text:
    AS TO LIABILITY OF OBLIGORS ON A COUNTY DITCH BOND.
    Court of Appeals for Darke County.
    Stoltz et al v. State, ex rel Krickenberger.
    Decided, May 23, 1913.

      Suretyship — Petition for a County Bitch — Liability of Bondsmen for the Petitioners — When Petition is Granted, but Proceedings are Subsequently Enjoined.

    The. obligors upon tbe bond of petitioners for a county ditch are not liable for costs and expenses, where the commissioners upon the hearing find in favor of and grant the prayer of the petition, although subsequently the proceedings are, upon petition of landowners, enjoined for want of jurisdiction and the commissioners acting in conformity to such injunction dismiss the ditch proceedings at the costs of the county.

      D. W. Bowman, Martin B. Trcdnor and W. Y. Stubbs, for plaintiffs in error.

      O. B. Krickenberger, contra.
    Allread, J.; Ferneding, J., and Kunkle, J., concur.
   The action in the court below was brought in the name of the state by a tax-payer for the use of Darke eounty against A. D. Shell and others, petitioners upon the Greenville and Mud Creek ditch improvement, and the sureties upon the bond for costs incurred upon the ditch petition.

Shell and Bryson were petitioners upon the original petition for the deepening, widening and extension of the Greenville and Mud Creek ditch imporvement and executed a bond in the-sum of $500, together with Cashman and Rhoads as sureties, conditioned for the payment by said petitioners of all costs', “if the prayer of the petition be not granted or if for any other cause the same should be dismissed.” Schake, Triebold and Stoltz were petitioners for an extension up Greenville creek. The original petition was filed on December 21, 1908. The petition for the extension was filed January 18, 1909.

On January 30, 1909, the board of county commissioners, upon a hearing of the petitions, found that the improvement was necessary for the drainage of the lands and conducive to the public health, convenience and welfare, and granted the prayer of both the original and supplemental petitions. Thereafter, upon injunction proceedings brought by landowners whose property was about to be taken, the commissioners were enjoined upon the ground that the order of the commissioners in locating the extended portion of the ditch and in changing the channel was void for want of jurisdiction. In pursuance to this decree and order of the court the commissioners on June 2, 1910, ordered “that the said cause be and is hereby dismissed at the costs of the county to conform with the decision of the said circuit court.”

The costs of the ditch proceedings upon the original and supplemental petitions amount to $932.03, and this action is brought to recover this amount against the original and supplemental petitioners and against the sureties to the extent of the amount of the bond.

A general demurrer was sustained in the court of common pleas on the ground that no cause of action was stated. Upon petition in error to the circuit court this ruling was reversed and the cause remanded for further proceedings. Issues were joined upon the petition and the causes tried upon the evidence, resulting in a judgment against all the defendants as prayed for.

Counsel have reargued many of the questions involved in the demurrer, and we have reconsidered these questions so far as pertinent to the case in its present form.

Objection is urged to the right of the taxpayer to bring the suit.

Section 2921, General Code, among other provisions, authorizes the prosecuting attorney, when satisfied "that money is due the county” to bring suit "to recover such money.”

Section 2922 provides that:

"If the prosecuting attorney fails, upon written request of a taxpayer of.a county, to make the application or institute the civil action contemplated in the preceding section, such taxpayer may make such application or institute such civil action in the name of the state.”

There are other provisions in Section 2922 which we think are cumulative. The statute quoted, however, is broad enough in our opinion to sustain the tax-payer’s right.

The present action involves at least two different grounds of liability. One relates to the petitioners for the extension who signed no bond or other obligation and whose liability rests solely upon their being petitioners. The other relates to the petitioners and their sureties who are sought to be made liable by virtue of the bond.

The liability of the petitioners for the extension rests upon Section 6453, General Code, which provides, among other things, that1 ‘ If the county commissioners find against the improvement, they shall dismiss the petition and proceedings at the costs of the petitioners.”

This is the only statute attempting to fix direct liability on the petitioners. It is not self-executing but requires an order of the commissioners to fix the liability. No such order has ever been made, and the liability is, therefore, not complete. It is urged that there is a common-law liability lor the petitioners’ own costs. Whatever might be the rule as to the parties entitled to the costs created by order or direction of the petitioners, we think the rule of common-law liability does not prevail here in favor of the county. The absence, therefore, of a contract obligation and of an order for costs against the petitioners is fatal to the cause of action against the petitioners as such.

The liability of the petitioners who signed the original bond, and of their sureties, stands upon a somewhat different principle and involves a construction of Section 6447, General Code, providing for the petition and bond, and Section 6453 in relation to’the dismissal of the petition, together with other sections of the ditch chapter.

General power is granted the board of county commissioners by Section 6443 to construct necessary ditches and drains when conducive to the public health, convenience or welfare. This jurisdiction can hot be exercised sua sponte. It is essential to support jurisdiction of the commissioners that a petition and bond be filed as provided for in Section 6447. When such petition and bond are filed with the county auditor, he is required to fix a day of hearing and furnish notices to be served upon the interested parties. Upon the hearing the county commissioners, if they find that the proposed improvement is necessary for drainage and conducive to the public health, convenience and welfare, are authorized to grant the prayer of the petition, but if they find against the improvement they are required to dismiss the petition at the costs of the petitioners.

In granting the prayer of the petition the commissioners are not confined to the route proposed by the petitioners but may in their discretion extend the ditch beyond the termini and change the line of the ditch proposed. There is a wide latitude of discretion vested in the county commissioners over the ditch after it has been once decided that the construction of the. improvement prayed for is conducive to the public interest and necessary for drainage.

After the ditch has been established, its subsequent control is entirely in the hands of the board of commissioners and out of the influence and control of the original petitioners. It is then a public ditch under the control of the duly constituted public tribunal.

Upon appeal the statute expressly provides that the commissioners, as well as the petitioners, shall be parties to the appeal, and that if the appellants prevail the costs shall be adjudged against the commissioners and the petitioners, to be adjusted according to the discretion of the probate court.

At any time before the final hearing any party may file exceptions, under Section 6468, General Code, to the finding by the county commissioners of the necessity of the ditch, and if the exceptions are sustained the costs of the hearing shall be paid out of the county treasury.

The condition of the petitioners’ bond is “for the payment of all costs; if the prayer of the petition is not granted or is dismissed for any cause. ” It is contended that the subsecpient dismissal of the ditch proceedings in pursuance to the injunction of the court is a breach of the bond, and that the obligors thereof are liable. We think that Section 6447 and 6453 should be read and construed together, and in order to make out a liability there should be both a dismissal of the proceedings and an order against the petitioners for the payment of the costs. It is urged, however, in respect to this that the judgment for costs is mandatory and follows as an incident, and that the mere dismissal of the petition created the liability under the bond.

Tt will be observed that the finding of the commissioners as to the public nature of this ditch has never been set aside. So far as the commissioners are concerned the obligation of this bond was fully met when the prayer of the petition was granted. We do not express an opinion upon a case as to where the commissioners subsequently vacate this order and dismiss the petition at the costs of the petitioners. We confine our decision to the facts exemplified in the present record. Subsequent to the granting of the petition, it appears that by reason of the injunction, made perpetual in the circuit court, the commissioners were prevented from establishing a new channel and appropriating the lands involved by reason of which it became impracticable to undertake any part of the improvement. It was deemed advisable, therefore, to dismiss the proceedings, which they did at the costs of the county.

We have reached the conclusion that at this stage the ditch proceedings were so far in the control of the county commissioners as to give them a latitude of discretionary power over the dismissal, and that having made the dismissal at the costs of the county, we think there is no liability against the petitioners and their sureties.

It is urged that the liability of the petitioners and the sureties was intended as an absolute liability and a check upon the extravagance and corruption of the board of county commissioners. There is no charge whatever in the pleadings and no attempt to prove any fraud, corruption or bad faith on the part of the petitioners or the commissioners in the present case. We are called upon to construe statutory intention as deduced from statutory enactment, and we can not assume prima facie that the statutes contemplate official derelicition on the part of the county commissioners. If conspiracy, fraud or corruption is relied upon, it must be brought into the ease by averment and proof.

We, therefore, hold that the petitioners for the Greenville creek extension are not liable and that the judgment against them should be reversed and final judgment rendered in their favor. The judgment against the obligors upon the bond is reversed and the cause as to them will be remanded for further proceedings in case the plaintiff below desires to amend his petition. Otherwise, the final judgment in this court may be rendered upon the pleadings and admitted facts.

