text:
    TENDER — TIMBER—TIME.
    [Lorain (8th) Circuit Court,
    May 8, 1905.]
    Marvin, Winch and Henry, JJ.
    William Case v. George Kortz.
    Whether Three Days Reasonable Time to Remove Logs, or Excused Tender of Purchase Price, Question for Jury in Replevin.
    When standing timber was sold at a certain price per M., the logs to be measured and paid for by check before being removed from the land; a partial payment made, and after the trees were cut but before they were measured or paid for the land was sold and the purchaser of the trees notified by the vendor of the land that the sale was made subject to his rights in the trees, and by the purchaser of the land that if he wanted the trees he must remove them within three days and pay for them in cash; in an action of replevin following the refusal of the purchaser of the land to allow the purchaser of the trees to come upon the land to measure them, the question of the jury is not as to the ownership of the trees but whether or not three days was a reasonable time in which to allow their removal and whether or not the act of the purchaser of the land excused the purchaser of the trees from making legal tender.
    Error.

      I. E. Hershey and L. Z. Tanney, for plaintiff in error.

      H. G. Redingion, for defendant in error.
   WINCH, J.

Defendant in error brought his action before a justice of the peace to replevin from plaintiff in error four white oak saw logs.

The case being appealed to the common pleas court and petition therein filed, the defendant in that court filed his second amended answer in which he alleged the following facts:

1 ‘ And for a second and further answer,' this defendant says that on or about the-day of November, A. D. 1901, he purchased of one Mary A. Stewart a certain lot of timber, among which is the timber described in plaintiff’s petition; that said timber was standing at the time of said purchase, and that the agreement and terms of sale of said timber from Mary A. Stewart to this defendant was as follows, to-wit: that said timber was to be cut and scaled by this defendant and paid for by cheek, before the same was removed from the premises of the said Mary A. Stewart; that he was to pay for the same at the rate of sixteen dollars ($16) per thousand feet; that the same was to be sealed by this defendant and some lumberman from Cleveland.
“Defendant further says that at said time he paid to the said Mary A. Stewart, the sum of five dollars ($5) to apply on said contract; that thereafter, to-wit, on or about the-day of May, A. D. 1902, he went upon said premises and cut said timber, especially the timber mentioned or described in plaintiff’s petition, that during the year of 1902, the season was such that it was impossible for him to remove said timber from said premises on account of the wet weather, or to do anything with the same.
“Defendant further says that as soon as the weather permitted, which was on or about the 23d of December, A. D. 1902, he went upon said premises and commenced to cut into logs and to scale timber among which was the timber described in plaintiff’s petition; that before he finished cutting and sealing all of said timber, the plaintiff in this action ordered him from said premises and drove him from the same, and refused to allow him to take possession of said timber and said that he was the owner thereof.”

Then followh an allegation of tender to a Mr. Carter, brother of Mary. Stewart, alleged to be her' agent, and also that the defendant was ready and willing to pay for the logs.

The reply filed to this amended answer has some admissions, and it is important to read them:

“The plaintiff George Kortz, for his reply to the second amended answer of the defendant filed in this case says, he does not deny that during the month of December, A. D. 1902, the said defendant entered upon the lands where the timber and logs described in plaintiff’s petition were located, and that'said defendant then commenced to cut said oak trees into logs, and this plaintiff admits that he refused to allow said defendant to finish cutting said trees or timber into logs and that he then ordered the said defendant to leave said premises, and the plaintiff was then the owner of said premises and told the defendant so, and the owner of all said timber and logs, and the plaintiff admits that he then refused to give defendant possession of said timber and logs.
“The plaintiff further denies each and every other statement and averment in said second amended answer contained except such statements and averments as are admissions of the statements and averments contained in plaintiff’s petition filed therein. ’ ’

Upon these pleadings the case was tried to a jury, and upon the trial the following written communications were introduced in evidence:

“N. Royalton, 0., November 8, 1902.
“¥m. Case,
“West View, Ohio.
“Dear dir: About one year ago you bought of Mrs. Mary Stewart some timber, to be immediately cut, sealed and paid for by check. You cut some and it lays on the ground where it fell, unsealed and unpaid. Unless she hears from you in a substantial way within ten days she will proceed to sell the timber to other parties. This is to so notify you.
“Respectfully yours,
“A. B. Knox,
“Justice of the Peace.
“N. Royalton, 0., Dec. 4, 1902.
“¥i. Case,
“West Yiew, Ohio.
“Dear Sir: Mr. Carter refuses to accept your cheek which I enclose herewith and return to you. The place was sold last' night to Mr. Kortz, as soon as Mr. Carter reached home, subject to whatever claims you may have on the trees you bought of Mrs. Stewart, and hereafter you will have to do business with Mr. Kortz and pay him for the timber.
“Respectfully,
“A. B. Knox.
“Parma, Ohio, December 17th, 1902.
“Wm. Case,
. “Dear Sir: I have bought Mrs. Stewart’s place in Strong-ville. If you want them oak trees you must come and see me inside of three days or else they will be cut up into logs. If you want them you must bring the money, or check for them seven trees cut down if scaled satisfactory.
“George Kortz.”

We think the evidence clearly shows that Carter acted as agent for Mrs. Stewart, at least up to the time Knox wrote his second letter, and that Knox was duly authorized by both Mrs. Stewart and her brother, Mr. Carter, to send both of said letters.

The court held that Carter’s agency for Mrs. Stewart ceased on or before December 4, 1902, and that Knox’s letter of that date was sufficient notice thereof to Case, and in so holding we think there was no error.

