author: Spear, J.

text:
    Hutson et al. v. Hartley et al.

      Contest to set will aside — As lost or spoliated will — After probate record introduced by defendant — Burden remains upon plaintiff to establish will — Shifting of the burden of proof — Not error for court to charge that burden is upon plaintiff, when —Law of wills — Question of evidence.

    1. In the trial of a contest to set aside a will admitted to prohate by the probate court as a lost or spoliated will, after the probate record has been introduced by the defendant, the burden remained upon the plaintiff to establish that the will so admitted to probate and record is not the last will of the deceased, and such burden does not shift to the defendant upon proof by the plaintiff tending to show that the will was, shortly before his death, in the custody of the testator and could not be found among his effects shortly after his decease.
    2. In such case, where the allegation of the petition is that the paper so admitted to probate and record is not the last will of the deceased; that the testator in his lifetime revoked his will by destroying it, and that said will was not lost or spoliated after his decease, and the ■ proof of the plaintiff tended to show only that the testator did himself destroy the will and that it was in his custody shortly before his decease and could not be found shortly after, it is not error for the trial court, as part of a charge which in all other respects gives correct rules of law applicable to the case made by the evidence, to charge the jury that the burden is upon the plaintiff to establish that the paper writing is not the testator’s last will, and that the plaintiff must establish, by a preponderance of the evidence, that the testator did during his lifetime destroy the will with the intention of revoking it.
    (No. 9076
    Decided April 11, 1905.)
    Error to the Circuit Court of Columbiana county.
    The action below was brought March 9, 1903, in the common pleas of Columbiana, by Lina Hartley against Byron Hutson et al., to set aside certain paper -writings, one dated December 15, 1900, the other dated February, 1902, and which had been admitted to probate and record by the probate court of that county, September 5, 1902, as copies of the lost, spoliated or destroyed last will and codicil of Abram Hartley, deceased. It was alleged in the petition that “the paper writing purporting to be the last will and testament and codicil thereto of the said Abram Hartley is not his last will and testament;'that the said Abram Hartley of his own free will and volition revoked the will, a copy of which is probated, by destroying the same, and such original will was not lost, spoliated or destroyed subsequent to the death of the said Abram Hartley. ’ ’
    There being no issue made by the pleadings, the court, by an entry on the journal, “ordered that the validity of said will be and it is hereby put in issue between the parties and that it be ascertained by the verdict of a jury whether the said writing is the last will and testament of the said Abram Hartley, or not.”
    The trial resulted in a verdict finding the issues for the defendants and that the writing produced is the last will and testament and codicil thereto of said Abram Hartley, deceased. Judgment was thereupon entered for the defendants in accordance with the verdict. ■ Upon error to the circuit court that court reversed the judgment of the common pleas for error in the charge of the court to the jury.The defendants below bring error.

      Mr. J. G. Moore; Mr. E. L. Lyon; Mr. S. E. McCormick and Messrs. Potts & Wells, attorneys for plaintiffs in error,
    cited and commented upon the following authorities:

      Jones v. State, 20 Ohio, 34; Stetson v. Stetson, 66 N. E. Rep., 262; Behrens v. Behrens, 47 Ohio St., 323; Betts v. Jackson, 6 Wend., 181; Schonler on Wills, sec. 402; 1 Jarman on Wills, 290; Greenleaf on Evidence (14 ed.), sec. 681; 29 Am. & Eng. Ency. Law, 292, note 3; Taylor v. Pegram, 37 N. E. Rep., 837; Page on Wills, sec. 442; Graham v. Burch, 28 Am. St. Rep., 347; Crossman v. Crossman, 95 N. Y., 152; Page on Wills, secs. 382, 448; Mears v. Mears, 15 Ohio St., 90; Stacey v. Cunningham, 69 Ohio St., 183; Doll v. State, 45 Ohio St., 445; Railway Co. v. Ritter, 67 Ohio St., 53; Cheever v. North, 37 L. R. A., 561; secs. 5916, 5948 to 5954, inclusive, and 5956 to 5961, inclusive, Rev. Stat.

      Mr. J. A. Martin; Mr. C. C. Connell; Mr. W. F. Lones; Mr. C. S. Speaker and Mr. George T. Farrell, attorneys for defendants in error,
    cited and commented upon the following authorities:

      In re Mary Sinclair’s Will, 5 Ohio St., 291; Behrens v. Behrens, 47 Ohio St., 323; Dew v. Reid, 52 Ohio St., 519; Bartges v. O’Neil, 13 Ohio St., 73; Board of Education v. Mills, 38 Ohio St., 383; secs. 5944, 5947 and 5953, Rev. Stat.
   Spear, J.

The issue ordered on the journal was an issue at large, but the contestants, by their testimony, made no other claim of invalidity than that stated in the petition, viz.: that the paper writing admitted to probate as a copy of a lost or spoliated will was not the last will of Abram Hartley, because, of his own free will, the testator had revoked the will, a copy of which is produced, by destroying the same, and the original will was not lost, spoliated or destroyed subsequent to his death, which occurred April 16,1902. It was conceded at the trial that the testator did in fact execute a will December 15,1900. The order of proof being that prescribed by section 5864, Revised Statutes, the defendants introduced and read in evidence the will and codicil, and order of probate, and then rested. Testimony was thereupon offered by the plaintiff below tending to show that the will had been in the custody of the testator for some time prior to his decease, and, by circumstances and alleged declarations of the testator, that he did himself, some weeks prior to his decease, destroy the will with the intention of revoking' it, and that search being made in his desk and among his papers the day after his decease the will could not be found. To overthrow this showing, testimony was given by the defendant below tending to show the execution of the codicil the latter part of February, 1902, by which there was substituted an executor in place of the one named in the will who had deceased the January before; and, by this and other circumstances and alleged declarations of the testator, that he did not destroy the will, but that it subsisted after his decease. No testimony was given or offered tending to show that the will was revoked by the making of any other will; nor that any person in the presence of the testator, or by his direction, destroyed the will, nor was any direct testimony offered tending to prove the actual destruction of the will after the decease of the testator.

Among other things the court charged the jury that:

“The statutes of Ohio provide that a will shall be revoked by the testator, tearing, cancelling, obliterating or destroying the same, with the intention of revoking it, hy the testator himself, or by some person in his presence, or by his direction, or by some other will or codicil in writing duly executed and attested, or by some other writing signed, attested and subscribed in the manner that wills are required to be executed.

“The sole question, therefore, for you to consider under the evidence before you, is: Did Abram Hartley, during his lifetime, tear, cancel, obliterate, or destroy said will and codicil himself, or by some person in his presence, or by his direction, for there is no claim or evidence tending to show that he, after the execution of the will and codicil, made any new will or codicil, or other writing executed and attested with the formality of a will.

