text:
    SLIGHT VIOLATION OF A BUILDING RESTRICTION.
    Circuit Court of Cuyahoga County.
    The Windermere Realty Company v. Paul G. Searles.
    Decided, June 21, 1902.

      Covenants — When Substantial Compliance, Coupled with Neglect to Object to Breach of Building Covenant a Defense.

    Where it appears that the plaintiff has had full knowledge of the facts and made no protest while the defendant was incurring expense in constructing a porch on his house in such a manner as to be a slight violation of a covenant not to build any part of the house nearer than 30 feet to the street line, and it also appears that other lot owners in the same allotment have violated the same covenant to the same, or a greater degree than the defendant, a court of equity will not enjoin the completion and maintenance of the porch.

      M. B. Johnson, for plaintiff.

      ttmiih .£& Taft, contra.
    Caldwell, J.; Hale, J., and Marvin, J., concur.
   This action was brought by the plaintiff to enjoin him from constructing his house nearer than thirty feet to the side of the street in front of the same. This is an allotment belonging to the plaintiff, in which it is selling lots, on which lots houses are being built, and, in its deeds to purchasers, it places a line thirty feet from the side of the street and requires every part of the building to be back of that line.

It appears from the evidence in this ease that the defendant has allowed his porch to project over that line about two feet; .the porch is twelve feet wide; when his attention was first called to the fact that he was over the line, liis porch was about half completed.

The defendant shows that two other houses having the same restriction as to one, and the same restriction except as to the distance as to the other, have been built over the thirty foot line; that in the one ease the porch extends over moré than does the porch of the defendant, and in the other the party has brought his porch nearer the street some ten feet than the limitation prescribed in the deed, and it is said that that has been done with the consent of the plaintiff and that the plaintiff has made no objection to the porch on the other side of the street from the one that has encroached ten feet, and that, by reason of the fact that it allows the steps of the houses of nearly all that are built on the street, to be built entirely within the thirty feet, there is a waiver of the provisions of the contract contained in the deed and which is sought to be enforced in this action. That the other lot-owners on the street, aside from the plaintiff, are not seeking to take advantage of the mistake of the defendant in allowing his porch to project over the thirty foot line; but the plaintiff has other lots upon the street to sell and other houses to be erected, and this contract- should be construed as any other contract.

If there has been a material violation of it and no waiver, it should be enforced. All that is required in the carrying out of contracts in this state is, that there shall be a substantial compliance with the terms of the contract. We would not like to say in this case that this is a substantial compliance with the contract, unless the plaintiff has itself so' treated other non-compliances. If the plaintiff has treated other non-compliances as substantial compliance with the contract, we do not see why the courts should not so treat this.

Another rule applicable to the carrying out of all contracts is, that, if there has been anything near a substantial compliance, the court should not interfere if, by so doing, it will do much injury to the party violating the contract, and bestow no substantial benefit upon the party seeking to have it enforced.

■Applying’ these rules to this case — there has been a violation of this contract, but, in two other instances, saying nothing of the steps of the houses, the plaintiff seems to have acquiesced in a greater violation of the same; it is said and admitted, that it has been done with the plaintiff’s consent. This throws light upon what the plaintiff regards as a substantial variation from the contract.

In the cases referred to above, it was not regarded as' a substantial variation, while, in this case, in less degree it is so regarded.

The evidence shows that the porch in question will be open, will not obstruct the view of other lot o'wners to any extent, and will be of no substantial injury to the plaintiff, but it will be of considerable injury to the defendant to enforce the covenant strictly, as it said that he can not cut down his porch two feet without greatly disfiguring and disproportioning the appearance of his building.

The greatest injury, perhaps, to the plaintiff would be that this might be a precedent for other persons projecting the porch over the line named in the deed. But. in this case the plaintiff made no complaint at all until the porch was about half completed and, if complaint had been made before the porch was built, undoubtedly the court would have been compelled to make the defendant keep back of the thirty foot line. And, in any ease hereafter where the plaintiff did not stand by until the defendant had been to a large expense, seeming at least to give assent to what the defendant was doing, the court would feel at liberty to force the covenant in the deed. •

One of the houses spoken of above has its foundation and roof of the porch projecting over the thirty foot line, but the posts supporting the roof of the porch are set back of that line, with which arrangement, so far as we learn in this case, the plaintiff seems content.

A porch projecting over a line for a few inches or a foot or two is not so serious an objection as though the main body of tho house projected. It leaves the entire space substantially open to view and air and but very little disfigures the symmetry of the plan of building.

We hold in this case that the defendant shall place his posts back on the thirty foot line. The evidence shows that he can do this without materially injuring his porch and without expense; and, under all the facts and law as above referred to, we feel that this is as much as we should require the defendant to do, taking into consideration other violations of a like covenant, taking also into consideration that his attention was not called to the .fact that he was over the line until his porch was half completed, and taking into consideration the fact that requiring him now to cut down, -would be expensive and materially injure the appearance of his house, and that the damage to the plaintiff is substantially nothing.

Instead of granting the injunction prayed for herein, we simply order that the defendant place his posts back of the thirty foot line.

Without any intent in any way to forestall the plaintiff as to any action which he may have under a like covenant in any other deed, we make this decision entirely upon the peculiar facts of this one case, which are not intended to apply to any other with dissimilar facts.


source: Caselaw Access Project

license: Public Domain

text:
    VALIDITY OF SIGNATURE TO CHATTEL MORTGAGE.
    Circuit Court of Cuyahoga County.
    Edward Hobday v. Lewis Sands.
    Decided, June 21, 1902.

      Chattel Mortgages — Names—Mortgage Executed by Signing Correct Name Valid Though Mortgagor is Known by Another Name.

    Where the owner of personal property is known by different names, a chattel mortgage executed by her and signed by her with her correct name but with a slight variation in spelling, is, when recorded, notice to a subsequent mortgagee of the property, though the name signed is not the one by which she was commonly known.
    Marvin, J.; Caldwell, J., and Hale, J., concur.
   Each of the parties of this action took a chattel mortgage upon the same property, both given by the same person who was the owner of the property. This mortgagor was a woman engaged in the keeping of a house of prostitution; she was known by different names. The mortgage to Sands was given prior to the giving of the mortgage to Hobday. IIobday got possession of the property. Sands brought suit in replevin. Upon a jury trial in the court of common pleas, Sands recovered. IIobday prosecutes this proceeding for the purpose of reversing the judgment of the court of common pleas. He claims, first, that the evidence shows that the mortgage given to Sands, was to secure a loan made by Sands to the mortgagor for the purpose of enabling her to carry on her unlawful business. This question was properly left to the jury, the court saying in its charge on that subject as follows:

“The defendant claims that the plaintiff, Sands, intended to assist in the furthering or extending a house of prostitution, ■ and the question is for you to determine: gentlemen, did he intend in making this loan to assist this woman in the illegal act of keeping a house of prostitution? If he did, then the law will not aid him in such a matter and he can not recover in this case,”

Upon tlie issue the jury found with Sands,'aud we hold that this was not so contrary to the evidence as to justify a reversal on that account.

The mortgagor signed the mortgage to Sands, with the name of “Inez Tozier.” The mortgage given to ITobday was signed “Inez M. Clyne.” It is not claimed that this last name was ever -the true name of the mortgagor although it does appear that she was known for a time by that name. It does appear that her father’s name was “Toser,” and he testifies that the name, of the mortgagor was Mary Toser. She herself testifies that her name was Mary Inez Tozier. This change of the spelling from Toser, as her father spelled it, to Tozier, as she gives it, is not very material — surely is not greater than many very respectable people change the spelling of'the paternal name. We find some rather prominent people who spell the name of themselves Cooke, whose father spelled it Cook; Smythe, when the fathers spelled it Smith. A man, somewhat prominent in the literary world a few years ago, wrote his name Henri Browne, but admitted on the witness stand that in his boyhood days, his name was spelled Henry Brown.

Tt is probable from the evidence that the name Inez was taken by this woman after she left home. It is certain that the name Clyne was an assumed name. She was, however, very generally known by the name of Inez Clyne about the time when these mortgages were given. And, on the part of the plaintiff in error, it is urged that the mortgage to Sands being signed as it was, was no notice to those who should have dealings with the mortgagor, although the mortgage was properly filed and recorded.

Without doubt the purpose of the -law in requiring these mortgages to be filed and indexed, is to give notice to the public of the existence of such mortgages, so that one making examination in the proper office may know whether property is mortgaged or not.

Tn the case of Lessee of Simeon Jennings v. Robert Wood, 20 Ohio. 261, it is held that, where the officer in recording a deed made by Lemuel Granger, mistook the name and wrote instead Samuel Granger, such record was not notice that Lemuel Granger had conveyed away any property.

In this last named case there was no claim that the grantor had ever been known as Samuel Granger. It is true that the names, “Samuel,” and “Lemuel,” when written, look somewhat alike, and, as- written by many persons, might look very much alike. But the two names are wholly distinct, and one looking for a conveyance made by Lemuel would not be likely to examine the index under the letter S.

