Superior Court of Cincinnati.

Spear deciding that case, and quoting from Clev. C. C. & I. Ry. v. Elliott, 28 Ohio St. 340, stated the rule to be that where the undisputed facts show that by the exercise of ordinary care a party might have avoided injury, he cannot recover. And applying these rules to the testimony before the jury, we believe that the trial court, finding that there was no conflict of the evidence upon the essential facts, properly regarded it a question for the court.

We are of the opinion that this course was proper, and that the jury was fully justified by the record presented in this case.

CONTRACTS-EVIDENCE-PARTNERSHIP.

[Superior Court of Cincinnati, General Term, July 18, 1905.]

Ferris, Hosea and Hoffheimer, JJ.

SARAH A. WAITE V. SAMUEL J. SCOTT ET AL.

LATENT AMBIGUITY IN PARTNERSHIP CONTRACT EXPLAINED BY PAROL EVIDENCE. Where issue is joined upon the question whether or not a partnership exists between plaintiff and defendant, the latter claiming to be a mere nominal partner without individual capital in the business and in fact only the representative of his wife's inherited share therein, such issue raises an equitable defense predicated upon a latent ambiguity in the contract in question, and evidence tending to prove the existence of a partnership relation is admissible,

ERROR to Hamilton common pleas court.

Johnson & Levy, for plaintiff in error.

J. H. Charles Smith, Harper & Allen and J. W. Curtis, for defendants in error.

PER CURIAM.

From an examination of the record we find no material error to the prejudice of the plaintiff in error, the plaintiff below. The case turned principally upon the question of the partnership relations of the plaintiff with the defendants, Samuel J. and George E. Scott, with whom the plaintiff's husband, Joseph T. Waite, was nominally a partner, but claimed to be without individual capital in the business and in fact the mere representative of his wife's inherited share therein.

This issue was fairly raised in the answer of Samuel J. Scott and denied in plaintiff's reply, and its determination properly left to the jury. We cannot say from the evidence of record that the jury exceeded their proper function in deciding the issue against the plaintiff. The issue raised an equitable defense predicated upon a latent ambiguity in the partnership contract; and evidence of the nature given was properly admitted under well-established rules and tended to support the fact of partnership relations. The charge of the court was not excepted to, and we find no such errors therein as to justify reversal.

Archdeacon v. Gas & Elec. Co.

ABATEMENT-DEATH BY WRONGFUL ACT.

[Superior Court of Cincinnati, General Term, January 12, 1906.]

Ferris, Hoffheimer and Littleford, JJ.

(Judge Littleford of the Hamilton common pleas sitting in place of Judge Hosea.) *CORNELIUS ARCHDEACON, ADMR. V. CINCINNATI GAS & ELEC. CO ET AL. ACTION FOR WRONGFUL DEATH BY ADMINISTRATOR WHOSE APPOINTMENT WAS NOT PERFECTED FOR TWO YEARS AFTER THE DEATH WILL BE DISMISSED.

If the appointment of an administrator be not perfected by his giving bond until after two years after decedent's death, the cause of action for death by wrongful act under Rev. Stat. 6134, 6135 (Lan. 9673, 9675) is barred and will be abated, notwithstanding the fact that the administrator's application for appointment was made and the action commenced before the statutory period had fully run.

[Syllabus approved by the court.]

ERROR to special term.

W. A. Rinckhoff, D. T. Hackett and Chas. W. Cist, for plaintiff in error.

Outcalt & Foraker, Jos. W. Heintzman and Smith Hickenlooper, for defendant in error.

FERRIS, J.

