text:
    TAXATION — LIS PENDENS.
    [Lucas (6th.) Circuit Court,
    October 31, 1903.]
    Parker, Hull and Haynes, JJ.
    Security Trust Co. v. C. W. Root.
    Lis Pendens Does not Apply to Purchaser at Delinquent Tax Sale.
    The doctrine of lis pendens does nqt apply to a purchaser at delinquent tax sale held during the pendency of an action to foreclose a mortgage on the same property, and the title or interest so acquired is a lien upon and-can be asserted against the title of the purchaser at the foreclosure sale, where the former title or interest was not attacked in, or the owner thereof made a party to, the action in foreclosure, notwithstanding the provision of Sec. 5055 Rev. Stat. that no interest can be acquired by third persons in the subject matter of a pending action as against the plaintiff’s title.
    Error to court of common pleas of Lucas county.
    Birchard A. Hayes, for plaintiff in error.
    'John C. Munger, for defendant in error:
    The lien of the state or purchaser at delinquent tax sale for taxes cannot be defeated by a pending foreclosure suit. The doctrine of lis pendens does not apply. Ketcham v. Fitch, 13 Ohio St. 201; Roberts v. Doren, 10 Re. 349 (20 Bull. 397) ; Bigelow, Fraud 297; State v. God-frey, 10 Circ. Dec. 31G (20 R. 649) ; State v. Godfrey, 62 Ohio St. 18 [56 N. E. Rep. 482] ; Wright v.' Walker, 30 Ark. 44; Boykin v. Jones, 67 Ark. 571 [57 S. W. Rep. 17] ; Irving v. Cunningham, 77 Cal. 52 [18 Pac. Rep. 878] ; Wilson v. Bank, 121 Cal. 630 [54 Pac. Rep. 119] ; Barelli v. Delassus', 16 La. Ann. 280; Flower v. Beasley, 52 La. Ann. 2054 [28 So. Rep. 322]; Becker v. Howard, 4 Hun (N. Y.) 359, affirmed Becker v. Howard, 66 N. Y. 5; Sec. 2880 Rev. Stat.
   PARKER, J.

In the court below a general demurrer to the petition was sustained, and plaintiff not desiring to plead further, a judgment was entered against him, and thereupon he prosecutes error to this court, so that the question presented here is, whether the petition contains facts sufficient to constitute a cause of action in favor of plaintiff and against defendant. Plaintiff sets forth in its petition that it is the owner of the westerly thirty-eight feet of lot ten, Machen’s first addition to the city of Toledo. It then sets out in detail how it came to be’the «owner of these premises. The history of the matter, in brief, is, that at one time defendant had a mortgage upon the premises; that it foreclosed the mortgage, bid the-premises in at foreclosure sale, which was confirmed and a deed made. Then it sets forth that pending these proceedings in foreclosure the premises were sold for taxes at a delinquent sale to the defendant, Root; that Root acquired a certificate such as is provided, by law showing that he was the purchaser at- this tax sale -and that Root claims to have a lien on the premises by virtue of the proceedings under the tax sale. The plaintiff contends that Root having purchased pending these foreclosure proceedings, took subject to the doctrine of lis pendens and acquired no interest that can be asserted against plaintiff’s title.

In State v. Godfrey, 10 Circ. Dec. 316 (20 R. 649), we had a similar state of facts under consideration. The real question there was as to the duty of the auditor to make a transfer upon the books, the question •arising between one who had purchased the premises at foreclosure sale and one who had acquired a tax title. Our decision there was reversed by the Supreme Court in State v. Godfrey, 62 Ohio St. 18 [56 N. E. Rep. 482]. We had occasion to discuss the question arising in this casé, and in the course of the opinion this was said:

“The lien of taxes on land, in favor of the state, and the right of the state to proceed to the collection thereof, in the mode provided by law, are paramount to the ownership or interests of private parties and are not affected by the circumstance that a suit may be pending to foreclose and extinguish the title of the owner. It is not necessary or proper to make officers, upon whom the duty devolves to- collect these revenues, or the state, or political bodies, to which these revenues go, parties defendant in the action. The government and its officers are not to be hindered, delayed or obstructed in proceeding according to-law to* collect taxes for the support of the government, by the litigation of private persons, with respect to rights and interests subordinate to the claims of the state.
“To hold otherwise would be to read into the tax laws important conditions and limitations not appearing there, and would be wholly unauthorized. Such provisions would make it easy by fictitious or long drawn out litigation to defeat the evident and proper policy of the state, that is, to make prompt collection of its revenues. That this is not permissible and is wholly obnoxious to the policy of the law, is evident from many of the provisions of the tax laws and from their general scope and obvious policy. The rights of the purchaser at a tax sale under circumstances like those set forth here, are not affected by the foreclosure of'the mortgage. We think that is a necessary conclusion to be drawn from the holding in Ketcham v. Fitch [13 Ohio St. 201] supra. As to such purchases the rules of lis pendens do not apply, and to his lien or title acquired from the state the effects of lis pendens do not attach.”

We still adhere to the views there expressed and just quoted, which views we believe are not antagonized by the reversal of the judgment by the Supreme*Court. Counsel for plaintiff in error insist that we did not upon that occasion give consideration to the provisions of Sec. 5055 Rev. Stat. upon the subject of lis pendens. That section reads:

“When the summons has been served, or publication made, the action is pending, so as to charge third persons with notice of its pendency; and while pending, no interest can be acquired by third' persons in the sub >ect matter thereof, as against the. plaintiff’s title.”

But the doctrine of Us pendens does not apply to one who obtains an interest in the subject matter of the suit through one having a superior title or lien to that asserted in the suit relied on as a lis pendens when such superior title or lien is not attacked in such suit, and the owner' thereof is not a party to the suit; therefore the doctrine of lis pendens does not apply to one acquiring an interest or lien at a tax sale. And this principle receives illustration in the case of Porter v. Barclay, 18 Ohio St. 546, 547. Counsel for plaintiff in error also cites in support of his contention the case of Crum v. Cotting, 22 Iowa 411. The fourth proposition-of the syllabus reads:

“A purchaser of real estate at a tax sale made after the commencement of an action and the filing of a petition to fofeclose a mortgage on such estate in favor of the university fund, acquires no interest in the premises as against such mortgagees which would not be cut off or bound by the decree in favor of said fund.”

But that authority is not in point here and should have no influence upon our decision for the reason that the decision was compelled by a statute of the state of Iowa, which provides:

Section 811. “That in all cases where real estate is mortgaged 'or otherwise incumbered to the school or university fund of this state, the interest of the person who holds the fee title shall alone be sold for taxes, and in no case shall the lien or interest of the state be affected by any sale of such.incumbered real estate made for taxes.” * * *

This makes the claim for taxes subordinate to the claim or interest of the state under a mortgage to the school or university founded by the state.

On the other hand, counsel for defendants in error have cited a number of cases in support of the contention that the purchaser at a tax sale is not affected by the lis pendens — decisions of courts of other states — but we have not deemed it necessary (being so fully convinced upon this point), to examine, those cases. They will be found in the brief of counsel.

The judgment of the common pleas court in this case will.be affirmed.


source: Caselaw Access Project

author: HULL, J.