From the admissions in the pleadings and from the evidence it further appears that neither Mrs. Stewart or Knox ever tendered back to Case the five dollars which he paid her when the agreement regarding the trees was first made, and that Case never tendered to Mrs. Stewart or to Kortz, or to any person representing either of them the amount of money which he agreed to pay for the logs.

Notwithstanding Case’s delays in carrying out the agreement for the purchase of the logs, it is apparent that the contract with him was never rescinded, because his five dollars was never returned to him. The option of the vendor, Mrs. Stewart, under such circumstances, to resell on notice, or to retain title, holding the vendee for any deficit, we also think was never exercised.

Mrs. Stewart sold the land upon which the logs were lying to Kortz, but she did not sell him the logs and credit Case with the consideration for them on his contract. The letter of December 4, 1902 says:

4 4 The place was sold last night to Mr. Kortz subject to whatever claim you. may have on the trees you, bought of Mrs. Stewart.”

In legal effect said agreement was an assignment of her contract to Kortz so that he took Mrs. Stewart’s placé and assumed and agreed to carry out the contract with Case. Such being the case, we think that Case was relieved from taking tender to Mrs. Stewart after December 4, 1902, but as the evidence in the ease clearly shows that the purchase price of the logs was to be paid as soon as the logs were cut and sealed, it is manifest that Case was not entitled to possession of the logs until he paid Kortz or tendered to Kortz; whether such tender was excused by Kortz driving Case off the land, when he went there to scale the timber, depends upon the reasonableness of his notice of December 17, in which he said, 4 4If you want them oak trees you must come and see me inside of three days or else they will be cut into logs.” Kortz had a right to set a reasonable time within which Case should scale and pay for the logs, and if Case did not act, to dispose of the trees as he saw fit, crediting their value on what was realized for them on Case’s contract. The reasonableness of the time set, together with the reasonableness of the time within which Case acted, of the three days were not reasonable, should have been left to the jury under proper instructions.

This was not clearly done, and the question of tender was not touched upon by the court, notwithstanding defendant made a request as follows:

4 4 On general principle, whenever an act of one party, to whom another is bound to tender money, services or goods, indicates clearly that the tender, if made, would not be accepted, the other party is excused from technical performance of his agreement. The law never requires a vain thing to be done. ’ ’

The troublesomeness with the charge is, that it deals entirely with the question of ownership of the logs, rather than with the right of possession thereof.

Granting that title to the logs passed to the vendee when the trees were severed from the land, confessedly the vendor was ,to retain possession of them until the vendee paid or offered to pay for them.

The only questions of fact which were in dispute, and for the jury to determine were, whether Case had paid for the logs, tendered payment or been excused from making tender. If none .of these facts were established, Case was not entitled to the possession of the logs, and had no right to take them away. If they were established, the plaintiff must fail in his case.

The jury should have been restricted in its inquiry to these simple propositions. That it was not, was largely the fault of counsel for plaintiff in error, whose theory of the case seems to depend upon the question of title, and whose requests to charge, while in the main correct as elementary or abstract principles of law, had little reference to the real issues in the case, and no pertinent application to the facts as conceded or shown in the evidence.,

"We find no prejudicial error in rulings on evidence and hold that defendant’s objections based upon the fact that plaintiff in replevin filed no new affidavit in the common pleas court, are not well taken; but for error in the charge in the respect' mentioned, the judgment is reversed.

Marvin and Henry, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    DAMAGE — ERROR.
    [Cuyahoga (8th) Circuit Court,
    January 16, 1905.]
    Hale, Marvin and Winch, JJ.
    New York C. & St. L. Ry. v. Cleveland, P. & E. Ry.
    Remittitur Does Not Cure Error.
    When plaintiff has recovered a verdict in an action brought for two distinct injuries, for one of which defendant was not liable in damages, and the evidence as to the extent of the other injury was conflicting; a remittitur even though it be for a greater amount than that claimed for the injury for which defendant was not liable, will not cure the error in allowing that branch of the case to be considered by the jury, when it does not affirmatively appear that the remittitur was allowed for that reason.

      Joíin II. Clarke, for plaintiff in error.

      Ford, Snyder & Henry, for defendant in error.
   MARVIN, J.

The Cleveland, Painesville & Eastern Ry. brought suit against the plaintiff in error, the New York, Chicago & St. Louis Ry., to recover for property destroyed in an accident whereby some cars of the plaintiff in error (some loaded cars upon a switch) ran against a trestle and injured the powerhouse and other property of the Cleveland, P. & E. Ry. This occurred on October 31, 1901. There was some coal on the cars which was consigned to the defendant in error. It was to be free on board ears at their powerhouse. It never reached their powerhouse. There is no dispute but that the loss on account of this coal was $150. The court allowed evidence as to the value of this coal and charged the jury that they might find for the value of the coal as well as for the other injuries to the property of the Cleveland, Painesville & Eastern Company.

It is contended on'the part of the defendant below that this coal never was the property of the Painesville company; was never delivered to it. The evidence shows that they had never paid for it. It clearly was not yet delivered to the Painesville company; it was not the property of the Painesville company, and recovery for that should not have been allowed to the Painesville company.

As to the extent of the injury to the property of the Painesville company (the powerhouse) the testimony is conflicting. It is placed by some of the witnesses at an amount very much more than the recovery and by some at considerable less, but, as has been said, the court instructed the jury that they might allow for the value of the coal. The recovery was for $1,008.88. On motion for a new trial, the court determined that the verdict must be set aside unless the plaintiff below should remit $308.88, which was done and judgment entered for $700.

