text:
    DETERMINATION AS TO WEIGHT OF THE EVIDENCE.
    Circuit Court of Lorain County.
    The Cleveland Electric Railway Co. v. Margaret A. Pifer.
    Decided, October 8, 1903.

      Number of Witnesses Does Not Determine Weight of Evidence.

    A judgment will not be set aside as being against the weight of the evidence in a case where the evidence is clearly contradictory and the jury must believe certain witnesses and disbelieve others, simply because it has believed the witnesses who were fewer in number; this is so especially when uncontradicted facts point toward the conclusion reached by the jury.

      Squire, Sanders & Dempsey, J. P. Dawley and E. G. & H. C. Johnson, for plaintiff in error.

      C. S. Bentley and Willis Vickery, contra.
    Winch, J.; Hale, J., and Marvin, J., concur.
   Plaintiff in error has brought proceedings in error in this court to reverse a judgment for $4,000 recovered against it in the court below as damages sustained by the defendant in error by reason of the negligence of the plaintiff in error in so> managing one of its ears upon which the defendant in error was a passenger, that, as she attempted to alight therefrom, it started suddenly and she was thrown to the ground, permanently injuring her right wrist, spine and nervous system.

The accident happened at the corner of Wilson avenue and Wilson place in the city of Cleveland.

It is claimed that the verdict of the jury upon which the judgment was rendered was contrary to the manifest weight of the ' evidence, and that the trial judge erred in his charge to the jury, and in refusing to charge as requested by plaintiff in error.

As to the weight of the evidence: The plaintiff below claimed and so testified, that after the ear had stopped at Wilson place, and while she was attempting to alight therefrom, it started with a sudden jerk and threw her to the pavement.

She was corroborated in her statement, by Professor Swanbeck, a fellow passenger, who got off the car at Wilson place just a moment before she was injured.

On the other hand the conductor and three other passengers, two of whom were seated in the car and one standing on the rear platform when the accident occurred, testified that she stepped from the car before it came to a full stop.

Evidently the jury believed the plaintiff’s story. Its probability is materially strengthened by the position she was in on the pavement after she had fallen thereto.

The car was traveling north on Wilson avenue. All the witnesses who testified on the subject agree that she lay on the pavement with her feet to the north and head to the south. She fell, then, in the direction from which the car came. This would indicate that the car was jerked out from under her after it had come to a stop. Such movement would pull her feet out from under her and she would fall backward. Were the car in motion when she attempted to alight, the momentum of the car .would carry the upper part of her body forward when her feet became stationary by reason of contact with the ground, and in such case she would fall with her head to the north. Considering the probabilities as to whether the car was stopped or in motion when defendant in error attempted to leave the car, as deduced from her position on the pavement after she fell, we can not say that the jury was not warranted in finding the issue on this point in her favor, notwithstanding twice as many witness testified in favor of the theory of the railway company as testified for Mrs. Pifer.

Whether the jury was also influenced in reaching its conclusions and in believing or disbelieving many or few of the witnesses produced before it by their appearance upon the stand and manner of giving testimony we can not know, and for this reason also, we are reluctant to disturb the verdict, notwithstanding the testimony is conflicting.

As to the charge and requests to charge: the charge substantially covered all the counsel for the railway company requested and was entitled to.

Indeed, the charge in some respects was more favorable to the railway company than it was entitled to, the court defining negligence as the want of ordinary care and so intimating that the railway company had not been negligent if, under the circumstances of the case, it had exercised ordinary care, while the law is, that common carriers, as to their passengers, are bound to exercise the highest degree of care.

It is claimed that the court erred in commenting as it did upon the weight to be given to the number of witnesses produced upon either side. As before stated, witnesses for the railway company outnumbered the witnesses for the passenger two to one, and such benefit as the railway company should have obtained from this fact, it claims was destroyed by the following part of the charge :

“You are the sole judges of the weight to be given to the evidence and of the credibility to be given to the witnesses. You have the right to believe or disbelieve any witness. The weight of the testimony is not to be determined necessarily by the number of witnesses called on either side. The question remains for you to determine without regard to the number of witnesses, where the real truth lies. As you shall determine this question from the evidence under the rules given you, so should your verdict be.”

While some sentences in this part of the charge taken alone are open to criticism, the whole was not misleading or prejudicial.

In any event, in this case, as the testimony was conflicting, the jury had to believe some of the witnesses and disbelieve some, and the probabilities of the case, deduced from uncontradicted facts, to which we have heretofore called attention, doubtless influenced the jury to believe those witnesses, though fewer in number whose story was in accord with such probabilities.

We find no error complained of which would warrant a reversal and the judgment is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    CONTRACT FOR SALE OF COAL LANDS.
    Circuit Court of Perry County.
    Timothy O’Farrell v. The Sunday Creek Coal Co.
    Decided, November, 1903.

      Specific Performance — Absence of Goal on Tioo Hundred Acre Tract Not Established by Two Borings — Failure to Perfect Title Does Not Defeat Action for Specific Performance.

    1. In an action upon a contract for the sale of coal land, a defense that there was no mineable or marketable coal under plaintiff’s land is not sustained by evidence that two borings on a two-hundred acre tract failed to disclose coal in mineable or marketable quantities when it is admitted that in that neighborhood coal veins appear and disappear unexpectedly.
    2. A vendor who has not complied with the terms of his agreement by making a good title, or by conveying or offering to convey at a stipulated day, may still obtain a decree for specific performance notwithstanding his delay, provided it is not intentional, unreasonably long, or so injurious to the vendee that an enforcement would be inequitable.
    Winch, J. (orally, sitting in place of Donahne, J.); Voorhees, J., and McCarthy, J., concur.
   The petition in this case alleges that on May 10, 1900, the plaintiff was the owner in fee simple of all the coal in, on and under certain real estate, described as two hundred acres of land in Monroe township, Perry county, Ohio, and that on that day he contracted in writing to sell the same to the defendant for the sum of $4,000, $1 being paid at the time, and the Balance of $3,999, to be paid when the deed should be delivered; proper deed, together with abstract showing title to be in fee simple, free, from all encumbrances, to be delivered on demand on or before September 1st, 1900; that demand for deed and abstract were made upon him May 23, 1900, that he proceeded at once to the preparation of his abstract and delivered it; that defendant took possession of the premises and exercised ownership over it.

The petition further alleges that plaintiff has always been and still is ready to perforin said contract, and on January 19, 1901, tendered a deed to the defendant and demanded payment of balance of the purchase price, which was refused, wherefore he prays judgment that defendant perform said agreement and -pay plaintiff the sum of $3,999, with interest from January, 1901.

The answer of the defendant company contains nine defenses, which may be grouped as follows:

The first defense is a general denial with a specific denial that plaintiff was the owner in fee simple of said property, on May 10, 1900.

The second and third, fifth, seventh and ninth defenses aver that the defendant could not in law, under its charter, enter into the agreement mentioned; that the person representing the defendant in the transaction, though its agent, had no authority to bind it to the agreement; that said lands were not underlayed with a coal measure that could either be mined or marketed or contained any such coal; that upon discovering there was no mineable or marketable coal under said lands, the defendant declined to take said premises; that by reason- of there being no such coal under said lands the consideration for the transaction had failed.

It will be noticed that these five defenses are based upon the claim that there was no mineable or marketable coal under said lands, and it may be observed that the burden of proving such fact is upon the defendant. ;

The fourth and sixth defenses allege that plaintiff was not in position on September 1st, 1900, to comply with the terms of said agreement, because his title was not good and sufficient as stipulated therein.

The eighth defense alleges in substance, that defendant was induced to enter into said agreement by the representations of plaintiff that said lands contained from six to seven feet of coal; that said representations were false, and that the contract was tainted with fraud.

While the nine defenses are separately stated and numbered and an effort has been made to group and classify them, it is proper to state that they are so interwoven and interdependent that to support them all defendant must prove but four things:

1st. That plaintiff’s title to the property was defective.

2d. That the contract was superinduced by the fraud and misrepresentations of plaintiff.

3d. That there was no mineable or marketable coal on the property.

4th. That the plaintiff himself failed to comply with the terms of the contract by delivering a deed and abstract within the time limited by the agreement.

A reply to said answer denies all its allegations, except as to the delivery or tender of deed within the time limited by the agreement, as to which proposition the plaintiff says that the time for the delivery thereof was extended by defendant.

There are few propositions of law in this case, and as to the facts it is sufficient, without commenting on the evidence, to say that we find therefr'om that plaintiff’s title is as alleged by him, and no fraud or misrepresentations on his part has been proven. Indeed, at the hearing counsel for defendant abandoned such claim:

Is there mineable or marketable coal under plaintiff’s property.

As evidence that there is not, defendant submits the results of the drilling of two holes, one at the extreme north and one at the extreme south line of the property, perhaps half a mile apart, and drilling on property in the neighborhood, which showed too little coal to be mined or marketed.

We can not say from this testimony that this two hundred acre farm does not contain mineable and marketable coal. There is a failure of proof. At the hearing counsel for defendant admitted that in Monroe township, where the property in controversy is situated, there are faults -and other irregular geological formations to such an extent that viens of coal are present and disappear most unexpectedly and unaccountably. The presence or absence of coal veins, their extent and continuity can only be determined by drilling. In view of these admissions and in the absence of any testimony of experts or óthers tending to show the geological formation of the property in question, or the extent of the field indicated by -witnesses in this case, we can not determine from the fact that two drillings were made on the extreme north and south limits of the farm in question, that there is no mineable or marketable coal on the property.