The plaintiff in error was the plaintiff below, and the defendant in error was the defendant below. The case seems not to have been heard on its merits, but a hearing was had on facts set forth in a special answer, in the nature of a plea of abatement under the following facts:

It was made to appear that on February 5, 1903, application was made in the probate court for letters of administration on the estate of John Archdeacon. The administrator signed his bond but gave no sureties. Letters of administration were as a consequence not issued to him. But on the twenty-eighth day of March, 1903, suit was filed by the administrator, alleging his appointment and seeking to recover for wrongful death of the decedent, John Archdeacon. Defendant thereupon filed an answer admitting plaintiff's appointment and qualification as administrator, but denying liability. Thus the case stood until March 10, 1905, when plaintiff's attention was called to the omission made by him in the matter of his failure to have proper sureties and consequent lack of letters of administration. The case came on for trial on March 13, 1905, when defendant sought and obtained leave to file an amended answer denying the appointment of the administrator, and thereupon filed a motion to dismiss the action, which motion was by the court regarded as a plea in abatement, and upon hearing the court found the

*Affirming Archdeacon v. Gas & Elec. Co. 15 Dec. 585.

Superior Court of Cincinnati.

facts to be as above stated, rendered judgment upon the pleadings and dismissed the action; to all of which plaintiff duly excepted. No exception, however, appears to have been taken to the action of the court in permitting the filing of the amended answer setting up the plea in bar that the plaintiff was without legal capacity to maintain the action. The court below construing Rev. Stat. 6134, 6135 (Lan. 9673, 9675), found that the conditions precedent constitute a part of the cause of action and must, therefore, be performed before cause of action accrued and remedial rights arose and further found that the words "creating rights" under the provisions of this section, being unknown to common law, should be given an effect in harmony with the words used to accomplish the purpose intended, and that the limitation of two years within which an action should be brought for the recovery of damages in case of wrongful death was an essential condition of the right of action, in all of which we concur.

Our attention has been drawn to the fact that, under the authorities collated in 11 Am. & Eng. Enc. of Law (1 ed.) 908, the title of the administrator to property of his intestate relates back and takes effect from the time of the death of the decedent, legalizing all acts otherwise valid done by the administrator before his appointment and vesting in him a cause of action accruing between the granting of letters and the death of the intestate. Revised Statutes 6135 (Lan. 9675) provides, with reference to such action, that, "it shall be brought in the name of the personal representative of the deceased person within two years after the death of such deceased person."

This limitation of two years was held in the case of Pitts. C. & St. L. Ry. v. Hine, 25 Ohio St. 629, "to be a condition qualifying the right of action and not a mere limitation of the remedy. It is, therefore a necessary condition to the right of action." Wolf v. Railway, 55 Ohio St. 517, 529 [45 N. E. Rep. 708; 36 L. R. A. 812]. The court also holds such administrator thus appointed to be a mere nominal party, having no interest in the case for himself or the estate he represents, and there being no estate in being, and consequently no assets of any kind, but the entire object of the statute referred to being for the purpose of creating an estate it is held that the rules referred to in 11 Am. & Eng. Enc. of Law (1 ed.) 908 are not applicable. Steel v. Kurtz, 28 Ohio St. 191.

In reaching these conclusions, by which we concur with the action of the court below in holding the plea in abatement good, we have not overlooked the salutary rules that govern in matters of a surrogate nature, where the acts of a de facto administrator have been given full force and effect as if done by a de jure administrator, but we believe as to those as well as to the acts of an administrator de son tort, when properly done, that such rules do not contravene the necessity found by the

Archdeacon v. Gas & Elec. Co.

court below, of making strict construction of the statute regarding the action as begun only when conditions precedent have been fully complied with.

We see no error and therefore concur in the conclusions of the court as found in Archdeacon v. Gas & Elec. Co. 15 Dec. 585. Littleford and Hoffheimer, JJ. concur.

STREETS-RAILROADS-MUNICIPAL CORPORATIONS.

[Superior Court of Cincinnati, Special Term, February 1, 1904.]

LOUISVILLE & N. RY. v. CINCINNATI, N. O. & T. P. Ry.

1. PUBLIC STREETS-RAILROADS-INTERFERENCE WITH TRAFFIC BY RAILROAD CrossING STREET DAMNUM ABSQUE INJURIA TO ABUTTER.

Where a railroad company owning a lot on a public street on both sides of which lot are lots owned by another company proceeds to construct a track leading from its lot and across the street, thereby interfering with traffic along the street and between the two lots owned by the other company, the injury sustained by the latter company, differing in degree but not in kind from that sustained by the community at large, is damnum absque injuria.

