text:
    No. 12814.
    The East Liverpool Traction & Light Co. v. The City of East Liverpool.
    Decided December 17, 1912.
    Error to Circuit Court of Columbiana county.

      Messrs. Brookes & Thompson and Messrs. Billingsley & Clark, for plaintiff in error.

      Mr. William H. Vodrey and Mr. W. F. Lones, for defendant in error.
    Judgment modified and affirmed as modified.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed for error in reversing the entire judgment of the court of common pleas, in this, to-wit: This court finds that the proper construction of the contract pleaded in plaintiff’s petition authorized the city of East Liverpool, on the date of the execution of such contract or at any time during the term of said contract, to reduce the number of arc lights then and on that day being furnished by said plaintiff in error to the defendant in error, to 165, and the further right to reduce the incandescent street lights, then being furnished by said plaintiff in error to defendant in error, to 25. That by the further provisions of this contract the defendant in error had the right at its option to increase the number of lights specified in paragraph seven of the contract to such further number of arc or incandescent lights as its needs might require, but that, having so increased this number, it had no right or authority under said contract to again decrease the same to the minimum number specified in the contract, but that such increased number must be read into paragraph seven of the contract instead of the original provision thereof as the minimum to which such lights might be decreased. It is admitted that at the time of the making and entering into this contract the plaintiff was furnishing to the city 178 arc lights and 41 incandescent lights, so that the city then had and continued to have the right to reduce such number at its pleasure to 165 arc lights and 25 incandescent lights, and that it did exercise its authority in that behalf and did properly order the discontinuance of the same, and to the extent of that number of lights the plaintiff in error is not entitled to receive any payment from the defendant in error, and the judgment of the common pleas court is excessive to the extent of 13 arc lights at $5.50 per month per light, amounting to $71.50, and 16 incandescent lights at $2.33 1/3 per month per light, amounting to $37.33, amounting in the aggregate to $108.83, and that the proper judgment to be entered for the plaintiff in the common pleas court, allowing for the outages agreed upon, is $77.44, with interest from March 1, 1909. And this court coming now to render the judgment that the circuit court should have rendered,

It is ordered and adjudged that the judgment of the common pleas court be modified by the reduction of said judgment by the aggregate cost of the lights that the city was authorized by its contract to discontinue, to-wit, $108.83, and that the said The East Liverpool Traction & Light Company have and recover from the city of East Liverpool, Ohio, the sum of $77.44, with interest from March 1, 1909, at six per cent, per annum.

Davis, C. J., Spear, Shauck and Donahue, JJ., concur. Johnson and O’Hara, JJ., dissent.


source: Caselaw Access Project

license: Public Domain

text:
    No. 12834.
    The Cleveland & Pittsburgh Railroad Co. v. The Village of South Newburgh.
    Decided December 17, 1912.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.

      Mr. H. B. How.ells, village solicitor, and Messrs. Westenhaver, Boyd, Rudolph '& Brooks, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12843.
    The City of Toledo v. Cooley.
    Decided December 17, 1912.
    Error to Circuit Court of Lucas county.

      Mr. Cornell Schreiber, city solicitor, and Mr. Ashton H. Coldham, for plaintiff in error.

      Mr. M. O. Rettig and Messrs. Mulholland & Hartmann, for defendant in error.
   Judgment affirmed.

Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12844.
    The City of Toledo v. Tressler.
    Decided December 17, 1912.
    Error to Circuit Court of Lucas county.

      Mr. Cornell Schreiber, city solicitor, and Mr. Ashton H. Coldham, for plaintiff in error.

      Mr. Karl A. Flickinger, for defendant in error.
   Judgment affirmed.

Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 12905.
    Goodson v. Goodson, Exr.
    Decided December 17, 1912.
    Error to Circuit Court of Madison county.

      Messrs. Murray & Emery, for plaintiff in error.

      Mr. A. T. Cordray; Mr. R. H. McCloud and Mr. John A. Lincoln, for defendant in error.
   Judgment affirmed.

Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 13048.
    Rock v. The Monarch Building Co. et al.
    Decided December 17, 1912.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Ong, Thayer & Mansfield, for plaintiff in error.

      Messrs. Howland, Moffett & Niman and Mr. H. O. Yoder, for defendants in error.
   Judgment reversed and cause remanded for judgment on authority of Rock v. The Monarch Building Co. et al., ante, 244.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13063.
    Hall v. Hall et al.
    Decided December 17, 1912.
    Error to Circuit Court of Hamilton county.

      Anne S. Hall, for plaintiff in error.

      Mr. John C. Healy and Mr. B. C. Fox, for defendants in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13064.
    Hall v. Paxton.
    Decided December 17, 1912.
    Error to Circuit Court of Hamilton county.

      Anne S. Hall, for plaintiff in error.

      Mr. Murray Seasongood, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13065.
    Hall v. Paxton.
    Decided December 17, 1912.
    Error to Circuit Court of Hamilton county.

      Anne S. Hall, for plaintiff in error.

      Mr. Murray Seasongood, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., ' concur.


text:
    No. 13066.
    Hatten v. Weilbacher et al.
    Decided December 17, 1912.
    Error to Circuit Court of Franklin county.

      Mr. George H. Jones and Mr. Harry A. Clarke, for plaintiff in error.

      Mr. Stephen A. Sharp and Messrs. Wilson & Rector, for defendants in error.
   Judgment affirmed.

Spear, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13067.
    Strong, Cobb & Co. v. Jaffa.
    Decided December 17, 1912.
    • Error to Circuit Court of Cuyahoga county.

      Mr. T. H. Bushnell, for plaintiff in error.

      Mr. William T. Clark, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck and Donai-iue, JJ., concur.


text:
    No. 13078.
    Meyer v. The Iroquois Company.
    Decided December 17, 1912.
    Error to Circuit Court of Franklin county.

      Messrs. Bates, Meyer & Bates and Mr. Elmer E. Murphy, for plaintiff in error.

      Mr. James A. Allen, for defendant in error.
   Judgment affirmed on authority of Dowty v. Pepple et al., 58 Ohio St., 395.

Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 13079.
    Meyer v. The Iroquois Company.
    Decided December 17, 1912.
    Error to Circuit Court of Franklin county.

      Messrs. Bates, Meyer & Bates and Mr. Elmer E. Murphy, for plaintiff in error.

      Mr. James A. Allen, for defendant in error.
   Judgment affirmed on authority of Dowty v. Pepple et al., 58 Ohio St., 395.

Spear, Johnson and O’Hara, JJ., concur.


text:
    No. 13248.
    Davis, Exr., et al. v. Collings.
    Decided December 17, 1912.
    Error to Circuit Court of Cuyahoga county.

      Mr. Arthur D. Baldwin, for plaintiffs in error.

      Messrs. Laubscher & Kees, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13276.
    Allstatter v. Allstatter, Exrx., et al.
    Decided December 17, 1912.
    Error to Circuit Court of Butler county.

      Messrs. Shotts & Millikin and Mr. A. D. Shockley, for plaintiff in error.

      Messrs. Andrews, Harlan & Andrews and Mr. Sam D. Fitton, Jr., for defendants in error.
   Judgment affirmed.

Davis, C. J., Spear, Shauck and O’Hara, JJ., concur.


text:
    No. 12678.
    Lacey v. The Farmers’ & Mechanics’ National Bank of Cadiz.
    Decided December 19, 1912.
    Error to Circuit Court of Harrison county.

      Mr. Albert O. Barnes, for plaintiff in error.

      Mr. R. H. Minteer, for defendant in error.
   Judgment affirmed.

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


text:
    No. 12845.
    The Lake View Land & Improvement Co. v. Schatzinger et al.
    Decided December 19, 1912.
    Error to Circuit Court of Cuyahoga county.

      Mr. Frank Higley, for plaintiff in error.

      Mr. Paul G. Kassulker, for defendants in error.
   Judgment affirmed.

Davis, C. J., Spear; Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13295.
    The State of Ohio v. Cook.
    Decided December 19, 1912.
    Error to Circuit Court of Muskingum county.

      Mr. Timothy S. Hogan, attorney general, and Mr. Charles F. Kibble, prosecuting attorney, for plaintiff in error.

      Messrs. McDermott & Porter, for defendant in error.
   Judgment affirmed.

Davis, C. J., Spear, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13311.
    Tracy v. The State of Ohio.
    Decided December 19, 1912.
    Error to Circuit Court of Muskingum county.

      Messrs. McDermott & Porter, for plaintiff in error.

      Mr. Charles F. Kibble, prosecuting attorney, for defendant in error.
    Judgment reversed. Ground stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed; for the reason that it appears from this record that the only evidence offered by the state, by which it sought to establish that the plaintiff in error was guilty of the offense charged in the affidavit, was the evidence tending to prove that she is the owner of the legal title to the premises in which the offense was committed, and the finding and judgment of the common pleas court is, therefore, not sustained by any evidence.

Davis, C. J., Spear, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13312.
    Morrison v. The State of Ohio.
    Decided December 19, 1912.
    Error to Circuit Court of Muskingum county.

      Messrs. McDermott & Porter, for plaintiff in error.

      Mr. Charles F. Ribble, prosecuting attorney, for defendant in error.
    Judgment modified and affirmed. Ground-stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same is, hereby modified in this respect, to-wit:

That all that portion of the judgment and sentence of the court, commanding and requiring that said plaintiff in error be confined in the joint county and city workhouse of the county of Muskingum and city of Zanesville, Ohio, “until said bond is entered into as above specified,” is hereby reversed and set aside and held for naught, and stricken from said judgment, the said common pleas court having no authority of law to make such an order of commitment in default of such bond, but should have ordered that, in default of such bond, within a day to be named by the court, the place where such liquor is sold, furnished or given away for beverage purposes, should be abated, and in all other respects said judgment and sentence of the common pleas court is affirmed.

