text:
    PLEADING.
    [Hamilton (1st) Circuit Court,
    December 8, 1903.]
    Jelke, Swing and Giffen, JJ.
    Kehm v. Insurance Co.
    ‘Omission of Material Allegations in Amended Petition.
    The original action on a policy of life insurance being for the amount ■ of the policy while the amended petition js for a reformation of the policy and judgment upon it, the omission in the amended petition to allege consideration is nqt supplied by such allegations in either the original petition or answer and such allegation being essential to the right of action a demurrer will be sustained to such amended petition.
    [For other cases in point, see 6 Cyc. Dig., “Pleading,” §§ 1174-1180, 1186. —Ed.]
    Error to Hamilton common pleas court.
    Goebel & Bettinger, for plaintiff in error.
    J. R. Sayler, for defendant in error.
   SWING, J.

This case is in this court on error to the judgment of the court of common pleas in sustaining a general demurrer to the amended petition of plaintiff. It is urged in this court that the demurrer was properly sustained for the reason that the amended petition does not allege any consideration for the contract which it is sought to have reformed, and when reformed to have enforced. There is no consideration alleged in the amended petition.

The authorities are numerous and uniform to the effect that a con•sideration must be alleged in actions founded on a contract except upon instruments under seal and negotiable promissory notes and bills of exchange, where by statute no consideration need be alleged. 4 Enc. Pl. & Pr. 928 and authorities therein cited. But while not controverting this rule of law it is contended that an answer which was filed to the original petition supplies this omission and should be considered by the •court. This action was originally brought on a policy of insurance. In this action the plaintiff alleged the payment of $24 in cash and the giving of a note for $320 and the issuance to him of a policy of insurance for $2,000, and the destruction of the property insured, by fire; •and he asked judgment for the amount insured.

The defendant answered, setting up an avoidance of the policy by reason of procuring other insurance without the consent of the insurer. Such proceedings were had, that the plaintiff found it necessary to file the amended petition, supra, asking for a reformation of the policy and when reformed for a judgment on it, thus changing the form of this action from one at law to one in equity, and to this amended petition the demurrer was sustained.’

It seems to ns clear that all the court could consider in passing on the demurrer to -the' amended petition was the demurrer and the amended petition. The original petition was out of the case and so was the answer to it. In the case of Raymond v. Railway, 57 Ohio St. 271 [48 N. E. Rep. 1093], the first proposition of the syllabus is as follows:

“Under our system of pleading, a plaintiff may be permitted to substitute an amended petition in place of the original which may have the effect to change the form of action from an equitable to a legal action, the basis and the ultimate object of the action remaining the same. And if such change is made, the court, in determining the issues to be tried, will look wholly to the, amended pleadings, disregarding the original, and the cause will thereafter be treated as a suit at law, and will proceed to trial and judgment as though it had been commenced as a legal action.”

In the opinion of the court, at page 284, Judge Spear says:

“But if the new pleading appears to have been filed not by way of addition merely, to the original petition, and if it appears also to contain a full statement of the plaintiff’s case, being on its face a statement of an entire cause of action, and in substance a substitute for the original, the filing of it by the plaintiff will be regarded as implying an abandonment by him of the case made in the original petition and any additions thereto, and as selecting this as the pleading on which he founds his suit, and the only petition which the court is to consider in determining the issues to be tried.”

It seems to us that this ease is in point, and is controlling on the question raised in the case at bar. It is evident, therefore, that we can consider -only the amended petition and. the demurrer, and as there is no consideration alleged for the contract sought to be enforced, it is not enforeible. It follows from these conclusions that in our judgment the court properly sustained the demurrer. Whether it should have been sustained for other reasons or whether the court erred as a njiatter of law in sustaining it for other reasons, need not now be considered by this court.

Judgment affirmed.

Jelke and Giffen, JJ., concur.


source: Caselaw Access Project

author: SWING, J.

license: Public Domain

text:
    APPEAL — MORTGAGES.
    [Hamilton (1st) Circuit Court,
    March 2, 1903.]
    Jelke, Swing and Giffen, JJ.

      George C. Fleurot v. Clara B. Fletcher et al.
    Right to Appeal Foreclosure oe Deed Given as Security for Loan.
    An action to have a deed, given to secure a loan, declared a mortgage and the mortgage foreclosed, is purely equitable, there being no right to a jury, and a motion to dismiss an- appeal should be overruled. [For other cases in point, see 6 Cyc. Dig., “Appeal,” §§ 222-229. — Ed.]
    Drausin Wulsin and B. B. Dale, for plaintiff.
    Maxwell & Ramsey, for defendants:
    Aets.of performance of part promise. Schneider v. Curran, 10 Cira. Dec. 239 (19 R. 224) ; Armstrong v. Kattenhorn, 11 Ohio 265; Shahan v. Swan, 48 Ohio St. 25 [26 N. E. Rep. 222; 29 Am. St. Rep. 517]; Stoddert v. Tuck, 4 Md. Ch. 475; Bathbun v. Bathbun, 6 Barb. 98; Bowen v. Warner, 1 Pinn. (Wis.) 600; 1 Jones, Mortgages Sec. 328.
    Conditional sale or mortgage. Conway v. Alexander, 11 U. S. (7 Cranch.) 218, 237 [3 L. Ed. 321]; Slutz v. Desenberg, 28 Ohio St. 371; 1 Jones, Mortgages See. 677; 1 Pingrey, Mortgages See. 205; 4 Kent’s Commentaries 145; 3 Kerr, Real Prop. 282; 2 Washburn, Real Prop. *482; Howel v. Price, 1 P. Wms. 291; Henry v. Bell, 5 Vt. 393; Scott v. Fields, 7 Watts 360; Baum v. Tonkin, 110 Pa. St. 569 [1 Atl. Rep. 535]; Schweyer v. Walbert, 190 Pa. St. 334 [42 Atl. Rep. 694]; Coleman V. Van Bensselaer, 44 How. Pr. 369; Salisbury v. Philips, 10 Johns. 57; Coleman v. Miller, 8 Dec. Re. 179 (6 Bull. 200); Hardinger v. Ziegler, 8 Dec. Re. 214 (6 Bull. 326) ; Bobinson v. Cropsey, 2 Edw. Ch. 137; Goodman v. Grierson, 2 B. & B. 274.
    Right of appeal. Baird v. Kirtland, 8 Ohio 21 • Marshall v. Steivart, 17 Ohio 356; Miller v. Stokely, 5 Ohio St. 194; Slutz v. Desenberg, 28 Ohio St. 371; Wilson v. Giddings, 28 Ohio St. 554; Wright v. Bates, 13 Vt. 341; Shaw V. W(Abridge, 33 Ohio St. 1; Kemper v. Campbell, 44 Ohio St. 210; Hughes v. Davis, 40 Cal. 117; 1 Jones, Mortgages 214, Sec. 339; First Nat. Bank v. Chandelier Co. 9 Circ. Dec. 807 (17 R. 443) ; Foley v. Kirk, 33 N. J. Eq. 170; Stinchfield v. Milliken, 71 Me. 567; Hogel v. Lindall, 10 Mo. 483; Ketchum, A. <& P. By. v. St. Louis, 101 U. S. 306 [25 L. Ed. 999]; Bowland V. Entrekin,- 27 Ohio St. 47; Ells-worth v. Holcomb, 28 Ohio St. 66; Fleming v. Kerkendall, 31 Ohio St. 568; Emerick v. Armstrong, 1 Ohio 513; Teaff v. Hewitt, 1 Ohio St. 511; Bassett v. Daniels, 10 Ohio St. 617.

       Affirmed, without report, Fleurot v. Fletcher, 73 Ohio St. 381.

   SWING, J.

The petition in this case alleged that plaintiff loaned defendants $15,000 for a term of three years, receiving as security a deed in fee ■simple to certain real estate, and giving a lease back to the defendants; that the said loan had not been repaid, and that the deed was in fact a mortgage; and praying for a foreclosure and sale of the said property.

The motion to dismiss the appeal in this case should be overruled. Plaintiff’s cause of action is purely equitable. No right to a jury existed. The right to have the deed declared a mortgage and the right to have the transaction declared a loan for $15,000 was wholly within the jurisdiction of a court of equity, and could not be tried to a jury. Whether or not a case is appealable depends upon the relief sought, and here it is equitable.

