under the order of the probate court the lands described in the petition were sold, and the proceeds appropriated towards the payment of the debts of Sewall, but they were not sufficient to pay the whole thereof. By an amendment to the petition the administrator sought the sale of other of the lands described in the original suit against Sewall to set aside the conveyances. The same defense was made as to this, and the property ordered to be sold. From the last decree on appeal was taken to the common pleas court by the defendants.

It may be stated that in the proceedings on the amended or supplemental petition in the probate court the administrator, by way of reply to the answer of defendants that Se-wall at his death was not the owner of the lands described in the supplemental petition, pleaded that in the same action in the probate court on the original petition, this had been adjudicated in substance against the defendants, and that they were thereby estopped to try the issue again.

' On the hearing of the case the court of common pleas, on the evidence contained in the bill of exceptions, allowed .by the court, it was then held that the probate court had no jurisdiction in this case, as it was (as we understand this decision) an action by the administrator in that court to set aside the conveyance and sell the land, and that under .sections 6139 & 6140, Revised Statutes, such an action can only be brought in the court of common pleas.

In this holding we think the court erred. As we have held, the deeds had before been set aside by a court of competent jurisdiction, and that court did not proceed to have the property sold. It simply held it to he the property of Sewall, and liable for his debts. Such being the case, we see no reason why the administrator in a proceeding in the probate court, might not legally and properly have it sold to pay the debts of his intestate. The evidence warranted the court in finding that it should beso sold, and the dismissal of the action was wrong, and for the error of the court in refusing to grant a new trial, the judgment will be reversed.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Smith and Swing, JJ.
    THE VILLAGE OF BOND HILL v. JENNIE M. ATKINSON, Adm’x. of the Estate of Jane Miller, Dec’d.

      Note. — For decision of the Court of Common Pleas in this'case see 1 Nisi Prius Kep., 166.

      Injury from defective sidewalk — Evidence of repairs, when admissible—

    (1.) Where,in an action for damages for injury caused by a defective sidewalk, the defendant introduces as a witness, the contractor who held the contract from the village to keep the sidewalk in repair,and he testifies that immediately after the accident he examined the sidewalk at the point in question, and found it in a good condition, it is competent for the plaintiff in cross-examination to ask the witness whether he did not, a few days later, repair the sidewalk at the point in question.

      Suit by administrator — Admissions by deceased admissible—
    (2.) Where death was caused by the injury, and the action is brought by the administrator's under the statute, admissions of the deceased as to the manner in which the accident happened are admissible.

      Expressions of deceased as to condition admissible—

    (3.) Expressions by the deceased after the accident, as to her condition, tending to show that the accident was not the cause of her death, are admissible in such case.

      Contributory negligence in going on sidewalk known to be defective

    (4.) A person who in the day time voluntarily attempts to pass over a sidewalk of a village, which he knows from any cause to be defective or unsafe, and which he might easily have avoided, cannot be regarded as exercising ordinary prudence, and therefore cannot maintain an action against said village for damages sustained on account of any such known defects, even if the village was guilty of negligence in allowing such defects to exist.

      Excessive Verdict—
    (5.) Where the deceased was sixty-eight years old, of frail constitution, suffering from heart disease, and from the consequences of a fall sometime previous to this accident, a verdict of $2500.00 is excessive.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

The plaintiff in error in this proceeding seeks the reversal of a judgment against it recovered by the defendant in error in an action brought by her against the village to recover damages for the death of Mrs. Miller, brought about, as it is claimed, by a fall on a sidewalk in said village, which it is averred, was negligently allowed to be and remain in a dangerous condition.

It is urged by the plaintiff in error that the court erred in overruling a motion for a new trial based on the ground that the verdict was against the weight of the evidence, and that the court erred at the trial in the admission and rejection of evidence, and in the charge given to the jury and in refusing to give certain special charges asked by the defendant. We notice these in their order.

Though there was quite a conflict in the evidence as to the fact|whether the village had been guilty of negligence in allowing the sidewalk to be and remain out of repair at the point thereon where Mrs. Miller received her injury, we think*that the’finding* of the jury that there was such negligence on the part of the village in allowing the sidewalk at that point to remain in the condition it was at the time the injury was sustained, was not so manifestly against the weight of the evidence as to justify us in reversing the judgment on that ground. It is clear, we think, that in some places the walk was, and long had been in bad condition, and if the testimony of several of the witnesses is to be credited, it was so at this particular place, and though this was denied by other witnesses, as the jury was the tribunal to judge of the weight and credit to be given to the evidence by these witnesses unless their finding is manifestly wrong, we should not interfere with it.

We have had more doubt as to the question whether it was shown that the injury received by Mrs. Miller was the proximate cause of her death. The law as to this was clearly and explicitly stated to the jury by the court, and they were told that unless this were so, the plaintiff was not entitled to recover, On this point, too, there was evidence which, if the jury believed it to be true, justified them in finding that it was, and though there was strong evidence to the contrary, we have reached the conclusion that for the reasons before stated, we cannot rightly interfere with their finding on this ground. And so of the issue raised as to whether Mrs. Miller by her own negligence directly contributed to her injury.

It is further objected that the trial court erred in allowing the plaintiff below to offer testimony tending to show that a short time after the accident to Mrs. Miller, the village, by its agents, made repairs to this sidewalk, at and about the place where she received her injury. The manner in which this testimony was received was this: No such evidence was offered by the plaintiff in chief. When the defendant was introducing its evidence in defense, it called a witness who testified in substance that under the emplovrqent of the village, he had charge of this sidewalk to keep it in repair, before and after the accident to Mrs, Miller, and that on the day on which she was injured, (which was early in the morning),he had carefully examined the sidewalk in question, and also a few hours after Mrs. Miller had fallen thereon, and had found it in good condition at the point where she fell. Of course, this was relevant and important evidence, and, on cross-examination of this witness,he was asked whether it was not true that with,-in eight days after the accident he, with two assistants, had made repairs to the sidewalk at this and other points. The question was objected to by the counsel for the village, but the objection was overruled and exception taken, and the witness was allowed to answer, in substance, that a few days after the accident he had gone over and examined the walk,and found that it did need repair, and that he and his assistants did, for the village, repair it.

We think it entirely clear that the plaintiff, in offering her testimony to show negligence on the part of the village in permitting the sidewalk to be out of repair, could not, for this purpose or object, legally offer evidence tending to prove that shortly after the accident the village had repaired this sidewalk, — thus to raise the presumption that at the time Mrs, Miller was injured, the Bidewalk was in bad condition. See the discussion of this question in' 8tb C. C. Rep., 701, and the authorities, there cited, and particularly the case cited from 80th Minn., 465, where the reasons for the exclusion of such evidence are very forcibly stated. But in my opinion, under the circumstances of this case, as hereinbefore stated, the question and answer were competent. It was a legitimate and proper cross-examination of this witness to test his credibility and throw light on the question whether his statement as to the safe condition of the sidewalk at thejtime cf the accident was trustworthy and entitled to credit. If on such cross-examination the witness should state facts, which would limit or discredit his statement in chief, the plaintiff should have the benefit of such statements.