£ The burden of proof, as I have said, is upon the plaintiff, who is contesting this will, to establish that it is not the last will and testament and codicil of Abram Hartley, deceased. That is, the plaintiff must establish in this case, by the weight, or preponderance of the evidence, that Abram Hartley, during his lifetime, tore, cancelled, obliterated, or destroyed said will, or both, with the intention of revoking them.”

It was the- judgment of the circuit court that the last paragraph above quoted was erroneous (and this was the only ground of reversal) because it put upon the contestant the burden of showing that the testator himself- cancelled the .will in some of the ways provided by statute. It seems to have been the opinion of the learned court that the contestant was not required to prove that, but was required to prove only that the will was in the custody of the testator, or that he had ready access to it shortly before his decease, and that it conld not be found shortly thereafter, and that a conclusive presumption would then follow that the testator destroyed it in his lifetime with the intention of revoking it. We are unable to agree with this conclusion. It seems to lose sight of the force and legal effect of the provisions of section 5948, Revised Statutes, which are: ‘ ‘ The contents of any such last will and testament so found, established, and admitted to probate, as aforesaid, shall be effectual to pass real and personal estate, and for all other purposes, as if the original will had been admitted to probate and record, according to the provisions of this title; and such wills shall, in all respects, be governed by the laws in force relating to other wills, not only as relates to the contest of the same, but in all other matters.”

It would seem unnecessary to cite authorities to show that after the copy of the will as probated and the probate had been introduced by the contestees, this statute puts on the contestant the burden of invalidating the will because the establishment by the probate court of a lost or spoliated will is prima facie evidence of the will thus established for all purposes, including all that relate to the contest of the same. It has been uniformly so held in this state. Prima facie, therefore, these three propositions, among others, had been proven, viz.: That the testator had in fact executed a will of which the paper proposed was a true copy; that the will was unrevoked at the time of the death of the testator, and that the will, a copy of which is produced, was lost or spoliated after the decease of the testator. The ground on which the reversal was based involves the proposition that when it was shown that the will was in the custody of the testator, or that he had ready access to it, shortly before his decease, and that the will could not be found after the decease of the testator, the burden of proof shifted to the contestees. This by force of the presumption alleged as being a resulting conclusion of law, that the testator destroyed the will with intent to revoke it. With due respect, we think this, proposition unsound. The burden of proof does not shift. On the contrary, the probate record having-been given in evidence, the jury, before finding for the plaintiff, was required to find from all the evidence introduced, that the writing is not the last will of the testator, or find that it is. Mears v. Mears, 15 Ohio St., 90. Nor is the presumption which follows proof that the original will had been in the custody of the testator and could not be found after his decease a presumption of law; it is not an inference which the law peremptorily requires; not such a presumption as settles conclusively that the testator himself destroyed the will, or one upon which the contestant may rely, as sufficient to justify a verdict; or one which shifts the burden of proof to the defendant. That, under our statute, cannot be. The law does not indulge contradictory presumptions in respect to the same subject-matter at the same time, and it would be irrational to say that the presumption which the statute prescribes as the effect of the probate court record must give way to the inference to be drawn from the fact of custody by the testator and failure to find the will after his decease. The section of the statutes quoted fixes the burden, and we think it is fixed for the particular case permanently and conclusively. The presumption is one of fact merely, an inference drawn from the existence of some other fact, as distinguished from a rule which forbids further inquiry. The latter requires that a certain inference must be made whenever the facts appear which furnish the basis of the inference; the former leaves a discretion, and the inference is to be derived wholly and directly from the circumstances of the particular case. It must be manifest that in the nature of things the idea that the inference is conclusive cannot stand the test of examination. A conclusion must conclude something. It must be the end, the final decision. The inference we are considering concludes nothing, and while it is a presumption of fact to which courts will give due qffect in the absence of any countervailing fact or rule of law, it is not a final disposition of the question. This principle is given as the rule by Schouler on Wills, section 402, where the author observes: “Where it is proved that a will was made and the testator retained custody of it or had ready access to it, the presumption arises, if the will cannot be found after his death, that he destroyed it with the intention of revoking it; although such a presumption may be overthrown by circumstantial or other proof to the contrary.” The same rule is stated by Prof. Freeman in his note to Graham v. Burch, 28 Am. St. Rep., 347, and by Mr. Page in his work on Wills, 521.

It was the duty of the probate court, when the copy was propounded for probate, to give effect and due weight to this presumption. Before that court, the burden was on the proponents to overcome the presumption. Presumably they did so-because the court distinctly found that the will was unrevoked at the time of the testator’s death, and that the will was lost or destroyed subsequent to his death. The finding of these facts was essential to the validity of the judgment rendered, made so by the statute (sec. 5947), and that court having so adjudged, and the copy having been so established, and proof of that and the probate having been duly given at the trial, the burden rested on the contestant, by force of the statute, to overcome, by the preponderance of all the evidence, those essential findings and the judgment of the probate court, and to establish the invalidity of the will. In aid of this effort she received the benefit of the presumption, for the court instructed the jury that “if you find from the evidence that the testator, Abram Hartley, retained custody of them, or had ready access to them, and you further find that they could not be found after his death, a legal presumption is raised that the will and codicil were destroyed by him with the intention of revoking them. ’ ’ The term ‘ ‘ legal presumption, ’ ’ if taken to imply a presumption which the law will recognize, is not inaccurate.

The theory of the plaintiff below was, just as stated in her petition, that the testator himself destroyed the will with intent to revoke the same. It was upon that theory that the case was tried. Asoné step in the maintenance of that theory testimony was given tending to show that the will had been in the custody of the testator some time before his death, and that it could not be found among his papers or in his desk shortly thereafter. The plaintiff was given, in the court’s charge to the jury, all that could fairly be claimed by reason of this condition of the proof, but the ultimate fact to be establislied by tbe plaintiff under ber theory and the testimony adduced, was that the copy probated was not a valid will because the testator himself destroyed it. As to this the burden was on the plaintiff, and the court so charged the jury. In this we think there was no error.

We do not overlook the case of Behrens v. Behrens, 47 Ohio St., 323. A careful consideration of the judgment and syllabus in that case will show, we think, that neither is inconsistent, but rather in accord, with the conclusion reached in this case.

The jury, under what we regard as a clear and well-considered charge, being of opinion that, taking all the evidence together, the plaintiff had not maintained the burden, found for the defendants. There being no error in the record of the common pleas, the. judgment of the circuit court will be reversed and that of the common pleas affirmed.

Reversed.

Davis, C. J., Shauck, Price, Crew and Summers, JJ., concur.


source: Caselaw Access Project

author: Summers, J.

license: Public Domain

text:
    Rodefer et al. v. The Pittsburg, Ohio Valley & Cincinnati Railroad Company.

