Upon a motion for judgment on the ground that the pe.ition does not aver sufficient facts to entitle plaintiff to recover, the court will consider the petition as it would consider it if submitted upon gen- eral demurrer. Wicker V. Mes- singer. .425
Section 4272, Rev. Stat., prescrib- ing what are sufficient allegations in such cases, does not require the pleader to set out with legal exact- ness and particularity a state of facts which would bring him within either Secs. 4270 or 4271, Rev. Stat., prohibiting gaming. A plain state- ment of the situation is sufficient. Averments that the defendant has the money, that it is due the plain- tiff and that it was obtained in a gambling transaction are sufficient. Rogers v. Edmund.
In an action for wrongful death, alleged to have been the result of a defective fly wheel, a petition which charges negligence on the part of the defendant, and knowledge of the defect, and avers that plaintiff's de- cedent did not know of such defect, though without averments that de- fendants or decedent by the exer- cise of ordinary care should or would have known of such defect, is sufficient; and particularly where no objection was made to the ab- sence of such averments until after the case went to trial. Forrest City Stone Co. v. Richardson.
A demurrer does not admit the truth of a mere conclusion. Secur- ity Fire ILs. Co. v. McFarland. 591
When a fact is asserted in a plead- ing which raises no presumption that will amount to a defense to the action, the pleader is called upon to assert and supply such facts or de- fenses as will take the place of pre- sumption and bar recovery; and this cannot be supplied by pleading findings or conclusions. Ib.
A general denial of all material allegations of the petition would not be good against a motion to make more definite and certain, but where no such objection is taken the answer is sufficient to put in issue plaintiff's allegations as to in- juries, their permanency, etc., and expenses incurred for care and nursing and physicians' bills. New York, L. E. & W. R. R. Co. v. Harber. 648
Under a petition to enforce the collection of assessments for street improvement, showing that thereto- fore in a proper proceeding, in a proper tribunal and between the proper parties, the claim set forth was adjudged to be a lien upon the premises described in the petition and that it is unpaid, no question on demurrer can arise as to the valid- ity of the act under which the im- provement was made nor in regard to the statute of limitations. umbus v. Schneider.
A petition to enforce the collec- tion of assessments for a street im- provement which shows that there- tofore in a proper proceeding, in a proper tribunal and between the proper parties, the claim set forth in the petition was adjudged to be a lien upon the premises described in the petition, and that it is unpaid, is sufficient on demurrer. Columbus v. Schneider. 778
Under such a petition no question can arise as to the validity of the "Penn Act," under which the assess- ment proceedings were conducted, nor in regard to the statute of limi- tations.
It is a sufficient averment of fraud in a petition to set aside a judgment to allege that the merchandise for which the judgment was obtained, was sold to plaintiff's husband and that afterwards the name of the wife was inserted in the account therefor, without her knowledge or consent, which account with her name so fraudulently inserted was sued on and judgment procured
Pleading-Principal and Agent.
against her. Ullman, Einsten & Co. v. Effinger. 746 In an action for injunction which was denied, a supplemental petition asking for another injunction and for damages, does not alter the nature of the cause. Weitzel v. Delhi (Vil.). 737
Omission of an initial letter from the name of a plaintiff corporation in a petition may be corrected al- though the time within which pro- ceedings in error may be com- menced has expired. Bartels Brew- ing Co. v. Schumacher. 726
An allegation in an answer, in an action for injuries sustained by rea- son of the unsafe condition of the approach to a bridge that "the ac- cident was due to the condition of the road and not in any way to said bridge or its condition" states mere conclusions, and not facts, and is open to demurrer. Dayton v. Har- 574 See also AMENDMENT; CHARGE TO JURY; CONTRACTS; INSURANCE; INTOXICATING LIQUORS.
Rules and regulations for the government of the fire department of Cleveland made by the mayor and head of the department under Secs. 1545-51, Rev. Stat., are made by the head of the department as contemplated by Sec. 2464, Rev. Stat.. and do not lose their force by the fact that the mayor joined in making them. Ib.
Under Secs. 1545-24, Rev. Stat., 92 O. L., 446, the federal plan law of Cleveland, which provides for the creation of a tribunal consisting of the mayor, director of law and president of the city counch to hear and determine charges preferred against officers who have been re- moved by the head of the depart- ment to which they belong, in which no provision is made as to a quorum, a finding and sentence by two members of the board, made upon consideration by the whole board, is a finding by the board and is valid. State v. Barrett. 231
In the execution of a power dele- gated for purposes merely private, it is necessary that all to whom such power is delegated should con- cur in the act, but if persons be en- trusted with powers of a general nature, or for public objects, if all are acting, a majority will conclude the minority, and their act is the act of the whole. Ib.
