Volume 7 — Ohio Circuit Court Reports, New Series

<p>COURTS OF REVIEW AND VILLAGE ORDINANCES.</p> <p>Ordinances — Higher Courts will not Take Judicial Notice of — Character of Offense Charged — Finding of Mayor — That the Offense was in Violation of an Ordinance — Presumption.</p> <p>1. Where an offense is. charged which the municipality had a right to forbid and there is a finding by the mayor that the defendant did violate an ordinance, a reviewing court -is bound- to presume that the mayor did not err in finding that an ordinance had been passed- covering the offense charged, and can n-ot reverse the judgment unless error is shown.</p> <p>2. To bring an ordinance before a reviewing court, it must be certified up by the mayor with the other evidence.</p>

<p>LIABILITY ARISING FROM ACCUMULATION OF ICE IN STREET.</p> <p>Negligence — Municipal ■Corporations — Liability of, for Nuisance — Arising from Accumulation of Ice in Street — Knowledge Thereof Presumed.</p> <p>A municipality is liable for injury or loss resulting from an accumulation of ice in the street, where the nuisance thus created has existed for ten days and was caused by water escaping from a water pipe belonging to the city.</p>

<p>FIRE COMMUNICATED TO FARM LANDS BY LOCOMOTIVE.</p> <p>Negligence — Whereby Fire was Communicated by a Locomotive — Allegations of Petition Sufficient, When — Jury Warranted in Finding for Plaintiff, When — Lack of Negligence may be Shown as a Defense — But Lack of Negligence not made Out, When.</p> <p>1. In an action for recovery on account of loss by fire communicated by a locomotive, a petition is sufficient under Sections 3365-5 and 33oo-6, which avers that fire and sparks were emitted by one of the defendant company’s locomotives, thereby causing fire on the railroad right of way and the plaintiff’s land, the plaintiff being ignorant as to whether the fire started on his own land or that of the company; and such an averment is a sufficient averment that the fire was communicated directly from the locomotive, and not from some other source.</p> <p>2. A jury is warranted in finding that fire upon the land of the plaintiff lying adjacent to a steam railroad, originated from sparks emitted by a locomotive which had passed a short time before, where the evidence shows that the wind was blowing in the direction of the plaintiff’s land with sufficient force to carry sparks thereon, and that there were no other fires in the neighborhood at the time.</p> <p>\3. A railroad company, sued for damages on account of fire alleged to have originated from sparks from one of its locomotives, may , show by way of defense that it was not guilty of negligence in the premises.</p> <p>4. But such a defense is not made out by testimony as to the use of spark arresters, where the evidence as to the origin of the fire is to the effect that it was started by sparks from the locomotive.</p>

<p>COAL VAULTS UNDER. SIDEWALKS.</p> <p>Negligence — In llie Matter of a Covering — Over a Coal Vault under the Sidewalk — Duty of Abutting Owner — To Keep Sidewalk Unobstrucled and Safe — Original and Intervening Negligence — Proximate Cause.</p> <p>Where a person, who owns and occupies a building, permits a perforated covering over a coal vault, constructed under a sidewalk in a municipality, and maintained for his own benefit, to remain unfastened below, and it can be easily displaced by lifting it from the rim in which it is -placed either by inadvertence or design, and it is so displaced, and a footman lawfully walking upon the sidewalk after dark, steps upon the covering after it is displaced, which tilts and throws him into the coal hole, thereby seriously injuring him. Held: That such owner is guilty of negligence, although such covering would not be displaced by ordinary travel over it, and that such negligence is the proximate cause of the injury.</p>

<p>MUNICIPAL BONDS — LIMITATION OF BONDING POWER.</p> <p>Municipal Corporations — Statutes Construed Relating to Bonding Power — Limit of Bonding Capacity, How Ascertained — Exemption of Bonds to be Paid by Special Assessments.</p> <p>1. The bonding power of a municipal corporation under Sections 2835, 28356 and 2837, Revised Statutes of Ohio, is fixed at the extreme limit of eight per cent, of all the taxable property listed for taxation, in such corporations. This, however, does not include bonds to be paid by special assessments upon abutting property.-</p> <p>2. In determining whether a municipal corporation has reached or exceeded the limit of its bonding capacity, the statute contemplates the aggregate bonded indebtedness whether issued before or since said enactments, and if such'aggregate equals or exceeds the extreme eight per cent, limit above noted, then no further bonds may be issued until said aggregate has been reduced below said limit.</p>