It is urged that as the amount remitted was much more than the value of the coal, the judgment as entered should be permitted to stand. That would be true if we could mathematically determine that the court had included in the remittitur the $150. If we knew that was included, we would then affirm the judgment because the evidence is uncertain as to the extent of the injury to the powerhouse and might justify a verdict as to the amount entered as a judgment. For aught we know, the court may have concluded that the injury amounted to only $550. The result is that we are not prepared to say that the judgment as entered was right, and unless the defendant in error shall still remit the $150, the value of the coal, we shall have to reverse the judgment. If that amount is remitted, the judgment will be affirmed. We think probably the court may have included that in the remittitur, but if so, we do not know it.

Hale and Winch, JJ., concur.


text:
    INJUNCTION — NUISANCES.
    [Cuyahoga (8th) Circuit Court,
    January, 1905.]
    Hale, Marvin and Winch, JJ. .
    Ada Adams and Emma A. Britton v. Henry Muellaire et al.
    Dry Cleaning Plant, not Necessarily Nuisance, Erection will not be Enjoined.
    A plant to he used for dry cleaning and dying garments may he so constructed that it will not be per se a nuisance to adjoining property owners, and where the evidence shows that a plant constructed in that manner is contemplated, its erection will not he enjoined.

      Jas. A. Ford and Cushing & Clark, for plaintiffs.

      C. J. Neal and J. C. Hutchins, for defendants.
   MARVIN, J.

The plaintiff, Ada Adams, is the owner of a parcel of real estate in the city of Cleveland, Cayahoga county, Ohio, bounded westerly by Hayward street, having a frontage of 102 feet 4% inches on said street and a depth of about 107 feet.

The plaintiff, Emma A. Britton, owns a parcel of land immediately south of said Adams property and having a frontage on Hayward street of 55 feet and a depth the same as that of the property of the plaintiff, Adams.

On the property owned by these plaintiffs there is a block of six dwelling-houses, the two most southerly of said houses being the property of, and upon the lands of said Britton, and the four more northerly of said houses being the property of, and upon the lands of said plaintiff, Adams. These are good and substantial brick houses except that the Hayward street front is of stone and the wall of the most southerly of these houses is of stone and is next to Sibley street.

The defendants, who are partners doing business under the firm name of H. Muellaire & Co., have recently purchased a parcel of land bounded on the south by Sibley street and on the west by the east line of the premises of the plaintiff.

The defendants carry on what is known as a dry cleaning and dyeing establishment, and propose and intend to erect buildings upon their said land and furnish said buildings with machinery and appliances for the carrying on of said business extensively.

In the conduct of said business the defendants use and will use upon their said premises gasoline in large quantities. They intend to carry on a business which will require the keeping upon said premises of several hundred gallons of gasoline all the time.

At the time this action was brought it was the intention of the defendants to erect and construct their said buidings and appurtenances and place therein and use machinery and devices, upon plans which the evidence shows would be attended with danger from explosions and fire in such wise as to greatly endanger the property of the plaintiffs and as would also cause offensive odors from such gasoline to pass from said premises to the houses of the plaintiffs to such an extent as to greatly discommode the occupants of such houses.

The relief sought by the plaintiffs is 'an injunction restraining the defendants from storing upon their said premises ‘ ‘ gasoline or any similar volatile and inflammable product or petroleum and from using any such substance upon said premises; from allowing odors therefrom to escape or from other substance giving forth into the surrounding air offensive odors; from conducting the business of dry cleaning upon said premises; from conducting the business of dyeing upon said premises; and from erecting upon said premises any building designed for the purpose of conducting therein the business of dry cleaning or the business of dyeing.”

The evidence shoAvs the business contemplated by the defendants consists largely in the cleaning and dyeing of wearing apparel and other similar goods; that in such cleaning large quantities of gasoline are used; that the gasoline as used produces vapor in large quantities, which vapor under certain conditions is very inflammable and is explosive and that it produces offensive odors.

If it were the purpose of the defendants to construct their buildings and appurtenances and conduct the business under the plans which they intended to follow at the time this action was begun, we should have no hesitation in granting an injunction against such construction and carrying on of the business; but the evidence clearly shoAvs that the defendants noAV propose to erect buildings with devices and appliances materially different from those intended at the time of the bringing of the suit. Plans have been submitted to us and we have had the testimony of experts, which lead us to the conclusion that the business of dry cleaning and dyeing, to the extent that these defendants propose to carry the same on and for which they propose to erect their buildings and supply their appliances, may be so conducted as to practically relieve the neighborhood from offensive smells emanating from the business and so as to reduce the dangers from fire and explosions so completely as that the business would not be such as to constitute a nuisance which could be enjoined by the court.

The evidence further shows that the defendants have employed an educated chemist and practical man under whose directions they are to put in their machinery and appliances.

We can not say, as the evidence now stands before us, that the construction of the buildings and the furnishing of the appliances and the carrying on of the business as is now proposed by the defendants will result in annoyance by smells or endanger by fires or explosions so as to constitute a nuisance, and that being so, we must deny the injunction prayed for.

It does not follow from this that when the buildings of the defendants are constructed and their appliances introduced that they may not turn out to be such as that the court should enjoin their use for the purpose intended, nor does it follow that the plaintiffs may not be entitled to an injunction from the carrying on of the business as the defendants may undertake to carry it on. We hold, only, that the evidence before us does not satisfy us that what the defendants contemplate doing will constitute a nuisance entitling the plaintiffs now to an injunction.

Finding however, as we do; that when this suit was begun the defendants did contemplate the construction of buildings and appliances which would have been dangerous and offensive in their operation, the costs of this, proceeding should be assessed against the defendants. The judgment, therefore, is that the petition of the plaintiffs is dismissed at the costs of the defendants.

Hale and Winch, JJ., concur.


