Russo v. Cleveland.

pair, but it is a special legislative grant to the city for private purposes. The sewers of the city, like its works for supplying the city with water, are the private property of the city; the corporation and its corporators-its citizens-are alone interested in them; the outside public, as people of the state at large, have no interest in them, as they have in the streets of the city, which are public highways. Detroit v. Corey, 9 Mich. 165 [80 Am. Dec. 78]."

The test thus furnished is easily applied to the case at bar. The people of the state at large have no interest in the disposal of garbage in Cleveland. That is for the convenience and health of a part only of the inhabitants even of the city-its householders. No distinction in principle is perceived between sewer service and garbage collection; if there is any, we think the former comes nearer to being a governmental function than the latter, as it answers a wider purpose and is for the advantage of a larger portion of the public. And the distinction becomes more marked, we think, upon the consideration that the municipality derives, or may derive, a revenue from its garbage, in which manifestly the people of Ohio outside of Cleveland can not share.

After some further discussion of what constitutes the dividing line between governmental agencies and municipal enterprises, the case last cited goes on to say:

"With regard to the liability of a municipal corporation for the acts of its officers, the distinction is, between an exercise of those legislative powers which it holds for public purposes, and, as a part of the government of the country, and those private franchises which belong to it as a creature of the law; within the sphere of the former, it enjoys the exemption of government, from responsibility of its own acts, and for the acts of those who are independent corporate officers, deriving their rights and duties from the sovereign power. But in regard to the latter, it is responsible for the acts of those who are in law its agents, though they may not be appointed by itself. Commissioners v. Duckett, 20 Md. 468, 476 [83 Am. Dec. 557]."

Here again we have a standard easily brought to bear upon the present case; the power exercised which carries with it im

Cuyahoga County Appeals.

munity from liability must be one held "for public purposes, and, as a part of the government of the country." To spread the immunity over all the subordinates of a government and thus to clothe all alike with an exemption which amounts to an attribute of sovereignty, seems to confound all just notions of what sovereignty means and to put a tidewaiter on a par with its president, assimilating the office of the one to that of the other and surrounding each with equal dignity and importance.

If the line between an agency of government, carrying with it exemption from liability for the torts of the agent, and persons whom the law does make responsible for their wrongdoings, can not be drawn higher than a collector of garbage, it is hard to see that it can be drawn anywhere. All city employees will alike be clothed with legal immunity and will be safeguarded in their acts, whatever they may do or omit. This result would push the doctrine to a perilous consequence, as seems to us, but if the court below was right in taking this case from the jury, we see no escape from the view that such a conclusion must be accepted as law.

We think the case already discussed-Cincinnati v. Cameron, supra-points out the rational and true line of cleavage to be observed, namely, that "the public of Ohio," as people of the state at large, have no interest in the work in which the city of Cleveland was engaged when the plaintiff's intestate came to his death in consequence of the city's negligence while so engaged, and that, as a consequence, the city can not escape any just liability thus caused and occasioned.

We reach this conclusion notwithstanding the arguments of counsel to the contrary and the cases marshalled to support them, believing that none of the latter are of authority compelling a different consequence. Most, if not all, of the cases can, we think, be differentiated from the case in hand, but we shall not take the time to do so; we have, however, examined them with suitable attention.

For error of law in arresting the case from the jury and rendering judgment, thereupon, for the defendant, the court below was in error, as we find. For that error the judgment is reversed and the cause is remanded to that court for further proceedings not at variance with law.

McFarland v. Clark.

EVIDENCE-TRIAL WILLS.

[Union (3rd) Court of Appeals, March 14, 1918.]

Hughes, Kinder and Crow, JJ.

BLANCH MCFARLAND, ET AL. V. JAMES E. CLARK, ET AL.

1. Will Contests not Exempted from Scintilla Rule or Jury From Determining of Evidence.

In a will contest the jury, and not the trial judge, is required to weigh the evidence and determine whether or not the contestant has offered sufficient evidence to overcome the prima facie case made by evidence of the original will and record of its probate. Hence, evidence having been offered on the part of contestant tending to prove each material fact in issue, of which was the testimony of two physicians, having no personal acquaintance with testator, testifying in answer to hypothetical questions based on facts previously in evidence that testator lacked sufficient mental capacity, it is exercising the province of the jury for the court to ignore the testimony of the physicians and direct a verdict for defendants.