Judgment accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    PROCEDURE WHERE A CASE HAS BEEN DECIDED ADVERSELY BY A REFEREE.
    Court of Appeals for Hamilton County.
    Samuel Woodward et al v. Clyde M. Brockell, Administrator, et al.
    Decided, May 13, 1913.

      Proceedings Before a Referee — Failure by the Defeated Party to Take Exceptions — Common Pleas Court Without Power to Extend Time for Signing Bill of Exceptions.

    Where a case is tried before a referee the trial is conducted as if by the court, and if no exceptions are taken and filed before the referee within the statutory period, the court is without power to extend the time for so doing, and the report of the referee must stand as the decision of the court.

      Pugh (& Pugh, for plaintiffs in error.

      Thos. L. Michie, Millard Tyree and A. J. Cunningham, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. II., J., concur.
   The cause-below was tried before John II. MeMakin as referee under appointment and reference made by the court of common pleas, by agreement of all the parties. By virtue of such appointment said referee made his findings of fact and conclusions of law which were reported to the court of common pleas and filed therein November 6, 1909. A motion for new trial had been filed by plaintiffs before said referee November 5, 1909, and said motion was overruled by the referee on the same date. On March 12, 1910, an order wasjmade by the common pleas court remanding and re-referring said cause to said referee, and ordering and directing him to properly certify a bill of exceptions- and file same in that court on or before March 28, 1910. It appears the referee, without in any way changing his original report or his findings of fact and conclusions of law, or without filing any supplemental report or refiling his original report, did on March 26, 1910, allow and sign a bill of exceptions showing the motion for new trial filed by plaintiffs November 5, 1909, and the overruling of same by him on the same day, and the sending of the bill of exceptions by plaintiff to him on the 21st day of March, 1910, and the same was filed by him in the court of common pleas on March 26, 1911.

Trial by referees is provided for in Sections 11475 to 11486 of the General Code. Such a trial is conducted as if by a court, and the referee’s decision must be given and may be excepted to and reviewed as in a trial by the court. Guthrie v. Angosta Milling Co., 17 C. C., 256; Lawson v. Bissell, 7 O. S., 261; Cincinnati v. Cameron, 33 O. S., 336.

The bill of exceptions should be taken and filed before the referee within the time limited by Sections 11564 and 11565 of the General Code. This was not done in this case, and the limit of time having expired the court of common pleas had no power to extend this time. Its action in referring and remanding the case back for the sole purpose of executing its order for the referee to certify and file a bill of exceptions was taken too late and could have no effect in extending the time fixed by statute for the signing of such bill of exceptions. And the bill of exceptions which was signed by the referee in pursuance of that order can not be considered by the court as part of the record. The court below erred in not confirming the report of the referee and ordering it to stand as the decision of the court and entering judgment therein in favor of defendants below. • An examination of the evidence found in the so-called bill of exceptions, if it could be considered, leads the court to conclude that the report of the referee was correct in his findings of fact and conclusions of law. The judgment of the common pleas court is reversed and judgment given here for plaintiffs in error.


text:
    LIABILITY OF TENANT FOR DEFECTIVE COVERING OF COAL HOLE.
    Circuit Court of Cuyahoga County.
    Benjamin Freyer et al v. Thomas White.
    Decided, November 10, 1905.

      Landlord and Tenant — Tenant LiaMe for Nuisance — Constructive Notice.

    1. Where there has been a nuisance of .continued existence both the lessor and lessee of the premises may be liable therefor, and in an action against the lessee for damages it' is no defense that the premises were received from the lessor in the same 'condition.
    2. Where a tenant has been in possession of premises for two years, he will be charged with constructive notice of a defect in the covering of a coal hole in the sidewalk which has existed during all of that time.

      Frank Wade and M. B. Putney, for plaintiff in error.

      Willis Vickery, contra.
    PIenry, J.; Winch, J., and Marvin, J., concur.
   This is a personal injury damage ease, wherein the defendant in error recovered a verdict for $949.37 and judgment thereon after a remittitur of $300. The facts are briefly these: the defendant in error while walking along a public sidewalk in this city, February 11, 3903, stepped on the cover of a certain coal hole therein. The cover tilted and he fell astride of it. The premises, in front of which this accident happened, were, and for more than two years before had been, in the exclusive possession of the plaintiffs in error as tenants under a written lease. On the trial it appeared that the pin, by which the coal-hole cover should have been fastened underneath, was not in place; but plaintiffs in error sought to shift responsibility therefor upon their landlord, by showing that no use had ever been made of that particular coal hole by or for them, during their tenancy, that they had no knowledge of its condition, and that it had been in the same condition before and ever since their tenancy began.

The court refused to permit this showing to be made, and charged the jury substantially that notice to the plaintiffs in error of this1 defect was under these circumstances presumed. These rulings are here assigned as error.

'Whatever liability rests on the abutting owner, or occupier, in such a ease as this, arises not from his creation or maintenance of a nuisance.' Morris v. Woodburn, 57 Ohio State, 330, 334 ; Wilhelm v. The City of Defiance, 58 Ohio State, 56, 64.

‘ ‘ And where there has been a nuisance of continued existence, lessor and lessees may both be liable for damages resulting therefrom. The lessee in actual possession of the premises, if he continues the nuisance after notice of its existence, and notice to abate it; the lessor, if he at first created it and demises the premises with the nuisance upon them, and at the time of the damage done is receiving a benefit therefrom by way of rent or other.wise.” Shindelbeck v. Moon, 32 Ohio State, 264, 268.

Tt thus appears that the liability or non-liabilitj'- of the landlord, who is not a party to this case, has no bearing on the question of the tenant’s liability herein; and it was therefore not error to refuse to-permit the latter’to show that the defect existed when the landlord demised the premises. Nor was there any error in refusing to permit the plaintiffs in error to show that they were without actual notice of the defect, if the admitted circumstances were such as to effect them with constructive notice.

In Timlin v. The Standard, Oil Company, 126 N. Y., 514, it was held that:

“A lessee of premises does not become liable for a nuisance existing thereon merely by accepting the lease; but to render him liable it must be shown-that he had notice of its existence, or that enough time had elapsed in which he could, by the exercise of proper care, have obtained such knowledge.”

The time so elapsed in this case was over two years. Ordinary care in a ease of this character would be great care (Bank v. Gillen, 27 C. C., 609, 612). The slightest care — the most cursory inspection — with respect to the security of the cover to this coal hole, would have revealed the absence of the pin which had been provided for the purpose of fastening it. And we hold that the court below did not err in ruling that the plaintiffs in error were chargeable with knowledge of this condition under the circumstances of this ease.

Newly-discovered evidence was one of the grounds on which the motion for a new trial was predicated, and it is said that the remittitur of $300 was required on account of the affidavit which was filed in support of this ground and which tended to show that the disability of the defendant in error inay not have been so great as the testimony on the trial had indicated. It also tends to contradict his testimony in one or two other particulars. The affidavit is not that of a new witness to be called, if another trial should be granted; but that of one of the attorneys for plaintiffs in error, as to what certain persons, not under oath, had told him they would testify if called. Moreover, there is no such diligence shown to have been exercised, at and before the time of trial, for the discovery of the evidence in question, as would warrant us in finding that the court below erred in overruling the motion, so far as that ground is concerned, particularly after the remittitur was entered.

It is claimed further that the judgment is even now excessive, notwithstanding the remittitur. Our review of the evidence convinces us that the contrary is true. The judgment is affirmed.


text:
    RENEWAL OF STREET RAILWAY GRANT MUST BE TO THE ORIGINAL COMPANY.
    Circuit Court of Cuyahoga County.
    Wm. M. Raynolds, as a Tax-payer, v. The City of Cleveland.
    Decided, December 1, 1905.

      Street Railways — Municipal Corporations — Renewal of Grant Must he to Original Corporation.

    The power of a municipal corporation to renew a grant of permission to use the streets of the municipality for street railway purposes under the provisions of Section 1536-184, Revised Statutes, is limited to the renewing of such grant to the original party thereto, and such renewal may not be made to a strang-er to the original contract.