<p>WARRANTY IN THE SALE OF A HORSE.</p> <p>Warranty — Failure of — Form of Action Against the Seller — Questions of Evidence — Talcing of Notes of Testimony by a Juror — Not Misconduct, When — Weight of Evidence — Charge of Comrt.</p> <p>1. Failure of the warranty that a horse is sound in every way, gives to the purchaser á right of action against the seller, either for damages or for rescission of contract.</p> <p>2. Where the action is for rescission of contract, it is not error to exclude testimony to the effect that at the time of the trial the horse was dead; or the statement that certain of the witnesses were jurors at the trial of the same case before the'justice of the peace; or to permit one who has had long experience with horses to testify, -although not a veterinarian-; or to exclude a statement of the purpose the witness had in- examining the hor-se.</p> <p>3. The use of the word “nice” by a witness, who testified that the ■horse in question had a “nice round hoof,” does not render the answer sufficiently objectionable to. warrant a reversal of the judgment.</p> <p>4. The mere fact that a juror, in the absence of a caution to the contrary, took notes of the testimony during the progress of the trial, does not constitute misconduct on his p'art, and is not ground for a new trial.</p> <p>5. A charge of court as to the right of a purchaser to return a horse not coming up to the warranty should specify that the return must have been, made within a reasonable time and under circumstances which placed the vendor in statu quo.</p> <p>6. A charge of court to the effect bh'at warranty of soundness would cover the condition of the shoulders, where the vendor had said of the thin shoulders that they were all right, was erroneous, unless it appeared that the fact that the horse was sweenied was not ■obvious to those who examined him.</p> <p>7. A verdict in favor of the defendant, in an action for recovery on a warranty by him of a horse sold to the plaintiff, will not he set aside, where the evidence was such that the jury might, without bias or prejudice, hut in the exercise of a sound judgment, have reached the conclusion that the horse was not sweenied at the time of the sale.</p>

<p>NEGLIGENCE IN MAINTAINING A TURN-TABLE.</p> <p>Railways — Turn-table near Traveled Path — Child Hurt in Plpying upon It — Contrary Holdings of the Courts — As to Duty of Land Owner Totoard Trespassers — Reasonable Precautions for Protection of Children.</p> <p>Where a railroad company maintains a turn-t'able upon its right of way, close to a traveled path along its track, which people, old and young, have been accustomed to use, without objection for many years as a traveled way, and further permits children to play upon such turn-table, without objection — Held: That it is its duty to guard such turn-table, or so securely fasten it that children of tender years will not be injured while playing upon it.</p>

<p>EMBEZZLEMENT BY THE SECRETARY OF A BUILDING ASSOCIATION.</p> <p>Building Associations — 'Embezzlement by Secretary of — By Issue of Oheclcs in Fictitious Fames — Liability of Surety on Secretary’s Bond.</p> <p>Where the secretary of a building association procures the issue of checks of the association in the names of fictitious applicants for loans, and endorses them in the names of the fictitious payees, his collection of such checks would estop him from asserting their original invalidity, even if they were invalid, and would amount to embezzlement under Section 6843.</p>

<p>Removal óf executor,</p> <p>JSxecutors and Administrators — Removal of, Under Section 6017 — Findings Necessary — Where the Gist of the Charge is Fraud.</p> <p>In a proceeding for the removal of an executor, based upon a motion filed under Section 6017 and the gist of the charge being fraud, it is error to grant an order of removal where no attempt has been made to show fraud,</p>

<p>RECOVERY OF COMPENSATION BY ARBITRATORS.</p> <p>Arbitrators — Not Parties to the Contract of Submission — Form of Action by, to Recover Compensation — Necessary Parties — Liability, Joint and Several — Promise to a Second Parly for the Benefit of a Third Party — May be Enforced by the Third Party — Implied Assumpsit — Award as to Costs.</p> <p>1. Arbitrators are not parties to a contract of submission and can not sue upon it, but where both parties to the submission requested that the service be rendered, and the arbitrators are entitled, as in the case at bar, to compensation for the services rendered, the parties to the submission are jointly and severally liable therefor, and an action will lie where brought by one of the arbitrators against one of the parties for such compensation.</p> <p>2. Where one of the parties to an arbitration has paid his share of its costs, such payment may be a full and effectual discharge under Sections 3162 and 3166, Revised Statutes, of such party, and him only, of and from all and every liability to the arbitrators for whose benefit the payment was made.</p>

<p>CONTRACT FOR. SALE OF REAL ESTATE.</p> <p>Corporations — Contract for Sale of Stoclc — To he Paid, for Out of Dividends and Earnings — And from Other Sources at Option of Buyer —Not Void for Want of Mutuality — And is a Valid Sale.</p> <p>C agreed in writing to sell and transfer to W at their face value 150 shares, of $100 each, of the capital stock of a corporation of which he was a member, and owner of the shares, for the consideration of $15,000 to be paid with interest at 3 per cent, per annum, payable annually from March 1, 1895, from and out of the dividends and earnings of said stock, as the same were realized; W to have the right to make payments from other sources as he might see fit.</p> <p>Said stock was to be issued in the name of W, and he to immediately, by endorsement, transfer it to C as security for the payment of said $15,000 and interest, W having the right and option to redeem the stock as fast as he would make payments upon principal and interest to the amount of $500 or any multiple thereof, and have possession of a corresponding amount of stock.</p> <p>Under the agreement 150 shares of stock were issued in the name of W and delivered to him, and by him endorsed and delivered to C, who received the annual dividends and credited them as payments on the stock. W attended meetings of stockholders and directors, and voteU the 150 shares of stock with the knowledge and without objection from C. Four years after the agreement was made and performed as above shown, C notified W and the company in writing of his rescission of said agreement, W not consenting thereto. Held:</p> <p>1st. Such contract is not void for want of consideration or lack of mutuality.</p> <p>2d. The facts and circumstances above stated show an executed contract, and could not be rescinded at the option of one of the parties without the other’s consent.</p> <p>3d. A sale of stock in a corporation as above found is a valid sale, and vests the purchaser with a good title to said stock.</p>