But, in the present case, it is clear that this mortgagor was very generally known by the name of Inez, and, when the mortgage was given to Sands, she inquired what name she should sign, and was told to sign her true name, whereupon she did sign the name Inez Tozier. In the case of Fallon v. Kehoe, 38 Cal., 44, this language is used in the syllabus:

“If the true owner conveys property by any name, the conveyance as between the grantor and the grantee will transfer the title.
“The execution of a conveyance of land by the owner in his rightful name, though different from that in which he acquired it, when duly recorded, will operate as constructive notice of the sale and transfer of the title and will take precedence of a subsequently recorded, deed to the same land executed in the name by which it was acquired.”

See also the case of Alexander Brothers v. Graves, 75 Neb., 453.

We think no violence was done to any decision of the Supreme Court of Ohio by holding on this matter as the court below held, and that the authorities to which attention is last called and the reasons therefor, justify an affirmance of the judgment; and the judgment is affirmed,


author: Gorman, J.

text:
    DAMAGES FOR. BREACH OF CONTRACT TO PURCHASE FLOUR.
    Court of Appeals for Hamilton County.
    Domestic Science Baking Company v. Sheffield-King Milling Company.
    Decided, January 17, 1916.

      Damages — Measure of, in Action for Breach of. Contract to Purchase Specific Personal Property — Provision for Liquidated Damages Must be Treated as a Penalty, When — Evidence Admissible as to the Amount of Damages Actually Sustained.

    In an action under a contract for purchase and sale which has been breached and related to as common and stable an article as flour, a provision for ascertaining the resulting damages by a rule which would give an amount greater in excess of what was actually suffered must be treated as a penalty to be imposed rather than as liquidated damages, and the defendant in such a case should be permitted to show all the circumstances surrounding the making of the contract which would tend to disclose the real loss sustained.

      W. A.-Rinclchoff, Murray Seasongood and Robert P. Goldman, for plaintiff in error.

      Stanley K. Eenshaw, E. R. Donohue and E. L. Eoidale, contra.
   Gorman, J.

On the 5th of August, 1912, the parties hereto entered into a contract whereby the defendant in error agreed in writing to deliver f.o.b. the cars at Faribault, Minnesota, four thousand barrels of flour of one hundred and ninety-six pounds each, the defendant in error, the seller, to pay the freight from Faribault to Cincinnati. The flour was to be packed in jute bags of one hundred and forty pounds each. The price of the flour was $4.75 per barrel at Faribault. The deliveries were to be made between October 1, 1912, and March 1, 1913, via C., H. & D. Railroad. Payment was to be by draft with bill of lading attached, to be paid through the Market National Bank of Cincinnati. Shipments were to be made upon the order of the vendee, the Domestic Science Baking Company.

The contract provided for damages which should be payable by the vendee in case of breach. In substance it was agreed in the contract to sell that—

" If the buyer fails to furnish directions for shipment within original contract time or prior to the date of expiration of extension, seller may, (1) extend contract limit thirty days, subject to carrying charges * * *; (2) ship the goods at his option within, thirty days * * *; or (3) terminate contract, in whieh case the following is agreed upon as the basis of settlement, viz. : the actual difference between the highest closing price of No. 1 Northern wheat in Minneapolis on date of sale and date of cancellation as shown by the ‘Minneapolis Market Record/ figuring four and one-half bushels of wheat for every barrel of flour, the buyer to reimburse the seller for carrying the wheat at the rate of one cent per bushel per month from the date of sale to date of cancellation, plus two cents per bushel for buying and reselling the wheat, and two cents per bushel to cover loss of profit, if any, and inconvenience to seller resulting from failure of buyer to take out flour as per contract. ’ ’

There were other terms and conditions in the contract, but these, are sufficient to present the questions whieh arose in this cause in the trial below.

The vendee, the Domestic Science Baking Company, ordered out and received 750 barrels of flour, but refused and neglected to order the remaining 3250 barrels, and refused to give directions therefor and breached the contract.

The action was brought by the defendant in error in the court of common pleas to recover the damages claimed to have been sustained under this contract by reason of the breach of the contract on the part of the plaintiff in error in refusing to order out the remaining barrels of flour.

Upon the trial of the cause below the trial court held .that no evidence was admissible to show the market price of flour either at Faribault, Minneapolis, or at Cincinnati, but the parties, in the determination .of the amount of damages whieh might be recovered, were limited to the rule laid down in the contract for determining these damages. . Under this rule, allowing tbe vendor the amount agreed upon under the contract, the damages for the failure to take the 3250 barrels of flour would amount to about $4,400. The Domestic Science Baking Company offered to show the market price of the flour in question at Cincinnati on the date of the breach of the contract, and further offered to show the market price at Faribault, Minnesota. The court refused to allow this to be done, and counsel for plaintiff in error, so the record discloses, stated that if it were permitted to prove the market price of flour at' the time and place of delivery, when the breach occurred, the damages to the ShefSeld-King Company would not exceed $500. In fact, it was claimed that the evidence would show, if admitted, that there was little or no damage resulting to the plaintiff below.

During the trial the Sheffield-King Milling Company waived its claim of two cents per bushel to cover the loss of profit, and the court instructed the jury to return a verdict in favor of the plaintiff below for $4,185.46, which included interest. If the plaintiff below had not waived its claim of two cents a bushel prospective profits, the amount of the verdict under the instructions of the court would have been nearly $4,500.

Plaintiff in error asks for a reversal of this' judgment, upon the ground that the court erred in refusing to permit it to offer evidence tending to show the market value of the flour at the time of the breach and at the place of delivery; and for the further reason that the court refused to permit it to offer evidence tending to show the situation of the parties at the time the contract was entered into and all the surrounding circumstances.

The court below instructed the jury to return á verdict in favor of the plaintiff upon the theory that the provisions of the contract, for liquidation of damages, were agreed upon between the parties, and that no other rule of evidence is admissible-to establish damages. The court also held that under the evidence there was no question of the breach of the contract, because the defendant below had refused and neglected to take the remainder of the flour.

We are of the opinion that the judgment should be reversed, and the case remanded for a new trial.

In this state the rule is well established that the measure of damages for the breach of a contract of sale of specific personal property is the difference between the market price and the contract price at the time and place of delivery. Section 844, General Code; Cullen v. Bill, 37 O. S., 236; Nixon v. Nixon, 21 O. S., 114; Smith v. Lime Co., 57 O. S., 518.

It is true that parties may agree upon a sum as liquidated damages in ease of a breach of a contract of this character, but courts will closely scrutinize such agreements for the purpose of determining whether or not the stipulation fixed is a penalty, or correctly represents the damages sought for the breach of the contract and which naturally flow from the breach.

The trial court was of the opinion that the rule laid down in Doan v. Rogan, 79 O. S., 372, should be applied to the instant case. In that case there was a contract entered into between four partners, and among other provisions of the contract was the following:

“That if either Seth H. Doan, Dudley J. Mahon or Conrad Roth shall sever his connection with the said temporary partnership or said corporation without the consent of Michael J. Rogan and within three years from this date, the person so offending shall pay said Michael J. Rogan the sum of one thousand dollars as liquidated damages.”

The Supreme Court held in that case that this was a reasonable provision for liquidated damages, and in the second paragraph of the syllabus the court said:

“Whether a stipulation providing for liquidated damages for the breach of a contract is to be construed as liquidated damages or as a penalty, depends upon the intention of the parties to be gathered from the entire instrument. While courts will not construe contracts in a way authorizing recovery for liquidated damages simply because the parties have used that term in the agreement, yet where parties to a contract otherwise valid have in terms provided that the damages of the injured party by a breach on the part of the other of some particular stipulation, or for a total breach, shall be a certain sum specified as liquidated damages, and it is apparent that damages from such breach would be uncertain as to amount and difficult, of proof, and the contract taken as a whole is not so manifestly unreasonable and disproportionate as to justify the conclusion that it does not truly express the intention of the parties, but is consistent with the conclusion that it was their intention that damages in the amount stated should follow such breach, courts should give effect to the will of the parties as so expressed and enforce that part of the agreement the same as any other.”

It will be noted that in the case just cited the damages would be difficult if not impossible of ascertainment. The amount of damages, if any, which could he recovered would be quite uncertain, and there was nothing unreasonable in providing that $1,000 should be paid as liquidated damages for the breach of the contract under all the circumstances of that case.

But in the case before us, flour is a common article or commodity, bought and sold throughout the length and breadth of the land, in every city, town and hamlet. It is perhaps as common an article of commodity as is bought and sold daily throughout the United States. It is common knowledge that flour has a market value which perhaps may fluctuate from day to day, from week to week, or from month to month, but it has a market value easy of ascertainment, and there is no difficulty in finding out what is the market value of any grade of. flour made in any part of United States. If there is no market value at any particular point in the United States, then the market value of flour at the nearest point to that place may be taken and the cost of carriage between that point and the place where the market price is desired to be fixed would determine the market price in the locality where there are no quotations.