      G. W. Gollister, for plaintiff.

      N. D. Baker and Garfield, Howe <& Westenhaver, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This cause comes into this court on appeal, and is a tax-payer’s action wherein the main relief sought is an injunction prohibiting the. Forest City Railway Company from exercising the right, attempted to be granted to it by the ordinance of the city of Cleveland of January 31, 1904, to use, for street railway purposes, certain portions of Erie street, Central avenue, and Quincy street in said city, from and after March 22, 1905, and to acquire for the same purposes the Cleveland Electric Railway Company’s fixed property then and now located on said streets.

It is claimed that said ordinance is void, as being an abuse by the city of its corporate powers in three particulars, to-wit: 1. That it is a violation of the city’s subsisting contract obligations to the Cleveland Electric Railway Company with respect to said streets, by attempting prematurely to terminate the same; 2. That it provides for the tailing of the Cleveland Electric Railway Company’s property on said streets without due process of law; 3. That it attempts to renew the city’s grant of permission for the use of said street for street railway purposes to a corporation which is a stranger to the original grant.

For convenience we shall consider the last claim first.

The power, which the city has sought to exercise, is defined in the last clause of Section 1536-184 of Bates’ Annotated Statutes :

“No corporation, individual or individuals, shall perform any work in the construction of a street railroad, until application for leave is made to the council in writing, and the council by ordinance shall have granted permission, and prescribed the terms and conditions upon, and the manner in which the road shall be constructed and operated and the streets and alleys which shall be used and occupied thereof, but the council may renew any such grant as it expires upon such conditions as may be considered conducive to the public interest.’.’

The plaintiff contends that the renewal of a grant can only be made to a party to the original grant, this being the ordinary and natural meaning of the words used in the statute, and in accord with the purpose of the Legislature, ^frequently manifested to favor the unification of different street railway routes in the same city into a system that will enable passengers, by means of transfers and without additional fare, to ride whither-soever they will upon such system, irrespective of the termini of its original or constituent routes. And because the length of such original routes is apt to be rendered inadequate by reason of the city’s natural growth and spread, and because the grants for such original routes may expire at different times, the Legislature has provided for the extension of routes and for the renewal of grants by a city, without its having to jeopardize the unity of its street railway system by a general-summons to the bidding post.

In other words, plaintiff’s contention is that the very reason for permitting non-competitive extensions and renewals is to enable cities to encourage and preserve the unity of their respective street railway systems for the convenience of the public.

The defendants, however, claim that Section 1536-184 is not a donation but a mere limitation of power, and that the full effect of the sentence, “But the council may renew any such grant at its expiration upon such. conditions as may be considered conducive of public interest,” is exhausted when it is construed to mean that the restrictions imposed by the preceding sentence shall not be held to apply to the situation at the expiration of the grant. It is suggested also that a city’s grant of permission to use its streets for street railway purposes does not, of itself, constitute a contract implying a particular grantee, even though it necessarily results in such a contract; but that the granting of permission is essentially impersonal, and may inure to anyone qualified to make use of it, though, in fact, it does inure only to the one ascertained by the selective process provided in Section 1536-185 of Bates’ Annotated Statutes of Ohio. And if this be true,.it is argued further, that the renewal of such grant of permission is likewise impersonal in its nature and may inure to the former grantee, or to a stranger, as the city may elect. In othei; words, it is claimed that a grant, or renewal, is a mere right or res, and not essentially a relation between parties.

And it is urged that this construction is not only warranted by the letter of the law, but that it is clearly in the public interest; for otherwise a city’s existing street railway system has an unfair advantage in negotiating the terms and conditions of renewals. But if the law may be construed to mean that a city in providing for the renewal of an expiring grant is given a free hand for negotiation as to both terms and parties, it may drive a better bargain in its attempt to secure better terms and conditions without sacrificing the unity of the existing system or producing an interregnum, unless and until the latter becomes the more desirable course for the public interest.

Before resorting to considerations of this sort in aid of our interpretation of this statue, we must first consider whether its meaning is fairly open to doubt. At the outset it may be said that we entertain no doubt that Section 1536-184 is to be construed as a donation of power to municipal corporations rather than as a limitation of plenary power elsewhere donated. It is true that Sections 1536-66 and 1536-131 of Bates ’ Annotated Ohio Statutes confer upon municipal corporations plenary power of control over their streets and vest in them the fee thereof, in trust for and to the use of the public for street purposes subject to the right of the state to direct the mode of administering that trust, or even to administer it for itself. So far as the state has undertaken to do this, its action is, of course, binding on the corporation. And it has so undertaken with respect to certain phases of the general street purpose, notably in the ease of the right of the telephone companies to use city streets. This right the state has seen fit to confer by direct grant upon the companies themselves, without the agency or even the consent of its municipal corporations. Farmer v. Telephone Co., 72 O. S., 526; State v. Telephone Co., 72 O. S., 60; Zanesville v. Zanesville Telegraph & Telephone Co., 64 O. S., 67.

For reasons hereinafter more clearly appearing, we have reached the conclusion that, in a somewhat analogous manner, the state has also excepted from its general grant to municipal corporations of the power of control over their streets, that other phase of the general street purpose here under consideration, viz: the use thereof for street railway purposes. And Sections 1536-184 et seq., operate by way of a new and distinct grant of power to municipal corporations to deal with that subject to the extent and in the manner therein prescribed.

The fact that, in the exercise of that power, they may contract with street railway corporations as to the terms and conditions of the latter’s use of the streets, makes possible paving, sprinkling and the like. But Sections 1536-184 et seq., can not properly be construed as mere limitations on the general power conferred by Sections 1536-66 and 1536-131: This we take to be the true bearing of the decision in Cincinnati Street Railway et al v. Smith et al, 29 Ohio State, 291. And hence we must consider the last clause of Section 1536-184 not as a determination of the force of previously prescribed limitations, but as a further donation of power to municipal corporations, to deal with the subject of renewal grants.

The nature of the power thus conferred is a nearly related question of equal if not greater difficulty. What is it that the city is empowered to grant, as regards tbe use of its streets for street railway purposes?

If a corporation organized for street railway purposes under the laws of Ohio can be deemed to derive its interest in the public easement of city streets and its power to construct and operate a street railroad thereon, from the .city itself, then clearly the city’s grant of such interest and power must imply a grantee as well as a grantor. The relation of parties is in that event an element necessarily involved, and the action of the city is clearly not impersonal in its nature, inuring merely to whom it may, but a relation wherein a grantee is as essential as a grantor.

On the hearing, however, one of the learned counsel for plaintiff pressed upon our attention a different interpretation of the laws of Ohio with respect to the general relations subsisting between street railway and municipal corporations, respectively in this state — an interpretation which, indeed, was urged not to this point, but to the one already discussed. As already intimated, we conceive this may have an important bearing upon the point now under consideration. It is this, that a corporation organized for street railway purposes in this state may be deemed to derive its interest in the public easement of city streets and its power to construct and operate a street railroad thereon from the state itself under Revised Statutes, Section 3437, and an interest and power, the enjoyment of which is, however, conditioned upon the city’s yielding its permission therefor under the regulations prescribed by law. See Simms v. Street Railroad Co., 37 O. S., 556, 5th paragraph of the syllabus. State, ex rel Taylor, v. Columbus Railway Company, 24 C. C., 609, 1st paragraph of syllabus. But see also Cincinnati Street R. R. Co. v. Smith, 29 O. S., 306; Citizens’ Electric Ry. Co. v. Commrs., 56 O. S., 1.

We have been much impressed with this view, and -with the suggestion that, although the granting of such permission by a city is so regulated by law that it must result, if granted at all, in the city’s assumption of contract relations with the successful applicant, who is ascertained to be such by the selective process already mentioned, and to whom alone such permission can inure, yet this permission, being the essential thing, may be deemed to be in its nature impersonal, and the resultant contract relations merely an adventitious circumstance. The consent of the municipality would thus be assimilated to the consents of abutting owners. On this view, is the permission which the city grants, in its essence, a mere assent to the use of certain streets for street railway purposes by whoever may duly be authorized to exercise such use; or, is it a permission the award of which necessarily implies a definite grantee? --If it were an original question, we should find its solution fraught with some doubt and uncertainty; but we are constrained to regard it as settled and put beyond our power to re-examine, by the decision of the Supreme Court of Ohio, in State, ex rel, v. Bell, 34 O. S., 194. That case construes Sections 411 and 412 of the then existing municipal code. Section 411 afterwards became Section 2501 of the Revised Statutes. Section 412 afterwards became Section 2562 of the Revised Statutes, which has been repealed and is now replaced by Section 1536-185 of Bates’ Annotated Statutes. The alterations that have meanwhile taken place in these sections do not, we think, alter the construction to be placed upon them. The syllabus' of Bell, ex rel, v. State, is as follows:

“1. Under Sections 411 and 412 of the municipal code (66 Ohio L., 217; 67 Ohio. L., 77), a grant by the council of a municipal corporation to build a street railroad must be made by ordinance directly to a corporation, individual, or individuals to be therein named; and the authority to make the grant can not be delegated by the council to any officer or board.
“2. The consent of property owners provided for in the act of 1866 (63 Ohio L., 55; S. & S., 137), as amended in 1868 (65 Ohio L., 112; S. & S., 139), to the construction and operation of a new street railroad, is not required since the amendment of Section 412 of the municipal code (67 Ohio L., 77), and the consent mentioned in the last mentioned section, by whomsoever obtained, inures to the benefit of the lowest bidder.”