license: Public Domain

text:
    ASSESSMENTS — INJUNCTION.
    [Lucas (6th) Circuit Court,
    October 31, 1903.]
    Parker, Hull and Haynes, JJ.
    Luella Price et al. v. Toledo et al.
    1. Vacation of Part of Street by Municipality Does not Release Liability for Improvement Assessment.
    Where a portion of a street, consisting of a narrow strip off one side of such street is vacated by a municipality and no longer used as a part of the street, the title to such strip goes to the owners of the lots adjoining it ana therefore abutting upon the street and does not revert to the original owners, and such lots after such vacation are still subject and liable to an assessment as abutting property for improving such street, and it is immaterial that said strip was a part originally of lots other than those-so held liable to assessment.
    2. Injunction Against Collection Lies Only When Assessment Fraudulent or Excessive.
    Where an assessment, according to benefits for a street improvement, has been in all respects duly and regularly made and all the. proceedings are complete, and no complaint is made by property owners until an action is commenced to enjoin the collection of such assessment on the ground that it exceeds the benefits, the court will not grant such' relief, unless the action of the council or other municipal authorities has been fraudulent or tantamount to fraud or the assessment is so excessive as to clearly and unquestionably exceed the special benefits to said property.
    3..Court Cannot Review Action of Municipality Levying Assessment, When.
    In such cases the court docs not sit as a court of appeals to review the action, of the municipal authorities and make a new assessment, upon the evidence,' according to its judgment.
    4. Effect of Subsequent Holdings on Constitutional Questions on Proceedings. ’ - /
    Statutes having been held constitutional by the Supreme Court, proceedings under them are not affected by subsequent decisions of the court overruling the former decisions, and holding such statutes unconstitutional; but they are to he regarded as constitutional, so far as such proceedings are concerned, and assessments made under them prior to the later decisions are valid.
    INJUNCTION.
    Clarence B. Hadden, for plaintiffs:
    A strict compliance with Sec. 2304 Rev. Stat. as to notice in writing for twenty days before the passage of the improvement ordinance is essential to give the council jurisdiction to make the assessment. Joyce v. Barron, 67 Ohio St. 264 [65 N. E. Rep. 1001],
    Every doubt should be resolved in favor of the owner, and his testimony, other things being equal, ’should be given the highest credence by this court on that question. Section 2327 Rev. Stat.; Joyce v. Barron. 67 Ohio St. 264, 275 T65 N. E. Rep. 1001].; Anderson v. ÍTam-ilton Co. (Comrs.) 12 Ohio St. 635; Welker v. Potter, 18 Ohio St. 85; Stephan v. Daniels, 27 Ohio St. 527; Cincinnati v. Sherike, 47 Ohio St. 217 [25 N. E. Rep. 169] ; Cincinnati v. Connor, 55 Ohio St. 82 [44 N. E. Rep. 582].
    It is a well-known rule of law that it is the assessing ordinance and resolution that determine finally the assessing district and the terms of the assessment, and in this case the ordinance declared that lands that bounded and abutted shpuld be assessed, and the lots involved do not in any way come under that description, and therefore cannot be assessed. • Buse v. Cincinnati, 11 Re. 613 (.28 Bull. Ill) ; Griswold v. Pelton, 34 Ohio St. 490; Douglass v. Cincinnati, 29 Ohio St. 167; Cross-ley v. Findlay, 6 Circ. Dec. 553 (10 R. 286).
    That the assessment cannot exceed the special benefits over and above the benefits which are common to the public is now well-settled law, and neither are those who may have signed a petition for the improvement estopped from contesting the assessment on the ground of excessive charges. Norwood v. Baker, 12 O. F. D. 228 [106 Fed. Rep. 764] ; Birdseye v. Clyde, 61 Ohio St. 27, 37 [55 N. E. Rep. 169] ; Walsh v. Barron, 61 Ohio St. 15 [55 N. E. Rep. 164] ; Lewis v. Symmes, 61 Ohio St. 471 [56 N. E. Rep. 194]; Schroder v, Overman, 61 Ohio St I [55 N. E. Rep. 158] ; Cincinnati v. Connor, 55 Ohio St. 82, 90 [44 N. E. Rep. 582].
    The limitation on assessments under the last general law is twenty-five per cent, of the value of the lots- as assessed for taxation at the time of the passage of the assessing ordinance. -Sections 2271 and 2272 Rev. Stat. are unconstitutional, they are special acts conferring corporate power, violating Sec. 1, Art. 13 of the Ohio constitution; and are laws of general nature which do not have uniform operation throughout the state, and therefore violate Sec. 26, Art. 2 of the same instrument. Section 2272 Rev. Stat. also violates the fifth and fourteenth amendments to the constitution of the United States. Cincinnati v. Connor, 55 Ohio St. 82, 91 [44 N. E. Rep. 582] ; State v. Jones, 66 Ohio St. 453 [64 N. E. Rep. 424].
    Tracirig the laws back to the first valid general law, we find it in the law passed as amended April 18, 1870, (67 O. L. 80) providing that “in cities and villages the limitation of assessnrents is placed at twenty-five per cent, of the value of the lot as assessed for taxation.” This provision is without the exceptions substantially as is found in Sec. 2270 Rev. Stat of our present statutes. Cincinnati v. Taft, 63 Ohio St. 141 [58 N. E„ Rep. 63],
    U. G. Denman, city solicitor, and Charles K. Friedman, assistant city solicitor, for defendants.
   HULL, J.

This action was brought by Luella Price and twenty others to enjoin the city of Toledo and its officials from levying and collecting a certain assessment made for a pavement laid on Junction avenue in the' city of Toledo. The assessment was made on the rule of benefits, not by the foot front. It is claimed that there were some irregularities in the proceedings, but it is complained chiefly that the assessment was in excess of the benefits and that, therefore, its collection should be enjoined. It is claimed that the benefits were very much below the amount of the assessments. The street (Junction avenue) is in the westerly part of the city and runs through what is spoken of as the “Polish settlement,” most of the people living in that vicinity being Polanders and owning small lots, worth from $200 up to $300 or $400, and, in some cases, a little beyond that, without the buildings, and it is urged that this assessment is very oppressive. It is claimed that notices were not given to some of the plaintiffs, as required by Sec. 2304 Rev. Stat. [repealed 96 O. L. 99; see Sec. 1536-212 Rev. Stat.J, of the resolution passed by the city council declaring the necessity of this improvement. Mr. Taylor claims that there was no notice given to him. We find, however, that he was at the time living in a hotel which was his home, and the notice was given to the clerk of the hotel, pursuant to his directions, he having directed the clerk to bring such notices to his room, and, after a time, directed that the notices should be left at the office of the Detwiler company, or taken to that office. The officer whose duty it was to leave the notices testifies to leaving them with the hotel clerk and we are of the opinion that the notice was given in accordance with the statute. There were objections by some of the other plaintiffs that they were not served with notice, but their testimony is indefinite; some say they cannot remember whether they received notice or not, but in the case of each one Mr. Voight testifies positively that he either served him personally or left the notices at his place of residence or where he had been directed to leave them, and we find and hold that notices were served upon each one of these parties as required by law, and, therefore, that the city had jurisdiction to proceed. Under a recent decision, Joyce v. Barron, 67 Ohio St. 264 [65 N. E. Rep. 1001], it was held by the Supreme Court that failure to give this notice is fatal; that no assessment can be made without it; that it does not simply leave open the claim of the party for damages, but that the notice is a prerequisite to the city obtaining jurisdiction over the party and his property. We hold in this case, however, that notice was in fact given.

Another objection to this assessment, as to five of the lots, is, that they do not abut upon the street improved. They did at one time abut upon the street, the property being appropriated for the street by the city, but, some time afterwards, a portion (a narrow, wedge-shaped strip along the side of the street), was vacated so as to straighten the lines of •the street, this strip being eight or ten feet wide at one end and running down to a point at the other end; and lying in front of five of these lots; and it is urged that they cannot be assessed because they do not now abut upon this street. We hold, however, that this cannot be maintained. This strip of land was vacated by the city and no longer held for street purposes. It belonged at the time it was taken by the city to lots other than those in question in this case and lying in front of them; but, upon the vacation of this strip the title reverted, not to the original owners, but to the owners of the lots that did abut and bound the street before the vacation. It has been held in several cases that the title in such case reverts to the owners of the lots that did abut immediately upon the street before such strip was vacated. This question is discussed very fully in a well considered opinion by Judge Shearer in Stevens v. Shannon, 3 Circ. Dec. 386 (6 R. 142). The first paragraph of the syllabus is:

“The vacation of the streets and alleys of a duly established addition to a municipal corporation extinguishes the interest of the public therein; and the title to such streets and alleys vest's in the owners of the abutting lots.”

This case was approved by the Supreme Court in Kerr v. Commissioners, 51 Ohio St. 593 and in Stephens v. Taylor, 51 Ohio St. 593. Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264 [62 N. E. Rep. 341; 87 Am. St. Rep. 600], is also in point on this question. There is no question but that the title to this property is in these lotowners, and the effect of it is that this adds to their lots — they have that much more property— and brings them to the street; it is immaterial that this strip still goes under the numbers of the lots that it .formerly belonged to; the truth and fact is that it has become a part of the lots of these owners adjoining it, and in the improvement of the street these lots are to be regarded as bounding and abutting upon the street. They do in fact abut upon the street and have all the. advantages and benefits of it and there would be neither justice nor equity in holding that they cannot be assessed for the improvement of the street, and we hold that they may be.