      Siding constructed by a railroad company to a factory — At the expense of and for the benefit of the factory — May not be maintained by the railroad, when — License revocable • at option of licensor — Law of contracts.

    A siding or switch constructed by a railroad company from its road to a manufactory at. the expense and over the land of the latter, solely for its benefit and for the sole purpose of affording it facilities for receiving and shipping freight, and under a written agreement silent as to the length of time it is to remain, may not be maintained by the railroad company against the objection of the owner of the manufactory; the agreement, so far as the right of the railroad company is concerned, being merely a license revocable at the option of the licensor or his grantee.
    (No. 8394
    Decided April 11, 1905.)
    Error to the Circuit Court of Belmont county.
    On the fifteenth day of January, 1883, the Bellaire "Window Glass Works, the Bellaire Goblet Company and Bodefer Brothers entered into the following contract with the Ohio Valley Bailway Company: “Memorandum of agreement entered into this fifteenth day of May, 1883, by and between the Bellaire Window Glass Works, the Bellaire Goblet Company and Bodefer Brothers, of the first part, and the Ohio Valley Bailway Company, of the second part, in relation to the contract for a railroad from a connection with the Cleveland & Pittsburgh Bailroad Company through South Bellaire, as follows:
    “For the consideration hereinafter mentioned, said parties of the first part agree to pay to said Ohio Valley Railway Company the following sums, to-wit: The said Bellaire Window Grlass Works the sum of $2,000; Rodefer Brothers, $1,250; $250 of the sum subscribed by Rodefer Brothe'rs shall not be payable for six months after the time fixed for payment of the other amounts, said sums to be paid on the condition that the railway company shall on or before the first day of December next, and before any standard gauge track shall be constructed between the points hereinafter named, construct its own road from the point of connection with the Baltimore & Ohio Railroad track, on the property of the Bellaire, Zanesville & Cincinnati Railway Company to a point near the Belmont Coal Works in South Bellaire. Said sums to be paid within thirty days from the time said track is ready for use between said points.
    “It is further agreed that said railway company shall construct a siding or switch from a point in the main track on the lands of Jacob Heatherington into and through Union street in South Bellaire to the north line of the lands of the Bellaire Window Grlass Works, and also a siding on the lands of Rodefer Brothers, at their glass works. Said parties of the second part to provide the necessary right of way for the said first mentioned sidings or switches, and the same to be constructed on or before the first day of December, 1883, or as soon thereafter as said right of way can be provided by said parties of the second part. Said Rodefer Brothers are to furnish’the right of way for last named siding.
    “It is further agreed that no transfer charges shall be made on business passing between the Ohio Valley Railway Company and the Cleveland & Pittsburgh Railroad Company in or out.

      “It is further agreed that until connection shall be made with the Cleveland & Pittsburgh Railroad said Ohio Valley Railway Company shall receive from and deliver to any other standard gauge railroad company connecting therewith at Bellaire, all loaded and empty cars at a charge not to exceed $2.00 a car for loaded cars and no charge for empty cars. And if said railway company shall fail to furnish the motive power to handle said cars, said parties of the first part may employ the motive power of any other railroad company to do said work at customary rates, at the cost of the Ohio Valley Railway Company, and shall have the use of its tracks for said work and pay said Ohio Valley Railway Company therefor the rates above specified.
    “It is further agreed that if the Baltimore & Ohio Railroad refuses to connect with said Ohio Valley Railway Company at the northern boundary of the property of the Bellaire, Zanesville & Cincinnati Railway Company, and the Ohio Valley Railway Company shall fail to furnish the motive power to furnish said power as aforesaid, then said parties of the first part shall have the said connection laid and use said track on the terms above specified until said Ohio Valley Railway Company shall make connection with the Cleveland & Pittsburgh Railroad Company.
    “It is further agreed that all the conditions of this agreement applying to the Ohio Valley Railway Company shall apply to any lessee or successor of said Ohio Valley Railway Company.
    “It is further agreed that said parties of the first part or either of them, shall be entitled to receive stock of said Ohio Valley Railway Company at par for the amount paid by them respectively, if they or either of them so elect at the time of making said payments.
    “And it is further agreed that if said tracks shall not be constructed within the time above specified and on the conditions aforesaid, then this agreement shall be void.”
    The contract was duly signed by the parties, and thereafter they extended the time for performance to February 1, 1885, prior to which time the road, switches and sidings were constructed and the money paid. At that time the plaintiff in error, Thornton A. Rodefer, and his brother, Albert, composed the firm of Rodefer Brothers and owned and operated a glass factory on a tract of land owned by them abutting on the east the right of way of the Bellaire, Zanesville & Cincinnati Railway Company, a narrow gauge railway, and on the south, Twenty-first street in the city of Bellaire. At the time of the commencement of this action Thornton A. Rodefer had succeeded to the rights of said partners and was the sole owner of the factory and real estate and the defendant in error was the successor of the Ohio Yalley Railway Company and had succeeded to all of its rights and had assumed all of its obligations under said contract. In addition to the foregoing the circuit court found the following facts:
    “8. That in constructing the siding mentioned in said contract in front of the glass house property belonging to Rodefer Brothers, as provided in the agreement aforesaid, said siding left the main line of said Ohio Yalley Railway at a point south of the lands of said Rodefer Brothers and of said Twenty-first street, and crossed the tracks of said Bellaire, Zanesville & Cincinnati Railway and thence in a northerly direction by an overhead structure across said Twenty-first street onto the lands of said Rodefer Brothers and thence along and over the lands of said Rodefer Brothers, in front of their glass factory as the same was then located, and said track and siding were located and constructed by the mutual consent and assent of said railway company and said Rodefer Brothers.
    “9. That afterwards, about the year 1892, said glass factory was entirely consumed by fire, and about the year 1893, it was rebuilt by said Rodefer Brothers,' thfe new building being about twice as large as the old, the size of the same being increased by extending the same south of where the old building stood, and the east side of said building was about twenty-one feet west of the east side of the old building.