Davis, C. J., Spear, Johnson, Donahue and O’Hara, JJ., concur.


text:
    No. 13381.
    Kizzee v. The Bird Iron Co.
    Decided December 19, 1912.
    Error to Circuit Court of Lawrence county.

      Mr. A. R. Johnson; Mr. A. J. Layne and Mr. Dan C. Jones, for plaintiff in error.

      Messrs. Andrews & Irish; Mr. L. K. Cooper and Messrs. Bannon & Bannon, for defendant in error.
    Judgment modified and cause remanded to court of common pleas. Ground stated in journal entry.
   It appearing upon the record that the circuit court, among other reasons, reversed the judgment of the common pleas on the ground that the judgment was against the manifest weight of the evidence, said judgment of reversal is, therefore, affirmed under Rule XIX of this court. And it further appearing that the circuit court entered a final judgment in said cause, such final judgment of said circuit court is reversed, set aside and held for naught, for error of the court in entering the same, it appearing that there is a substantial conflict of evidence in this record. And said cause is remanded, to the court of common pleas for a new trial and further proceedings according to law.

Spear, Johnson, Donai-iue and O’Hara, JJ., concur.


text:
    No. 13528.
    The Hocking Valley Railway Co. v. Backus.
    Decided December 19, 1912.
    Error to Circuit Court of Lucas county.

      Mr. John F. Wilson and Messrs. Brown, Geddes, Schmettau & Williams, for plaintiff in error.

      Mr. Charles H. Masters and Messrs. Kohn, Northup & Morgan, for defendant in error.
   Judgment affirmed.

Davis, C. J., Joi-inson and O’Hara, JJ., concur.


text:
    No. 13126.
    Robertson v. The Youngstown Sheet & Tube Co.
    Decided January 14, 1913.
    Error to Circuit Court of Mahoning county.

      Mr. Edmond H. Moore and Messrs. W. S. Anderson & Son, for plaintiff in error. Messrs. Hine, Kennedy S’ Manchester; Mr. M. A. Norris and Mr. George E. Rose, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13341.
    Frederick, Admx., v. The Buck Coal Co.
    Decided January 14, 1913.
    Error to Circuit Court of Columbiana county.

      Mr. K. L. Cobourn and Messrs. Metzger S’ Smith, for plaintiff in error.

      Messrs. Billingsley, 'Clark & Moore, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13518.
    The Fath Construction Co. v. Bausmerth et al., Admrs.
    Decided January 21, 1913.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Ford, Snyder S Tilden, for plaintiff in error.

      Messrs. Kerruish, Kerruish, Hartshorn ■& Spooner, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13524.
    The Peoples Railway Co. v. Helkey.
    Decided January 21, 1913.
    Error to Circuit Court of Montgomery county.

      Messrs. McMahon & McMahon and Mr. R. G. Corwin, for plaintiff in error.

      Mr. George C. Rawlins and Mr. Clem V. Collins, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13570.
    Reiber v. The Mahoning Valley Railway Co.
    Decided January 21, 1913.
    Error to Circuit Court of Mahoning county.

      Messrs. W. S. Anderson & Son, for plaintiff in error.

      Messrs..Arrel, Wilson, Harrington & DeFord, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13678.
    Goodloe et al. v. Barbour et al.
    Decided January 21, 1913.
    Error to Circuit Court of Hamilton county.

      Messrs. Mallon & Vordenberg and Mr. Clyde C. Dawson, for plaintiffs in error.

      Mr. Frank A. Collins; Mr. John A. Collins; Mr. A. J. Cunningham, Jr.; Mr. Oscar Stoehr; Mr. J. B. Foraker; Messrs. Worthington & Strong; Messrs. Harmon, Colston, Goldsmith & Floadly; Mr. Lazvrence Maxwell and Mr. Joseph W. O’Hara, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13003.
    Chamberlain v. Stecher, Admr. de bonis non.
    Decided January 28, 1913.
    Error to Circuit Court of Wyandot county.

      Messrs. Carey & Carey and Messrs. Finley & Gallinger, for plaintiff in error.

      Messrs. Newell & Bowers and Mr'. D. C. Parker, for defendant in error.
    On cross-petition in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13128.
    Downing v. The Cincinnati, Hamilton & Dayton Railway Co.
    Decided January 28, 1913.
    Error to Circuit Court of Montgomery county.

      Messrs. Nevin, Nevin & Kalbfus and Mr. Charles FI. Kumler, for plaintiff in error.

      Messrs. Snediker & Marshall, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Donahue and Wilkin, JJ., concur.


text:
    No. 13403.
    The Cincinnati Traction Co. v. Ginnochio, Admr.
    Decided January 28, 1913.
    Error to Circuit Court of Hamilton county.

      Messrs. Kittredge, Wilby & Stimson; Messrs. Paxton, Warrington & Seasongood and Mr. R. E. Simmonds, Jr., for plaintiff in error.

      Messrs. Black & Black, for defendant in error.
   Judgment affirmed on authority of The Mahoning Valley Ry. Co. v. Van Alstine, Admr., 77 Ohio St., 395.

Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13463.
    The Cincinnati Traction Co. v. Maguire, Admx.
    Decided January 28, 1913.
    Error to Circuit Court of Hamilton county.

      Messrs. Kittredge, Wilby & Stimson; Messrs. ;Paxton, Warrington & Seasongood and Mr. Robert S. Marx, for plaintiff in error.

      Mr. D. T. Hackett and Mr. Paul P. Rover, for defendant in error.
   Judgment affirmed on authority of The Mahoning Valley Ry. Co. v. Van Alstine, Admr., 77 Ohio St., 395.

Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13535.
    The Cleveland City Forge & Iron Co. v. Welch.
    Decided January 28, 1913.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Reed & Eichelberger, for plaintiff in error.

      Mr. Harry F. Payer, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13572.
    The State, ex rel. Allan, v. North et al., Commissioners of Fish and Game for Ohio, et al.
    Decided January 28, 1913.
    Error to Circuit Court of Franklin county.

      Messrs. Guerin & Ritter and Messrs. Arnold & Game, for plaintiff in error. Mr. T. S. Hogan, attorney general, and Mr. B. S. Johnson, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13615.
    Roose, Auditor, et al. v. The State, ex rel. The Village of Leipsic.
    Decided January 28, 1913.
    Error to Circuit Court of Putnam county.

      Mr. Timothy S. Hogan, attorney general; Mr. J. W. Smith, prosecuting attorney; Mr. P. E. Dempsey and Mr. Clarence D. Laylin, for plaintiffs in error.

      Mr. Walter S. Stevenson, city solicitor, and Mr. A. A. Slaybaugh, for defendant in error.
   Judgment affirmed on authority of The State, ex rel. Toledo, v. Sanzenbacher, 84 Ohio St., 506.

Shauck, C. J., Donahue, Wanamaker and Newman, JJ., concur.


text:
    No. 13663.
    Erie Railroad Co. v. Wood.
    Decided January 28, 1913.
    Error to Circuit Court of Richland county.

      Messrs. Cummings, McBride & Wolfe and Messrs. Cushing, Siddall & Palmer, for plaintiff in error.

      Messrs. Skiles, Green & Skiles and Messrs. Carter, Carter & Carter, for defendant in error.
   Judgment affirmed.

Jopinson, Donahue, Wanamaker and Newman, JJ., concur.


text:
    No. 12859.
    The Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Subrizi, Admr.
    Decided February 4, 1913.
    Error to Circuit Court of Hamilton county.

      Messrs. Maxwell & Ramsey, for plaintiff in error.

      Messrs. Bodes, Meyer & Bates, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas court affirmed.


text:
    No. 12862.
    Shauck, C. J., Johnson, Donahue, Newman and Wilkin, JJ., concur.
    Rinehart et al. v. Price.
    Decided February 4, 1913.
    Error to Circuit Court of Columbiana county.

      Mr: P. M. Smith and Messrs. Brookes & Thompson, for plaintiffs in error.

      Mr. W. F. Lones and Mr. W. H. Spence, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker and Newman, JJ., concur.


text:
    No. 12869.
    The City of Ironton v. Harrison Construction Co.
    Decided February 4, 1913.
    Error to Circuit Court of Lawrence county.

      Mr. O'. E. Irish, city solicitor, and Mr. A. R. Johnson, for plaintiff in error.

      Messrs. Lum, Tamblyn & Colyer and Messrs. Paxton, Warrington & Seasongood, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 12872.
    Doty v. Norfolk & Western Ry. Co.
    Decided February 4, 1913.
    Error to Circuit Court of Lawrence county.

      Mr. L. R. Andrews and Mr. J. L. Anderson, for plaintiff in error.

      Mr. L. K. Cooper and Messrs. Bannon & Bannon, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 12898.
    The Mahoning Valley Ry. Co. v. Mayyou, by etc.
    Decided February 4, 1913.
    Error to Circuit Court of Trumbull county.

      Messrs. Arrel, Wilson & Harrington and Messrs. F'illius & Fillius, for plaintiff in error.
    Messrs, Gillmer & Gillmer and Mr. G. P. Gillmer, for defendant in error.
   Judgment affirmed.

Si-iauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 12909.
    The Steubenville & Wheeling Traction Co. v. Paulman.
    Decided February 4, 1913.
    Error to Circuit Court of Jefferson county.

      Messrs. Erskine & Smith, for plaintiff in error.

      Mr. Frank L. McCoy and Mr. Carl Armstrong, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13069.
    Logue v. Nachtrieb et al.
    Decided February 4, 1913.
    Error to Circuit Court of Wayne county.
    ■ Mr. M. L. Spooner; Mr. John McSweeney and Mr. H. R. Smith, for plaintiff in error.

      Mr. Wayne FI art and Mr. James B. Taylor, for defendants in error.
    Judgment affirmed. Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13367.
    The Brookside Brick Co. v. Spano.
    Decided February 4, 1913.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Reed,

      Russell & Eichelberger, for plaintiff in' error.

