text:
    BILLS AND NOTES — COUNTERCLAIM AND SET-OFF
    [Cuyahoga (8th) Circuit Court,
    January 28, 1907.]
    Marvin, Winch and Henry, JJ.
    Herman C. Schubert v. State Banking & Trust Co.
    Existence of Counter Claiml no Defense to Action on Cognovit Note.
    That the payee of a cognovit note has released the endorsers of another note held as collateral, hy negligently failing to protest it for nonpayment, is no defense in an action on the cognovit note.
   HENRY, J.

The plaintiff in error here was plaintiff below. His action there was brought under favor of Sec. 5354 R. S. (Sec. 11631 G. C.), and he seeks a new trial by petition which alleges that at a previous term judgment was rendered against him upon a cognovit note for more than was due. His petition sets forth that he had given said note to the defendant together with collateral security consisting of another and larger note made by a Pitts-burg corporation, and that the defendant, by its negligence in failing to have this collateral note protested, released the endorsers thereon, and that the maker has since become insolvent.

Plaintiff further alleges that by virtue of this transaction his own cognovit note was paid, and that the defendant in taking judgment for the amount thereof, or for any amount thereon, obtained judgment for more than was due it.

We think this petition does not state a cause of action. The facts alleged show that plaintiff may well have had a good counterclaim against the defendant, and may still have an independent cause of action against it, but they do not show a defense to the cognovit note.

The reasoning and authorities cited by the court below in its opinion, we think, are sound, and the judgment below is therefore affirmed.

Marvin and Winch, JJ., concur.


source: Caselaw Access Project

author: HENRY, J.

license: Public Domain

text:
    ERROR — NEW TRIAL
    [Cuyahoga (8th) Circuit Court,
    February 25, 1907.]
    Winch, Henry and Marvin JJ.

      Anna Devereaux v. E. K. Hutchinson, Administrator.
    Motion for New Trial Necessary to Prosecute Error to Judgment Non Obstante Veredicto.
    When a trial court has entered judgment non obstante veredicto upon the ground that a special finding of the jury is inconsistent with its general verdict, a reviewing court can not set aside the judgment on the ground that the special finding was not sustained by sufficient evidence, when no motion for a new trial was filed by the party against whom Judgment was entered.
    Error.

      Affirmed no opinion, Devereaux v. Hutchinson, 78 Ohio St. 415.

   HENRY, J.

This ease was disposed of upon the hearing, by affirming the judgment of the court of common pleas. The court of common pleas had rendered a judgment non obstante veredicto in favor of the defendant in the case on certain special findings of the jury which were returned with their general verdict in favor of the plaintiff, and the motion for rehearing of this matter in this court proceeds upon the ground that we erred in affirming the judgment below, because the evidence as disclosed by the bill of exceptions, if we had considered it, would have shown that the special findings of fact were not sustained by sufficient evidence. That view of the matter was called to our attention upon the hearing at the time we disposed of the case, and we then held that we could not consider the evidence in contradiction of the special findings of fact and upon the judgment of the court below, without a motion for a new trial having been interposed by the plaintiff. His response to that suggestion upon the hearing was, that having obtained at the hands of the jury a general verdict in his favor, he did not deem it proper or requisite to make a motion for a new trial in the court of common pleas. We are still, however, of the opinion that the judgment of affirmance was sound, having now examined the matter upon plaintiff in error’s application for a rehearing.

That judgment by this court proceeded upon the theory that the third finding of fact was utterly inconsistent with the general verdict and we suppose that to have been the reason for the action of the court of common pleas in rendering the judgment which we affirmed. We have, however, carefully considered the brief which has been filed by the plaintiff in error in this case and have gone to some pains to look up the authorities referred to therein. Some of the authorities referrd to therein, not only those cited by counsel, but others that we were able to find upon searching for ourselves, indicate that in determining whether the special findings are inconsistent with the general verdict, so that the latter must be held to be controlled by the former, the court is not permitted to regard the evidence introduced on the trial. Chicago & N. W. Ry. v. Dunleavy, 129 Ill. 132 [22 N. E. 15] paragraph 20 of the syllabus.

In determining whether the trial court erred in its judgment in a ease of this sort, the appellate court can not look into the evidence. Pennsylvania Co. v. Smith, 98 Ind. 42; Shuck v. State, 136 Ind. 63 [35 N. E. 993], and Schulte v. Chicago M. & St. P. By. 114 Ia. 89 [86 N. W. 63].

A motion for a new trial is necessary in order that the evidence may be weighed upon review in a proceeding in error. A motion for a new trial is therefore necessary to review the decision of the court of common pleas with regard to the finding of facts, as made by the jury, being unsupported by the evidence. Whittaker’s Civil Code, 6th Ed. page 566; Sec. 5305 R. S. (See. 11575 G. C. et seq.), and the cases there cited.

There is, of course, some anomaly in the filing of a motion for a new trial on the part of the party in whose favor the jury have rendered a general verdict, but we nevertheless think it is necessary in eases of this character; and we cite Clementson, Special Verdicts, 156, 157 and 158, where there is a very exhaustive consideration of the entire subject.

The application for a rehearing will therefore be denied.

Winch and Marvin, JJ., concur.


author: SMITH, P. J.

text:
    MUNICIPAL CORPORATIONS
    [Hamilton (1st) Court of Appeals,
    February, 1913.]

      Cincinnati (City) v. William Lawrence Sturr.
    Municipality not Liable to Driver of Blind Horse for Injury from Visible Hole in Street.
    Tbe driver of a blind horse who was thrown from his wagon and injured by the jolt caused by a hole in the street which was plainly visible, is without recourse against the municipality.
    Error.

      Coleman Avery, for plaintiff in error.

      Scott Bonham, for defendant in error.
    The plaintiff below recovered a judgment against the city for $1,600, on account of permanent injuries from being thrown from his wagon on Spring Grove avenue, near Terrace Place. It was alleged that the accident was due to a hole in the street, which he did not see although he was driving carefully.

      Reversed, Sturr v. Cincinnati, 91 Ohio St. 433.

   SMITH, P. J.

It is manifest from the record that defendant in error was guilty of contributory negligence. He was driving a blind horse at the time of the accident, and the hole in the street was plainly visible. Under the circumstances he' did not exercise all the care that was necessary.

The court, therefore, erred in overruling the motions of the plaintiff in error for an instructed verdict, at the close of plaintiff’s evidence, and also at the close of all the evidence. In this view of the case it is unnecessary to consider other errors assigned.

The judgment below is reversed, and judgment for plaintiff in error will be entered in this court.

Swing and Jones, JJ., concur.


text:
    ASSIGNMENTS — PARTIES
    [Cuyahoga (8th) Circuit Court,
    February 18, 1907.]
    Winch, Henry and Marvin, JJ.
    Francis M. Norris V. Charles Buchanan et al.
    Lessee and His Assignee may be Sued Jointly and Summons Issue to One Outside County.
    When action is brought upon the covenants of a lease which are binding on both the lessee and his assignee, they may be sued jointly, and when one is found in the county summons may issue to an adjoining county for the other.
    Error.

      Frank Rigley, for plaintiff in error.

      Carr, Stearns & Chamberlain and Garfield, Rowe & Westenhaver, for defendant in error.
   HENRY, J.

The plaintiff in error was plaintiff below and he seeks here a reversal of the order of the court of common pleas granting the motions of two of the three defendants below to quash the summons served upon them. The ground of the motions was an alleged misjoinder of the defendants, and the erroneous issuing of summons to two outside counties of this state for the two defendants who filed the motions to quash.

The case made by the amended petition below is substantially as follows:

The defendant, Buchanan, procured a lease to himself and his assignees of plaintiff’s land in Lorain county, and immediately assigned said lease to the defendant, the United States Cooperage Co. The lease contained a covenant for the payment of rent, and under the rule in Sutliff v. Atwood, 15 Ohio St. 186, it became the legal duty of the assignee to pay the rent while it enjoyed the estate, and the lessee continued personally liable therefor.