We now come to the question whether this assessment was so excessive that the court can interfere in behalf .of these plaintiffs. It is claimed that it is largely in excess of the benefits. This assessment was made under Secs. 2271 and 2272 Rev. Stat., which are special acts applying only to the city of-Toledo, allowing an assessment of twenty-five per cent, upon the value of the property after the improvement, but subject to the general rule that the assessment shall not exceed the benefit. There is a provision in Sec. 2272 Rev. Stat., however, that if three-fourths of the owners of the property upon a street petition for an improvement the owner signing the petition may be assessed in any amount — to the full value of his property, or even twice its value, but probably the courts would hold that it could not be assessed for more than the value, of a man’s property, for that would perhaps be confiscation. But in this case it is claimed by the city that the assessment did not exceed twenty-five per cent, of the value of the property after the improvement was made and, further, that the assessment does not exceed the benefits.' That was a question of fact contested on the trial before us and witnesses were called.

There are several decisions in this-state on this question of assessments and the powers of a municipality in these matters and the power of the courts and the limitations upon municipal power in making assessments. The fundamental principle, as stated by many of the decisions, is that the right to assess rests upon the basis of benefits to the property assessed; that the right is given to a municipality by reason of' the fact that the property is specially benefited by the assessment; this is the “fundamental principle.” If it were not for that — if it were not thus benefited, it would be taking property without due process of law and making a man pay for an improvement by the municipality, which was of no special benefit to him, which would be the taking of property for public uses without compensation, and all these statutes and cases recognize this general principle.

As to just what the powers of the courts are in these matters, no definite rule has been laid down, perhaps, but the general question has been discussed in several cases. One is Walsh v. Barron, 61 Ohio St. 15 [55 N. E. Rep. 164; 76 Am. St. Rep. 374], where the Supreme Court say:

“The fundamental principle underlying an assessment made on property for the cost and expense of a local public improvement is, that the property is specially benefited by the improvement beyond the benefits common to the public,'and that a ratable assessment of the property to the extent of these benefits violates no constitutional right of the owner, and is just and proper. But it can in no case exceed the benefits without impairing the inviolability of private property.”

Birdseye v. Clyde, 61 Ohio St. 27 [57 N. E. Rep. 1130], is a case in which it is said, in the first paragraph of the syllabus:

“It is the general policy of our legislation to restrain the power of local assessment by fixing a limit on the amount that may be levied beyond which municipal corporations may not go-; and unless the contrary clearly appears, an intention to adhere to 'that policy in the enactment of particular statutes relating to local assessments, will be presumed, and a construction given to them, if possible, allowing the application of the general limitations.”

In Schroder v. Overman, 61 Ohio St. 1 [55 N. E. Rep. 158; 47 L. R. A. 156], the court say, in the syllabus:

“Where, in a suit brought to enjoin the collection of a street assessment as invalid, and the taking of property without due process of law, it appears that the ordinance levying the assessment provided that the cost and expense of the improvement should be assessed upon the abutting property by the foot front, and not otherwise, but it also appears that an issue was made by the pleadings on the question whether or not the land so assessed was in fact benefited by the improvement to an amount in excess of the cost so assessed, which issue is found by the trial court against the plaintiff, and it is neither shown nor claimed that the cost and expense was not apportioned fairly between the property of plaintiff affected .by the assessment, and that of others so affected, the collection of such assessment should not be enjoined simply because the proceedings of the council in enacting the ordinance and levying the assessment do not show affirmatively that the question of benefit to the land was taken into consideration in levying such assessment.”

All these cases recognize the principle that there is a limitation somewhere upon assessments — either an arbitrary limitation of a certain per cent, of the value, or that the assessment shall in no case exceed the benefits. In the statutes of the státe applying to municipalities generally, for many years the limitation has been twenty-five per cent, of the taxable value of the property — the value at which it is listed for taxation. Ih the first statute passed in this state on this subject (the original municipality act) the limitation was fifty per cent, of the value of the property after the improvement. That was found to be too high, and the statute was amended and the amount reduced to twenty-five per cent, of its taxable value. These two statutes applying to Toledo, as stated, limit the assessment to twenty-five per cent, of the value of the property after the improvement. These statutes are clearly unconstitutional, on the ground that they are special legislation and violate Sec. 26, Art. 2 oi the constitution of the state. Whether that can be taken advantage of by the plaintiffs in this case will be discussed further along.

We find that the proceedings in this case were regular. The notice was given to the property owners of the passage of a resolution declaring the necessity for this improvement; and after the assessment was made, plat and other proper papers were filed with the clerk, as provided by statute, and notice was published for three weeks, as the law requires, for any who wished to make complaint of- the assessment, and a committee of three freeholders was appointed, as the law requires, to sit as a board of equalization, all of which is provided for in Secs. 2278 and 227!) Rev. Stat.

Section 2279 Rev. Stat. provides:

“If any person objects to the assessment, he shall file his objections, in writing, with the clerk, within two weeks after the expiration of the notice; and thereupon the council shall appoint three disinterested freeholders of the corporation to act as an equalizing board.”

No one of these plaintiffs took advantage of these provisions of the law enabling him to make complaint of the assessment if he so desired. They complained for the first time in this action, in which they ask for an injunction. The plaintiffs in the case called one witness, who may be considered as an expert upon real estate values and the question of benefits, and he went over this property in his testimony, lot by lot. The defendant called two, who may be regarded as experts to some extent, having had considerable experience in matters of this kind. According to the testimony offered by the plaintiffs, the assessment on most, and perhaps all of the lots, exceeds the benefits to some extent. It goes beyond the benefit to this property according to the opinion of the expert called by the plaintiffs and according to the opinion of some of the lotowners. According to the testimony of the witnesses called by the city (two experts and one other, not so much of an expert) the benefits accruing to this property equal the assessment. These are the opinions of those witnesses. When we get into the matter of the benefits of an improvement, it is a matter of judgment or opinion; it is not a question of fact that can be positively determined. The jtidgment of one man differs from another.

We are of the opinion that we have no right as a court to interfere with an assessment and enjoin its collection on the ground that the benefits are hot equal to the assessment unless there is such a disparity ás to be so clearly wrong and unjust as to be tantamount to fraud on the part of the authorities. Where it is so clearly excessive that there can be no material difference of opinion upon the question, we think that the court may grant relief. But where there is a mere conflict of evidence, and where all the proceedings have been regular, where the notices have been'given, where the proper officers have acted upon the matter and all legal steps taken' and the party complains for the first time in a court of equity, in such a case, we are of the opinion that the court ought not to interfere on the ground that the benefits do not equal the assessment, unless this is clearly and unquestionably true. To hold that the court should do so would be to require a reexamination and review by the courts in almost every assessment in 'this city and in every city in the state. There is hardly an assessment made for a street improvement, for a sewer or for any other public improvement, where there are not some who are of the opinion that they are assessed too heavily; that the assessment is too high. But we do not sit as a court of appeal from the action of the council or. the board of equalization to hear the case anew and review it upon the evidence and then according to our opinion determine what would be a fair assessment. All these matters have been committed to the council and the duly authorized boards to determine, and they have as much authority within their jurisdiction as the courts themselves.

The general rule, we think, is laid down in Chamberlain v. Cleveland, 34 Ohio St. 551. The court say, in the ninth paragraph of the syllabus :

“Where” the city council determines that the amount of the assessment does not exceed the value of the benefits specially conferred, its judgment in the premises, in the absence of fraud, is final and conclusive, unless modified by the council before final confirmation, as provided in Sec. 588 [66 O. L,. 249; see Sec. 1536-210 Rev. Stat. et seq.]; but when the municipal authorities, in levying special assessments, do net undertake to determine the amount of the special bénefits conferred, either in respect to the amount assessed, or in the apportionment of the burden, the assessment may be enjoined; and in an action for that purpose parol evidence may be introduced to show that the authorities did not act on the proper basis.”

We are unable to find from the evidence that the action of the council in this assessment was fraudulent or tantamount to fraud, or that the assessment was so clearly unjust and excessive as to warrant the interference of the court. The weight of the evidence, if we determined it by the number of witnesses, is perhaps on the side of the city. The assessment, it is true, seems high. These Jots are not valuable (a forty-foot lot m that neighborhood beino- valued at about $400 before the improvement), on the average, and the owners of most of them, as is shown by the evidence, are- poor people, and to. put an assessment on such a lot (worth $400) of $180 or $200, seems high and burdensome to people in that condition, and they feel that these lots were of as much value before this, assessment as they are now. But it is clear from the evidence and from common knowledge that such an improvement as this does add to the value of the property. The evidence shows that this territory was very low and marshy and the street covered by water (portions of it) a large part of the year, and almost impassable at times, and the paving of the street has very much improved it and added very much to the value of these lots, and whereas before it was almost impossible to sell a lot, as some of the witnesses testify, they can now be sold for a fair price. We are unable to find that the assessment is excessive, or that it goes beyond the limit in this special- statute — twenty-five per cent, of the value after the improvement.