Jelke and Giffen, JJ., concur.


author: WILDMAN, J.

text:
    EVIDENCE — NEGLIGENCE—RECORDS—VIEW BY JURY.
    [Huron (6th) Circuit Court,
    1906.]
    Haynes, Parker and Wildman, JJ.
    Wheeling & L. E. Ry. v. George C. Parker, Admr.
    1. Mistaken Notion of Juror as to Effect of. Contributory Negligence.
    Mistaken ideas of a juror as to the effect of contributory negligence and liabilities as to damages do not disqualify him from serving as juror if when the true rule is suggested to him, he evinces an intention to regard it in rendering his verdict.
    2. Right of Court to Allow Peremptory Challenges after Right has been Waived.
    Counsel for plaintiff having temporarily passed the jury, waiving the right to peremptory challenges for the time, the court may permit peremptory challenges by the plaintiff after challenges for cause by the defendant, provided no injustice is done to the opposite party.
    [For other eases in point, see 5 Cyc. Dig., “Jury,” §§ 388-392. — Ed.]
    3. Evidence as to Custom of Railroads to Leave Cars on Switch Track.
    In an action against a railroad company for wrongfully causing death at a crossing, it is competent for the plaintiff to show that a track near the crossing was a switch track on which cars are placed, there to be loaded and unloaded by which cars the view of the main track would be obstructed to one crossing the track; such evidence would be received to show the nature of - the track and crossing rather than as showing a custom of the company to leave cars standing on such track.
    [For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 1544-1553. — Ed.]
    4. Private Records as Evidence Produced by Person Who did not Keep Them.
    The records of a railroad company being presented as evidence against such company, the fact that the official whose duty it is to keep such records was not called, but rather the official in whose custody they happened to be at that time, is immaterial, inasmuch as they are presented as documentary admissions against the company.
    [For other cases in point, see 4 Cyc. Dig., '“Evidence,” §§ 2657-2668. — Ed.]
    5. Evidence of Negligence of Plaintiff on Former Occasions.
    In an action for wrongfully causing death, where negligence of defendant and contributory negligence of plaintiff are both averred in the pleadings, evidence of negligence by the plaintiff on former occasions is not admissible; but evidence may be admitted to show that the deceased was familiar with the crossing at which he was killed.
    [For other cases 'in point, see 4 Cyc. Dig., “Evidence,” § 1792; 7 Cyc. Dig., “Railroads,” §§' 1012-1017. — Ed.]
    6. Evidence Admissible as Showing A Person’s Earning Capacity.
    That a person’s property was mortgaged cannot be introduced to show the earning capacity of such person, but the value of such person’s business as a fire insurance agent may be admitted for that purpose, as may evidence' of his personal characteristics in relation to people whom he met in business, and his wife is a competent witness as to such characteristics.
    [For other cases in point, see 3 Cyc. Dig., “Damages,” §§ 1242-1247; 4 Cyc. Dig., “Evidence,” §§ 1649rl655 — Ed.]
    7. Evidence of Doctors as to Nature of Injuries Causing Death of a Person.
    The killing of deceased at a crossing by a locomotive, being admitted by the pleadings, evidence of doctors as to the nature of the injuries causing death may be received to show the speed at which the locomotive was moving when deceased was struck, but it cannot be used to play^upon the sympathies and prejudices of the jury.
    8. Rate of Locomotives as Negligence a Question for Jury.
    Whether operating a locomotive at a given rate of speed across a 'street in a populous city is negligence is a question of fact for the jury to determine from the circumstances and surroundings as shown by the evidence.
    [For other eases in point, see 7 Cyc. Dig., “Railroads,” §§ 1021-1025; 7 Cyc. Dig., “Trial,” § 381. — Ed.]
    9. Statutory Penalty for Failure of Engine Crew to Give Signals not Ex- ■ CLUSIVE.
    The failure of an engine crew to use ordinary care as to giving warning signals on the approach of a crossing is negligence for which the railroad company is liable; the statutory requirement as to crossing signals is not exclusive.
    10. “Would” as Equivalent for “Should” in Instructions to Jury.
    “Unless he had knowledge to the contrary, or in the exercise of ordinary care would have had such knowledge he might assume” so and so, “would” is the equivalent to “would have obtained such knowledge”, and the instruction is correct.
    11. Outlook Required of Engineer and Fireman.
    If the engineer and fireman fail to maintain such outlook along the right of way of the railroad as ordinary care requires while the engine is approaching a crossing the railroad company is guilty of negligence.
    12. Consent of Both Parties Necessary to Allow an 'Experiment before Jury OUTSIDE THE COURT ROOM.
    The refusal of the court to allow an experiment to be made outside the court room before the jury without the consent of both parties is not error.
    [For ojJier cases in point, see 4 Cyc. Dig., “Evidence,” § 1993. — Ed.]

      13. Jury to Determine whether Failure of Persons to Look and Listen was Negligence under the Circumstances.
    It is for the jury to determine from the evidence under the instructions of the court at what precise point a person approaching a railroad crossing under the circumstances disclosed hy the evidence in the case should, in the exercise of ordinary care, look for an approaching engine, and what looking and listening under the circumstances ordinary care requires.
    [For other eases in point, see 7 Cyc. Dig., “Railroads.” §§ 1026-1031. — Ed.]
    14. Urging Horse across a Track as Negligence.
    When a person in crossing a railroad track, his horse being on the track, discovers an engine approaching and urges his horse forward, such act does not constitute negligence on the part of said person.
    [For other cases in point, see 6 Cyc. Dig., “Negligence,” §§ 364, 365; 7 Cyc. Dig., “Railroads,” § 945. — Ed.]
    [Syllabus approved by the court.]
    ERROR to Huron common pleas court.
    S. M. Young, for plaintiff in error.
    A. V. Andrews and W. R. Pruner, for defendant in error:
    Where a railroad company uses the tracks of its road across generally traveled public streets in a populous town or city, it should maintain a flagman or gates and gatemen at such crossing. Clev. C. C. t& I. By. v. Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321]; Pennsylvania By. v. Matthews, 36 N. J. Law 531; New York, C. & Si. L. By. v. Swartout, 6 Circ. Dec. 768 (14 R. 582).
    It is not contributory negligence' to approach a railway crossing in a city with a horse trotting. Clev. C. C. & I. By. V. Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321]; Cleveland, C. & I. By. v. Beiss, 7 Circ. Dec. 450 (13 R. 405) ; Balt. & 0. By. v. Whitacre, 35 Ohio St. 627.
    It is the 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 use them for the purpose of discovering and avoiding danger from an approaching train. Clev. C. & C. By. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633]; Clev. C. C. & I. By. v. Elliott, 28 Ohio St. 340; Pennsylvania Co. v. Bathgeb, 32 Ohio St. 66; Balt. & O. By. v. Whitacre, 35 Ohio St. 627; Clev. Term. & Val. By. v. Heim an, 9 Circ. Dec. 231 (16 R. 487) ; Lake Shore & M. S. By. v. Schade, 8 Circ. Dee. 316 (15 R. 424) ; New York, C. & St. L. By. v. Swartou,t, 6 Circ. Dec. 768 (14 R. 582).
    Plaintiff in an action for damages sustained at a railway crossing need not show that he stopped, looked and listened, in order to free him from contributory negligence. Balt. & O. By. v. Van Horn, 12 Circ. Dee. 106 (21 R. 337) ; Pennsylvania Co. v. Morel, 40 Ohio St. 338; Clev. C. C. & I. By. v. Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321]; Schweinfurth v. Bailway, 60 Ohio'St. 215 [54 N. E. Rep. 89],

      It may be the duty of the company to do more than to merely comply with the statute in order to escape liability. Elliott, Railroads Secs. 1114, 1155, 1156, 1157, 1158, 1159; Clev. C. C. é I. By. v. Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321]; Baker v. Pendergast, 32 Ohio St. 494 [30 Am. Rep. 620]; Grand Trunk By. v. Ives, 144 U. S. 408 [12 Sup. Ct. Rep. 679; 38 L. Ed. 485].
    A high rate of speed may be perfectly proper at country crossings, although it might be considered negligence at a crossing in a populous city. Elliott, Railroads Secs. 1160, 1161;' Clev. C. C. <& I. By. v. Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321],
    A nonprofessional witness who has observed a moving train may give in evidence his opinion of its rate of speed. Balt. & 0. By. v. Stoltz, 9 Cire. Dee. 638 (18 R. 93) ; Balt. & 0. By. v. Schultz, 43 Ohio St. 270 [1 N. E. Rep. 324; 54 Am. Rep. 805]; Shelby (Vil.) v. Clagett, 46 Ohio St. 549 [22 N. E. Rep. 407 ; 5 L. R. A. 606]; Clev. C. & C. By. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633]; Balt. & O. By. v. Van Horn, 12 Circ. Dee. 106 (21 R. 337).
   WILDMAN, J.

The case of the Wheeling and Lake Erie Railroad Company against .George C. Parker, administrator of the estate of Samuel F. Newman, deceased, is one in which a most marked feature is the voluminous record. It is very apparent that this case was hotly contested by the company and zealously pressed by the plaintiff.

There are a large number of exceptions, amounting in all to 265. We have gone over them and have examined everything in the record connected with’ them so as to satisfy ourselves as to what the result was or should have been but I will touch only on some of the more important points.

It appears that on October .2, 1903, Mr. Newman was struck by a passing locomotive belonging to the defendant below, the Wheeling and Lake Erie Railroad Company, now the plaintiff in error, and that he was so injured that he died a few hours later at his home.

His administrator claims that his death was caused by the negligence of the defendant company without fault on his part. Mr. Newman at the time of this tragic occurrence was seventy-six years old; a man, as the evidence discloses, of more than the usual activity and vigor of men of those advanced years, although he had become quite seriously impaired in his hearing.

The claims of the plaintiff as to the negligence of the defendant are disputed by the defendant below, and it in its turn asserts that the negligence, if there was any, was that of the decedent in attempting to cross the track of the defendant company when he knew, or, in the exercise of ordinary care, should have known of the approach of the locomotive which caused his death. There is no question made by counsel for the company that the accident, if we call it such, was the direct cause of the death, and indeed no question could justly be made upon the evidence in this record.

There is conflicting evidence as to whether proper signals were given as the engine approached the crossing. The crossing is that of Benedict avenue in the city of Norwalk at a point where the track was to a considerable extent hidden by buildings, and, as claimed by the plaintiff below, by some ears or rolling stock stationed upon the switch immediately north of the track on which the locomotive which caused the death, was approaching.