Buchanan subsequently became insane, and is now confined in a hospital at Toledo. The defendant Kahle was appointed his guardian.

The petition below further alleges that the defendants have broken tbe covenants of the lease in regard to the payment of rent, and that they have removed property belonging to the lessor to his damage in an amount for which he asks judgment against Buchanan and the cooperage company.

The defendant, Kahle, as guardian, is also made a party defendant, under the provisions of Sec. 5000 R. S. (Sec. 11249 G. C.)

The cooperage company was served with summons in this county, and the other two defendants were personally served in the other counties.

The ground of the last two defendants’ motions to quash is founded on the provisions of Secs. 5028 and 5035 R. S. (Secs. 11277 and 11282 G. C.).

Section 5028 (11277) provides generally that actions, the venue of which is not otherwise specially provided for, must be brought in the county in which the defendant resides or may be summoned, except actions against an executor, administrator, guardian, or trustee, which may be brought in the county wherein he was appointed or resides, in which cases summons may issue to any county.

Section 5035 (11282 G. C.) provides that:

“When the action is rightly brought in any county, according to the provisions of the preceding chapter, a summons may be issued to any other county, against one or more of the defendants, at the plaintiff’s request,” etc.

The claim made in behalf of the motion was and is that these three defendants were improperly joined as such; that no summons can be issued to another county, unless the action is rightly brought in the county from which said summons issues, and hence, that the summons issued to other counties for the defendants, Buchanan and Kahle, having been erroneously issued, should be quashed.

As regards the guardian, it is not seriously urged that if his ward might properly be served with summons outside of Cuyahoga county he might not also be lawfully served in the same manner, and we dismiss that question as of no moment. But it is said that the defendants, Buchanan and the United States Cooperage Co., are not jointly liable, and hence are not jointly suable in this action.

Without pausing to determine the correctness of the latter part of this proposition, I refer again to Sutliff v. Atwood, supra, as conclusive of the incorrectness of the former part thereof. In the opinion by White, J., at page 194, it is said that:

“The lessor, where there is an express agreement of the lessee, may sue at his selection either the lessee or the assignee or may pursue his remedy against both at the same time, though he can have, of course, but one satisfaction.”

The liability of the defendants Buchanan and the United States Cooperage Co. being predicated upon the covenants of the lease, which are binding alike upon the original lessor and his assignee, it follows that it is of a joint and several nature, such as to render the maintenance by the lessor of an action for money only against them jointly perfectly allowable under our code.

The order of the court below in sustaining the motion to quash the summons is therefore erroneous and must be reversed.

Winch and Marvin, JJ., concur.


text:
    REPLEVIN
    [Cuyahoga (8th) Circuit Court,
    March 4, 1907.]
    Winch, Henry and Marvin, JJ.
    Philip Cohen v. William Longtin.
    No Damages Allowed when Plaintiff Elects to Take Value of Property.
    In an action of replevin when the plaintiff elects to take the value of the property as found by the jury, he can not also recover damages for its wrongful detention, and his recovery is limited to the value of the property thus found together with interest on that amount from the date of the wrongful detention.
    Error.
   HENRY, J.

The original action was in replevin and was begun in the court of a justice of the peace, whence it was taken by appeal to the court of common pleas of this county.

Upon the trial in that court the jury found that at the commencement of the action the right in and to the possession of the property named in the petition was in the plaintiff, and assessed his damages at $90, and the value of said property at $100.

The defendant, Philip Cohen, moved for a new trial, whereupon the plaintiff elected to take the value of the property as found by the jury, together with the damages for the withholding thereof, and having remitted from the amount of the verdict of the jury the sum of $9.51, being the interest on the value of said property, as found by the jury, from April 3, 1905, to September 17, 1906, the first day of the term, said motion for new trial was refused.

The defendant below prosecuted error, and alleges as ground thereof, that the court erred in rendering judgment against him, for not only the value of the property, but also for the further sum of $90 for withholding the same.

The property in question included a billiard table, the use of which, it was claimed and found by the jury, was worth about $5 per month. It is urged by the defendant in error that the rule of damages in replevin is different from that in trover, in that replevin presupposes a continuing ownership by the plaintiff, and ultimate restoration to him of the property which is the subject-matter of the litigation. Upon this theory the plaintiff is clearly entitled to recover the damage done by the defendant to his property, together with the value of the use thereof for the period of time during which it has been withheld from him by the defendant.

Under our statute, however, the action of replevin is of the character just described, only when the plaintiff, upon verdict in his favor, elects to retake the property itself. In case he elects to take the value of the property as assessed by the, jury, as of the time when it was unlawfully withheld from him by the defendant, the title to the property is transferred to the defendant as of the same time, if the judgment be for plaintiff.

In this aspect our statutory action of the replevin is like the common law action of trover, and it is manifest that the reason for a distinction in the rules of damages in these two classes of cases is thus eliminated.

There is some conflict of authority upon the precise question presented here, but the weight of authority now appears to be as above indicated. In Iowa, for example, the Supreme Court has reversed its original holding, that in replevin cases the plaintiff may have not only the value of the property, but also damages for its detention, and now holds that where the plaintiff elects to transfer the title to the property in controversy to the defendant the measure of his damages is merely the value of the property. Powers v. Benson, 120 Ia. 428 [94 N. W. 929].

It is manifest that the plaintiff’s property is no longer de-' tained from him after title thereto has been transferred to the defendant by the voluntary action of the plaintiff; and the absurdity of the contrary rule is evident when we consider that a horse, originally the property of the plaintiff, and unlawfully withheld from him by the defendant, may be of the value of $100 but by reason of having its leg broken by the negligence of the defendant, while so withheld by him, the defendant will become liable not only for the value of the horse, $100, but also for damages thereto, for nearly or quite the same amount, in addition, because the broken leg has damaged the animal to that amount. It would be repugnant to the plainest principles of justice to permit the plaintiff, under such circumstances, to recover twice the original value of the horse that had been unlawfully withheld from him for a brief period.

The damages for detaining in the present case were $90 and to this extent the judgment below is erroneous, in view of the plaintiff’s election to take the value of the property. The plaintiff, was, however, entitled to the interest which he remitted, amounting to $9.50, so that the judgment is excessive to the amount of $81.50. Unless the plaintiff shall within ten days remit from the judgment the sum of $81.50 the judgment below will, therefore, be reversed, but if such remittitur is made the judgment will be affirmed.

Winch and Marvin, JJ., concur.


text:
    ERROR — TRIALS
    [Cuyahoga (8th) Circuit Court,
    March 11, 1907.]
    Winch, Henry and Marvin, JJ.
    Cleveland Electric Ry. v. W. Sherwood Snyder.
    Jury Determines Weight of Evidence not Court to Direct Verdlot for Plaintiff.
    It is the province of the jury to say whether or not the one npon whom the burden of proof has been cast has sustained it, and is error for the court to direct a verdict for plaintiff though his uncontradicted evidence makes a prima -fade case.
    Error.

      Squire, Sanders & Dempsey, for plaintiff in error.

      Excell & Oby, for defendant in error.
   HENRY, J.

The action below was brought upon an account which is alleged to have been stated between one Kelso and the Cleveland Electric Ry., through its president, H. A. Everett, for expenses incurred by said Kelso on behalf of said company while he was in its service. Kelso afterward assigned the account to the defendant in error, Snyder, who was plaintiff below.

Upon the trial the plaintiff produced a written statement of the account approved, or initialed, “H. A. E.” These initials, by the testimony of the secretary of the company who verified its answer denying the account, were written by its president.

The court, upon motion, directed a verdict for the plaintiff. This was error. The court can not assume as a matter of law that the testimony thus given was true, satisfactory or convincing to the jury, simply because no one by words contradicted it. Gannon v. Laclede Gaslight Co. 145 Mo. 502 [46 S. W. 968; 47 S. W. 907; 43 L. R. A. 505].