In the opinion by Okey, J., it is said:

“When all these preliminary steps are taken and facts ascertained, that is, when, on such application, council has fixed the terms and condition on which a railway may be constructed and operated, and notice has been given, bids received, the lowest bidder as to fares ascertained, the board of public works assents to the grant, and such lowest bidder complies with the terms and condition prescribed then, and not until then, the council may pass the ordinance granting the right;, as provided in 412. And that ordinance is not a general authority inuring to the benefit of the company which, or person who, may thereafter receive the award to construct and operate the railway; but the grant by the council directly" to the corporation to which, or the individual to whom, the contract is then awarded. There can, in such ease, be no grant without a grantee expressly named therein.
“This being the view of the Supreme Court concerning the nature of the grant made by a municipal corporation, we are bound to hold that a renewal of such grant, like the renewal of a note or of a lease, must be made to and with the opposite party to the contract, and not to or with a stranger, and that the renewal, in this1 ease, being an attempt to deal with a stranger to the original grant, is therefore void.”

It thus becomes unnecessary to pass upon the other questions made in this case.

It is suggested on behalf of the defendants that the construction which we have given to Section 1536-184 is inconsistent with the construction put upon the next succeeding sections by this court in State, ex rel, v. Cleveland Electric Railway Company, 6 C. C., 318. But a careful reading of the latter section will, we think, demonstrate the contrary. The first clause of Section 1536-186 clearly does not mean as much as, upon a merely cursory inspection, it would seem to indicate.

The plaintiff may take a decree in accordance with the prayer of his petition and with this opinion.


text:
    APPEAL BOND WHERE TIME FOR. FILING FALLS ON SUNDAY.
    Circuit Court of Cuyahoga County.
    Max Pfister v. F. G. Botsford et al.
    Decided, December 1, 1905.

      Appeals from Justice Courts — When to be Perfected.

    Section 4951, Revised Statutes, does not apply to practice in justices’ courts, and where the date upon which an appeal bond may be filed falls upon Sunday it can not be filed on the following day.

      A. H. Martin, lor plaintiff in error.

      J. Moore and F. G. Friend, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   .This proceeding in error is brought to reverse a judgment rendered by the common pleas court in an action brought thither on appeal from the court of a justice of the peace.'. Pfister was plaintiff in both the lower courts and is plaintiff in error here.

An inspection of the transcript from the justice’s court discloses that the appeal bond was not filed within the statutory period. The time for filing expired on a Sunday and the bond was filed the next day. It was therefore too late, and was without efficacy to perfect an appeal. Section 4951, Revised Statutes, does not apply to practice in justices’ courts. McClees et al v. Morrison, 29 O. S., 155; Kerry v. Keil, 60 O. S., 607.

The judgment of the court of common pleas is reversed, and the cause remanded to that court with direction to dismiss the appeal.


text:
    ORDER. OF ALIENATION.
    Circuit Court of Cuyahoga County.
    W. II. Gates v. Adeline Stebbins et al.
    Decided, November 24, 1905.

      Mortgages — Doctrine- of Inverse Order of Alienation Purely Equitable.

    1. The doctrine of “inverse order of alienation” as applied to the subjection of mortgaged property to the payment of a mortgage, is purely equitable and not applicable to a case where equity and natural justice would be defeated by so doing.
    2. Where a father had devised houses of equal value to each of his two daughters and later executed deeds of the properties to the daughters; Held: That the husband of one daughter, to whom the father had given a mortgage prior to the -execution of the deeds, might enforce the mortgage, one-half as against each property, and the fact that the deed to his wife had been delivered subsequent to that to the sister did not compel him to subject the properties in the inverse order of their alienation.
    ITenry, J.; Winch, J., and Marvin, J., concur.
   This cause comes into this court on appeal. Plaintiff’s wife and the defendant, Mrs. Stebbins, are sisters. Their father having made a will by which he gave each of them a house and lot, subsequently conveyed to them respectively the property so devised. The two properties were adjacent and of substantially equal value. Both deeds were executed the same day, but Mrs. Gates’ deed was delivered later than the other, with the intention, as is claimed, to discriminate against the latter. Both were warranty deeds given for a nominal consideration, and evidently for the purpose, as we think the evidence indicates, of treating'both daughters equally in this distribution of his real estate.

Prior, however, to the making of these deeds, the father borrowed money of Mrs.-Gates’ husband and gave to him a mortgage on both properties. This suit is brought to foreclose the mortgage. At the outset, however, the plaintiff released his wife’s property from the lien of the mortgage, by which he ad-mils that he has reduced the amount thereof one-half, but claims the right to enforce the lien for the remaining half on Mrs. Stebbins’ property.

The defendants seek to apply the doctrine of inverse order of alienation, whereby the entire burden of the mortgage would be made to rest on the property of Mrs. Gates, which is admittedly worth enough to respond thereto, if such be the law of this ease.

The doctrine referred to is purely equitable, and is applied to save a purchaser for full value, who is prior in time and in equity, from having to pay an additional consideration for his purchase. Sternberger v. Hanna, 42 O. S., 305.

It is not applicable to a case where equity and natural justice would be defeated by so doing (Patty v. Posee, 8 Paige’s Ch., 277; 35 Am. Dec., 683). And we think it should not be ap-; plied in this ease.

Tt is objected further that plaintiff and Mrs. Gates were incompetent to testify to facts antedating the death of the father. But the Ohio ease before cited is authority to the contrary, so far as Mrs. Gates is concerned, and no testimony of Mr. Gates to such transactions was introduced. There are other questions presented which we have examined but do not deem it necessary to discuss. Plaintiff may take a decree in accordance with this opinion.


text:
    PEDESTRIAN IN CROSSING A HIGHWAY NEED NOT STOP, LOOK AND LISTEN.
    Circuit Court of Cuyahoga County.
    James J. Petro v. Mary Mihalek.
    Decided, December 22, 1905.

      Highways — Negligence—No Duty of Pedestrian to Stop, Looh ana, Listen for VeJiicles.

    There is no duty on the part of a pedestrian to stop, look and listen for vehicles before crossing a highway.

      W. II. Schwartz and Hart, Canfield Crohe, for plaintiff in error.

      E. Waite and A. Green, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This was a personal injury damage case in which defendant in error recovered judgment in the common pleas court against plaintiff in error.

It seems that as M(ary Mihalek was crossing Holton street, in the city of Cleveland, she made use of the planking put down by the Cleveland & Pittsburgh Railroad Company at its crossing over said street! She was run down and struck from the rear by a spirited horse hitched to a wagon, both owned by plaintiff in error, and alleged to have been driven in a careless negligent manner by his servant.

Certain special findings, submitted by defendant-below, with their answers, are as follows:

“Did the plaintiff upon approaching the crossing carefully look up and down the street? Answer. Yes.
“Did the plaintiff cross the street in a diagonal direction? Answer. Yes.
“Did the plaintiff change her course while crossing the street and go toward the horse and wagon driven by John Petro, the agent of defendant? Answer. No.”

The case is here on petition in error with a bill of exceptions giving all the evidence.

The errors claimed are:

First. That the court erred in overruling defendant’s motion made at the close of plaintiff’s testimony, to direct a verdict for the defendant.

As the defendant did not stand upon this motion, but went forward and introduced evidence in his defense, we shall consider this claim of error in connection with the second claim, which is as follows:

Second. ■ That the verdict was against the evidence.