The grounds of negligence asserted by the plaintiff below, which it is urged warranted the recovery of a verdict in favor of the administrator for $5,000 damage, are, that the engine which had previously gone in an easterly direction and was at the time backing westerly towards this crossing, the tender being in front of the locomotive, had no proper lookout upon or about the tender to reveal the close approach of any person to the track or the fact that any person was upon the track, in time to enable the employe in charge, the engineer, to check its course to avoid peril to, the person crossing; that there_were no closed gates at the time of the accident to stop persons traveling upon the highway from crossing the track; that there were no sufficient lights on the advancing part of the locomotive — that is, the end of the tender which Avas in advance — so as to make the approach of the locomotive plainly visible to persons about to cross the track; and also that the engine was running at an excessive rate of speed and that the engineer in charge of it, was not keeping it under sufficient control. I think that these are all of the claimed grounds of negligence, as against the company.

Numerous errors have been asserted by the defendant below, to have occurred during the progress of the trial, some of which are as follows:

At the very outset of the trial, questions were raised upon the empaneling of the jury and certain challenges were made by the defendant below to persons called as jurors, which ■ challenges were overruled by the court and exceptions were taken. It appears also that at one stage of this procedure, the plaintiff below announced his intention of passing the jury so far as apparent peremptory challenges were concerned. He said that he simply waived the challenge for the time; but however that may be, the court subsequently permitted him to exercise the right to peremptory challenge after perhaps challenges for cause had been made by the defendant below:

We have examined the record very carefully in this regard and we find that the persons who were considered objectionable by the defendant below and whom hé asked to have excluded from the jury possessed more than the average understanding of the required duties of jurors.

It is true that some ignorance of what would be the proper rule as to liability was shown by one of them in his answers to questions put to him, by counsel for defendant below. Without attempting to state the precise form in which these questions arose in the record, it is substantially this:

Mr. Young, counsel for defendant below, asked the juror whether, if he found that both parties were negligent, — both decedent and the defendant company, — he would render a verdict for the defendant below even if the negligence of both contributed to the injury, and the juror at first replied in substance that in such case he should think that the plaintiff ought to have something, but the amount that he should have, should be determined by the amount of the negligence of both; but upon being instructed by the court as to what would be the true rule, or rather when the hypothetical question was put to him by the court as to what would be his course if he should be instructed by the court as to the- true rule in this state as to contributory negligence, the witness at once showed a disposition to abide by the rule of law which should be given by the court and no disposition in the slightest degree to assert his own notion as against the law- We think in this instance as in the other, that the juror showed intelligence and appreciation of his duties and the court properly admitted him. We think that there was nothing to justify the court in rejecting these jurors, for anything that appears upon the record.

The fact, that counsel for plaintiff temporarily passing the jury waived any right of peremptory challenges for the time, we think did not deprive the court of the power to permit the exercise of peremptory challenges later, provided no injustice were done to the opposite party; and there is nothing in this case to indicate to our minds that any injustice was done. We think there was no error or abuse of discretion in the empaneling of the jury.

The defendant below claims that the court erred in permitting evidence offered on behalf of the plaintiff below, especially as to the custom of the company in leaving cars upon the switch to which I have referred, —a switch next to and along the shed owned by the lumber company, betAveen this shed and the track along which the locomotive passed upon the occasion in question. This evidence was not exactly in the form of a custom; it was rather evidence as to the nature of this track, what it was used for and it was coupled with some other evidence indicating that upon the occasion in question, on October 2, 1903, there were cars which may have obstructed the view of Mr. Newman in his approach to the track where he received his fatal injury.

Our judgment is, that, coupled with the other evidence that was offered showing the probability that cars were placed -upon the track on this occasion, it was entirely proper to show that that was a switch track or a track for the placing of cars loaded with lumber which might be consigned to this lumber company, and placed there for the purpose of receiving lumber for shipment. Another question of claimed error is raised upon the admitting of evidence connected with this same point, the use of this track and the probability that it was occupied, as I have said, on the night in question.

Certain records of the company were permitted to be used to show this fact, and it is claimed that this was error. The official of the company whose duty it was to 'keep these records, — of making the entries, was not called as a witness; the record was shown by the person in whose custody they were, but not the person who had kept them and it is claimed that this was error. This might be urged with much more force if the record had been offered in behalf of the company, if it had been claimed that it was an item of documentary or record evidence which had been made by the company for the preservation of the history of a fact which could not otherwise conveniently be shown, just as a book of original entries may be offered by a tradesman in his own behalf, upon his showing that it was kept in a proper manner, and just as has been permitted to be shown in the two cases which counsel have in memory, Moots v. State, 21 Ohio St. 653 and Shriedley v. State, 23 Ohio St. 131. The difference, however, between those eases and this is involved in the fact that this evidence was offered, not in behalf of the company which caused the record to be kept, but in behalf of the opposite party as an admission of record by the defendant company, and it made very little difference as to who had kept it if it was one of its records upon which it relied and which it used m its business and-was in the custody of the official who produced ic or whose attention was called to it in court. We think that it was properly admitted.

The plaintiff in error complains that evidence was permitted of some of Mr. Newman’s characteristics — his good nature and affability and such matters as that — and especially that it involved the testimony of his wife along this line. We do not think, if the evidence is competent, that any proper objection can be taken to his wife’s testifying as to his habitual characteristics. She is just as competent upon such matters as is any other witness, while she would not be a competent witness to testify to transactions between herself and her husband when no other witnesses were present. But this is a trait of her husband which might be evinced to her, not only in their communication with each other, but also and more especially in the form in which it was called for in the question here, in his dealings with other people; because that was the question substantially that was asked of her, — what were his characteristics in his relation to other people, not in his relation to hex*, —and we think the testimony was competent as drawn from other witnesses and also from hex’. Most of it is in its relation to the business in which he was engaged; he was an insurance agent and all business people know — all intelligent observers know — that in the business of soliciting insurance, the possession of affability and good address are important characteristics adding greatly to the earning capacity of the man so engaged. We find no error in the admission of this testimony.

On the other hand, it is said that the court improperly excluded testimony tending to show that Mr. Newman was habitually negligent in approaching this crossing. The court did reject such testimony and we think properly did it. Although the attorney offering the evidence said he offered it for the purpose of showing Mr. Newman’s familiarity with the crossing.

In the case of Balt. & O. Ry. v. Van Horn, 12 Circ. Dec. 106, 109, decided by the Licking circuit court, the judge announcing the opinion, says:

“It is true that if it was offered to show that Van Horn had repeatedly crossed the railway at that point, that would be competent to show his familiarity with the crossing. As is .said in Brewing Co. v. Bauer, 50 Ohio St. 560 [35 N. E. Rep. 55; 40 Am. St. Rep. 686], it is competent to show his familiarity with the crossing, and if that involved the idea of other acts of negligence on his pai't, it would be the duty of the trial judge to caution the jury that that evidence was competent only for the purpose of showing familiarity with the crossing, and not to show other acts of negligence. But the offer in this case was not for the purpose of showing his familiarity with the crossing— the fact that he knew that there was a railroad crossing there, and knew the situation and surroundings; but it was offei’ed for the purpose of showing that on some other occasion, he had had a'narrow escape before the train; in substance that Yan Horn was habitually negligent, or that at other times and at that place he had been guilty of negligence. We think that that evidence, offered for that purpose, is clearly incompetent. It brings before the jury an entirely collateral issue.”

I will not dwell longer upon the language of the judge in further elaboration of his opinion which is unquestionably well founded and in accordance with the rule of law that you cannot prove one act of negligence by showing others; you cannot show that Mr. Newman was negligent upon this occasion by proving negligence on other occasions, It may have been an especial cause for his exercising the very highest degree of care upon this occasion; in other words, it is the kind of a thing which might lead-a man to be careful, that he had had narrow escapes at other times. However, if the court was in error in not permitting it, — ' we do not think the court was, — we think that no prejudice resulted, because there can be no question, under all the circumstances of this case of Mr. Newman’s familiarity with this crossing. It was not a disputed matter in the case. He lived upon this street and he was accustomed to cross the railroad track at this point very frequently; he was accustomed to drive across it, and the jury could have come to no other conclusion than that he was altogether familiar with the crossing and with the dangers incident to. passing over the track.

The defendant below offered, among other items of evidence, to show that the property of Mr. Newman was mortgaged. This is upon the question of his ability to save or earn money and to provide for his family and accumulate an estate.

We think the testimony was properly rejected by the court for the reason that it is not the best evidence of a man’s earning capacity. There is more direct evidence and it is not an unfamiliar fact that many people permit mortgages to be and remain upon their property for the very purpose of enabling them to accumulate an estate. Sometimes they believe they can earn more with the money which has been obtained by the placing of an incumbrance upon their property than they lose by the payment of interest upon the debt. All of us have in mind manufacturing industries' that do a large part of their business upon borrowed capital. Their annual income from the profits of sales may be very much enhanced by reason of the larger capital which they obtained by borrowing, and it may entirely .justify the carrying of an indebtedness for many years with annual payment of interest upon it. But at any rate, even if this were not so, whatever Mr. Newman was able to earn, in so far as that the money would go to the extinguishing of a mortgage, or to the making of provision for his wife and children, might naturally be inferred or be believed to go to the enhancing of their interest in his estate. If he could eventually have earned enough to extinguish an incumbrance upon the property, his estate would be enlarged to that extent. If the mortgage was to remain upon his property, what he could earn would go to make provision for the maintenance of the family. So we do not see that the existence of an incumbrance upon the property had any legitimate bearing upon the question as to what he was able each year to earn.