It is the province of the jury, not of the court, to say that he, upon whom is cast the burden of proof, has, in fact, sustained it. The court may, indeed, in proper cases, direet a verdict for the opposite party, for lack of evidence of an essential fact by blm whose duty it is to prove such fact. But that is not this case. Nor are we here considering a case where the plaintiff’s evidence is of such, nature as to be legally conclusive and incapable of denial or impeachment.

The plaintiff in error urges other reasons why this ruling of the court below was erroneous, but we deem it unnecessary to examine them. The judgment below is reversed and the cause remanded.

Winch and Marvin, JJ., concur.


text:
    COVENANTS
    [Cuyahoga (8th) Circuit Court,
    March 18, 1907.]
    Winch, Henry and Marvin, JJ.
    Virgil D. Allen v. Deming Realty Co.
    Building Restrictions Enforceable in Modo et Forma.
    When one has purchased a lot subject to general restrictions which were part of a general plan in opening up a street, or which were represented to him and the public to be part of such a plan, he is entitled, having relied upon and conformed to those restrictions, to have the same enforced, in modo et forma, against his vendor and all purchasers from the vendor with notice of the general plan..
    Appeal.

      Robert Grosser, for plaintiff.

      Smith, Taft <& Arter and E. J. Thobaden, for defendant.
   HENRY, J.

Plaintiff seeks to enjoin the defendant from conveying any lots on Pasadena avenue, in itg so-called “Grantwood Allotment ’ ’ in this city, without incorporating into the deeds of conveyance certain building and other restrictions such as are contained in the deed of conveyance from defendant to plaintiff of a certain residence lot now owned by plaintiff on said avenue.

The restriction in controversy is the last of a series to which plaintiff’s lot is subjected, and which he claims the defendant represented to him, at the time of his purchase, were part of a general plan, and applicable to all the lots on Pasadena avenue save for a slight variation in the stipulated minimum cost of buildings at different points tbereon. From plaintiff’s title deed, dated June 5, 1906, it appears that his property is

“subject to the following reservations and limitations in consideration of this conveyance and shall be binding on the heirs and assigns of the grantee, and shall run with the land, to wit: That said premises shall be used for residence purposes only by the grantee, his heirs and assigns; that no intoxicating liquors of any kind shall ever be manufactured or sold on said premises; that no building shall be erected or placed on said premises which shall cost and be of value less than thirty hundred dollars ($3,000) and not nearer than thirty feet from the front and street line to the front line of the porch, nor nearer than eight feet from the east line of said premises; that no double or two family house or shop shall be erected or placed on said premises; that no terrace or apartment house shall be erected or placed on said premises; that no fence or enclosure of any kind shall be erected or placed within sixty feet from the front and street line of said premises; that the general grade shall not be over eighteen inches higher than the top of the curb.”

The foregoing is a part of the defendant’s specially printed form of deed save that the figures or numbers and some other details were left to be inserted by the scrivener in proper blank spaces provided for that purpose.

The defendant also had a specially -printed form of land contract containing similar provisions, in the last of which, however, the word “uniform” is substituted for the word “general” in the deed, so as to read, “The uniform grade, of said lot shall not be over-inches higher than the top of the curb.”

Neither of these blank forms of deed and contract respectively is peculiarly adapted for use in connection with the sale of lots in defendant’s “Greenwood Allotment,” and it is evident that they were not prepared exclusively for that purpose. Nor does it appear that .the plaintiff had anything to do with this blank form of land contract. Endorsed on the back of the particular specimen of this blank form which is shown in evidence, are, however, certain written instructions to one of the defendant’s sales agents, given him as appears from the testimony, by the defendant’s superintendent, and defining the prices charged and the restrictions imposed by the defendant with respect to lots on four several avenues in said allotment. To these instructions I shall hereafter refer.

As already stated, the controversy here is over the 18 inch grade restriction. Plaintiff claims that this restriction was held out to him as being applicable throughout Pasadena avenue. Defendant claims that, while said grade was intended to be and has been applied to all of that avenue except some 16 lots at one end, it was never intended nor represented to be applicable to the land thus excepted. This end of the avenue terminates in a ridge or knoll, whereon, the general grade of lots were intentionally left indeterminate, pending the establishment of the curb-line and the ascertainment of its height.

Recently, however, the general grade of the lots at that end of the avenue has been fixed at 36 inches above the curb line. Some six of these lots have been sold, four of them before this litigation was commenced. These sales were all made, however, with the understanding that the defendant might fix the grade; which has now, accordingly been done. One Meermans has built a house upon his lot at the 36 inch level. But he was informed of plaintiff’s claim before his foundation was completed. None of these lot owners is a party to this suit, and of course no relief is asked against them. Save for the unsold portion of the high ground at the end of .the avenue, nearly all the lots on the avenue have been sold by deeds containing restrictions like those in plaintiff’s deed. Defendant claims that, prior to its purchase of this entire property, the plan was conceived of terracing the front lawns of the lots in the high ground of Pasadena avenue, and that prior to plaintiff’s purchase, the president of the defendant company brought back from a trip to certain western cities a photograph illustrating the actual carrying out of the park entrance and terracing idea which he proposed to employ. It claims further that a large grove of trees grows on this high land or, at least on that part of it embraced in the lots immediately behind those on Pasadena avenue, so that the grade of the Pasadena lots can not be cut down to the 18 inch level at this point without either sacrificing the trees or making an undesirable variation of grade between the lots on Pasadena avenue and those behind them.

We think these claims of the defendant are probably true, but the question we have to consider is what representations was made by the defendant to the plaintiff and to the public when plaintiff purchased. The plaintiff testifies that he was very much attracted in the spring of 1906 by the long stretch of lawns of uniform depth and grade on another street of defendant’s “Grantwood Allotment.”

He says he specially inquired of defendant’s salesman and of its superintendent if the same effect was to be carried out on Pasadena avenue, and that he was repeatedly assured that such was the defendant’s intention. Plaintiff called the special attention of defendant’s agent to said knoll, or ridge, inquired what was to be done with that, and was told that the defendant had cut away a similar ridge at the opposite end of an adjacent avenue and would do the same with this. Several former sales agents testify that they were instructed without qualification that the grade of lots on Pasadena avenue was to be eighteen inches above the curb-line. Mr. Canniff, defendant’s superintendent, and a witness for defendant, testifies that he told the plaintiff that the grade would be “uniform” though he now says that he used this expression in a sense different from that understood by the plaintiff. His written instructions already referred to expressly mention the 18 inch grade in the “first block” of Pasadena avenue. As to the “second block” the writing conveys no express instructions save that the minimum cost of buildings is there $3,000 instead of $3,500 and the price of lots is $30 instead of $35 as in the first block. But it is perfectly clear, reading the entire paper together, that the instructions are meant to be exhaustive, that the 18 inch grade, as well as all other restrictions named, apply to both blocks alike, and that the plan of varying the grade and terracing the lawns at the high end of Pasadena avenue is not contemplated thereby. Whether this was due to oversight or to the supposition that general representations of this character might be varied to suit conditions at the high end of the street, without incurring any liability to previous purchasers is not necessary to determine. In either event the policy of making unqualified representations of this character was not restricted to this single instance, for, in a full page advertisement published by the defendant in the Cleveland Plain Dealer, of Sunday, July 1, 1906, the following language descriptive of the general plan of restrictions, applicable to this and other streets of said allotment is used:

“Double bouses, apartment bouses, terraces, tenement houses, two family houses, business blocks and saloons are not allowed on beautiful Grantwood Allotment.
“The entire property is protected and reserved for private residence purposes exclusively.
“All the restrictions are incorporated in the deeds and run with the land perpetually.
“Houses must set back a uniform distance from the inside of the sidewalk, must maintain a uniform grade and location on the lots which insures good common sense regulations, wide streets, and plenty of air space between buildings.
“Park entrances of artistic beauty are erected at the entrance of each street, insuring greater privacy to the street and lending individuality and tone to the surroundings.”