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    DEFAULT JUDGMENT.
    [Cuyahoga (8th) Circuit Court,
    January 25, 1905.]
    Hale, Marvin and Winch, JJ.

      Wm. C. Scofield v. Excelsior Oil Co. et al.
    Failure to Notify Stockholders of Insolvent Corporation of Institution of Suit Against It upon which Default Judgment Is Taken Does not Amount to Fraud and Collusion.
    When in an action to enforce stockholders’ liability a judgment for the plaintiff has been reversed and the case remanded from the Supreme Court for the sole reason that no insolvency of the corporation had been shown, and while pending in the common pleas court, the plaintiff obtains a default judgment against the corporation upon which execution is issued for the purpose of establishing the insolvency of the corporation in the stockholders’ liability suit, such judgment is not obtained by fraud or collusion and is not in violation of any .rights of the stock- • holders, even though they were not notified of the suit.
    Motion for New Trial.

      Henderson & Quail, for plaintiff.

      Goulder, Holdvng & Masten, for defendant.

       Affirmed, no op., Cobb v. Scofield, 74 Ohio St. 513.

   MARVIN, J.

The defendant, Lester A. Cobb, has filed his motion for a new trial in this case, which has been argued to ns with earnestness and ability by his counsel and in such wise as to show that counsel feel great confidence in the position that the judgment of the court is wrong. The matters urged in support of the motion, though not all touched upon in the opinion, were all carefully considered by the court before the judgment was announced and the members of the court who concurred in that judgment are still of the opinion that the judgment is right.

The point upon which the court has found the greatest difficulty and because of which one member of the court does not concur in the judgment is upon the question of whether the judgment obtained by the plaintiff against the oil company in another action, during the pendency of this suit, is conclusive upon the defendant Cobb. That judgment was obtained without any service being obtained upon Cobb and without his having notice of the suit. If that judgment was obtained by the fraud of the plaintiff or by collusion between him and the oil company or those representing the oil company, it is not conclusive as against Cobb.

The averments of the answer of Cobb to the supplemental petition in reference of the obtaining of such judgment are in part as follows:

. “Plaintiff as the owner of all the stock of said company and defendant, George F. Scofield, purposely and intentionally refrained and omitted to file any answer or make any defense in said cause, and caused and permitted a default judgment to be taken in said action in the sum of $98,497.21 in furtherance of the collusion and fraud aforesaid; that neither this defendant or his attorneys were given notice of the bringing of said action, and they had no knowledge thereof or of the judgment in said case until after filing of the amended and supplemental petition herein in February, 1903, when the term of court at which said judgment ivas rendered had terminated; that said notice was withheld from them in furtherance of said collusion and fraud, the plaintiff well knowing that he had brought said action and secured said judgment for the intent and purpose of further prosecuting this action against this defendant. Defendant further says that the Excelsior Oil Company had a good and sufficient defense to said action, and that it was not indebted to plaintiff in any amount whatever, all of which plaintiff and George F. Scofield well knew, but that plaintiff and George F. Scofield colluded together to obtain, and did obtain judgment aforesaid fraudulently, by withholding and refusing to make any defense.”

The'admission of the plaintiff in reply to this answer is as follows: He admits

“that plaintiff purposely refrained from making any answer or making any defense to said action and caused a default judgment to be taken therein in the amount stated by said defendant; that said action was commenced and said judgment secured partly for the purpose of further prosecuting this action against the said defendant Cobb; but as to all the averments of the said fifth defense not herein admitted, and which are not admissions of the averments of plaintiff’s said amended and supplemental petition, plaintiff says that he denies them and each of them. ’ ’

It was urged, upon the original hearing and upon the hearing of this motion that this admission upon the part of the plaintiff was an admission of collusion between himself and the Excelsion Oil Company, or between himself and George F. Scofield acting. for said oil company. Such is not the legal effect of the admission. It is admitted that he took a default judgment; that he purposely refrained from making any answer, or making any defense in said action. It is a denial of any collusion between himself and anybody -else to secure this judgment.

¥e come then to the question, do the facts justify us in holding that this judgment was obtained either by fraud or collusion ?

Collusion is defined in 6 American & E. Eney. of Law (2d Ed.), page 212, as follows:

‘£ Collusion is where two persons, apparently in a hostile position and having conflicting interests, by arrangement do some act in order to injure a third person or deceive a court. ’ ’

In Carey v. Houston & F. C. Ry. 52 Fed. 675, it is defined as "an agreement between two or more persons unlawfully to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law.”

“Collusion” is defined by Webster as follows:

“In law, a deceitful arrangement or compact between two or more persons, for the one party to bring an action against the other for some evil purpose, as to defraud a third party of his right; a secret understanding between two parties, who plead or proceed fraudulently against each other, to the prejudice of a third person. ’ ’

Bouvier’s Law Dictionary defines collusion as follows:

“Collusion, fraud. An agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law.”

The facts here are that the plaintiff had obtained the judgment of the court of common pleas and the judgment of this court that the plaintiff was a creditor of the oil company to an amount greatly in excess of the amount prayed for in the action in which it is claimed there was this collusion and fraud. The Supreme Court had reversed those judgments, giving no intimation by such reversal as to there being any error in holding that the plaintiff was a creditor of the oil company to the amount which had been found by the lower courts, but holding that until the insolvency of the oil company was established by a judgment against it and the issuance and return of an execution unsatisfied, the present action could not be maintained.