It is urged by counsel for plaintiff in error that an improper element of evidence was admitted into the case in showing the value of his business as an insurance agent, instead of showing his earning capacity. We think his earning capacity ivas shown. His business of fire insurance was not quite like the business of a life insurance agent where there is some understanding between the agent and his company, that he is to receive a part of the annual premium which may be collected by some other agent after he goes out of the employment of the company. It is not like that; but the value of the business here is simply his own good will, — his personal good will; it is that which he may be able to maintain if he lives and which is at once cut off, if he dies, growing out of his affability, growing out of his capacity for business and his knowledge of insurance, and the clientage he has built up. It' is a matter of good will, as I say, and it may properly be taken into consideration in estimating damages under .the circumstances developed here.-

■ The answer admits that the death was caused by the injury and it is said in behalf of the plaintiff in error that the court permitted evidence of doctors, tending to excite the imagination of jurors; and consequently their sympathies and possibly their prejudice, which testimony more specifically was that of doctors describing the extent oí the injury directly caused by the striking of Mr. Newman by the locomotive.

We think that the jury could hardly have been influenced in the direction suggested by this evidence. So much is involved in the knowledge that the death was caused by the violence of the collision and the extent of the injury, that scarcely anything could be added to that; I mean in the way of awakening sympathy — sympathy with those who had suffered; with the wife and children, or sympathy because of any thought about his own pain — or prejudice against the company because of any assumption that the injury was caused by the company’s negligence. We hardly see how the jury could have been influenced in the particular direction claimed by counsel. The evidence did have a bearing in another direction and was properly received by the court, although it may have had but a very slight bearing.

Some question was raised as to the speed of the locomotive. It was one of. the complaints of the plaintiff below that the locomotive was running at an excessive speed, and as bearing upon that, it was competent to show the violence with which Mr. Newman was struck, how far he was thrown and in what direction, etc., and in that immediate connection, the extent of the bruises or the mangling of the body or anything of that sort, as bearing upon that question, of the speed of the locomotive. As 1 have said, it may have had little bearing; but if it had any at all. it was proper to be received by the court. If Mr. Newman had been simply pushed down by the locomotive, running at the speed at which a man might walk, and had thereby been injured and had died, it would have presented an entirely different phase so far as this aspect of the controversy is concerned.

Criticism is made of various special instructions given by the court and to some of them I will briefly refer. On page 775 of the record is recited the twenty-third instruction given at the request of the plaintiff below, which reads as follows:

“Whether a given rate of speed in operating a locomotive across a street in a populous city is negligence is not in such a case as this a matter of law, but is a question of fact to be determined by you from the evidence including all the circumstances and surroundings as shown by the evidence, but under the instructions of the court.”

We are unable to see any error in this.

The fifteenth request on page 774 reads as follows:

“If you find from the evidence that the defendant on the occasion in question failed to give such signals by bell or whistle or both as ordinary care required in approaching Benedict avenue with its engine, such failure would be negligence.”

I believe counsel argued orally that the company was held only to what the statute requires as to the giving of signals by bell and whistle. We think that the statutory rule may be not the only rule; that it does not destroy the general rule that the company is held to the exercise of ordinary care.

'The plaintiff below asked the court to instruct the jury and the court did, over the objection of the defendant:

“Unless he had knowledge to the contrary or in the exercise of ordinary care, would have had' such knowledge, Samuel F. Newman had the right to assume that if an engine of the defendant was approaching said crossing at the time in question, it would be handled and operated with ordinary care and would not be run at a negligently high rate of speed. ’ ’

The criticism upon this made by counsel for defendant below is, that the word “should,” ought to have been used in the first part of the instruction rather than the word “would;” in other words, that it would have been correct to say that “unless he had knowledge to the contrary or in the exercise of ordinary care ‘should have had’ such knowledge” he might assume so and so.

We think that in this particular instance the word “would” is just as proper as the word “should.” There are many cases where it is proper to say that, in the exercise of ordinary care, he would have had such knowledge; as much as to say that if he had exercised ordinary care, he would have had it. It is precisely the same as to say that he should have obtained it by the exercise of ordinary care.

Now, when the court says that unless he had knowledge to the contrary, or in the exercise of ordinary care would have had such knowledge, — that is to say, would have obtained it by the exercise of ordinary care — he is stating the proposition, we think, correctly. It would have been equally proper to use the language suggested by counsel. We think there was no error in giving the instruction as it was given.

The eighteenth instruction objected to, is as follows:

“If you find from the evidence that the engineer and fireman or either of them failed to maintain such a lookout toward the west as ordinary care required, while said engine was approaching said Benedict avenue at the time in question and then managed and operated said engine without that caution and care which in the exercise of ordinary care should have been observed and that Samuel F. Newman was injured because of said facts, you will be authorized to infer negligence on the part of the defendant as one of the facts established in the case. ’ ’

It is said that the fireman had other duties; that he was not required at all times to keep a lookout. That may be true and the court does not say otherwise; the court simply says, “If * * * the engineer and fireman * * * failed to maintain such a lookout * * * as ordinary care required.” It is not saying that ordinary care required them to keep a constant lookout.

In the case before us, and under the undisputed circumstances, it would seem as if the court might perhaps properly have said that as they approached this crossing, where the view of the track was obstructed as it was obstructed, considering the rate of speed at which the engine was running, and in view of the fact that it was down grade so that the fireman would not be engaged at the time necessarily in replenishing the furnace with fuel, there was no reason why he could not be keeping a lookout along the track. The instruction given does not say he was obliged to keep a lookout up Benedict avenue; it is not hinting at that; it is not saying that he should have seen Mr. Newman when hé came under the' electric light; the court is saying nothing of that kind; but the court is simply saying that if they omitted to keep that sort of a lookout which ordinary care required in the discharge of their duties, then it would be an act of negligence on their part.

On page 684, is a matter to which I perhaps should have referred before going to the charge. The record discloses these facts; quoting:

“Mr. Young. I will say to Mr. Andrews and to the court, that as far as I can, I will have an engine arranged, and the track arranged, in the way Mr. Andrews claims, and then I will have it arranged the way I claim, that the jury may see the experiment.
“Mr. Andrews. I object to it, I think the conditions that vary all through, are of such a character that any view of that kind, in my judgment would be more liable to mislead one way or the other, than it would be to offer any assistance in this ease. I don’t think that there can be any great difficulty in our arriving at correct results from the sworn testimony of witnesses. '
“Court. As I understand the rule of law, there is no doubt but that such an experiment, in the presence of the jury could only be had upon the agreement of counsel upon both sides and in the absence of such an agreement, I would not feel at liberty to order. I will say this, however, as I have heretofore said, that if any one juror makes a request of the court before the argument, to have another view of the premises, I will order the jury conducted in charge of the sheriff to have a second view of the premises, and that will be, as I have said before, with the consent and approval of counsel on both sides of this ease.
“Mr. Young. I offer to have Mr., Laylin go out and measure dis--tances and have an engine run at varying rates of speed; then I am willing to have these people who have estimated speed say how fast it is running and we can tell to a mathematical certainty how fast it does run.
“Court. Unless counsel agree on both sides, to such an experiment, the court will overrule the request.
“Mr. Andrews. I object to it.
“Mr. Young. To the refusal of the court to permit the jury to go, under the circumstances in the evening, to witness an experiment of this kind, I desire to take exceptions.”

Whether the trial judge had reference to a dictum in 60 Ohio St. or not, I do not know. There is a dictum there which expresses the views of Judge Williams upon this point and possibly the view of the supreme judges generally who have the case under consideration. It is nothing but a dictum, however, and can be treated as the view only of the judge who uses the language. The ease is that of Schweinfurth v. Railway, 60 Ohio St. 215. [54 N. E. Rep. 89], The precise language to which reference is made is found on page 229, where the judge says:

“True, the experiments in this case were not made in court; it was impracticable to do so. Nor, without the consent of the parties, could they have been ordered to be made elsewhere. But they were made out of court at the request of the defendant, in pursuance of an order procured by it, and under conditions which, to its satisfaction, constituted a sufficiently accurate representation of the occurrence that resulted in the death of the plaintiff’s intestate; and they were necessarily of the same probative character as if made in open court.”'

That was a matter which the court was considering; whether the experiments were to be received and considered as evidence and not, as has sometimes been held with regard to the view of premises, something to throw light upon the evidence as illustrating the case and not to be deemed substantive evidence in itself.

Jones v. State, 51 Ohio St. 331 [38 N. E. Rep. 79], was a homicide case in which we find that certain experiments were made out of the view of the court. The Supreme Court held that they were authorized by the defendant and that although the permitting them was alleged to be prejudicial error, it was not so in view of the consent of the defendant. The court substantially held that it was a matter which he might waive, — I mean his right to object to such experiments.

In 2 Jones, Evidence See. 410 we find this language, after discussing the question as to the viewing of premises and also as to experiments:

• “And in general it is held 'to be error to allow the admission of statements or the performance of experiments during the view, unless such experiments or evidence are performed or given with the consent of both parties.”