We have gone into an examination of this question as carefully as possible, although not only the agreement sued upon in this case provides for no drilling or tests of the property, such provision in an original draft thereof having been-stricken out because plaintiff refused to agree to it, but also notwithstanding it is in evidence that the property was under option to defendant and its assigns for six months previous to the date of the agreement, with privilege to drill and test for coal, which privilege it neglected to avail itself of.

It therefore appears to us that'the defendant has failed to establish any of its defenses, which are based upon there being no mineable or marketable coal upon the property. We reach this conclusion without any reference to the legal'merit of said defenses had defendant proved the fact alleged.

It remains to consider those defenses which are based upon the claim that plaintiff failed to deliver a deed of the property and abstract thereof within the time limited by the agreement.

The evidence upon this subject is -somewhat conflicting, but we think plaintiff has fairly established his claim that time for the delivery of abstract and deed was extended by defendant, and strict compliance on his part with this provision of the agreement was waived by defendant.

We are further of the opinion that time was not of the essence of this contract. The clause of the contract under consideration reads as follows:

“And the first parties will deliver said deed to the second party, its successors or assignees on demand, on or before the 1st day of September, 1900, upon the payment to said first parties by the second party of the purchase price herein stipulated. ’ ’
“Delivery of deed by vendor. The doctrine equally applies to the purchaser and to the vendor. A vendor, who has not complied with the terms of his agreement by making a good title, or by conveying or offering to convey, at a stipulated day, may still obtain a decree for specific performance notwithstanding his delay, provided it is not intentional, unreasonably long, or, so injurious to the vendee that an enforcement would be inequitable. This results directly from the operation and effect of the contract in equity, already described, which vests the equitable estate in the purchaser, so that, being the beneficial owner of the subject-matter from the time of concluding the agreement he is not necessarily nor ordinarily injured, so as to render an enforcement unjust, by a delay in carrying out the contract and conveying to him the legal estate. If the vendor is unable to show a good title at the time prescribed in his contract, or even at the commencement of his. own suit, it is sufficient therefore, if he perfects it before the final hearing, or the report on title made in the progress of the cause by the master or referee.”

The preceding citation of authority is quoted only from Pomeroy on Specific Performance, Section 376.

See also Brock et al v. Hidy et al, 13 O. S., 306; Gibbs v. Champion, 3 Ohio, 325; Hager v. Reed, 11 Ohio State, 634.

Having found upon all the material issues of the case in favor of plaintiff he is entitled to the relief prayed for in his petition and decree may be drawn accordingly.


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    JURISDICTION OVER PROPERTY NECESSARY IN GARNISHMENT.
    Circuit Court for Stark County.
    American Sheet & Tin Plate Company v. J. C. Lewis.
    Decided, February Term, 1911.

      Attachment and Garnishment — Domicile of Garnishee Does Not Give an Ohio Court Jurisdiction Over a Debt Owed by the Garnishee in Another State — Possession Within the State Essential.

      A valid and binding order of garnishment can not be made against a defendant upon a debt which he owes in another state.

      Amerman & Quinn, for plaintiff in error.

      J. A. Bowman, contra.
    Powell, J.; Voorhees, J., and Shields, J., concur.
   This is a petition in error from the judgment of the court of common pleas, wherein judgment was rendered by that court against plaintiff in error in favor of defendant in error.

The original ease was before a justice of the peace, and was brought by J. C. Lewis, the defendant in error, to.recover against the plaintiff in error as garnishee in a certain action in which J. C. Lewis was plaintiff, and one John Laughley was defendant.

■This order was made and entered by a justice of the peace also. The assignments of error in this case are the general assignments, that the judgment is against the law and the evidence; that the court erred in overruling the motion of plaintiff in error for new trial, and that the judgment was given in favor of -defendant when it should have been given for plaintiff in error.

The question raised and presented for adjudication here, is the question whether or not a valid and binding order can be made in an attachment proceeding against a garnishee when the answer of the garnishee discloses that the property sought to be attached — in this case a debt due — was situated in another state than the state of Ohio, or beyond the territorial jurisdiction of the court making such order.

It appears that the plaintiff in error is a foreign corporation, incorporated under the laws of Pennsylvania with its principal office in the city of Pittsburgh, but with branch offices at Chester, West Virginia, and at Canton, Ohio.

J. C. Lewis became the owner of the claim against John Laughley, at Chester, West- Virginia, both men residing at that place at that time. The petition and the agreed statement of facts disclose the'facts as I now state them. Lewis left West Virginia and came to Canton, Ohio, and brought suit against Laughley before a justice of the peace, and by proper proceedings had an order of attachment issued against the American Sheet & Tin Plate Company, which answered that it was indebted to Laughley for wages in the sum of $11.85, and $4 costs of suit, and an order was made against the plaintiff in error, the American Sheet & Tin Plate Company, that it pay this amount of money to the plaintiff in that case, J. C. Lewis.

The garnishee refused to make the payment as ordered; and it is well settled in Ohio that an order against a garnislhee is invalid as a judgment because he has not had his day in court; but upon that order suit may be brought, and that is the case here. Suit was brought then by said J. C. Lewis against the American Sheet & Tin Plate Company on the order as above mentioned. The evidence discloses that this- debt still exists; this plaintiff in error still has money in its hands due to the said Laughley; his contract was made with the plaintiff in error in West Virginia, and the, debt is due in West Virginia.

Can any of the courts of Ohio make a valid order against a garnishee in such circumstances? Now we think not if it is property that is sought to be reached, and that is so determined by 62 O. S., at page 543. The court there says:

“Our statutes regulating attachment and garnishment (Section 5522, R. S.), do not give to courts issuing such process jurisdiction over property of the defendant situated wholly beyond the borders of the state, nor power to require a garnishee having property of the defendant in his possession without the state to surrender the same into the custody of the court, and an order on the garnishee requiring such act is without legal effect.”

The court in its opinion on page 560, quoted from the 8tb American & English Encyclopedia of Law, as follows:

“To charge a garnishee for property of defendant, it is absolutely essential that at the time of service of process he should have it in his possession and within the state.”

.And the court further says, quoting from the same authority at page 1255, “The domicile of the garnishee does not give the courts of the state jurisdiction over the debt he owes to a party in another state, and is not sufficient to sustain an action in ran” (and that is what an action in attachment always is). “This is not determined by his domicile, but by the situs of the property which he holds.”

We find also in 8 N. P. a case cited, by the Superior Court of Cincinnati, the following, to be found on page 350:

“A person can not be subjected to garnishment by the statutes of the state in which he may be, differing from that of his domicile, unless he has property of the debtor in his possession or owes a debt payable in such state.”

Second. The domicile of the creditor is the situs of the debt.

Third. A debt due and payable outside of the state that is due from one non-resident corporation to another non-resident corporation, is not subject to process of attachment and garnishment issued by the courts of such state of which they are not residents.

Now we think that applies to this' case. Plaintiff in error is not a resident of the state of Ohio; the debt it. owed is to a resident of West Virginia, although that is not exactly this case, because he is an individual and not a non-resident corporation,, as in the case cited.

We think this plaintiff in error is not subject to garnishment in the court of Ohio for a debt it owes in West Virginia, and while the court below, we think, obtained jurisdiction over defendant Laughley by his entering appearance here, y.et it did not obtain jurisdiction over the subject-matter, so as to make a valid and binding order upon the garnishee.

For this reason, the judgment of the court of common pleas is reversed and the cause remanded for further action in the court below. Exceptions noted.


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    RIGHT OF SET-OFF NOT DEFEATED BY ASSIGNMENT OF JUDGMENT.
    Circuit Court of Cuyahoga County.
    Carl J. Haker v. John Serhant and Berkley Pearce.
    Decided, January, 1904.

      Exemptions — Set-off—Exemptions a Personal Privilege — Right of Set-Off Not Defeated by Assignment of Judgment.

    1. The assignment of a judgment does not defeat the right of set-off.
    2. The right to exemptions is personal and can not he transferred to the assignee of a judgment against which the right to a set-off existed.
    'Winci-i, J.; Hale, J., and Marvin, J., concur.
   Plaintiff in error brought this action in the court of common pleas against the defendants in error alleging that on February 1, 1900, defendant, John Serhant, recovered a judgment for $19.08 against the plaintiff; that on February 6, 1900, plaintiff recovered a judgment for $25 against defendant,'John Serhant; that on February'8, 1900, defendant, John Serhant, assigned his judgment to defendant, Berkley Pearce; that John Serhant is insolvent. The prayer of the petition is that so much of the last judgment as may be necessary be set off against the first judgment and for equitable relief.

The defendants answering, admit all the allegations of the petition but allege that at the time John Serhant assigned his judgment to Berkley Pearce the former was the head of a family and entitled, under the laws of Ohio, to hold said judgment as part of his exemptions.

To this answer a demurrer was interposed and the demurrer being overruled, judgment was entered against the plaintiff and he has filed his petition in error in this court to reverse the said judgment.

Authority for bringing this action, if not found in the statutes, is contained in the ease of Barbour v. The Bank, 50 O. S., 91. Plaintiff is not deprived of his right to set off his judgment against John Serhant by the assignment to Berkley Pearce. Section 5073, Revised Statutes.'

Had the assignment not been made, there is authority for the claim of counsel for defendants that a set-off will not be ordered against a judgment which a debtor is entitled to hold as property exempt from execution (Diehl v. Friester, 37 O. S., 473). This proposition, however, was not the precise point before the court in the latter case. Judge Obey in referring to such holdings cites the following cases: Duff v. Wells, 7 Heiskell (54 Tenn.), 17; Wilson v. McElroy, 32 Pa St., 82; Beckman v. Manlove, 18 Cal., 388; and Curlee v. Thomas, 74 N. C., 51.