<p>BENEFICIARY UNDER LIFE INSURANCE POLICY WITHOUT AN INSURABLE INTEREST.</p> <p>Life Insurance — Beneficiary Named in Policy of — Must have an Insurable Interest in Life of Insured — Assignment of Policy — Authorities in Conflict.</p> <p>The case of Balde v. Renner, 41 O. S., 232, though treated in the textbooks as authority for the assignment of a life insurance policy to a person having no insurable interest in the life of the insured, and often cited in support of that, proposition, is not decisive of that question; and the court in the present case, on reason, good conscience and public policy, and in view of the square conflict in the rulings of -the courts, in the various states, prefers to follow the federal courts and to hold that only those having an insurable interest in the life of the insured can. become beneficiaries under a policy either by assignment or otherwise.</p>

<p>EPILEPSY AS A RESULT OF INJURIES.</p> <p>Damages — For Personal Injuries — Epilepsy as an Element — What the Jury Must Find — Charge of Court.</p> <p>In a suit for damages for personal injuries, there can be no recovery on account of epilepsy from which the patient claims to he suffering, but no mention of which is made in the petition, unless the jury find that epilepsy is a natural and ordinary result of the injuries averred, and also that the epilepsy, if any, from which plaintiff suffers is a result of the injuries sustained.</p>

<p>INJURY TO AN EMPLOYE FROM A KNOWN DANGER.</p> <p>Master and Servant — Negligence—Known Danger in Operating a Machine — Assurance of Foreman that Work is Safe — Not Binding on the Master, When.</p> <p>Where a peril which can be easily apprehended attaches to the operation of a machine that is in good order, and it appears that the operator understood the danger, the fact that his foreman on a previous occasion, when the machine may have been running at a different rate of speed and at work on different material, expressed the opinion that the work was safe, does not render the master liable for an injury to the operator from the apprehended danger; and the taking of a case from the jury under such circumstances does not constitute error. (Van Duzen Gas Go. v. Schelies, 61 O. S., 298, distinguished.)</p>

<p>UNEARNED WAGES.</p> <p>Assignment of Unearned wages — Yalid YPhen Based Upon a Possibility Coupled mth An Interest — Pleading—Presumption as to a Continuing Employment.</p> <p>1. Tile doctrine is recognized by an unbroken line of authority that, as between private persons, unearned wages constitute^ a possibility coupled with an interest to which a valid title may be given by assignment. (The Brooks Co. v. Tolman, 6 C. C. — N. S., 137, cited.]</p> <p>2. An allegation that the assignor of unearned wages was in the employ of the debtor at the time of the assignment, and' continued in such employment during the time of the earning of the wages for which judgment is asked, sufficiently alleges a contract of employment whereon to- base an assignment of such wages.</p>

<p>LIABILITY FOR. SHOOTING BY AR.MED AGENT.</p> <p>Tort — Of an Agent — Armed 6y His Employers — Shoots One Rightfully on the Premises — Mistake of Judgment — Pleading.</p> <p>Where, in an office occupied by a railroad company, a telegraph company and an express company, their joint agent is provided by them with a revolver for the protection of the property entrusted to his care, and while thus armed and acting in the line of duty shoots at and wounds one entering the bui'.ding on lawful business, his mistake of judgment must be charged against his employers, and an action for damages on account of the injury suffered will lie against the companies and agent jointly.</p>

<p>RESERVATIONS IN SLEEPING CARS.</p> <p>Agency — May be Established by Evidence of Custom — In a Suit on a Specialty — Raihoay Age : of Sleeping Car Company — Damages for Failure to Give Possession of a Reserved Apartment — Breach of Contract — V erdict — Waiver,</p> <p>1. In a suit upon a specialty, evidence of uniform custom of transacting business with the public with reference to the matter in dispute is admissible when introduced for the purpose of showing an agent's authority to make the contract in question on behalf of his principal.</p> <p>2. An agency is sufficiently proved if it be shown that the principal has led the public to believe that it exists by a continued course of business transactions; and authority of a railroad ticket agent to reserve berths of a sleeping car company for passengers on a train may be proved by showing prior ratification of reservations made under similar circumstances by such agent.</p> <p>3. Compensatory damages may be recovered for physical inconvenience, discomfort and pain resulting from a breach of contract to reserve a drawing room in a sleeping car for a man and his wife, who in consequence are compelled to sit up the greater part of the night and to change cars twice, and .a verdict of $125 recovered therefor is not excessive.</p> <p>4. The fact that the plaintiff in such a case demanded his ticket from , the conductor upon learning that he could not be given the aceommodations for which he had contracted, which demand was'refused, does not constitute such a waiver of his rights as will relieve the company from liability.</p> <p>5. Where a witness, in testifying as to a conversation had by telephone, makes a positive statement as to who it was with whom he conversed, and he -is not cross-examined- as to the identity of the person at the other end of the wire, the conversation is admissible notwithstanding the uncertainty which may exist as to the identity of the other party speaking.</p>