For the purpose of establishing such insolvency in the way pointed out by the Supreme Court, the action in which collusion is charged was brought. We think that the charge that the bringing of such action without any notice being served upon the defendant Cobb should not be characterized as a fraud, and that the fact that the oil company made no defense should not be characterized as collusion. It was not sought in that action to recover for an amount greater than two courts had already found that the oil company was indebted to the plaintiff, and though it might have been well for the plaintiff to have given notice to the defendant Cobb, we'do not see that the failure to do so constituted a fraud upon him. The plaintiff manifestly expected to obtain no right against Cobb which, he did not already have, except to have the proper evidence that the oil company was insolvent.

Entertaining these views, the motion for a new trial is overruled.

Hale and Winch, JJ., concur.


text:
    CRIMINAL LAW.
    [Cuyahoga (8th) Circuit Court,
    March 28, 1905.]
    Marvin, Winch and Henry, JJ.
    Hiram D. Jones v. State of Ohio.
    Admissions of Accused to Physicians Examining Him under Void Order of Court Are Voluntary.
    When in the course of an examination being made by physicians, appointed by the court for that purpose, the accused makes admissions as to his physical condition, such admissions are admissible in evidence, even though the court had no right to order such examination and the physicians had no right to make it and the accused did not know that he was not obliged to submit to such examination.

      Error.
    Kart, Canfield & Croke, for plaintiff in error.

      II. B. Keeler, for defendant in error.
   MARVIN, J.

Jones was tried in the court of common pleas for felony and convicted; the only error for which it is claimed the judgment should be reversed was, that over the objection of the plaintiff in error evidence was admitted which was incompetent and was prejudicial to him.

It was shown by the record that while Jones was in prison awaiting a preliminary examination before the police court of the city of Cleveland, the judge of said court called two physicians, Dr. W. M. Jones and Dr. Maurice Budwig, to his court room and directed or requested them to make a physical examination of the accused to ascertain whether he was afflicted with a contagious disease. From the testimony of one of the physicians, Dr. Budwig, it appears that the prisoner was present in the court room when this direction was given to the physician and the prisoner went to prison with the two physicians. Dr. Jones says nothing about having seen him in the court room, but says that he told him that he and Dr. Budwig were to examine him by order of the court. The physicians then proceeded to make the examination, having the prisoner remove his clothing.

At the trial in the court of common pleas, both of these physicians were called by the state as witnesses. Each was asked as to the result of the examination, but their testimony on this point was rejected by the court. Each was also asked as to what, if anything, the prisoner said as to his condition of health, and each gave a conversation then held by them with the prisoner, in which things are stated to have been said by the prisoner which though in no wise constituting any confession of guilt on his part, yet constitute the admission of certain facts which tend to show his connection with the crime charged against him. This testimony was admitted over the objection of the defendant, and exception to its admission was duly taken.

If these admissions were voluntarily made by the prisoner, there can be no question as to the admissibility of the testimony. If they were made under such circumstances as to show compulsion, or the promise of clemency for making them, or the threat of punishment for not making them, such promise being given, or such threat being made by one having authority to make such threat, or by one having such apparent authority, and whom the accused believed had the authority, they ought not to be received.

It is provided by Art. 1, Sec. 10 of the state constitution that no person shall “be compelled in any criminal case to be a witness against himself.” And this has been held to protect a prisoner from any forcible examination of his person for the purpose of securing evidence against him. It has also been uniformly held, as hereinbefore stated, that confessions of guilt made under threats or promises of those in authority, can not be used against one on trial for crime, and though the text books and cases call attention to the difference between the confessions of guilt and admission of independent facts tending to show guilt, the rule as to their admission as evidence seems to be the same, except that in some, if not all, of those jurisdictions where it is required of the state to show affirmatively that confessions were voluntarily made, before they can be admitted in evidence, this affirmative evidence is not required as to such admissions.

However, in Ohio, the rule is that whatever one confesses or admits as to his connection with a criminal act, is presumed to have been voluntarily made and will be admitted in evidence against him, unless it be shown on his part that the same was involuntary.

The only ground on which the admissions in this ease can be claimed to have been involuntary is, that they were made to physicians who were directed or requested by the judge of the police court to make an examination of his person, and which order the prisoner probably supposed the judge had the right to make, whereby the physician had some authority over him, and that they were made at the time of and in connection with such examination. Of course the judge had no right to make the order and ought not to have made it. The physicians had no more right, after receiving the order or direction of the judge, to make any examination of this prisoner than they had to make such examination of any other citizen, but it does not follow that what was said by the prisoner was not voluntarily said. No one said to him that he must answer questions; it would appear from the evidence that he did not hesitate about answering, and it is altogether probable that it did not occur to him that he was making any admission of any incriminating nature.

Under what circumstances the confessions of one accused of crime will be held to be voluntary has been considered in Fouts v. State, 8 Ohio St. 98; State v. Leuth, 3 Circ. Dec. 48, (5 R. 94) ; Spears v. State, 2 Ohio St. 583, and in other cases.

We have examined also many other authorities, including People v. Glover, 71 Mich. 303 [38 N. W. 874] and State v. Struble, 71 I. 11 [32 N. W. 1],

Judgment affirmed.

Winch and Henry, JJ., concur.


text:
    EVIDENCE — REPLEVIN.
    [Cuyahoga (8th) Circuit Court,
    March 27, 1905.]
    Marvin, Winch and Henry, JJ.
    Stephen Praschl v. Christ C. McMahon et al.
    Parol Evidence Admissible to Show that Dismissal of Replevin Was Result of Agreement.
    When the plaintiff in an action of replevin has executed the delivery bond required by statute, received the property replevined, dismissed the replevin suit at its costs, and is later sued by the defendant in the replevin suit for the value of the property, an answer alleging that the dismissal of the replevin suit was the result of a settlement states a good defense, and parol evidence is admissible to show the agreement upon which the suit was dismissed and the disposal of the property.
    Error.