The powers and duties of the tri- bunal created by Secs. 1545-24, Rev. Stat., 92 O. L., 446, the federal plan law of Cleveland, consisting of the mayor, director of law and president of the city council, to hear and de- termine charges preferred against officers who have been removed by the head of the department to which they belonged, are of a general na- ture and for public objects. Ib.
PRINCIPAL AND AGENT-
Principals are bound by the con- tract of their agent made with their knowledge and authority, although such agent is trustee of a trust con- tained in a written instrument not conferring such authority. Haven Co. v. Carlisle. 716
The fact that owners of property consented that the agent in charge thereof, or the trustee above re- ferred to, should use rents to pay
Principal and Agent-Railroads.
additional expense of improvements amounts to an approval of the agent's contract for such improve- ments. Ib.
See also HUSBAND AND WIFE. PRINCIPAL AND SURETY-
See BILLS AND NOTES. PROXIMATE CAUSE
See NEGLIGENCE.
PUBLIC FUNDS-
No provision having been made under Secs. 3946, Rev. Stat. et seq., authorizing proceedings in the pro- bate court for the creation of special school districts out of terri- tory within township, for a division of the school funds, a special dis- trict so set off and created May 12, 1898, is not entitled to any portion of the funds held by. the township board of education September 1, 1898, notwithstanding the same have been raised for school purposes by levies upon the property of the whole township, including that within the special school district. State v. Board of Ed. 423
QUO WARRANTO-
See PARTIES.
Where the servant is not engaged at work upon the track in such a way as to have his attention drawn from trains coming or going, but is simply passing over the track, he is obliged to exercise as nigh a de- gree of care with respect to looking and listening as any other person lawfully or of right passing over the track. Pennsylvania Co. v. Ma- honey. 366
A railroad employe engaged in operating a stationary engine and dynamo situated on opposite sides of a sidetrack, running through a cut, and where cars are stored, is within the rules above stated, and in attempting to cross the railroad track without looking or listening for the approach of an engine, is guilty of contributory negligence which will defeat his recovery not- withstanding the negligence of the railroad company in failing to sound bell or whistle. Ib.
The fact that such employe once looked and listened before attempt- ing to cross the track will not excuse
him if, before crossing, he allowed sufficient time to elapse for an en- gine to come into position where it would render it dangerous for him to cross, and he then attempted to cross without looking or listening.
Where the circumstances disclose contributory negligence, the matter of excuse must be shown by the per- son injured and the rule is not dif- ferent where the person is deceased; then it must be shown by the per- son seeking recovery for the death. Ib.
Evidence that it was the custom of a railway company to give warn- ing of the approach of trains or en- gines at a point where employees were obliged to cross in attending to their duties, is competent to rebut a possible inference of contributory negligence; such custom might come to have the force of a rule of the company requiring such warn- ing; and an employer relying thereon might be excused from look- ing or listening; under such circum- stances it would not lie in the mouth of the company to say that an employee must be vigilant and suspicious, and watch out all the time for a violation of duty upon the part of the company or some employee of the company. Ib.
The rule of law which excuses passengers from the obligation to observe a strict lookout for trains and locomotives when alighting from or getting upon trains over the tracks of a railway company, does not apply to employees whose duties may require them to cross the tracks in the yards or at the depots of the railway company. Ib.
Notwithstanding the absence of statutory regulations or require- ments, a railroad company is re- quired to exercise care proportion- ate to the dangers at a place where employees, in the discharge of their duties, are required to cross the railway tracks. Thus it is the duty of a railway company operating a side-track where cars are stored, and where employees are frequently obliged to cross between the cars, to give warning of a purpose to move such cars. Ib.
Sections 3342 to 3346, inclusive, Rev. Stat., making it the legal duty of the constructors of railroads to provide drainage for all waters that accumulate along the roadbed by
reason of its construction except where the roadbed is on or near swamp lands, the object being to prevent the creation of a public nuisance by accumulated standing and stagnant water in the first in- stance, and failing that to summar- ily abate it upon notice to the delin- quent, at the expense of the party creating or maintaining it, are not inequitable or unconstitutional. Said sections do not deprive a citi- zen of his property without due pro- cess of law. Chicago & Erie Rd. Co. v. Keith. 208
When, after a railroad spur track was constructed, with full knowl- edge of the railroad company, and maintained across a turnpike for five years, the turnpike company tore up the track, the railroad com- pany will not be enjoined from re- laying the track, and the turnpike company, having tacitly acquiesced in laying the track and having an adequate remedy at law, may be enjoined from tearing it up when relaid. Bridge Co. v. Railway Co. 723
A reorganization of a railroad company is the surrender of the charter of the old company and the issuance of a charter to the reor- ganized company, and the old com- pany ceases to exist save as to the winding up of its affairs, and has no longer any corporate existence out of which it may earn an income. King v. Railroad Co. 551
The word "construction," in Sec. 3284, Rev. Stat., providing that a railroad company in the construc tion of its roadbed may divert a road or stream of water when neces- sary, is not limited to the original building of the railroad, but gives the right to divert a road from its location in making the change of grade authorized by Sec. 3277, Rev. Stat., to avoid annoyance to the public and dangerous and difficult curves or grades. Lorain Co. v. Railway Co.