The first three eases cited by Judge Okey involved attempts on the part of judgment creditors to circumvent the exemption laws by. seizing property of their debtors, and then suffering judgments therefor to be rendered against themselves, which they asked to be set off against their own claims. The last case, Curlee v. Thomas, 74 N. C., 51, involved a similar fraud. There are no such circumstances in this case.

The North Carolina ease,, without being- overruled, is followed by the ease of Lane v. Richardson, 104 N. C., 642, where it was held that as far as personal property was concerned, the right of exemption is personal to the debtor, and it loses its quality of exemption as soon as it is transferred. This case sets forth the rule to be followed in a case like the one at bar, and is the rule in Ohio.

“While the exemptions in favor of debtors are, by statute, tendered and extended to all alike who fall within the provision of it, yet no rule is better settled than this: that these statutory rights in cases where the exemption depends upon selection or demand, as in cases like this, may be waived in terms, or impliedly, by failing to assert the right or make the demand at the proper time, and the right can not be negotiated or transferred-'
‘ ‘ The general right is statutory, the particular right is strictly-personal and in practice becomes simply a personal privilege, to be asserted or not at the will of the person in whose favor the right exists.” Conley v. Chilcote, 25 O. S., 320.

John Serhant’s right of exemption depended upon selection or demand which he failed to make before assigning the judgment; it was thereby waived. lie now has no interest in thé judgment and therefore can claim no rights of exemption or otherwise in it. He could not transfer his right of exemption to Pearce, and Pearce can therefore assert no right of exemption. Neither does the assignment of the judgment defeat the right to set-off. Section 5073, Revised Statutes.

The demurrer should have been sustained and for error in overruling it the judgment is reversed.


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    APPEAL IN ALIMONY CASE WITHOUT BOND.
    Circuit Court of Cuyahoga County.
    Mineda E. Colby v. H. H. Colby et al.
    Decided, January, 1904.

      Appeals- — Alimony—Wife May Appeal Cause for Alimony Without Giving Bond.

    An action wherein a wife has sought alimony and a decree subjecting property of the husband in the hands of third parties to the payment of the alimony, may be appealed without the giving- of an appeal bond.
    Winch, J.; Hale, J., and Marvin, J., concur.
   Plaintiff brought an action in the common pleas court against her husband and his daughter praying for an allowance of alimony and that property in the hands of the daughter be charged with the payment of said alimony as the property of her husband.

Upon the hearing the court awarded alimony to be paid weekly by the husband, but on the issues joined with the daughter, found in favor of the daughter. Plaintiff duly filed notice of appeal but no appeal bond, and the matter is now before this court on a motion by the daughter to dismiss the appeal as to' her because no appeal bond has been given.

Whatever doubt formerly may have existed as to the prac-. tice of joining in a suit for alimony a cause of action against a third person, charging the latter with the possession of property out of which alimony is sought (Laughery v. Laughery, 15 O., 404), such procedure is now authorized by Section 5701, Revised Statutes, found in the chapter on divorce and alimony.

It is not doubted that all the issues in this case were appeal - able, as none of the parties were entitled to a jury on any question involved (Section 5226, Revised Statutes). The general statute on perfecting appeals (Section 5227) provides that the party desiring to appeal shall file an undertaking within thirty days after the entering of the judgment appealed from. The requirement of a bond is waived by several sections of the statutes. A party in any trust capacity or a county treasurer under certain circumstances, is not required to give bond (Section 5226). A party in a fiduciary capacity, in which he has given bond within the state, for the faithful discharge of his duties, who appeals in the interest of his trust, need not give bond. Section 6408.

So we find in the chapter on divorce and alimony that by Section 5706 appeals from judgments or orders under said judgment are limited to certain cases, among them a final judgment or order refusing alimony. There was such final order in this case, granting alimony and refusing to charge it upon property in possession of the daughter. Counsel for the daughter say that the order as to her was not under this chapter, but under the general equitable powers of the court or under sections of the statutes found in other chapters, citing Sections 4198, 6343 and 7080. We are inclined to believe counsel is wrong in this claim, but it is unnecessary to rule upon it. The last clause of Section 5706 stands by itself and reads as follows: “and when an appeal is taken by the wife, she shall not be required to give bond.” The wife can not appeal part of her cause without appealing all the issues in it (Branch v. Dick, 14 O. S., 551, 557; Wright v. Western Union Telegraph Company, 4 C. C., 375). Nor was there any effort made in this ease to appeal this case as to part of the issues; the notice of appeals reads: “Now

comes plaintiff and gives notice of her intention to appeal this ease to the circuit court,” etc. No question is raised as to her right to appeal the alimony part of her case, without giving bond. By appealing it all she brought up the whole case. Should the motion of the daughter be granted, only part of the ease would be here on appeal, necessitating its dismissal under the authorities cited. We do not think the right of the wife to appeal without bond should be thus nullified. It is one of the beneficent provisions of the law in harmony with other provisions which favor her on account of her necessities.

The motion is overruled.


text:
    VERDICT CONTRARY TO ALL THE EVIDENCE.
    Circuit Court of Cuyahoga County.
    W. W. McGill v. John A. Weber.
    Decided, January 16, 1905.

      Trials — Compromise Verdict Set Aside.

    Where the jury returns a verdict which is contrary to the evidence introduced by both plaintiff and defendant it will be set aside.

      Walter C. Ong, for plaintiff in error.

      Higley & Maurer, contra.
    Winch, J.; Hale, J., and Marvin, J., concur.
   The plaintiff in error brought an action in the common pleas court against defendant in error to recover under the statute money claimed to have been lost at gambling; he recovered a verdict upon which judgment was entered for $5(1, which he asks us to set aside as against the weight of the evidence. We have read all the evidence in the case, and if we are to believe plaintiff’s witnesses, he should have recovered several hundred dollars; if we are to believe defendant’s witnesses, there should have been a verdict for defendant, as he claims plaintiff was indebted to him in the sum of $50; there is no middle ground. Such being the case, it is apparent that the jury absolutely disregarded the evidence in arriving at its conclusion. Whether there was a “guessing match” in the jury-room, as claimed by counsel for plaintiff in error, we do not know; but it is apparent that the verdict is not sustained by the evidence and for that reason it is set aside.

Judgment reversed.


text:
    ATTACHMENT ON A CLAIM FOR NECESSARIES.
    Circuit Court of Cuyahoga County.
    Marie Corbett v. A. Goldwender.
    Decided, January 16, 1905.

      Attachment — Property Other than Personal Earnings May he Attached on Claim for Necessaries.

    Property other than the personal earnings of debtor may be attached where the claim upon which judgment is asked is for necessaries.
    Winch, J.; Hale, J., and Marvin,. J., concur.
   Action was brought by defendant in error against plaintiff in error, before a justice of the peace to recover “the sum of $58 for necessities furnished, to-wit, necessary clothing and wearing apparel,” and upon the plaintiff’s affidavit the justice issued an order of attachment which was levied upon property of the defendant, including certain wearing apparel, but no part of the defendant’s personal earnings were taken or garnisheed in said proceedings. Motion by the defendant to dissolve the attachment being overruled, defendant appealed said motion to the common pleas court, where it was heard and again overruled; the court, however, released the attached wearing apparel, holding that it was exempt from attachment.

By proper proceedings the case is properly before this court on error, and the sole question submitted for our consideration is whether, in an action for necessaries, where an attachment has been issued on the sole ground that the claim on which judgment is sought is for necessaries, property other than the personal earnings of the debtor can be attached? We answer this question in the affirmative. The trial court having come to the same conclusion, the judgment is affirmed.


text:
    VALIDITY OF STATUTE PROVIDING FOR. ATTACHMENT OF DEBTOR’S PERSONAL EARNINGS.
    Circuit Court of Cuyahoga County.
    A. C. Wicox v. K. B. Company.
    Decided, January 16, 1905.

      Attachment — Constitutional Law — Law Permitting Attachment of Personal Earnings Constitutional.

    The law permitting the attachment of 10 per cent, of a debtor’s personal earnings, where a claim is for necessaries, does not create a favored class and is constitutional.

      A. V. Taylor, for plaintiff in error.

      W. P. Dunlap, contra.
    Winch, J.; Hale, J., and Marvin, J., concur.
   Defendant in error having brought an action before a justice of the peace against plaintiff in error, to recover for necessaries, an order of attachment was issued and thereupon the defendant in said action moved to discharge the attachment. This motion being overruled an appeal was taken to the common pleas court where the motion was again overruled, to which ruling plaintiff in error excepted and brought the matter here on error.

But two reasons were urged at the hearing in this court, why the judgment of the common pleas court, should be reversed.

First. That the order of attachment herein is void for want of due execution and return. . That the return of the constable on the order of attachment is not according to law, is apparent, but the garnishee had actual notice and answered. We think this cures the informality in service.

Second. That the statutes under which the attachment proceeding was brought are unconstitutional, in making the mere fact that the claim on which judgment is sought is for necessaries a ground of attachment, and in such cases exempting only ninety per cent, of the debtor’s personal earnings, while in other cases all his earnings for the three months are exempt, if required for the support of the debtor’s family.

It is said that these provisions with regard to actions for necessaries create a favored class, who alone may take advantage of the statute, namely, those who furnish necessaries.