It is urged, however, that these two statutes applying only to the city of Toledo, are unconstitutional, and that as the assessment was made under them, it should be enjoined and the city sent back to a con-sututional statute passed many years ago by which the limit is fixed at twenty-five per cent, "on the taxable value of the property. These two statutes are clearly unconstitutional under the recent decisions of the Supreme Court. They are in violation of Sec. 26, Art. 2 of the constitution and would not sustain an assessment made at this time. An assessment made under these statutes now, would be held by the courts to be invalid. But at the time this assessment was made and these proceedings were had, these statutes or similar statutes had not been declared unconstitutional by the Supreme Court, but for more than forty vears the Supreme Court had held such statutes valid and constitutional, m decision after decision reported in the volumes of the Supreme Court Keports, and when these assessments were made by the city and this improvement determined upon, the city stood upon the law as it then was round in the statutes and in the decisions of the Supreme Court, and the city had a right to do so. The decisions of the Supreme Court which Had been made up to that time were a part of the law of the land just <ts much as the statutes themselves, and when the Supreme Court declared a statute constitutional, that made it so for all purposes of property, contracts and vested rights, and it remained constitutional and valid until the Supreme Court held that such statutes were unconstitutional. The rule upon this question is stated by the Supreme Court of this state in Lewis v. Symmes, 61 Ohio St. 471 [56 N. E. Rep. 194; 76 Am. St. Rep. 428]. I read from page 486, a quotation from an opinion delivered by Chief Justice Waite in Douglass v. Pike Co. 101 U. S. 677:

“ ‘The true rule is to give a change of judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights that would be given to a legislative amendment; that is to say, making it prospective but not retroactive. After a statute has been settled' by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on contracts as an amendment of the law by means of a legislative enactment.’ ”

Our Supreme Court approve of-this and say, through Judge Shauck, delivering the opinion:

“This compendious statement of the rule and its reason meets the requirements of all the cases cited. Its purpose is to secure the full operation of the constitutional prohibition of laws impairing the obligation of contracts.”

This question has been discussed in a very recent decision of the Supreme Court, Shoemaker v. Cincinnati, 68 Ohio St. 603. The court say, in the first paragraph of the syllabus:

“An owner of land which has been assessed for the improvement of a street is not entitled to an injunction restraining the collection of such assessment where a statute in all material respects the same as the one under which the improvement was made and the assessment levied, and the bonds of the municipality to pay the cost issued, had theretofore been adjudged'valid by the highest court of the state, simply because similar legislation was held in the same court long afterwards to be in violation of the constitution.”

Judge Spear, in delivering the opinion, says, page 611:

“So that the inquiry comes finally to this: Is the owner of property which has been assessed for the improvement of a street entitled to an injunction restraining the collection of such assessment where a statute in all material respects the same as the statute under which the improvement was made and the assessment levied, and the bonds of the municipality to pay the costs issued, had been theretofore adjudged valid by the highest court of the state, simply because similar legislation was held by the same court long afterwards to be in violation of the constitution? We answer the question unhesitatingly in the negative.
“It is a principle of universal application that a cause of action once finally determined between parties by a competent tribunal cannot afterward be litigated between the parties or their privies by a new proceeding. It is the principle of res judicata. It rests not only on the private rights of the parties, but it is a principle of public policy having been characterized as a ‘fundamental concept of the organization of civil society.’ * * * It is' equally well settled as a general proposition, admitting, however, of exceptions, that courts will adhere to and follow decisions of the highest court of the jurisdiction where the same points come again in litigation; and the rule is of universal application where the law has become1 settled as a rule of property, by reason of such earlier decisions, and rights have become vested on the faith of them. This is the doctrine of stare decisis. The broad principle lying at the base of both of these rules is embraced in the translation of the term res judicata, viz: ‘That the matter has been decided.’ ”

We hold that while these statutes are today unconstitutional under the recent decisions of the Supreme Court, that at the time these proceedings were had and this assessment was made, such statutes had been for many years held to be constitutional and in this case they are to be considered as valid and constitutional enactments. As Judge Spear says farther along in the opinion, it would be unjust to throw a large part of this assessment upon the city because such statutes at this late day have been held unconstitutional by the Supreme Court. The making of an improvement of this kind is in some respects in the nature of a contract between the city and the lotowners. The property owners have their obligations to perform in reference to the contract and their rights, and the city has its rights and duties. The transaction is mutual. The parties entered into it and contracted in the light of the law as it then was, and their rights and duties are based upon the statutes and decisions as they then existed, and they cannot have relief now on the ground that these statutes have, since this assessment was made, been declared unconstitutional by the Supreme Court. Under the new municipal code the limitation for such assessments is fixed absolutely at thirty-three and one-third per cent, of the taxable value of the property, beyond which an assessment cannot go, and .it is certain that assessment statutes should always have some limitation in them so that when property owners ask to have an improvement of this kind made they will know what the limit is.

We are of the opinion that the prayer of the petition for an injunction should be denied, for the reasons stated, and the petition dismissed, and this will be the decree


text:
    MASTER AND SERVANT — NEGLIGENCE—DAMAGE'S.
    [Huron (6th) Circuit Court,
    November 13, 1903.]
    Parker, Hull and Haynes, JJ.
    New York, Chicago & St. Louis Ry. Co. v. Robert Roe, Admr.
    1. Duty to Furnish Safe Place to Work.
    Under the rule that an employer is bound to use ordinary care' to give his employes a reasonably safe place to work and see that no injury is done them while working in a situation where they are unable to protect themselves, a railroad company is bound to use ordinary care to see that no cars are moved down upon a helper without notice, who, while cleaning up the yard, is working in an ash pit where he is so surrounded by cars and other obstructions that he is unable to see the track ahead.
    2. Engineer and Yard Helper, not Fellow Servants.
    A helper in a railroad yard while cleaning an ash pit is not a fellow servant of an engineer having charge of a locomotive with a fireman under him within the meaning of Sec. 3365-22 Rev. Stat., and where an engineer drew his engine out upon the same track where the helper was working at the head of a sharp incline for the purpose of oiling it and allowed it to stand with brakes unset; and because of the brakes being unset, the engine moved down the track and pushed some cars against the helper, who is killed, the railroad company is responsible for the negligence of the engine.
    3. Measure of Damages Based on 'Reasonable Expectancy, not Certainty.
    In an action under Sec. 6135 Rev. Stat. for the recovery of damages for wrongfully causing the death of another, the measure of damages is the reasonable expectancy of what the family or next of kin might have received from the decedent and not the amount it is reasonably certain they would have received.
    4. Erroneous Charge not Prejudicial, Not Reviewable, When.
    Where a charge as a whole is full and fair a reviewing court will not reverse the case because of unnecessary statements of the court which do not prejudice the plaintiff in error. Thus, where, in an action for wrongfully causing the death of a helper in a yard, the court charges the jury regarding the skill, knowledge and qualifications of the men, which charge was uncalled for either by the evidence or pleadings, the reviewing court will not reverse if it does not prejudice the party seeking to take .advantage of it.
    5.. Loss From Inheriting may be Considered by Jury.
    The loss to the children and the widow on account of being deprived of the possibility of inheriting property from the deceased which lie might have accumulated during his life is one of the items that may be considered by the jury in arriving at the amount of a verdict in an action for death by wrongful act under Sec. 6135 Rev. Stat.
    ERROR to the common pleas court of Huron county.
    C. P. & L. W. Wickham, and John H. Clarke, for plaintiff in error:
    The principles of law which we think applicable to a discussion of the evidence in this case, which call for its reversal, are the following: Cleveland City Ry. Co. v. Osborn, 66 Ohio St. 45 [63 N. E. Rep. 604] ; Cleveland T. & V. Ky. Co. v. Marsh, 63 Ohio St. 236 [58 N. E. Eep. 821] ; American Express Co. v. Smith, 33 Ohio St. 511; Erie Ry. Co. v. McCormick, 24 O. C. C. 86; Railway Co. v. Kistler, 66 Ohio St. 326, 338 [64 N. E. Rep. 130] ; Pennsylvania Coal Co. v. Files, 65 Ohio St. 403 [62 N. E. Rep. 1047] ; 8 Am. & Eng. Enc. Law (2 ed.) 556; Watson, Damages for Personal Injuries Sees. 286, 379; Seaboard Mfg. Co. v. Woodson, 98 Ala. 378, 383 [11 So.- Rep. 733] ; Louisville S. Ry. Co. v. Minogue, 90 Ky. 369 [14 S. AY. Rep. 357; 29 Am. St. Rep. 378].
    If the instruction requested was a proper one, it was error to refuse to give it before argument as requested. Monroeville (ALl.) v. Root, 54 Ohio St. 523 [44 N. E. Rep. 237],
    AVhere an instruction is good law and applicable to the case, Lie parry requesting is entitled to have it given to the jury before argument, and a refusal is not cured by giving such instruction in the general charge. Monroeville (ALl.) v. Root, 54 Ohio St. 523, 526 [44 N. E. Rep. 237],
    Jesse Vickery, for defendant in error.
   HULL, J.