Suppose the question had been put to him, whether within a few minutes after the time he first examined it, and as he said, found the sidewalk in good condition, he had returned there, and with his assistants had torn out the old and rotten sleepers and the boards laid upon them for the walk, and re-placed them with new ones, and he had answered that he had done so, would not such testimony go very far to discredit his first statement, made a few minutes before,that the walk was in a safe and good condition? Such would certainly seem to be the case, and that such examination and evidence would be competent as tending to discredit his first statement. It is analagous to a case of this kind: Suppose the witness had testified,as he did, that When he examined it shortly after the accident he had found it in good condition, — 'should it not then be admissible on cross-examination to ask him if he had not soon after that told a number of persons that when he examined it, it was in very bad condition? It certainly could, to show whether his original statement was entitled to credit. For any other purpose, of course, his statement to others would not be admissible as against the defendant, or as tending to show that what he thus said to others was true. And so the answer of the witness as actually given was not admissible as tending to prove that by making the repairs, the village in any way admitted that the sidewalk was in bad condition at the time of the accident, or that it needed any repair, but was admissible only for the purpose of discrediting the witness out of his own mouth, and it would be the duty of the court, if called upon to do so, to state for what purpose the evidence was competent.

One of the grounds set out in the motion for a new trial Was that‘-the damages were excessive, appearing to have been given under the influence of passion or prejudice.” The evidence disclosed that Mrs. Miller, plaintiff’s intestate, was about sixty-eight years old when she was injured. She was living with her husband, sixty-nine years of age, •and the widow of a deceased son, with her six small children, lived with them. The daughter-in-law was occupied with business in the city during the day,' and as a rule, was •at home only at night. The old lady attended to the household affairs and cared for the children. She was, according to the evidence, a frail looking woman, and owing to ■some organic disease of the heart, we suppose, her expectation of life was not great. She had also been seriously injured some time before this accident by falling into an open cellar-way, but seemed to have in' great measure recovered from the effects of the fall,

This, in substance, was the character of the evidence submitted to the jury, as to the measure of damages. Evidence was also introduced tending to show that she suffered greatly from the effects of the fall on the sidewalk, and was confined to her bed for weeks and perhaps months thereafter, her thigh bone having been fractured by the fall. The verdict of the jury was $2500 damages, which •was upheld by the court. Conceding the fact that . the plaintiff was entitled to recover, we are of the opinion that the damages allowed were excessive. The jury were instructed on this point by the court as follows, viz:

‘‘The rule furnished by the statute is, that the jury may give such damages as they shall deem fair and just with reference to the pecuniary injury resulting from the death of Jane Miller to her husband, and to her surviving daughter Mrs, Jennie Atkinson. • And in determining the pecuniary injury from her death, the reasonable expectation of what the husband or daughter might have received from her had she lived, is a proper subject for the consideration of the jury. You may consider the Iosb of household services rendered by Jane Miller. Also the ' loss to the surviving husband of the wife’s society. Also the age, health and occupation of the surviving husband, and of the daughter Mrs. Atkinson. Also the age, health and habits of industry of the deceased, Jane Miller; - and all other circumstances shown by the evidence in the. case for the purpose of estimating the pecuniary injury to the surviving husband and the surviving daughter.
“And in estimating the damages, the jury will not consider the expense of nursing or physician’s services rendered Jane Miller. Neither will they consider the bereavement of the beneficiaries, or the anxiety,, anguish or pain suffered by the living for the dead. The' damages' are for pecuniary loss, not for a solace.”

This seems to us to have been a proper statement of the law as to the rule by which the damages should be ascertained, unless the statement that they might take into the account the loss to the husband of the wife’s society be incorrect, but this was not excepted to. But on the evidence we cannot see how the jury was authorized to find any such sum. As has been said, she was 68 years old and frail in appearance, and there was no evidence as to the value of her services to those entitled -to receive the amount of the judgment to warrant the finding.

At the trial of the case, the counsel for the defendant introduced a witness and proposed to prove a statement of' Mrs. Miller, made some time after the accident, as to how it occurred. The question was asked, what she had said with reference to how the accident happened. This wag-objected to by the counsel for plaintiff, and the objection was sustained by the court, and defendant excepted, and' stated that he expected to prove by the witness that Mrs. Miller then said to the witness that she was walking on thttedge of the sidewalk in a hurry tofmake a train, and that she tripped and fell.

The question thus raised is an interesting and important one, and as to which I personally have felt®great doubt. inhere can be no question but that in an action brought by ..a plaintiff .to recover damages for a personal injury to .himself or herself, received by reason of negligent conduct •of the defendant by reason of which the injury was produced, it would be competent for the defendant to offer admissions of the person so injured, tending to prove, for instance, that the defendant was not negligent, or that she herself was negligent and thus contributed to her own injury. But does the same rule apply where the injury is averred to have caused the death of the injured person, and the action,instead of being brought in her name, is brought .under the statute, section 6134-5, by the administratrix of .her estate for the benefit of the husban or wife, relict, and ■children, or if there be neither, of the parents or next of kin? In the latter case, the damages recovered'are not to' ■be treated as a part of the general estate of the deceased ■person, but as a fund for the beneficiaries entitled thereto. ■It is claimed, too, that the plaintiff under the express provisions of the statute can maintain the action,, only in a •case where the deceased persons, (if death had not ensued), ■could have maintained the action for the personal injury. That is, every defense to such an action available as against the person injured is available in an action brought by the personal representative. But whether the same .rules of ■evidence as to admissions by the person injured as to her conduct, for instance as to how and under what circumstances she received the injury, and whether, there was due ■care on the part of the defendant, or a want ■ of' care ■on her part which contributed to her injury,is the:doubtful ■.question. As to this we think there is no 'decision■ -jit ' this •state by the supreme court, and the decisions; of other states are conflicting. It seems to us that the law, shouid-be that •such evidence should be received. The action, is-.'brought by the personal representative of the deceased person. Though given by the statute, the right comes to the personal representative from the deceased person, and it is a general principle of the law that admissions made by those persons under whom others claim, when made before the right of action accrues to the latter, are admissible against them. A majority of the court inclines strongly to the opinion that evidence like this is admissible, and while I doubt whether such is the law, I do not dissent from such holding.

Another question somewhat similar to this, but differing-in some respects, is raised by another ruling of the court.

As has been stated before, one of the material questions in the case is whether this fall upon the side walk- was the proximate cause of Mrs. Miller’s death — that is, whether the heart trouble of which she died had been produced by the fall, or whether if she then had organic heart trouble, the shock brought about by her injury increased it, or. hastened her deah. The defendant sought to prove that she in great measure had recovered from this injury and' was better some months afterwards than she had been before she received the injury.

The defendant called a witness who testified that sometime after Mrs. Miller received the injury she visited her,, and had a conversation with her. She was asked what conversation she then had with her in reference to her health. This was objected to by the counsel for the plaintiff, and the court sustained the objection, to which ruling the counsel for plaintiff in error excepted, and stated to the court, that he excepted to prove by the witness that Mrs. Miller then said that she felt much better than she had been before the accident, and that she was worn out just before the accident with the care of her grandchildren. That she had had a very good rest, and felt better than she had for a good while before the accident.