We do not think so. The Legislature has seen fit to define certain rights and remedies in a certain class of cases; it has not created classes of persons upon whom the laws operate without uniformity.

Believing such legislation is not inhibited by the Constitution, the judgment is affirmed.


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    PROSECUTION FOR KEEPING OPEN ON SUNDAY A PLACE WHERE INTOXICATING LIQUORS ARE COMMONLY SOLD.
    Circuit Court of Cuyahoga County.
    Village of Euclid v. Theodore Bramley.
    Decided, January 26, 1905.

      Municipal Ordinances — Intoxicating Liquors — Municipal Ordinances Not Judicially Noticed — Municipal Ordinance Must Conform- to Authority Granted by State Laws.

    1. Courts other than municipal tribunals will not take judicial notice of municipal ordinances.

      2. Municipal ordinances can only be passed in conformity with, the power granted by the State Legislature, and when the Legislature has conferred authority to pass ordinances regulating the sale of intoxicating liquors as a “beverage” and to “regulate ale, beer and • porter houses and shops,” courts can not presume the existence of a valid ordinance enacted under those statutes, where the affidavit upon which an arrest and prosecution is based only charges that the accused allowed to remain open on Sunday his place of business where upon other days intoxicating liquors were commonly sold, without charging that they were sold as a “beverage” or that the place was an “ale, beer, or porter house or shop.”
    Winch, J.; Hale, J., and Marvin, J., concur.
   Defendant in error was arrested -under an affidavit which charged:

“On or about the 12th day of June, A. D. 1904, at the village of Euclid in said county and state, one Theodore Bramley did on the first day of the week, commonly called Sunday, allow to remain open his place where upon other days intoxicating liquors are commonly sold, contrary to the form of the ordinance in such eases made and provided.”

The accused was taken before the mayor of the village of Euclid, pleaded guilty, was sentenced to pay a fine of $100 and costs and then moved in arrest of judgment, claiming:

1st. The facts set out in the affidavit do not constitute an. offense against the ordinance of the village of Euclid, nor against the statutes of the state of Ohio.

2d. The ordinance upon which said prosecution is predicated is unconstitutional and void.

This motion was overruled, defendant excepted and applied to the common pleas court for leave to file a petition in error in said court, which was granted.

Thereupon said defendant filed his petition in error in the common pleas court, accompanied by a transcript of the docket entries made by the mayor. There was no bill of exceptions showing the ordinance which was necessarily before the mayor for his consideration upon the motion in arrest of judgment.

The common pleas court heard the case on error and reversed it, holding the affidavit insufficient for lack of the negative averments that the place was not a drug store or the accused á druggist, as provided in Section 4364-20c, Revised Statutes.

Thereupon the village of Euclid brought the ease here on error, where the first question raised is the jurisdiction of this court to review a judgment of the common pleas court reversing a conviction for violation of a municipal ordinance on proceedings before a magistrate.

We think there can be no doubt of the jurisdiction of this court in such cases. Village of Shelby v. Boenan, 40 O. S., 253.

Being of opinion that neither this court nor the common pleas court can take judicial notice of municipal ordinances, and there being before the common pleas court no transcript of the ordinance under which the accused was convicted, the next question arising is: Had the common pleas court or had this court a right to presume the existence of a valid ordinance warranting an affidavit and charge that defendant “on the first day of the week, commonly called Sunday, allowed to remain open his place where upon other days intoxicating liquors are commonly sold?”

If the Legislature has delegated to municipal corporations authority to pass an ordinance regulating places “where intoxicating liquors are commonly sold,” then we must presume that there was a valid ordinance back of this affidavit. But what powers in this respect have been delegated to municipal corporations? Section 1536-100, Revised Statutes, among other things provides:

“All municipal corporations shall have the following general powers and council may provide by ordinance or resolution for the exercise and enforcement of the same. * * *
“5. To regulate, ale, beer, porter houses and shops, and the sale of intoxicating liquors as a beverage, but nothing in this act shall be construed to amend, repeal or in any way affect the provisions of an act entitled, 'An act to amend Section 4364-20 of the Revised Statutes of Ohio, and to supplement said section by enacting supplementary Sections 4364-20cs, etc., passed April 3, 1902 (95 O. L., 87)’ ”

Had the affidavit charged defendant with keeping open on Sunday a place where ale, beer, or porter were commonly sold, or where intoxicating liquors were sold as a beverage, we might presume there was back of it a valid ordinance making such act punishable. There is no allegation in the affidavit from which can be gathered the conclusion that defendant’s place was an ale, beer, or porter house or shop, or that in it he sold intoxicating liquors as a beverage.

So in Section 4364-20, Revised Statutes, it is provided:

“And any municipal corporation shall have full power to regulate the selling, furnishing or giving away of intoxicating liquors as a beverage, and places where intoxicating liquors are-sold, furnished or given away as a ‘beverage,’ except as provided for in Section 4364-20 of this act.”

Section 4364-20c refers to the selling of intoxicating liquors at retail by a regular druggist.

Any ordinance passed under authority of Section 4364-20, must designate the place as one where intoxicating liquors are sold as a beverage. It follows that an affidavit which does not charge the place as one in which intoxicating liquors were sold as a beverage, can not be presumed to have back of it an ordinance passed under authority of the statute last cited.

Being of opinion that the village of Euclid had no power to make it an offense to keep open on Sunday a place in which intoxicating liquors are commonly sold on other days, it follows that the common pleas court was right in reversing the judgment of the mayor’s court.

To entertain any presumption in favor of the existence of a valid ordinance defining an offense and providing penalty therefor, has been criticized as, in a sense, a departure from the rule frequently announced by this court that it will not take judicial notice of municipal ordinances. But it is not, in fact, any exception to said rule, where error is alleged by one convicted before the mayor or magistrate. Being plaintiff in error, he must file a bill of exceptions setting forth the ordinance, so that it may come before the reviewing court. His own neglect to bring the -ordinance into the record does not entitle him to a reversal; rather the judgment should be affirmed because no error is shown.

But when in such ease the plaintiff in error from the mayor’s court calls attention to the state law, shows that the state law gives no authority to the municipality to' pass any ordinance making it an offense to do what is charged in the affidavit, we have considered the case with reference to the statutes and decided accordingly, as we did in the case of Lewis v. Collinwood. Lewis was charged with having a gambling device in his possession, and we held that we would not presume an ordinance making a mere possession of a gambling device an offense, the statute only authorizing an ordinance to prevent gambling.

Ordinances inconsistent with the laws of the state are void. City of Canton v. Nist, 9 O. S., 439.

An ordinance making it an offense to do what is charged in this affidavit would be inconsistent with the laws of the state. As to the reasons given by the common pleas court for reversing the conviction, we express no opinion. The decision of that case is found in 51 Bull., 155.

Judgment affirmed.


text:
    CONVERSION OF STREET INTO A VIADUCT CAN NOT BE ENJOINED BY AN ABUTTING OWNER.
    Court of Appeals for Hamilton County.
    The Cincinnati Union Stock Yards Company v. The City of Cincinnati.

    Decided, July 21, 1913.

      Tax-Payer — Barred from Bringing an Action on Behalf of the Municipality, When — Ordinance May be Regarded as Containing but One Subject Although Treating of Many Matters of Detail — Abutting Owner Relegated to an Action tor Damages and an Injunction Not Allowed to Prevent Public Improvement.

    1. The right of a tax-payer to bring an action on behalf of the city is barred, where the question which he desires to raise is one which might properly have been raised and litigated in a previous action brought by the city solicitor and carried to a final judgment.
    2. An ordinance relating to a separation of grades at a crossing of a street over railway tracks will be deemed to contain but one subject, notwithstanding many matters of. detail may be involved therein.
    3. The fact that an abutting property owner may be greatly inconvenienced by the conversion of the street in front of his property into a viaduct and may lose a portion of his land through appropriation for that purpose, and it is evident the damage he is about to sustain to his remaining property will be very great, yet the fact that he has a complete remedy by way of compensation deprives him of the right to an injunction against the carrying forward of the improvement, where it appears that it will be of great benefit to the community at large.

      Paxton, Warrington & Seasongood, for plaintiff.

      Harmon, Colston, Goldsmi'Üfa & Hoadly, for B. & O. S. W. B. B.

      Stanley Merrell, Assistant Solicitor, for city.
    Jones, O. B., J.; Swing, J., and Jones, E. IL, J., concur.

      Affirming Cincinnati Union Stock Yards Co. v. City of Cincinnati, 14 N.P.(N.S.), 529.

   This case was heard on appeal from the court of common pleas, and is a suit brought by plaintiff in the dual capacity as a taxpayer of said city of Cincinnati on behalf of said city, and as an individual. The suit is to enjoin the city from proceeding under Ordinance 141 providing for the' separation of grades at the intersection of Hopple street and the tracks of the Baltimore & Ohio Southwestern Railroad.

The court is of the opinion that the right of the plaintiff to proceed on behalf of the city as a tax-payer is barred by the suit brought by the city of Cincinnati by its city solicitor in case No. 150293 and the judgment therein. See Thoms v. Greenwood, 6 O. Dec. Reprint, 320:

“Where the solicitor of a city prosecutes under Section 159 of the municipal code, an action to final judgment, no tax-payer of the corporation has the right to maintain any action for the same cause, but all become bound by the judgment finally rendered in such case: All questions and matters involved in the determination of such suit, or that could or might have been raised thereby, are concluded and finally settled by the judgment rendered in said case as to all persons whomsoever the same being res adjudicata.”