This is stated as a general rule but whether the trial judge in this case relied upon that, or whether he was relying upon the dictum to which reference was made in Schweinfurth v. Railway, supra, I know not. In Jones, Evidence Sec. 413 this is said:

“They have no right to gain knowledge” (speaking of the jurors), “concerning the cause by such methods as making experiments out of court or by taking views, except under the supervision of the court. But if the knowledge gained in this way could not have affected the verdict rendered, it is not sucb error as to warrant setting aside the verdict.! ’

This refers to the situation where the jury go and make experiments of their own volition. But a part of this offer as to experiments was, that the engineer might make measurements. There surely would have been no objection to this making measurements and testifying in regard to that; but that was not precisely what was sought here. It was to make measurements and after they had been obtained, to have an engine run at varying rates of speed and have the witnesses who made estimates in court, make them over again upon such subsequent transaction.

' Our viewis without discussing the matter more fully, that this would have been improper. . At the most, we are very clear that the court, if it' had the power to grant the permission at all against the objection of a party, would have a discretion in the matter to refuse it if in his judgment, it would not throw proper light upon the controversy. Taking that view of it, it can hardly be said there was here an abuse of discretion.

Returning to the charge, on page 773 we find request No. 8 of the plaintiff below and the instruction given in accordance with the request. It reads as follows:

“It is for the jury to say from the evidence and the instructions of the court, where a person approaching said crossing under the circumstances disclosed by the evidence should, in the exercise of ordinary care, -look for an approaching engine and what looking and listening-ordinary care, under the circumstances disclosed by the evidence, required. ”

This instruction is not, to our minds, very artistically framed. It is a little obscure at first reading, but the intent of it is clear enough after careful scrutiny and possibly the court might have been at fault in refusing it. This is not 'saying that it was not the duty- of a person approaching the track to exercise his faculties of sight and hearing at a suitable point or at the point where, if he had exercised his faculties, it would have disclosed the approaching engine; it is not negativing any such proposition as that and taking that to be the law — that a man should make efficient observation, if possible, and at the proper point for making it — it still becomes a question of fact for the jury, as to just what that efficient point is, as to just where, if he had looked, he would have seen, or just where, if he had listened, he would have heard. This is a matter of fact for the jury to determine, and not for the court.

After the argument was concluded, a request was made to the court as shown on page 797; this was also after the general charge of the court to the jury. It is recorded as follows:

“Gentlemen of the Jury: — I am asked by counsel for plaintiff to give you this further request which I do:
“If you find from the evidence.that when Mr. Newman’s horse was upon the track, he discovered the engine and then urged his horse forward, this fact would not be an act of negligence on the part of Samuel F. Newman, if he acted with ordinary care under the circumstances.”

"We are unable to see why this is not the law. If he had lingered on the track after discovering the approaching engine; if he had made no effort to escape, if he had stopped upon the track or if he had permitted his horse to go so slowly as to increase his peril, it might well be urged that that would have been negligence on his part. The court says that it would not be negligent for him to urge his horse forward provided he acted with ordinary care under the circumstances. We see no reason why the court might not have given it, if asked by counsel without that last qualification. We think it might be said as matter of law that if a man has reached the track and his horse is upon it, if he sees a locomotive so close to him that he is in great peril, it is his duty to urge his horse forward and get off the track just as soon as possible. The court would be just as much justified in giving that in behalf of the plaintiff as in giving the proposition that before going upon the track, ordinary care required that a man must exercise his faculties to discover whether there is a sign of danger.

There are numerous other questions raised in this record, numerous exceptions taken, but I do not deem it profitable to examine further or to say anything about them beyond the statement that in our judgment the ease was fairly tried by the court and with a great deal of care. It would be strange indeed if, in the raising of questions and the taking of exceptions to the number of 265 which I find upon this record, the court did hot get sometimes pretty close to the line. The case was fairly tried, ably prosecuted and ably defended, and no just criticism can be made upon the conduct of the court as to any points which have been called to our attention either in oral argument or in briefs. The judgment of this court is, that the verdict should stand, and that the judgment of the court below should be affirmed.

Haynes and Parker, JJ., concur.


author: PARKER, J.

text:
    BONDS — MUNICIPAL CORPORATIONS — TAXATION.
    [Lucas (6th) Circuit Court,
    October 19, 1906.]
    Haynes, Parker and Wildman, JJ.
    Thomas F. Heffner v. Toledo (City) et al.
    1. ORDINANCE EOS ISSUE OE BONDS TO PAY CITY’S SHARE OE THE COST OE SEVERAL Improvements Contemplated Contains but One Subject — Fund so Raised Is General and Not Special.
    A general ordinance passed by a city council providing for tbe issue of bonds to pay tbe city’s share of tbe cost of certain street and sewer improvements then in contemplation, there being some thirty-two in all of such improvements, and all being named in tbe ordinance, and tbe fund being about to be raised by general taxation of all tbe taxable property of the city, does not violate tbe provisions of Rev. Stat. 1694 (Lan. 31'06; B. 1536-620), in that it contains more than one subject, tbe fund to be raised being a general one, to be devoted to-paying tbe city’s share of tbe cost of improvements wherever they may be, and not necessarily tbe improvements mentioned in the ordinance.
    [For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,’’ §§ 342-352, 3060 et seq. — Ed.]
    2. Municipal Bonds to Pay City’s Share oe the Cost oe an Improvement need not Wait Until Special Assessment thereeor be Specially Levied.
    In providing by ordinance for the issue of bonds to pay the city’s share of the cost of a contemplated improvement, it is not necessary, under Rev. Stat. 1536-213 (Lan. 3604), that the city wait until the assessments therefor on property specially benefited shall have been actually levied, but it is sufficient if the improvement be of the kind for which special assessments may be made, and that such improvement be in contemplation.
    [For other cases in point, see 2 Cyc. Dig., “Bonds, Negotiable,” §§ 10-26; 6 Cyc. Dig., “Municipal Corporations,” §§ 3060 et seq. — Ed.]
    [Syllabus approved by the court.]
    Appeal from Lucas common pleas court.
    B. A. Hayes, for plaintiff:
    A city council cannot by passing a single ordinance authorize the issue of bonds to raise funds to pay the city’s part of thirty-two different improvements. Elyria Gas & Water Co. v. Elyria, 57 Ohio St. 374 [49 N. E. Rep. 335]; Campbell-v. Cincinnati, 49 Ohio St. 463 [31 N. E. Rep. 606]; Rev. Stat. 2706,' 2708 (Lan. 4010, 4012).
    The ordinance authorizing the issue of the bonds in question was . prematurely passed. Elyria Gas <& Water Co. v. Elyria, 57 Ohio St. 374 [49 N. E. Rep. 335] ; 97 O. L. 122, 126, Sees. 53, 55 (Rev. Stat. 1536-213, 1536-215; Lan. 3604, 3606). .
    Bonds to pay the city’s part of an improvement should be a part of the same issue as those to be paid from assessments on benefited property. 97 O. L. 121, 126, Secs. 51, 53 (Rev. Stat. 1536-211, 1536-213; Lan. 3602, 3604); 96 O. L. 51, See. 95 (Rev. Stat. 1536-281; Lan. 4005); Emmert v. Elyria, 74 Ohio St. 185 [78 N. E. Rep. 269].
    J. P. Mantion, for defendants.
   PARKER, J.

This action [Thomas F. Heffner, a taxpayer, on behalf of the city of Toledo against the city of Toledo, Brand Whitlock, mayor, and Randall G. Bacon, auditor, of the city of Toledo], was begun in the court of common ¡ileas to enjoin the sale of certain bonds by the city. There a demurrer to the petition was filed and sustained; the cause was appealed to this court and has been argued and submitted to us upon this general demurrer to the petition. The case is stated in part very succinctly in the brief of counsel for the plaintiff as follows:

“This is an action by a taxpayer against the city of Toledo and its officers for an injunction to restrain the execution and issue and sale of municipal bonds authorized by an ordinance passed August 27, 1906. In the court below, a demurrer to the petition was sustained and the petition dismissed, whereupon the plaintiff appealed the case to this court.
“The ordinance is set out at length in the petition, and provides for the issue, of seventy-five bonds of $1,000 each, payable in twenty years with 4 per cent interest payable semiannually. The bonds are issued to raise money to pay the city’s part of thirty-two different improvements mentioned in the ordinance; eight are for the construction of-sewers; twenty-four for the construction of streets, of which nineteen are to be paved; three are to be repaved and two are to be graded. It appears from the ordinance that the city’s part of the various improvements varies from the sum of $5 for sewer 985, to $26,495, for repaving Norwood avenue.”

It is contended on behalf of the plaintiff that this ordinance violates one- of the provisions of Rev. Stat. 1694 (Lan. 3106; B. 1536-620) which reads:

“No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title” — the contention being, that there are as many subjects here as there are improvements on account of which funds are to be raised by the sale of these bonds — in other words thirty-two subjects- — or, if that position is not tenable, that, since the particular improvements are designated in the statute as street improvements and sewer improvements, there are at least two subjects. We are of the opinion that there is but one subject here, and that it is the subject contemplated by Rev. Stat. 1536-213 (Lan. 3604; 97 O. L. 126). The last clause of that section reads as follows:
“Provided, that any city or village is hereby authorized to issue and sell its bonds as other bonds are sold to pay the corporation’s part of any improvement as aforesaid, and may levy taxes in addition to all other taxes authorized by law to pay such bonds and the interest thereon.