In addition to the suggestions before made as to thecompetency of admissions by plaintiff’s intestate in a case of this kind, theie.is, perhaps, another reason which would •render some items of the testimony sought to be introduced admissible in this case. The rule of law is that “whenever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feeling, made •at the time in question, are also original evidence. If they were the natural language of the affection whether of the body or mind, they furnish satisfactory evidence, and often the only proof of its existence.” 1 Greenleaf on Evidence, sec. 102. Such evidence we think, should have been admitted here on that ground, not perhaps as a relation of past events or .feelings, but so much as they were the expressions of her feelings as to her physical condition at that time.

The defendant below asked the court to give a special charge to the jury as follows:

“A person who in the day time voluntarily attempts to pass over a side walk of a village, which he knows from any cause to be defective or unsafe, and which he might easily have avoided, cannot be regarded as exercising ordinary prudence, and therefore cannot maintain an action against said village for damages sustained on account of any such known defects, even if the village was guilty of negligence in allowing such defects to exist.”

This charge was refused and defendant excepted.

The trial judge in his general charge on this point instructed the jury as follows:

“If you find that there was a dangerous place in the sidewalk at the place where Mrs. Miller was injured, or in the immediate vicinity of the place, and that she knew it was unsafe or dangerous to walk over such place, and that she voluntarily and unnecessarily walked on such place, then she cannot be regarded as exercising ordinary prudence.”

And then added this:

“If you find that the village authorities maintained this sidewalk for the use of the inhabitants of the village in passing along Paddock Road, and that such walk was commonly used by such inhabitants, then I charge you that Jane Miller had the right to use this side walk, although you find that the sidewalk had gotten out of repair and that she knew of that fact, providing that she used such care in walking over the same as a person of ordinary care would ■use in walking over the same; unless you find that she could easily have avoided it in going on her way to her destination. ”

We are of the opinion that the special charge asked was in strict conformity with the law as established in this state, see 33 Ohio St., 529, and that unless it was in substance given, the court erred in refusing it. This, perhaps, was substantially done in the first part of the charge we have quoted. What follows that part however, seems to limit the rule just stated, by the further language that if the sidewalk was maintained for the use of inhabitants, and was commonly used by them, that she had the right to use it, though it was out of repair, and she knew this, if she used ordinary care in doing so. This limitation on the rule we think was objectionable. If it was dangerous and she knew it, the mere fact that it was commonly used by others, and that she exercised ordinary care in using it, would hardly seem to give her the right to recover damages for an injury thus received by her where the village also was neglectful. To so hold, would be to run counter to the decision before quoted, which makes it negligence per se for a person to expose himself to a known danger unnecessarily. And it is a question with us, whether the final paragraph of the charge in question, that the rule stated by him would not apply unless the jury should find that she could easily have avoided it in going on her way to her destination, cause the error. To say the least of the charge on this point we think it is very questionable if the law was correctly stated. But on the”other grounds stated, we think the judgment should be reversed and a new trial awarded.


author: Caldwell, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Marvin, Caldwell and Douglass, JJ.
    DESMOND & RYAN v. CHARLES G. ROTH et al.

      Conveyance by insolvent to one of his creditors to satisfy his own ■claim and those of two others, not a trust for general, creditors—
    Where an insolvent debtor conveys property to one of his creditors, the consideration being the satisfaction of the indebtedness to such creditor and that he agrees to assume the payment of certain two other creditors of the grantor, the grantee is a purchaser, and not a trustee for the benefit of general creditors of the grantor under section 6843 R. S.
    Error to the Court of Common Pleas of Hamilton county.
   Caldwell, J.

Edward N. Roth, Charles G. Roth and Joseph Roth were brothers, Theckla Roth, their mother. The father of these ■children died some years ago, leaving his estate to his wife first, with a provision over to his children. That provision was such that the children at all times, after the death of the father,had an estate in the property that they could dispose of.

Charles G. Roth became the proprietor of an hotel in this city, the St. Clair House. He rented it from the Penn Mutual Life Insurance Company, and he furnished it. Then he had, aside from what he had in the hotel, property in lands that he got from his father’s estate, and he ■evidently ran behind in his hotel business, so that on the 18th day of February, he was undoubtedly insolvent, unable on that day to pay his debts. It is not made clear to us by the evidence whether he first transferred his interest in the property that he got from his father’s estate to his brother Edward N. on that day, or whether he transferred the property in the St. Clair Hotel to C. D. Robertson. Which transaction took place first we are not made aware. However, on the same day he did transfer all his interest in the property he had received from his father to his brother Edward N., and on the same day fa& transferred all his property in the St. Clair Hotel to C. D. Robertson, agent or trustee. These are really two separate cases in their facts and in the law.

I take first the case of his transfer to his brother Edward N. of the property he received from his father’s estate. It seemed that Edward N. had endorsed paper for him to some considerable extent. His mother Theckla Roth had loaned him money, and held his obligations, and had endorsed for him to a considerable extent, and then he owed his brother Joseph also. Now, these parties met on that day, and Edward N. agreed to assume and pay all this indebtedness if he would transfer to him his interest in that property that was inherited from the father, and the only question involved in the case is this: it is claimed that the mother never surrendered nor gave up the paper that she held against her son Charles G., but that she was his real debtor all the while, and that Edward N. had simply taken this property and agreed that when he made the money out of it, or out of the property coming from the father, that he would then pay her the amount due, and it was claimed that the same-arrangement largely took place in regard to Joseph; that although Joseph surrendered his paper, that he agreed to receive his pay when his brother Edward N. made it out of the father’s estate; but the theory, on behalf of the creditors,is to make it appear now that Edward N.stands in this light: that he took this property in payment of all that his brother Charles owed him personally; that he took it and held it for the payment of his mother, and that his mother was all the while a creditor, continued to be the creditor of Charles, and that Edward’s obligation to his brother Joseph was nothing more than to pay him out of the estate when the property was settled, which virtually amou.nts to paying him out of the property that was assigned to him, so that would leave as to this property, if that i& true, Edward N. standing as having received this property for the payment of his own debt, for the payment of. the debt of his mother, and for the payment of the debt of his. brother, and Charles bhing insolvent at the time it would make him a trustee, and it would come under 6343 of the statutes, and would make him a general trustee for allcred-. itors.

Pogue & Pogue (Province M. Pogue of Counsel),and N. JT, Cash, for Plaintiff.

Maxwell & Ramsey (Lawrence Maxwell of Counsel), for E. N. Roth.

Now that is a good theory in this case, but it is purely ai theory. A fair weight of this testimony can have possibly no such construction. The fair construction of this testimony is this: that Edward N. on that day • said to his brother Charles “You transfer to me this property, and I will here assume and agree to pay your debts”, which was the purchase of that property, and the purchase price was that he would pay his own debt, that he would assume and! pay the debts that Charles owed to his mother and to his. brother Joseph. This being true, the testimony places it. entirely in the light of a purchase of property for a good and valid consideration, and the mother and the brother Joseph could at any time compel Edward N. to pay this debt, any time that these debts were due and unpaid. That being true, he does not stand at all in the light of a trustee, but in the light of a purchaser, and hence the general creditors can have no resort to this property. They have no interest in it, and their claim in regard to this property is denied by this court.