The questions raised in the suit referred to above were the validity of the same ordinance that is here attacked and the rights of the city to proceed thereunder. And while the point made and particularly relied upon by the plaintiff in that case was that money had not been certified to be in the treasury under the provisions of Section 3806, General Code, still all other questions that are raised in this case by plaintiff in its capacity as a tax-payer could have been raised and litigated in that case and should have been there considered. Cov. & Cin. Bridge Co. v. Sargent, 27 O. S., 233; Hixon v. Ogg, 53 O. S., 361 Strangward v. Am. Brass Bedstead Co., 82 O. S., 121.

In the last case the second proposition of the syllabus is as follows:

“When a matter has been finally determined in an action between the same parties by a competent tribunal, the judgment is conclusive, not only as to what Avas determined, but also as to every other question which might properly have been litigated in the ease.”

It therefore becomes a question as to the rights of the plaintiff suing as the OAvner of property abutting upon said improvement in its individual right, and not on behalf of the city of Cincinnati, to enjoin the doing of the work under said ordinance. Plaintiff relies upon the case of The P., C., C. & St. L. R. R. Co. v. Greenville, 69 O. S., 487, as showing a right in every instance in a property owner to inquire into the regularity and validity of the proceedings for appropriation in an independent suit before the hearing of appropriation proceedings can be had. We do not think that the decision in this case would apply to an individual owner of property in all cases. The question there decided was whether a railroad company, which was exercising necessary public functions and had power of eminent domain for such purpose, could have its tracks interfered with by the extension of streets across same, where it could show that necessity did not require it.

While the business of the plaintiff in this ease in carrying on its stockyard is an important business to the community, and the interference may be very hurtful to the business and may require heavy damages paid by the city under such appropriation proceedings, still it possesses no power of eminent domain and does not perform such public functions as would permit it to prevent the extension of a street or public way across or along its property after full compensation for same had been determined and paid. We seriously question, therefore, whether as such property owner, in advance of the hearing of the appropriation proceedings, it would have a right to enjoin. As an owner of abutting property, however, it has a peculiar interest in the street which is to be changed by these proceedings and a part of which is to be vacated. We have considered fully, therefore, the reasons presented by it why an injunction should issue.

Ordinance 141 involves the consideration of many questions,, but all of the matters embraced within it relate to the subject of the separation of grades at the intersection of ITopple street and the railroad, and the ordinance therefore does not violate Section 4226, General Code, which provides that:

“No ordinance, resolution or by-law shall contain more than one subject, which shall be clearly expressed in its title.”

• The title is sufficiently broad to include all of the provisions of the ordinance, and the requirement of the statute is not to be determined by its form but rather in the light of the mischief the statute was intended to prevent. Heffner v. City of Toledo, 75 O. S., 413.

The objection made that the city intends to build the viaduct sixty feet wide, while the present street grade. crossing is only forty feet in width, and that the railroad company is only required to pay fifty per cent, of what the cost would be if the city had constructed a forty-foot viaduct instead of the one provided for, is a question with which the plaintiff can not be concerned except in its capacity as a tax-payer, and that we have already shown can not be pressed by it in this ease. But the court is of the opinion that the provision made by the city is all that can be insisted upon by it under the provisions of the law as it existed at the inception of this improvement. To enforce the sharing of the cost by the railroad company of the completed viaduct sixty feet in width would require first that the present grade crossing be widened to a sixty-foot crossing, before it could be abolished and replaced by a sixty-foot viaduct. This would require the outlay and expense of condemnation to first provide for the wider grade crossing, and then would require that all of the proceedings he started again, de novo, to provide for the sixty-foot, viaduct. "Whether or not the time and the expense involved would be repaid by the increased contribution thus to be levied upon the railroad company is a practical question of administration that is addressed to the legislative and executive officers of the city rather than to the courts. They have, as we think, properly acted upon ‘this question within their powers, and if they have the right by the process we have indicated to build a sixty-foot viaduct by first widening the crossing, it would clearly seem that they had the right to build the wider viaduct as proposed in abandoning the present crossing. '

The testimony showed that the plaintiff will be greatly inconvenienced in its business by the new improvement, but such inconvenience and damage can all be conmpensated for in money and will all'be taken into consideration by the court in the appropriation proceedings, and while the damage is claimed-in this proceeding to be irreparable, after all it becomes merely a question of compensation to be determined in the appropriation proceedings and does not authorize plaintiff to interfere with an improvement which is of great importance to the municipality and its- citizens and which, planned as it is to protect and save human life, should not be delayed when plaintiff has a complete and adequate remedy for all damages to be suffered by it, in appropriation proceedings.

The relief prayed for by plaintiff will therefore be denied, and the petition dismissed at its costs.


text:
    ERROR IN ADMITTING IN EVIDENCE A PRINTED RECORD.
    Court of Appeals for Butler County.
    Walter S. Harlan, Assignee, etc., v. Lucy M. Henry Gunderson et al.
    Decided, May, 1914.

      Evidence — XJnaulhenticated Copy of Court Proceedings — -Not Competent as Proof of a Question of Fact.

    It is error to admit in evidence a printed record of a cause determined in another court, unauthenticated by the certificate of the judge and clerk of said court, where the matter sought to be established thereby is one of fact; but where plaintiff had failed to prove the facts necessary to make his case and the proof so introduced by defendant became immaterial, its admission was not prejudicial or ground for reversal.

      John F. Neilan and Anclretvs & Andreivs, for plaintiff in error.

      Stanley Shaffer and Balter -cf* Balter, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. II., J., concur.
   The question presented to the court by proceedings in error at this hearing is whether or not the action of the court below in entering .judgment for plaintiff upon the cross-petition of Walter S. Harlan, assignee of the MeSherry Manufacturing Company, should be sustained.

The chief error relied upon by plaintiff in error is the action of the court in admitting the printed record of the case of Seiler v. Fuller & Johnson Mfg. Co., found in Volume 181 Federal Reporter, at pages 85 to 90 inclusive. This report was from the bound volume of the Federal Reports, and was not authenticated by the certificate of the judge and clerk of the court, and was introduced for the purpose of establishing certain facts that were set out in said decision, which plaintiff below contended showed that the litigation there before the court did not embrace the Gunderson patents.

In the opinion of the court the admission of this record by the court below, in the form presented, was. error. Under Section 11499, General Code, this evidence so offered would have been properly admissible if the question of law there decided was the matter to be-proved, but it was not proper evidence to show matters of fact involved in the cause there decided.

The question raised by the cross-petition was whether under the Gunderson contract the cross-petitioner was entitled to recover for expenses incurred in litigating with reference to the Gunderson patents. The burden was upon the cross-petitioner to sustain his account for expenses as set out in his cross-petition by proper proof. A careful examination of the record discloses that by the testimony of Mr. Fetzer, who had been the general manager of the company, it was shown that certain moneys had been expended in matters connected with litigation of patents for the model planter and for the automatic planter, but we find no proof that these expenses were incurred with inference to the features of either of the Gunderson patents; and, indeed, Mr. Fetzer states that the planters then being, manufactured were not based upon said patents.

It will appear that the cross-petitioner failed in his proof to show that the expenses sought to be recovered were thus provided for by its contract with Gunderson, and therefore the admission of the record in the Federal Reporter offered by plaintiff can not be deemed as prejudicial.

"We fail to find any prejudicial error within the terms of Section 11364, General Code, and judgment below is therefore affirmed. - -


author: Kinkade, J.

text:
    SECTION FOREMAN RUN DOWN BY A SWITCH ENGINE.
    Court of Appeals for Lucas County.
    Sherman, Administratrix, v. The Toledo & Ohio Central Railway Co.
    Decided, February 8, 1913.

      Negligence — Wrongful Death — Whether the Injured Employee Was at the Time of the Accident — Engaged in the Line of Sis Employment is a Question for the Jury — Rule of Company Requiring Caution on the Part of Employees Competent, When — Comparative Negligence —Section 9018.
    1. Where a section foreman, engaged in repairing tracks in a railroad yard, has gone to an adjoining yard of the same company and in returning in the middle of the afternoon to the point where his men were working walked on the track and appeared to be looking along the track and was struck and killed by a switch engine moving backwards following him, it is for the jury to determine whether he was in line of his duty as an employee at the time he was struck by the engine, and whether there was negligence and contributory negligence, and it is error to direct a verdict for the defendant.
    2. In such case, if the 'jury find that each party was guilty of negligence directly contributing to the jury, it is their duty, pursuant to Section 9018, General Code, to determine, under appropriate instructions from the court, whether the contributory negligence of the decedent was slight and the negligence of the company greater in comparison, and, if they so find, to diminish the damages in proportion to the negligence attributable to the decedent in the event of a verdict being returned for the plaintiff.
    3. A rule of the company requiring every employee to exercise the utmost caution to avoid injury to himself or to his fellows is competent evidence in the trial of such an action, and it is prejudicial error to exclude the same.