      L. A. Grossner and H. Preusser, for plaintiff in error.

      N. Marks Flick, for defendant in error.
   MARVIN, J.

Suit in replevin was brought by the Cleveland Metal Stamping Co. against Praschl and one Meigs before a justice of the peace. Writ was issued to one McMahon, who was a constable, and some 20,000 small metallic ticket boxes were taken by him from Praschl under the writ, and statutory bond being given by the company, these goods were delivered to it.

Later this suit was dismissed at the costs of the company, but the boxes were retained by the company. The present suit was brought by Praschl to recover for the value of the boxes.

The defense set up by the stamping company was that the dismissal of the suit before the justice of the peace was made under an agreement by the company with the defendants in that action, by the terms of which the plaintiff here was to have delivered to him certain tools; 'that the company should pay the costs of the action and retain said boxes and sell the same upon the best terms it could, retaining out of the avails of the same some $800 due it from said Meigs, and pay over to him the balance. The metal stamping company paid the costs, delivered the tools to Praschl, and is converting the boxes into money for the purpose of carrying out said agreement, as it is claimed.

In his reply the plaintiff denies the making of the agreement under which the case before the justice of the peace was dismissed. With the pleadings in this situation the case went to trial.

It is urged that there was error on the part of the court in admitting evidence of the agreement under which the replevin case was dismissed. We think there was no error in admitting this evidence. The only entry on the docket of the justice of the peace is “Dismissed without prejudice at plaintiff’s costs.” If this dismissal was made under some contract as to what should be done with the goods taken in replevin, that fact is admissible.

The plaintiff proved by the constable that the goods were taken from him (the plaintiff) by the officer under this writ of replevin and were turned over to the metal company upon such company giving the bond required by law'. The bond was not produced in the ease, but it is to be presumed to have been such as is required by See. 6616 R. S. (See. 10466 G. C.) and must therefore have provided that plaintiff would prosecute the action to final judgment, and that if the judgment was against the plaintiff the property should be returned, etc., or pay the appraised value thereof.

The entry of the justice of the peace of a dismissal of the case without prejudice would, unexplained, entitle the defendants in replevin to a return of the property, but we think if clear that, if the dismissal was made upon an agreement such as set out in the answer of the metal stamping company, it would be entitled to have the agreement carried out. This view was taken by the court below.

The only evidence tending to show any agreement for dismissing the replevin case was the testimony of the plaintiff, and falls far short of establishing any agreement. It appears from the evidence, which is exceeding^ unsatisfactory, for the plaintiff was unable to speak English clearly, that this plaintiff and Meigs at one time had a joint interest in these boxes; that 'Meigs gave the plaintiff an order for them. Plaintiff says that they became his; that they were taken from him in the replevin suit.

So far as it appears, there was no agreement about settling that suit. The boxes, then, should have been returned to the plaintiff. They were not returned.

At the close of plaintiff’s evidence motion was made by the defendant that the jury be directed to return a verdict for defendant. This was overruled but the court then, of its own motion, ordered the ease dismissed without prejudice, unless plaintiff make Meigs a party. Meigs was not made a party, and so the dismissal without prejudice was made. We think this was error on the part of the court. Taking the evidence as plaintiff gave it, Meigs was not a necessary party to the suit.

The judgment is reversed and the ehse remanded to the court of common pleas.

Winch and Henry, JJ., concur.


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    STREET RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    June 5, 1905.]
    Winch and Henry, JJ., concur.

      Elsie L. Cleverdon, Adm. v. Lake Shore Elec. Ry. Co. et al.
    Negligence of Carrier in Inviting Passenger to Alight, and of Passenger in Alighting at Dangerous Place, Questions for Jury.
    When the evidence discloses that a passenger upon an electric car had notified the conductor of his desire to alight at a certain stop; that the car ran past that stop and came to a standstill upon a trestle; that the passenger, who was upon'the rear platform, thereupon alighted from the car and started to walk hack along the trestle to the station, but before he could do so was killed by the car backing upon him without warning; Held: That the question of the negligence of the carrier and of the contributory negligence of the passenger were for the jury to to determine.
    Error.

       Affirmed, no op., Lake Shore Elec. Ry. Co. v. Cleverdon, 75 Ohio St. 618.

   MARVIN, J.

On August 23, 1902, H. L. Cleverdon, plaintiff’s intestate, boarded ear No. 17 on the road of defendants. Said ear was bound eastward, and said Cleverdon paid his fare to a point known as Cahoon road, which is stop No. 24 on said road, and notified the conductor that he desired to get off at that point. He was a frequent passenger on this line and often got off at this stop.

He was an engineer by occupation and was engaged largely in the construction of bridges, and at this time was superintending the construction of a bridge for the county not far from said stop No. 24. He was about 33 years old, and was a strong, active man in excellent health.

Just east of stop No. 24, the tracks of defendant’s railroad are supported on a wooden trestle over a ravine for a distance oE several hundred feet and at a considerable elevation. This trestle is nine feet wide. At the time mentioned the conductor of the car gave the proper signal to stop the car at stop 24, but for some reason it did not stop there but ran on a considerable distance until it was upon the trestle. The witnesses vary as to how far the car was upon the trestle, but it was probably not less than sixty feet from the west end of the trestle when the car stopped, at a point where the elevation of the trestle was in the neighborhood of forty feet above the earth. Cleverdon had stepped out upon the rear platform of the car ready to alight at stop 24, but as the ear went by he did not get off until the ear stopped, when he immediately stepped off, swinging around so as to step upon the trestle back of the car, and started to walk back toward the stop at which he had intended to alight. The car at once backed toward him. The conductor, seeing his peril, gave the signal to stop and called to Cleverdon, warning him of his danger, but too late to save him, and he was precipitated to the ground beneath, sustaining such injuries that he died therefrom the next day at St John?s hospital in Cleveland, to which he had been removed.