(SAME CASE.)

An assignment by an insolvent debtor of property to a creditor for ' himself and in trust for another creditor, amounts to an assignment in trust for all the creditors of the insolvent, under sec. 6033, R. S.

Now, as to the other branch of the case, Charles Roth got in arrears with his rent of the St. Clair Hotel to the Penn Mutual Company. The Penn Mutual Company was pressing him very hard for payment, and i't became entirely evident to the Penn Company, or those who were trying to collect the claim for the Penn Company, that it was impossible to get money from him at that particular time. The only¡thing the agent could do would be to get security, and it is pretty hard for us to understand why a collecting agent may not take security for a claim when he can not get the money on it, providing he does not extend the time of payment in any way, or in any way change the obligation. However, it is said that the collecting agent was doubtful as to his authority to take security. Charles offered, or it was arranged so that Charles was willing to give as security for the payment of that debt — over $2800 then due, on which the mother was liable for a thousand dollars as surety — to transfer by a bill of sale to C. D. Robertson, his property in the St. Clair Hotel. Now, it is said to us that the agent was very doubtful as to his authority to take that security. If that was turned over as payment, there was no extension of time, except as it might be inferred in • the fact of taking something that would have to be reduced to money,and thus devolving time; but it is said the agent was doubtful of his authority, or felt very doubtful about it, and was willing to take the property, but it must be subject to the approval of the Penn Company, and it was concluded to do something in regard to taking the property, but leave it in a tentative form, not making it complete, but leaving it in such a form, that whether it was valid or invalid, whether it was effectual or ineffectual, was to be determined by the approval of the Penn Company. A regular bill of sale was made of this property. It was made to C. D. Robertson as for himself and trustee for the Penn Mutual Company.

pIt seems there were a number of guests in the hotel, ■some of whom were sick, and Roth made that fact known,' that it would be impossible for him to proceed, if he gave ■up all he had there, and to take proper care of the persons who were sick in the house. Thereupon C. D. Robertson .gave to Roth fifty dollars of his own money, no doubt intending that the Penn Company would make him good on that fifty dollars, and took the assignment for the security of that fifty dollars for himself instead of for the debt Roth owed to the Penn Company. This bill of sale was placed on file. Perhaps the closest question on the evidence •is, as to whether Mr. Robertson took possession of the property. The evidence is somewhat conflicting upon that. There is no doubt but that the evidence agrees upon one point — there was something said and done between the parties in regard to taking possession, and Mr. Goodhue, who represented Mr. Roth in this proceeding,said, or as he says', was requested by Mr. Robertson, inasmuch as he was boarding at that house, to look after the matter in behalf of Robertson, and keep possession of the property. Mr. Robertson don’t place it near as strong as that, but after examining all this testimony we are satisfied that the proceedings went beyond the tentative state. We are satisfied that Mr. Robertson got such a possession there, by what was said ■and done, that he would have been in a very good position ■to have fought any creditor who had made an attachment ■upon that property, as that he was not only the owner by bill of sale, but was in possession of it, and in fact as •against creditors who might attach or levy upon the property, if he had no possession, he would be in no better position than he was before he took his bill of sale as against them. We are inclined to .believe from this testimony, and •so hold, that he did have, at least modified possession of that property, and a possession that would enable him, as against Roth at least, to claim as the owner and in possession of the property, and probably could have done so ao against creditors.,

Now, this being true, everything was done there that could be done, to make a complete transfer of this property , to Mr. Robertson. I am not now speaking of what was to take place afterwards upon the election of the Penn Company; They might come on and repudiate the whole of it or confirm all that had been done. The matter rested that way for a few days, when the Penn Company came on and repudiated all that Mr. Robertson had done in their behalf, and Mr. Robertson stopped right where he was, and the-Penn Company went to Roth, and got the property transferred to il, and some additional property, I think transferred to it, as security- for its claim, either by bill of sale or mortgage. I presume by bill of sale, and has been the owner and holder of the property under that transaction ever since, of at least has pretended to be such.

Now, on behalf of the creditors, the claim is made here-that Mr. Robertson became the owner of that property, the assignee of that property from Roth for the payment of his own claim, and for the payment of the Penn Mutual Life-Company, and under the well established rule of law in this state, if that is his situation, then he became the assignee by virtue of those fact, for all the creditors of Roth, as to that property, and the property was vested in him then as assignee, for the benefit of all the creditors of Charles Roth. Having found already that the matter went beyond the mere tentative state, and that nothing was done-thereafter except for the Penn Company lo come on and make a different contract, and repudiate what Robertson had' done. It might repudiate so far as it was concerned, but as to other creditors, the Penn Company could not repudiate. If the property had vested in Robertson as the trustee of the creditors generally of Roth, then it was beyond the power of Robertson to transfer the property in any manner so as to relieve himself from the obligation that vested upon him as such assignee.

Pogue & Pogue (Province M. Pogue of Counsel) and D. F. Cash, for Plaintiff.

Robertson & Buohwalter (W. F. Buohwalter of Counsel), and Robert Pugh,for O. D. Robertson.

This being true, if we are right in the facts we find this evidence: we think that Mr. Robertson, if he turned this property over to the Penn Company or any other person, Ho difference who, upon the Penn Company paying him> fifty dollars, it seems he allowed the Penn Company to take-possession of this property and get a title to it from Roth, and if Roth had already transferred it in such a way that it could not be thus surrendered, why then the Penn Mm tual Company got no title to this property, and the title of' it is still vested in Robertson as assignee.

This brings us to the conclusion that the creditors have a right to look to Mi. Robertson in this matter, and require him to account for the property that was turned over to him* at the time he received that bill of sale, and the decree may. be made accordingly.


author: Smyseb, J.

text:
    (Fifth Circuit — Stark Co., O., Circuit Court
    Sept. Term, 1898.)
    Before Adams, Douglass and Smyser, JJ.
    THE CLEVELAND TERMINAL & VALLEY RAILROAD COMPANY v. FREDERICK HEIMAN, Adm’r.

      Boy under 12 years hilled by R. R. — Contributory negligence—
    (1.) In an action for negligently killing a boy, the allegation that he was only twelve years old, and of immature judgment repels the presumption of contributory negligence that might otherwise be so apparent upon the face of the petition as to-make it vulnerable to a demurrer.
    (-2.) A minor under fourteen may be guilty of such contributory negligence as will defeat a recovery in his favor in an action, for negligence.

      (3.) A minor must exercise ordinary care in the presence of danger.
    (4.) When no such exercise of care is shown, and no reason is shown for its absence on the part of the decedent, no recovery is authorized.
    Error from the Oourt of Common Pleas of Stark county.
   Smyseb, J.

The Cleveland, Terminal & Valley Railroad Company files a petition in error in this court to reverse a judgment recovered in the court of common pleas against it, in favor of Frederick Heiman, the administrator., of . the estate of Walter Heiman, deceased.