The claim is based upon alleged contributory negligence of plaintiff. It is negatived by the special findings of the jury. ¥e have carefully read all the evidence and are not disposed to say that said special findings, or the verdict, is against the weight of the evidence or unsupported by sufficient evidence. That the driver of the wagon was clearly negligent is shown by Ids own testimony appearing on page 48 of the record.

Third. It is urged that the court erred in charging the jury that the burden was upon the defendant to show that plaintiff's injuries resulted from her own negligence which proximately contributed thereto. This is the general rule and we see no error in charging it. The authorities cited by plaintiff in error in support of his contention go only to the extent that where the plaintiff’s own evidence in support of her cause raises a presumption of contributory negligence on her part., the burden rests upon her to remove the presumption. There was no such presumption raised by plaintiff’s evidence in this case, and the court’s charge on this subject was therefore applicable and sound.

Fourth■ It is claimed that the court erred in not giving certain of defendant’s requests to charge.

Such of them as embodied the law of the case were fully covered by the charge as given. The first, second and fourth requests were properly refused, as they do not correctly state the law; they declare that it is the duty of a pedestrian to look carefully up and down the street before crossing it so as not to put himself in the way of approaching vehicles, and to look, listen and watch, practically the care required of one crossing -a railroad track.

Pedestrians have equal rights with those driving, .in all parts of the street; it is the duty of pedestrians' in the roadway to exercise reasonable care to avoid danger from passing vehicles. Mliolb on Roads and Streets, Sections 834 and 835.

The requests called for a higher degree of care than that exercised by ordinarily prudent persons under similar circumstances and were therefore properly refused. ■

The fourth request embodied defendant’s claim' as to the burden of proof of contributory negligence, considered in connection with the charge as given, and for the reason there stated, was not applicable to the ease.

Finding no error in the record, the judgment is affirmed.


text:
    DISTRIBUTION OF PROPERTY OF AN INTESTATE AMONG NEPHEWS AND NIECES.
    Court of Appeals for Madison County.
    Treat v. Bessey et al.
    Decided, July 25, 1913.

      Estates of Decedents — Descent of Non-Ancestral Lands of an Intestate— Next of Kin Nephews and Nieces — Distribution Per Capita.

    Where an ancestor dies seized of non-ancestral real estate, leaving as next of kin nephews and nieces and issue1 of a deceased “niece, the inheritance descends per capita to the nephews and nieces, the issue of the one deceased taking a share by representation.

      David K. Watson and Chris. A. Weldon, for Lincoln A. Weldon and Percy Howard.

      M. J. Sanford and George A. Allen, contra.
    Allread, J.; Ferneding, J., and Kunkle, J., concur.
   Marion Howard on January 1, 1912, died intestate, without issue and unmarried, seized in fee simple of non-aneestral real estate consisting of 1128 acres of land in Madison and Champaign counties, and. leaving as next of kin Lincoln Weldon, only child of Mary Howard Weldon, a deceased sister; Percy Weldon, only child of Clinton Howard, a deceased brother, and William A. Howard, Belle Bessey, Mary Arter and Howard H. Treat (son of Emma F. Treat, deceased), children and representatives of Napoleon Howard, a deceased brother.

Lincoln H. Weldon and Percy Howard each claim one-third of the estate by right of representation. The other nephews and nieces and the representative of the one deceased claim that the distribution should be in equal shares.

The sole question, therefore, is whether the estate descends to the nephews and nieces per stirpes or per capita.

The claimants under the per stirpes theory rest upon subdivision 3 of Section 8574, General Code, providing that in the absence of issue and husband or wife relict “the estate shall pass to the brothers and sisters of the whole blood, and their legal representatives. ’ ’

The per capita claimants rely upon Sections 8581, 8582, and 8583, General Code, which are as follows:

“Section 8581. When all the descendants of an intestate, in a direct line of descent, are of an equal degree of consanguinity to the intestate, whether children, grandchildren, or. great-grandchildren, or of a more remote degree of consanguinity to such intestate, the estate shall pass to such persons of equal degree of consanguinity to such intestate in equal parts, however remote from the intestate such equal and common degree of consanguinity may be.
“Section 8582. If some of the children of such intestate are living, and others are dead, the estate shall descend to the children who are living, and to the legal representatives- of such as are dead, so that each child of the intestate who is living will inherit the share to which he or she would have been entitled if all the children of the intestate were living, and the legal representatives of the deceased child or children of the intestate inherit equal parts of that portion of the estate to which such deceased child or children would be entitled if such deceased child or children were living.
‘! Section 8583. The provisions of the next preceding section shall apply in all cases in which the descendants of the intestate, entitled to share in the estate, are of unequal degree of consanguinity to the intestate, so that those who. are of the nearest degree of consanguinity, will take the share to which he or she would have been entitled, had all the descendants in the same degree of consanguinity with him or her, who died leaving issue, been living.”

Standing alone, clause 3 of Section 8574 would probably jristify the per stirpes distribution, but we think it clear that Section 8574 must be construed in harmony with Sections 8581, 8582 and 8583, and that Section 8574, being general, yields to Sections-8581, 8582 and 8583 in cases falling within the special provisions of the latter sections.

It is argued with great earnestness by counsel for the per stirpes claimants that the sections of statute last cited should be confined and limited to lineal issue and not extended to collateral descent.

We are not, however, called upon to construct an interpretation of this statute as of first impression. We have carefully compared Sections 8574, 8581, 8582 and 8583, General Code, with the corresponding sections of the act of 1853 and find no material difference in respect to the present controversy.

The case of Ewers et al v. Follin, 9 Ohio St., 327, decided under the act of 1853, is parallel and decisive. In that case it was' held:

“By the provisions of the 10th section of the act regulating descents, passed February 24, 1831, when an estate descended to nephews and nieces, legal representatives of brothers and sisters, no brother nor sister of the intestate surviving, the nephews and nieces took' per capita; and if a nephew or niece had died before the intestate, leaving children, such children took per stirpes the share of the deceased parent. This rule has not been altered by the fifth, sixth, seventh and eighth sections of the present act regulating descents.”

Gbolson, J., in the opinion, in analyzing Section 6 of the act of .1853 (now Section 8581, General Code), in respect to collateral descent, says:

“There is some ambiguity arising from the language em- • ployed in the sixth section, which has probably led to the reservation of the question in this1 case. It might, upon a first inspection of that section, be supposed that the ‘descendants’ to which it refers, were the lineal descendants only of the intestate, such as grandchildren and great-grandchildren; but a more careful examination shows the eontrarjr. It will be seen that in the sixth section children as well as grandchildren and great-grandchildren are named, which, if the lineal descendants of the intestate alone are intended, would have been unnecessary, the children of the intestate having been provided for in the fifth section. The concluding language of that section also shows, that descendants, in the sense of those to whom the estate descends, were in the contemplation of the Legislature. Its provisions are to apply ‘so that the estate shall pass to such persons of equal degree of consanguinity to such intestate in equal parts, however remote from the intestate such equal and common degree of consanguinity may be. ’
“Our conclusion is, that the Legislature, instead of limiting the rule as provided in the tenth section of the act of 3831, intended to extend and apply it to every ease in which an estate was to he divided among a class of descendants, whether their consanguinity to the intestate be lineal or collateral.”

It is urged that the subsequent case of Dutoit v. Doyle et al, 16 Ohio St., 400, is inconsistent with and practically overrules Ewers v. Follin. In Dutoit v. Doyle et al there were surviving children and representatives of other children deceased. It was there contended that the grandchildren took per capita in the portion of the estate not taken by the surviving children. It was, however, held by the court that all took per stirpes. This decision is not, in our opinion, inconsistent with Ewers v, Follin, but at most a limitation of Section 6 of the act of 1853 to cases where the descendants are all of equal consanguinity, that is, all grandchildren and their representatives, or all nephews and nieces and their representatives, and like cases. No criticism or even reference to the case of Ewers v. Follin is found in the opinion in Dutoit v. Doyle et al, and our view that the authority of the former case over cases involving similar facts is not shaken or destroyed is confirmed by the fact that Scott, J., who wrote the opinion in the latter case, and Brinkerhoff, J., who concurred therein, also concurred in the decision and opinion in the former ease. It is hardly conceivable that these eminent jurists would have overruled their former decision without some comment.