This action was brought by Robert Roe, administrator of John Roe, deceased, against The New York, Chicago & St. Louis Railroad Company, plaintiff in error, to recover damages for the death of John Roe, which, it is claimed, was caused by the negligence of the railroad company, the -defendant below. The trial resulted in a verdict of $2,200 in favor of the plaintiff, and judgment was entered upon this verdict, and proceedings in error are prosecuted in this court by the railroad company to reverse that judgment.

It is claimed by the plaintiff in error that the verdict is against the weight of the evidence and that there is not sufficient evidence to show any negligence on the part of the railroad company; and further, it is claimed that the evidence as disclosed by the record shows the deceased to have been guilty of contributory negligence, and various rulings of the court during the trial of the case are complained of by plaintiff in error as erroneous.

The facts upon which the case was finally submitted to the jury are, in substance, as follows:

The deceased, at the time of the accident, in October, 1900, was employed by the railroad company at Bellevue, Ohio, engaged in work by which he was known as “a helper” in and about the yards at Bellevue, among other tilings aiding in keeping them in order and in keeping- them clean. In the yards there was what was known as a cinder pit track, which was perhaps altogether 280 feet long, running from the main or “ going-out-track, ” as it was called, off diagonally on a down grade until it finally ran into what is known as the pit, the bottom of which was practically level for a distance long enough to accommodate two cars. At the end of this track the pit was about three feet and a half deep and at the side of this pit was what was known as the ash pit. Locomotives were run over the ash pit and above it on tracks and while coal was being put in from the coal house, the cinders and ashes were raked out into the ash pit, and from time to time, as needed, open or gondola cars were run into the cinder pit, upon the track, and the ashes from the ash pit, immediately on the other side of the wall, were shoveled into those cars, which were pulled out and carried the ashes away.

On the day that the decedent was killed, he got into the cinder pit, where the cinder pit track was between the end of a car and a stone wall, or what was equivalent to a stone wall at the end of this pit where the ears stood. There were two ears in the pit at the time, for the purpose of being loaded with ashes and cinders. One car stood a few feet from the stone wall, the pit, as stated, being about three feet and a half deep. Roe got into this place apparently for the purpose of shoveling some coal or cinders and ashes, that had fallen into the cinder pit into the car that stood there. Another man on the other side of the wall was at the same time shoveling ashes and cinders into the ear.

Roe, and perhaps others on this morning, were engaged in cleaning up the yards generally, and, in doing that, and as a part of' that work, Roe had gotten down into this pit to clean it up and was doing this with a long handled shovel which he had at the time. While Roe was in this pit, about fifteen minutes after seven, that morning (the accident occurring about ten o’clock), a locomotive was run out of the round house for the purpose of attaching it to a passenger train which would be due a short time thereafter. Thomas Peters got upon the locomotive as its engineer, having under him a fireman. Peters took charge of the locomotive, intending to go out on the train as soon as it came in. The train, however,' was late and did not arrive for about two hours and a half.

After Peters took charge of the locomotive, he remained on it with his fireman in the yards on this cinder pit track, the tender being' about forty feet from the car in the pit nearest to the locomotive, and after he had been there about two hours, or about ten o’clock, Peters, the engineer, concluded to oil the locomotive. He did so and ran his locomotive back seven or eight feet toward the pit and there stopped without setting his brakes, letting the locomotive stand on this track without the brakes being set, and this was the negligence complained of by the plaintiff below, and if the engineer was negligent, it is claimed the railroad company is liable under the “fellow servant” act for permitting the locomotive to stand upon this track which was laid at a grade down into the pit without the brakes being set; that, it is claimed, caused the injury complained of.

It appears by the record that shortly after Peters had run the locomotive back a few feet toward the cars, the brakes not being set, the locomotive started down this track, which was at quite a steep grade at this point, toward these two cars in the cinder pit, Roe still being at work at the farthest end of the farthest car, between that car and the stone wall, as before stated. The locomotive struck the ear nearest it and pushed that back against the other so that Roe was caught between the rear end of the furthermost car and the timber that lay there. His legs were first caught and he cried for help, crying out “go ahead.” The cry was heard by various men in the vicinity, and the engineer got off his locomotive and went back to see what had happened and undertook to pull the cars out of the pit up this grade, but was unable to start the two cars or rather the record shows that he did not go back until he had made this attempt, and being unable to pull the cars out on a “straight pull,” he went back and seeing Mr. Roe’s situation, evidently thought it would be safe to back the locomotive slightly so as to “take up the slack,” as it is called, between the locomotive and the car, and between the 'two cars. He thereupon went back to his locomotive, backed it up perhaps not more than six inches, but it was backed so much that it did in fact push the cars further back and Roe was crushed between the end of the ear and the wall and was killed instantly, or practically so. After backing up this short distance, the engineer started the locomotive ahead and was then able to pull the cars out and did so.

It does not appear that Peters, the engineer, knew that Roe was in the pit. Roe had taken no precaution himself to give any warning that he was there, or to have any notice given to the engineer. There is no positive evidence that Roe was ever in this pit before or that anybody else was ever in it, for the purpose of cleaning it out, as he was doing on this occasion. The evidence tends to show that after Peters discovered that the locomotive was moving down the grade, he apparently did all he could to stop the locomotive, but was unable to do so. His attention was first called to the fact that it was running down grade by his fireman, who shouted to him as a train was passing by that his locomotive was moving. Until then the engineer did not realize that it was moving.

It was claimed by the plaintiff below, the defendant in error, that it was negligence on the part of the railroad company, through its-engineer, to permit this locomotive, without the brakes being set, to' stand upon the track, which was laid at a steep grade at this point, with these two cars upon the track in the pit, and it appearing that Roe’s injuries were due to the moving of the locomotive, that the railroad company was liable. . •'

It is claimed on the part of the railroad company that, under this state of facts, no negligence is shown against the railroad company — ' no want of ordinary care, but that the death of Roe was an accident for which the company is not liable; that all ordinary care was exercised by the railroad company.

It is urged that the company was under no duty at the time to protect Roe against such an accident as this. It is said that there is no evidence in the record that at any time prior to this, Roe, or any one else had got into this pit under these circumstances, with cars standing there, and that the railroad company had no reason to suppose or to anticipate, as an ordinary, prudent person, that any man would be in this pit subject to such a danger as this; and further, that it was negligence on the part of Roe, contributing directly to his injury, to be in the pit under these circumstances; that if he went in there, he took his own chances and assumed the risk.

It is well established by the authorities that no one is liable for a failure to protect a person to whom he does not owe the performance of any duty.' It is also well established that an employer is bound to exercise ordinary care to give his employee a reasonably safe place to work and to furnish him reasonably safe appliances with which to do his work, and when such employe is. engaged iñ the performance of his duties, if so situated that he cannot protect himself, it is the duty of the employer to exercise ordinary care to see that no injury is done to him.

■ In the leading case of Lake Shore & M. S. Ry. Co. v. Lavalley, 36 Ohio St. 221, where a man was engaged at work under a car and while so engaged another car and locomotive ran against the car and the man was injured, it was held by the Supreme Court that the man so engaged was entitled to protection.

It is said that the railroad company had no knowledge, and that the engineer had no knowledge at the time that Roe was in this pit — no actual knowledge, and that is undoubtedly true.