The petition is quite lengthy, unnecessarily so, and I shall not attempt to read it. It avers the death of the decedent on the 15th day of October, 1896; the appointment qf the administrator, and sets out the next of kin; also that the defendant, the Railway Company, is an Ohio corporation passing through Stark and other counties; that Pátterson street is one of the streets in the city of Canton; that this railroad in question crosses Patterson street, and, in short, that at the particular point where the killing occurred there are no fences, no enclosures of any sort, and by long use the pedestrians in that part of town have gone over, rather indiscriminately, across the railroad tracks, instead of going across the track where there seems to be a walk to go across towards Wade street,and come from Wade street past the Malaley house to town, or from town. Alleges the user, and license by the railroad company to this use of its track for men, women and children; that on the day in Question, the 15th day of October, 1896, the decedent, Walter Heiman, a boy of twelve years of age, was on the track attempting to cross; the crossing was obstructed by reason of a freight train standing on the east track, there being three tracks there; that he was without fault; various acts of negligence are recited, that it is a very populous pait of the city, where many people pass and re-pass; it is dangerous, it-is at grade; no gates, no flagman; that the engine that killed Walter, was not flagged; no bell rung; no whistle blew; no look-out on the engine, or anything of that kind, and various acts of negligence by which he was killed; it denies that he was guilty of contributory negligence, and makes the further averment that he was a boy of immature years, inexperienced in judgment and knowledge of the dangers incident to the situation described; that he was unable to comprehend the dangers produced by the negligent acts of the company; that said Walter stood on the west track about eight feet north of the crossing proper awaiting the passage of a freight train on the east track, and that he stood at the point where people were accustomed to stand awaiting the clearing of the track, and while so standing, he was struck and killed.

To that an answer was filed, which is, in substance, a general denial, and an averment that Walter Heiman was guilty of contributory negligence.

A reply is filed to that denying contributory negligence.

On this issue the case was tried to a jury, which resulted in a verdict for the plaintiff below in the sum of $4,200.00. The court, on motion, remitted seventeen hundred dollars, reducing the verdict to $2,500.00. Motion for new trial was interposed and overruled, and the court entered judgment for $2,500.00.

The record is very voluminous, and we are not going to mislead counsel by saying that we have examined this entire record; and counsel can readily understand that it would be wholly unnecessary to do so; that in the trial of a case of this character, many witnesses will be called to a single point in controversy, and that necessarily much evidence becomes merely cumulative.

The plaintiff below called a great many witnesses to show the situation of the street, the railroad crossing, the use of the track by the public, the management of trains, and ob-struction of the street by the company, and the various acts ■ of negligence alleged in the petition.

On the other hand, the company called in its behalf, the ¡men in charge of the engine and about the track on the day in question to show how it managed its trains, and that the men in charge of the engine had no knowledge of the decedent being on the track when struck and killed.

We have carefully examined the record, so as to enable ■us to say we have no hesitancy in finding that the plaintiff •below has sustained the chief allegations of his petition' by ¡abundant evidence..

But the real contention is, that the plaintiff is not entitled ?to a recovery, and that this judgment ought not to stand because of the claimed negligence on the part of the decedent, as shown by the record, which contributed to his -death, and because of alleged errors in the charge of the •court and the refusal to charge as requested by the com,pany.

On the day in question this boy was at sehool; he comes •from school about four o’clock in company with Phillip Mallaley; he lived and had lived for years in close proximity to this railroad; he was past twelve years of age, and' I will say right now that I may not recur to it again, he was an exceptionally bright boy, as appears from the testimony of his school teacher; she says, that he was an exceptionally bright boy, being only twelve years of age he ranked in school along with boys of fitfeen or sixteen in Intelligence.

Now, he comes from school on the afternoon in question ■in company with Phillip Mallaley, who was a boy seven years old, or possibly eight at the time of this trial, and these boys were engaged in twirling sticks, and, as described by all the witnesses, they were playing dram major. They had come from Heiman’s home on Wade street, ■ or over in that section — 'had come by the Mallaley home, Heiman having a stick, and Phillip going into -his own house to get a stick, and together they go toward the railroad, as they are playing along the edge of the track. They are observed by people; Annie Mallaley sees them down there; the mother, Harriett Mallaley; William .Mallaley. was on the porch, but he says that he did not observe them; but, there are three witnesses who saw the situation, who saw the boys down there, and they are Annie Mallaley, Harriett]Mallaley, the mother,- and Phillip.

Now, without going into the details of what this railroad ■company was doing and how it was doing it that afternoon, except to state that the men operating the engine had no knowledge that the boy was on the track, I come right to the vital question in the case — us to what occurred at or ■ about the time of the killing. Mrs. Mallaley sees the boys • down there; it is broad day light; she calls to them to watch ■ out, not get on the track. The record does not disclose that the decedent heard that admonition. Phillip called to Walter just before he was struck, admonishing turn of the -approaching engine; some man down below, whose name I have now forgotten, called to him, Mrs. Mallaley says that the boys were playing, that she saw them on the track, and : so does Annie.

It was a theory of the plaintiff’s case that this crossing being used in the manner that I have indicated,"that the boys had a right to cross there, and that the®, decedent was ■using the crossing for the purpose of crossing the street. There is not a word of testimony that justifies™the conclu,-sion that the boys, and, especially this boy, ijwas there at that time for the purpose of crossing the railroad ®track on any business, whatever. And not only is there] an absence -of all testimony upon that subject, but the affirmative testimony, if it is to be of any value at all — the testimony of "the mother, and the sister, and Phillip Mallaley^is^that the íboys were playing there.

While they are so engaged, an engine, with the tender to the south, is standing north of them. It comes back,, the boy is struck and killed, under the circumstances as I have already indicated. The company contends that this engine was visible; that there was no reason why this boy should not have seen it, that he was of an age, and that he-had capacity and intelligence enough to know that an engine was dangerous; that the place where he was playing was a dangerous place; and, that, in addition to that, he was familiar with the use of the tracks and grounds by the-railroad company; that, being of that age, in possession of his faculties, as I have stated, he took no precaution, he-exercised no care, and that this injury was due wholly to his own want of care.

This engine, as appears from this testimony, was only a. few feet from this-boy when standing still. The witnesses, Mrs. Mallaley and Miss Mallaley, differ somewhat, and I don’t know but what Mallaley speaks on the subject. The girl says probably ten feet, and I think the mother says twenty feet, but at- any rate, all the testimony is that the-engine stood but a few feet away. Now, without warning, ringing of the bell, blowing of the whistle, or any admonition on the part of those in charge of that engine, it started south, and run over the boy.

Now, that brings us to the question as to what is the-rule in Ohio where negligence or contributory negligence' is charged as against an infant. We have no hesitancy in finding from this record that by the exercise of ordinary care, ordinary precaution on the part of the decedent, this-accident might have been avoided. The question then is, is the decedent excused from the exercise of that ordinary care, that even boys of his age, intelligence and experience-would be expected to exercise under like circumstances?

I might as well, in passing, say something about some of these requests in view of the facts, and I can dispose ofi them as I go along.