The cases of Brower v. Hunt, 18 Ohio St., 311, Martin v. Martin, 56 Ohio St., 333; Mooney v. Purpus, 70 Ohio St., 57, and Miller v. Miller, 15 C.C.(N.S.), 481, are cited, but we find nothing therein inconsistent with Ewers v. FolUn as applied to cases falling within the special provisions of Section 6 of the act of 1853 (now Section 8581, General Code).

The case of Miller v. Miller, supra, involved the time of the vesting of a devise. The court having held that the estate vested at the death of the testator, when two of the brothers were surviving, very properly held that the estate descended per stirpes, in harmony with the authority of Dutoit v. Doyle.

In the case at bar, there being no children or husband or wife relict, and all the brothers having deceased prior to the death of Marion Ploward, leaving nephews and nieces and the representative of one deceased as the next of kin, the ease falls clearly within the decision of Ewers v. Follin.

Counsel upon both sides have referred to various decided cases in other states. Some of these we have examined, but we do not deem it important to review the cases outside of the state, as we think the law of the present case is settled by Ewers v. Follin.

We have been very much interested in the presentation of this case in the investigation of the questions involved. The case has been fully and ably argued by counsel and the labor of the court very much reduced by their efforts. '

The ■ conclusion of the court is that the estate descends per capita to the nephews and nieces, the plaintiff taking the share of his deceased mother.

Decree will be awarded accordingly.


text:
    ACTION FOR RECOVERY FOR SHARES OF A NEW ISSUE OF STOCK.
    Court of Appeals for Hamilton County.
    Second National Bank of Cincinnati v. George E. McDonald.
    Decided, December 15, 1913.

      Banks and Banking — Representations as to the Value of New Stock— Made by an Officer of the Issuing Bank to an Intending Purchaser Not Fraudulent, When — Authority of the Bank to Issue Additional Stock or to Take Its Own Stock as Security for a Loan.

    In an action by a bank for recovery on a note, executed in its favor in payment for a certificate of a new issue of stock put forth by the bank, the defense of fraudulent representations does not lie, where the representations consisted of a statement by the cashier that the bank had a large surplus and was paying twelve per cent, dividends, which was true, and that the dividends would pay the interest on the note which was not true as would have appeared from a mathematical calculation, and that the dividends would probably be increased which did not occur; nor does the defense lie in such a case that the increase of the capital stock of the bank was invalid when it appears that it was duly authorized by .the comptroller of the currency, or that the transaction was ultra vires on the theory that the note was a mere loan to the bank for which it took its own stock as collateral, or that there was no consideration for the loan because the stock was not delivered to the defendant but was held by the bank as collateral, where possession could have been obtained by the defendant at any time by paying the note.

      Jelke, Clark & Forchheimer and Peck, Shaffer & Peck, for ■plaintiff in error.

      Hackeit, Yeatman & Harris, contra.
    Jones (O. B.), J.; Swing, J., and Jones (E. H.), J.. concur.
   This was an action on a promissory note for $2,750 given by defendant to plaintiff dated February 1, 1912, payable on demand. This note was given in renewal of a note for the same amount dated January 16, 1909.

The plaintiff, a national bank whose capital stock was $500,-000, by virtue of the Federal statutes took the necessary steps to increase its capital to $1,000,000. The defendant became a subscriber for ten shares of its capital stock, purchased by him at the market price of $275 per share. The bank loaned him $2,750 to pay for this stock, and took the original promissory note as evidence of that loan, crediting $2,750 as cash paid in on account of its capital stock. A certificate for ten shares of stock was made out in the name of Gr. E. McDonald, and instead of his endorsing a transfer in blank on this certificate, an irrevocable power of attorney was executed by him appointing the Second National Bank as his attorney, to sell, assign, transfer and set over all or any part of said stock. This stock, with such power of attorney, was held as security for said loan.

Defendant paid twelve quarterly installments of. interest on said note, at five per cent, which were credited on the'back of the note, the first installment being credited February 1, 1909, and the last one on the original note November 1, 1911. There is also a credit on the note sued upon of $47.80, paid August 23, 1912. McDonald received dividends on this stock as declared by the bank.

The petition is the usual form on a note. Defendant filed an answer and cross-petition in which, in addition to a general denial, he pleaded that he had by the fraud of the bank been induced to subscribe for shares of its capital stock, which was then paying a dividend of twelve per cent., and on the promise that it would take his note payable on demand with six per cent, interest, that it would not call such loan but would hold the certificate of stock as payment for the said note, and that the dividends on said stock would more than pay the interest on said note and in addition would pay part of the principal, so that eventually said stock so subscribed would become his property without having to pay out any money for it.

Defendant alleges that said statements were not true, and that he never received the stock and the note was therefore without consideration; and he further pleads that the act of receiving said note in payment for stock subscription was ultra vires on the part of the bank. And by way of cross-petition defendant asks for a judgment against the bank for twelve quarterly payments of interest upon said note, of $41.25 each, amounting to $495.

The allegations of this answer were denied by a reply.

At the close of the evidence the court below refused plaintiff’s motion for an instructed verdict in its favor, but granted the motion of the defendant for an instructed verdict in his favor without finding any money due to him.

The evidence shows that Mr. McDonald, who was a building contractor, had erected the new bank building for plaintiff in which it was doing business, and was acquainted with its officers. When its capital stock was about to be increased Mr. Williams, its cashier, suggested to him the idea of taking some of its stock. Mr. Williams stated to Mir. McDonald, when he made the subscription, that the bank was in a prosperous- financial condition and had a surplus of $500,000 which was true, and that the bank was declaring dividends of twelve per cent. per annum, which was also true, and further stated that these dividends would about pay the interest on the necessary loan to buy the stock. While the answer alleges that the interest on the note was to be six per cent, it seems that the interest charged by the bank was five per cent, which amounted to $137.50 per year, while the dividend at twelve per cent, was $120 on ten shares. These facts McDonald knew at the time of the subscription so he was not misled into believing that the rate of dividend then being paid would quite carry the interest on the note. The opinion of both Mr. Williams and of Mr. McDonald at that time was that the stock would appreciate in value and the dividends would probably be increased, but there is no testimony showing that any representations were made as to how much this increase might be or when it might be had. The cashier testified that he himself had at the same time bought stock of the bank and then believed it a good investment. There is no evidence in the record that the bank changed its prosperous condition during the time that this note and stock were carried, and in fact we fail to find any evidence that the bank ever did become in a failing or insolvent condition.

Representations made by the cashier to McDonald at the time he subscribed for his .stock, so far as past and present conditions were concerned, were true. Any statements made by him as to future prospects or hopes relating to the bank were merely his opinion, and appear to have been honestly made, and could not be held fraudulent with the effect of relieving the defendant from his obligation. Armstrong v. Karshner, 47 O. S., 276.

As stated above, McDonald knew that the dividend at the current rate would not quite pay the interest, and there would have to be a material increase in the rate of dividend to have it not only carry the interest but allow payments, on the principal of his debt to the bank.

Defendants argue that the increase of capital stock by the bank was illegal and therefore invalid, because a promissory note had been taken in payment of the stock when cash was required under Section 5142, Revised Statutes of United States. This issue of capital stock was authorized by the comptroller of currency. His action is conclusive and its legality can not be questioned by defendant. Latimer v. Bard, 76 Fed. Rep., 536.

It is argued by defendant that this was virtually a loan made by the bank, taking its own stock as collateral, and that such a loan being forbidden by law was ultra vires and therefore can not be collected .back by the bank. Such a defense by one. who has given a note and secured a loan for it will not be allowed. National Bank v. Stewart, 107 U. S., 676.

It is also argued that defendant received no consideration for the loan, as the stock was never in his hands. This defense can not be allowed, as the stock was actually issued. It was paid for by the money loaned on defendant’s note. As a stockholder he received dividends upon the stock and paid interest on the note at least for two years, and at any time he had seen fit to do so he could have paid his note and secured possession of the stock certificate.

It is argued that there is no individual account with McDonald shown in the books of the bank; that one-should have been opened- in which he should have been credited with the money loaned and debited for the amount paid for the stock, the entries offsetting each other and thus closing his account, these in addition to the entry in the capital stock account showing the receipt of cash in payment for the stock sold. This is a matter of bookkeeping at best, but it does not seem to us necessary to open any account with McDonald and have cross entries therein balancing each other. From the evidence, it was evidently treated as a cash loan to him, just as though the cash had been counted out to him when his note was taken, and then counted back by him to pay for the stock. The entry crediting capital stock, given in evidence, seems to be all that was necessary in this transaction, in addition to the entries in bills receivable accounts.