      O. S. Brumback, for plaintiff.

      Doyle & Lewis, contra.
    Richards, J.; Wildman J., concurs; Kinkade, J., dissents.
    The plaintiff in error, Mary Sherman, administratrix, brought an action in the court of common pleas to recover damages sustained by reason of the death of her husband,.Joseph Sherman, which occurred on the 26th day of November, 1910, Mr. Sherman was a section foreman in charge of a gang of men engaged in repairing tracks in what is known as the eastern division yard of the defendant company just outside of the city limits of Toledo. Immediately prior to the time of the injury which caused his death, he had visited an adjoining railway yard known as the western division yard of the same company, for what purpose does not appear, and he received the injury that resulted in his death while he was returning. The accident occurred between three and four o’clock in the afternoon. In returning he traveled along a highway, which crossed the railroad tracks, to a point near the scene of the accident, and there turned from the highway and walked south on the railroad track toward his men. At the time of his leaving the highway there was standing just north of the highway a switch engine on which was the switching crew. This engine was located a very short distance north of the highway, and was upon the track down which Mr. Sherman walked toward Ms men. Within a short distance south of the highway Mr. Sherman was overtaken by this switch engine, backing southward, and injured in a manner that caused his death very shortly thereafter.
    The negligence alleged against the company was the failure to give any notice or warning by bell or whistle of the approach of the switch engine following Mr. Sherman. It was also charged that the switching crew, and particularly the engineer and fireman, failed to keep any lookout in the direction in which they were moving, and it is said that had they done so they must of necessity have discovered Mr. Sherman upon the track. The petition alleged that, contrary to a rule of the company, the entire switching crew, embracing not only the engineer and fireman but the conductor and both brakemen or helpers as well, were in the cab of the engine while it stood north of the highway crossing and as it followed down the track to the place of the accident.
    The case was tried upon the second amended petition, and “amendment to the amended petition,” the answer of the dePendant and the reply. It is evident that the amendment to the amended petition was intended as an amendment to the second petition. At least it was filed after the second amended petition, and we think it is not accurately entitled. The facts relative to the accident'which we have stated are as claimed by the plaintiff. The defendant admitted the accident and the death resulting therefrom, denied all acts of negligence and averred con■tributor|y negligence of the decedent. At the close of the plaintiff’s evidence the defendant moved the court for a directed verdict, which was overruled. At the close of all the evidence the motion was renewed, was granted and a verdict for the defendant returned accordingly, upon which judgment was entered.
    During the trial the plaintiff below offered to introduce rule 719 of the defendant company in evidence. The rule reads as follows:
    ‘ ‘ Every employee is required to exercise the utmost caution to avoid injury 'to himself or to his fellows; especially in the switching of cars and in all movements of engines and trains.”
    The court excluded this rule from the consideration of the jury and this is assigned as error. We think the action of the trial court was not in accordance with the holding of the Supreme Court in Cincinnati Street Ry. Co. v. Altemeier, Admr., 60 Ohio St., 10. It is true the rule imposed upon the employees a higher degree of care than rested on the company under the law, but, nevertheless, the existence of the rule would aid the jury in ascertaining whether Sherman was guilty of contributory negligence, and would therefore be competent evidence. It is' doubtless true that much of what is said by Burket, J., in announcing the opinion in the above ease, relative to such a rule or was offered in evidence in this case, is obiter, but the view adopted is sustained by ample authority as stated by him. If the rule is introduced in evidence the jury should be cautioned as to the difference in the degree of care mentioned in the rule and that applicable to the company.
    The defendant in error contends that there was no evidence in the ease tending to show any violation of duty on the part of the railroad company toward Mr. Sberman. It is urged that he was not at the moment of his injury engaged in any duty which so ' engrossed his attention as made it impracticable for him to look out for his safety and imposed upon the company the duty of giving him notice of approaching danger. In fact, it is said that he was not engaged in any duty at all, but was returning to the place where his men were at' work, and with nothing to take his attention from his surroundings. The only evidence tending to show that at the time of the injury he was engaged in this discharge of his duty as foreman consisted in statements of witnesses that he seemed to be looking along the track. The fact is not in dispute that he was in the employ of the company at the time, that his position was that of foreman, and that he was at the moment of the injury returning to the place where his men were still at work on the tracks of the yard, but whether he was then in the line of his duty as an employee was a proper question for the jury.
    The conclusion of a majority of the court is that there was some evidence offered tending to show the negligence of the eom.pany in not giving, by bell or whistle, some notice to Mr. Sher.man of the approach of the switch engine. "We are also of the opinion that there was evidence in the case tending to show the negligence of Mr. Sherman in walking xipon the railroad track from the highway toward the point where his men were at work, instead of walking between the tracks and in failing to take account of the dangers incident to the situation. Whether the surrounding conditions were such as to impose upon the company the duty of giving notice by bell or whistle to Mr. Sherman wag a question of fact for the jury.
    . We refrain from expressing any opinion as to the weight of evidence touching the issues in this case. A majority of the court are of the opinion that there was evidence sufficient to have taken the case to the jury, and further than this we need not go.
    Under Section 9018, General Code, it would be the duty of the jury to determine from the evidence whether negligence existed on the part of the company, and also whether contributory negligenee existed on the part of Sir. Sherman, and the degree of negligence of each in comparison.
    For the reasons stated, the judgment below must be reversed and the cause remanded for new trial and further proceedings according to law.
    Judgment reversed.
   Kinkade, J.

I think the judgment of the court of common pleas should be affirmed.


author: Jones, O. B., J.,

text:
    INCONSISTENT TESTAMENTARY PROVISIONS RECONCILED.
    Court of Appeals for Hamilton County.
    Elizabeth C. Hammel v. William Robert Gould.
    Decided, June 3, 1914.

      Wills — Determination as to Which is the Dispositive Clause- — Other Provisions Inconsistent Therewith Reconciled.

    Item I of the will under consideration is the dispositive clause so far as the widow of the testator is concerned, and the inconsistent provision found in Item II should be reconciled with this construction by reading “and” for “or,” which postpones the right of partition.

      S. B. Hammel, for plaintiff.

      F. H. Reppert and J. J. Acomb, contra.
    Jones, E. II., J.; Swing, J., concurs; Jones, O. B., J., dissents in a separate opinion.
    Plaintiff filed her petition for partition of the property described therein. Her right .to partition -depends upon a construction of the will of Richard Gould, deceased. Richard Gould died in the year 1879 leaving a widow and six children, several of whom were minors. At the time of his death he was seized in .fee of the property of which partition is sought. The widow still lives and has never remarried. Five of the children are living and are of full age.
    Items I and II of the will to be construed are as follows:
    “I. I hereby give, and bequeth to my beloved wife, Martha Gould, all the property, both real and personal, of which I die possessed, she to pay all just debts that I owe, and have and hold the property hereby bequeathed, so long as she continue my widow, and until my youngest child shall be of age.
    ‘ ‘ II. .When the youngest child arrives at full age, or in case my wife Martha should again marry, it is my will that my real estate and whatsoever personal property may be remaining be divided between my wife and children, according to the law for the distribution of estates where no wills have been made. ’ ’
    These two items of the will are conflicting. 'Item I gives to the widow Martha Gould the right to “have and hold the property hereby bequeathed, so long as she continues my widow, and until the youngest child shall be of age.-” This item standing-alone is clear and gives to the widow a life estate in the property provided she does not remarry.
    The verbs “have” and “hold” as used in.this clause are modified by the two adverbial clauses “so long as she continues my widow” and “until my youngest child shall be of age.” These clauses are joined in the will by the conjunction “and.” There is nothing in the language to indicate that they are intended as conditions upon which she can hold the property as claimed by plaintiffs. They are not conditions but adverbs, and state how long she shall hold the property. The testator first says she shall hold it so long as she continues his “widow.” This clause followed by the conjunction “and” indicates an addition to the time fixed in the previous modifying clause, and not a subtraction from or shortening of that time, so that she under this item holds the property not only so long as she continues his widow, but in case she had remarried prior to the time the youngest child became of age she would have continued, under the terms of the will, in possession of the property until that time. Had the testator transposed the adverbial'clauses and said “until my youngest child shall be of age and so long as she continues my widow ’ ’ it would not be claimed that her estate terminated upon the youngest child’s becoming of age. How can it be claimed that by changing the order of two adverbs the meaning can be changed? Such a claim is contrary to all rules of construction.
    Such being the clear meaning of the language used in the first item, we find that Item II is inconsistent with this provision and can not be reconciled with it, accepting the ordinary meaning of the language there used. But so far as the widow is concerned Item I is the dispositive clause of the will. The manifest purpose of Item II is to provide what shall be done with the property at the termination of the estate given to the widow by the first item.
    It is the duty of the court, where provisions of a written instrument are repugnant -and irreconcilable, to attempt to reconcile them if possible.
    The youngest child long since became of age and the widow is now old and has never remarried. Under the provisions of the first item the only restriction upon, her 'right to a life estate in the property is her remarriage, which is a very remote possibility. But according to the terms of Item II, the youngest child having arrived at age and the two clauses being connected by the word “or,” the property is now to be sold and the proceeds divided according to the statutes of descent and distribution.
    Since the first item states clearly the time during which Mrs. Gould shall continue to hold this real estate, and since in our view the purpose of the second item is primarily to provide what shall be done with the estate when this time arrives, it is the duty of the court to so construe the second item-that it will not defeat the devise made to the widow in the first item. In other words, where same can be done, it is the duty of the court to reconcile two' conflicting portions of a will. We find that we can so reconcile these provisions by substituting in the first line of the second item the Avord “and” for “or” so that it Avill read “when the youngest child arrives at full age, and in case my wife Martha should again marry, it is my Avill, ’ ’ etc. This makes the two provisions of the will entirely consistent and carries out, as we think, the intention of the testator. It certainly carries out the intention as clearly expressed in the first itém as before stated, -and its language should control in the determination of the rights of the widow, because it is in that item the testator provides for her.