<p>RIGHTS OF STEAM AND TRACTION ROADS AT STREET CROSSINGS.</p> <p>Railways — Traction Crossings of, on Public Streets — Contract Betioeen Steam, and Traction Companies as to Crossing Expenses — Requirement as to a Flagman — Rights of Steam Road, as Property Owner —Evidence.</p> <p>1 The requirement that a flagman be stationed at a railway crossing can only be made where it is found that the crossing is dangerous to the public; and where a railroad company obtains the right to run its trains over a given street crossing than theretofore allowed by the ordinances of the municipality, on condition that a flagman be stationed there, the expense thus incurred can not be thrown upon a traction company occupying the street, under an agreement whereby the traction company undertook, as a condition of making the crossing, to pay all expenses which might be “lawfully required” by the municipality or the state, for maintaining a flagman at said crossing.</p> <p>2. Moreover, the requirement as to a flagman having thus been obtained for'the benefit of the steam road alone, there was no consideration moving to the traction company, and payment of the expense thus incurred can not be enforced against the traction company.</p> <p>9. There are no rights vested in a steam road as an adjoining lot owner which would enable it to enforce a contract containing such a provision.</p>

<p>IRREGULARITY IN SIGNING BILL OF EXCEPTIONS.</p> <p>Bill of Exceptions — Not Rendered Invalid by Failure of Judge to Sign at the End, When — Telephone Pole in Street — Municipality Liable for, if a Nuisance — Whether a Nuisance is a Question for the Jury.</p> <p>1. Tire failure of the trial judge to sign a bill of exceptions at the end thereof does not render the bill invalid, where the cover which is attached to the bill shows the time it was received and other matters, and there is a statement in the bill as to the time it was received and allowed, which is signed by the judge.</p> <p>2. A municipality is liable for damages to one injured from contact with a telephone or telegraph* pole, which has been so placed in a public street as to become a nuisance or dangerous, and the municipality has knowledge thereof or in the exercise of ordinary care and prudence should know of its existence.</p> <p>3. Whether or not such a pole is dangerous to the public or a nuisance is a question for the jury, to be determined under proper instructions from the court and all the circumstances of the case.</p>

<p>EQUITABLE QUESTIONS IN AN ACTION FOR. MONEY.</p> <p>Action for Recovery of Money Judgment — Incidental Equitable Questions — Right of Trial to a Jury — Right of Appeal.</p> <p>Where the main issue is the right of the plaintiff to a money judgment, either party is entitled to a jury; and the character of the action is not changed by the fact that there are incidental equitable questions between other parties.</p>

<p>CONSENT TO POSTPONEMENT OF DECISION BY MAGISTRATE.</p> <p>Justice of the Peace — Jurisdiction of, to Reserve Case for Decision— Not Conferred by Consent, When.</p> <p>Jurisdiction can not be conferred by consent of parties upon a justice of the peace to reserve a case for decision to a later date than that authorized by statute. Thompson v. Acherman, 21 C. C., 740, not followed.</p>

<p>INEXPERIENCED EMPLOYE DIRECTED TO PERFORM A DANGEROUS TASK.</p> <p>Negligence — Wrongful Death — Burden of Proof — Contributory Negligence and Affirmative Defense — Trial—Evidence—Charge of Court —Master and Servant — Verdict of $2,950 not Excessive, When.</p> <p>1. In an'action brought under Sections 6134 and 6135, Revised Statutes, for causing the death of plaintiff’s decedent by neglect or wrongful-act, the petition need not allege that the next of kin of the deceased have sustained pecuniary damage by his death.</p> <p>2. Proof of the absence of contributory negligence on the part of deceased is not essential to the right to recover for wrongful death. Contributory negligence in such a case is an affirmative defense and the burden of proving it rests on the defendant.</p> <p>3. In an action for wrongful death, where the alleged neglect consisted in a failure by the defendant, an employer, to acquaint the deceased, an employe, with the dangers incident to the work in which he was engaged, a charge requested to be given before argument, that “the duty to give instructions existed only when there were dangers of which defendant had or ought to have had knowledge, and which defendant had reason to believe the deceased did not know and would not have discovered in time to protect himself” is erroneous and misleading for not stating that defendant was bound to instruct where dangers existed of which defendant ought “by the exercise of ordinary care” to have had knowledge and which defendant had reason to believe the deceased might not have discovered nor been apprised “by the exercise of ordinary care.” °</p> <p>4. Where, in an action for wrongful death, the undisputed facts are, that the deceased, a boy of seventeen years, was killed while attempting to put a belt on a rapidly revolving wheel, the belt flying off and wrapping itself about his person; that the deceased had been employed in defendant’s shop only about three weeks; that when he entered the shop he had had no experience in the kind of work upon which he was engaged; that he was asked to do the work .which resulted in his death without any instruction or warning being given to him by the foreman or any one in authority at the shop, it is tor the jury to say 'whether the danger was so open and apparent that instructions concerning it were not necessary and whether the deceased was guilty of contributory negligence.</p> <p>5. Where deceased was at the time of his death about seventeen years of age, unusually bright, had attended high school to within .one year of graduation, when he left school to aid in the support of his family, and, though earning but about fifty cents a day, was contributing to the support of his parents and was a mere beginner at the work with a probability that his wages would be increased as time went on, a verdict of $2,950 is not excessive.</p>