At this time the sale to the plaintiff had been completed but the plaintiff shows that the representations which he alleges were made to him in regard to the defendant’s general plan were not mere misrepresentations, but were in accord with what the defendánts held out to the public in general at about the same time.

When it is declared, as in this advertisement, that “houses must set back a uniform distance from the inside of the sidewalk, must maintain a uniform grade and location on the lots” it is perfectly evident that intended purchasers were authorized to infer, as Allen says he did infer, from the similar representations made to him, that the' front lawns from one end to the other of any street in the allotment would stretch out in a vista of unvarying depth and grade.

It is said, however, on behalf of the defendant, that the artistic excellence of its plan of terracing near the end of Pasadena avenue is quite equal to that understood by the plaintiff. The plaintiff, therefore, does not and can not show any damage or substantial invasion of his rights in the premises, and that he has no equity wherewith to invoke interference by this court in the issuance of the onerous- writ of injunction, particularly as the rights of innocent purchasers will be interfered with, and plaintiff alone, of all the lot owners upon the street pretends that he has suffered, or will suffer, an irreparable injury or any injury whatsoever.

The answer to this contention is that if plaintiff purchased, subject to restrictions whicb were part of a general plan in the opening up of this street, or which were represented to him and the public to be part of such a plan, he is entitled, having relied upon and conformed to those restrictions, to have the same enforced in modo et forma as against his vendor who made the representations, and all others who purchased from said vendor with notice of the general plans..

Under the evidence in the case we can not escape the conclusion that a gneral plan of the sort claimed by the plaintiff was communicated to him and to the public generally, at the time he made his purchase, and that he is, therefore, entitled to a decree enjoining the defndant from conveying any of the lots not sold upon such street, except such conveyances be made subject to the same restrictions in regard to grading of lots, and otherwise, as are contained in plaintiff’s deed.

Our brother Winch disagrees with the foregoing inferences of fact and therefore dissents from the judgment of the court, although agreeing with the views of the law taken by the majority of the court and applied by them to the facts as they understand them to be from the evidence.

Marvin, J., concurs.

Winch, J., dissents.


text:
    NEGLIGENCE — TRIAL
    [Summit (8th) Circuit Court,
    April 20, 1907.]
    Winch, Henry and Griffin, JJ.
    Judge Griffin of First Circuit Sitting in Place of Judge Marvin.
    The American Cereal Company v. John Boltz.
    1. Evidence of Prior Accidents Admissible to Show Dangerous Condition.
    In an action for personal injuries, evidence of a prior accident of similar character is admissible for the purpose of showing a dangerous condition, even though plaintiff relies upon notice and a promise to repair.
    2. Participation of Judge in Trial.
    It is a matter of taste how much a judge shall talk or ask questions from the bench, but it is not misconduct for him to do so, unless lie asks questions which call for evidence that is inadmissible, and objections are made and exceptions are saved.
    Error.

      Kohler, Kohler & Mottinger, for plaintiff in error.

      G. M. Anderson, for defendant in error.
   HENRY, J.

In this case John Boltz, an employee of the American Cereal Co., recovered a verdict and judgment for $3,000 for personal injuries sustained by him September 2, 1902, while in the employ of said company. The company prosecutes error to reverse that judgment, and alleges a number of grounds for such reversal.

The first ground alleged is on the weight of the evidence, and in order to reach an intelligent understanding of the state of proof in that behalf, it will be necessary to state very briefly how the accident happened.

It appears that Boltz was a young man whose business it was to see to the checking off of the goods that were loaded by the plaintiff in error in cars for shipment, those goods consisting of bags or sacks, boxes or barrels, as the case might be, of various sorts of cereals in different conditions of manufacture for consumption. At the placé where the injury occurred, a ear was drawn up alongside of the company’s building, and within a few inches of the building, and from an upper floor, sacks of some sort of ground cereal were being conveyed of their own weight by gravity down an inclined chute with an open top into the car, or to some point near enough to the car so that the sacks could be taken into the car and packed for shipment. Boltz, while standing in the doorway to which this chute came, was leaning outside the door in an effort to see the number of the car, which he could not see if he stood within the ear because he could not get his head out properly, and, of course, he could only see at an angle from the doorway where he stood, and it was necessary for him to put his head out. The chute was, therefore, right .alongside of him. While he was thus standing a sack weighing about one hundred pounds came down the chute to a certain place on the side of the chute from which it is claimed certain boards were missing, which would have carried the sides up farther and prevented an accident of this sort, according to the claim made in the petition below, and striking a projection ah that point — an iron rod possibly, to which the board had been originally attached — the bag turned end over and struck the young man on the back of the head in such manner that he claims that he was thereby afflicted with the disease known as epilepsy, which has assumed a very aggravated form, and will become worse in course of time; and as to which, considered as a result of an accident of this sort, he produced abundant expert testimony to show that it, in fact, was a result of this accident, or might well have been.

He says that he knew about the condition of this chute, and that a few days before the accident to himself he had reported this condition to two foremen, or a superintendent and a foreman ; that he called their attention to the fact that it was in a dangerous condition, and that it had, in fact, caused another similar accident to a boy who had been standing alongside of the chute as Boltz stood alongside of it, and that unless they repaired the chute somebody would be seriously hurt or killed. There were other witnesses to this conversation who testified at the trial. Some of them testified to parts of the conversation, others to all of it, and there were variations in the testimony. One of the witnesses says that the reply given by the foreman was “You go back to your work and we will attend to ours.” On cross-examination he suggests that either that was the answer or that “we will attend to this.” Boltz himself is quite clear, and to some extent he is borne out by other witnesses in stating, that the foreman distinctly said in response to that complaint made at the time of the happening of this former accident at this same place, that the defect in question of which Boltz complained would be repaired. Now, the foremen, both of them, to whom this statement and promise are alleged to have been made, stoutly deny that any such occurrence transpired. They say no such accident was reported to them, no such complaint made by Boltz, and no such promise was made by them. It should be said in addition at this point, that Boltz’s claim of complaint that he made, or the promise he received, was a little more comprehensive than I have thus far indicated. He claims in his petition at least, that a part of the defect, a concurrent defect of which he complained, was a lack of railing at the opening of the top of the chute, whereby packages or boxes or bags would be apt to fall off through the opening into the chute and in such manner as to jump and possibly jump out of the chute; but that feature of the claim made by the petition was entirely eliminated by a specific instruction given to the jury by the trial judge, that they should no longer regard that that was any part of the ease, there being no evidence upon that point.

Now as to the existence of the defect, which also I may say, was denied, and the making of this complaint, and the making of this promise to the defendant in error, it suffices to say that there is enough evidence in support of the claim made by the plaintiff below, defendant in error here, to make it a question for the jury, and to make it impossible for us, governed by the principles which must govern us in weighing evidence, and giving to the verdict of the jury the benefit of the' presumption which attaches to it, in this state of the testimony, to heed the claim that this verdict is against the weight of the evidence, and I dismiss that subject without further discussion.

Another claim of error made is that certain testimony relative to the prior accident, to which I have referred, and of another similar occurrence, which consisted of some bag or sack ■flying out of the chute and striking off the foreman’s hat, on one occasion á few days before the accident to the defendant in error, was incompetent and prejudicial — particularly the testimony as to the former accident to the boy, which was somewhat harrowing in its details. It is said it bore upon no issue which the jury were called upon to determine, and because of its manifest tendency to prejudice the plaintiff in error, the defendant below, it ought not to have been admitted in evidence.