In other words it authorizes the sale of bonds in certain cases to pay the corporation’s part of certain improvements; and that seems to be what is aimed at by the city in this case, and so the ordinance in this case is entitled,

“An ordinance to provide for the issue of general street improvement bonds of the city of Toledo, state of Ohio, to pay said city’s part of the cost and expense of improving' sundry streets and alleys by paving-, repaving, grading' and macadamizing, and 'by constructing sewers therein, and to pay the said city’s part of the cost and expense of constructing such sewers.”

It is true that this is to provide the city’s share — or a fund with which to pay the city’s share — of a large part of different improvements; and by this ordinance the city declares and makes manifest an intention to make these improvements. But this ordinance does not effectively determine that these improvements shall be made. It is not an ordinance of that character. That must be done by separate legislation; and when it comes to such legislation, we have no doubt but it will be necessary to have separate legislation for each improvement. Therefore, wdthout entering into a discussion of the cases of Campbell v. Cincinnati, 49 Ohio St. 463 [31 N. E. Rep. 606], and Elyria Gas & Water Co. v. Elyria, 57 Ohio St. 374, 375 [49 N. E. Rep. 335] cited by counsel, we merely state that the cases do not seem to us to be in point or to apply to such legislation, or to such a state of affairs as we have presented here.

I wish to express my own views about this matter, and I mention that they are mine because I think perhaps they may not be indorsed by my associates, and I do not desire to seem to commit them to these views, unless they wish to have me do so. But it seems to me that there was no need at all of particularizing these improvements in this ordinance. I do not believe that the general scheme contemplated and authorized by this legislation was intended to require anything of that sort with respect to these bonds to be issued to raise the city’s share of the funds necessary to carry forward these improvements. Our attention is called to Rev. Stat. 2706, 2708 (Lan. 4010, 4012; B. 1536-285] 1536-287), the first providing that,

“All bonds, notes or certificates of indebtedness issued by municipal corporations shall be signed by the mayor and by the auditor, comptroller or the clerk thereof, and be sealed with the seal of the corporation ; and when issued for street improvements shall have the name of the street or portion thereof so improved, and for which the same were issued, legibly written or printed upon them.”

Revised Statutes 2708 (Lan. 4012; B. 1536-287) provides:

“Where the corporation is divided into districts for sewerage purposes, bonds issued for money borrowed to pay the expense of constructing or repairing sewers in any such district, shall have the name and number of the district for which they are issued, legibly written or printed upon them.”

The language seems to be broad enough to be fairly open to the construction that it was intended to cover bonds issued to raise the funds to pay the city’s share of these improvements, and yet, looking into the whole scheme and purpose of this legislation, it does not seem to me that that interpretation of the statute is required or that it is reasonable.

Revised Statutes 2703 (Lan. 4009; B. 1536-284) provides that:

“All bonds issued under authority of this chapter shall express upon their face the purpose for which they were issued, and under what ordinance. ’ ’

That would apply to this case; that would apply to bonds of this character; but in my opinion the other provisions, those of Rev. Stat. 2706, 2708 (Lan. 4010, 4012; B. 1536-285, 1536-287), apply to bonds issued in anticipation of the funds to be raised by this special assessment, so the bond buyers may be apprised of the revenue to which they must look and the legislation upon which they must depend for the payment of those bonds, and so that the funds of the city, both those raised by taxation and those raised by assessments in different quarters of the city for different sorts of improvements, may not be improperly diverted, but that assessments collected for a certain improvement may be applied upon the bonds issued on account of that improvement, in anticipation of those assessments and not otherwise.

But the reason for that does not seem to me to apply at all to the cases of bonds issued for funds to pay the city’s share of these improvements, since such funds are provided by general taxation upon all the property of the city, and there can, in such eases, be no such thing as taking funds from one class of persons, or from one locality, and diverting them by applying them upon improvements made in another part of the city and for other citizens or property owners. The statute has always required the city to pay the cost of intersection. It authorizes now the payment of part of the expenses of certain improvements — street improvements and sewers — in addition to- the cost of the intersections. I had never supposed that it was necessary, in order to raise the funds to pay the cost of intersections, that the city should adopt legislation with respect to each one of the streets to be improved wherein intersections occurred, or, if it were necessary to sell bonds for such funds, that it would be necessary to designate upon the bonds the street to be improved, on account of which the city was providing funds to pay the cost of intersections; and yet this additional cost imposed upon the city, that may be assumed by the city in addition to the intersections, stands, it seems to me, in all material respects and on principle, upon the same basis as the expense of the cost of intersections.

But in this particular case it is not necessary to pass upon the question of whether thl naming of the improvement upon the bonds is required, since it appears that the ordinance provides for the placing of the names of these various improvements upon the bonds, and the various improvements are designated in the ordinance.

I have already said that we hold that the ordinance contains but one subject; and it seems to us that the legislature never intended to provide that there should be separate legislation as to the bonds to be issued to pay the city’s share of each improvement, since it would lead to results quite absurd. In the case at bar, for instance, it appears that the city’s share of some of these improvements does not exceed $100; in one ease the city’s share is but $5 and it would certainly be very absurd to require that an ordinance should be passed providing for the sale of a bond to raise that $5, since the expense of sale would far exceed the amount to be raised for the improvement. While it would be not quite as bad, it would be bad enough, if it were required in the case of improvements costing the city but $100 or $200.

The fund to pay the bonds is raised by general taxation. In the old statute it was spoken of as a general assessment upon all the property of the city. I think the present statute calls it a general tax, and certainly it is general, as it is levied upon all the property of the city. I do not know of any distinction between a general assessment and a general tax. It is an assessment of a general tax upon all of the property of the city for certain purposes. If these funds to be raised to pay the city’s share of these improvements were to be kept separate and distinct, as required in the casé of the funds raised by special assessments on property specially benefited, then it would follow that for the city’s share of the cost of each one of these thirty-two improvements there would be a special fund set aside to be devoted to one certain improvement and no other, and a diversion from the fund to any other improvement of like character -would be wrongful and unauthorized. But for myself, I do not regard the fund raised by this general tax in that light, or as being of that character. I regard it as a general fund from which the city may draw from time to time as need shall occur to pay its share of the cost of such improvements, wherever they may be within the city.

In opposition to this view, it'is urged that what is contemplated by 97 O. L. 26, Sec. 53, is the sale of bonds to pay the corporation’s part of improvements that have been determined and have gone forward so far that special assessments have been made upon properties to be specially benefited. I read more of the section bearing upon this question beginning about the middle of the section:

“In all municipalities the corporation shall pay such part of the cost and expense of improvements for which special assessments are levied as council may deem just, which part shall not be less than one-fiftieth of all such cost and expenses; and in addition thereto, the corporation shall pay the cost of intersections; provided, that whenever special assessments have been levied and paid, for the improvement of any street or other public place the property so assessed shall not again be assessed for more than one-half the cost and expense of repaving or repairing such street or other public place unless the grade of the same is changed.”

And then follows what I have already read,

“Provided, that any city or village is hereby authorized to issue and sell its bonds as other bonds are sold to pay the corporation’s part of any improvement as aforesaid, and may levy taxes in addition to all other taxes authorized by law to pay such bonds and the interest thereon. ’ ’.

xt is urged that the words ‘ ‘ as aforesaid, ’ ’ applied to what goes before, mean improvements on account of which assessments are, — that is to say, have been — levied; but we construe this statute as meaning that such bonds may be sold to pay the corporation’s part of improvements of that character, — that is to say, cases where special assessments are authorized by law; where special- assessments may be made, — and to provide funds to pay the city’s part, it is not necessary for the city to wait until the legislation with respect to the improvement has gone forward so far that the assessment shall have been actually levied.

This is our answer to the further contention of counsel that the issuing of these bonds on account of certain of these improvements is premature and is anticipatory to a degree not authorized by the law. lie points out in the petition,

“That no resolution nor any ordinance, for the said improvement of Hawley street, or of Michigan street, or of Sherman street has yet been passed by the council of the city of Toledo; that no ordinance determining to proceed with said improvement of Adams street or of Fernwood avenue, or of Galena street, or of Lincoln avenue, or of West Broadway, or of Bush street, or of North Twelfth street, or of Norwood avenue from Twenty-second street to Lawrence avenue, or of Robin-wood avenue, or of Jarvis street, or of Parker street, has yet been passed by the council of said city. That no special assessments have been levied to pay any part of the cost or expense of any of- the improvements mentioned in said ordinance passed August 27, 1906. ’ ’

It may be said that unless the city is restricted in the sale of bonds of this character for such improvements as are going forward and such as have gone forward to a stage where ■ assessments have been made, that it might sell bonds of this character without limit and unnecessarily raise a large fund, for which it may have no real legitimate use, unless it diverts it to some other purpose.