<p>WILLS EXECUTED IN ANOTHER. STATE AND NOT PROBATED IN OHIO.</p> <p>Title — Sow Affected by a Foreign Will — Not Probated in Ohio for Forty Years — Words Conveying a Fee in Indiana — But only a Life Estate in Ohio — Rights of Remaindermen in Land — As against One Claiming by Adverse Possession — Remaindermen Can Not Postpone the Bar of the Statute, When — Original Will Lost— Certified Copy of Record of — Marginal Item Below Signature— Presumption — Will Invalid to Pass Title in Oflio.</p> <p>1. In Ohio lex rei sitae controls in the construction of a will executed in another state hy a resident thereof devising lands in Ohio.</p> <p>2. Where by a will executed in another state a testator devises land situated in Ohio to his daughter “during her natural life and at her decease to go to her lawful heirs,” although under the rule prevailing in such other state such will would have conveyed a fee simple in accordance with the rule in Shelley's case, yet under the rule prevailing in Ohio, these words created only a life estate in such Ohio lands.</p> <p>3. A will executed in Indiana by a resident of that state, devising lands in Ohio but not probated in Ohio for forty years after its execution, conveys no interest in said lands in favor of a remainderman as against the adverse claims of those who have held open and notorious possession for more than twenty-one years claiming title.</p> <p>4. Such possession is adverse notwithstanding the fact that the warranty deed under which it was originally acquired from the devisee in said will recited the fact that the grantor held title by such devise. Such recital, while said will remains unprobated in Ohio, is not such notice to the one in possession as to prevent. the statute of limitations from running in his favor.</p> <p>5. A remainderman who has full knowledge of his rights as remainderman, or who ought to have had such knowledge, and who knows or ought to .know that such rights depend upon an affirmative act on his part to be performed, can not, by standing by and refusing or failing to perform that act, postpone the time at which the statute of limitations will commence to run against him.</p> <p>6. When the original will is lost and a certified copy of the record of said will in a foreign jurisdiction is offered in evidence and it further appears that said original record contains a marginal item and that a part of said marginal item as recorded was below the signature of the testator, the presumption is that said record is a true copy and a true reproduction in form of the will as originally signed by said testator, and unless this presumption is overcome by evidence, such will is by reason of said marginal . item, invalid in Ohio to pass title to property in Ohio.</p>

<p>NOTICE TO CORPORATION OF CONTRACT OF EMPLOYMENT.</p> <p>Corporation — Re-organisation of, under Laws of Different State — Notice to President of Contract of Employment — Ratification of Contract.</p> <p>1. Notice to the president of a corporation concerning a matter within the scope of his authority is notice to the corporation.</p> <p>2. Where a corporation enters into a contract of employment, and shortly thereafter a new corporation is organized under the laws of a different state, and this new company takes over the business and property of the old company, and retains the same officers, and permits the party with whom the contract of employment was made to proceed with his work for several months, the knowledge of the president as to the term of the contract becomes the knowledge of the new company, and its action in continuing the other party to the contract in its employment is a ratification of the contract.</p>

<p>DAMAGES TO RIPARIAN OWNER CAUSED BY THE WASH FROM MINES.</p> <p>Damages — Measure of where Land, is Injured or Its Value Destroyed —Liability for Trespass — Where Various Parties have Contributed Thereto — Verdict Dividing the Damages among Trespassers — Can Not be Required, When — Mines and Mining — Injury from Wash , from Mines — Bpecies of Appropriation — Loss of Rental Value— Permanent Depreciation — Evidence—Charge of Court.</p> <p>1. The measure of damages to a riparian owner, caused by the wash from mines poured into the stream above him, is the difference in the value of the land before and after the injury occurred, and not the depreciated rental value from the date of the occurence of the injury; and it is consequently competent for a plaintiff in such a case to prove the nature and extent of the injuries complained of and the amount of loss sustained.</p> <p>2. Where such injury is caused by the action of several mine owners acting independently, and in an action against one of them there is no effort to prove the amount contributed by the other mines to the injury, or to show the jury the actual injury for which the defendant alone is responsible, the jury can not be required to divide the amount of the injury equally among them, and return a verdict against the defendant for only its aliquot part thereof.</p> <p>3. The presumption obtains that the jury understood the charge of the court and applied it correctly; and where a jury find in a case involving a species of appropriation that the plaintiff’s land was substantially taken from him, it is consonant with right and justice for the court to charge and the jury to award interest on the amount of damages assessed in his favor, at least from the time he demanded redress.</p>