The court charged, and we think correctly, the rule laid ■down in the 45th Ohio St., page 678, as to a railroad crossing in a town where there are people, etc. We think that that was the duty of this company in this particular instance. The proof clearly shows that for years the railroad down there, the crossing, had been used in the manner ■claimed here, and by many people.

Now, we come to the care of children, and I call attention to the 46th Ohio St., page 283; that is the Rolling Mill case.

“In the application of the doctrine of contributory negligence to children, in actions by them, or in their behalf, for injuries occasioned by the negligence of others, their conduct should not be judged by the same rule which governs that-of adults; and while it is their duty to exercise •ordinary care to avoid the injury of which they complain, ordinary care for them is that degree of care which children of the same age, of ordinary care and prudence, are accustomed to exercise under similar circumstances.”

The effect of this case from what Judge Williams says is, Ohio has taken a middle ground on the subject of the care that minors should exercise. He says:

“One rule requires of children the same standard of •care, judgment and discretion, in anticipating and in avoiding injury, as adults are bound to exercise. Another wholly exempts small children from the doctrine of contributory negligence. Between these, a third and more reasonable rule has grown into favor, and is now supported by the great weight of authority, which is, that a child is held to no greater care than is usually possessed by children of the same age.” * * * “To constitute contributory negligence in any case, there must be a want of ordinary care, and a proximate connection between ■such want of care and the injury complained' of, and, ■ordinary care is that degree of care which persons of ■ordinary care and prudence are accustomed to exercise ■under similar circumstances. Children constitute a class of persons of less discretion and judgment than adults, of which all reasonably informed men are aware. Hence, ordinarily prudent men reasonably expect that children will exercise only the care and prudence of children, and no greater degree of care should be required of them than is usual, under the circumstances, among careful and prudent persons of the class to which they belong. We think it is a sound rule, therefore, that in the application of the doctrine of contributory negligence to children, in actions by them or in their behalf for injuries occasioned by the neg, ligence of others, their conduct should not be judged by the same rule which governs that of adults, and, while it is their duty to exercise ordinary care to avoid the injuries of which they complain, ordinary care for them is that degree of care which children of the same age, of ordinary care and prudence, are accustomed to exercise, under similar circumstances. ”

To the same effect is the case in 54 Ohio St,, page 181, and in commenting upon the rule laid down by the trial court in that case, Judge Bradbury says that the degree of responsibility imposed by the proposition charged upon the intestate was too high. “We know of no rule of Jaw that imposes upon a boy of fourteen years, who may go out to work and earn wages, and go about the streets of a city unattended, a higher degree of care concerning his safety, than on a boy of the same age and equal intelligence who, unattended, may go to and from school, or roam about the streets unemployed.” I call special attention to what follows on the same page in view of the conclusions we arrive at as will appear further along. He says the record does not show any attempt to prove that the intestate was unusually bright and intelligent.

Now in the 53rd Ohio St. — and I call attention to this for another reason — in the 53rd Ohio St,, they aver in the petition that the child killed or injured was of immature years, and that was one of the questions before the court as to whether the petition was sufficient; whether or not, upon the face of the petition there was not such contributory negligence shown as would defeat a right of recovery, and the court said that that allegation that the child is of immature years, etc., saves the petition and makes it good.

“Where a petition in an action against a railroad company for personal injuries charges that defendant negligently and unlawfully stopped a freight train across a public highway for a period of more than five minutes, and that while plaintiff, after the expiration of that period,was attempting to cross the street between the cars, defendant, without warning, wrongfully and negligently backed the train, causing plaintiff’s injuries, such two charges of negligence are not separable in the sense that one only would be the proximate cause of the injury; taken together they constitute a sufficient allegation of negligence as agianst a general demurrer.
‘ ‘ A child of nine years of age is not guilty of negligence if he exercises that degree of care which under like circumstances would reasonably be expected from one of his years and intelligence. Whether he used such care in a particular case is a question for the jury. And even though the petition might, if the plaintiff were an adult, be construed as disclosing contributory negligence, an averment that the plaintiff was at the time a child of nine years, and of immature experience and judgment, is sufficient to rebut the pre, sumption of contributory negligence.’’

I quote Judge Spear in this connection:

“But an imperfect rule is practically better than none. Therefore, at the common law, a child under seven years is conclusively presumed incapable of crime. Between seven and fourteen the law also deems the child incapable, but only prima facie so, and evidence may be received to show criminal capacity. The rule is sustained by many authorities, and may be regarded as an accepted rule of criminal law; and it would seem that the principle should have application to a case of negligence. Prof. Thompson in his work on Negligence, at page 1181 comments as follows: ‘Two .questions arise: 1. At what age or period of a child’s development shall it be held to be sui juris for the purpose of cases of this kind; 2. Whether this is a question of law or a question of fact. When the age of the child admits of no doubt as to its capacity to avoid danger, the court will decide this question as a matter of law. If there is any doubt of the child being of the age and capacity that in law constitutes one sui juris, it should be submitted to a jury to say by their verdict whether he is so or not. Unless, therefore, it can be held that the injured person had the capacity to foresee and avoid danger, negligence will not be imputed to him. And, inasmuch as this presumption will not be visited upon children under the age of fourteen, it follows that the averment that the plaintiff was a boy of nine years of age, and that he was of immature experience and judgment, is sufficient to rebut any legal presumption of contributory negligence •from other facts appearing in the petition. ’ ’ ’

It is quite apparent from these authorities that there are two principles deducible. First, the rule by which the conduct of children of a given age (under fourteen ) is to be judged. Second, that when such age affirmatively appears in the petition for the purpose of asserting a cause of action, 'the cause shall not be defeated because of the apparent contributory negligence. The allegation of age (being under fourteen or of any given age under that, or of immature years) has the effect usually of removing the imputation of neglect; or in other words, the effect of the presumption, which would otherwise arise, is avoided. But, it must be equally apparent that the removal of this presumption by allegation of age is limited to pleading only, and can not be held to supply proof so far as a recovery is concerned. If this'is not true, we might readily conceive of a situation like this: two boys, one fourteen years of age, the other thirteen years, eleven months, and twenty-nine days of age, injured under exactly similar circumstnces, and we will say 'further at the same time. The boy fourteen years or over can not recover, whilst the other would be entitled to a recovery because of the presumption, which arises in his favor ’by reason of non-age. So that the rule in Ohio clearly is, that any person under the age of fourteen, because that seems to be the age required by the supreme court, is held to that degree of care to relieve them of contributory negligence that would be attributed to persons of his age and experience. We have been cited to no decision in Ohio that decides the question as matter of law, that upen a given state of facts, a child, under fourteen, is held guilty of such contributory negligence as will defeat a recovery.

In determining the question before us, we assume the negligence of the company established, and the material inquiry relates to the conduct of the decedent. The company’s negligence can not be material if the decedent by reason of his age is not excused from the exercise of due care, and if by the exercise of such care, the accident could have been avoided.