There is no claim made, however, that Roe was not properly engaged in the performance of his duties upon the day he was killed. It was part of his work to clean or to help in the work of cleaning up this yard. In the yard, or a part of it, was this cinder pit which was used for the purposes stated, and being used in that way, ashes and cinders would naturally accumulate there, falling off the cars and between the cars and the ash pit. On the other side of the wall, were the coal docks, where the locomotives were coaled, and in doing that work, coal would naturally and unavoidably fall into this pit in some amount, and to clean the yards, to put them in good condition and in good order, it was as necessary to clean out this cinder pit, where the track was as any other part of the yard; and under general instructions,- and orders, (there is no evidence that Roe had any special orders on that day) he had gotten down into this pit with a shovel to do this work. It seems to us that it cannot be said that Roe was guilty of any contributory negligence in doing this, or that -he was doing anything at this time that was out of the line of his duty, or anything improper. We are of the opinion that he had the right to presume that while he was engaged in the performance of this work, which it was necessary and proper for him to do, that he would be protected against such an injury as this. In a yard of this kind, with men working about it everywhere, here and there, at the ends of cars and on the tops of cars and under cars, on tracks level with the surface and on tracks in pits and in various ways, it was the duty of the railroad company, through its officers and employes, not to move ears as these ears were moved without giving some warning or notice of the fact that cars were to be so moved.

After it was discovered that this locomotive was moving, no effort was made to give .any notice or warning to any man or men who might be in the pit; no bell was sounded and no whistle was blown, no shouting or calling out, and it seems to us that it might have been presumed or supposed at least, by the engineer that men might be in this pit at work at that .time. There was a man working in the ash pit opposite this pit, in plain sight of the engineer, who had been on his • engine for two hours and a half, and he knew these cars were run into the pit for the purpose of being loaded with ashes, ,and we cannot say, as a matter of law, that he would be warranted iñ presuming that there was no one in this pit that could be injured by cars being run down into it.

Whether the engineer himself was guilty of negligence at this time in letting the engine stand without the brakes being set was a question that was submitted to the jury, and we think was a proper question for the jury to pass upon, and that the jury were warranted in finding that the engineer was guilty of negligence in so doing. The locomotive was standing only about forty feet from those ears — a heavy passenger locomotive standing .-upon the track laid at quite a steep grade at this point, and to oil the locomotive and rnn it back six or seven feet in the direction of these cars, and then let it stand without setting the brakes, in view of all the circumstances here, it seems to us the jury were warranted in finding to be negligence we think that it should have occurred to the engineer that a locomotive left in that way was liable to start any moment down this track, as it did do, and dp the damage that it did on this occasion, or similar damage to property or to life. Under the rules of negligence, it seems to us that the conduct of the engineer was not ordinary care. These cars were in plain sight and very near; men were working all about the yards and a man was liable to be in this pit beyond these cars as well as at any other place in the yards, and to let this locomotive stand without the brakes being set so that at any instant it might start, was not the exercise of ordinary care.

A recent decision of the Supreme Court is cited by counsel for plaintiff: in error as in point in this ease — the case of Erie Ry. Co. v. McCormick, 69 Ohio St. 45 [68 N. E. Rep. 571], The first paragraph of the syllabus reads:

“Omission of duty is not the foundation of an action unless it results in injury to one for whose protection the duty is imposed. ’ ’

We think in this case, there was a duty imposed upon the company to protect Roe while he was in the performance of this work.

In this case decided by the Supreme Court a trackman who had been in the employ of the company for many years was- walking across a bridge where there was no place to walk except on the track and a train approached him from behind. The engineer did not see him on account of a storm. The track being slippery, he was unable to get to the end of the bridge before the train overtook him and he was killed. It was claimed that the railroad company should have made some provision for a man to walk across the bridge, or should have furnished some place for him to have stepped aside; but the Supreme Court held the company owed no such duty to him, and further found that he had been in its employ for many years as trackman and had full knowledge of the condition of the bridge and that there could be no recovery for his death.

It does not seem to us 'that this case is applicable to the facts of the case at bar. Roe was engaged at the time in the performance of' his duty, and to perform his duty, he was required to go to a place where he could not see the engine, and while in the performance of his duty in such a place as that, doing his work there, the company owed to him a duty not to run cars or a locomotive down into the pit and crush him- We hold that the verdict was sustained by the evidence. If the negligence of the company were a doubtful question, still it would be a proper question to submit to the jury. If it were a question upon which the minds of reasonable men might differ, it would be a question that a jury' should properly pass upon, and under the evidence in this case, their finding'will not be disturbed by the court. In Lake Shore & M. S. Ry. Co. v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403], the Supreme Court say in the last paragraph of the syllabus :

“It is the duty of a railway company to afford reasonable protection Lo ils employes against dangers incident to their work. Railway Co. v. Lavalley, 36 Ohio St. 221, approved and followed. ' And if, under the circumstances of this case, a rule providing for warning was necessary, and by the exercise of reasonable care on the part of the company, that necessity could have been foreseen, it was the duty of the company to prescribe such rule. Whether it ought to have so provided or not, was a question for the jury.”

The court say further:

“The evidence as to contributory negligence on the part of deceased made a ease which, at least, was doubtful, and about which different minds might differ as to the proper inference to be drawn. Such a question cannot properly be determined by the court as matter of law, and should be submitted to the jury.”

On page 143 of the opinion, delivered by Judge Spear, the court say:

“Negligence is always an inference from facts put in evidence, as contrasted with a fact which is the subject of direct proof. The proof disclosed facts calling for logical, as distinct from legal, deduction, Where that is the case the question is for the jury, and not for the > court. ’ ’

It is claimed, however, that the engineer and Boe did not sustain such relations toward each other as to entitle Boe to. bring an action against the railroad company for the negligence o'f the engineer; in other words, that Boe was not within See. 3365-22 Bev. Stat. or the “fellow servant” act, as it is called, for the reason, that Boe and the engineer were fellow-servants — that they were in the same branch of the service. We are of the opinion, however, and hold that they were not fellow servants, and that Boe came within the provisions of this section. The engineer had under him another employe (the fireman) subject to his control. Boe had no one under him or under his control. The engineer’s duties were entirely different from those of Boe; he was in the motor department of the company, engaged as engineer on the locomotive entirely separate and distinct from Boe’s work. Boe was engaged as one of a gang of men in cleaning the yards. We think they were engaged in different branches of the service, and that therefore the negligence of the engineer, under this statute, was the negligence of the company, and the company is liable therefor.

We have discussed this general question in a case in this county— the case of Hill v. Railway Co. 12 Circ. Dec. 241 (22 R. 291). The opinion was delivered by Judge Parker.

It is claimed that the court erred in its charge to the jury on the question of damages and in refusing to charge as requested by counsel for the railroad company. The court was asked in request number five to give an instruction to the jury upon the degree of proof with which the damages to the next of kin of the deceased must be sustained or must be established to warrant the jury in returning a verdict for the different elements that enter into damages of this kind. The court was asked to charge as follows:

• “If, under the instructions now and which shall hereafter be given you by the court, you find for the plaintiff, and so come to determining the amount of the damages which should be awarded him, the court says to you that amount must be strictly limited to the amount of pecuniary damage, that is, to the amount of money which it is reasonably certain from the testimony in this case that the widow of John Roe, deceased, and his children would have received from him had he not been killed. In arriving at this amount, you should consider his age at the time that he died; how long he would have been reasonably certain to have been able to have continued to earn money as a laborer, and from this time should be subtracted the time, if any, which he was reasonably certain to have lost from sickness or increasing age. From the amount of money which you find he would have thus been reasonably certain to have earned, had he not been killed, must be subtracted the amount of money which he would have required for his own clothing, board and other personal expenses, in sickness and in health, had he lived, and you should consider such other facts as appear in the evidence bearing upon the amount of money which the widow and children were reasonably certain .to have received from John Roe, had he not been killed. When you have thus arrived at the amount of money which the widow and children of John Roe would have been reasonably certain to have received from him, had he lived, in the form which the court shall direct, you should determine what the present worth of that amount is, for the reason that if anything is paid as the result of this trial, it will be paid in a single lump' sum, and as of the first day of the present term of court, whereas, if John Roe. had lived, the money which the widow and children would have re-ceivetl from Mm, would have- been earned and have come to them as time passed, through such a number of years as you shall find under the instructions given you, he would have been able to have worked and earned money at his occupation, which appears from the evidence in this case to have been that of a common laborer.”

This was asked to be given before argument, and was refused. The court, in its general charge to the jury after argument gave, an instruction which was similar to this in many respects, but differed in one particular, and if the defendant below ¡ivas entitled to this in-' struetion, it was entitled to have it given before argument, as requested.

The court, in its general charge to the jury, gave this instruction substantially as requested except that it changed the phrase “reasonably certain” to “reasonable expectation,” or “might reasonably expect.” The substance of it was that instead of saying to the jury they could only allow the plaintiff the damages which were reasonably certain would ensue to the next of kin on account of the death of Roe, they might allow such damages as might be reasonably expected - to follow from his death. It is urged that the instruction as requested was correct and that it was error to refuse it, and a decision of the Supreme Court is cited to sustain this contention — the case of Pennsylvania Co. v. Files, 65 Ohio St. 403 [62 N. E. Rep. 1047], where the Supreme Court say in the second paragraph of the syllabus:

“Where prospective damages from an injury are claimed, they should be limited by the court in its charge to such as may be reasonably certain to result from the injury.”