      Mr. B. D. Nicola and Messrs. Ulmer & Bernstein, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13391.
    Johnson et al., Commissioners, v. Shaw.
    Decided February 4, 1913.
    Error to Circuit Court of Logan county.

      Mr. Ernest Thompson and Mr. John A. Price, for plaintiffs in error.

      Mr. H. N. Quigley and Mr. W. S. Plum, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker and Newman, JJ., concur.


text:
    No. 13416.
    Geer v. The State of Ohio.
    Decided February 4, 1913.
    Error to Circuit Court of Tuscarawas county.

      Mr. T. PI. Loller and Mr. J. F. Greene, for plaintiff in error.

      Mr. W. V. Wright; Mr. T. J. Russell and Mr. W. B. Stevens, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13515.
    Norfolk & Western Ry. Co. v. Spears.
    Decided February 4, 1913.
    Error to Circuit Court of Lawrence county.

      Messrs. Ban-non ■& Bannon and Mr. Theodore W. Reath, for plaintiff in error.

      Mr. J. O. Yates and Messrs. Johnson & Jones, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur:


text:
    No. 13531.
    The Board of Education of LaBelle Special School District v. The State, ex rel. McCowen.
    Decided February 4, 1913.
    Error to Circuit Court of Lawrence county.

      Mr. A. R. Johnson; Mr. Dan C. Jones and Mr. Joseph C. Riley, for plaintiff in error.

      Mr. A. J. Layne, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13546.
    The Marine Boiler Works Co. v. Baker.
    Decided February 4, 1913.
    Error to Circuit Court of Lucas county.

      Mr. Frank H. Geer, for plaintiff in error.

      Mr. C. JJ. Masters and Mr. Ralph Emery, for defendant in error.
    Judgment reversed on grounds stated in journal entry.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be and the same is hereby reversed; the court find that the circuit court erred in affirming the judgment of the court of common pleas, and, coming now to render the judgment which the circuit court should have rendered, it is hereby ordered and adjudged that the judgment of the common pleas court be reversed for error in the admission of evidence relating to the device used in the shop of plaintiff in error in opening and closing the windows, prior to the time of the employment of the defendant in error, and this cause is remanded to the court of common pleas for a new trial and further. proceeding, according to law.

Shauck, C. J., Johnson, Donahue, Wana- • maker and Newman, JJ., concur.


text:
    No. 13556.
    Rackle et al., Partners as George Rackle & Sons, et al. v. Connors, Exrx., et al.
    Decided February 4, 1913.
    Error to Circuit Court of Cuyahoga- county.

      Mr. G. M. Skiles and Mr. Frank M. Cobb, for plaintiffs in error.

      Mr. Joseph L. Stern and Messrs. FJenry & McGraw, for defendants in error.
   Judgment affirmed.

Donahue, Wanamaker and Newman, JJ., concur.


text:
    No. 14030.
    The State, ex rel. Koehne, v. Ebert, Clerk of Courts.
    Decided February 4, 1913.
    In Mandamus.

      Messrs. Broenstrup & Aten, for relator.

      Mr. Robert C. Patterson, prosecuting attorney, for respondent.
   Peremptory writ allowed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 12930.
    Sitler, Exr., et al. v. Nimon.
    Decided February 11, 1913.
    Error to Circuit .Court of Columbiana- county.

      Mr. W. E. Warren :.and Mr. C. S. Speaker, for plaintiffs in error.

      Mr. W. S. Potts, for defendant in error.
   Judgment of the circuit court reversed and judgment for plaintiffs in error on authority of Barr v. Denney et al., 79 Ohio St., 358.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 12931.
    The Galion Iron Works Co. v. Payne et al., Partners as The Leader Plow Co.
    Decided February 11, 1913.
    Error to Circuit Court of Crawford county.

      Mr. W. J. Geer, for plaintiff in error.

      Mr. Frank Pigman, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas court affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 12934.
    The Gem City Concrete Co. et al. v. Siders.
    Decided February 11, 1913.
    Error to Circuit Court of Montgomery county.

      Mr. Francis M. Thompson; Mr. E. Thompson; Mr. George W. Osias; Mr. Benjamin F. McCann and Mr. J. D. Miller, for plaintiffs in error.

      Messrs. Munger & Kennedy, for defendant in error.
   Judgment affirmed, it appearing that the' judgment of reversal in the circuit court involved the weight of the evidence.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13010.
    The Columbus & Southern Ry. Co. v. Shaw.
    Decided February 11, 1913.
    Error ■to Circuit Court • of Hocking county.

      Messrs. Wilson & Rector, for plaintiff in error.

      Mr. C. V. Wright and Mr. F. N. R.-Redfern, for defendant in error.
   Judgment of the circuit court reversed on the cross-petition in error and that of the common pleas affirmed.

Johnson, Donahue, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13025.
    Wilder v. Taylor et al., Exrs., et al.
    Decided February 11, 1913.
    Error to Circuit Court of Hamilton county.

      Mr. Joseph W. O'Hara, for plaintiff in error.

      Messrs. Kittredge, Wilby & Stimson and Mr. Robert Ramsey, for defendants in error.
    Judgment reversed.
   It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed; this court finding that there was sufficient evidence offered by the plaintiffs in the court below to require that the said cause should have been submitted to the jury, and that, therefore, the court erred in sustaining the motion of the defendant to instruct the jury to find a verdict sustaining the will.

Johnson,' Donahue, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13431.
    Gandy et al., Partners as O. Gandy & Co., v. Lahmer et al., Exrs., et al.
    Decided February 11, 1913.
    Error to Circuit Court of Tuscarawas county.

      Messrs. Graham & Stafford, for plaintiffs in error.

      Messrs. Pomerene & Pomerene and Mr. J: G. Patrick, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Donahue and Newman, JJ., concur.


text:
    No. 13580.
    The Massillon Iron & Steel Co. v. Wiegand.
    Decided February 11, 1913.
    Error to Circuit Court of Stark county.

      Messrs. Welty & Albaugh, for plaintiff in error.

      Messrs. Taylor & Stewart; Mr. George W. Kratsch and Messrs. Pomerene, Ambler & Pomerene, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13659.
    The F. E. Schumacher Co. v. Phillips.
    Decided February 11, 1913.
    Error to Circuit Court of Stark county.

      Messrs. Pomerene, Ambler & Pomerene, for plaintiff in error.

      Messrs. Webber & Turner, for defendant in error.
   Judgment affirmed.

Johnson, Wanamaker and Wilkin, JJ., concur.


text:
    No. 12927.
    The Toledo University of Arts & Trades v. Hamilton et al., Exrs., et al.
    Decided February 18, 1913.
    Error to Circuit Court of Lucas county.

      Mr. Charles A. Seiders, for plaintiff in error.

      Mr. Cornell Schreiber, city solicitor; Mr. B. A. Hayes and Messrs. Hamilton

      & Kirby, for defendant in error.
   Judgment affirmed.

Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 12940.
    Reaugh et al. v. Rose et al.
    Decided February 18, 1913.
    Error to Circuit Court of Cuyahoga county.

      Mr. Robert E. McKisson, for plaintiffs in error.

      Mr. Frank Higley, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 12942.
    McCallip, Trustee, v. Denmead et al., Exrs., et al.
    Decided February 18, 1913.
    Error to Circuit Court of Franklin county.

      Mr. Howard Ferris; Mr. J. W. Mooney and Mr. Edmund Smith, for plaintiff in error.

      Mr. Henry C. Taylor; Messrs. Gumble & Gumble and Mr. William J. Ford, for defendants in error.
   Judgment reversed and judgment for plaintiff in error.

Shauck, C. J., Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 12951.
    The Meridian Printing Co. et al. v. Hunt.
    Decided February 18, 1913.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Gage, Wilbur & Wachner, for plaintiffs in error.

      Mr. Charles F. Morgan, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman arid Wilkin, JJ., concur.


text:
    No. 12958.
    Remington v. The Fire-Proof Warehouse Co. et al.
    Decided February 18, 1913.
    Error to Circuit Court of Cuyahoga county.

      Mr. Harold Remington and Messrs. Hills & Van Derveer, for plaintiff in error.

      Messrs. Henderson, Quail & Siddall, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 12964.
    Sponseller et al. v. The Board of County Commissioners of Seneca County et al.
    Decided February 18, 1913.

      Messrs. Finley & Gallinger, for plaintiffs in error.

      Mr. Harry P. Black, prosecuting attorney, and Messrs.. McCauley & Weller, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 12965.
    Fillmore v. The Frank P. Hall Co.
    Decided February 18, 1913.
    Error to Circuit Court of Franklin county.

      Messrs. Sherman & Sherman, for plaintiff in error.

      Messrs. Vorys, Safer, Seymour & Pease, for defendant in error.
   Judgment of the circuit court reversed and that of the court of common pleas affirmed.

Shauck, C. J., Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 12968.
    Knepper v. Zeis, Admr., et al.
    Decided February 18, 1913.
    Error to Circuit Court of Seneca county.

      Messrs. Wagner & Knepper and Messrs. Dore & Dore, for plaintiff in error.

      Mr. J. C. Royer and Messrs. McCauley & Weller, for defendants in error.
   Judgment of the circuit court reversed on authority of Hills v. Ludwig et al., 46 Ohio St., 373, and that of the common pleas court affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13340.
    Platt v. Barfield, Treasurer, et al.
    Decided February 18, 1913.
    Error to Circuit Court of Lucas county.

      Mr. J. J.' Waldvogel and Mr. C. F. Watts, for plaintiff in error.

      Mr. 'Cornell Schreiber, city solicitor, and Mr. B. A. Hayes, for defendants in error.
   Judgment affirmed.

Shauck, C. J., Donahue and Newman, JJ., concur.


text:
    No. 13624.
    The Stolzenbach Baking Co. v. Van Zant.
    Decided February 18, 1913.
    Error to Circuit Court of Allen county.

      Messrs. Cable & ■Parmenter, for plaintiff in error.