      1 ‘ 10. That after the new building was constructed said railway company moved its siding by the consent of said Rodefer Brothers, about twenty-one feet west of its original location so as to accommodate itself to the business of said Rodefer Brothers in receiving and discharging freight to the said new glass factory.
    . “11. That after the construction of said railway and the siding aforesaid, the Baltimore & Ohio Railroad Company, which is a common carrier, owning and operating a road for the carrying of freight and passengers, by agreement with the Bellaire, Zanesville & Cincinnati Railway Company, laid a third rail west of the west rail of said Bellaire, Zanesville & Cincinnati Railway Company’s máin line, to enable it by using the east rail of said Bellaire, Zanesville & Cincinnati Eailway Company, and the said third rail, to rnn standard gauge cars over the same; that said third' rail and the east rail of said Bellaire, Zanesville & Cincinnati Eailway was and is used by said Baltimore & Ohio Eailroad for switching cars to various manufacturing plants located in southern Bellaire.
    “12. That said defendant, Thornton A. Eodefer, was about and before the time the rails and tracks mentioned in the petition were torn up and removed, contemplating the erection of an extension to his glass factory, by which it was proposed to extend the same in a southerly direction in a line with the factory building theretofore constructed, about ninety feet. The southeast corner of said property extension was to extend to a point forty-one feet from the north side of said Twenty-first street; that the said defendant, Eodefer, had adopted plans and specifications and had called on contractors and had made contracts for work and material for the erection of said extension. This addition or extension, if placed upon the premises where said Eodefer contemplated putting it, and if placed in line with the east front of the old building, would require the removal of.a part of the siding aforesaid, of said Ohio Valley Eailway Company, at the southeast corner of said contemplated extension or addition, and if completed as contemplated as aforesaid, would occupy about four feet of the ground, at the southeast corner of said contemplated building, which was then occupied by said siding, and would he placed directly on the track of said siding as then located.
    “13. That some considerable time after defendant, Eodefer, had contracted for the erection of said extension or addition to his said glass factory, he gave notice to the said plaintiff to remove the part of its track that would interfere with the erection of said building as contemplated and contracted for, so as not to interfere with the construction of said addition. . And said plaintiff failing to remove its track eastwardly as requested, said defendant, Rodefer, tore up that part of said siding which extended from the north side of said Twenty-first street to a point ninety-seven feet north of the same; and procured the Baltimore & Ohio Railroad Company to build a switch over the same ground a little east of plaintiff’s said switch; that at the time the temporary injunction herein was granted said Rodefer, by his contractor, had completed about four-fifths of the stone foundation for said addition and extension.
    ‘ ‘ 14. That some years prior to the commencement of this suit said Ohio Valley Railway Company had constructed a spur track commencing on said siding where the same crosses the south side of said Twenty-first street, and extending in a southerly direction west of the Bellaire, Zanesville & Cincinnati Railway Company’s main line track and said third rail of said Baltimore & Ohio Railroad in front of the Bellaire Stove Company’s factory; that said spur was constructed for the purpose of enabling said Ohio Valley Railway Company and its successors to receive and discharge freight from the factory of said Bellaire Stove Company, and.in so receiving and discharging the same, it was necessary to run cars onto the siding heretofore mentioned, and then back said cars out onto said spur.
    “15. That the southeast corner of the foundation of the proposed extension or addition is twelve feet and nine inches from the third rail of the Bellaire, Zanesville & Cincinnati Eailway, and if the siding of plaintiff company was bnilt in this space of twelve feet and nine inches, there wonld not be clearance room if standard gauge cars were moving on the Bellaire, Zanesville & Cincinnati third rail and plaintiff’s said switch, i. e., they could not pass each other at the same time; that this want of clearance would extend for about twenty-four feet north of the southeast corner of said extension; that at the point named, both south and north of the same, there is a clear view for several hundred yards, so that switching trains, if using the'siding, and trains of cars using the Bellaire, Zanesville & Cincinnati Eailway for switching purposes, would have full view of any approaching trains or locomotives.
    “16. That Eodefer Brothers or defendant, Thornton A. Eodefer, never conveyed to said Ohio Valley Eailway Company, nor to the plaintiff, by deed, contract or any paper writing, any right of way for a siding over their or his premises except as hereinbefore stated and found.”
    The action was commenced in the court of common pleas of Belmont county in November, 1900, by the railroad company against the plaintiff in error to prevent them from further removing the siding and to require them to restore so much as had been already removed. The facts connecting the defendant, McClain, with the subject of the litigation do not appear, but presumably he was the contractor for Eodefer. The court of common pleas found for the defendants and dismissed the petition. The railway company appealed. The circuit court found the facts as above and granted the relief prayed for. The defendants prosecute error in this court, their contention being that upon the facts found the judgment should have been in their favor.

      Messrs. Driggs & Heinlein and Mr. James G. Tollman, attorneys for plaintiffs in error,
    cited and commented upon the following authorities:

      Hornback v. Railroad Co., 20 Ohio St., 81; Washburn on Easements (4 ed.), 6; 4 Lead. Cas. Am. Law of Real Prop., 128; Nellis v. Munson, 108 N. Y., 453; Wiseman et al. v. Luckinger, 84 N. Y., 31; Cronhite v. Cronkhite, 94 N. Y., 323; 19 Am. & Eng. Ency. Law, 840; White v. Railroad Co., 139 N. Y., 19.

      Messrs. Carey & Mullins and Mr. C. L. Weems, attorneys for defendant in error,
    cited and commented upon the following authorities:

      Hornback v. Railroad Co., 20 Ohio St., 81; Jamieson v. Millemann, 3 Duer, 255; Merrill v. Calkins, 73 N. Y., 584; LeFevre v. LeFevre, 4 Serg. & R., 241; Rerick v. Kern, 14 Serg. & R., 267; Lane v. Miller, 27 Ind., 534; Hodgson v. Jeffries, 52 Ind., 334; Wickersham v. Orr, 9 Ia., 260; Upton v. Brazier, 17 Ia., 157; Russell v. Hubbard, 59 Ill., 335; Cook v. Pridgen, 45 Ga., 331; Lee v. McLeod, 12 Nev., 280; Wilson v. Chalfant, 15 Ohio, 248; Meek v. Breckenridge, 29 Ohio St., 642; Paper Co. v. Hydraulic Co., 8 Circ. Dec., 248; 15 C. C. R., 118; Maxwell v. Bay City Bridge Co., 41 Mich., 467; 13 Am. & Eng. Ency. Law, 539.
   Summers, J.

Plaintiff in error contends that the right given by the contract to thé railway company to construct a siding on his land was merely a license revocable at any time or when it ceased to be useful to tbe owner of tbe land.

Tbe railway company contends that the intention of the parties to the contract was, of Rodefer’s predecessor in title, to secure facilities for sending and receiving freight at its factory, and of the railway company to carry the freight; that the siding still may be used to effect that intention and that so long as it may be so used the right to maintain it subsists; that such a right may be created by contract and that if the right is merely a license then it has been executed and is irrevocable.