No judicial determination is necessary to authorize railroad com- panies to change grade to avoid difficult or dangerous grades or curves, under Sec. 3277, Rev. Stat., it being presumed that railroad companies would not make such expensive changes unless they were necessary; but where it is necessary to appropriate land for the purpose,
under Sec. 3278, Rev. Stat., proof should be made and the court should determine the necessity of the change. Ib.
See also JUDICIAL SALES; MORT GAGES; NEGLIGENCE; STREET RAIL- WAYS; APPROPRIATION; CHARGE TO JURY.
When the report of a receiver in proceedings to dissolve a corpora- tion is filed in court, as provided in Sec. 5670, Rev. Stat., and proper ex- ceptions are filed to such report, it is error for the court to refuse to hear such exceptions, unless the parties excepting give bond to the effect that in case said exceptions are not finally sustained, they will pay the costs of such hearing, as well as legal interest upon the in- debtedness of the corporation dur- ing the time the confirmation of said report of the receiver is thereby delayed. Russell v. Insurance Assn. 82
REFORMATION OF INSTRUMENTS
Under the foregoing rule, the court held, in an action to annul a judgment on a note signed "The Standard Furniture Company, W. E. Snyder, Pres't; Lewis Heusner, Secy. & Treas.," against the officers individually, on the ground that there was a mutual understanding and agreement that the corporation alone should be liable, where the evidence was contradictory, an as- sertion on one side and a denial on the other, that no relief could be granted. Snyder v. Bank.
To reform a written instrument and obtain the relief prayed for, the proof should be clear and satisfac tory. It is not required to be be- yond a reasonable doubt, but the evidence must be such as satisfies the court that there was a mutual mistake in framing the written in- strument. Ib.
An action in replevin, or an ac- tion for damages where the property is not taken, is not defeated by the fact that defendant did not have actual possession of the property at the commencement of the action, where it appears that the defendant sold the property just previous to the commencement of the action and that plaintiff was ignorant of
Tischler v. Seeley. 750 Where an action in replevin is brought by the vendor under a con- ditional sale contract, against a sub- sequent mortgagee of the property, a tender under Secs. 4155-3, Rev. Stat., 82 O. L., 238, requiring re- funder of money paid, is unneces- sary.
SALARIES-
See FEES; STATUTES.
The word "shall" in the act of April 14, 1900, Secs. 4029-1-2-3, Rev. Stat., relating to the payment of tuition of students attending high school in townships other than that in which they reside, does not make the act mandatory, no provision be- ing made for the levying of taxes to meet such expense, and it being con- trary to reason and the constitution to require the payment of such ex- pense from funds levied for the com- mon schools, and especially in cases where such depletion would impair the usefulness of the latter. State v. Board of Ed. 337
The act of April 14, 1900, amend- ing Secs. 4029-1, Rev. Stat., et seq., and providing among other things for the payment by the board of ed- ucation of a township of the tuition of pupils of that township attending high school in the same or in an
adjoining county is directory and Ib. not mandatory.
The act 92 O. L., 683, to create a school teachers' pension fund, in cities of the third grade, first class, and making it the duty of the proper officers of the board of education to deduct one per cent. of the salaries paid to all teachers, and pay the same into the city treasury to the credit of the "school teachers' fund," is in conflict with Sec. 26, Art. 2, of the constitution providing that all laws of a general nature shall have a uniform operation through- out the state. State v. Hubbard. 87
The phrase paid to all teachers in city districts of the third grade of the first class” in act 92 O. L., 683, relating to a teacher's pension fund in Toledo, should be construed to mean and to read "school districts in cities of the third grade of the first class," and limits the applica- tion to that city. Ib.
The common schools are recog- nized and provided for in the consti- tution of the state and are institu- tions in which every community and every citizen is interested. Laws relating thereto are, therefore, of a general nature.
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