The rule in Findlay Brewing Co. v. Bauer, 50 Ohio St. 560 [35 N. E. 55; 40 Am. St. 686] is, in substance, to this effect: That evidence of prior similar accidents is admissible for two purposes, and two purposes only. One of those purposes is to bring home to the employer, or to the person- accused of negligence, notice of the thing, the danger or the defect which it is claimed caused the accident in the case which is being tried; and the other object of such evidence is to establish the fact that the contrivance or' machine in question was. in fact dangerous. But it is distinctly said in the syllabus of that case, that such evidence is not admissible for the purpose of showing negligence upon the part of the defendant, because it may well be true that, though the danger existed and though the defendant knew of it, there were circumstances which would render any accident resulting therefrom of a non-negligent and non-actionable character, ánd inasmuch as it is impossible to try out the question of negligence in former cases, evidence of prior similar accidents should be strictly restricted to the proof of those two items of plaintiffs claim, the danger of the contrivance and notice of its dangerous character brought home to the employer. Now, it is said that in this case, inasmuch as reliance is placed wholly upon a promise to repair and of express complaint made by the employee to the employer, it is unnecessary and improper to prove any other notice brought home to the employer than such express notice, since if the express promise made by him to repair is not made out, the plaintiff below could not recover under any circumstances; for admittedly he knew of the defects of which he complained, and, within the rule of the Chicago & Ohio Coal & Car Co. v. Norman, 49 Ohio St. 598 [32 N. E. 857] he could not recover unless upon complaint made and promise to repair obtained. So that evidence of prior accidents for the purpose of showing notice was not only superfluous, but unless it served some useful purpose or necessary purpose in the case, it was prejudicial error to admit it. But that argument overlooks the fact that it was admissible for the other and further purpose of proving the existence of the defect and danger complained of, and it might well be true that with such evidence excluded, and with only such evidence as the plaintiff might adduce, the jury would not believe that the danger or defect in question in fact existed, it being strenuously denied by the defendant. More than that, the admission of this evidence may be and it was, in argument, justified upon the ground, so far as the boy’s accident was concerned, upon the prior accident to the boy, that it was necessary to show that fact as an incident to or a circumstance of the complaint that was made by Boltz to his employer, the foreman, because his complaint involved the recital to the foreman of - the fact that such an accident had occurred, and that it was only for the purpose of showing it in this way as a part of the express notice that was actually given by Boltz. Now, as a matter of fact, every time evidence of this character was introduced, the court did, in fact, specifically restrict it by a special charge to the jury made then and there, to its operation and effect by way of notice to the employer of the dangers or defects complained of, restricting it unnecessarily, and more than it is restricted by the case of the Findlay Brewing Co. v. Bauer, supra.

We think upon consideration of all of the instances in which such evidence was admitted, all the instances that have been cited to us by either side, that there is not a single one (aside from that incident, which I shall presently speak of), in which a recital of the prior accident to the boy was unnecessarily or improperly brought into the case, and to the attention of the jury; or that in a single instance it failed to be serviceable for the purpose that the court said it should be confined to in these special charges I have referred to, and also in his general charge to the jury, namely, the purpose of enabling Boltz to prove that he had, in fact, given express notice to his employer.

Now the hat incident was of a different character; for that was not part of the notice — the express notice given by Boltz, and the testimony thereof is of an independent similar accident. We think, however, that it was not of such a harrowing character as to have a prejudicial effect upon the jury. The fact that a man’s hat was knocked off could not,certainly have prejudiced the jury against this defendant. It was admissible for the purpose of showing that the defendant had notice, except for the limitations upon the issue of the notice in this case, as I have already described, and also for the purpose of proving the defect. We think no prejudice resulted from the error of the court in admitting evidence of this hat incident, if it was error.

There were several requests to charge made by the plaintiff in error before argument, and made in writing and requested to be given before argument, and some of them were given. A number of them were not. We have carefully examined all those that were refused, and if any that were correct were refused, even though they might be substantially covered by others that were given, still there would be error and prejudicial error under the statute in refusing them. Several of them state the law correctly, but they fail to state the law in accordance with the rules of law, applicable to this case, predicated upon the theory of a complaint and promise to repair, upon which alone the plaintiff could recover, but left that question entirely out of the account, and for that reason they were inapplicable to this case, and ought not to have been given. The eighth was right and should have been given, except for the fact that the word “facts” was used instead of “evidence.”

We have examined the charge of the court and we find no error in the charge.

It is complained, however, that the trial judge was guilty of substantial misconduct in participating to an undue and unwarranted extent in the trial of the case; that is to say, in the interrogation of witnesses before the jury. Certain it is that he did ask a great many questions which are of record, and we have referred to and examined every one of those instances called to our attention by counsel. I won’t say we have examined every one of them, but we went two-thirds through a long list of instances, and it was not claimed that any of the instances urged by counsel differed from any other, but that it was the general habit of the court that was complained of, to participate in the trial of the case unduly. We did not find a single instance in which we thought the court was guilty of misconduct in that behalf. It may be a matter of difference of opinion, a matter of taste as to how much a judge should talk or ask questions from the bench, but it certainly is not misconduct for him to do so, unless he asks questions which call for evidence that is inadmissible, and objections are made and exceptions saved; and we find no error in that behalf, and no error in the record, and the judgment is affirmed.

Winch and Griffin, JJ., concur.


text:
    CRIMINAL LAW — FORGERY
    [Lorain (8th) Circuit Court,
    May 1, 1907.]
    Winch, Henry and Marvin, JJ.
    Frank Leiblang v. State of Ohio.
    1. Affidavit of Prejudice Filed on Day of Tria!, too Late.
    An affidavit of prejudice filed on the day of trial and immediately before its start, is too late and may be disregarded by the trial judge.
    2. Absence of Accused's Endorsement on Forged Instrument, Immaterial Variance.
    The uttering and publishing of a forged instrument is complete when it is presented for payment, and the omission of defendant’s indorsement from the back of the copy of the instrument as set out in the indictment is an immaterial variation as the offense charged was complete when the indorsement was made.
    3. Trial of Accused when Absent.
    If after the trial of a criminal cause has commenced, the prisoner absents himself, the trial may continue whether the case be one of felony or misdemeanor, though sentence may not be pronounced in the prisoner’s absence, except in cases of misdemeanor.
    Error.

      Anthony Heiding and Brady & Bowling, for plaintiff in error.

      F. M. Stevens, for defendant in error.
   HENRY, J.

The plaintiff in error was convicted of uttering- and publishing a forged instrument. An affidavit of prejudice was filed against the trial judge, who disregarded it upon the ground that it was filed immediately before the trial began and on the same day, and was, therefore, too late. Under the recent amendment of the statute in that behalf, we think the trial court committed no error in discharging the affidavit.

It is said that the prosecuting attorney was guilty of misconduct in his opening statement in intimating that the prisoner was guilty of attempted blackmail or extortion in connection with the offense for which he was tried. His statement was challenged at the time by the prisoner’s counsel but the court overruled his objection, stating that he could not at that stage of the case determine whether evidence of these collateral matters would or would not be competent. The proscuting attorney seems to have been acting in good faith upon the supposition that the matters in question were material, but later in the trial when he attempted to introduce evidence thereof, such evidence was excluded. The trial judge, moreover, carefully instructed the jury to consider only the evidence introduced, and to disregard all statements made by the prosecuting attorney with regard to evidence offered but not admitted. In this, we find no prejudicial error.

Another error complained of is that the forged instrument set forth in the indictment did not contain the endorsement of the prisoner’s name, which appears on the back of the instrument introduced in evidence. We think there is no material variance in this respect. The evidence shows that before the forged check had been endorsed the prisoner sought to obtain money thereon by presenting the same and requesting to have it cashed. This, of itself, constitutes an uttering and publishing. The prisoner was told when he thus presented the check, which was payable to his own order, to write his name on the back of it. He turned and went a few feet away to a desk and came back after a few moments with what purported to be the same cheek bearing his signature. On this state of facts it is further complained that this endorsement was determined by the court to afford a sufficient basis of comparison to admit of the introduction’ in evidence of a letter alleged to have been written by Leiblang, and to authenticate his handwriting there.on, another writing proved to have been made by the prisoner was also used as a basis of comparison. It is objected, however, that inasmuch as no one actually saw the prisoner endorse the check, the circumstantial evidence that the endorsement was written by him was not sufficiently positive to make it a proper basis of comparison. We think that circumstantial evidence may, and in this case does suffice to lay proper foundation whereby one writing is so authenticated as to authorize the comparison therewith of another specimen of handwriting to show identity or diversity of authorship.