<p>INJURY TO EMPLOYE FROM EXPLOSION OF GAS.</p> <p>Negligence and Concurrent Negligence — Master and Servant — Wrongful Death Caused from Explosion of Gas — Implied Duty of Foreman — Assumed Rislc — Fellow-Servant—Charge of Court.</p> <p>1. In an action on account of the wrongful death of an employe, caused by an explosion of gas in the tunnel where the men were at work, there should be submitted to the jury the question of negligence on the part of the company in permitting the gas to accumulate, where testimony has been introduced tending to prove that the means employed for the expulsion of the gas were insufficient and defective, and that the defendant company knew and the decedent did not know of these defects.</p> <p>2. Whether it was an implied duty of the foreman under the circumstances to attempt to repair a light connected with a wire charged with electricity, and was therefore acting within the scope of his employment when he produced a spark which caused the explosion, was also a question which should have been submitted to the jury.</p> <p>3. There being testimony tending to prove that the engineer, who was a fellow-servant of the decedent, failed to operate the air compressor on the day of the accident, it was error to refuse to charge the jury that an employer of men is not an insurer of the safety of such men, and if he furnishes reasonably safe machinery and competent men to operate the same, and an accident happens to an employe by reason of the failure of fellow-servants to operate such machinery, then the employer is not responsible for the ■ injury.</p> <p>4. It was also error to refuse to instruct the jury in a special or in the general charge that the plaintiff assumed the risk of such injuries from accident as are incident to the nature of the work in which he was engaged, and against which the defendant could not by the exercise of ordinary care have protected him.</p> <p>5. Failure to point out in other parts of the charge the particular respects in which the defendants were alleged to be negligent, renders erroneous, under 72 O. S., 58G, the instruction that “before the plaintiff can recover she must prove by a preponderance of the evidence that the city or the Gawne Company, or both, were negligent in at least some of the respects alleged in her petition, and that her husband was killed as a direct result of this negligence.”</p> <p>6. It was error in such a' case to state to the jury that the petition contained the allegation that the ways and means for putting air into the tunnel and getting the gas out were insufficient, and known to be so by the defendants, but unknown to the deceased, without adding the instruction that each and every fact contained in this averment was essential to constitute negligence.</p>

<p>ACTION AGAINST THE BACKER. OF A BUSINESS FOR PAYMENT OF THE DEBTS.</p> <p>Actions — Pleading—Principal and Surety — Where there was an Agreement to Become Responsible for Debts Incurred in a Certain Business — Joinder of with am Action on a Note — Statute of Frauds— Amendment — Failure to Allege that Claims have Matured.</p> <p>1. Failure to set out the endorsements in an action on a note, or to state that there are no endorsements, is a defect to be reached by motion and not by demurrer,</p> <p>2. A petition which alleges that the plaintiff was engaged at , a specified salary to carry on a certain business for the defendants, who .were to become responsible for the liabilities incurred in the conduct thereof, sets forth a state of facts which would create the relation of principal and surety, upon which an action could be maintained after the debts have become due to compel the defendants to pay them.</p> <p>3. But a petition in a suit to compel a principal to pay the debts to save his surety is open to demurrer for failure to allege that such debts have become due.</p> <p>i. The joinder of a cause of action on a promissory note with one to compel the payment of debts by a principal to save his sureties improper and open to demurrer, .as is also the joinder as parties defendant to such an action of creditors of the principal who are strangers to the note and in no way connected therewith.</p>

<p>ILLEGAL OCCUPATION OF LAND BY RAILROAD.</p> <p>Eminent Domain — Railways—Occupation of Land by, under Written Agreement■ — Railroad Company Assignee of the Grant — Its Rights no Greater than Those of the Grantee — Usurpation of Rights — Injunction — Law of Appropriation.</p> <p>Í. Section 0448, relating to the appropriation of property, applies only where the occupation is without any agreement with the owner.</p> <p>2. A railroad company which began the occupation of land under an assignment of a written agreement with the owner, can not by usurping rights prohibited by the agreement be said thereafter not to be occupying under the agreement; nor do the rights of the railroad company under such an assignment rise higher than those of the original grantee.</p> <p>3. Where the grant permitted the laying of a spur-track across the land of the grantor, with the condition 'and limitation that the track can be used only for certain specified business, injunction will lie to prevent tlie carrying ot a greatly increased business over this track without compensation to the owner.</p> <p>4. The fact that the owner of the land in such a case might tender a deed and demand compensation for the land occupied by the track, is no defense to an action to enjoin the railroad company from unlawfully continuing its use and possession of the property.</p>