The plaintiff, having been appointed administratrix of his estate, brought this suit to recover damages against the railroad company and its receivers for wrongfully causing his death.

The deceased was the engineer under whose direction and superintendence the trestle was constructed, and was entirely familiar with it and its surroundings.

At the close of the plaintiff’s evidence the court, on motion of the defendant, directed the jury to return a verdict for the defendant, which was accordingly done and judgment entered upon such verdict. To this action of the court the plaintiff excepted. By proper proceedings the case is here for review. A bill of exceptions is filed containing all the evidence. The only error complained of is the action of the court in directing a verdict for the defendant.

It has been urged on behalf of plaintiff that there should have been submitted to the jury the question of whether the action of those in charge of the car in stopping on-the trestle was an invitation to the passenger to alight, or at least whether be did not have a right to understand it to be such invitation. It is shown by the evidence that^the custom in the operation of the car was not to back. Decedent was a frequent passenger. -He was a strong young man, entirely familiar with the trestle and its surroundings. The car stopped for some purpose. Did it stop with the intent to run back? The conductor did not signal it to do so. Did it start back instantly by its own recoil at the very moment of stopping, or did it, as testified to by Kuepfer, stand twenty or thirty seconds and then start back? Was it negligence, if the passenger understood that the stop was to let him alight ,and the car stood twenty or thirty seconds, to get off and walk aw ay from the car ?

All of these questions should have been submitted to the jury for its determination.

It could not be said as a matter of law, either that the company was not negligent in what it did, or that Cleverdon was negligent in what he did.

For error in taking the case from the jury and directing a verdict for the defendant, the judgment is reversed.

Winch and Henry, JJ., concur.


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    ERROR — PLEADINGS.
    [Cuyahoga (8th) Circuit Court,
    October 27, 1905.]
    Marvin, Winch and Henry, JJ.

      Stowe-Fuller Co. v. Louis J. Dominick.
    1. Error Lies to Action of Court in Overruling Motion for Judgment Notwithstanding the Verdict, though Case is Still Pending.
    Error lies to the overruling of a motion for judgment notwithstanding the verdict, even though a motion for a new trial is made and is undisposed of in the common pleas court.
    2. Petition May be Amended to State Cause of Action after Verdict is Returned.
    A court may allow the amendment of a petition after verdict and before judgment is entered, even though the petition in its original form did not state a cause of action.
    Error.

      Henry & Couse, for plaintiff in error.

      Kerruish, Chapman & Kerruish, for defendant in error.

       Affirmed, no op., Stowe-Fuller Co. v. Dominick, 75 Ohio St. 593.

   MARVIN, J.

J. Dominick brought suit against the Stowe-Fuller Co., filing a petition in which he alleges that while in the employ of the Stowe-Fuller Co. he received a personal injury. In that petition he specified certain negligence which he says the Stowe-Fuller Co. was guilty of, by reason of which he was injured, and he says in his petition that he was inexperienced in the work in which he was engaged at the time of the injury. He did not allege in the petiton that he had no knowledge of the manner in which the sacks of lime, which fell over and injured him, were piled up. He did not allege that he did not have the means of knowledge which the defendant had of the manner in which the sacks were piled. But it is not necessary that an inexperienced man, as he says he was (he says he had only worked there ten minutes when he received the injuries) should aver that he did not have the means of knowledge, but it is, as we understand the law, necessary that he aver that he had not the knowledge.

No demurrer was filed to this petition, nor was objection made to the introduction of evidence on the ground that the facts stated in the petition did not constitute a cause of action.

An answer was filed to the petition, the ease went to trial and a verdict was returned for the plaintiff. Upon the return of the verdict the defendant moved for judgment notwithstanding the verdict. The ground upon which this motion was based was that the petition failed to state a cause of action against the defendant in favor of the plaintiff. Plaintiff was then permitted to amend his petition and such amendment was made by the insertion of the words “that he had no knowledge of the manner in which said sacks were piled. ’ ’ That amendment having been made, the motion for a judgment notwithstanding the verdict was overruled. It is the overruling of this motion which is claimed to constitute error. Following tjie overruling of this motion the court sustained a motion of the defendant for a new trial, and this case is still pending in the court of common pleas. The defendant in error claims that the ease is prematurely brought into this court; that so long as the case is pending in the court to review the order of that court.

¥e hold against the contention of the defendant in error in this and we do so on authority of Davis v. Turner, 69 Ohio St. 101 [68 N. E. 819] and we are thus brought to a consideration of the alleged error.

Section 5238 R. S. (See. 12239 G. C.) provides that:

“When upon the statements in the pleadings one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, although a verdict has been found against such party. ’ ’

It is urged here that the petition, as it stood at the time the verdict was rendered, did not state a good cause of action against the defendant. Without stopping to read from the petition, we incline to the opinion that this is well taken, and tllat if a general demurrer had been filed to it, such demurrer should have been sustained. But the court permitted the plaintiff to amend his petition before passing upon the motion, and we hold that the petition as amended stated a cause of action in plaintiff’s favor. This amendment was allowed by the court under Sec. 5114 R. S., (See. 11363 G. C.) which reads:

“The court may, before or after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading by inserting other allegations material to the case, ’ ’ etc.