      Messrs. Armstrong, Light & Shappell, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wana.maker, Newman and Wilkin, JJ., concur.


text:
    No. 12973.
    The City of Cincinnati v. Morrissey.
    Decided February 25, 1913.
    Error to Circuit Court of Hamilton county.

      Mr. Edward M. Ballard, city solicitor, and Mr. Constant South-worth, assistant city solicitor, for plaintiff in error.

      Mr. Rogers Wright; Mr. Nathaniel Wright and Mr. John E. Fitzpatrick, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ-, concur.


text:
    No. 12981.
    The Union Savings Bank & Trust Co. v. Dreifus.
    Decided February 25, 1913.
    Error to Circuit Court of Hamilton county.

      Mr. Lawrence Maxwell' and Mr. Joseph S. Gray-don, for plaintiff in error.

      Mr. Lem S. Miller and Mr. William D. James, for defendant in error.
   Judgment of the circuit court reversed and that of the superior court affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13002.
    Niebruggie, Admr., v. Brannon.
    Decided February 25, 1913.
    Error to Circuit Court of Crawford county.

      Mr. G. W. Coble; Mr. R. V. Sears; Mr. Benjamin Meek and Mr. B. J. Cattey, for plaintiff in error.

      Messrs. Finley & Gallinger and Messrs. Mabee & Anderson, for defendant in error.
   Judgment of reversal affirmed and final judgment for defendant in error on his cross-petition in error.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13266.
    Owens et al., Partners as John D. Owens & Son, v. Clark, Admr., et al.
    Decided February 25, 1913.
    Error to Circuit Court of Marion county.

      Messrs. Scoñeld & Durfee and Messrs. Copeland & Bartram, for plaintiffs in error. Messrs. Eyman & Thompson; Messrs. Mouser & Moloney and Messrs. Quigley & Johnson, for defendants in error.
   Judgment affirmed.

Johnson, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13347.
    The Erie Railroad Co. v. Reid, Admx.
    Decided February 25, 1913.
    Error to Circuit Court of Wayne county.

      Messrs. Cushing,

      Siddall & Palmer and Mr. John McSweeney, for plaintiff in error.

      Mr. A. D. Metz and Mr. Eugene Carlin, for defendant in error.
   Judgment affirmed.

Johnson, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13366.
    The Aultman & Taylor Machinery Co. v. Lowman, Admx.
    Decided February 25, 1913.
    Error to Circuit Court of Richland county.

      Mr. L. B. Bacon, for plaintiff in error. Mr. W. S. Kerr and Mr. William F. Voegele, Jr., for defendant in error.
   Judgment affirmed.

Johnson', Wanamaker and Wilkin, JJ., concur.


text:
    No. 13392.
    Renner, Jr., v. Brennan, Admx.
    Decided February 25, 1913.
    Error to Circuit Court of Mahoning county.

      Messrs. Seaton & Paine, for plaintiff in error. Mr. D. F. Anderson, for defendant in error.
   Judgment affirmed.

Johnson, Wanamaker and Wilkin, JJ., concur.


text:
    No. 13636.
    The State, ex rel. Village of Pleasant Ridge, etc., v. Kellerman, Treasurer.
    Decided February 25, 1913.
    Error to Circuit Court of Hamilton county.

      Mr. Charles B. Smith, for plaintiff in error. Messrs. Bennett & Utter, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson and Donahue, JJ., concur.


text:
    No. 13670.
    The State of Ohio v. Eisenstein.
    Decided February 25, 1913.
    Exceptions to Common Pleas Court of Shelby county.

      Mr. Charles C. Flail, prosecuting attorney, and Mr. W. J. Emmons, for the exceptions. Mr. Charles C. Marshall, against the exceptions.
   Exceptions overruled.

Spiauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13671.
    The State of Ohio v. Roach.
    Decided February 25, 1913.
    Exceptions to Common Pleas Court of Athens county.

      Mr. John J. Woolley, prosecuting attorney, for the exceptions. Mr. Israel M. Foster, against the exceptions.
   Exceptions sustained on authority of State v. Kelly, 54 Ohio St., 166.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin,'JJ., concur.


text:
    No. 13774.
    Fry v. The State of Ohio.
    Decided February 25, 1913.
    Error to Circuit Court of Darke county.

      Mr. Theodore Shockney; Mr. Edwin C. Wright; Mr. O. R. Krickenberger and Mr. Robert R. Nevin, for plaintiff in error. Mr. John F. Maher, prosecuting attorney; Mr. D. W. Bowman and Mr. A. IT. Meeker, for defendant in error.
   Judgment affirmed.

Shauck, C. J., Johnson; Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    No. 13775.
    Turner v. The State of Ohio.
    Decided February 25, 1913.
    Error to Circuit Court of Darke county.

      Mr. J. M. Bickel; Mr. George W. Mannix, Jr., and Mr. Martin B. Trainor, for plaintiff in error. Mr. .John F. Maher, prosecuting attorney; Mr. D. W. Bowman and Mr. A. H. Meeker, for defendant in error.
   Judgment affirmed.

Johnson, Donahue, Wanamaker and Newman, JJ., concur.


text:
    No. 13800.
    The State, ex rel. Orr, v. The Board of Education of the City School District of Cleveland et al.
    Decided February 25, 1913.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Higley & Maurer, for plaintiff in error. Mr. E. K. Wilcox, city solicitor, for defendants in error.

   Judgment affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


author: Wilkin, J.

text:
    Cole v. McClure, et al.

      Rule of supreme court in considering evidence in trial court— Evidence required to, establish will, lost or destroyed—Before death or insanity of testator—Degree and certainty of evidence to overcome presumption of revocation.

    1. On review of the record of a trial below, this court will not consider the mere weight of the evidence, but where the law requires in the particular case a higher quality and quantity of evidence than is sufficient in ordinary cases to support a judgment by the preponderance of proof, this court will consider whether the evidence attains to that high ■ degree of probative force and certainty. (Ford v. Osborne, 45 Ohio St., 1, followed and approved.)
    2. To establish a lost or destroyed will the evidence of its execution and its contents must be clear, strong, positive, free from bias, and convincing beyond a reasonable doubt

      3. Where a will has been lost or destroyed before the death of the testator, the law presumes that he revoked it; and where he became insane after he made the will, the evidence to overcome this presumption must be certain, satisfactory and conclusive that it was unrevoked and in existence after he became “incapable by reason of insanity to make a will.”
    (No. 13828
    Decided May 6, 1913:)
    Error to the Circuit Court of Darke county.
    May 20, 1911, the probate court of Darke county established and admitted to probate the will of Henry M. Cole, deceased, upon the application of Elmer Cole, John Cole; William Cole and Geo. W. McClure, who alleged that. the. original will had been lost or destroyed.
    The court found that in August, 1904, Henry M. Cole did execute a last will in the mode provided by law, and that he was then of sound mind and memory, but that he became insane in the latter part of the year 1907; that the will became lost or destroyed after the said Henry became insane and that it could not be produced; and then, upon the evidence of papers and testimony submitted, the court established the contents of the will, “as near as can be ascertained,” as follows:
    “In the name of the Benevolent Father of All, I, Henry M. Cole of the County of Darke and State of Ohio, do hereby make and publish this my last will and testament, to-wit.:
    “I give to my beloved wife, Elizabeth Porter Cole, all my property, both real and personal, for and during her natural life, and after her death the same shall go to my brothers and sisters equally or their legal heirs.

      “I nominate and appoint my brother-in-law, T. S. Brewer, to be the executor of this my last will.
    “In testimony whereof, I have hereunto subscribed my name, this......day of.'...-.., 1904.
    “Henry M. Cole.
    “Signed and acknowledged by Henry M. Cole as his last will and testament in our presence, and signed by us in his presence, on the day and year last aforesaid. “D. W. Bowman,
    “W. G: Stubbs."
    The deceased had no children, but his wife Elizabeth survived him, and he left an' estate consisting chiefly of lands.
    May 20, 1911, Elizabeth, the widow, filed in the court of common pleas, a petition to contest the probate of the will, alleging that Henry M. Cole died intestate on the 19th of February, 1909, leaving an estate which came to him by purchase and not by descent,- devise or deed of gift, and leaving no children or other legal representatives surviving him, but leaving his widow, the plaintiff, his only heir at law; that he left William, John and Elmer Cole, brothers, Belle Brewer, a sister, and George W. McClure, the only child of a deceased sister, surviving' him; that ■ the writing' established and recorded as the lost or destroyed will of Henry M. Cole is not the last will; that he never executed it; and that he revoked and destroyed it, of his own free volition, prior to his death and prior to the time he became insane, and it was not in existence at the time of his death nor at the time he became incapable of making a will by reason of his insanity; and she prayed that an issue be made, whether said writing so admitted to probate and recorded as the lost or destroyed will of Henry M. Cole be his last will, and that it be set aside.
    September 28, 1911, the defendants filed their answer, denying that Henry never executed the alleged will, that he destroyed it prior to his death and to the time he became insane, and averring that it was in existence long after he became incapable by reason of insanity.
    The issue thus made was tried to a jury, February 8, 1912, who returned a verdict finding in favor of the will as established by the probate court. Motion for a new trial was entered and overruled, and judgment was entered upon the verdict. Error was prosecuted to the circuit court, and the judgment was affirmed. The plaintiff in error invokes this court to reverse the judgment of both courts below.