But the eoruicil is restricted fairly by Sec. 53, to the raising of such revenue as may be necessary to pay its share of such improvements as may be made or contemplated, and we are not required here to consider whether the city may not be providing for too large a fund, since there is no charge of that kind in the petition. It does not appear in the case submitted to us but what the funds for which these bonds are being issued will be needed for purposes of this character. It may be, that some of these particular improvements designated may fail at some stage so that they may not be built; but it seems to us that in a case like that there is a provision of lawv for turning the funds over to the sinking fund, — I have not that section before me, but it seems to me that it would not be an unlawful diversion of these funds although certain im-’ provements are designated in this ordinance, to devote them to other improvements within the corporation ’ of like character. In other words,that what is stated in this legislation in the way of particularizing the improvements is practically surplusage. I understand, however, that in compliance with the requirements of bond buyers who are usually very cautious, sometimes overcautious, the city has adopted this method of designating the particular improvements, to promote the selling of bonds of this kind; and it may be legal necessity though personally I cannot see that it is.

Our attention has been called to a recent decision of the Supreme Court of this state, in the ease of Emmert v. Elyria, 74 Ohio St. 185 [78 N. E. Rep. 269], opinion by Judge Summers. One of the questions in that ease was, whether the city conld go forward with a certain improvement before the money to pay the city’s share of the cost of the improvement was actually in the treasury; and it was held that, since the bonds had been authorized and sold, the money should be deemed to be in the treasury; and that the contracts might be made and the improvement might go forward.

It seems that in that case the city had proceeded in pursuance of 96 O. L. 51, See. 95 (Rev. Stat. 1536-281; Lan. 4005) to sell bonds that would raise a sufficient fund to pay not only the part to be met by the assessments .upon the property specially benefited, but to pay the city’s part of the cost of such improvement. At all events, in discussing the matter Judge Summers says that that course is authorized under that section, and he- seems to discuss it as if that were something novel in the statute; but in looking into the statutes in force before the adoption of the new code, it seems to me that there has been no material change upon this subject. I will call attention to original Secs. 2263, 2265, 2273, 2274, 2703, 2704, 2705, 2706, 2708 of Bates Annotated Ohio Revision of 1897. I shall not stop to read or .comment upon all these sections.

The statute at that time provided that part of the cost of improve ments of this character might be paid by the city from the fund raised by general taxation, and until this recent utterance from the Supreme Court I had always supposed that the provisions now found in Rev. Stat. 1536-281 (Lan. 4005) as to the issuing of bonds in anticipation of special assessments, applied strictly to bonds issued in anticipation of, and to be met and paid by special assessments and not to bonds issued in anticipation of, and to be paid in whole or in part from, the general revenue to be raised to pay the city’s share of such improvements. Since the Supreme Court has so declared, it is now the law, that all of the revenue necessary, both the city’s share and the share to be raised by special assessments, may be raised by the sale of bonds under and in pursuance of Rev. Stat. 1536-281 (Lan. 4005).

But it is clear that this is not the only method of raising the city’s share. If the city should proceed under that section then the bonds would run, I believe at the farthest, ten years; and if the city should proceed under that section I suppose it would follow necessarily that the improvement, on account of which the funds were raised, both the city’s share and the share to be made by assessment, would be named upon the bonds; all the legislation with respect to the matter would be special to the particular improvement in hand; but it is clear that 97 O. L. 126, See. 53 (Rev. Stat. 1536-213; Lan. 3604), authorizes tbe course of procedure pursued 1by the city in this case — expressly authorizes it.

The demurrer will be sustained and the prayer for injunction disallowed.

Haynes and Wildman, JJ., concur.


text:
    TRUSTS AND TRUSTEES.
    [Huron (6th) Circuit Court,
    1906.]
    Haynes, Parker and Wildman, JJ.
    Anna C. Brown v. Theodore Williams et al.
    1. Duty op Trustee to Distinctly Designate an Investment of the Trust Fund as Such Fund.
    A change in the investment of a trust fund being made by the trustee without any specific designation of the new investment at the time of the change as that of the trust fund, but leaving it open so as to make it possible for him to claim it as his own should it be profitable or treat it as the trust should it prove disastrous, the cestuis que trustent can elect whether they will consider the investment as made of the trust fund or require the trustee to account for the trust and a reasonable income from it. ,
    [For other cases in point, see 7 Cyc. Dig., “Trusts and Trustees,” §§ 356-361. — Ed.]
    2. Remainder-man op Income of Trust Funds not Bound by Election of Life Cestui Que Trust.
    The income of a trust fund being bequeathed to a legatee and at her demise her share to go to her surviving children, such children after the demise of their mother are not bound by any election or ratification of the changes in the investment of the trust fund which proves injurious to such children.
    [For other cases in point, see 7 Cyc. Dig., “Remainders,” §§ 15, 16.' — Ed.]
    [Syllabus approved by the eou.t.]
    Appeal from Huron common pleas court.
    C. L. Kennan and C. P. & L. W. Wickham, for plaintiff.
    S. M. Young, C. L. Kennan, C. P. & L. W. Wickham, and A. V. Andrews, for defendants.
   PARKER, J.

This ease is in this court by appeal. It appears from the pleadings and the evidence that in 1869, James Williams, a farmer residing in this county, died testate, leaving surviving him, Julia B. Jackson, Louise Bronson, Caroline Williams, James B. Williams and the defendant, Theodore Williams, his children. His last will and testament was duly admitted to probate and Theodore Williams and James B. Williams, nominated therein, were duly appointed as executors of the last will and testament and they qualified and acted as such jointly until the time of the death of James B. Williams which occurred in 1878. The will bequeathed to the sons, Theodore and James B., all the stock of the testator in the Toledo Bridge Company, amounting to $11,000, par value; but upon his stock was imposed by the will, a trust in favor of the other children and upon their decease, their surviving children. That is, it was provided that the income from this stock or from any other investment made from the proceeds of the stock, should go to them, but the body of the fund should belong to James B. and Theodore. One-half of this income was to go to Julia B. Jackson and at her demise, 'her share of the income was to go to her surviving children. She died in 1896, leaving the plainitff, Anna C. Brown and the defendants, Theodore W. Jackson. and Florence B. Friend, her only surviving children.

There is some. controversy arising upon the construction of this devise or this bequest as to whether, upon the death of Julia B. Jackson, all of the income which she had theretofore been entitled to, then went to these parties, she having had other children that died before her decease. But we are of the opinion that it is very clear from the will that these three surviving children took the same interest in the income from the fund as had theretofore been enjoyed by their mother. It seems that this stock in the Toledo Bridge Company at the time of the decease of the testator was regarded as very valuable and was paying good dividends and it continued to pay good dividends for some years thereafter. But in 1872, it became- advisable and perhaps necessary to dispose of the bridge stock and to take in exchange for it a bridge bond of the city of Toledo, and that was done. The amount received in exchange was $7,000 in the bridge bond and $333.33 in cash. Afterwards, in November of 1882, these bridge bonds were redeemed by the city. Up to that time the income from the bridge bonds had been 8 per cent per annum or 4 per cent each period of six months, interest being paid semiannually.

Mr. Williams in his account gave credit to the sister for 8 per cent upon $333.33 of cash. Early in 1882 Theodore Williams, the surviving executor and trustee, became the owner of bonds of the Norwalk Gas Light Company. He made purchases of these bonds at different periods until he became the owner of the full issue of $25,000. These bonds provided for the payment of interest at the rate of 6 per cent per annum, or 3 per cent semiannually. Default was made in the payment of interest upon these bonds in March, 1891.

It appears that the property had become very much run down and upon default being made, Mr. Williams as trustee, under a mortgage securing the bonds, foreclosed, and the property was sold, and it turned out that it paid a very small percentage upon the bonds. In fact, the bonds by that time had become almost worthless. It appears that at the time Mr. Williams became the owner of the bonds, they were regarded in the market as good securities, and as being fairly worth anywhere from eighty to ninety cents upon the dollar.

. Upon the gaslight company making default in payment of interest upon these bonds, or very soon thereafter, Mr. Williams ceased paying Julia B. Jackson anything of the trust fund under the will that has been referred to, claiming, as it appears, that he had invested the money derived from the redemption of the Toledo bonds and the other amount of $333.33, in the Norwalk Gas Light Company bonds, and so far as appears from,the evidence Mrs. Julia B. Jackson acquiesced in this statement and settled with her trustee upon this basis; but the plaintiff in this ease and the cross petitioners, Theodore W. Jaeksoii and Florence B. Friend, claim and contend that Mr. Williams did not make this investment of the fund derived from the redemption of the Toledo bonds, or that, if he did, it was not done in such a way as that they are bound by his action, and they thereafter called upon him to account for interest the time that has expired since their mother’s death, and since they became entitled to the income from this fund; they called upon him to account for the interest at least, upon $7,333.33. The controversy here i turns upon the question whether Mr. Williams made this investment of the fund, or if he did. whether this cestuis que trustent are bound I by such action so that they must suffer the loss that has resulted from! the investment. I

Considerable testimony has been submitted to us, including the testimony of Mr. Williams and Mr. Williams’ bookkeeper. A large part of the evidence consists of entries in Mr. Williams’ books of account. Mr. Williams, who is now a man advanced in years has, as it appears, throughout his lifetime, been a man of extensive business interests and an active business career; also a successful man of business and a man who seems to have been in the main very prudent in his investments and very exact in his accounts.'