It appears to this court that there would have been no difficulty in determining the market value of this flour, either at Faribault, Minnesota, or at Cincinnati, and the excuse for fixing a sum as liquidated damages does not exist in this case. It was not difficult to ascertain the market price. The damages for the breach of the contract would be in no wise uncertain, and it would be entirely unreasonable to allow damages in a ease of this kind, which would amount to almost eight times the real damage suffered by the vendor on account of the breach of the contract.

Taking these matters all into consideration, we think the reasonable conclusion to reach is that the construction to be placed upon the language in this contract which undertakes to prescribe a rule for ascertaining the damages, is that it shows a penalty was provided, rather than liquidated damages.

Section 440, in 1 Pomeroy’s, Equity Jurisprudence, page 728, in the note, states:

“Whether the sum mentioned shall be construed as a penalty or as liquidated damages is a question of construction on which the court may be aided by circumstances extraneous to the writing. The subject-matter of the contract, the intention of the parties, as well as other facts and circumstances, may be inquired into, although the words are to be taken as proved exclusively by the writing.”

The court below should have permitted all evidence to be offered tending to show the situation of the parties at the time this contract was entered into, all the surrounding circumstances, and testimony as to the market value of the flour, and the question should then have been submitted to the jury not as to whether or not this was a penalty, but as to what the real damages were in the case.

In the case of Mt. Airy Milling Co. v. Runckels, 118 Md., 371, the first paragraph of the syllabus is as follows:

“In a contract the statement of the parties as to liquidated damages is generally regarded as a penalty unless the contrary intention is unequivocally expressed, so that harsh provisions will be avoided and compensation alone awarded.”

In Zenos v. Pryor, 106 N. E. R. (Ind.), 746, the following rule is laid down in the fifth paragraph of the syllabus:

“Where contracts leave in doubt the question whether sums specified therein by the contracting parties to be paid in case of a default are intended as liquidated damages or penalties, the court favors that interpretation which makes such sums penalties.”

It appears to the court that there is no reasonable or proper connection between the rule laid down in the contract, for ascertaining damages, and the actual damages that would result from a breach of the contract for the sale of the flour. Wheat was taken as the basis upon which to calculate the damages. Why not flour? Flour is just as common a commodity as wheat in the market, and the market price is just as easily ascertainable as that of wheat.

We do not deem it necessary to multiply authorities in support of the conclusion we have reached, that the provision for the ascertainment of damages in the contract under consideration shows that a penalty was to be imposed, rather than liquidated damages. Counsel for defendant in error have been specially diligent in citing numerous authorities in support of the contention that the ruling' of the court below was correct. A brief of more than one hundred and fifty pages was .filed with us, in which so many eases are cited that it appears to be an effort to “pile Ossa on Pelion” of adjudicated cases.

Many of these eases grew out of contracts to manufacture and sell certain articles, in which the measure of damages was difficult of ascertainment, no market price existing for the articles to be manufactured and sold. But in all cases in which the article sold was a common stable article sold in the market, having a well known or easily ascertainable market value, and where the parties undertook to fix as liquidated damages a sum largely in excess of the difference between the market price and the contract price, the cases have universally held that such stipulation would be treated as a penalty, rather than as liquidated damages.

We think substantial justice requires that the judgment in this case be reversed and the cause remanded to the court of common pleas for a new trial, so that the plaintiff in error may have an opportunity to show all the facts and circumstances surrounding the making of the contract, to show the market price of the flour at the time of the breach at the place of delivery, and all other facts and circumstances which would tend to show the real damage or loss that was sustained, if any, by the defendant in error.

Judgment reversed .and cause remanded.

Jones (E. II.), P. J., and Jones (Oliver B.), J., concur.


author: Houck, J.

text:
    PROSECUTION FOR. FAILURESTO PROVIDE FOR. CHILD.
    Court of Appeals for Columbiana County.
    William Elem v. State of Ohio.
    Decided, April 8, 1915.

      Parent and Child — Knowledge of Child’s Need Will be Imputed to Parent —Demand for Aid or Maintenance Not a Pre-requisite to Prosecution for Failure to Provide for Child — Section 13008.
    A parent who is able by reason of property, labor or earnings to provide care or maintenance of his or her child under sixteen years of age, may be convicted of failure so to do without proof of notice that the child is in need or of a demand or request that such care or maintenance be provided.

      George T. Farrell, for plaintiff in error.

      William H. Vodrey, Prosecuting Attorney, contra.
   Houck, J.

(sitting in place of Spence, J.).

' This cause is here on error from the common pleas court of this county, seeking to reverse a judgment of conviction, wherein the plaintiff in error, the defendant below, was convicted upon an indictment in which he was alleged to have failed, neglected and refused to furnish food, clothing, proper care and maintenance, to and for his bastard child, the indictment and conviction being under favor of Section 13008 of the General Code, which is as follows:

‘ ‘ Whoever, being the father, or when charged by law with the maintenance thereof, the mother of a legitimate or illegitimate child under sixteen years of age, or the husband of a pregnant woman, living in this state, being able by reason of property, or by labor or earnings, to provide such child or such woman with necessary or proper home, care, food and clothing, neglects or refuses so to do, shall be imprisoned in a jail or workhouse at hard labor not less than six months nor more than one year, or in the penitentiary not less than one year nor more than three years.” "

The defendant below was tried and convicted. A motion for a new trial was filed, heard and overruled, and to the overruling of the same the defendant prosecutes error to this court, seeking a reversal of the judgment below.

Counsel for the accused contends that the evidence offered in the ease does not show or prove that the accused is the father of said bastard child; and, further, that no demand or request was made at any time by any one for him to support or maintain said child, and therefore the verdict of the jury is against the weight of the evidence and contrary to law.

The statute in question was enacted by our Legislature for a purpose, and we think it is a proper and humane one, and is for the purpose of aiding and protecting communities and society to bring about the proper care and support of children by parents, whether they be born in or out of lawful wedlock, if the parent has the means and property for so doing, which the record shows the defendant possessed at this time.

Speaking from the record in this case, the accused associated with and kept the company of the prosecuting witness. He had sexual intercourse with her, and gratified his passions and desires, and is therefore not only morally, but legally responsible for his acts and conduct, which, in this ease, resulted in bringing into this life a bastard child, and is chargeable for its maintenance and support if he is proven, under the evidence, applying the proper rules of law thereto, to be the father of said child. We have examined the record and the testimony. The defendant below was represented by able counsel, and he had a fair and impartial trial.

It is the claim of couusel for the accused that the judgment below should be reversed. We think there is but one proper and reasonable answer to this, in the face of the record and the law applicable to the case at bar.

It is a well established principle of law in this state that a father is bound to know when his child is in need of food, clothing, care and support. He, being the father, is not only required to, but in law is bound to know it, and the law does not require him to be notified of that fact. The father owes to himself and the public the duty of taking care of and supporting his child, and the fact that no one called his attention to the needs of the child does not remove his moral, and his legal obligation as well, to his offspring, under the section of our statutes heretofore referred to.

It will be noticed that the statute under favor of which the accused was tried and convicted does not, by any terms therein, require that a demand or request shall be made upon the father for the performance of the duty enjoined and required of him in said statute. Nor, if effect is given to all the terms thereof, does it appear that such demand, or notice, or request, is required by implication.

We believe that these principles of law are sound; and applying them to the facts and evidence as disclosed by the record in this case, so far as this court is concerned, we are of the opinion that the defendant was properly and legally convicted, and that the verdict of the jury and judgment of conviction should stand, and that the defendant must atone to the offended law.

The judgment below is affirmed.

Pollock, J., and Metcalfe, J., concur.


author: Shields, J.

text:
    DUTY OF AN ELECTRIC RAILWAY COMPANY TOWARD PASSENGERS WHO ARE ATTEMPTING TO ALIGHT.
    Court of Appeals for Licking County.
    The Ohio Electric Railway Co. v. Margaret J. Vaughan.
    Decided, October Term, 1915.

      Woman Injured While Attempting to Alight from Gar — Duty of Conductor When Aware of Destination of Passenger — Degree of Care Required of Carrier While Discharging Passengers — Charge of Court.

    In an action by a woman who was injured by the premature starting of a car from which she was alighting, a request by the defendant company for the special charge before argument, that if the jury found “ — that the car remained standing for a space of time sufficient for her to alight and then started, that there was nothing to prevent her alighting while the car was so standing, that she remained standing on the platform step for that period of time, and then started to alight as the car started to move forward, and was thrown and injured thereby, she can not recover”— was properly refused, where the testimony establishes that the place where the accident occurred was a regular stop at. which passengers were in the habit of hoarding and leaving the cars, that the conductor knew the plaintiff desired to alight at that time and place and was encumbered with bundles, and there was testimony tending to show that she had started to alight when the car was started forward.

      Fitzgibbon, Montgomery <& Black, for plaintiff in error.

      Jones & Jones and B. F. McDonald, contra.
   Shields, J.