      Mr. George W. Porter; Messrs. Bickel Baker; Mr. D. W. Bowman and Mr. William T. Spear, for plaintiff in error.
    It may be said that this question involves a consideration of the evidence, and by the provisions of Section 12253, General Code,.this court is not required to determine the weight of the evidence, and will not consider it to determine whether the verdict is contrary to law or whether substantial justice has been done. Finley v. Whitley, 46 Ohio St., 524.
    But we insist that an action to establish a lost will requires more than a mere preponderance. Evidence must b£ clear, positive and convincing. Whether that rule has been disregarded is a question of law, and this court will look into the evidence for this purpose. Ford v. Osborne, 45 Ohio St., 1; Olinger v. McGuffey, 55 Ohio St., 661; Shulters v. City of Toledo 57 Ohio St., 667; Stewart v. Gordon, 60 Ohio St., 170; Potter v. Potter, 27 Ohio St., 84; Missionary Society v. Ely et al., 56 Ohio St., 405; Mears v. Mears, 15 Ohio St., 90; Converse et al. v. Starr, Admr., etc., et al., 23 Ohio St., 491; Haynes v. Haynes, 33 Ohio St., 598; Bolles v. Harris, 34 Ohio St., 38; Dew et al. v. Reid et al., 52 Ohio St., 519.
    The establishment of a lost will by the probate court is prima facie evidence for all purposes, including all that relates to a contest of the same. Hutson v. Hartley, 72 Ohio St., 267.
    But the only effect of the prima facie case is to transfer the burden of proof to the contestants. Whether Judge Cole executed the will in question, and if so, whether lost or destroyed, are open questions to be determined upon all the evidence. Mears v. Mears, 15 Ohio St., 102; Hutson v. Hartley, 72 Ohio St., 268.
    The rule is well established that in such a case the evidence must be strong, positive and convincing. Southworth v. Adams, 11 Biss., 256; Newell v. Homer, 120 Mass., 277; In re Johnson's Will, 40 Conn., 587; Davis et al. v. Sigourney, 8 Metc., 487; Clark v. Turner, 50 Neb., 290; 23 Am. & Eng. Ency. Law (2 ed.), 147; In re Lasance, 5 N. P., 20.
    . To establish a lost will requires clear, strong and irrefragible evidence, free from suspicion or doubt in its sources, exact and certain in its conclusions. Podmore v. Whatton, 3 Swab. & T., 449, 33 L. J. Prob. N. S., 143, 10 Jur. N. S., 756, 10 L. T. N. S., 754; Moore v. Whitehouse, 3 Swab. & T., 567, 11 L. T. N. S., 458, 34 L. J. Pro., 31.
    To prove the execution of a lost will by parol evidence only, such evidence should be most clear, satisfactory, stringent and conclusive. Cutto v. Gilbert, 9 Mo. P. C., 131; Buechle’s Estate, 5 Pa. Dist. R., 127; Clark v. Turner, 50 Neb., 290, 38 L. R. A., 441; Estate of Gibson, 1 N. P., N. S., 552; Chisholm's Heirs v. Ben, 7 B. Mon., 408.
    A lost will thus established shall be as effectual to pass title to real estate as if the original will had been admitted to probate and record. Section 10548, General Code. The rules should not be less strict therefore than in the case of a lost deed (Gilmore v. Fitzgerald, 26 Ohio St., 171; Slipman v. Telschow, 4 C. C., N. S., 635; Diehl v. Stine, 1 C. C., 520, 1 O. C. D., 287); or to correct a mistake in a deed (Shulters v. City of Toledo, 57 Ohio St., 667); or to engraft a trust on an absolute deed by paro.l. The evidence must, beyond reasonable doubt, prove the existence of the trust, its terms and conditions. Russell v. Bruer, 64 Ohio St., 5; Miller v. Stokely, 5 Ohio St., 195; Stall v. Cincinnati, 16 Ohio St., 169; Smith v. Neff, 5 N. P., 496, 5 Dec., 449; 3 Redfield on Wills (3 ed.), 16.
    Section 10546, General Code, requires the court to be satisfied of the due execution and contents of the lost will, that it was unrevoked at the death of the testator, and was lost or destroyed since his death, or after he became insane. To be satisfied means not only that proof must be clear and convincing, büt beyond all reasonable doubt. 1 Greenleaf on Evidence (16 ed.), Section 2; Mo. Pac. Ry. Co. v. Bartlett, 81 Tex., 42; Baines v. Ullman, 71 Tex., 537; Lessee of Blackburn v. Blackburn, 8 Ohio, 81; Russell v. Russell, 6 C. C., 294, 3 Cir. Dec., 460; Kelch v. State, 55 Ohio St., 146; C. H. & D. Ry. Co. v. Frye, 80 Ohio St., 289; Thayer v. Boyle, 30 Me., 475; 1 Jones on Evidence (1 ed.), 6; 2 Rockel Probate Practice (2 ed.), Sec. 1149; In re Sinclair’s Will, 5 Ohio St., 290; Section 10543, General Code.
    The mere fact that it could not be found subsequent to his death or after he became insane raises a legal presumption that he destroyed it animo r evo candi. Behrens v. Behrens, 47 Ohio St., 323; Hutson v. Hartley, 72 Ohio St., 262; Thomas v. Thomas, 129 Ia., 160; Knapp v. Knapp, 10 N. Y., 277; Williams v. Miles, 68 Neb., 463; Bauskett v. Keitt, 22 S. Car., 187; Boyle v. Boyle, 158 Ill., 228; Gardner v. Gardner, 177 Pa. St., 219; Mann v. Balfour, 187 Mo., 307; Sugden v. St. Leonards, 45 L. J. P., 49, 1 P. D., 154, 34 L. T., 372; 1 Underhill on Wills, Sec. 272; Page on Wills, Sec. 442; 1 Jarman on Wills (6 ed.), 159.
    Even though the will was seen in his possession a short time before his death, or before he became insane, the rule is the same. Collyer v. Collyer, 110 N. Y., 481; Estate of Gibson, 1 N. P., N. S., 552, 6 C. C., N. S., 269, 72 Ohio St., 677; 1 Redfield on Wills (3 ed.), *307; Behrens v. Behrens, 47 Ohio St., 323.

      Messrs. Meeker & Gaskill and Messrs. Robeson & Yount, for defendants in error.
    Circumstantial evidence alone may be sufficient to justify a finding for the will. Page on Wills, Secs. 436, 437; Schultz v. Schultz, 35 N. Y., 653.
    In most jurisdictions, declarations of the testator are admissible to establish the contents of the lost will in whole or in part. Page on Wills, Sec. 441; 14 Ency. of Evidence, 465, 469; Muller v. Muller, 108 Ky., 517; Clark v. Turner, 50 Neb., 290; McDonald v. McDonald, 142 Ind., 55; Schnee v. Schnee, 61 Kans., 647; In re Hope’s Appeal, 48 Mich., 518; In re Lambie’s Estate, 97 Mich., 49; Southworth v. Adams, 11 Biss., 260; In re Page, 118 Ill., 576; Mann v. Balfour, 187 Mo., 290.
    There was sufficient evidence to sustain the will. 3 Ency. of Evidence, 728.
    The contents of a destroyed will may be proved by the testimony of a single witness. In re Page, 118 Ill., 576; Dan v. Brown, 4 Cow. N. Y., 483; Welch v. Welch, 2 T. B. Mon., 83; Jauncey v. Thorne, 2 Barb. Ch., 40; Graham v. O’Fallon, 4 Mo., 601; Dickey v. Malechi, 6 Mo., 177; Baker v. Dobyns, 4 Dana, 220; Wyckoff v. Wyckoff, 16 N. J. Eq., 401; Anderson v. Irwin, 101 Ill., 411; Varnon v. Varnon, 67 Mo. App., 634; 14 Ency. of Evidence, 472.
    The entire will need not be proven. In re Patterson, 155 Cal., 626, 26 L. R. A., N. S., 654; Page on Wills, Sec. 434; Banning v. Banning, 12 Ohio St., 437; Cahill v. Owens, 3 Dec. Rep., 8; Jones v. Casler, 139 Ind., 382; Tarbell v. Forbes, 177 Mass., 238; 14 Ency. of Evidence, 470;
      Estate of Kidder, 66 Cal., 487; In re Johnson’s Will, 40 Conn., 587; Dickey v. Malechi, 6 Mo., 177; Morris v. Swaney, 7 Heisk., 591.
    This will was not revoked. Wyckoff v. Wyckoff, 16 N. J. Eq., 401; In re Page, 118 Ill., 576; Dan v. Brown, 4 Cow. N. Y., 483; Dickey v. Malechi, 6 Mo., 177; Coddington v. Jenner, 57 N. J. Eq., 528; Southworth v. Adams, 11 Biss., 256; Mann v. Balfour, 187 Mo., 290; McDonald v. McDonald, 142 Ind., 55; In re Patterson, 155 Cal., 626; In re Steinke’s Will, 95 Wis., 121; Schultz v. Schultz, 35 N. Y., 653; Williams v. Miles, 68 Neb., 463; Gardner v. Gardner, 177 Pa. St., 218; Gardner’s Estate, 164 Pa. St, 420; Hutson v. Hartley, 72 Ohio St., 262.
   Wilkin, J.

The grounds of reversal assigned in plaintiff’s brief are: (1) The verdict and judgments below are contrary to law, (2) admissions of incompetent testimony, (3) refusal to give certain instructions of law to the jury, and (4) errors in the general charge.

The first assignment challenges the sufficiency of the evidence produced at the trial, to establish a lost or destroyed will. ' While this court is not required to weigh the evidence in a case on error, and ordinarily will not do so, yet where relief is sought that can be afforded only upon clear and convincing proof, it will do so for the purpose of determining whether the proof was sufficient. Minshall, J., in Stewart v. Gordon, 60 Ohio St., 170, 174, citing Ford v. Osborne, 45 Ohio St., 1.

The standard of evidence in cases like the one at bar has been defined by the courts and text-writers in language somewhat variant but in import the same. For example: The burden of proof is on a party seeking to establish a lost will by parol evidence, to prove its contents by evidence strong, positive and free from doubt. Newell v. Homer, 120 Mass., 277; Davis v. Sigourney, 8 Metc., 487. The evidence must be clear, certain and conclusive as to its execution and its provisions and conditions. Russell v. Bruer, 64 Ohio St., 1; Miller v. Stokely, 5 Ohio St., 194; Clark v. Turner, 50 Neb., 290, 301. Where a will, unrevoked, has been lost or destroyed its contents may be proved bjr parol, but the fact that it was not revoked must be established by clear and satisfactory proof. In re Johnson’s Will, 40 Conn., 587.