      There is abundant authority for the substitution of the word “and.” in order that the language of the two parts may be reconciled. Ely v. Ely, 20 N. J. Eq., 43, 48; Courter v. Stagg, 27 N. J. Eq., 305; East v. Garrett, 9 S. E., 1112, 1117; Sayward v. Saytuard, 7 Me., 211, 216.
    The petition is dismissed.
   Jones, O. B., J.,

dissenting.

The rule for the construction of a will in Ohio is well stated in the syllabus of Townsend v. Townsend, 25 O. S., 477, as follows:

“1. In the construction of a will, the sole purposé of the court should be to ascertain and carry out the intention of the testator.
“2. Such intention must be ascertained from the words contained in the will.
“3. The words contained in the will, if technical, must be taken in their technical sense, unless it appear from the context that they were used by the testator in some secondary sense.
“4. All the parts of the will must be construed together, and effect, if possible, given to every word contained in it.
“5. If a dispute arises as to the identity of any person or thing named in the will, extrinsic facts may be resorted to, in so. far as they can be made ancillary to the right interpretation of the testator’s words, but for no other purpose.”

The purpose of making a will is to express the intention of the testator and the object of construing it is to ascertain that intent, but this must be gathered from the words as used. The inquiry is not, what thought did the testator wish to express, but, what thought has he here expressed by the words of his will. See 1 Redfield on Wills, 433:

‘ ‘ The first and universal qualification of this rule is, that it is the intention of the testator expressed in his will which is to govern, and this must be judged of exclusively by the words of the instrument as applied to the subject-matter and the surrounding circumstances.”

Item I and Item II of the will of Richard G-ould, which are quoted in the majority opinion, supra, dispose of his entire property, and in my opinion contain no ambiguity, but are perfectly clear in their meaning without any necessity for changing the position of clauses or substituting any word for another. They must be read together in order to effect the disposition of the property.

The first clause gives to the wife all the property to “have and hold * * * so long as she continues my widow, and until my youngest child shall be of age.” The two final clauses of Item I are adverbial in character and modify or fix the time which she is to have and hold the property. She is to hold it during her widowhood until the youngest child shall be of age.

When Richard Gould died all of the children were minors. This language entitled the widow to hold the property until the youngest child became of age unless she should marry before that period. Item I does not go beyond fixing the time of her holding, but Item II clearly terminates such holding, (1) “when the youngest child arrives at full age,” or (2) “in case my wife Martha should marry again. ’ ’ Upon the' happening of either of these events Item II directs that the “real estate and whatsoever personal property may be remaining be divided between my wife and children according to law,” etc. It seems therefore clear that upon the remarriage of the widow she would cease to hold all of the property and it should be immediately divided between the wife and children according to the law for the distribution of estates of intestates. In case she did not' marry during that time, this division is provided for upon the date of the youngest child arriving at majority.

. To my mind the language of this will admits of no other construction. The disposition made by Richard Gould of his property was possibly not favorable to his wife in putting upon her the payment of his debts and the rearing of his family of young children and giving to her an estate in his property only until the youngest child became of age, or until her remarriage if she remarried before that time, but if she was not satisfied with the provision made for her, she had under the law the right to refuse to take under the will, and to take the provision fixed for her by law in such cases. She did, however, take under the will, and in my opinion, her children had the power to demand partition in accordance with the second item of the will at any time they saw fit after the majority of the youngest child. The fact that they did not seek partition for a number of years after that date, does not in any way take away their right to ask it whenever they may choose, and no act is shown by the evidence that would amount to an estoppel against such right.

The rule as to changing words of a will is laid down in Vol. I, Jarman on Wills, 6th Ed., 599, in the following language:

“To alter the language of a testator is evidently a strong measure, and one which, in general, is to be justified only a clear explanatory context. It oftens happens, however, that the misuse of some word or phrase is so palpable on the face of the will, as that no difficulty occurs in pronouncing the testator to have employed an expression which does not accurately convey his meaning.- But this is not enough; it must be apparent not only that he has used the wrong word or phrase, but also what is the right one; and, if this be clear, the alteration of language is warranted by the established principles of construction. ’ ’

I do not think that the context in this case warrants the court in changing the language as is done by the majority of the court in order to support their construction, and to uphold my opinion I take the liberty of quoting the syllabus in each of two eases relied upon by the majority, as follows:

Ely v. Ely, 20 N. J., Eq., 43:

“1. After making a bequest to his wife, the testator added these words: ‘ In case she should lose any part of her property before mentioned, and need more than she has of her own to support and maintain her comfortably, then, and in that case, so much of this money deposited and accumulated as shall need for her comfortable support, I order my executors to draw and pay to her, yearly or half yearly. ’ The widow needing more than she had of her own tq support herself comfortably, though she had lost none of her property, filed a bill for the construction of this clause. Held-. That having lost none of her property, she was not entitled to any part of the bequest.
“2. ‘And’ will be construed ‘or,’ only to effect the evident intent of the testator, never to gratify the wishes or desires of a legatee, or to effect what might, in itself, seem more just or reasonable.
“3. There is no power to change the words in a will unless such change is necessary to effect the intent of the testator, apparent on the face of the will or from surrounding circumstances.
“4. The legatee seeking a construction of the will to gratify her own wishes, and against the obvious intent of the testator, bill dismissed; legatee to pay her own costs.”

Cornier v. Stagg, 27 N. J. Eq., 305:

“1. Testatrix devised her residence to her daughter, for her sole use and benefit, for so long a time as she might remain single and unmarried, or until such time as in her judgment she might deem it advantageous to sell and dispose of the same. The daughter is married. Held, upon bill filed for construction of the will, that the intention was that the daughter should have the residence until she either married or deemed it advantageous to sell, whichever should first happen; and the daughter having married, the executors have power to sell, and it is their duty to exercise it.
“2. Plain, clear words, read in their ordinary sense, must always govern, in searching for the intention of a testator, unless repugnant to other words, equally plain and clear, in another part of the same will.
”3. Courts'sometimes, in attempting to give effect to a testator’s intention, displace ‘or’ and substitute ‘and,’ and also put ‘or’ where the testator has written ‘and,’ but such departure from the words of the will are never made except it is clear they are necessary to give effect to a clear purpose of the testator.
“4. All doubts must be resolved in favor of the testator’s having said exactly what he meant.”


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    DURATION OF TEMPORARY APPOINTMENTS BY THE MAYOR.
    Court of Appeals for Hamilton County.
    Edward S. Keefer et al v. State of Ohio, on Relation of James J. Fitzgerald.

    Decided, September 26, 1914.

      Civil Service — Tenure of One Appointed to the Municipal Service to Meet an Emergency — Section 4488.
    Under the rules of the Civil Service Commission of Cincinnati the tenure of one appointed to the municipal service to prevent the stopping of public business or to meet an extraordinary emergency, continues until such time as tbe commission certifies suitable persons from an appropriate eligible list to fill the vacancy.

      Walter M. Schoenle, City Solicitor, and Charles A. Groom, Assistant City Solicitor, for plaintiff in error.

      Moulinier, Bettman & Hunt, contra.
    Jones, O. B., J.; Jones, E. H., J., concurs; Swing, P. J., dissents.

      Affirming State, ex rel Fitzgerald, v. Keefer et al, 16 N.P.(N.S.), 145.

   By virtue of Section 4488 the mayor had the power and it was his duty to make temporary appointment such as that of the relator below, if it were necessary, to prevent the stoppage of public business or to meet extraordinary exigencies; he had no other right to make such an appointment, and under the general rule of law his official acts must be presumed to be legal. Under Section 74 of the rules of the civil service commission of Cincinnati such temporary appointment continued until such time as the commission could certify persons from an appropriate eligible list to fill the vacancy. It is conceded by both sides that no such list has been certified. The name of the relator was therefore properly upon the payroll, and it was the duty of the civil service commission to give the certificate required by statute to enable the payment of his weekly wages.

The questions raised in the case have been fully discussed in the opinion of the court below, and we agree with the conclusions therein stated and do not deem it necessary to enter upon further discussion of same.

We find no error in the judgment of the court below, and the judgment is therefore affirmed.


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    SUFFICIENT EVIDENCE TO ESTABLISH A TRUST IN REAL PROPERTY.
    Circuit Court of Cuyahoga County.
    John F. Lieblein v. Jacob Lieblein and Bridget Lieblein.

    Decided, January 26, 1905.

      Evidence Sufficient to Establish a Trust.

    In an action by a son to establish a trust in property voluntarily conveyed by himself and his sister to his father and by the father conveyed without consideration to the sister, the testimony of the principal parties being in direct conflict, but that of plaintiff consistent and reasonable and supported in important details by the testimony of a disinterested witness, while that of the sister was incredible, given in a manner not inspiring confidence, and was unsupported except by the father who was seventy-eight years old and'appeared to be under the domination of his daughter, Held: That the evidence was sufficiently clear and convincing to establish a trust."

      Foran McTighe, for plaintiff.

      Hart, Canfield c& Crolse, contra.
    Winci-i, J.; Hale, J., and Marvin, J., concur.

      Affirmed without opinion, Lieblein v. Lieblein, 74 Ohio State, 496.

   Bridget Lieblien died in 1897 leaving four parcels of real estate and certain money in the bank. Plaintiff is her son; defendant Jacob Lieblein, widower and father of plaintiff; Bridget F. Lieblein is the sister of plaintiff. The brother and sister inherited their mother’s estate, subject to their father’s dower therein.

July, 1898, the son and daughter deeded the real estate to their father; the deeds'were absolute upon their face without reservation of any kind, and defendants claim .that by said deeds a gift to the father was intended.