This was an action commenced in the court of common pleas of said Licking county by the defendant in error, plaintiff below, to recover damages against the plaintiff in error, defendant below, for personal injuries claimed to have been sustained by the defendant in error through the alleged negligence of the plaintiff in error,

The petition of the plaintiff alleged, in substance, that on the 13th day of June, 1913, she being then a passenger on one of the defendant company’s ears operating its line of street railway between Zanesville and Newark, Ohio, notified the conductor of said car that she desired to alight therefrom at what is known as the B. & O. crossing on East Main street in the city of Newark; that upon reaching said crossing said ear stopped; that upon being notified by the conductor of said car that said ear had reached said crossing, the plaintiff thereupon attempted to alight from said car and while in the act of so alighting and when on the steps of said car, said ear suddenly and without warning started, throwing the defendant in error violently to the pavement, injuring her as set out in her said petition to which reference is hereby made.

In its answer filed to said petition the defendant company admits that the plaintiff was a passenger on said car at said time, but avers that if she sustained any injuries, her own negligence contributed thereto, first, in not availing herself of reasonable time and opportunity given her to alight from said ear at said place, and secondly, in attempting to alight from said car while it was in motion.

While we do not find any reply to said answer among the files in said ease, it was conceded that one had been filed in the nature of a general denial of the allegations contained in said answer.

Said cause was submitted to a jury and a verdict returned for the plaintiff. A motion for a new trial was overruled and judgment entered on said verdict. A bill of exceptions was duly prepared and filed and a petition in error was filed in this court for a review of said judgment.

Said petition in error contains numerous assignments of error but the grounds of error insisted upon to this court were:

1. That the court below erred in giving certain written requests before argument in charge to the jury on behalf of the plaintiff below, and in refusing to give in charge to the jury before argument certain written requests in writing on behalf of the plaintiff in error, and for error of the court in its general charge to the jury.

2. That said court erred in its instructions to the jury in respect to the duty of the 'conductor of a car to look after passengers alighting from said car.

3. That the verdict of the jury is against the weight of the evidence and contrary to law.

Numerous requests appear to have been submitted in writing before argument both by the plaintiff and the defendant below with the request that they be given by the court in its charge to the jury, and it further appears that the' requests so made by the plaintiff in error were so given, except the last found on pages 155 and 156 of the bill of exceptions, which action of the court in refusing to give said request in charge to the jury is assigned as error. It is apparent that if the requests submitted by the defendant in error, which were given by the court in charge to the jury, contained sound propositions of law, said request of the plaintiff in error was properly refused. Said request is as follows:

‘ ‘ If you find that the plaintiff was standing on the rear platform of the car for the purpose of alighting therefrom when the ear ivas stopped, that the car remained standing for a space of time sufficient for her to alight, and then started, that there was nothing to prevent her alighting while the car was so standing, that the plaintiff remained, standing on the platform step for that period of time, and then started to alight as the car started to move forward, and was thrown and injured thereby, she can not recover in this action, and your verdict should be for the defendant.”

We think that the foregoing request was properly refused. It appears that the B. & O. crossing at this place was a regular stopping place where passengers were in the habit of getting on and off said defendant company’s cars, where the conductor of the car in question knew that the defendant in error desired to alight from said car at said time and place, and where, as the testimony tends to show, said conductor knew that she started to alight from said car. If these conditions were found by the jury to exist, was not the conductor of said car called upon to exercise care, caution and diligence, to see to it that said car was not started until the defendant in error fully and safely alighted from said ear, she being in the exercise of due care? And failing to do so, would not the defendant company, under such circumstances, be chargeable with - negligence for which it would be liable? Counsel for plaintiff in error cite us to the case of Transit Co. v. Holmes, 67. O. S., 153, in support of their contention. In that case there was a conflict in the testimony both as to whether the conductor of the car had notice that the defendant in error desired to get off the ear at a given place, and whether the defendant in error had not attempted to alight when the ear was in motion, neither of which is shown to be the fact in the case before us, for here it is admitted that the car stopped at the B. & O. crossing, that the conductor of the car then notified the defendant of such fact, and the defendant in error testified that she immediately followed the conductor to the vestibule of the car and when she reached the steps of the car in the act of getting off, the ear suddenly and without warning started and threw her to the pavement and injured her. Judge Davis in announcing the opinion in the case cited says:

‘ ‘ There is also conflict as to whether or not the conductor had notice of the plaintiff’s intention to get off, and whether the plaintiff attempted to get off while the car was moving. If the ear had come to a full stop for any- purpose and any passenger was in the act of alighting, it would be negligence for the conductor to start the car before such passenger had a reasonable opportunity to get off safely. * * * The law exacts of carriers of passengers a high degree of care for the safety of passengers, according to the circumstances, ana this duty ordinarily continues until the passenger is discharged. ’ ’

Again, in the case of Wilson v. Columbus, Newark & Zanesville Electric Railway Co., reported in Vol. 9, Ohio Law Reporter, page 594, which was affirmed by the Supreme Court of this State, the trial judge charged the jury as follows:

‘ ‘ The fact that at the place where this car stopped was a railroad crossing, which required the conductor to go forward and signal the car under his control to move forward, and that the conductor did so, did not excuse the conductor from exercising the care, caution and prudence required by law to know or see that the plaintiff was fully alighted from the car before having it started. On the contrary, it was his duty, if the car stopped and it was necessary to protect the plaintiff as a passenger and save her from injury, to exercise due care, caution and prudence to see and know .that she was safely alighted from the car before going forward or having the car started, and if he failed to do so the defendant is guilty of negligence.”

And in discussing the care required of a carrier toward passengers in getting on and off its cars, Thompson on Negligence, Section 3520, says:

"The high degree of care which the law puts upon the carriers of passengers is not fulfilled in the case of a street railway carrier, unless its servants before putting the car in motion, see and know that all passengers in the act of alighting have succeeded in doing so in safety, and that no passenger is in such a situation as to be put in peril by the starting car.”

Again, said section further says:

“It is the duty of the conductor before putting a car in motion, to see and know that no passenger is alighting or otherwise in a position which would- be rendered perilous by starting the car.”

And further:

“It is not enough that a reasonable time was given to allow passengers to alight; the carrier has no right to put his vehicle in motion and imperil life and limb, although they may have . taken an unreasonable time. ’ ’

What might be a reasonable time to one, might be an unreasonable time to another. The cripple, the aged, the blind, or one lumbered up with luggage, as was the ease here, might have much to do in determining what was or what was not a reasonable time to get off. The view we entertain of the obligation of the defendant company, under the circumstances detailed in the testimony in the case before us, is that in discharging passengers from cars at regular stopping places, they should be allowed not only a reasonable time to alight therefrom, but the duty rests upon the conductor or other employee having charge of such ears to look to it that such passengers are safely discharged before starting the ear in motion again, and if such passengers are in the act of alighting and are exposed to danger, such duty becomes the more apparent.

For the foregoing reasons we think the court below did not err in refusing to give said request, nor do we think that the said court erred in giving the written requests to the jury which were submitted by the defendant in error before argument, including the following:

“If the door on the left-hand side of the vestibule of the car was open when the plaintiff reached the vestibule of the car on her way to get off said car, it constituted an invitation to the plaintiff to use the left-hand side of the vestibule to get off, and her act in leaving the car on that side did not under the circumstances amount to contributory negligence.”

As counsel for plaintiff contend, the foregoing request is evidently incomplete, in this, that in the line next to the last line a word is omitted. In considering the entire charge of the court, we think it was obvious to the jury that such omission referred to the circumstances of the case, as shown by the evidence, and that the jury were not misled by such apparent unintentional omission.

As to the verdict of the jury being against the weight of the evidence, it is apparent that there is a conflict in the evidence, but there is evidence tending to support the claim of the defendant in error as made in her petition, and under the holding in the case of Gibbs v. Village of Girard, 88 O. S., 34, we do not feel at liberty as a reviewing court to disturb the finding of the jury.

Other assignments of error are made in said petition in error, all of which we have examined, and we find no such error in the record for which the judgment of the court below should be reversed.

' Upon the whole case, we are of the opinion that substantial justice has been done between the parties hereto by the verdict rendered, and find no difficulty in reaching the conclusion that the judgment of the court of common pleas should be affirmed and it is so ordered.

Houck, J., and Fernbding, J. (sitting in place of Powell, J.), concur.


text:
    UNREASONABLE OCCUPANCY OF STREET WITH RAILWAY TRACKS.
    Court of Appeals for Hamilton County.
    City of Cincinnati v. Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company.
    Decided, December 6, 1915.

      Raihoays — Laying of Tracks in Streets — Occupation of Street by Five Tracks Unreasonable — Rights Acquired by Appropriation Limited to Such as Council Might Grant — Authority of City Solicitor to Institute Injunction .Proceedings.

    1. There is no power or authority in a municipal council to grant the right to a railway company, either by ordinance or agreement with the company, to occupy, incumber and use a street by crossing it with five tracks connecting with a railway yard and in reality bocoming a part of the yard, particularly where access to the yard can be had without thus occupying the street; nor could the right so to do be acquired by appropriation.
    2. There is ample authority in Section 4311 for the bringing by the city solicitor of injunction proceedings against the unreasonable occupation of a street with railway tracks, regardless of failure on the part of council to authorize him so to do.