It is further complained that the court committed error in proceeding with the trial when, after the evidence was all in, the prisoner failed to appear at the opening of court on the morning of the last day of the trial.

Section 7301 Rev. Stat. of Ohio provides:

“A person indicted for a misdemeanor may, upon his request in writing, subscribed by him and entered on the journal, be tried in his absence, or by the court; no other person shall be tried unless personally, present; and if a person indicted escape or forfeit his recognizance, after the jury is sworn, the trial shall proceed, and the verdict be received and recorded; if the offense charged is a misdemeanor, judgment and sentence shall be pronounced as if he were personally present; and if the offense charged is a felony, the case shall be continued until the convict appears in court, or is retaken. ’ ’

It is insisted that this being the case of felony there is no authority for going forward with the trial during the prisoner’s absence, and that the only course open in this event is indicated by the words “the case shall be continued until the convict appears in court, or is retaken.”

We think that counsel misinterprets this section. The true intent and meaning thereof is, that in the prisoner’s absence a trial may not be commenced and carried on in case of felony; that it may be commenced and carried on in case of misdemeanor, upon the prisoner’s request in writing, subscribed by him and entered on the journal. If, after the trial is commenced the prisoner absent himself the trial may continue whether it be a case of felony or misdemeanor. Sentence, however, can not be pronounced in the prisoner’s absence, except in ease of misdemeanors.

It is further contended that even with this interpretation of the statute, the trial was erroneously proceeded with, inasmuch as it did not appear that there had not been an escape or forfeiture of recognizance. It is suggested that his absence may have been due to sickness, accident, or other cause beyond his control. This, however, would not be sufficient to prevent a forfeiture of his recognizance, although it might justify the setting aside of such forfeiture thereafter. The transcript here shows that the recognizance was duly forfeited on the same day that the bill of exceptions shows the objection to the further prosecution of the trial was made and overruled. We think there was no error in submitting the case to the jury and receiving their verdict under these circumstances, in the defendant’s absence.

No other error in the record is alleged, and we find none. Judgment is therefore affirmed.

Winch and Marvin, JJ., concur.


text:
    HUSBAND AND WIFE — RECORD
    [Cuyahoga (8th) Circuit Court,
    June, 1908.]
    Winch, Henry and Marvin, JJ.
    Anna Brunner et al v. Edward S. Isom et al.
    1. Covenant to Stand Seized Creates no Legal Estate in Ohio.
    The statute of uses is not in force in Ohio and an antenuptial agreement to stand seized of certain property creates no legal estate therein.
    2. Recording of a Nonrecordable Instrument not Notice.
    When tile statutes of the state only provided for the recording of instruments by which “lands, tenements or hereditaments are conveyed or otherwise affected or incumbered in law,” placing an antenuptial covenant to stand seized upon record in the recorder’s office will not act as notice to purchasers for value.
    Appeal.

      J. A. Fenner, for plaintiff.

      Cook & McGowan and Squire, Sawders & Dempsey, for defendant.
   HENRY, J.

In this appeal the cross-petitioners pray for the enforcement of a trust arising from technical covenant to stand seized to uses made by John Leopold in an ante-nuptial agreement entered into between him and Frederica Kuhnberger in 1864, for her benefit and that of children by the former marriage of each and by their contemplated intermarriage. Leopold subsequently by warranty deed sold the land described in that agreement to the present occupants, or their predecessors in title. The abstract of title which was furnished to the purchasers omitted mention of said agreement, and they bought without actual notice of it. The circumstance that Leopold’s wife did not release her dower does not, we think, raise any presumption of such actual notice.

The record of the ante-nuptial agreement would, however, operate as notice in law, if that instrument were legally recordable. It has already been held by this court in Barlag v. Leopold, (not reported), decided February 4, 1903, that said agreement created no legal estate, nor any right that would everripen into a legal estate, but one cognizable only in equity. In England, by operation of the statute of uses, deeds of bargain and sale and covenants to stand seized to uses, created equitable estates that were eo instanto transmuted into legal estates. But if the statute of uses was ever effective to that end in this state, as indicated perhaps by Sec. 3 of the Ordinance of 1787, it was only temporarily and until that method of conveyancing should be supplanted by the forms of instruments for that purpose now long familiár to us under legislation, the early enactment of which the ordinance itself contemplated. From a very early day, therefore, the statute of uses has been understood to be of no force in Ohio. Thompson v. Gibson, 3 Ohio, 339; Helfenstene v. Garrard, 7 Ohio (pt. 1), 275; Stilley v. Folger, 14 Ohio, 610, 650; Carroll v. Olmstead, 16 Ohio, 251; Crawford v. Chapman, 17 Ohio, 449; Urmey v. Wooden, 1 Ohio St. 160; Williams v. First Presbyterian Society, 1 Ohio St. 478; Thompson v. Thompson, 17 Ohio St. 649.

This antenuptial agreement, therefore, created no legal estate whatever, and in law, as distinguished from equity, the land described in it was neither encumbered nor affected.

At the time the antenuptial agreement was recorded and until after the making by Leopold of the conveyance under which the present occupants claim title, the recording statutes in Ohio, S. & C. 458, Sec. 1, and par. 467, Sec. 8, applied only to instruments by which lands, tenements or hereditaments are “conveyed or otherwise affected or incumbered in law.” They had no application to instruments relating only to equitable estates. Churchill v. Little, 23 Ohio St. 301.

It follows that the antenuptial agreement under which the crosspetitioners claim, was not a recordable instrument and the actual record thereof was not of itself notice affecting the present occupants’ title. Their predecessors in title were purchasers for value and without notice and took free of the trusts raised by said agreement.

This conclusion renders unnecessary any examination of the questions made under the statute of limitations. The cross-petition is dismissed, and decree may be entered accordingly.

Winch and Marvin, JJ., concur.


author: JONES (E. H.), J.

text:
    DAMAGES
    [Hamilton (1st) Court of Appeals,
    March, 1915.]
    Jones, Jones and Gorman, JJ.

      Cincinnati (City) v. Price Hill Inclined Plane Ry.
    Damages to Railway Trestle from City's Negligence does not Include Railway Supervising" Officer’s Salary.
    Damage to a railway trestle by reason of the sliding of a bank of earth, due to negligence in the construction of a street for which the municipality is liable, can not be made to include the full salary of one of the officers of the company, who was compelled . to devote much of his time during the period of repair to overseeing the work.
    Error.

      Walter M. Sehoenle, City Sol., and Constant Sonthworth, Asst. City Sol., for plaintiff in error.

      Alfred B. Benedict, for defendant in error.

      Motion to certify overruled May 4, 1915, Cincinnati v. Price Hill Inclined Plane Ry., 60 Bull. 200.

   JONES (E. H.), J.

Defendant in error was plaintiff below and recovered a judgment for $6,123.60, representing the damages assessed by the jury for negligence of the city in the execution of some work connected with the improvement of Glenway avenue, which negligence, it was alleged in the petition, caused the soil of a certain hill to slip against and upon the tracks and piers of the railroad of defendant in error, greatly damaging it.

Several grounds of error are presented in ,the brief of counsel for plaintiff in error and in oral argument with earnestness. The negligence charged against the city in connection with the work on Glenway avenue is the same as that complained of in the case of Cincinnati v. Filser, 2 App. 394 (35 O. C. C. 487; 19 N. S. 112), in which case a judgment in favor of Filser against the city was upheld, no opinion, by our Supreme Court in Cincinnati v. Filser, 91 Ohio St. 414. The evidence in this case is practically the same as that produced in the Filser case, so that upon the question of the liability of the city there is no longer room for debate.