In support of our conclusions, we feel justified in citing adjudicated cases from other states. In Messenger v. Denny, 137 Mass., page 197; the injured person was a boy about nine years old, and while engaged in riding upon the runners of sleighs upon the public streets, suddenly left the sleigh on which he was riding while it was yet in motion in a frequented thoroughfare without looking behind him,- and within thirty feet of a horse and sleigh which was following him, by which he was struck and, injured. The court held that'“His injury was a natural consequence of his careless act.” And held ‘‘That without considering whether there was any evidence of negligence on the part of the defendant the court should have ruled the paintiff could not recover, ”

In the case of Masser v. C. R. & P. Ry. Co., 68 Iowa, page 602, the decedent, a boy of eleven years of age, was killed while playing upon the railway track of the defendant.

On page 605 the court says:

“A boy of eleven years of age knows, as well as aq adult does, what a railroad is, and the use to which it is put, and the consequences to a person, who should be struck by a passing train, and knows that he should not stop to play or lounge amid a net work of tracks. It is true that a boy of that age cannot be presumed to have the judgment of an adult, but it does not require much judgment to keep from walking in a dangerous place, the dangers of which are fully understood.
“We certainly cannot hold that a boy eleven years old is exercising reasonable prudence in making such a place as that to which the deceased and his companion went, a play ground or lounging place, or that a jury would be justified in so finding.”

In the case of Ecliff v. The W. S. T. L. & P. Ry. Co., 64 Mich., page 196, the deceased was a boy twelve years of age, who was killed while riding upon a train of the defendant company, in a position in which he was exposed to danger. On page 203 the court says:

“A boy of twelve years knows as well as an adult that upon the top of freight cars or in front of the engine when reversed, and between that and the cars, is not a safe place when the train is moving. The fact that a boy of that age is more reckless and not as cautious as a man in the face of such danger, is not of itself enough to excuse him.”

In Moore v. Ry. Co., 99 Pa. St., 301, the deceased was a boy ten years old, bright and intelligent, and had been sent on an errand; at the time of the accident he was walking on the outer ends of the railway ties, at a point where the railway track ran along the street in a populous city. He was struck by a rapidly moving express train, which gave no,signal of its approach. A non-suit was awarded on the ground that the boy was guilty of contributory negligence, and the supreme court held that this was not error.

There are two New York cases to which we call especial attention: 58 N. Y., 248, and 124 N. Y., 308. In the first case the evidence showed that the boy was an intelligent lad thirteen years of age, who lived near defendant’s road, which he crossed daily in going to and returning from school. He was conversant with the road and the manner of running <the trains. Upon the day of his death the boy was last seen going from school at noon, towards the track, and about a •hundred feet therefrom. A moment thereafter two trains, .going in opposite directions, passed each other at the crossing; after the passage of the trains, he was found dead in the cattle guard, between the tracks. At a point in the highway, ten feet from the crossing, the engine of the train by which, as the circumstances indicated, the deceased was •killed, could have been seen 750 feet distant. It was a fair ■dav, with but little wind. As the evidence tended to show, no bell -was rung or signal of the approach of the train, by which he was killed, was given. Held, that the proof was insufficient to sustain a verdict for plaintiff, as it did not warrant a finding that there was no negligence on the part of the deceased. Justice Andrews, on page 252, mentions what was suggested as excusing the deceased from exercising the care attributed to him, and disposes of such suggestions with the comment:

“But, these are mere conjectures without any basis in the evidence to support them. Doubtless, the jury might •infer that the deceased was governed by the natural in-stinct of self-preservation, and would not put himself recklessly and consciously in peril of death; but that men are careless and subject themselves thereby, to injury, is the common experience of mankind, and when injured, no presumption exists in the absence of proof that they were exercising due care at the time, In applying the ■rule that a person who seeks to recover for a personal injury, sustained by another’s negligence, must show himself •free from fault, the law discriminates between children and •adults, the feeble and the strong, and only requires of each •the exercise of that degree of care to be reasonably expected in view of his age and condition.
“But it cannot be said, under the circumstances of this case, that the deceased was not capable of appreciating the-danger of going upon the railroad track without looking’ for approaching trains, which, if he had done, would have-saved his life, so far as can be seen from the evidence. ”

In the 124th New York, page 308, the court says in the-syllabus:

“In the absence of evidence tending to show that a boy twelve years of age was not qualified to understand-the danger and appreciate the necessity for observing that-degree of caution in crossing a railroad track an- adult would, he must be deemed sui juris and chargeable with the-same measure of caution as an adult.”

Justice Parker, on page 314, says:

“The law requires a traveler, before crossing a railroad track on a public highway, to look and listen for the-approach of trains. If he omits to do so, and suffers injury while crossing, he cannot recover because of such omission. That which it is his duty to do, he or, in the case of death, his representative must, in an action to recover for damages sustained, prove was done; or at least must prove facts from which the inference can reasonably be drawn that he performed his duty in that respect. It will not be presumed that he did look; it must be proven,”

After discussing the suggestion that the boy might have' looked, he says:

“We are unable to agree with that contention, for it appears that from the place where he was standing it was possible to see along the track a distance of 186 feet; that when he reached the south rail of the switch track, a distance of eight feet and five inches from the-north rail of the track upon which the locomotive was running, he could see for two streets away, and that, before reaching such rail, the view was unobstructed for nearly a mile. It seems to be clear, therefore, that the plaintiff' did not meet the burden resting upon him by merely showing that his face was turned in that direction, for if he had looked he must have seen this engine approaching. But if the inference wa3 permissible that he looked at the moment of changing the bag, it does not meet the requirements of the case. He had still six tracks to cross, and was then, eleven feet from the south rail of the first track. To look, then, and not again; to go on from that point without observing the further precaution of watching for the approach» of trains upon tracks almost constantly in use, was not proper observance of that care which it was his duty to exercise.”

In connection with the principle decided in the foregoing-cases, we must bear in mind the rule laid down by our own-supreme court as to the care required of a person approaching a railway crossing.

In 24 Ohio St., page 631, it is made the imperative duty of a person in the full enjoyment of the faculties of hearing- and seeing, before attempting to pass over a known railroad crossing, to fise them for the purpose of discovering and avoiding danger from an approaching train; and, the omission to do so, without a reasonable excuse therefor, is negligence, and will defeat an action by such person for an injury to which such negligence contributed.

The rule thus laid down has been affirmed in repeated cases, in Railway Co. v. Elliott, 28 Ohio St., 340; Railway Co. v. Rathgeb, 32 Ohio St., 66; Railway Co. v. Whitaccre, 35 Ohio St., 627,

But, there is an unreported case from Lucas county, affirmed by our supreme court, that we think fully sustains, the doctrine of the cases just cited. This is the case of Engelman, Admr. of the estate of John Bartelt, deceased, v. The Lake Shore Ry. Co. The petition is very similar-to the petition in the case under consideration. The decedent, Bartelt, was a boy twelve years old. He was on the-track picking up coal when struck by a train running fifty miles an hour in violation of a city (Toledo) ordinance. The evidence showed that boys were accustomed to go on the track at the point in question for the purpose of picking-up coal, and that the train men would even throw off lumps, for them.