      Walter M. Schoenle and Constant Sovfhworth, City Solicitors, for plaintiff.

      Lawrence Maxwell and Joseph -Graydon, contra.
   Gorman, J.

The plaintiff brought this action in the common pleas court to enjoin the defendant from laying railroad tracks across Ludlow street, one of the dedicated and improved streets of. the city, and from obstructing said street; and it also asked fot a mandatory injunction requiring the defendant company to restore said Ludlow street, its sidewalks and gutters, to their- former condition. The cause is here oh an appeal from a judgment 6f the common pleas court.

It is claimed by plaintiff in its petition that the defendant is proceeding to lay four or five tracks and switches across and in Ludlow street from east to west between Front street and tbe Ohio river, and has in furtherance of said work torn up the boulders in the street, changed the grade of some portions of the street, destroyed the sidewalks and the west gutter and partly destroyed the east gutter of said street, and piled on said street large quantities of earth and other debris, thereby obstructing the street and rendering it unfit for public travel, and has otherwise damaged said street and materially interfered with and impaired its usefulness; and that this has been done and is being done without legal right or authority and in violation of the rights of plaintiff and the public in and to said Ludlow street.

Tbe defendant by an amended answer denies that it has unlawfully occupied said street; but says that its occupation of said street and its right to lay tracks across the same is lawful by virtue of certain ordinances and resolutions of the council of the city of Cincinnati adopted January 1,1864; May 16,1879; April 23, 1906, and especially by virtue of an ordinance adopted July 17,1905, number 984, which ordinance in substance granted permission to defendant company to construct and maintain three tracks and switch leads for two additional tracks across -Ludlow street south of Front street, said three tracks and the leads running from three -separate points from the west side of said "Ludlow street and converging toward a common point at the southeast corner of Front and Ludlow streets and connecting with the track at present laid in the center of Front street at a point one hundred and fifty feet east of Ludlow.

Defendant avers that it accepted said ordinance Angust 11, 3905, and has complied with and is now ready and prepared to comply with the provisions thereof.

By reply the plaintiff challenges the validity of said ordinance and denies that it is binding upon the city of Cincinnati, and denies the power or authority of its council to grant the defendant the right to lay said tracks.

The evidence adduced on the hearing in this court shows that the tracks to be laid across Ludlow street- are to connect certain yards of defendant with a connection track in Front street, which has been laid in said street for more than forty years. While the ordinance purports to grant the right to lay five tracks across the street — three tracks and two leads — it is claimed that but four tracks are intended to be laid at this time. A plat offered in evidence shows that not only will these four tracks be laid across the street, but there will also be placed in the street two switches whereby ears may be switched or shunted from any one of these four tracks onto any one of the other three. It also appears that just west of Ludlow street and to be connected with these four tracks across the street, is located a railroad yard of the defendant occupying a whole block, from Ludlow on the east, to Broadway on the west, and from Front street on the north to Giffin street on the south; that there are at present four tracks in said yards, and the purpose of extending these four tracks into Ludlow street and constructing switches therein is-to utilize all of the space in said yard for storage tracks, instead of placing switches within the yard limits; If these four tracks and the two switches can not be laid in Ludlow street then in order to use said yard provision must be made within 'the limits of the yard property for switches and leads, thereby curtailing the capacity of defendant’s yard. Indeed, it is manifest that these tracks and switches proposed to be laid in Ludlow street are but a continuation of the four tracks in defendant’s yard, and if permitted to be laid the entire width of Ludlow street will become as much a part of defendant’s yard as that portion thereof west of Ludlow street in which its four tracks are laid; so that under whatever guise the grant to lay these tracks was made, they are really intended to be used for and as a part of defendant’s yard. The switching and shunting of cars into this yard and upon the four.tracks now therein must necessarily take place more or less in Ludlow street and east of the street, and if this should be done to any considerable' extent the use of the street at this point will be very materially impaired.

It was shown by the evidence that Ludlow street is one of the main arteries of travel leading to the river. In the past, when a ferry line plied between Cincinnati and Newport, the boats landed at the foot of Ludlow and there was a great deal more traffic on this street than now, but now there is considerable traffic in the street south of Front street, and likely to be much more in' the future if the street can be kept open, clear and free from obstructions, because of the fact that the government of the United States proposes to maintain at all times a nine-foot stage of water along the entire river front of Cincinnati, and the river at the foot of Ludlow street is a desirable and unusually advantageous place to tie up boats for loading and unloading and for repairs. It further appears that there is no access to the river by any street east of Ludlow for a distance of about two miles, and that an impairment of the use of this street would be a material hindrance to river traffic.

It is claimed by the city solicitor that the council had no power or authority to grant, by ordinance or otherwise, the right to defendant to lay these tracks, and that being the only claim of right which the defendant asserts, if this contention be sound, then the defendant companjr is a trespasser in this street when it undertakes to lay these tracks under no other claim of right than is given by this ordinance.

It is further claimed by the city’s counsel that even if the council had the authority or power to grant permission to lay these tracks, nevertheless the use proposed to be made of the street by means of these tracks is such as to practically exclude therefrom the traveling public and renders such use unreasonable and therefore not permissible. If the council had the pojver to grant this permission to lay these tracks, it must be by virtue of some statute, for it is a well settled principle of law that municipal corporations (and of necessity their councils) have such powers and only such as are expressly granted or which are necessarily implied in order to enable them to carry into effect the express grants of power.

By the provisions of Section 3714, General Code, the council shall have the care, supervision and control of public highways, streets, etc., and shall cause them to be kept open, in repair and free from nuisance. But this grant of pouter to council does not carry with it the power to grant a right to a railroad company to occupy or incumber and use the streets of a municipality.

Louisville & Nashville Railroad Company v. City of Cincinnati, 76 O. S., 481. As was said by Summers, J., in deciding this case, on page 497:

“Public streets, squares, landings and grounds are held in trust for the public, and being so held they are, for the uses for which they were dedicated or acquired and subject to the property rights of abutting owners, under the absolute control of the legislative power of the state. In this state the care, supervision and control of public highways, streets and grounds in cities is delegated to the council, but notwithstanding this delegation of general power over them, the state, now and since 3852, has in express terms delegated to cities the power to grant to railroad companies the right to occupy or incumber and use them, or in express terms has made the right subject to agreeing with the municipal authorities as to the manner in which they are to be occupied, so that the general power of care, supervision and control, that has been delegated does not carry with it the power tó grant such right, and a grant by the council of a city of permission to occupy the streets .and public grounds does not confer such right.”

Counsel for defendant has failed to point out any statute which authorizes council to grant permission to lay these tracks, and since such permission can not be granted under Section 3714, General Code, we are compelled to examine further to see if there exists any statute which authorized council to make this grant.

If power has been conferred on council to grant permission to lay tracks in a street or across a street, or to agree upon the terms and conditions upon which this may be done, it appears to us it must be sought for in the provisions of Sections 8763 to 8766 inclusive (formerly See. 3283, R. S.). In substance these sections provide that if in the location of any part of a railroad, etc., it be necessary to occupy with a surface or elevated track, etc., any public road, street, etc., the municipal corporation or public officers owning or having charge thereof, and the company, may agree upon the manner, terms and conditions upon which it can be used and occupied. If the parties are unable to agree thereon, etc., the company may appropriate so much thereof as is necessary for the purposes of its road, in the manner and upon the terms provided for the appropriation of the property of individuals.

In the case of Rockport v. Railroad Co., 85 O. S., 73, the Supreme Court held that under the above sections — then Section 3283, Revised Statutes — in the words of Judge Donahue, announcing the opinion of the court, on page 82:

“It necessarily follows that the railway company can acquire no further rights by appropriation than the village council could grant by ordinance or contract.”