As there is no valid defense to the note shown by the evidence, the court below was in error in instructing a verdict for the defense and refusing to grant plaintiff’s motion for an instructed verdict in its favor.

The judgment below is reversed, and judgment will be entered here for plaintiff.


text:
    FOREIGNER. NOT ABSOLVED BY IGNORANCE FROM CONDITIONS OF CONTRACT SIGNED.
    Court of Appeals for Mahoning County.
    H. E. Muskovitz v. The Sun Underwriters’ Agency of The Sun Insurance Company.
    Decided, 1914.

      Insurance — ■Reasonable Provisions as to Ownership of Property Covered by Fire Insurance Policy — Policy Rendered Void by Failure to Disclose Liens.

    1. Ignorance of the contents of a contract signed will not relieve a party from its effect.
    2. A policy of insurance containing the clause “this entire policy shall be void” on certain named conditions is not á severable risk, although the amount of insurance is distributed among different classes of property.
    3. An insurance policy provided that the entire policy should be~void if the interest of the insured was otherwise than the unconditional and sole ownership of the property, or if it was encumbered by a chattel mortgage. These were reasonable provisions.
    4. A conditional sale contract and a chattel mortgage were in force upon certain insured personal property, without the knowledge of the insurance company, Held'. That the insured could not recover upon said policy in case of loss.

      Livingstone, George »& Livingstone, for plaintiff in error.

      W. T. Porter, contra.
    Pollock, J.; Metcalfe, J., and Norris, J., concur.
   The plaintiff in error brought this suit in the court below on a policy of fire insurance which he claims the defendant issued to him in the sum of $700 on certain personal property. He says that he performed all the conditions on his part to be performed, and that during the life of this policy the property insured was totally destroyed by fire, and he asks judgment for that amount. The policy shows that this insurance was issued on several articles of plaintiff’s personal property, to-wit: $200 on an ice chest; $200 on blocks, saws, knives and butcher’s tools; $200 on scales and counter, and $100 on shelving.

To this petition there was an answer filed which admits that the defendant issued the policy and admits that the property insured was destroyed as alleged in the petition; and then answering says that the policy contained a provision that:

“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject-matter thereof, or if the interest of the insured in the property be not truly stated thereon.”

And another provision that:

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the interest of the insured by other than unconditional and sole ownership, or, if personal property and be or become encumbered by a chattel mortgage.”

The defendant further states that the plaintiff was not the sole owner of this property; that the scales had been purchased from the Toledo Computing Scale Company, and they held a conditional sale contract upon that part of this property, and that there was a chattel mortgage on the property at the time the policy was issued, probably on the ice chest, and that these facts were unknown to the defendant.

There was a reply filed and the case went to trial. The testimony shows that these allegations of the answer were true, that there was a contract of conditional sale on the scales, and that there was a chattel mortgage on the ice chest. It further shows that neither the agent nor the company had any knowledge at the time the insurance was issued, or at any time prior to the fire, of these encumbrances. The first knowledge they had was when a party holding one of' these liens brought suit against the defendant setting up this insurance, and alleging their interest in the property and asking to be protected.

The plaintiff admits that these liens were on the property, but he seeks to avoid the enforcement of the conditions of the policy by showing that he was a foreigner, not understanding the English language, and that when he purchased these scales he says that the agent of the company presented some contract to him to sign; that he did not understand or know anything about it except that he would have to pay so much a month on the property, but that he signed that paper and about the same thing occurred as to the mortgage, and because he did not know these provisions were in the policy he seeks to avoid the conditions of the policy.

It is a well known rule that ignorance of the contents of a contract signed, will not relieve a party from its effect. The mere fact that the plaintiff, because he was a foreigner, did not understand the conditions of the paper he signed for the scale company, and did not know that he had encumbered the property by a chattel mortgage, can not affect in any way the rights of the insurance company.

The policy of insurance provided that the entire policy should be void, if the interest of the plaintiff was otherwise than the unconditional and sole ownership of the property, or if it was encumbered by a chattel mortgage. This, we think, was a reasonable provision. The company might well refuse to insure property, where the party asking for the insurance was not the sole owner, or it was encumbered. No claim is made that the company, or its agents, at the time it issued this policy,' had any knowledge of the conditional sale, or the chattel mortgage that was then on part of the property, and it had a right to stand on this condition of the policy and refuse to pay the loss.

But it is claimed that if it does prevent the recovery of the insurance on the items that were covered by the conditional sale and mortgage, that it will not prevent a recovery upon the other items of property insured. This is claimed on the authority of Coleman & Co. v. Insurance Company, 49th O. S., page 310. The trouble with that claim is that the case in the 49th Ohio St., is distinguished by the case of Insurance Company v. Schild, 69 Ohio St., page 136, where the Supreme Court says:

“An insurance policy which contains a stipulation that this éntire policy shall be void on certain named conditions, is not a severable risk, although the amount of insurance is distributed among different classes or articles of property. Coleman & Company v. Insurance Company, 49th Ohio St., 310, distinguished. ’ ’

The conditions of the policy in the action at bar are identical with the conditions of the policy in the 69th Ohio St., supra. In the 49th Ohio St. the policy provided that “this policy shall be void” while in the policy in the case in the 69th Ohio St. and the case at bar, the language is, “this entire policy shall be void.” And for this reason the Supreme Cburt holds that it avoids every item insured in the policy.

For this reason the judgment of the court below is affirmed.


author: By the Court.

text:
    PROHIBITION AGAINST KEEPING SALOONS OPEN DURING CERTAIN HOURS.
    Court of Appeals for Perry County.
    Peter Dunkle v. Village of Junction City, Ohio.
    Decided, October Term, 1913.

      Criminal Law — Ordinance Prescribing the Sours a Saloon May Remain Open — Gan Sot be Extended Beyond its Discriptive Terms — Ramaining in Saloon After the Prohibited Sour to Count the Day’s Receipts Sot an Offense — Intention of the Ordinance to Limit the Sours for Continuance of the Business.

    1. Conviction can not be had under an ordinance, intended to prohibit the keeping of any saloon open between the hours of 10 p. m. and 5 a. m., where there is no designation of place in the ordinance to which its provisions apply.
    2. The purpose of such an ordinance must be held to be to prohibit a continuance of the business of the saloon between the hours named, and conviction can not be had of a saloon keeper, who closed his saloon before 10 p. m., but remained in the saloon with his bar keeper for twenty-five minutes after 10 for the purpose of counting the receipts of the day.

      T. B. Williams, for plaintiff in error.

      J. W. Dugan, contra.
   By the Court.

(Voorhees, Powell and Shields, JJ.).

On -the 21st day of- April, 1913, complaint in writing was made before the mayor of the incorporated village of Junction City, in said county, that the plaintiff in error on or about the 19th day of April, 1913, being then the keeper and owner of a saloon in said village and county, did unlawfully keep open and permit his saloon to be open between the hours of 10 o ’clock p. M. and 5 o’clock A. M., for the period of twenty-five minutes after 10 o’clock p. m., to-wit, until 10:25 p. m., contrary to the provisions of a certain ordinance of said village, the first section of which reads as follows:

“Section 1. That it shall be unlawful for any person being the owner, bartender, keeper, or having charge of any saloon, building, or other place wherein intoxicating liquors are sold a.t retail or exposed for sale at retail, to open, keep open between the hours of 10 o’clock p. m. and 5 o’clock a. m., provided that the provisions of this section shall not apply to the sale of intoxicating liquors by a regular druggist,” etc.

Upon the foregoing complaint the plaintiff in error was arrested, tried and convicted of said alleged offense and sentenced by said mayor to pay a fine of thirty-five dollars and costs to all of which the plaintiff in error excepted. The ease was taken to the common pleas court of said county on error, which said court affirmed the judgment of said mayor, and the case was brought into this court by a petition in error for review.

Said petition in error contains various assignments of error, but in our disposition of the case we will notice only such alleged errors as were urged upon our attention.