. His records of his transactions pertaining to this trust as found in his account, books and letters and papers show that when the change -vyas made in the investment from the stock of the Toledo Bridge Company to the bonds of the city of Toledo, he set down a very full and exact statement of the whole transaction so that anyone coming into possession of his books could easily follow the fund and see exactly how it had been invested, and in that account and statement he even gave the numbers of the bonds, and in other respects his accounts are very full and very exact. But when it comes to the alleged transaction of 1882, when these bonds of the city of Toledo were redeemed and when it is said that the proceeds were reinvested in the bonds of the Norwalk Gas Light Company, we find very slight, if any evidence in the books and papers of Mr. Williams, of such a transaction, — I mean the transaction of reinvestment. Were it not for the oral testimony of Mr. Williams we think it would be utterly impossible for anyone to determine that such a transaction had taken place; and while in the books and papers there are some things that are consistent with, and perhaps point to such a transaction, there are, on the other hand, many things that point to the absence of such a transaction; indeed, the only statement found in the boobs that we regard as indicating with any degree of definiteness that there was such a transaction in fact, or in contemplation, is found in the entry in the books of Mr. Williams occurring in July of 1892, after the bonds had become practically worthless. He there makes a notation to the effect that certain charges against his sister were on account of interest advanced upon this, which he continued to call the “bridge fund,” and that he thus continued at that date his advancement by reason of the fact that the interest upon the Norwalk Gas Light Company bonds had not been paid.

The oral evidence of Mr. Williams and of his bookkeeper indicate that Mr. Williams regarded the money received from the Toledo bridge bonds as having been invested in the Norwalk Gas Light Company bonds and that he used the interest collected from the Norwalk Gas Light Company bonds to discharge the annual interest which he charged to himself on account of the money received from the Toledo bridge bonds.

I have indicated and perhaps should state more definitely that after the stock of the bridge company had gone into the Toledo bridge bonds, the entries in the ledger of Mr. Williams were changed and the fund was denominated the “bridge fund.” It continued under that designation without any interruption in form of the statement of the account, without the striking of any balance or anything to indicate any change even after the bonds had been redeemed and down to the time that he ceased to pay interest. His books indicate that he was paying 6 per sent interest 'upon the $7,333.33; he was paying it semiannually.

The interest upon the “bridge bonds” fell due upon the tenth day of May and the tenth day of November of each year. The interest upon the Norwalk Gas Light Company bonds which was equal in amount, fell due upon the first day of March and the first day of September of each year.

In most of the entries 'following this alleged transaction of reinvestment in the Norwalk Gas Light Company bonds,, the charge of the interest as having been paid to Mrs. Julia B. Jackson appears under date of the tenth day of May and the tenth day of November, though in some few instances it appears upon other dates, and in some instances upon the first of March and the first of September.

The transaction which Mr. Williams testifies was on behalf of this trust fund, was the purchase of $8,000 par value of the Norwalk Gas Light Company bonds in May of 1882; whereas the Toledo Bridge Company bonds were not redeemed until November 10, 1882. Mr. Williams, when he is first called upon to relate the facts of that transaction, seems to have remembered that he received the money from the bonds of the city of Toledo before he reinvested it in the bonds of the Nor-walk Gas Light Company. He says that as soon after he made this collection as he could find the security in which to make the reinvestment, he made such reinvestment; whereas, it turns out, as -a matter of fact, that this $8,000 block of bonds had been purchased by Mr. Williams some six months before the bonds of the city of Toledo had been redeemed, and upon his attention’s being drawn to that, he states that he had bought the Norwalk Gas Light Company bonds in anticipation of the redemption of the Toledo bridge bonds, which would seem to be a matter of loan or accommodation. But, as I have said, Mr. Williams’ claim is, that he invested the money received from the city of Toledo on account of the so-called “bridge fund,” or $7,333.33 in the bonds of the Norwalk Gas Light Company of equal amount, or, in other words, of the par value of $7,333.33; whereas, it further appears from his testimony that the block of bonds of $8,000 cost'him but eighty-four cents upon the dollar.

Manifestly, the trustee could not be permitted to derive a profit from the purchase of bonds on behalf of the trust. It turns out that if he had purchased but $7,333.33 of par value of these bonds, he had, under the law applicable to such transactions, as between the trustee and the cestui que trust, invested bait $6,149, of this money, leaving in his hands uninvested, 1,184; or, if he had invested the full $7,333.33 in these bonds at eighty-four cents, he would have purchased about $8,700 of bonds, which was more than the amount of the purchase made upon that occasion and in that transaction.

The view that Mr. Williams takes of the transaction, and the view most consistent with his testimony and his books is, that he invested but $6,149 of the trust fund in these bonds, if anything. As I have said, the testimony tends to show that Mrs. Jackson, the mother of these parties, acquiesced in the claim or statement of Mr. Williams that he had made this reinvestment of the fund, and settled with him upon that basis; but it will be observed that these parties do not claim through, or under their mother; their rights, like that of Mr. Williams under the will, are derived directly from the testator, so that their rights are not in any way affected by any admissions or declarations or settlements or transactions upon the part of their mother; and whatever she may have said or done, cannot be regarded as admissions or as evidence of any character affecting their rights.

I cannot go further into the details of this transaction. I have not recited all of the pertinent evidence; I have only given a general statement of the matter; and after looking over the books and papers of Mr. Williams, without taking into account his oral statements, we find as I have already stated, that it is impossible to determine that any such investment as now claimed, was ever made in the bonds of the Norwalk Gas Light Company; that the whole claim of re-investment, so far as the evidence is concerned, rests upon the oral statements of Mr. Williams and those of his bookkeeper.

Besides this block of $8,000 of bonds, he had, as I believe I have stated, other bonds, amounting in the aggregate to $25,000. There appears to have been no attempted separation made of any part or of any number of these bonds which were set apart as the investment made on behalf bf the fund. Had Mr. Williams been so disposed, — we do not mean to intimate at all that he was a man that would have done or contemplated such a thing, — but had he been a man of such a character that he would have been disposed to treat these bonds as his own, he might well have done so, 'and his books and papers would have afforded no evidence against him. .

So far as any record evidence is concerned, — 'any written evidence, any evidence of a permanent form, or any evidence of the setting aside and designating of these papers as belonging to the fund, — there is such an absence of anything of that kind that Mr. Williams was in a position, if the bonds became of little value, or of no value, to say they were a part of the investment of the trust fund; or, if they became very valuable, if they commanded a premium so that it would be profitable for him to do so, it was in his power to say, “This is my personal property, and the trust fund, — the ‘bridge fund’ — is intact in money in my hands on account of which I have charged and paid interest at the rate of 6 per cent — 3 per cent semiannually since it came into my hands. ”

Now, we think the authorities are very clear that a trustee cannot thus operate with a trust fund. We have no disposition to intimate that Mr. Williams ever contemplated anything other than to regard the $7,333.33 of these bonds, as set apart as the trust property; and yet, by failing to distinctly mark or distinguish any of the bonds as trust property, either by assignment or transfer of title, or by any mark or method, or by his accounts, leaving himself in a position where he might with equal consistency, "treat the bonds as his own personal property, or as trust property, we think that under the authorities, Mr. Williams placed himself in a position where these cestuis que trustent may elect to regard that investment as having been made or as not having been made. Naturally, under the circumstances,, if considering their own profit only, they would elect to regard it as not having been made, and this they have done. (Equity will not tolerate a system of dealing that places the cestui que trust so much at the mercy of the trustee and, gives the trustee such an advantage as would be given here were we to uphold this transaction as claimed by Mr. Williamsil

We conclude therefore, that the prayer of the plaintiff’s petition and the cross petition of the defendants, these children of Julia B. Jackson, should be, and it is granted.

Haynes and Wildman, JJ., concur.


author: JELKE, J.

text:
    OFFICE AND OFFICERS — PRINCIPAL AND SURETIES.
    [Hamilton (1st) Circuit Court,
    May 14, 1904.]
    Jelke, Swing and Giffen, JJ.

      State, for Use of, etc. v. Frank Cottle, Admr., et al.
    Sureties op Public Official not Liable for Malfeasance of Duties not Legally His.
    The sureties on the bond of a clerk of a board of education are not liable for his appropriation of moneys that have come to him while such clerk but the collection of which legally devolved upon the treasurer of the board.
    [For other cases in point, see 2 Cyc. Dig., “Bonds,” §§ 503-520; 7 Cyc. Dig., “Schools and School Districts,” §§ 197-205. — Ed.]
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
    C. J. Hunt, city solicitor, for plaintiff in error.
    F. Fo Dinsmore and Harrison & Aston, for defendants in error.

       Affirming State v. Cottle, 17 Dec. 108; affirmed, State v. Griffith, 74 Ohio St. 80.

   JELKE, J.

The rule adopted by the board of education on May 31, 1887, was without authority and contrary to law. Hence it was beyond the pale of George R. Griffiths’ official duties to receive the money as alleged in the petition.

We do not think this is a case of acts done colore officii because there were no other similar acts pertaining to his office prescribed by law.

It is different in this respect from levies mad? by constables and sheriffs on strangers’ goods.

The contention made by Mr. Waite that there was a breach of duty in failing to order the person paying the money to pay the same to the treasurer, is entitled to some weight. There are two objections to this:

First. There was confusion created by the unlawful rule of May 31, 1887, made^by the board, the relator herein, and

Second. This did not cause the loss; the loss was made by Griffiths’ unlawfully appropriating the money to his own use after it had improperly come into his hands.

Applying the principles strictissimi juris shielding sureties we think the court below did right in sustaining the demurrer to the third amended petition against said sureties.

Judgment affirmed.

Swing and Giffen,' JJ., concur.