■ In the Connecticut case, the court expounds the rule thus: “The court ought to be satisfied, not only that the character and standing of the witness .are entirely above suspicion, but that he is capable of expressing with clearness and accuracy the precise meaning of the original will. Not only so, but the circumstances ought to be such as afford no suspicion of the trustworthiness of his recollection, and he should be free from bias or interest. * * * This strictness is requisite in order that courts may be sure .that they are giving effect to the will of the deceased and not making a will for him.” In Chisholm’s Heirs v. Ben, 7 B. Mon., 408, Marshall, C. J., declares: “If there be not some stringency in the rule of proof, * * * if a doubtful inference * * * is to authorize the establishment of a will, * * * an inducement and opportunity may be offered for setting up spurious wills, the. prevention of which is no less the subject of the statute and of the law, than is the frustration of the fraud which would suppress a valid will.”

The legal policy of the rule is hinted at m a note to 3 Redfield on Wills (3 ed.), 16, thus: “There are so many motives which might induce the suppression of a will, * * * the possible motives for such an act are so infinitely diversified, that it will always be next to impossible to guard against all possibility of fraud and imposition; * * * and it is safe to act upon that degree of incredulity, in all such matters, which will be sure to expose any suppression of it (the will) from sinister designs. A copy of an alleged lost will is obviously more satisfactory than any amount of testimony dependent upon the memory of witnesses.”

“By satisfactory evidence, which is sometimes called sufficient evidence, is intended that amount of proof which ordinarily satisfies an unprejudiced mind, beyond a reasonable doubt.” 1 Green-leaf on Evidence (16 ed.), Sec. 2. “Evidence is said to satisfy the mind when it is such as frees the mind from doubt, suspense or uncertainty.” Baines v. Ullman, 71 Tex., 537. “To ‘satisfy’ a body of men of the truth of a disputed fact, requires much more than a preponderance of the evidence. Clear and convincing evidence must be adduced.” Bradbury, J., in Kelch v. State 55 Ohio St., 146.

The case made in the transcriot before us does not bear the test which the law applies to it. Henry M. Cole was a lawyer and lately a common pleas judge. In 1903 he drew his own will with his own hand. It appears that he made two drafts, possibly three. It is apparent that three witnesses attested these drafts, but if any two of them signed the same draft, the evidence fails to show which draft they signed, for not one of them read the document he signed or heard it read; the nearest identification is each draft was in the testator’s handwriting upon iegai-cap paper ruled.

One of these drafts was attested by a Mr. 'Bowman. No other witness had subscribed to it when he signed it, and he never saw it after-wards. One of the drafts was signed by a Mr. Stubbs, and if it was attested, by whom Stubbs does not remember, but he thinks that the name of Daisy Burtch was not signed. Daisv Burtch signed as a witness to one of the drafts Another witness had signed that paper, and her best recollection is Mr. Bowman was that other witness.

Now, one Thomas L. Brewer testifies that' in the fall of 1904, Judge Cole read his will to him, handed it to him, Brewer read it himself and handed it back to the judge. There was no comment upon it nor discussion about it. . He says there were two names subscribed as witnesses— one was Mr. Bowman’s, and he thinks Mr. Stubbs’ was the other; Daisy Burtch’s name was not there, and he is not positive Mr. Stubbs’ name was there, but he knows there were two names. He never saw the will afterwards nor talked to the judge about it.

Brewer is the only person who assumes to know, or attempts to reproduce, the contents of that will; hence it is upon his recital of the contents that the probate court established the lost or destroyed will, “as near as can be ascertained.” Whether the identification of a lost will “as near as can be ascertained” from the mere memory of one witness, after the lapse of nine years, is sufficient to establish the will, we need not decide, as a bald proposition.

The result of all the evidence in the record shows, to a fair degree of certainty, that in and about the year 1904, Judge Cole had a will and that he intended to dispose of his estate substantially as found by the probate court. But the questions presented to us are: Is the will which he exhibited to Mr. Brewer the last though lost will? Or was the will attested by Daisy Burtch, though lost also, the last will? For we must bear in mind that Mr. Bowman attested but one will; that is the will Daisy thinks she attested, and that is, also, the will which Brewer thinks he read nine years ago; but the will Brewer saw, Brewer is sure, had but two witnesses, one being Bowman. Could Stubbs be the other? Neither he nor Brewer says he was.

Now, there is not an iota of evidence in the transcript to prove that either of the two wills survived the collapse of the testator’s mental faculties; but there is evidence tending to prove that two years before he was adjudged insane he destroyed the will attested by Bowman and Daisy Burtch. The mere statement of these questions which arise on this record, exhibits the uncertainty and unreliability of the evidence submitted to the jury to support the will which was probated.

There is still another question that boldly obtrudes from the case and casts irrepressible doubt upon the verdict. Did Judge Cole have the same intention towards his property and the objects of his bounty at the time he became insane in 1908 as that manifest in the will which Brewer read in 1904? Two or three witnesses, close companions of his, distinctly and positively state that he completely changed his mind within that period, and they give a reasonable and clear account of the natural process of his change of mental attitude in reference to his wife, and his property. He decided that the disposition the law would make of his property “was good enough for him.” And a witness who was intimately associated with him saw him, in October, 1906, destroy the will attested by Bowman and Miss Burtch. As the positive evidence that Bowman signed but one will is unchallenged and’ as Brewer is uncertain that Stubbs’ name was under the name of Bowman on the will which he saw and as Miss Burtch thinks she signed under Bowman, the logic of these facts is that the will which was probated upon Brewer’s evidence was not lost but destroyed by the testator according to a sane and natural purpose.

There is a salient fact in the case which impairs the testimony of Mr. Brewer, under the rule which governs the case. He is the husband of Belle Brewer, a devisee by the will; they are childless; he manages her property, and at her death he may inherit it; and he is named as executor of the will. He has an interest in the case, and is, therefore, not free from the suspicion of bias. For this reason his testimony, apart from the fallibility of human memory of writings read but once, nine years past, does not supply that high degree of certain and indubitable proof which the rule requires. The facts to which we have adverted show that, not only the proof of the contents of the will but of its identity as. another will than the one destroyed in October, 1906, depends upon his testimony; and if the jury could give to his testimony of the contents that degree of credence which satisfies the mind beyond a reasonable doubt, nevertheless his memory of the name of the second witness to the will was confessedly uncertain, and if that witness was Miss Daisy Burtch, then, by all the other proof, the will he saw was destroyed by the testator before he became insane.

The law of this state does not permit a will lost or destroyed to be established unless it was in existence subsequent to the death of the testator or after he became incapable of making a will by reason of insanity. Section 10543, General Code; In re Sinclair’s Will, 5 Ohio St., 290. When a will once known to exist and to have been in the custody of the testator cannot .be found after his decease, or after he became insane, the legal presumption is that it was destroyed by the testator with the intention of revoking it. Behrens v. Behrens, 47 Ohio St., 323.

The proponents of the will call our attention to the testimony of Mr. Stubbs, with whom the testator deposited two packages of envelopes containing papers. He says one was a package of envelopes of the legal size and the other of letter size, and that the testator said, if anything happened to him, Stubbs should turn over the larger package to the testator’s legal representatives, and destroy the smaller package. Two or three years later, the testator called for the packages, saying he thought he was the proper person to keep his papers. The testator burned the shorter package, and part of that package was letters; he took the longer package away. The witness thought his mental condition was not very good. This was in March or April, 1908. Mr. Brewer testifies that in June, 1906, the testator said to him: “I have deposited that will with some other papers with W. G. Stubbs;” and Brewer says that is all the conversation and the only conversation between him and Judge Cole about the will since 1904. It is argued from this evidence that in the long package was the zvill which Brewer had read, and that it was delivered with the papers to Judge Cole in March or April, 1908.

There is other testimony in the transcript to the effect that the judge’s mental disturbance began about the holidays; some witnesses say it was noticeable in the fall of 1907. But the physician who visited his invalid wife daily after Christmas, and saw him at the house, on the street and elsewhere, daily, and administered to him for the physical ailment from which he was then' suffering, says that no symptoms of mental impairment appeared before the first of April; and that his mental derangement began shortly before he was adjudged insane, and was very rapid; and this is confirmed by the bankers and other close and intimate friends, who observed no mental defect till two or three weeks before he was adjudged insane, which was done on the 11th day of May, 1908.

If the inference is permissible that the will in question was amongst the papers in the packages and was not in the package which the judg'd threw into the fire, still it would be pure conjecture to say that he was “incapable of making a will by reason of insanity” at the time he received back the packages. The evidence is too vague, uncertain and conflicting even to overcome the presumption which the law makes, viz.: that the will was destroyed with the sane intention of revoking it.

We remark in passing that there is no evidence directly to the proposition that, at the time Judge Cole received back the package of documents from his lawyer friend Stubbs, his mental derangement was such as to destroy his testamentary capacity. Whether even at the day he was committed, his reason had suffered total eclipse, or if only partial, it was hallucination or mania which affected his conduct only at intervals and in certain directions, leaving his judgment entirely sound in other respects or at lucid periods, is by no means clear. The evidence as a whole is too fragmentary and indefinite, not knit together with sufficient legal precision and compact logic, to satisfy the increflulous mind which the law requires the triers to ■have in a case like this.

The conclusion is irresistible that the argument of the proponents is not supported by proof which rises to that degree of certitude and convincing power which is required in the- class of cases to which this case belongs; indeed, the evidence -would not support this will in a case where only a preponderance of proof is required. We cannot sustain the will unless we overturn a salutary rule of evidence adopted by the courts long ago, to prevent evasion and circumvention of the Statutes of Wills and Descents.