In Wolfe v. Frost, 4 Sanford’s Chancery, 72, the assistant vice chancellor defines an easement and a license as follows: “An easement is a privilege, without profit, which the owner of one neighboring tenement has of another, in respect of their several tenements, by prescription or by grant; by which the servient owner is obliged to suffer or not to do something on his own land, for the advantage of the. dominant owner. A license is an authority to do a particular act or series of acts upon another’s land, without possessing any estate therein. A license, when executed, will prevent the owner of the land from maintaining case or trespass for the acts done under it; but it is revocable at pleasure, and will not be a defense to any act done after it is revoked.” In The Greemvood Lake & P. J. Railroad Co. v. The N. Y. & G. L. Railroad Co., 134 N. Y., 435, 439, Vann, J., defines them as follows: “An easement is a right without profit, created by grant or prescription, which the owner of one estate may exercise in or over the estate of another for the benefit of the former. A license is a personal, revocable and non-assignable- privilege, conferred either by writing or parol, to do one or more acts upon land without possessing any interest therein.” Similar definitions may be found in the text-books.

That a right such as is claimed by the railway company to maintain and use in perpetuity a siding for its benefit on the land of the defendant is an easement and not a license is, we think, apparent from a study of the cases, and that a failure to discriminate between them has occasioned much of the confusion that exists upon the question of the revocability of a license. The right indefinitely to maintain and use its track upon the land of the defendant would be in effect an appropriation of it to plaintiff’s use. It would be permanent in its nature and an interest in the land. The Junction Railroad Co. v. Ruggles, 7 Ohio St., 1.

In Cook v. Stearns, 11 Mass., 533, 538, a right to enter on the land of another to’ repair a dam was claimed under a license given by a former owner to build the dam. Chief Justice Parker, speaking of what is technically a license, and of licenses which in their nature amount to the creating of an easement, says: “The distinction is obvious. Licenses to do a particular act do not in any degree trench upon the policy of the law, which requires that bargains respecting the title or interest in real estate shall be by deed or in writing. They amount to nothing more than an excuse for the act, which would otherwise be a trespass. But a permanent right to hold another’s land for a particular purpose, and to enter upon it at all times without his consent, is an important interest, which ought not to pass without writing, and is the very object provided for by our statute. If tbe defendant had a license from tbe former owners of tbe plaintiff’s close, to make tbe bank, dam and canal in tbeir land, tbis extended only to tbe act done, so as to save him from tbeir action of trespass for that particular act; but it did not carry with it an authority, at any future time, to enter upon tbe land. As to so much of tbe license as was not executed, it was countermandable; and transferring tbe land to another, or even leasing it, without any reservation, would of itself, be a countermand of tbe license. For although, when one is permitted to do certain things upon tbe. land of another, an implied authority is given to enter upon tbe land to do the thing, and to repair it, if it is of a permanent nature; yet tbe first permission or license must be by grant, in order to draw after it tbis consequence.”

Permission to cross another’s land or to enter upon it, and to cut a tree, or to do some other act, is very different in its consequences from those arising from tbe execution of a permission to appropriate part of the land, or to erect upon it a permanent fixture. And to call permission to do tbe latter a license, and then to say that when executed it is irrevocable because a license executed is irrevocable, is not only to overlook tbe distinction between an easement and a license but also in a measure to defeat tbe object of tbe statute of frauds and of our laws respecting tbe conveyance of land.

A license may be revoked at any time. What is meant by the statement that a license executed is irrevocable is not that tbe license may not be revoked as to future acts, but that tbe licensor may not recover against tbe licensee for tbe acts already done. It is contended that the rule is otherwise in this state, and Wilson v. Chalfant, 15 Ohio, 248; Hornback v. Cincinnati & Zanesville Railroad Co., 20 Ohio St., 81; and Meek v. Breckenridge, 29 Ohio St., 642, are cited.

The earlier cases were decided when land was cheap, water power a necessity, and the policy of the state to encourage manufacturing. The rule contended for does not seem to have been applied in the later case of Wilkins v. Irvine, 33 Ohio St., 138.

In Jones on Easements, sec. 69, the author says: “Although there are numerous decisions which hold that in equity a permanent license becomes irrevocable after the licensee has expended money on the faith of it, these decisions seem opposed to sound law and to the weight of authority, both in America and in England.” In Crosdale v. Lanigan, 129 N. Y., 604, 610, Andrews, J., says: “There has been much contrarity of decision in the courts of different states and jurisdictions. But the courts of this state have upheld with great steadiness the general rule that a parol license to do an act on the land of the licensor, while it justifies anything done by the licensee before revocation, is, nevertheless, revocable at the option of the licensor, and this, although the intention was to confer a continuing right and money had been expended by the licensee upon the faith of the license. This is plainly the rule of the statute. It is also, we believe, the rule required by public policy. It prevents the burdening of lands with restrictions founded upon oral agreements, easily misunderstood. It gives security and certainty to titles, which are most important to be observed against defects and qualifications not founded upon solemn instruments. The jurisdiction of courts to enforce oral contracts for the sale of land, is clearly defined and well understood, and is indisputable; but to change what commenced in a license into an irrevocable right, on the ground of equitable estoppel, is another and quite different matter. It is far better, we think, that the law requiring interests in land to be evidenced by deed, should be observed, than to leave it to the chancellor to construe an executed license as a grant, depending upon what, in his view, may be equity in the special case.” In White v. Manhattan Railroad Co., 139 N. Y., 19, the court of appeals ruled that: “It seems that an easement to do some act of a permanent nature upon the lands of another cannot be created by a license, even when in writing and executed upon a good consideration; it can only be created by deed, or conveyance operating as a grant,” In Jackson & Sharp Co. v. The Phila., W. & B. Railroad Co., 4 Del. Ch., 180, it is held that: * ‘ It is settled that at law a license can not create or transfer any interest in land. Hence, a mere license affecting land is, at law, always revocable though granted for a valuable consideration, and though the licensee may have expended money on the faith of it. This rule is modified in equity by the principle of equitable estoppel, but equitable estoppel proceeds always on the basis of preventing fraud. Its effect is to restrain the exercise of a legal right, and this even a court of equity can not do unless there has •been such conduct as would render the assertion of the legal right a fraud. The erection of a side track connecting with a railroad, at the expense of plaintiff, and the subsequent expenditure of large sums of money by it in the erection of car works, from which cars were delivered by means of tbe side track, beld not to estop tbe railroad company from revoking tbeir license to connect the side track with tbe company’s track.” However, tbe matter need not be further pursued since tbe case at bar is disposed of on other grounds presently to be stated, and what has been here said is not to be considered as in any Way modifying tbe rule laid down in previous decisions of this court, but is intended merely as a caution against a blind application of a rule.