<p>CONTRIBUTIONS TO MAKE UP A SHORTAGE.</p> <p>Embezzlement■ — Compounding a Felony — Criminal Distinguished from Civil Liability — Contributions to make up Defalcation — Not Illegal, When — Executed Illegal Contracts — Court Assumes Function of Jury, When — Trial.</p> <p>1. Where at the close oí the evidence each party by motion asks for a directed verdict in his favor, the court assumes the place of the jury, and the question thereafter presented is not whether there was a scintilla of evidence either way, but whether the court was authorized on the evidence to take the action which was taken.</p> <p>2. Contributions for the purpose of making good a defalcation are not illegal so far as the making good of the civil liability of the defaulter is. concerned; and where such contributions' are made by members, of a building association acting in their individual capacity, such action is not in the nature of compounding a felony, in the absence of any promise or agreement on the part of the building association not to' .institute or cause to be instituted criminal proceedings against its secretary, whose shortage has thus been made good.</p> <p>3. Where a member of a building association, at the solicitation of other members of the association and acting in common with them, cancels the credit which he has in the association with the direction that the amount thereof be used to make good the shortage of the secretary of the association, he can not thereafter maintain a suit to set aside the cancellation of his credit on the ground that the contract which he thereby entered into was illegal because compounding a felony.</p> <p>4. Were it true that such action amounted to compounding a felony, still no relief could be granted, for' the reason that where an illegal contract has been executed the court will leave the parties where it finds them.</p>

<p>PAY OF PUBLIC SCHOOL TEACHERS WHILE ATTENDING TEACHERS’ INSTITUTES.</p> <p>Schools — Teachers Attending Institutes — Entitled to Pay Therefor, When — Section 4091 Construed — Liberal Policy of State with Reference to Schools.</p> <p>The provision of Section 4091, Revised Statutes, for the payment of teachers in the public schools of any county, in which a county institute is held, their regular salary for the week they are in attendance at the institute, applies alike to those who have been engaged to teach for the ensuing school year but whose schools do not open until after the holding of the institute, and to those who have not yet been employed but are thereafter employed for a term beginning within three months after the close of the institute.</p>

<p>LITERAL CONSTRUCTION OF A FORCIBLE DETAINER. STATUTE.</p> <p>Forcible Entry and Detainer — Construction of Section 6601 — Literal Application of the Provision — Malcing the Statute not a Bar — Its Constitutionality — Long Acquiescence.</p> <p>Section 6601, providing tliat judgments either before a justice of the peace or in the court of common pleas under the forcible entry and detainer chapter, “shall not be a bar to any further action brought by either party,” is not class legislation and unconstitutional because in the interest of landlords, and should be literally construed.</p>

<p>THE DOCTRINE OF RES IPSA LOQUITUR NOT APPLICABLE TO ELECTRICITY.</p> <p>Electricity and Electrical Wires — Fact of Escape of Electricity not Sufficient in the Absence of Negligence to Charge Electric Companies with Liability for Damages — Fire Started by Fugitive Current — Reasonable Safety Devices — Classification of Electricity— Doctrine of Res Ipsa Loquitur not Applicable — Charge of Court.</p> <p>1. The mere fact that electricity, generated by an electric railroad company, escaped from its trolley wire to one of its span wires; thence to a telephone cable of a telephone company;, thence to a telephone cable of another telephone company; thence to a gas • pipe in a store building; thence to the lead connection with a gas meter in the basement, which was melted off, igniting the gas, setting fire to the floor above and damaging a stock of goods, does not render all or any of said companies liable in damages- to the owner of the goods, in the absence of proof of negligence on the part of one or more of said companies.</p> <p>2. Electricity is of a highly dangerous character, but of such common and recognized use in modern civilization that its use and keeping are sanctioned by law, and if injurious consequences flow from its use and keeping, negligence of the user or keeper must be shown to render him liable to one injured by an electric current.</p> <p>3. In the absence of a contractual relation between the parties, or of a statute regulating the matter, the doctrine of res ipsa loquitur applies only to the case of such highly dangerous things or agencies as are kept or used solely because of their highly dangerous character, and not to electricity which is classed with steam rather than dynamite.</p>

<p>CHOICE OF MATERIAL FOR. STREET PAVING.</p> <p>Street Improvements' — Not a Delegation of Power by Council — To Designate Materials in the Alternative — Discretion of the Board of Public Service in Naming the Material and Awarding the Contract.</p> <p>1. A board of public service, where required by a street improvement ordinance to choose one of three materials after bids were received, performs only a ministerial act, and as the agent of the city council executes its legislative command.</p> <p>2. There is no statutory provision requiring that the discretion of the board of public service in the selection of material for the improvement of a street shall be controlled by the wish of the property owners, and where the board exercises its discretion in good faith, its decisions can not be interfered with by the courts.</p> <p>3. The provision of Section 143 of the Municipal Code that the public service board “shall make a contract with the lowest and best bidder,” does not require that the award be made to the lowest bidder, and where the action of the board in awarding the contract is free from fraud, its discretion can not be controlled.</p>