This disposes of the case. It is not necessary to pass upon the other assigned errors. Judgments of. the circuit and common pleas courts reversed, and judgment entered here for the plaintiff in error.

Judgments reversed.

Shauck, C. J., Donahue and Wanamaker, JJ., concur.


author: Newman, J.

text:
    The White Oak Coal Company v. Rivoux, Administratrix.

      Automobile owner not liable—For negligence of employe in operating automobile—Unless proven employe at time of accident—Was engaged in employer’s. business—Presumption of implied authority of bookkeeper.

    1. The owner of an automobile is not liable in an action for damages for injuries to or death of a third person caused by the negligence of an employe in the operation of the automobile, unless it is proven that the employe, at the time, was engaged upon his employer’s business and acting within the scope of his employment.

      2. The faets that the automobile was owned by the defendant and that the same was negligently operated by an employe do not make a prima facie case of negligence against the owner, unless it appears that the employe was driving the automobile with authority, express or implied, of the owner.
    3. A bookkeeper or cashier, employed in the office of the company, is not presumed from that fact alone, to have the implied authority to use or operate an automobile ■ purchased ■ and owned by the company for the use and purpose of a' traveling salesman.
    (No. 13602
    Decided May 6, 1913.)
    Error to the Circuit Court of Hamilton county.
    This is an action to recover damages for the death of Paul Francis Rivoux, alleged to have been caused by the negligence of The White Oak Coal Company.
    Rivoux, while standing near the curb on the sidewalk on the south side of Fourth street, west of and near Sycamore street, in the city of Cincinnati, was knocked down and injured by an automobile, and died as a result of the injuries. 'At the time the injuries were received, The White Oak' Coal Company was a corporation organized under the laws of the state of West Virginia, and authorized to do business in the. state of Ohio. It maintained an office and coal yards in the city of Cincinnati, and this branch of the busitiess was in charge of one William F. Smith, known as the general sales manager of the company.
    The action was begun in the superior court of Cincinnati, and the administratrix of the decedent, in her petition, alleged that the automobile was owned by The White Oak Coal Company, and that, at the time the injuries were received by the decedent, it was operated by one Charles A. Tribbey, as its employe. She alleged that the company was negligent in allowing Tribbey, who, it was alleged, was incompetent, to operate the automobile; that the same was not properly constructed and equipped; that Tribbey negligently operated it and at an improper rate of speed, and that he failed to keep the automobile at a proper distance from the curb and sidewalk and failed to stop it before it struck decedent, and, in' her amendment to the petition, claimed that the company was negligent also in failing to have the tires of the automobile so constructed, covered and protected as to prevent the skidding or slipping of them.
    Defendant admitted its corporate existence and authority to do business in Ohio, and denied each and every other allegation contained in the petition and amendment thereto.
    The cause was submitted to a jury, and there was evidence introduced by plaintiff establishing the fact that Rivoux was knocked down and injured by the automobile; that he died from the injuries received; that plaintiff was the administratrix of decedent; that he left surviving him a widow and children who would have received pecuniary benefit and assistance from him if he had lived; that the automobile in question was owned by The White Oak Coal Company, having been purchased by it for the use of a traveling salesman; that this salesman had entire charge of the storage in the garage and the repairs; that Tribbey was operating the car at the time of the accident and that he was an employe of the company, being employed in the office as bookkeeper or general office clerk.
    There was no direct evidence offered by plaintiff tending to prove that Tribbey, at the time he was operating the automobile, was using it for any purpose connected with the business of the company, or that he was using the same with the company’s knowledge, permission or consent.
    Plaintiff introduced evidence tending to show that Tribbey was negligent in the operation of the car in the particulars mentioned in the petition.
    At the close of plaintiff’s evidence, a motion to arrest the cause from- the jury and to direct a verdict for the defendant was made and overruled.
    On behalf of defendant, William F. Smith, the general sales manager of the company, who had control and management of the Cincinnati branch and who employed Tribbey, testified that he (Tribbey) was employed as bookkeeper and cashier; that his duties were to keep the books, take off balances, render bills and take care of. the office, and that his duties were absolutely in the office. On cross-examination, Smith admitted that, in his deposition given in the case, he stated that Tribbey had full charge of the office in his (Smith’s) absence.
    Samuel Dickson, the general manager of the company, testified that Tribbey was cashier and bookkeeper and had no duties to perform outside of the office of the company.

      Tribbey testified that he had intended to use the automobile in the afternoon of the day of the accident on personal business; that he was to drive to Norwood to confer with a man on personal business relating to. a lodge of which he was a member; that on the morning of that day he had the automobile brought to the office of the company by an employe of the garage where it was kept; that he was driving the automobile for the purpose, of ascertaining whether it needed any repairs before undertaking the trip in the afternoon—the automobile having come in the day before from a several days’ trip through Indiana —and that, while driving for that purpose, the automobile skidded and ran into and injured Rivoux. Tribbey admitted that, without permission from the company, he had used the automobile on several occasions prior to this day—on Sundays and on evenings during the week after business hours—for his own pleasure and not in connection with any business of the company. He admitted that, when the manager of the company was not in the office and persons would call and ask for the manager in connection with matters he (Tribbey) felt able to handle, he had stated that he was assistant manager. It appears from the evidence that Smith was in the city on the day of the accident.
    At the close of all the evidence in the case, counsel for The White Oak Coal Company renewed its motion to arrest the cause from the jury and for a verdict in its favor, which motion was overruled. A verdict was rendered for plaintiff, a motion for a new trial was presented and overruled and judgment rendered on the verdict. Error was prosecuted to the circuit court, and that court affirmed the judgment of the superior court.
    This proceeding here is to reverse the judgments of the lower courts.

      Messrs. Peck, Shaffer & Peck, for plaintiff in error.
    Our proposition is that at the time of the accident 'Mr. Tribbey was not acting within the scope of his employment and therefore the plaintiff in error was not liable. Lima Ry. Co. v. Little, 67 Ohio St., 91; Limpus v. London Gen. Omnibus Co., 1 H. & C., 542, 32 L. J. Ex., 34, 9 Jur. N. S., 333, 7 L. T., 641; Brown v. Jarvis Engineering Co., 166 Mass., 75; Daniel v. Railroad Co., 136 N. Car., 517; Bard v. Yohn, 26 Pa. St., 482; Way v. Powers, 57 Vt., 135; McCarthy v. Timmins, 178 Mass., 378; Fiske v. Enders, 73 Conn., 338; Reaume v. Newcomb, 124 Mich., 137; Fish v. Coolidge, 47 App. Div., 159; Cavanaugh v. Dinsmore, 12 Hun, 465; Thorp v. Minor, 109 N. Car., 152; Storey v. Ashton, L. R., 4 Q. B., 476; Clark v. Buckmobile Co., 107 App. Div., 120; Stewart v. Baruch, 103 App. Div., 577; Branch v. I. & G. N. Ry. Co., 92 Tex., 288; Carl Corper Brew. & Malt. Co. v. Huggins, 96 Ill. App., 144; Cunningham v. Castle, 127 App. Div., 580.

      Messrs. Horstman & Horstman, for defendant in error.
    The following are some of the cases as to liability of an employer for the act of a servant in the course of his employment, and as to presumptions and burden of proof in such cases. Norris v. Kohler, 41 N. Y., 42; 1 Shearman & Redfield on Negligence (5 ed.), Sec. 158; Edgeworth v. Wood, 58 N. J. L., 463; Maccoun v. N. V. C. & H. R. Rd. Co., 66 Barb., 338; Cunningham v. Castle, 127 App. Div., 580; 1 Thompson on Negligence, Secs. 613, 614, 615, 616; Schulte v. Holliday, 54 Mich., 73; Stewart v. Baruch, 103 App. Div., 577; P. C. C. & St. L. Ry. Co. v. Shields, 47 Ohio St., 387; Hayes v. Wilkins, 194 Mass., 223; Shamp v. Lambert, 142 Mo. App., 567; Robards v. P. Bannon Sewer Pipe Co., 130 Ky., 380; Brennan v. Merchant & Co., 205 Pa. St., 258; Kelton v. Fifer, 26 Pa. Super. Ct., 603; 2 Thompson on Negligence (1880), 899; Deck v. B. & O. Rd. Co., 100 Md., 168; Rahn v. Singer Mfg. Co., 26 Fed. Rep., 912, 132 U. S., 518; Mulvehill v. Bates, 31 Minn., 364; Carl Corper Brew. & Malt. Co. v. Huggins, 96 Ill. App., 144; Hershinger v. Pa. Rd. Co., 25 Pa. Super. Ct., 147; So. Ohio Rd. Co. v. Morey, 47 Ohio St., 211; Barnes v. Kirk Bros. Auto. Co., 13 C. C., N. S., 571.
   Newman, J.

The liability of The White Oak Coal Company is based upon the wrongful and negligent acts of its servant. The company, however, is not liable unless the acts complained of were committed while the servant was acting within the scope of his employment. This is the test and the authorities agree upon this principle. Lima Ry. Co. v. Little, 67 Ohio St., 91.

The company, therefore, is not answerable in damages unless Tribbey, who was operating the automobile at the time of the accident, was acting for the company and in the prosecution of its business. It is averred in the petition that he was operating the automobile as an employe of the company. This was an essential and material averment. All the other material averments of the cause of action were concededly established. The sole claim of plaintiff in error is that Tribbey was not acting within the scope of his employment. It was incumbent upon the plaintiff below to establish, by a preponderance of the evidence, that he was acting within the scope of his employment.

Defendant in error does not question the rule we have announced as to the test of liability, but insists that the question whether or not Tribbey was acting within the scope of his employment was one of fact properly left to the determination of the jury, and that there was evidence tending to establish this fact.

The circuit court, in affirming the judgment of the trial court, say: “The plaintiff below, having shown that the automobile was the property of the defendant and that Tribbey, the driver, was in defendant’s employ, the burden was then placed upon defendant to show that, at the time of the accident, Tribbey was acting outside the scope of his employment in a personal enterprise.”