Furthermore, the court in this case just cited said on pages 84, 85 and 86, in so many words, that a railroad company is not authorized to appropriate a part of a street, for all of its purposes, but that under the above cited sections (formerly Section 3283, R. S.), its right to appropriate a portion of a street is limited to the location of any part of the railroad" itself, not for the purposes of a yard or approaches to a yard. On this point the court uses this language on the pages above referred to:

“Section 3283, Revised Statutes” (now Sections 8763 to 8766, G-. C., inclusive), “under favor of which these proceedings were brought, does not authorize tbe appropriation of streets for any and all purposes incident to the operation of a railroad, but only for the location of any part of the railroad itself. In this respect it differs materially from Section 3281” (now 8759-8760, G. C.), “authorizing the appropriation of private property for depots, workshops, roundhouses and water stations. In the construction and location of the main line of road a railroad company can not but meet with conditions that are beyond its control, as, for instance, the crossing of streets and highways, and, therefore, notwithstanding that the crossing of these streets and highways may interfere somewhat with the public travel by foot passengers and ordinary road vehicles, yet the Legislature has recognized the fact that of necessity the railroad company must be given the right to cross the same, not merely because it also furnishes a mode of public travel, but because it would be impossible to construct railroads if such rights were not granted. But in the location and establishment of its yards, depots, workshops, roundhouses and water stations, the railroad company can largely guard against these contingencies and it is very evident that Section 3283, Revised Statutes” (now 8763-4-5-6, G-. C.), “intends to require that it should do so, otherwise the language, of that section would not be different from the language found in Section 3281, Revised Statutes” (Sections 8759-60, G-. C.), “Section 3283 does not in terms authorize a railroad company to condemn or appropriate public streets or roads for these purposes, and all statutes granting to corporations the right of eminent domain, which is an attribute of sovereignty, must be strictly construed. (Currier v. M. & G. R. R. Co., 11 O. S., 228; Atkinson v. M. & C. R. R. Co., 15 O. S., 21; Platt v. Penn. Company, 43 O. S., 228; Ravenna v. Penn. Co., 45 O. S., 118.) Without recourse to this rule of construction it clearly appears that Section 3283 applies only to the railroad itself if it should be found necessary in the location of the same or any part thereof. All these other things that are incident to and undoubtedly absolutely necessary to be maintained by a railroad company for the purposes of operating its road are not included in the term railroad as used in this section; for if depots, workshops, roundhouses and water stations could be constructed upon public streets, it would amount to an absolute abandonment and destruction of the public rights therein. It is equally clear that railroad yards are not within the contemplation of this statute, and that it is not intended thereby to authorize a railroad company to construct its yard over and across or along streets and highways, either with the consent of the municipal authorities or by appropriation of the same.”

In this case from which we have quoted at. length the court had under consideration the question of the power of a railroad company to appropriate by condemnation proceedings the right to lay, maintain and operate, in addition to its two main tracks then constructed and maintained thereover, five additional sidetracks or turn-outs along, upon and across Settlement road and Linndale road, two streets of the village of Roekport, Ohio, at the place where said roads intersect. In the trial court it was shown that these additional five tracks were to be used for egress and ingress to the railroad company’s yards for the purpose of switching cars from one track to another, for making-up and separating trains of cars and for the storage of cars. The trial court on the preliminary hearing found that the appropriation sought to be made was an unreasonable interference with the rights of the public in the use of the highways and would be destructive of the public use of said highways, and that the appropriation was not necessary for the purpose of plaintiff’s railroad, and thereupon dismissed the railroad company’s petition to appropriate. The judgment of the trial court in thus disposing of the railroad company’s petition, was sustained by the Supreme Court, which in doing so employed the language above quoted.

Now, if we apply the principles enunciated in this case to the facts in the case at bar, we have a situation almost identical with the Rockport case, with these differences: In the Rockport case the railroad company already had two main tracks upon and across the streets, which tracks were a part of its main railroad line, and it was seeking an easement for five additional tracks on the streets on what it claimed to be its right-of-way, whereas in the case at bar the railroad company has a main track, being the Front street connection track, across Ludlow street, and is seeking the- right to lay these four or five additional tracks so as to be able to reach its yards west of Ludlow street, and to switch in the street, and to make up and break up trains in the yard and on this street.' In other words, "these tracks are to be used solely as a part of the railroad company’s Front street yard.

If there be any difference between this case and the Rockport case it would appear that there is less need for an easement across Ludlow street than there was across the streets in the Rockport case. The tracks are to be used in connection with the Front street yard and not as a part of the main line as was said in the Rockport ease.

We are therefore clearly of the opinion, following this Rock-port ease, that the railroad company has not the power or authority to appropriate an easement for these tracks across Ludlow street for the purposes for which they are intended to be used. Nor could the railroad company acquire by agreement Avith the city council through an ordinance or- otherwise that which it could not acquire- by condemnation proceedings, for, as was said by the court on page 82 of the Rockport case:

The property (the,street) having been devoted to a public purpose;" the principle, obtains that the public use is the dominant interest in the street, and the village authorities could not grant any right to the railroad company under the provision of Section 3283, Revised Statutes, that would be destructive of these rights or amount to a material or substantial interference with the same,” etc.

In Railroad Company v. Defiance, 52 O. S., 262, the Supreme Court in discussing the powers of council to grant a right to lay-tracks in or across a street under Section 3283, Revised Statutes, says (p. 309):

‘ ‘ The object of the appropriation is to acquire such use of the street, etc., as could have been granted by agreement; and no greater use can be obtained in the one mode than in the other; the right acquired in either is limited to the use of so much of the street as may be necessary for the purposes ‘of the railroad.’ ”

To the same effect are: L. S. & M. S. Ry. Co. v. Elyria, 69 O. S., 414; Ravenna v. Penn. R. R. Co., 45 O. S., 118; Railroad Co. v. City, 76 O. S., 481.

It is also manifest from the evidence in this case that the proposed use of Ludlow street for these switches and tracks would constitute a material interference with the public use of the street, on account of the number of these tracks and switches and the movement of Gars thereon; and in view of the fact that access to the railroad company’s yard can be had from Front street, as shown by the evidence, we conclude that this proposed use is so unreasonable that even if there were power to appropriate or to grant the use by council, a court, hearing an application to permit these tracks to be laid, or an objection by the city authorities to prevent the laying thereof under an alleged grant from the council, should restrain the laying thereof.

It is urged by defendant’s counsel that the city solicitor had no authority to bring this action without being authorized so to' do by the legislative body (the council) of the city. It is extremely unlikely that the city council, after endeavoring to give away the city’s street to the defendant company, would call upon the solicitor to take legal steps to prevent the doing of that.'which it had given permission to do. We think Section 4311, General Code, affords ample authority for the solicitor to bring this action regardless of the will or wishes of the council, and that in so doing he is exercising the high prerogative lodged in him by the Legislature to restrain the abuse of the corporate powers of the city and to prevent the execution or performance of an alleged contract in contravention of the laws.

These proceedings were brought in the same manner and under like circumstances shown to have existed in the case of Cincinnati v. L. & N. R. R. Co., 76 O. S., 481, where no question was made of the solicitor's right to bring the action on behalf of the city.

We are satisfied that a mandatory injunction is the proper remedy to restore Ludlow street to its former condition. Cincinnati v. L. & N. R. R. Co., 76 O. S., 481.

Tbe judgment of this court is that the prayer of the petition be granted at the costs of the defendant.

Jones (E. II.), P. J., and Jones (Oliver B.), J., concur.


text:
    LIBEL AFFECTING ONE IN HIS TRADE RELATIONS
    Court of Appeals for Mahoning County.
    The G. M. McKelvey Company v. David M. Nanson.
    Decided, October 18, 1915.

      Libel and Slander — To Publish that One Has Suddenly Gone Out of Business — Not Libelous ver se.

    A publication by a tradesman is not libelous on its face, where to the effect that Mr. N had “suddenly decided to retire from the tailoring business,” coupled with the announcement to the trade that his entire stock had been purchased for cash.

      Mine, Kennedy & Manchester and Mr. Conroy, for plaintiff in error.

      Kennedy & Mumaw, contra.
   Houck, J.

(sitting in place of Spence, J.).

This is a proceeding in error, by the plaintiff in error, seeking to reverse a judgment of the court below in favor of the defendant in error, in an action brought by him against the said plaintiff in error for libel.

The article complained of was published in two newspapers of general circulation in the city of Youngstown, Ohio, and in the form of circulars sent to citizens of said city, all of which was done at the instance of and under the direction and authority of the plaintiff in error.

Said article complained of is as follows:

“Mr. Nanson, a well known high-grade custom tailor of this city, and perhaps a personal friend of yours, suddenly decided to retire from the tailoring business. Desiring to turn his stock quickly into cash, asked us to name a price for the entire stock. The greater part of this stock being fall and winter goods, he naturally expected a good price, but finally accepted our offer. ’ ’

The plaintiff below complains of the words: “Mr. Nanson suddenly decided to retire from the tailoring business.”

At the request of counsel for plaintiff below the court charged the jury that said words were libelous per se.

While the petition in error alleges other grounds of error, the only one urged by counsel in argument was that the court erred in charging the jury that said words were and are libelous per se, and therefore it is only necessary, for a proper determination of the case, to pass upon this one ground of alleged error.

Let us classify libels according to their objects:

1. Libels which impute to a person the commission of a crime.

2. That which has a tendency to hold a person up to scorn and ridicule, and to feelings of contempt, or impair one in the enjoyment of general society.

3. That which has a tendency to injure one in his office, trade, calling or profession.

The words complained of in the ease at bar, if libelous, come under the third definition.

Is the expression here complained of libelous within itself?

A distinction exists between libel and slander. In libel the written or printed 'words are of necessity attended with more deliberation, and hence may be said to be indicative of stronger malice than oral words, and therefore calculated to do greater wrong and much- more harm. • In passing, we might add that written or printed words are libelous in all cases where, if spoken, they would be actionable; and they may be libelous, and at the same time, if spoken, would not be actionable. Our Supreme Court in the ease of Cleveland Leader v. Nethersole, 84 Ohio State, page 118, has laid down the rule as to what constitutes libel per se. The court say:

‘ ‘ To constitute a publication respecting a person- libelous per se, it must appear that the publication reflects upon the character of such person by bringing him into ridicule, hatred or contempt, or'affects- him injuriously in his trade or profession.”