It is contended in the ease at bar, however, that the defendant in error, by reason of the manner of original construction of the inclined railroad, is primarily responsible for the slip in the hillside and therefore can not maintain this action against the city. The case of Cincinnati v. Baltimore & O. S. W. Ry. 1 App. 461 (34 O. C. C. 461; 17 N. S. 137), is relied upon in support of this contention, but the facts are entirely different in the two cases. We are unable to see where the case cited has any substantial or practical application to this case.

We have carefully considered the points raised in the brief and in the argument of counsel representing the city and are of the opinion that the only point that is well taken and in any way affects the correctness of the judgment below is the one with reference to the admission of evidence as to the salary of Mr. Rees E. McDuffie, one of the principal owners and an employee of the railroad company. The theory upon which his evidence was permitted to go to the jury was that as Mr. Mc-Duffie devoted practically his entire time for the period during which the railroad company was compelled by reason of the slide to abandon its operation of the freight track, in overseeing the repair of same, the salary paid him for such period amounting to $154, would be an element of damages which the city would properly have to pay. While it may have been proper to have allowed to the plaintiff below great latitude in' showing the labor and time required in making these repairs, we feel that it was carrying the rule too far to assess the full salary for a regular officer of the company, as a part of the damages in this case, and know of no authority for so doing.

We think, therefore, inasmuch as the evidence shows the amount of this item and the same is definitely fixed in the record, that substantial justice can be done by modifying the judgment rendered by tbe court below in accordance witb this finding.

Tbe error pointed out is tbe only error upon tbe record, and tbe judgment will be therefore affirmed witb tbe above modification.

Jones (O. B.) and Gorman, JJ., concur.


author: JONES (O. B.), J.

text:
    AUTOMOBILES — STREET RAILWAYS
    [Hamilton (1st) Court of Appeals,
    April, 1914.]
    Swing, Jones and Jones, JJ.

      Cincinnati Traction Co. v. Raymond R. Reilly.
    Chauffeur Turning Automobile into Narrow Street and Striking Street Car before Crossing Curb Line, Negligent.
    When a chauffeur In attempting to turn into a narrow street collided with a slowly moving street car before he had crossed the curb line, it is evident he did not exercise the care and prudence required by law, and a judgment recovered by him for damages to his machine will be reversed.
    Error.

      Miller Outcalt, for plaintiff in error.

      W. E. Brooks and Herbert Jackson, for defendant in error.

       Affirmed no opinion, Reilly v. Cincinnati Trac. Co., 92 Ohio St. 528.

   JONES (O. B.), J.

Tbis was an action below for injury to an automobile, and tbe loss of hire for same while it was out of commission, resulting from a collision between tbe automobile and a car of the Cincinnati Traction Co., which occurred on tbe night of May 1, 1910, upon John street just south of Court street.

Tbe automobile was owned by plaintiff, who operated automobiles for hire under tbe name of tbe American Auto Livery Co., and it was driven at tbe time of tbe accident by Richard White, who was a chauffeur in tbe employ of tbe plaintiff below, and who, responding to a call, bad gone out to Chester Park and obtained a load of four men and was bringing them back to tbe city. During tbe ride they bad made several stops for refreshments and it is charged that some of the passengers at least were under the influence of liquor. The course of the automobile was east on Court street and its driver undertook to enter John street from Court street. J ohn street is very narrow, and has in its center a single car track on which defendant’s cars are operated, northwardly.

Plaintiff’s chauffeur testified that it was impossible for the machine he was driving, which a large seven passenger Packard, to pass a street car on John street unless parallel with and close up to the curb of the street, and that on turning in from Court street, he could not put it in such a position without passing over onto the track of the street car.

All of the witnesses in the case who describe the collision, except the chauffeur, agree that it took place almost at the south line of Court street just after the machine had turned into John street, and also agree that the machine was pushed but a short distance, two or three feet, by the car, which stopped at once and which had been running slowly. When stopped, the front of the machine was jammed into the fender of the car which was reversed and drawn back to free it, and the front of the machine was then at about the south street line while its rear was at about the south curb line. None of the passengers were injured, although the machine was badly damaged.

The evidence does not make out a case of negligence on the part of the defendant. The car was being operated at not more than the usual rate of speed and no opportunity was given to the motorman to stop in time to avoid the collision, which took place almost immediately upon the entrance of the automobile into John street, while from the chauffeur’s testimony it is evident that he did not exercise the ordinary care and prudence which is required of him by law, in turning into John street under the circumstances, and the collision was therefore the result of his own negligence.

We are of the opinion that the verdict is not supported by the evidence, and the judgment is therefore reversed and the cause remanded for a new trial.

Swing and Jones (E. EL), JJ., concur.


author: BY THE COURT

text:
    DAMAGES — EXCAVATIONS
    [Hamilton (1st) Court of Appeals,
    June 4, 1914.]
    Swing, Jones and Jones, Concur.

      Geo. P. Carrel, Exr. v. Roche-Brunner Bldg. Co. et al.
    1. Excavations to Nine Feet exempt from Damages Regardless of Depth of Adjoining Walls.
    The statutes of Ohio permit an excavation to the full depth of nine feet without incurring liability, regardless of the depth of adjoining foundation walls.
    2. Damages for Greater than Nine Foot Excavation Limited to Excess.
    When an excavation is made to a greater depth than nine feet, liability for resulting damages to adjoining property is limited to that caused by going below nine feet, and not that caused by the whole excavation.

      Dempsey & Nieberding, for plaintiff.

      Healy, Ferris & McAvoy, Denis F. Cash and Clyde Johnson, for defendants.

      Affirmed no opinion, Carrel v. Roche-Brunner Co. 92 Ohio St. 526.

   BY THE COURT

The circuit court of this circuit having put a construction upon Secs. 3782 and 3783 G. C., then found in Secs. 2676 and 2677 R. S., in Hosea v. McGuire, 43 O. C. C. 422 (21 N. S. 599), which judgment was affirmed, no opinion, Klinek v. McGuire, 81 Ohio St. 543, this court feels bound by that construction, and the injunction prayed for by plaintiff herein must therefore be refused, and the petition will be dismissed, without prejudice however to an action at law for damages, if any are suffered by plaintiff on account of the excavation contemplated by defendants.

It might be stated that the majority of the court, if this were an open question, would place a different. construction upon this statute.

Swing, Jones (E. H.) and Jones (0. B.) concur.


text:
    EXCAVATION — DAMAGES
    [Hamilton (1st) Circuit Court,
    June 1, 1908.]
    Swing, Giffen and Smith, JJ.

      Lucy K. R. Hosea et al. Exs. v. Joseph McGuire.
    Damages for Excavation Limited to Excess over Nine Feet.
    The phrase “by such excavation” in Sec. 2676 R. S. (Sec. 3782 G. C.), construed with Sec. 2677 (3783), limits the recovery of damages to depths greater than nine feet without reference to depth of adjoining foundation walls.
    Error.

      Franklin T. Cahill, for plaintiff in error.

      John C. Healy, for defendant in error.

      Affirmed no opinion, Klinck v. McGuire, 81 O. S. 543.

   The phrase “and by such excavation” as used in Sec. 2676 R. S., (Sec. 3782 G. C.) means one to a greater depth than nine feet below the curb of the street; and the damage for which this owner is liable is only that which is caused by such greater depth and not that which may be caused by the whole excavation.

This is made plain by Sec. 2677 R. S. (See. 3783 G. C.), which expressly allows an excavation to the full depth of nine feet without reference to the depth of adjoining foundation walls and without incurring liability.

The construction contended for by counsel for plaintiff in error would make the defendant in error liable for that which the statute allows as well as that which it forbids.

Judgment affirmed.

Swing and Smith, JJ., concur.


text:
    MUNICIPAL CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    May, 1908.]
    Winch, Henry and Marvin, JJ.
    State ex rel N. C. Lathrop et al. v. M. B. Excell.
    Annexation of One Corporation by Another Results in Merger of Corporate Powers.
    Annexation of one municipal corporation hy another does not put an end to the corporate life and powers of the annexed municipality, but simply merges them with those of the annexing corporation, and an agreement that the firemen in the service of the former shall continue in the service of the latter is valid.
    Appeal.
    Henry, J.; Winch, J., and Marvin, J., concur.
   HENRY, J.