Assuming that such a presumption did arise, the “burden,” so called, would not require defendant to do more than introduce evidence sufficient to countervail this presumption—it was not required to overbalance or outweigh it. Klunk v. Hocking Valley Ry. Co., 74 Ohio St., 125.

But did such a presumption arise from the facts established by plaintiff below? The ownership of the automobile was established, and it was shown that Tribbey was operating the same at the. time of the accident and that he was an employe of the company. Is it to be inferred from these facts that Tribbey was acting within the scope of his employment? It was conceded that he was an employe, but was there any evidence offered by plaintiff tending to prove that he was an employe or servant employed in connection with the particular instrument which caused the death of the decedent? Not only was there no evidence in support of such a claim, but on the contrary it appears from the testimony of plaintiff’s own witnesses that Tribbey was a cashier or bookkeeper in the office of the company, and that the care, storage and repairs of the automobile were under the control of another employe—a traveling salesman, for whose sole use and purposes the same had been purchased.

Further, there was no evidence offered, on the part of plaintiff, tending to prove that Tribbey was operating the automobile, at the time of the accident, with the knowledge, consent or authority of the company, or that he had ever so operated it.

In addition to the cases cited by defendant in error, we have examined and considered a number of other “automobile cases,” and we find that in these cases, at the time of the accident, the automobile was in charge of a servant of the owner— a chauffeur in most instances—whose duty it was to operate the automobile, and who was rightly . in the possession and use of the same with the consent, knowledge and authority of the owner. In these cases the courts do hold that the establishment of these facts raises the presumption' or inference that the person so in charge was acting within the scope of his employment, and it then becomes a question for the jury to determine, upon all the evidence in the case, whether or not this presumption has been overcome.

In the recently decided case of Reynolds v. Denholm, 213 Mass., 576, decided February 25, 1913, to which our attention has been called by counsel for defendant in error since the submission of the case at bar, it was admitted that the defendant owned the automobile, and that, at the-time of the accident, it was being operated by a chauffeur who was in the defendant’s employ. It further appeared that there was evidence tending to show that the chauffeur was employed to drive the automobile for the defendant’s family whenever they wanted to use it; that he slept in the house occupied -by the defendant and his family, but took his meals at another place, and had his laundry done at still another place; that both his laundry and meals were paid for by defendant as part of his. wages; that. he was allowed or suffered by the family, withou^ objection, to use the automobile to go to his meals and to get his laundry as he found it convenient, and, while going for his laundry in the automobile, he ran into and injured the plaintiff.

In that case, the trial court, at the close of all the evidence, directed a verdict for the defendant. The supreme court of Massachusetts held that there was. error in this, and that whether the driver was acting within the scope of his employment at the time of the accident was a question for the jury. The case at bar presents an entirely different state of facts, and is clearly distinguishable from the Reynolds case.

In Cunningham v. Castle, 127 App. Div., 580, the trial court charged that the fact that the automobile, at the time of the accident, was in the possession of and driven by the chauffeur, with the owner’s permission, placed upon the owner the same degree of liability for the chauffeur’s negligence, if any, as would have been imposed upon him if the chauffeur were then engaged in the personal business of the defendant. The reviewing court held that this charge was erroneous and that a question of fact was presented upon the evidence, which was whether the chauffeur, at the time of the injuries complained of, was acting within the scope of his employment. But, in that case, it was established that the automobile, at the time of the accident, was being operated by the chauffeur with the knowledge and permission of the owner; in Stewart v. Baruch, 103 App. Div., 577, it appeared that the defendant was the owner of the automobile and that the chauffeur who was operating it was in his employ; in Cooper v. Knight, 147 S. W. Rep., 349 (Texas), the operator of the automobile was employed by the defendant, and his duties were to go after and deliver automobiles, and, at the time of the accident, he was in the discharge of his duties; in Riley v. Roach, 168 Mich., 294, the automobile was in charge of the defendant’s chauffeur; in Shamp v. Lambert, 142 Mo. App., 567, defendant’s automobile, at the time of the accident, was in charge of his chauffeur, who was operating the automobile—the very act for which he was employed—and the court say: “The test for the prima facie responsibility of the master in such cases is not whether the particular service being performed was specially authorized, but it is whether the act which occasioned the injury was within the scope of the servant’s authority in prosecuting the business for which he was employed by the master;” in Moon v. Matthews, 227 Pa. St., 488, plaintiff’s evidence disclosed the fact that the automobile belonged to the defendant, and that, at the time of the accident, it was being operated by his regular chauffeur. “Under such circumstances,” the court say, “the burden was upon the defendant to show that the chauffeur was not acting within the scope of his employment, and upon the business for which he was employed by his master. The test is, whether the act was done in the prosecution of the business in which the servant was employed to assist. If it was, the master is responsible. * * * The present case, as made out by the evidence of the plaintiff, was sufficient to warrant a recovery. Whether or not it was overcome by the testimony offered by the defendant was for the determination of the jury.”

In the case at bar, while ownership in the defendant was established, yet there was no evidence tending to show that, at the time of the accident, the automobile was operated by a person employed or authorized to operate the same.

The facts in all the “automobile cases,” to which reference has been made, are easily distinguishable from the facts in the present case, and, in the other cases cited by counsel for defendant in error, it appears not only that the vehicle which caused the damage was owned by the defendant, but also that, at the time of the accident, the same was driven by a person who was either regularly employed for that purpose or who was driving the same with the consent and knowledge of the owner. Hayes v. Wilkins, 194 Mass., 223; Schulte v. Holliday, 54 Mich., 73; Rahn v. Singer Manufacturing Co., 26 Fed. Rep., 912; Kelton v. Fifer, 26 Pa. Super. Ct., 603. The rule announced in these cases is, therefore, not applicable to the case at bar.

There are some authorities which go to the extent of holding that where the plaintiff has suffered injury from the negligent management of a vehicle, it is sufficient prima facie evidence that the negligence is imputable to defendant, when it is shown that he is the owner of the vehicle, without even proving affirmatively that the person in charge is the defendant’s servant. This doctrine seems to meet with favor in a number of Pennsylvania cases, but in' the case of Lotz v. Hanlon, 217 Pa. St., 339, in which recovery was sought against the owner of an automobile for injuries resulting to plaintiff, where it was essential to a recovery that it be made to appear that the accident occurred while the person in charge of the automobile was using it in the course of his employment and on his master’s business, and the only evidence as to that proposition was proof of' ownership of the machine in the defendant, the court say: “Ownership of the machine in cases of this character is at best but a scant basis for the inference that was here sought to be derived from it. It is allowed as adequate only when the attending circumstances point to no different conclusion.” In that case, evidence was offered by the defendant tending to prove that while the automobile was being operated by the chauffeur, the latter was not operating the same in any business of the master, and the court held that it was the duty of the trial court to direct a verdict for the defendant. Even in Pennsylvania, where such a rule seems to be adhered to, the presumption or inference is so slight that it is held to be the duty of the court to say whether such presumption has been overcome by the other circumstances in the case.

But this court is not in accord with the authorities which hold that a prima facie case of negligence is made against a defendant upon the mere showing that he was the owner of the negligently operated automobile. Such a rule would be unjust and would work hardships. An automobile may be in the possession of one who wrongfully appropriates it to his own use, yet, under that doctrine, if such person negligently operates it to the injury of a third person, a prima facie case of negligence would be imputed to the owner. Nor do we think that proof of the additional fact that the operator was an employe of the owner raises a presumption of negligence against him; unless it appears that the duties of the employe are in connection with the automobile or that he was operating the same with the authority—express or implied—of the owner.

In the case at bar, plaintiff wholly failed to show that the employe had any actual authority to operate the automobile at the time of the accident, and the fact that he was an employe, employed in the capacity of bookkeeper, would not raise the inference that there was an implied authority to operate an automobile purchased for another employe for his use and purposes and in another department or branch of the business, and there being no evidence in support of this essential averment of the petition, namely, that Tribbey was operating the automobile as an employe, the motion of defendant for a directed verdict in its-favor, at the close of plaintiff’s evidence, should' have been sustained.

Plaintiff’s case was not strengthened by the evidence offered on the part of defendant. The general sales manager of the company, who employed Tribbey, testified that Tribbey’s duties were absolutely in the office, that he was not authorized to use the automobile, and another officer of the company testified along the same lines. Tribbey related the circumstances under which he was using the automobile at the time of the accident. He testified that he was not using it in connection with any business of the company or in the performance of any of his duties as an employe; that the company had no knowledge of the fact that he was using it and that on other occasions—on evenings and . on Sundays—when he had used it, it was for his own personal business or pleasure, and the use was without the knowledge or consent of the company.

The suggestion is made by defendant in error that, inasmuch as Tribbey, at the time of the accident, was driving the automobile for the purpose of ascertaining whether it needed repairs before he used it for his own personal business and that such' an inspection might result in a benefit to his employer, he, therefore, was acting in the interest of the company. There is not even an intimation that this bookkeeper had any authority to inspect this automobile, so that whatever was done by him was done voluntarily. In answer to such a claim, it is necessary only to call attention to the language of the court in Lima Ry. Co. v. Little, 67 Ohio St., 91, at page 101: “A master has the right to select and choose his agents and to determine himself, and assign to the servants so selected, their respective duties, and no assumption by an employe of duties not assigned to him will bring those duties within the course or scope of his employment as defined by the master, and when an act is not within the 'Scope of a servant’s employment it cannot be within either the express or implied authorization of the master.” ■

For the reasons given, we conclude that defendant’s motion, at the close of plaintiff’s evidence, for a verdict, which motion • was 'renewed at the close of all the evidence in- the-' case, should have' been sustained. The judgments of the circuit and superior courts are reversed, and judgment is here rendered for plaintiff in error.

Judgments reversed.

Shauck, C. J., Johnson, Donahue, Wanamaker and Wilkin, JJ., concur.