To say of a person that he has suddenly gone out of business does not in any way reflect upon his character, or bring him into ridicule, or indicáte hatred or contempt, or injury to his trade or profession, so far as the plain meaning and import of the words and language -are concerned. If this be true, then how can they be libelous per se?

In order that words shall be libelous per se, 'as disparaging á person in his trade or business, they must be* of such a character as would prejudice him by impeaching either his skill or knowledge or attacking his conduct in such business. The words in the publication complained of; in order to be libelous per se, must have had a tendency to render the defendant in error contemptible or ridiculous in public estimation, or to -expose him to public hate or contempt,. or hinder virtuous persons from associating with him, or accuse him of crime punishable by the. laws of our state, or charge him with conduct the natural or ordinary result of which would be to prevent him from engaging in and pursuing his vocation, trade or calling, or in some way depriving him of the earnings thereof, and which he otherwise would have obtained. Quoting from the case of Cleveland Leader v. Nethersole, supra, Judge Spear on page 130 says:

“Although the distinction between a libel upon a person and a libel upon that which is the property of a person is somewhat nice, and althotigh in many cases the distinction is not easy to demonstrate, it-often being-difficult to apply.the settled, rules of law to the particular facts of the case, and although the decisions illustrating the subject are not altogether consistent one with another, yet the rule seems to be well established to the effect that while by the law of libel defamatory language is actionable without special damage when it contains a damaging imputation against one as an individual, or in respect to his office, profession or trade, it is not actionable when it is merely in disparagement of one’s property unless it occasions special damage.”

We do not think the words complained of are libelous- upon their face; and we believe we are sustained in this conclusion by a long line of authorities not only in our. own, but other states. To hold otherwise would be to set aside and hold for naught the decisions upon-this subject which have-been considered to be the law for many years.

Taking this view of the case, we find error in the record prejudicial to the rights of the plaintiff in error, and. therefore find the judgment of the court below erroneous, and that it should be reversed.

The judgment of the common pleas court is thereforé reversed, and the cause remanded for a new trial.

Pollock, J., and Metcalfe, J., concur.


text:
    APPROPRIATION BY ONE MUNICIPALITY OF LAND LYING WITHIN ANOTHER. MUNICIPALITY.
    Court of Appeals for Hamilton County.
    John Schrenk, Jr., v. City of Cincinnati.

    Decided, January 17, 1916.

      Municipal Corporations — Appropriation of Property for Parte Purposes —Parte Area May he Enlarged toy Appropriation of Contiguous Lands Although Lying Wholly Within Another Municipality. .

    A municipality may enlarge its park area by appropriating contiguous lands notwithstanding they lie wholly within the limits of another municipality.

      Michael Q. Eeintz, for plaintiff in error.

      Walter M. Schoerile, City Solicitor, and Saul Zielonka, Assistant Solicitor, contra.

       Affirming Cincinnati v. Ziegler et al, 16 N.P.(N.S.) 169.

   Gorman, J.

The defendant in error brought proceedings in the court of insolvency against the plaintiff in error and others to appropriate property for the extension of the Bloody Run boulevard for park purposes between the cities of Cincinnati and Norwood, and to fix the value thereof.

A part of the property of plaintiff in error, lying outside of but contiguous to the city of Cincinnati and within the limits of the city of Norwood, was appropriated. A jury was irapanneled which, after a hearing, assessed the damages for the property taken and damages to the residue at $7,080, and a judgment was entered upon the verdict awarding the property to defendant in error upon the payment of the condemnation money. Error is prosecuted to this judgment.

It is claimed, first, that the verdict is against the weight o1' the evidence in that the amount of compensation assessed is totally insufficient.

The record fails to show that the verdict is so manifestly against the weight of the evidence as to warrant a reviewing court in setting it aside. The verdict appears to us to represent a fair value of the property taken and damages to the residue; in fact, the jury might well have returned a much smaller verdict and it would have done justice to plaintiff in error under the evidence adduced.

Secondly, it is claimed that the city of Cincinnati had no power or authority under the law to appropriate this property (which lies wholly within the city of Norwood, although contiguous to the city of Cincinnati) for parkway and boulevard purposes.

Section 3677, General Code, among other things, confers special power upon municipal corporations to appropriate, enter upon and hold real estate within their corporate limits.

“2. For parks, park entrances, boulevards, market places, and children’s playgrounds.”

It further provides that such power shall be exercised for the purposes and in the manner provided in Chapter 3, Division III, relating to the appropriation of property by municipalities, Sections 3677 to 3697 inclusive.

Section 3678 provides that in the appropriation of property for any of the purposes named in the preceding section (3677) the corporation may, when reasonably necessary, acquire property outside the limits of the corporation.

It will therefore be seen that the power and authority to acquire by appropriation proceedings property for park and boulevard purposes outside the municipality, when the same is reasonably necessary, is expressly granted.

But it is contended that the construction to be given to these two sections should be that the property outside the municipality which may be appropriated is property not within the limits of another municipality, but only such property as is wholly outside the limits of any municipality.

Such a construction would in effect read into Section 3678 language not therein, and would in effect constitute judicial legislation and a usurpation by the court of the functions of the Legislature.

The Legislature has created all municipal corporations either-by special laws under the Constitution of 3802 or by general laws under the Constitution of 1851; and it is elementary that the creator can destroy. It, the Legislature, may, unless there be constitutional inhibitions, merge two or more municipalities, transfer the territory or a part thereof from one municipality to another, abolish all the officers of a city or villagé, or create new or additional officers; in fact, it can add to or take from municipalities their political rights and functions almost at will. State, ex rel, v. Cincinnati, 52 O. S., 419.

We can see no reason why the Legislature might not provide in specific terms that one municipality may appropriate property within the limits of another municipality, provided the property to be appropriated is for authorized public purposes such as parks and boulevards. While the statute, Section 3678, does not in specific terms provide that the appropriation of property within the limits of another municipality may be made, it does provide that property outside the municipality may be appropriated, and in the appropriation the municipality exercising .the power of eminent domain is not limited to the taking of property wholly-outside of any other municipality.

This right to appropriate property for public purposes by one municipality, within the limits of another, was upheld in the ease of the Application of the Mayor and Aldermen of the City of New York to Acquire Title to Certain Lands for Public Parks, etc., 99 N. Y., 569, and in the case of Matter of Lands in the Town of Flatbush, 60 N. Y., 398. In the last ease the city of Brooklyn appropriated lands for park purposes within the corporate limits of the towns of Flatbush and Newlots, and its right so to do was upheld by the court of appeals. '

The plaintiff in error has had a fair and impartial trial of his cause, and has had the benefit of the judgment of twelve jurors and the trial court as to the fair market value of his property taken and damages to the residue. The power and authority of the city of Cincinnati to appropriate this property is undoubted, and we find no errors in the record of the trial prejudicial to plaintiff in error.

The judgment of the court of insolvency is therefore affirmed.

Jones (E. H.), P. J., and Jones (Oliver B.), J., concur.


text:
    POWER. OF PUBLIC OFFICER. TO REDUCE EMPLOYEE IN RANK.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel Charles Lyle, v. C. W. Lapp, Director of Police.
    Decided, December 24, 1901.

      Public Officers — Power Given to the Head of a Department to Remove an Officer Includes Power to Reduce Rank.

    The power conferred by Section 1545-24, Revised Statutes, upon the head of a department of a municipal corporation to remove or suspend any officer or employee of that department, includes a power to' reduce in rank as it is the exercise of a power of the same inherent nature as the power granted.

      Lam son «& Mathews, for plaintiff.

      Beacom & Babcock, contra.
    Marvin, J.; Hale, J., and Caldwell, J., concur.
   The State of Ohio, ex rel Charles Lyle, against O. W. Lapp, Director of Police of the City of Cleveland, is a proceeding in mandamus.

The relator was a sergeant on the police force of the city of Cleveland.

The defendant is now director of police of said city of Cleveland, which position he has held since the 5th day of April, 1901. For two years immediately preceding the incumbency of Director Lapp, the office which he now holds was held by one Michael Barrett.

On or about the 2d day of November, 1900, certain charges and specifications were made, in writing, against said relator as such sergeant of police. These charges and specifications were filed with the director of police. Notice of the filing of such charges and specifications, and the time when the relator would be brought to trial thereon, was duly given the relator.

On or about the 20th day of November, 1900, a trial of the ielator was had upon such charges and specifications before a tribunal composed, as provided by law, of the mayor of' said city, the president of the city council and the director of law of the city.

The trial resulted in a finding, on the 28th day of January, 1901, that the relator was guilty of the charges, and-thereafter, on the 9th day of February, 1901, said Michael Barrett, as such director of police, pronounced sentence against the relator, that he be, to quote the language of the petition herein, “removed from his said office of sergeant and reduced to the rank of patrolman in the department of police of said city.”