An examination of the ordinance on which this prosecution is based shows it to be somewhat vagare and indefinite. While it provides that “it shall be unlawful for any person, being the owner, bartender, keeper or having in charge any saloon, building or other place wherein intoxicating liquors are sold at retail or exposed for sale at retail, to open, keep open between the hours of 10 p. m. and 5 a. m.,” there appears to be no designation of place — in the ordinance to which its provisions are applicable. Criminal statutes as against one charged with an offense are to be strictly construed. Speaking for the court Judge Williams in the ease of State v. Myers, 56 O. S., 350, says:

“Under that fundamental rule of strict construction applicable to all penal law, a statute defining a crime can not be extended by construction to persons or things not within its descriptive terms, though they may appear to be within the reason and spirit of the statute. Persons can not be made subject to such statute by an implication. Only those transactions are included in them which are within both this spirit and letter; and a]l doubts in the interpretation of such statutes are to be resolved in favor of the accused.”

This rule of construction is alike applicable to bbth statutes and ordinances. But assuming that the language in the ordinance could be so construed as to harmonize with the evident intent and purpose of the ordinance, and that which was intended to be expressed therein is implied, how stands the ease with reference to the other. ground of error insisted upon by the plaintiff in error, namely, that there was a failure of proof upon the part of said village before the mayor to sustain a conviction of the plaintiff in error? It appears that the bill of exceptions is in the nature of an agreed statement of facts, which, among other things, contains the following: “That the defends,nt is a saloon beeper in said village; that on the night alleged in the affidavit the plaintiff, who is the owner and proprietor of said saloon, and his bartender, put out of the saloon all persons immediately before 10 o’clock, and at 10 o’clock p. m. locked the doors of said saloon. That after locking said doors the defendant and bartender went to his cash register to count the receipts of the day and that he remained in said saloon, with his bartender, for about twenty-five minutes after 10 o’clock p. m., for the purpose aforesaid, before they came out of said saloon; and it is agreed that the'ordinance attached is a true copy of the ordinance under which'the defendant was arrested and which ordinance is to he- considered as part- of this bill of exceptions; that no other persons were in the saloon except the said defendant and bartender.”

It is conceded that the plaintiff in error before 10 o’clock on the night in question “put out” all persons in his saloon, and at 10 o’clock locked the doors of Ms saloon, and that no person or persons were allowed to enter his saloon thereafter and before 5 o’clock the following morning. But it is claimed that after so closing his.saloon the plaintiff in error and his bartender remained in his saloon "to count the receipts of the day,” and so remained about twenty-five minutes "before they came out of said saloon,” and that this’act of the plaintiff in error was in violation of the provisions of said ordinance. While it appears that the plaintiff in error was the owner and proprietor of said saloon, it does not appear that said saloon was not connected with the building in which he resided, and if it was, and he went from his saloon into his residence, it would scarcely be claimed that going from his saloon into his residence would be such a "keeping open” as to fall within the purview of said ordinance. But the real charge here is that the plaintiff in error and his bartender remained in the saloon after 10 o’clock p. m. to count the cash, after the doors of the saloon were locked and kept locked. It does not appear whether there were or were not any lights in the room, the inference being however that there was at least one light. But whatever the number of lights, was the sole fact of the plaintiff in error and his bartender remaining in the saloon for the time and for the purpose indicated, after 10 o’clock p. M-, an offense within the intent and meaning of said ordinance? Was it a keeping open of the saloon in contemplation of said ordinance? Or does the ordinance seek to punish those who would keep open the saloon after the hour named for the purpose of continuing their business? While the ordinance in effect amounts to a prohibition, it is in our judgment a prohibition intended to operate against carrying on the business after a stated hour.

For the reasons stated, we think that the mayor erred in overruling the motion of the plaintiff below to dismiss said case, and the court of common pleas likewise erred in affirming the judgment of the mayor. The judgment of the mayor and that of the court of common pleas will therefore be reversed, and it is ordered that the plaintiff in error be discharged from further custody.


text:
    PASSENGER. INJURED BY STEPPING FROM CAR INTO HOLE IN STREET.
    Circuit Court of Cuyahoga County.
    James Shields v. The City of Cleveland.
    Decided, December 22, 1905.

      Hoads and Streets — Municipal Corporation Liable for Injury Caused by Dangerous Condition of Streets, Notwithstanding Plaintiff’s Knowledge.

    Where a dangerous condition exists in a street due to repairs of pave>ment being made by the city, and plaintiff, who has knowledge of the conditions, whiie alighting from a car at night thinking he was alighting upon a crosswalk a short distance from the place being repaired, is injured by stepping into a hole which he could not see by reason of the city’s neglect to place red lights or' to keep an arc light overhead burning, the city will be liable.
    IIenry, J.; Marvin, J., concurs; Winch, J., dissents.
   This was an action for damages for personal injuries sustained by James Shields at the corner of Euclid avenue and Fairmount street, in Cleveland, on the evening of November 21, 1902. He was a conductor on one of the lines of street ears passing that point, but was then off duty, being on his way home and in the act of getting off the west bound ear in front of the block in which he lived at the northwest corner of said street intersection. He alighted in a hole, or depression, in the pavement, and, falling forward, broke both knee caps. From Fairmount street eastward, the city, for a week or two, had been carrying on extensive park and street improvements, which involved the shifting of the street railway tracks and the temporary removal of the paving stones in Fairmount street. Shields was aware of this but he says that when he left home after luncheon that day, the pavement north of the tracks was intact for a few feet east of the west cross-walk. It was dark when he came home that night, and there were no red lights, or other warning signals, to show just where the pavement was- torn up. Moreover, the arc light overhead, which had been somewhat out of order for several weeks, was not burning, and the store rooms opposite were not illuminated. The ear, on which he was riding, came almost to a standstill and he stepped off at the place where, from such landmarks as he could see (including the outlines of the block in front of him), he supposed the west cross-walk to be located, but which proved to be a few feet east of the cross-walk. Even there he thinks the pavement had been intact when he saw it last that day. .But the city on cross-examination brought out evidence tending to show that no work was done there that afternoon and that, if any paving stones there were in fact removed during the interval, it was the work of an intermeddler whereof the city had no notice and for which it is not liable herein. The case went to the jury and they found for the defendant. The city now contends that, whatever errors there may be in the charge (and several are assigned), the judgment should nevertheless be affirmed. For, if Shields is right in thinking that the pavement where he was injured had been removed that afternoon, the city, being clearly without notice of the defect, is not answerable in damages, and, if Shields is wrong as to the place where he fell, he can not escape the imputation of negligence, in view of his previous knowledge of the situation there.

A majority of the court is unable to concur in the view that this dilemma is a real one. The darkness and absence of danger signals, under all the circumstances, may well have misled Shields as to the precise location of the cross-walk. "Whether he was misled and whether he was himself negligent were questions for the jury under proper instructions. We may apply to the situation of this cross-walk the language of McCauley, J., in Kelley v. City of Columbus, 41 Ohio St., 263, 268, in reference to the location of a street:

“If the surroundings misled the plaintiff into the belief that he was still on the street, and if he walked upon it not thinking and having no reason to think he was beyond the street, the liability of the city would doubtless continue.”

And so here, though Shields knew there was danger a little distance from this cross-walk, but was mislead by the city’s negligenee to suppose that lie was alighting on the cross-walk, the city’s liability, as for negligent disrepair of the cross-walk itself, would continue outside of and beyond it.

If, on the other hand, the hole was' a new one and nearer tbe cross-walk than that with which Shields was familiar,it would still be for the jury to determine whether it was part of the work being done there for the city, or under its license, and whether or not, if caused by an intermeddler on the afternoon of the accident, the city was then chargeable with notice thereof, in view of the vigilance necessarily required for the performance of the special duties it then and there owed the public, by reason of the improvements under way and the dangers incident thereto.

It follows therefore that our decision must turn upon the charge of the court. Was it erroneous? The city does not seriously contend that it is free from error. We think it presents some serious defects, which we shall merely mention without discussing them at length. The charge absolutely debars plaintiff from recovery; so also, if the stones were removed by a wrongdoer without the city’s authority or consent, irrespective of any •notice with which the city may have been chargeable under the circumstances. The charge informs the jury moreover that “the city was bound to exercise ordinary care; but if it had only one street to look after, that would be one thing ;■ but with all the streets of the city it would be different. ’ ’

It further declares that if plaintiff “knew there was no red light at the place where he was injured and that the electric light was not burning, he' can not claim anything for that; the darker the night the more care he should use.”

Each of these propositions unqualified is clearly erroneous. And the charge as a whole is obviously misleading also. For these errors the judgment below is reversed, and the cause remanded.

Our brother Winch dissents on the sole ground that the court should have granted the city’s motion to take the case from the jury because of plaintiff’s contributory negligence,