Plaintiff claims that as to his interest the deeds, while absolute in form, were intended to vest the title to the property in the father, in trust, to keep the estate intact, 'manage it, make an advantageous sale to the city for boulevard purposes, if possible, and render to the son his share, in money or lands, at any time upon request, also accounting to him for rents and profits.

The father, after he received said deeds, sold one lot to the city for $2,100, receiving the proceeds thereof, which he turned over to the daughter, and in April, 1901, he deeded the other lots, three in number, to the daughter as a gift to her, as she and the father claim.

Thereupon plaintiff demanded his share of the property and an accounting and upon its being denied him, brought this suit to declare a trust in said premises and for an accounting.

AVe have heard the witnesses in this case, it being heard upon appeal, and the law requiring that in such cases the evidence establishing the trust and its terms must be clear and convincing, we have found much difficulty in adjusting the equities between the parties.

There is an irreconcilable conflict between the story told by plaintiff and his witness Bogue, and the story told by the defendants. Both can not be true; one or the other is absolutely false.

The testimony of the plaintiff is consistent and reasonable; many details of it are substantiated by Bogue.

The story told by the defendant sister is incredible; we do not believe it. Her manner on the stand and evasion of questions ashed by the court discredit her.

It is with regret that we are compelled to disregard the testimony of the father. He is seventy-eight years old, quite feeble and resides with his daughter, refusing to have anything to do with his son. We think his will is subordinated to hers and his testimony must be weighed in view of his surroundings.

AVe have concluded to grant the prayer of the petition and order that one-half of the unsold real estate be conveyed to him, subject to the father’s dower interest therein. As to the accounting, plaintiff is entitled to half of the proceeds of the lots sold, less his father’s dower interest therein. AVe do not think plaintiff has established his right to an accounting of the rents and profits.

Decree may be drawn as indicated. Judgment for plaintiff.


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    VALIDITY OF THE ACT ESTABLISHING THE TENURE OF FIREMEN.
    Circuit Court of Lorain County.
    Ed Essex v. E. A. Ault.
    Decided, October 8, 1904.

      Municipal Corporations — Constitutional Law — Firemen in Office at Time Municipal Code Went Into Effect Can Only he Removed Underl Provisions of that Act.

    1. The chief of a volunteer fire department elected by the city council under an ordinance of the city Is “an officer” within the meaning of Revised Statutes, Section S, and continues in office until his successor is elected or appointed and qualified.
    2. Section 167 of the Municipal Code providing that no fireman serving in the fire department of any city of the state at the time that act went into effect should be removed or reduced in rank or pay except in accordance with the provisions of that act, is constitutional.
    Winch, J.; Hale, J., and Marvin, J., concur.
   This ,is a proceeding in quo warranto, brought to determine whether relator or respondent is entitled to fill the office of chief of the fire department of the city of Lorain.

From the agreed statement of facts it appears that before the enactment of the new municipal code, the city of Lorain had a volunteer fire department, not under the merit system, the chief officer of which was known as the chief engineer of the fire department, with duties and authority the same as prescribed for the chief of the fire department by the new code. By ordinance 91 it was provided that said chief engineer should be elected annually by the council at the first regular meeting of said council in May of each year, and on May 5th, 1902, the relator was so elected by the council; on May 9th, 1902, the relator received a certificate from the city clerk of his election “to the office of fire chief for a-term of one year,” and on May 13th, 1902, qualified and entered upon his duties as such officer.

The new code went into effect May 4th, 1903, but no board of public safety was appointed for the city of Lorain until July 3d, 1903, when it was appointed by the Governor and organized within three weeks thereafter.

The city council never passed any ordinance classifying the employees of the lire department, and the board of public safety never conducted any civil service examination, but on December 18th, 1903, the mayor, in writing, requested of the board of public safety a list of names from which to select a chief of the fire department, and a 'list was given him by said board, containing the names of one member of each of the three hose companies who liad served longest in the department; this list did not contain relator’s name, but it did contain respondent’s name, and the m.ayor selected the latter as chief of the fire de-' partment, and on December 23d, 1903, appointed him as such, the appointment to take effect January 1st, 1904, and certified said appointment to the board of public safety.

Relator was never removed from office in the manner provided in the code, but acted as fire chief until January 1st, 1904, on which day respondent qualified as such, entered upon his duties and has been serving as such ever since.

Respondent further claims and introduced evidence for the purpose of proving that on the morning of May 4th, 1903, the mayor of the city called relator to his office, told him that his term of office was up, asked him if he would accept a temporary appointment, and being told by relator that he would, thereupon appointed' him temporary chief of the fire department. This is denied by relator, and for how long a time he was appointed temporary chief does not appear.

Relator bases his claim to the office upon the fact that he was in office at the time the new code took effect, never was removed as provided by said code and that he is entitled to continue in office until so removed, by virtue of Section 167 of said code, the last paragraph of which, omitting words not relevant io this case, provides as follows:

“No * * * fireman * * * serving in this * * * 6re department of any city of the state at the time this act goes into effect shall be removed or reduced in rank or pay, except in accordance with the provisions of this act.”

Respondent says, first: that relator was not in office when the code took effect; second, even if he was, the law continuing him in office is unconstitutional; third, even if in office and the law constitutional, the board of public safety never did that which is required to be done to give him the right to claim that the board had appointed him.

As relator makes no claim that the board appointed him, the •third contention may be dismissed without further consideration.

He was elected May 5th, 1902, under an ordinance which provided that the chief should be elected annually, which would intend that he was elected for one year or until May 5th, 1903, or at least until the council on the first Monday of May, 1903 (May 4), should elect his successor; as the council met in the evening, that would be until the evening of May 4th, 1903; but when the council met that evening it could not elect a successor to him because the new code had already taken effect, was in force, and took away from the council the right to elect a fire chief.

The council in fact did not attempt to elect a successor to relator.

That relator was an officer whose dirties are regulated by law, i;ot under the control or direction of any superior in his department, is admitted by counsel for respondent. If so, he was an “officer” within the purview of Section 8, Revised Statutes, which provides:

“Any person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified, unless it is otherwise provided in the Constitution or laws.”

Not having otherwise provided for the office of relator, and no successor having been elected or appointed before the new code took effect, he was then in office and entitled to the benefits of said Section 167 if the same is constitutional, and unless the temporary new appointment testified to, affects the case. This conclusion is in accord with the decision of this court in the ease of State, ex rel John Coon, v. George E. Myers, recently decided in Cuyahoga county, and likewise is in accord with Section 213 of the municipal code.

As to the temporary appointment claimed to have been made on May 4th, 1903: having arrived at the conclusion that-no vacancy on that day existed in the office of fire chief, we are unable to see how the mayor, or anybody else, could make an appointment, temporary or otherwise, to an office which was not vacant.

Second. It is claimed that Section 167 of the municipal code, in so fa.r as it provides that no officer, etc., serving in the police or fire department of any city of the state at the time the code took effect should be removed, except in accordance with the provisions of the code, is an exercise of appointing power by the General Assembly and is in conflict with Section 27, Article II of the State Constitution.

With this contention we can not agree; the reasons against it are fully stated by Judge Summers in the case of State, ex rel, v. Hall, 25 C. C., 762.

It follows that relator is entitled to the relief he prays for, and the same is granted.


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    DAMAGES SOUGHT FOR TRANSPORTATION OF HOGS INFECTED WITH CHOLERA.
    Circuit Court of Lorain County.
    George W. Morton v. Robert Murry.
    Decided, November, 1904.

      Trials — Failure to Ask Instructions to Disregard Evidence Properly Admitted Waives Error.

    Failure of a defendant to ask tbe court to instruct the jury to disregard evidence, which was properly admitted as against a co-defendant who was subsequently dropped from the case, waives any error of the court in neglecting to so instruct the jury.
    Winch, J.; Hale, J., and Marvin, J., concur.
   This was an action brought by the defendant in error against plaintiff in error for damages sustained by reason of the wrongful transportation of hogs infected with cholera, whereby defendant in error’s hogs became infected and some of them died. There was a verdict and judgment for plaintiff below.

Three errors alleged are relied upon for the reversal of this judgment.

1. It is claimed that the verdict is not supported by the evidence. A careful reading of the evidence convinces us that the evidence fully sustains the verdict.

2. There were two defendants in the original action: Morton, plaintiff in error, who owned and transported the hogs, and Knauss, who owned the farm adjoining defendant in error’s to which the hogs were transported. During the trial of the case testimony was admitted as to the admissions of Knauss; these were properly admitted as against him, he being a defendant; they were not admissible against Morton.

The court in its charge directed a verdict in favor of Knauss and he was thereby let out of the case, and properly. But the court neglected to caution the jury as to the inadmissibility of Knauss’ admissions as against Morton. Had request to so charge been made, it would have been error to have refused it, but as no such request was made, although the court inquired of defendant’.s counsel'if further requests were desired, we are inclined to rule there was no error herein.

Certainty there was no error in the original admission of the evidence.

3. We think the charge fair and very favorable to defendant below. The’ construction given by the court of the statute, Section 4211, sub-sections 6-7, was all that the defendants were entitled to.

The court held that the action was brought under the statute, and was founded upon the negligence of the defendant, and held that to recover under the statute the plaintiff must prove not only that the defendant transported hogs infected with cholera, whereby the same was communicated to plaintiff’s hogs to his damage, but that the plaintiff must show that the defendant knew his hogs were so infected, at the time he transported them. We find no error in the charge.

Judgment affirmed.