But it is said the court can not permit allegations to be made, under the name of “amendment,” which will state a cause of action, when no cause urns before stated; that is, to use the language of the books, there must be something to “amend by” or there can be no amendment. This proposition appears to be supported uniformly by the authorities, and we must therefore inquire what is meant by the language, “there must be something to amend by.” If, as is urged by the plaintiff in error there must be, in the ease of a petition, such a complete cause of action stated before an amendment can be allowed, then our practice from time immemorial seems to have been wrong.

Section 5116 R. S., (Sec. 11365 G. C.) provides that:

“If the demurrer be sustained, the adverse party may amend if the defect can be remedied by amendment, with or without costs as the court in its discretion shall direct. ’ ’

Section 5061 R. S. (Sec. 11309 G. C.), provides for demurrer to petition when it does not state facts sufficient to constitute a cause of action. This is denominated a general demurrer, and, as has already been said, it has been the universal practice to allow amendment to the petition after the sustaining of a general demurrer, where the petition undertakes to state a cause of action so plainly set forth that it is plain upon what the plaintiff relies, and where the amendment in no wise changes what the plaintiff clearly undertook to set out in the defective pleading In the petition in this case there was something to “amend by” as those words are used in the books.

As said in Ellison v. Georgia Ry., 87 Ga. 691 [13 S. E. 809] :

“When an amendment needed is one of substance itself enough to amend by does not mean the same as ‘Enough to be good in substance without amendment.’ On the contrary, failing to be good in substance is generally the reason why amendment in substance is needed.”

The opinion of the court is most interesting,' but time will not be taken to read from it.

The judgment of the court of common pleas is affirmed.

Winch and Henry, JJ., concur.


text:
    ATTACHMENT AND GARNISHMENT.
    [Cuyahoga (8th) Circuit Court,
    November 10, 1905.]
    Marvin, Winch and Henry, JJ.
    R. & G. Deacon v. Richard Powers.
    Personal Earnings of Married Man not Attachable for Groceries Furnished on His Order to His Mother.
    The word “necessaries” as used in the statute permitting the attachment of 10 per cent, of a debtor’s personal earnings when the claim is for necessaries, means necessaries for the debtor or his family, and the personal earnings of a married man can not be attached on a claim for groceries furnished on his order to his mother with whom he boarded before his marriage.
    Error.

      G. D. Freholin, for plaintiffs in error.

      John Brown, for defendant in error.
   MARVIN, J.

This is a proceeding in error seeking to reverse the judgment of the court of common pleas.

These plaintiffs sued the defendant before a justice of the peace and caused an attachment to be issued. The affidavit for the attachment sets out that the claim upon which the plaintiff brought suit was just and lawful; that he believes said plaintiff ought to .recover thereon the sum of $30.42, and that the property sought to be attached is not exempt from execution; that said property is the personal earnings of the defendant; that the claim on which judgment is sought is for necessaries; that a demand in writing for the excess over and above 90 per centum of the personal earnings of the defendant was made before bringing this action, which demand was not complied with as provided by statute. It is upon the ground that the claim upon which the suit was brought was for necessaries that attachment was issued by the justice, and it was for the personal earnings of the defendant.

The defendant moved to discharge the attachment and filed an affidavit in support of that motion. In that affidavit the defendant denies all and singular the statements and allegations contained in the affidavit of the plaintiff filed herein. Second, affiant says that the claim for which this action is brought is not for necessaries. Third, affiant says he is a resident of the state of Ohio and a married man living with his wife and the head and support'of a family and that he is not the owner of a homestead in his own right or in the right of his wife, and that the money attached in this action is the personal earnings of affiant, earned by him within ninety days next preceding the commencement of this action, and does not amount to the sum of $150. Therefore, affiant selects, elects to take and demands that the money herein attached be set off to him in lieu of a homestead and for the necessary support of his family.

The justice overruled the motion to discharge the attachment and an appeal was taken to the court of common pleas, where the motion was sustained, and the ease is brought here on error.

The bill of exceptions filed here shows the facts to be as follows:

Plaintiffs are grocers. At the time of the transaction herein, defendant was a single man, living with his widowed mother and sisters. Defendant had had an account with plaintiffs, which had been paid by an order on his employer. The mother was in the habit of ordering the goods. When the account sued on herein was begun, defendant with his mother came to plaintiff’s store. Plaintiff refused to give credit to defendant without an order from defendant on his employer to be held as security. Defendant said he would not again give an unlimited order, but would give one for $25, which is all he would “stand for.” lie gave such an order. Goods were furnished on his credit by plaintiff, the mother usually ordering the same. The goods were consumed by the family. The son lived with his mother but paid board to her. Defendant is now married, and attempt is made to subject by attachment his earnings, upon this claim as for necessaries.

If the goods furnished by plaintiff were necessaries in the sense in which that term is used in Sees. 6489 and 5430 R. S. (Secs. 10253, 11725 G. C.), then the attachment should not have been discharged.

Under the facts of this case, were the goods necessaries in that sense? They were groceries such goods as are ordinarily necessary for the support of a family, but this defendant had no family to support. He was an, unmarried man, and, unless his mother was “destitute of means of subsistence and unable, either by reason of old age, infirmity or illness to support * * * herself,” there was no legal obligation resting on him to support her (Sec. 7017-3 R. S., now Secs. 12429 G. C. et seq.). There is nothing in the agreed statement that she was in such condition,. He was not the head of the family. He boarded with his mother, but he paid his board. His rights in this action are exactly what they would be if he had ordered these goods furnished to any other person than his mother. They were not necessaries for him, and the word necessaries, as used in the statute, means such things as are necessary for the debtor and his family. That being so, we hold that as to him these were not necessaries, and the attachment was properly discharged.

The judgment of the court of common pleas is affirmed.

Winch and Henry, JJ., concur.