That tbe railway company has no right to maintain and use tbe siding without permission of tbe owner of tbe land must be concluded from tbe considerations following. Tbe agreement does not purport to grant any interest in tbe land. An interest in tbe land was not necessary to tbe accomplishment of tbe object of tbe agreement, and there is nothing in tbe agreement or in tbe circumstances surrounding tbe parties at tbe time they entered into it from which may be inferred an intention to grant such an interest. Tbe railway company did not pay for the privilege of putting in a siding for its benefit. It received pay for constructing tbe siding on tbe owner’s land and for tbe owner’s sole benefit. No right to use it otherwise is provided for in tbe agreement, nor is it provided that tbe owner shall ship on plaintiff’s road. The contract is with Rodefer Brothers, tbe defendant is not privy to it and not bound by it, and if be does not choose to use tbe siding for shipping or receiving freight what possible benefit could tbe plaintiff derive from maintaining it ? Tbe sole obj ect of tbe agreement, so far as relates to tbe siding, was to secure an accommodation from tbe railway company for tbe owner of tbe land, not to grant to the railway company a privilege in the owner’s land. The siding being on the land of the defendant and solely for his benefit, he may termi-' nate the right to maintain it and may require its removal. The following observations of defendant’s counsel seem pertinent. “This is an important question. Hundreds of manufacturing plants have paid railroad'Companies for building switches on their premises, leading to their factories, which were designed and intended for their accommodation only, and if it is the law that when the railroad company builds the switch its interest in the ground on which the switch is built is superior to that of the owners to extend or remodel their factories; that the railroad company, by so doing, acquires a. permanent easement in or interest in the grounds on which the switch is located that is superior to all rights of the owners, then it is high time that the manufacturing plants were finding it out. ’ ’

The judgment of the circuit court is reversed and upon the facts found judgment is rendered for the plaintiff in error and the petition is dismissed.

Reversed and judgment for plaintiff in error.

Davis, C. J., Price and Spear, JJ., concur.


author: Crew, J.

text:
    The Pennsylvania Company v. Loftis.

      Railroad company selling coupon ticket — To passenger over its own.and connecting line — Makes itself liable for passenger over entire route, when — Question of contract by railroad company — Presumption that selling company is agent for the connecting line, when — Competency of parol evidence — Railroad corporations — Contracts.
    1. While a railroad company selling a coupon ticket for the transportation of a passenger over its own and a connecting line, may, by contract either express or implied, make itself responsible for the safe carriage of the passenger over the entire route covered by the ticket sold, yet the mere sale of such coupon ticket does not of itself import a contract or undertaking on the part of the company selling the same to become responsible for the safety of the passenger beyond its own line.
    2. Where a railroad company issues and sells a coupon ticket with coupons attached good over a connecting line, in the absence of other evidence the presumption is, that as to. such coupons the company issuing and selling the same, in ■making such sale, acts as the agent of the connecting carrier.
    3. It is competent to prove by parol evidence, aside from the ticket sold, the contract made between the carrier and the passenger.
    (No. 9088
    Decided April 11, 1905.)
    Error to the Circuit Court of Stark county.
    Catharine Loftis, who was the wife of the defendant in error, John Loftis, on May 9, 1898, purchased from the plaintiff in error, the Pennsylvania Company, at its ticket office in Alliance, Ohio, an excursion ticket from Alliance to Columbus and return. The ticket issued to her was a special excursion coupon ticket containing four coupons, and was in form as follows:

      After procuring the ticket she -boarded an excursion train at Alliance on the Pennsylvania lines and entered upon her journey to Columbus. The Pennsylvania Lines extended only from Alliance to Orr-ville. When the excursion train reached Orrville the coaches of said train, including the one in which said Catharine Loftis was a passenger, were switched to the track of the Cleveland, Akron & Columbus Railway, a connecting line, over which line they were then run from Orrville to Columbus. As the train was entering the city of Columbus it was, by reason of the spreading of the track, derailed, several of the coaches were overturned and broken and several of the passengers were injured, one person being killed. Among those injured was Catharine Loftis. Thereafter, to-wit, on April 22, 1902, her husband, John Loftis, the defendant in error herein, brought an action in the court of common pleas of Stark county, Ohio, against the plaintiff in error, the Pennsylvania Company, to recover damages for the loss of the services of his said wife, Catharine Loftis, and to recover for doctor bills incurred and paid by him for her in consequence'of the injuries sustained by her in said accident. The petition filed by him in said action contained the following averments with respect to the contract to carry, alleged to have been made by the Pennsylvania Company with said Catharine Loftis, to-wit:
    On or about the eighth day of May, 1898, one Catharine Loftis, then and now the wife of this plaintiff, entered into a contract with the defendant, whereby the defendant, in consideration of the sum of two dollars ($2.00), to it paid, thereby agreed to accept said Catharine Loftis as a passenger on its cars and convey her as snch passenger the entire distance, from the city of Alliance, Ohio, to the city of. Columbus, Ohio, and return, Over the lines of the defendant,, the Pennsylvania Company, and said 0 Catharine Loftis was to. he conveyed the entire route in the cars of the defendant without any change of cars whatever.
    On or about the eighth day of May, 1898, in pur-. suance of said contract, said Catharine Loftis, purchased and paid the defendant for a ticket for the entire trip from Alliance, Ohio, to Columbus, Ohio, and return, over the defendant’s lines, and on said date Catharine Loftis took passage in defendant’s cars as designated by the defendant for the purpose of said trip, and the defendant thereupon undertook to convey plaintiff from said city of Alliance to said city of Columbus and return in its cars, and over its lines.
    For answer, the Pennsylvania Company, after admitting its corporate capacity and that it was a common carrier of passengers, denied each and every other allegation in plaintiff’s petition contained. The case was submitted to a jury and resulted in a verdict and judgment in favor of the plaintiff, John Loftis, for $300. This judgment was affirmed by the circuit court. To reverse this judgment of affirmance the Pennsylvania Company prosecutes error.

      Messrs. Carey & Mullins and Mr. C. C. Bow, attorneys for plaintiff in error.
    A railroad company which sells a coupon ticket over its own and connecting lines to a point on one of such connecting lines and collects fare for the entire distance is regarded as acting agent for each of the connecting lines. The coupons are regarded as distinct tickets over such lines, and the selling company is not liable for an accident occurring' beyond its own lines. 2 Redfield on Railways (3 ed.), 227; (4 ed.), sec. 401; 2 Rorer on Railways, 974; Hutchinson on Carriers, sec. 152; 4 Elliott on Railroads, sec. 1596; 25 Am. & Eng. Ency. Law (1 ed.), 1085; Knight v. Railroad Co., 56 Me., 234; Railroad Co. v. Connell, 112 Ill., 295; Railroad Co. v. Mulford, 162 Ill., 522; Young v. Railroad Co., 115 Pa. St., 112; Hood v. Railroad Co., 22 Conn., 1; Railroad Co. v. Sprayberry, 9 Heisk. (Tenn.), 857; Milnor v. Railroad Co., 53 N. Y., 365.
    A clear distinction is made by the authorities between carriers of goods including baggage, and carriers of passengers.