On the 24th day of May, 1901, the relator demanded of the defendant that he be reinstated in the position of sergeant. This demand not being complied with, he filed his petition in 1his action on the 19th of June, 1901, praying for an order of the court commanding the defendant to restore him to his former position of sergeant.

On the part of the defendant it is urged that there was such laches on the part of the relator in commencing this proceeding as should bar him from the relief sought. Without going into a discussion of this question, we hold that, under the circumstances in this case, the relator did not so sleep upon his rights as to deprive him of the right to a full hearing upon the merits of Ms case.

The time between the removal of the relator from office or ihe reduction in rank, to the time of the beginning of the action, was four months and ten days. Within four months he had made the demand upon the defendant to be restored, and we hold that he forfeited nothing by the delay.

This brings us to the consideration of the question made by the plaintiff, as to whether the director exceeded the authority vested in him, when he made the order reducing the relator from the rank of sergeant to that of patrolman.

The trial of the relator was had under the provisions of Section 1545 of the Revised Statutes, sub-section 24 of which reads:

“The head of any department may, by written order giving his reasons therefor, remove or suspend any officer or employee of such department, provided the same shall not be done for political reasons, and such written orders shall be recorded- in the records of the department and a copy thereof filed with the mayor, and provided that no member of the police, fire or sanitary police force shall be removed or reduced in rank, except for cause, to be assigned in writing after due notice, and a public hearing, if demanded by the accused, before a tribunal composed of the mayor, who shall be chairman thereof, the director of law and the president of the city council, but the head of the police, fire or sanitary police force, as the ease may be, may suspend the accused pending the hearing of the charge preferred against him. ’ ’

It will be noticed that the authority given the director by this section, is to “remove or suspend any 'officer,” etc.

The argument on the part of the relator is that the director could do nothing but “remove” absolutely from the force, or suspend the officer, found guilty upon the trial, and that neither of these two things was done; and that, therefore, the order actually made was a nullity.

On the other hand, attention is called to the language in a later part of the section, which reads: “Provided that no member of the police, fire or sanitary police force shall be removed or reduced in rank except for cause,” etc., and the claim is made that the Legislature must have understood that authority had been granted th'e head of this department to “reduce in rank, ’ or those words would not have been used in this proviso. To this it is answered that Sections 1930-31, Revised Statutes, are in full force as to the city of Cleveland as well as in other parts of the state, and that provision is made in these sections for reduction in rank of members of the police force who belong to the detective branch of service, and that, therefore, this provision is made, that the section may apply to the entire force — the section under consideration, 1545-24 — including the detective branch.

It should be borne in mind, however, that these later sections, 3930-31, are upon a subject entirely distinct from the general 7>rovisious in reference to the police force of this city, and this being so, are not in conflict with legislative enactment in Section 1545, sub-section 24, which should include a reduction in rank as well as a dismissal of such officer entirely from the police force.

It has been held in several of the states that authority given to remove an officer from his position necessarily carries with it the authority to suspend an officer. It is not claimed that this was a suspension, but that, because of certain authority given to remove from office, it necessarily carries with it the light to suspend. In State, ex rel Brison, v. Lingo, 26 Mo., 496, proceeding was in the nature of quo warranto on relation of the circuit attorney charging the defendant with unlawfully exercising the office of superintendent. Bryson had been superintendent of the workhouse, and an order had been made suspending him from the performance of his duties. The court, discussing the statute under which the action was taken, says, on page 499: “The power to remove necessarily includes the minor power to suspend.”

In the case of Shannon v. City of Portsmouth, 54 N. H., 183, the charter of the city of Portsmouth empowered the mayor and aldermen to remove constables and police officers. By a vote of the mayor and aldermen, the plaintiff, a constable and police officer, was suspended from the duties of his office on the police force, and from that time was not permitted to perform the duties of the office, although he was ready and offered to do so, until he was afterwards re-instated. It was held that he could not recover for services during the period of his suspension; and, on page 184, in the opinion, the court says:

“It does not seem to require any argument to show that the power to remove must include the power to suspend.”

In the case, however, of State, ex rel Tyrrell, v. Common Council of Jersey City, 25 N. J. Law, 536, one who was a member of the city council claimed relief because the council had by resolution instructed the clerk of the council not to call his name in calling the rolls — had instructed the president of the council not to appoint him upon any committee, and the court say that that was, in effect, a suspension of this officer from the performance of his duties; that the action of the council in directing the clerk not to call the name of this member, and in directing the president of the council not to appoint him upon any committee, was, in effect, a suspension of such councilman from his office, and the court, in speaking of that, holds contrary to the holding in Missouri and New Hampshire, that the power to expel, if the council had power to expel, did not carry with it the power to suspend.

But this language is used in the opinion, on page 544:

“It only remains to be considered, whether the action of the common council in resolving that ‘the president of council be directed not to appoint Tyrrell on any committee, that the clerk do not call his name among the list of names in any action, vote, or proceeding of the council, and that he be not allowed to take part in any debate on any question which may come before the board of aldermen, is warranted by law. We think it entirely clear that it is not. This proceeding amounts to a suspension of the relator from the exercise of his official duties as a member of that body. It leaves his constituents unrepresented and without remedy. Expulsion creates a vacancy that can be supplied by a new election. Suspension from the duties of the office creates no vacancy; the seat is filled, but the occupant is silenced. The charter vests no such power in the council; it would be extraordinary if it did. The power is to expel, not to suspend.'

“In the case of Gregory v. Mayor, Aldermen and Commonalty of New York, 113 N. Y., 416, a similar holding to that in the New Jersey ease to which attention has just been called, is made. Judge Peekham delivered the opinion and holds that the power to expel or remove from office, does 'not carry with it the power to suspend; holding as the court in New Jersey held, but he gives the reason, on page 419 :

“Whether the power to remove includes the power to suspend, must, as it seems to us, depend, among other things, upon the question whether the suspension in the particular case would be an exercise of a power of the same inherent nature as that of removal, and only a minor exercise of such power, or whether it vould work such different results that no inference of its existence should be indulged in, based only upon the grant of the specific power to remove. We think it is apparent that the two powers can not always be properly respectively described as the greater and the less, and, consequently, it can not always be determined, simply upon that ground, that the suspension is valid because there was. a power to remove. The power to remove is the power to cause a vacancy in the position held by the person removed, which may be filled at once, and if the duties are such as to demand it, it should be thus filled. The power to suspend causes no vacancy and gives no occasion for the power to fill one. The result is that there may be an office, an officer and no vacancy, and yet none to discharge the duties of the office.”

Continuing in the same line of reasoning, the court held, as already said, that the power to remove does not carry with it the power to suspend, and the reason here given by Judge Peckham is, that it is not an exercise of the same power, that is, an exercise of a power of the same inherent nature as that of removal. The power to suspend causes no vacancy; the power to suspend, when exercised, leaves no vacancy in the office that can be filled and, therefore, leaves the duties of the office to be performed by no one. It is because it is not an exercise of power of the same inherent nature as that of removal, but minor in degree, that the power to remove does not carry with it the power to suspend.

Applying that reasoning to the case before us, it would seem to result in holding that since the reduction in rank, the removal of one from the position of a sergeant'and, in the same order, constituting the person so holding the position of sergeant, % patrolman, is an exercise of a power of the same inherent nature as the power to remove, and only a minor exercise of such power; and, therefore, the reason why the power to remove in the opinion of Judge Peckham and the New Jersey court does not carry with it the right to suspend, does not exist in a case where it is a reduction in rank. But there is another reason why, in our .judgment, the order made in this case was not a nullity.

The relator held his office from which the director of police, under the section already read, had power, after a trial, conviction, etc., and proper proceedings, “to remove” (in the express language). To remove from what, except from the office which the party held. ITe did remove him from that office. Another section provides that the head of the department may appoint to office, and he did. appoint this man, in the same order, is true, a patrolman; and the only complaint he makes here, is that he was not absolutely removed from the force.

It must be remembered that this order is made for the protection of the officers. The purpose of the order is to protect the officers who have once got upon the police force or in the other departments of the city government. It is to protect them that this order was given.

Suppose the words were left out of this section, “reduced in rank,” and the section read, “Provided the same shall not be done for any political reasons, * “ no member of the police force or sanitary police force shall be removed from office except for cause to be assigned.” Supposing it read that way, omitting the words “reduced in rank”?

• The provision is that one shall not be removed for political reasons, whether an officer of the police force, or of any political department. Suppose the words “reduced in rank” were omitted, and the director should, for political reasons, reduce one in rank without any trial, simply and purely in the exercise of arbitrary power, and purely for political reasons had issued an order that one, who was a captain of police, should be reduced to the position of patrolman: is there any doubt that the captain could appeal and say “You have undertaken to remove me from office without a trial in violation of that statute?” It seems to be clear that protection would be given to the officer, under this statute.

The result is, we hold that the action of the director in issuing the order reducing the officer in rank, was in the exercise of the power conferred upon him, and the petition is dismissed at relator's costs.