2. Trial Statement Failing to Include Important Issue not Limitation on Introduction Later.

A party is not required to state, nor is he limited by what he does state as to what the evidence in the case will be; hence, failing to make reference in a trial statement in a will contest, as to a fact expected to be proved, does not justify the rejection of evidence that is competent, material and relevant.

3. Hypothetical Question Supported by Evidence. Tending to Prove Facts Enumerated Permissible.

A hypothetical question should not be excluded because it is not framed upon the best evidence, it is proper and should be permitted to be answered if supported by evidence tending to prove the facts therein enumerated.

[Syllabus approved by the court.]

ERROR.

Cameron & Cameron, for plaintiffs in error.

Brucker, Voegle & Henkel and Robinson & Hoopes, for defendants in error.

HUGHES, J.

This was an action commonly known as a will contest under the statutes.

The record discloses that there was no evidence offered by the contestant tending to prove a lack of mental capacity to

29 O. C. C. Vol. 39.

Union County Appeals.

make the will, on the part of the testator, nor tending to prov undue influence, (there being no other issues suggested through out the record), except the evidence of two physicians. These two physicians had no personal acquaintance with the testator but in answer to a hypothetical question based upon facts that had been testified to with more or less clearness by other witnesses, stated that in the opinion of each, the testator had not sufficient mental capacity to make a will.

At the close of the evidence the court, upon the motion of the defendants, directed the jury to return a verdict in favor of the defendants, declaring the paper writing to be the last will and testament of testator.

This was done by the trial court as he then stated, "leaving out the question of the hypothetical question to the two physicians because their answers were based upon statements that were made to them and not upon the facts in the case; they had no personal knowledge or acquaintance with the party," upon the theory that in a will case the trial court is not bound by the scintilla rule, but is required to first weigh the evidence and determine whether or not the contestant has offered sufficient evidence to overcome the prima facie case made by the introduction in evidence of the original will and the record of its probate, by the defendants.

There is t be found authority for this proposition, such as the case of Gomien v. Weidemier, 39 O. C. C. 1 (27 N. S. 177), and Kammann v. Kammann, 39 O. C. C. 349 (26 N. S. 66), and the cases commented upon in the above named authorities.

In a will contest case the issues are to be first made up and then tried by a jury and we can see no reason for making an exception of these cases and permitting the court at any stage of the proceedings, to weigh the evidence. The contestant ha: as much right to have the issues of fact determined by the jury in these cases as he has in any other case in which he is entitled to a jury trial.

It is argued that had the verdict of the jury been in favor of the contestant, the court would have been required to set aside the same as against the weight of the evidence, and he therefore was obliged to direct a verdict because of this fact, in

McFarland v. Clark.

conjunction with the fact that the defendants started with a prima facie case under the statute, which they claim it was the province of the court to say had not been overcome.

Defendants had, 'tis true, made a prima facie case by the introduction of the will and the probate record, yet it was the right of the contestant to have the facts in the case determined by a jury, and when she had offered evidence tending to prove each material fact involved in the issues, it became just as much a question of fact for the jury in this case as in any other case and there can be no reason why the trial court should be authorized to weigh the evidence to the extent of determining whether or not it was sufficient to overcome this prima facie case,.and if in his opinion it was not, to direct a verdict.

It can as well be said in cases of this kind as in the trial of any other jury case, quoting Justice Ranney,

"Aside from the fact that such a practice involves an assumption of power by the court which the constitution and the laws have committed to the jury, in the very case supposed, the plaintiff would have good cause to complain of injury. A nonsuit puts him out of court, and charges him with the costs; a new trial leaves him in court, and, ordinarily, exacts the costs from the other side. It would also have deprived the plaintiff of the benefit of the statute limiting the power of the court, in granting new trials, to not more than two to the same party." Ellis v. Insurance Co. 4 Ohio St. 638, 647 [64 Am. Dec. 610].

If the rule were otherwise, what is there to prevent the court from weighing all the evidence that has been offered in any will case and passing judgment upon it by saying that it is not sufficient to overcome the prima facie case? Why could not the court in any case say that because the witnesses who have testified against the will would profit by setting it aside. are prejudiced and their evidence cannot be considered as overcoming this prima facie case? Or, why could not the court say that those numerous witnesses who are but business acquaintances, who have testified to the mental incapacity of a testator, are not to be considered competent to overcome such prima facie case because they lack an intimate daily acquaintance sufficient to pass reliable judgment?

There is no reason suggesting itself to us why a jury trial