This was an action for personal injuries where death did not ensue, and the court held that for the prospective damages to plaintiff in the way of pain, or otherwise, tlie trial court should have said to the jury that plaintiff could only recover for that which it might be reasonably certain would result from tlie injury.

In our judgment, this is not the rule when applied to a death ease, under the statute. This action is brought under Sec. 6135 Rev. Stat., and were it not for this statute, no action .could be maintained for the death of a person. The action is unknown at common law; it is purely a statutory action, and the personal representative of the deceased is entitled to recover for the benefit of the next of kin, just as the .statute says he is entitled to recover, and in an amount which the statute warrants. Section 6135 Rev. Stat. provides:

“Every such action shall be for the exclusive benefit of the wife, or husband, and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall he so caused; and it-shall be brought in the name of the personal representative of tlie deceased person; and in every action the jury may give such damages, not exceeding in any case ten thousand dollars, as they- may think proportioned to the pecuniary injury resulting from such death, to the persons respectively for whose benefit such action shall be brought.”'

The damages that are allowed to be recovered in a case of this kind are, to be sure, more or less speculative. They must be. How long Roe might have lived if he had not met with this accident, we cannot tell, or how much he might have earned in the future, cannot be told with certainty; or how much he might have given to his wife or children, the jury could not tell absolutely, with certainty. They can only judge from what he has done in the past, from what he has earned in the past, from his health and his prospects of life, as shown by the evidence., But the statute provides that the jury (after taking all these things into consideration) shall allow such sum, not exceeding ten thousand dollars, as they may think proportioned to the pecuniary injury resulting from such death. The statute does not provide that they shall give such sum as they are reasonably certain will result, but such sum as they may think, under the evidence is proportionate to the pecuniary injury resulting from such death, and it seems to us that this is to be established by a preponderance of the evidence like any other question in the case; that it would be going beyond the statute to say that the jury could only return such damages as they were reasonably certain the next of kin or children, or parent, as the case might be, would sustain.

This question, we think, has been settled by the Supreme Court, in Grotenkemper v. Harris, 25 Ohio St. 510. The Supreme Court say:

“Under the act requiring ‘compensation for causing death by wrongful act, neglect, or default,’ etc., persons who had no legal claim for support upon the deceased may, as next of kin, have an action maintained for their benefit, to recover the compensation allowed by the statute.”
“In such cases, in determining the pecuniary injury resulting from the death, the reasonable expectation of what the next of kin might have received from the deceased, had he lived, is a proper subject for the consideration of the jury.”

On page 512 of the opinion the court say:

“ ‘The reasonable expectation, of such pecuniary benefit to the next of kin is what the jury are to ascertain and allow; and that expectation may consist of what a person may give his next of kin while living as well as what they may inherit from him at his death.’”

The court of common pleas, it seems to us, was clearly within the law as laid down by the Supreme Court, in refusing to give this request and in giving «the instruction that was given to the jury in the general charge. The request, however, is faulty on another ground, in that it does not include any element of loss which may have resulted to the children and wife of the deceased on account of their being deprived of inheriting after acquired property from the deceased, at his death. That is an element of damage that may be considered by the jury, as well as the loss of benefit from the deceased during his lifetime. A case can readily be conceived of if a man was engaged in large business enterprises and amassing large profits from year to year, where this expectation of inheritance would be a large element of probable damage to his wife and children.

"We hold, therefore, that there was no error in the court refusing this instruction.

Another portion of the charge is criticised and objected to as erroneous. The court said to the jury:

‘ ‘ In determining whether such ordinary care was exercised' by the defendant company, you should consider the nature of the work and the appliances therefor and what, if any, apprehension of danger the defendant had, or, in the exercise of ordinary care, should have had.”

Then follows this, which was objected to and claimed to be erroneous :

“You may consider also what knowledge, if any, the company possessed as to the experience, qualifications and fitness of the men whom it employed to do the work, including John Roe.”

It is probably true that the issues in this case did not call for any instruction to the jury upon this question of experience or of fitness of the men engaged in this work, including John Roe. But it is very common practice where a question of contributory negligence is involved to instruct the jury that they may consider all the facts and circumstances including the man’s experience in the work, etc.; but there was, in fact, no claim made here that John Roe was inexperienced, or that the engineer was inexperienced. It was perhaps an inadvertence on the part of the court, in giving an instruction often given. But we are of the opinion, taking the whole charge together, that there was nothing in this, to the prejudice of the plaintiff in error. It is not of sufficient consequence to warrant a reversal of the case. In our judgment the jury were not misled by this remark of the court, reading it in the light of the whole charge which, as a whole, was full and very fair. After a careful review of the record, we find no error to the prejudice of the plaintiff in error, and the judgment of the court of common pleas will therefore be affirmed.


author: GIFFEN, J.

text:
    EXEMPTIONS — STATUTES.
    [Hamilton (1st) Circuit Court,
    December 16, 1903.]
    Giffen, Jellce and Swing, JJ.
    Penny Brown v. William H. Parham.
    Widow not Entitled to Exemptions Under Sec. 5441 Rev. Stat., When.
    A widow not(the owner of a homestead under Sec. 5435 Rev. Stat. is not entitled to hold exempt from levy and sale $500 worth of real or personal property in lieu thereof under Sec. 5441 Rev. Stat., when she does not have in good faith the care, maintenance and custody of any minor child or children of a deceased relative.
    Errok to court of common pleas.
    E. H. Williams, for plaintiff in error.
    A. J. Cunningham and W. H. Parham, for defendant in error.
   GIFFEN, J.

The plaintiff in error being a widow, not the owner of a homestead, and not having in good faith the care, maintenance and custody of any minor child or children of a deceased relative, is not entitled to hold property exempt from levy and sale, unless under Sec. 5441 Rev. Stat., but in this section, as now punctuated, the words ‘‘having in good faith the care, maintenance and custody of any minor child or children of a deceased relative" qualify the word-“widow” as well as the words “unmarried female." and a widow not having the care of such child cannot hold property exempt under this section. When the case of Wentzel v. Hayes, 8 Circ. Dec. 756 (16 R. 110), was decided, Sec. 5441 Rev. Stat., as amended in’ 81 O. L. 148, contained no comma after the words “unmarried female” as it now does, and as found in Whittaker’s code it contained a comma after the word “widow.” This punctuation evidently influenced the court in that decision, as there is no sound reason why a widow should be entitled to an exemption that an unmarried female is not entitled to.

The judgment will be affirmed.


author: COOK, J.