    In the case of the former it is held that a carrier who bills goods to a point beyond its own terminus or who issues a through check for the baggage of a passenger who has paid fare to a point on a connecting line is liable for loss or damage to such goods or to the passenger for loss or damage to his baggage, and in that case the connecting carriers are held to be the agents of the carriers issuing the through check. The rule being exactly opposite to that in the case of passengers themselves. 2 Redfield on Railways (3 ed.), 227; 2 Wood’s Railway Law, 1033, 1034; Hutchinson on Carriers, sec. 464; 2 Rorer on Railways, 1001; 4 Elliott on Railroads, sec. 1658; Railroad Co. v. Weaver, 9 Lea (Tenn.), 38; Hartan v. Railroad Co., 114 Mass., 44.
    Ohio has adopted, the same distinction and holds that the issuance of a through check for baggage makes the carrier liable for loss on connecting lines. Railway Co. v. Campbell, 36 Ohio St., 647.

      Messrs. Craine & Snyder, attorneys for defendant in error.
    Whatever difference there may be between the authorities on other questions, it is settled that a common carrier may contract to carry the entire distance, both over its own and connecting lines. Shear-man & Redfield, sec. 503.
    In the absence of any testimony or circumstances, excepting the bare sale of a ticket, the authorities are somewhat in conflict as to whether or not the law implies a contract to carry the entire distance or not. The authorities which hold, as we think, that the law implies a contract to carry the entire distance under such circumstances, are: Railroad Co. v. Campbell, 36 Ohio St., 647; Railway Co. v. Pontius, 19 Ohio St., 221; Chech v. Railroad Co., 12 Dec. Re., 146; 2 Disn., 237, 245; Shearman & Redfield, 503; Railroad Co. v. Roach, 35 Kan., 740; Railroad Co. v. Copeland, 24 Ill., 338; Candee v. Railroad Co., 21 Wis., 593, 594, 595; Wheeler v. Railroad Co., 31 Cal., 46; Quimby v. Vanderbilt, 17 N. Y., 306; 2 Redfield on Railways, 228; Najac v. Railroad Co., 7 All., 329; Talcott v. Railroad Co., 66 Hun, 459; Washington v. Railroad Co., 101 N. C., 239.
    The fact that the passenger has baggage can make no wholesome distinction, as the baggage is simply an incident and is carried by reason of the passenger’s ticket and his contract for carriage.
    But after all, was not the question whether or not there was a contract, in this case, for carriage the entire distance, one for the jury to determine under all the circumstances and surroundings?

      Whether or not the contract of carriage is for the entire distance is a question of fact to be determined by the jury, under all circumstances and surroundings. Weed v. Railroad Co., 19 Wend., 534; Williams v. Vanderbilt, 28 N. Y., 221; Gary v. Railroad Co., 29 Barb., 41, 42; Williams v. Vanderbilt, 29 Barb., 491; Van Buskirk v. Roberts, 31 N. Y., 661.
    The ticket was not the contract, but simply a token. Railway Co. v. Mortal, 8 Circ. Dec., 134; 18 C. C. R., 562; Burdick v. People, 149 Ill., 600; Railroad Co. v. Mulford, 162 Ill., 531; Prank v. Ingalls, 41 Ohio St., 563.
    In addition to the sale of the ticket, the fact that the plaintiff in error advertised in such a manner as to induce the plaintiff to believe that it would carry the entire distance, is an important piece of evidence. Railroad Co. v. Walrath, 38 Ohio St., 466; Pennsylvania Co. v. Roy, 102 U. S., 451.
   Crew, J.

The two principal contentions of the plaintiff in error in this ease are: 1. That it was not shown by competent evidence that there was any contract or undertaking on the part of the Pennsylvania Company to become responsible for the transportation of Catharine Loftis beyond the terminus of its own line, and therefore that it is not liable for the injury received by her through the default or negligence of the Cleveland, Akron & Columbus Railway, a connecting line. 2. That the court of common pleas erred in refusing to give to the jury certain instructions requested by counsel for the railway company. If counsel for plaintiff in error are right as to either of these contentions, it follows, that the judgment of the circuit court was wrong and should be reversed. As to the first of the above propositions counsel would seem to rest tbeir claim upon the assumption that the coupon ticket issued to Catharine Loftis by the Pennsylvania Company was and is itself the only proper evidence in this case of any undertaking or agreement on its part to receive and carry said Catharine Loftis as a passenger from Alliance to Columbus and return, and that therefore, as a common carrier, it is not shown to have assumed towards her any other or different duty or obligation than such as the sale of said ticket would itself imply. As to a common carrier of passengers, as distinguished from a carrier of goods or baggage,' the doctrine would seem now to be generally well settled that the mere issuance and sale by the former of a coupon ticket good over its own and connecting lines, does not of itself import an undertaking or agreement on the part of the issuing or selling company to become responsible for the safe carriage of the passenger to whom such ticket is sold beyond its own line. Yet it is equally true, and not less well settled, we think, that a railway company selling a ticket for the transportation of a passenger beyond its own line of road, may by contract either express or implied make itself responsible for the safe carriage of such passenger over the entire route covered by the ticket sold. Hutchinson on Carriers, secs. 577, 578; 4 Elliott on Railroads, sec. 1596; Young v. Pennsylvania Railroad Co., 115 Pa., 112; Pennsylvania Railroad Co. v. Cornell, 112 Ill., 295; Hartan v. Eastern Railroad Co., 114 Mass., 44; Pennsylvania Railroad Co. v. Jones, 155 U. S., 333; Van Buskirk v. Roberts, 31 N. Y., 661; 3 Thompson on Negligence, sec. 3352. And where, as in this ease, the scope and extent of the contract made, or the duty and obligation assumed by the railway company, is a fact in issue, the ticket sold is not itself the only evidence that may be introduced and considered upon such issue, but the fact may be shown or proved by any competent parol testimony. In the present case it was alleged by plaintiff in his petition that the Pennsylvania Company “in consideration of the sum of two dollars to it paid; thereby agreed to accept said Catharine Loftis as a passenger on its cars and convey her as such passenger the entire distance from the city of Alliance, Ohio, to the city of Columbus, Ohio, and return, over the lines of the defendant, the Pennsylvania Company, and said Catharine Loftis was to be conveyed the entire route in the cars of the defendant without any change of cars whatever.” As tending to prove the particular agreement and undertaking so alleged, evidence was introduced by plaintiff showing that, sometime prior to May 8,1898, the Pennsylvania Company caused to be inserted in the Alliance Daily Leader, a newspaper published in the city of Alliance, the following advertisement: “Special Sunday excursion to Columbus via Pennsylvania Lines, May 8th, next Sunday; two dollars round trip. Excursion tickets will be sold to Columbus from Alliance, via Pennsylvania Lines, special train leaving at 6:45 A. M. central time, returning, leave Columbus 6:30 P. M. All day to see the Capitol City. Ohio National Guards are encamped at'Columbus.” The obvious purpose of this notice was to advise and inform the public that on the day and at the time named therein, a special excursion train would be run from Alliance to Columbus and return over or “via” the Pennsylvania Lines, and that round trip tickets would be sold by the Pennsylvania Company,for said excursion good for the round trip. This notice came to the attention of Catharine Loftis and the matter of said excursion was talked over by her with members of her family before she procured her ticket. This advertisement contained no information or notice that said excursion train would be run over any line other than the Pennsylvania Lines; and Catharine Loftis had no notice of any limitation on the responsibility of the Pennsylvania Company, or that said company would not be in entire charge and control of said excursion train from Alliance to Columbus and return. Evidence was also given showing that for the ticket sold to said Catharine Loftis a single charge was made for the entire trip and that payment therefor was made to and received by the ticket agent of the Pennsylvania Company at its office in Alliance. It was further shown that this was a special excursion train, and as made up when it left Alliance, was composed entirely of coaches belonging to the Pennsylvania Company and that these coaches were intended to be and were run through from Alliance to Columbus without change. These with other facts and circumstances proven in this ease, while not of themselves conclusive upon the question of the contract made or obligation and duty assumed by the Pennsylvania Company, were nevertheless, we think, competent to be given in evidence as bearing upon that question, and as tending to show on its part, an entire contract or undertaking to carry from Alliance to Columbus and return. Being competent as evidence, their probative force, and the weight and effect to be given them, in the light of all the facts and circumstances proven, was a question, to be determined by tbe jury under proper instructions from tbe court.