<p>THE PROSECUTING ATTORNEYS’ SALARY ACT.</p> <p>Constitutional Law — Provision for Salaries for Prosecuting Attorneys Invalid — No Provision for Minimum, Compensation or Authority to Fix Compensation.</p> <p>1. Prosecuting attorneys are not local officers, but are a part of the permanent organization of the government of the state; hence Section 1297, Revised Statutes, providing for their compensation, which specifies the maximum amount thereof in certain counties, and fixes the salary in other counties on a basis of population, is unconstitutional and void, as being a law of a general nature lacking uniform operation throughout the state.</p> <p>2. Whether Section 1297, Revised Statutes, providing for the compensation of prosecuting attorneys, is not void for uncertainty in its operation, in establishing maximum salaries, but fixing no minimum amounts, and in failing to name the authority to determine the same in the several counties — Quaere?</p>

<p>QUO WARRANTO AGAINST CORPORATIONS FORMING AN ILLEGAL COMBINATION.</p> <p>Monopoly — Quo Warranto to Oust Offending Corporations — Jurisdiction of Circuit Court — Service of Summons on Non-Resident Corporations — Joinder—Ouster—Words and Phrases — Statutes Construed.</p> <p>1. Quo warranto proceedings brought by the Attorney-General against several corporations to oust them from their corporate franchises on the ground that they have entered "into an illegal agreement or conspiracy in restraint of trade and in violation of the anti-trust laws of the state, may be commenced in the circuit court of any county where one or more of the defendant corporations is situated or has a place of business, and process may issue thence to any other county where any other of the defendant corporations is situated .</p> <p>2. For purposes of prosecution an illegal combination among corporations in Restraint of trade exists in each and every county where its constituent members exist.and act; hence the contention is erroneous that quo warranto proceedings based upon such illegal combination must be brought in a county where the combination does business as a separate entity. '</p> <p>3. A service of summons on a corporation by leaving a certified copy thereof at the usual place of residence of the president does not answer the statutory requirements, is defective and will be quashed on motion.</p> <p>4. A service of summons upon a foreign corporation by delivering a copy thereof to a superintendent of such company, “he being in charge of the usual place of doing business of said company,” but it not appearing that he is the “managing agent” of said company, is defective and will be quashed if it appear that the corporation as required by Revised Statutes 148d, has designated another person as the one on whom process should be served.'</p>

<p>FRAUD DISTINGUISHED FROM FALSE WARRANTY.</p> <p>Contract — Of Sale and Purchase — Fraud—False Warranty — Form of Action Covering Each — Charge of Court.</p> <p>Where a vendor’s warranty was both false and fraudulent, an action will lie for rescission of the contract of sale and recovery of the purchase price; but if the warranty proves false, but was not fraudulently made, the remedy of the vendee is in a suit for damages on account of the breach.</p>

<p>INJURIES RESULTING FROM A DEFECTIVE SIDEWALK.</p> <p>Street — Existence of, Sufficiently Proved, When — Negligence—Questions as to, in Going upon a Defective Sidewalk — Degree of Gare Required — Contributory) Negligence as Suggested by Plaintiff’s Own Testimony — Verdict for $1,000 for Personal Injury not Excessive, When.</p> <p>1. In a suit for personal injuries resulting from a fall on a defective board-walk located- on wbat is designated in the petition as . Sycamore street, to which only a general denial was interposed, the existence of such a street is sufficiently established, where it appears from the evidence that the way had long been used as a street, and that it was known as Sycamore street, and houses were built upon it, and no evidence was offered and no suggestion made that it had not been accepted, notwithstanding as a matter of fact it was not an accepted and dedicated street.</p> <p>2. One is not bound to leave a sidewalk and go into the roadway simply because of his knowledge that the walk is out of repair, and he is not chargeable with contributory negligence where the evidence shows that while on the walk he conducted himself as an ordinarily prudent person would do under the same or similar circumstances.</p> <p>3. "When an uneducated woman in ordinary life, when asked on cross-examination whether she exercised the same care in walking upon the walk where she was injured that she would have done had she been upon a walk known to be in good repair, replied in the affirmative, her response will not be regarded as sufficient to show she was1 guilty of negligence in walking upon the defective walk.</p> <p>4. A verdict of $1,000 in favor of a woman thus injured is not excessive, where the injury consisted of a broken elbow, which has caused her great pain and will prevent her ever straightening her J arm or opening or closing her hand, and as a consequence she has become dependent upon charity; and the fact that she is being supported in an infirmary at public expense does not deprive her of her right to recover.</p>