In this appeal it is sought by mandamus to enforce the provision of the Glenville annexation agreement for the retention of the Glenville firemen. It is objected that this provision is void, because it is inconsistent with the civil service requirements of the municipal code providing for admission to the fire department only on examination, etc., and, even though Glenville was subject to the same requirements of law, the civil service regulations there may have been such as to let in firemen who could not have come into the Cleveland fire department.

We think the decision of the matter must hinge on the general effect of annexation. If the corporate life and powers of Glenville were not ended, but simply merged with those of Cleveland, there is no legal inconsistency in the agreement to incorporate the Glenville fire departmnt with that of Cleveland, both having been under the merit system.

Section 1536-57 R. S. (Sec. 3574 G. C.) indicates that this is the true construction of the matter. It provides that “when the annexation is completed, the two former corporations shall be governed as one, embracing the territory of each. ’ ’

Of course the provisions of the agreement as to rank and location of the new firemen are in part at least inconsistent with law, and therefore void.

A peremptory writ may issue, tbe prayer of the petition being modified in accordance herewith.

Winch and Marvin, JJ., concur.


text:
    CHARGE TO JURY — ERROR—TRIAL
    [Cuyahoga (8th) Circuit Court,
    May 18, 1908.]
    Winch, Henry and Marvin, JJ.
    Cleveland (City) v. Standard Contracting Co. et al.
    1. Objection to Improper Counter-Claim may be Waived.
    When several defendants file answers setting up, as against each other, cross-demands in the nature of counterclaims which are within the original jurisdiction of the court, and all parties without objecting thereto join issues and the case proceeds to trial and judgment, the various parties will be considered as having waived the question whether such cross-demands were the proper subject of counterclaim.
    2. Error in General Charge not Cured by What is Said Colloquolly by Court to Counsel.
    When the court has erroneously charged as to the burden of proof and upon the request of counsel that he correct his charge in that respect says, addressing himself to counsel, “Very well, if you insist I will charge that the burden of proof was on plaintiff as to both defendants” without addressing the jury or modifying or withdrawing his original charge, the error committed therein is not cured.
    Error.

      Newton D. Baker, for plaintiff in error.

      Lee c& Marty, Hoyt, Dustin <& Kelly and Garfield, Howe & Westenhaver, for defendants in error.
   HENRY, J.

The original action in the court of common pleas was commenced by the Standard Construction Co. against the city of Cleveland, the Great Lakes Towing Co. and the American Cooperage Co. for negligently damaging plaintiff’s pile driver.

The pile driver was situated on the bank of the Cuyahoga river just above the Division street bridge of this city, and the damage to it was caused by the cooperage company’s schooner “West Side” running into it. Said schooner was coming up the river in tow of a tug owned by the towing company, and in rounding the bend in the river and passing 'said bridge, it collided with the draw, and getting beyond control ran into the bank The schooner and bridge also suffered damage for which the cooperage company and the city counterclaimed against one another and against the towing company. The city’s negligence, as claimed by both the construction company and the cooperage company was that it failed properly to swing its bridge; and both companies recovered against the city, and against it alone. The towing company was charged by each of the other parties with having negligently towed the schooner too fast, but the jury’s verdict exonerated it. The cooperage company was charged by the plaintiff below and by the city with having mismanaged its schooner, but it also was exonerated by the jury.

The city prosecutes error from the recovery of damages against it by the construction company for injury to its pile driver and by the cooperage company for injury to its schooner as well as for the dismissal of its own cross-petition.

Neither the petition in-error nor the record from the trial court discloses any complaint of this extraordinary intermingling of causes of action, unless indeed the point be involved in the overruling of the city’s motion for'the direction of a verdict in its favor upon the causes for action asserted against it by the plaintiff and one of its co-defendants respectively..

In Fitzgerald v. Cross, 30 Ohio St. 444, the third paragraph of the syllabus is:

“Where an answer is filed, setting up a cross-demand in the nature of a counterclaim, which is within the original jurisdiction of the court, and the plaintiff without objecting thereto, puts the same in issue and the case proceeds, to trial and judgment thereon against the plaintiff: Held: That upon error,by the plaintiff to reverse such judgment, he will be considered as having waived the question, whether such cross-demand was the proper subject of counterclaim.”

And in the opinion of the court by Johnson, J., at page 449, it is pointed out that the plaintiffs “made no objection to this answer, but joined issue thereon by a reply, and contested the defendant’s claim before two juries, and afterwards prosecuted a writ of error in the district court and afterward in this court in neither of which it is specially assigned for error that this cross-action was not a proper counterclaim. On the contrary, several of the assignments of error are predicated on the charge of the court on this cross-demand, which assumed the defendant’s right to recover something if it was proved.”

So in this case before us, the codefendants joined issues as between themselves and without objection submitted to trial thereof by jury. The motion interposed during said trial for the direction of a verdict upon grounds other than the one now under discussion can hardly be said to challenge the court’s right to adjudicate on its merits, an alleged counterclaim of this sort. On the contrary, it expressly invokes the jury to return any verdict at all upon the issues joined.

The parties seem to have all assumed that the counterclaims were properly pleaded in this action, under the provisions of Sec. 5069 R. S. (Sec. 11317 G. C.), as follows:

“Á counterclaim is a cause of action existing in fávor of a defendant, and against a plaintiff or another defendant or both, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.”

The words, “or another defendant or both,” in this section, were not a part of our original code and are not found in the code of any other state, Pomeroy, Code Remedies, 4th Ed., 474 n.; Bates, Pleading and Practice, 105. Without them there could be no shadow of pretense that codefendants could as such counterclaim against one another. The question is not one, however, which we can feel authorized to raise and decide of our own motion in this case wherein the parties themselves have ignored it. Hence, so far as this question is concerned, the verdict and judgment recovered by the defendant cooperage company against its eodefendant, the city of Cleveland, will not be disturbed. Nor do we find any errors in the record in respect to the adjudication of any of the issues joined between or among the defendants below.

As to the judgment recovered by the plaintiff below, we can not consider any of the errors assigned which involve either the weight of the evidence or what it tends to prove; for the bill of exceptions is admittedly imperfect, in that a blueprint of the scene of the accident, which the bill shows to have been offered in evidence, is neither attached to nor in any way made a part of said bill.

The charge of the court in one particular is complained of. The jury were instructed that the plaintiff’s pile driver having been stationary at the time it was damaged by collision with a moving vessel, and the plaintiff being confessedly without fault, the burden of proof as to whether or not the defendants were negligent was on them. This was inconsistent with a special request given just before the general charge, and at the close of the charge counsel for plaintiff asked the trial judge to say to the jury that this rule applied only as against the owner of the schooner. After some colloquy the judge said, “Very well, I will if you insist on it. The burden is upon the plaintiff to show the negligence of the tug and the city. ’ ’ This was correct. But it is now urged by the city that the court failed specifically to withdraw from the jury what he had previously said upon this subject, so that they may well have been uncertain as to what the true rule was. The court’s manifest opinion that the modification requested by counsel was erroneous, his plainly reluctant compliance with counsel’s request, his failure to address the jury as such in express terms when he gave the modified instruction as requested, are all aggravations of the self-contradictory and misleading shape in which the charge to the jury was left.

No doubt this arose from the assumption that the colloquy between court and counsel become as clear to the jury as it did to the court. But we can not assume that the jury either gave heed to or understood what was thus said. Indeed the court failed at first to apprehend what counsel’s request meant. How much less likely is it that the jury should have all drawn the proper inference from what was said, in their presence, no doubt, but not to them.

For this error, and this only, the judgment for the plaintiff below is reversed and the cause remanded for retrial of the issues joined between the plaintiff below and the city of Cleveland and no others. In all other particulars the judgment below is affirmed.