2. On tbe trial of tbis cause in tbe court of common pleas, counsel for tbe railway company submitted to tbe court certain requests to charge among wbicb were tbe following:

■ “1. A railroad company wbicb sells a coupon ticket over its own and a connecting line is presumed, in tbe absence of evidence to tbe contrary, to act as tbe agent for tbe connecting line, and is not liable to tbe purchaser of such ticket, for injuries sustained by reason of tbe negligence of such connecting line.

“2. If tbe jury find that in selling plaintiff’s wife a ticket to Columbus and return — if they do find that such a ticket was sold — tbe defendant was acting as agent for tbe Cleveland, Akron & Columbus Railway Company, so far as passage over that .road was concerned, tbe plaintiff cannot recover in tbis action.

“3. Tbe fact that tbe defendant at tbe time it sold plaintiff’s wife her ticket to Columbus (if tbe jury find that it did sell such ticket), and collected fare for tbe entire distance, is not, of itself, sufficient to warrant tbe jury in finding that defendant bad contracted to carry tbe plaintiff’s wife any further than tbe end of its own line, wbicb tbe testimony shows was at Orrville. ’ ’

These requests were all of them pertinent to tbe issues involved, and each correctly states tbe rule of law applicable to tbe particular state of facts to wbicb it was intended to apply. They should therefore have been given to tbe jury. As hereinbefore stated the sale by a railroad company of a coupon ticket containing coupons entitling the person to whom it is sold to transportation as a passenger over a connecting but independent line, does not necessarily import a contract or undertaking on the part of the company selling such ticket to become responsible for the safe carriage of such passenger for the entire distance, or beyond its own line, even though such ticket contains no express provision limiting the liability of the company issuing or selling the same to its own line of road. Unless the contrary appears the presumption is, that a railway company selling such coupon ticket over connecting but independent lines, in making such sale acts as the agent of the connecting line in the sale of the coupons and said coupons are regarded as in the nature of separate tickets on behalf of the connecting carriers, and binding upon them in the same manner as if issued or sold by themselves, and in the absence of evidence showing a different undertaking or obligation each will be responsible only for the safe carriage of the passenger over its own line. The above instructions asked by the railway company, merely called for the application of these rules of law to facts which there was evidence in the case tending to prove or establish, and we think therefore the trial court erred in refusing to give them. Other special requests were submitted by counsel for the railway company, but these we think were either properly refused or sufficiently covered by the general charge. The refusal of the court of common pleas to give to the jury the requests above designated, being one of the errors assigned by the railway company in the circuit court, that court erred in affirming the judgment of said court of cotutu on pleas. ■ The judgment of the circuit court in this case will therefore be reversed.

Judgment reversed.

Davis, C. J., Shauck, Price and Summers, JJ., concur.


text:
    The Pennsylvania Company v. Charles Loftis, Admr.
    [Syllabus the same as in ease No. 9088, The Pennsylvania Company y. John Loftis, supra.]

    (No. 8585
    Decided April 11, 1905.)
    Error to the Circuit Court of Stark county.

      Messrs. Carey & Mullins, for plaintiff in error.

      Messrs. Craine & Snyder, for defendant in error.
   Crew, J.

This action was originally commenced by Catharine Loftis in the court of common pleas of Stark county, against the plaintiff in error to recover damages for personal injuries sustained by her in an accident to an excursion train on the line of the Cleveland, Akron & Columbus Railway while she was traveling as a passenger on said train upon a round trip excursion ticket from Alliance to Columbus and return, which ticket had been purchased by her from the agent of the plaintiff in error, the Pennsylvania Company, at its ticket office in Alliance. There was a verdict and judgment in her favor for the sum of $500 and this judgment was affirmed by the circuit court. Since the trial of this case in the court of common pleas Catharine Loftis died, and the defendant in error, Charles Loftis, was appointed her administrator. The cause of action in this case grows out of substantially the same state of facts as in the case of The Pennsylvania Company v. John Loftis, No. 9088, and a restatement of these facts is therefore unnecessary. The principal controversy in this case, as in case No. 9088, was as to the responsibility of the plaintiff in error, the Pennsylvania Company, for the injury received by Catharine Loftis beyond its own line, and whether or not it could be made to respond in damages for injuries received by her on the line of the Cleveland, Akron & Columbus Railway, a connecting carrier. Upon this question the evidence in both cases was substantially the same. In the present ease, however, the instructions which were asked by the railway company in case No. 9088, and which the court in that case refused to give, were in this case submitted and given to the jury. Being of the opinion in this case, as in case No. 9088, that there was sufficient evidence to make it proper for the court to submit it to the jury to say whether or not under the facts and circumstances proven, the contract or undertaking of the Pennsylvania Company was an entire contract to carry said Catharine Loftis from Alliance .to Columbus and return, and it appearing that this question, with the question of the liability of the plaintiff in error, was fairly submitted to the jury under proper instructions, we think the judgment of the circuit court affirming the judgment of the court of common pleas should be and it is

Affirmed.

Davis, C. J., Shauck, Price and Spear, JJ., concur.