There was a total absence of evidence showing the exercise of ordinary care on the part of the decedent, or even tending to show any excuse for the want of such. care.

At the conclusion of the plaintiff’s testimony the comfpany asked the court to direct a verdict in its favor, and ■this the court did.

We quote what the trial court said:

“The court understands the cause submitted upon •this evidence to present the following facts: That upon the 8th day of February, 1893, the deceased, with ■other boys, for no purpose connected with the railroad company, or its operations, or business or interest, (and without the consent of his parents, but against the warning of his mother), went upon the railway tracks of the defendant; that his purpose was to amuse himself, probably, with these other boys, and to pick up coal and carry it away — for he appears to have had a basket with him, and was apparently in the act of stopping to pick up coal when he was struck dead by the train, which came up behind him. His attention was probably directed to this purpose of getting the coal, and he was thus prevented from seeing the train which was approaching him from behind. To claim that under these circumstances — no odds that coal had fallen off the cars of defendant along there, ■ along the line of its road — and no odds, if you please, that ■brakemen may have thrown it off purposely — they did so without right, and they did so in furtherance of an unlawful ■ and a dishonest purpose on their part. We think that these boys can not be held to have been on the track of defendant with right to be there; but, on the contrary, they were there at best at their own risk. We have no doubt but what the company would have been justified in not only ordering them off, but in keeping them off its tracks. The mere fact that it did not do so, did not give these boys a right to be there to obstruct the management and operations of its trains and the business of the company. Now, however much it is to be regretted, these consequences to this boy from so sad an accident, which destroyed his life in an inrstant — 'however much this is to be regretted, it seems to me that nothing can be clearer than that no financial liability attaches to the defendant because of this injury to the deceased. And, now, inasmuch as we must hold that, had the boy not been killed, but had survived, the inj'ury which he had received, he could not have maintained his action against the defendant company, therefore his administrator •can not maintain an action for the purpose of recovering ■damages by reason of his inj'ury and death.
11 We will therefore sustain the motion which is here made and direct the jury to return a verdict for the defendant.”

This holding of the common pleas court was. affirmed by the circuit court, and on error to the supreme court, the judgments of the common pleas and circuit courts were affirmed, ás already stated, without report, 84 Bull., 227. We think that this authority is decisive of the question, that an infant under the age of fourteen may be guilty of such negligence as will defeat a recovery in his behalf; and, also, that he is bound to the exercise of ordinary care in the presence of danger. And, if we are right in our application of these authorities, what is the conclusion necessarily arrived at in this case?

Can we say from all that appears in this record, from the testimony on behalf of the plaintiff, that there was such contributory negligence as to defeat a recovery? We take it that the duty devolving upon a person approaching a railroad track at a dangerous place applies to this decedent. It was his duty to have exercised his faculties, his eye sight, ■and his hearing. If, by looking, he could have seen this •engine, it was his duty to look; if he failed to look, he would be clearly inexcusable for not looking. He was familiar with the surroundings there; for six or seven years he had lived in the immediate vicinity of that crossing. He knew the uses to which the track was put. He used the ■track for no legitimate purpose. He was there using it as a playground. In the very nature of things he knew, or ■ought to have known, that that was a dangerous place. He was old enough to know that it was a place of danger. Could he have seen the engine? There was no obstruction,, it was broad day light. The boy that was with him, did! see, and from that fact, inevitably follows the conclusion,, that the decedent could have seen had be looked. The evidence shows that instead of looking northward, he was there-facing eastward or to the south. He did not look. He was-the’-e engaged in his sport, totally indifferent to his surroundings, as is disclosed by the record, thoughtless, careless, paying no attention to the call of his associate PhillipMallaley to keep off the track, or to look out. It is-true Phillip Mallaley says that he cannot say that Walter heard the admonition. There is, as disclosed by this-record, a total absence of evidence tending to show on the-part of the decedent, the exercise of even the most ordinary-care, to relieve him of the imputation of contributory negligence. It is absolutely essential to resort to mere conjecture. We think under all the circumstances of this-case, considering his age, his experience, his intelligence,, and knowledge of the tracks, that he was guilty of contributory negligence. Were he an adult killed under the same circumstances, an action for the wrongful killing would never find its way into a courthouse. On this record, applying the principles and authorities cited, we-have no hesitancy in saying that this judgment is clearly, contrary to the evidence.

In arriving at this conclusion we are not unmindful of' the well established rule in Ohio, that where the facts are in dispute, the case is left to the determination of the jury;, nor are we forgetful of the other rule equally well established that where the facts are undisputed,where the minds’ of reasonable men are led to the same conclusion, it becomes the duty of the court to intervene, if upon such a record, the jury has clearly gone wrong on undisputed facts..

Numerous requests to charge by the railroad company were made; but it would be fruitless to go over all of these -requests in detail; but there are some to which we call attention, which, in our judgment, should have been given.

The defendant requests the trial court to say to the jury:

“Even though the said Walter had a right to cross defendant’s track at the place in question, if there was a train obstructing this crossing at that point, and if, generally, children of his age and intelligence and experience, placed in the same situation, would have waited along the side of ■said tracks and not on the track, then it was the duty of the said Walter to wait alongside of said track,and not upon it, ■and if his death resulted from his failure to wait upon the ■proper place, no recovery can be had.”

The company was fairly entitled to this request. Its theory of the case was, that there was absolutely no excuse, for any purpose, on the part of this boy, to be upon that track at that particular time, and if he was there waiting the clearing of the track, so that he could cross, there was ample room just a few feet west of where he stood, where he would be free from injury or danger. And, especially ought the attention of the jury to have been directed to this phase of the case in view of the allegations in the petition that he was on the track for the purpose of crossing, while there was a conspicuous absence of evidence tending to show that he was on the track for any purpose other than play.

The twelfth request was clearly right, and should have been given. It asked in fit and appropriate language the court to say to the jury:

“That the decedent is judged wholly and solely by boys of his age and experience. And, if boys of his age and experience would not have waited upon the track, would have appreciated the danger of waiting there instead of upon the vacant space, he would be guilty of contributory negligence, and could not recover.”

Upon the facts, as detailed in the evidence, the company was entitled to have its theory of the case fairly presented to the jury, and this record does not disclose such apresen-tation as was the company’s right. On the question of contributory negligence the charge is subject to criticism, and. many other requests were made by the company that were pertinent to the issue, and which ought to have been given, but we will not notice them all in detail.

An exception is taken to a certain paragraph of the charge which is as follows:

“So if you find that Walter Heiman knew in time to avoid danger that the train or engine was coming, the-fact, if it be a fact, that no signal by bell or whistle, or otherwise was given would not make the defendant liable.”

It will be observed that the court restricts this to actual knowledge: “If he knew”, is what the court says. Under the rules and authorities cited, we think the court ought to have gone further and said: “If he knew, or by the exercise of ordinary care might have known.” It is the elimination of this element that constitutes the vice in the charge. The Ohio rule makes it important for a person in the presence of danger to exercise his faculties.

The judgment is for $2,500.00. We are not going to reverse this case on that ground, although, it seems to the court that the recovery is excessive. But the case will be reversed on the other grounds already indicated.