2. CONSTITUTION-IS INJURY TO ACCESS TO LOT BY TRACK CROSSING STREET TAKING OF PROPERTY?

Whether the injury to the access to the two adjacent lots caused by extending the track across the street between the lot lines produced of the defendant company is taking of property in violation of the constitution, quaere.

3. DOES REV. STAT. 3283 (LAN. 5239) EMBRACE ALL INJURIES OR ONLY THOSE NOT COVERED BY THE CONSTITUTION?

Whether the provisions of Rev. Stat. 3283 (Lan. 5239) relate only to those injuries not covered by the constitutional provisions or are broad enough to cover injuries from whatever source, quaere.

4. BOARD OF PUBLIC SERVICE HAS NO POWER TO GRANT USE OF STREET TO STEAM RAILROAD.

The act of April 18, 1878 (75 O. L. 115), applying only to the trustees of the Cincinnati Southern Railway Company, does not confer upon the board of public service of Cincinnati the power to grant to steam railroads the right to use the streets, nor is there any other provision of the statutes giving such a board such a power.

5. ONE SPECIALLY INJURED BY PUBLIC NUISANCE MAY ENJOIN.

One owning property in close proximity to a railroad unlawfully operating in a street suffers special damage and is entitled to injunctive relief to prevent the same.

Ellis G. Kinkead and Challen B. Ellis, for plaintiff.

Edward Colston, for defendant.

SMITH, J.

This case comes before me on a motion to dissolve the temporary restraining order heretofore issued.

The plaintiff is the owner of a lot on the southeast corner of Water and Plum streets in the city of Cincinnati, fronting one hundred feet

Superior Court of Cincinnati.

on Water street and about four hundred and fifty feet on Plum, running back southwardly on parallel lines to low watermark on the Ohio river. The defendant is the owner of a lot immediately adjoining the aforesaid lot on the east, fronting sixty-six feet on Water street and running back southwardly in parallel lines about four hundred and fifty feet to low watermark on the Ohio river. The plaintiff is also the owner of the property immediately east of the lot of the defendant, fronting over two hundred feet on Water street and running back southwardly in parallel lines about four hundred and fifty feet to low watermark on the Ohio river, and bounded on the east by Elm street.

The lot owned by the defendant was purchased from the executor of the estate of one, Regan, and in the discussion of the motion has been called the Regan lot.

The defendant company is the lessee of the Cincinnati Southern railway for a term expiring in 1966. By the terms of its lease the board of trustees of the Cincinnati Southern railway are obliged to furnish certain terminals for the lessee, and in pursuance of this obligation are now condemning the land on the north side of Water street opposite the lots owned by plaintiff and defendant, although the condemnation proceedings are not yet completed.

Water street is a public street of the city of Cincinnati, and the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company occupies the middle of the street with a single railroad track known as the Cincinnati connection track, over which it operates engines and cars in great numbers to connect with other railroad tracks in the city of Cincinnati.

In the month of February, 1903, defendant obtained from the board of public service of Cincinnati the right to construct, maintain and operate a single track railroad across Water street from said sixtysix foot lot to land opposite and on the north side of Water street now in process of appropriation by the board of trustees of the Cincinnati Southern railway for the use of the defendant as lessee as aforesaid.

The defendant has constructed on its sixty-six foot lot on the south side of Water street a railroad track for the use of its engines and cars, intending in time, after the appropriation proceedings with respect to the property on the north side of Water street have been completed, to extend its tracks to said property by crossing Water street under the grant made to it as aforesaid by the board of public service.

The plaintiff filed its petition in this court alleging that the defendant company, having constructed its track on the Regan lot, as has been stated, "is about to extend said track across the sidewalk in front of the said lot owned by it and out into the street, connecting the same with the said connection track in the centre of said Water street, and in front of and near to the property of the plaintiff above set forth."