text:
    TELEGRAPHS AND TELEPHONES — STREET RAILWAYS— TRIAL — ERROR.
    [Geauga (7th) Circuit Court,
    February Term, 1904.]
    Laubie, Cook and Burrows, JJ.
    Burton Telephone Co. v. Nellie Gordon.
    Travelers oic Highway — Necessity for Guard Wires.
    Where an injury is occasioned to a traveler upon the public highway by reason ofs coining in contact with a broken telephone wire which was heavily charged with electricity caused by its falling across the trolley wires- of an electric railway: Held,, that whether or not it was the duty of the telephone company to have safeguarded its wire, by guard wires or other appliances to prevent it from becoming so dangerously charged, is a mixed question of law and fact, under the circumstances of each particular case, to be submitted to the jury; and where the jury, under proper instructions irom the court, finds the company negligent for such failure, a judgment upon the verdict will not be be reversed except the verdict is clearly against the evidence.
    Error to court of common pleas of Geauga county.
    Win. G. King, for plaintiff in error:
    There is no statute requiring any special construction at the crossing of telephone and power wires.
    This crossing was constructed of good material, and it nowhere appears in the evidence that the crossing was faulty.
    Good construction and material being admitted, and that the wire fell from lightning stroke during a severe storm, and that the construction was that in ordinary use, no different construction disclosed by the evidence being anywhere in use, negligence on the part of the company was rebutted.
    .The duty was on the plaintiff to show what means should have-been used to prevent contact, not actually used by the defendant, and that such means would have been effective.
    The court erred in submitting to the jury the issue as to whether other means snould have been used to prevent contact ; it in effect said to them that they had a right to speculate outside and beyond the evidence as to vliat the defendant should have done, and decide from their own instincts and ideas that some device or means would ha ve prevented the wire from falling and coming in contact with the trolley, not disclosed by the evidence. We base this contention on the case in Mt. Adams & E. P. Ry. Co. v. Cavagna, 3 Circ. Dec. 608 (6 R. 606).
    N. H. Bostwick, for defendant in error:
    Reasonable care required that the telephone wire should have been insulated and protected by guard wire or other means in such manner chat should it fall it could not come in contact with the power wire and transmit the dangerous current to the street below.
    Failure to do so was negligence and was the proximate cause of her injury, and the jury so found it tó be. 21 Am. & Eng. Ene. Law (2 ed.) 470’ 487; Denver Consol. Elec. Co. v. Simpson, 21 Colo. 371 [41 Pac. Rep. 499; 31 L. R. A. 566] ; City Electric St. Ry. Co. v. Conery, 61.Ark. 381 [33 S. W. Rep. 426; 31 L. R. A. 570, 571; 54 Am. St. Rep. 262] ; Mitchell v. Light & Power Co. 45 S. C. 146 [22 S. E. Rep. 767; 31 L. R. A. 577] ; McKay v. Telephone & Telegraph Co. Ill Ala. 337 [19 So. Rep. 695; 31 L. R. A. 589, 590; 56 Am. St. Rep. 59] ; Snyder v. Electric Co. 43 W. Va. 661; [28- S. E. Rep. 733; 39 L. R. A. 499; 64 Am. St. Rep. 922] ; Thomas v. Gas Co. 21 Ky. Law 1690 [56 S. W. Rep. 153; 53 L. R. A. 147] ; Atlanta Consol. St. Ry. Co. v. Owings, 97 Ga. 663 [25 S. E. Rep. 377; 33 L. R. A. 798] ; Salisbury'v. Herchenroder, 106 Mass. 458, 460 [8 Am. Rep 354] ; Tahse-v. Omnibus Co. 13 Dec. 231, 234; Gannon v. Gas Light Co. 145 Mo. 502 [46 S. W. Rep. 968; 47 S. W. Rep. 907; 43 L. R. A. 508],
   COOK, J.

The action below was to recover damages by reason of personal injuries to defendant in error in coming in contact with a wire of the telephone company lying in the public highway which was heavily charged with electricity.

There was a trial and a verdict for plaintiff below against the company; a motion for a new trial on the part of the company, which was overruled, and judgment upon the verdict.

There is little dispute about the facts. The telephone company, having obtained legal authority so to do some years before the injury, constructed a one-wire line from the village of Middlefield to the village of Burton, in Geauga county, along the public highway. Some time after the line was constructed the Cleveland & Eastern Railway Company constructed an interurban electric railway between the same villages over a right of way procured by it not upon the public highway. At a point about a half mile from Burton the electric railway crossed the public highway, intersecting the telephone line about at right angles. Where the intersection took place the electric railway company put in a pole on the public highway oh which it strung four one-half inch copper wires; two feed wires on a crossbar on top of the pole and two trolley wires upon an arm extending out from the pole. The pole was about twenty-one feet high and the arm upon which the trolley wires were strung was about fourteen feet from the ground. By an arrangement between the telephone company and the railway company the telephone wire was also attached to this same pole about four feet above the two trolley wires by a glass insulator connected with a metal bracket and ran across the two trolley wires about four feet above the same to a pole of the telephone company, also on the public highway about fifteen feet distant. The telephone wire was not insulated, incased, or otherwise guarded. During a severe storm on the evening of June 1, 1901, this pole of the railway company was struck by lightning; it was shivered and the metal bracket with the glass insulator which supported the telephone wire was knocked from the pole and the telephone wire dropped down, and across the trolley wires of the railway company and became charged with a large voltage of electricity from the trolley wires.

The evidence does not show that the metal bracket was not properly fastened to the pole or that there was any defect in the wire as to' strength or size or that it was impaired or deteriorated to any extent. During the same storm a pole of the telephone company at the outskirts of Burton close to the residence of defendant in error, standing in the highway about one-half mile from the pole referred to, was also struck by lightning and the same wire by the intense heat was severed, and that end of the wire next to the first pole referred to fell upon the ground close to the pole; and defendant in error but a very short time after the storm, possibly twenty to thirty minutes, in going to the house of a neighbor upon the public highway at a place where she had a right to be, inadvertently became entangled in the wire and was severely burned and injured by the large amount of electricity in the wire communicated from the trolley wires of the railway company. The poles of the telephone and railway companies had previously been frequently struck by lightning, and the wires detached, prior to the injury complained of. The wires were placed by the railway company upon its poles as wires are usually placed when electric railway lines and telephone lines intersect each other.

At the conclusion of plaintiff’s evidence a motion was made to take the case from the jury and render a judgment for the telephone company. This motion was overruled as was also, as we' have said, the motion for a new trial; and plaintiff in error claims that the court erred in both these regards.

It must be conceded that the judgment of the court below can only be sustained upon the theory that it was the ’legal duty of the telephone company under the circumstances to have adopted some means that-would reasonably prevent its wire from becoming dangerously charged with electricity from the trolley wires of the railway company and that, its failure to do so was negligence.

The introduction of electricity as means of commerce is of recent date. That it majr be lawfully used is recognized by both the legislative and judicial department of the state. While it is highly useful, at the same time its use is attended by the greatest danger to person and property. Its potentialities for good are great, but its destructive', power is equally as great. It is of the most subtle nature, so subtle that its presence can only be determined by contact which, when it is not under control, usually results in death or great bodily injury.

The use of the public highway is primarily for the public convenience for the purposes of travel. The plaintiff below was upon the side of the highway and she had a right to rely that she was walking in a safe place. She 'had a perfect right to go on her way justified by the • law that her pathway was secure. If these companies had jointly placed something in the public highway with which she might inadvertently come in contact (which was filled with peril), the duty devolved upon them and each of them to show that the peril arose through no fault of. theirs.

In Western Union Tel. Co. v. State, 82 Md. 293 [33 Atl. Rep. 763, 765; 31 L. R. A. 572; 51 Am. St. Rep. 464], Justice Page of the court of appeals of Maryland in a case where Nelson was killed by reason of coming in contact with a broken telegraph wire heavilj' charged with electricity from the wires of an electrie railway company, well says:

"“The railway company pursued its business by means of cars propelled by electricity partially supplied through feed wires over and along the edge of the pavement. The telegraph .company had its poles also along the curb line, and its wires, extending along the street, were over and along the feed wire, which, though insulated, carried a deadly current. The privilege so granted thus to incumber the public highway with appliances so likely to become dangerous to the public safety, unless properly employed and controlled, imposed upon them, and each of them, the duty of so managing their affairs as not to injure persons lawfully on the streets. They owed it to Nelson that his lawful use of the street should be substantially as safe as it was before the telegraph and railway plants had so occupied it. It was their plain duty not only to properly erect their plants but to maintain them in such condition as not to endanger the public.”

Manifestly this is the true rule. Highways are not for the benefit of private corporations although of a public service character, but for the convenience of the public, and when they are appropriated for any other purpose than ordinary public travel, reasonable care requires that the care proportioned to the danger must be exercised by such corporations to protect the traveler from harm. This legal principle cannot be too often emphasized.

In Denver Consolidated Elec. Co. v. Simpson, 31 L. R. A. 566, 569 [21 Colo. 371; 41 Pac. Rep. 499, 501], it is held:

“An instruction that a company maintaining an electric wire carrying a dangerous current, over a public street or alley, is not an insurer of the safety of passersby, but in constructing its line and maintaining the same is bound to the utmost degree of care and diligence— that is,, to the highest degree of care, s>kill and diligence so as to make the same safe against accidents so far as such safety can by the use of such care and diligence, be secured — is not erroneous, although it is better to instruct the jury that the company is bound to exercise that reasonable care and caution which would be exercised by á reasonably cautious and prudent person under the same circumstances.'’

Campbell, J., in the opinion says:

“We think the court was unfortunate in attempting to draw any distinctions in the degrees of care or negligence. It would have been safer and the better practice to instruct the jury — which ought hereafter to be observed — even in cases like the one before us, that the defendant was bound to exercise that reasonable care and caution which would be exercised by a reasonably prudent and cautious person under the same or similar circumstances. In addition to this, the jury should have been instructed that the care increases as the danger does, and that, where the business in question is attended with great peril to the public, the care to be exercised by the person conducting the business is commensurate with the increased danger. But, in effect, this is what the .court did. Under the facts of the case, the law required of the defendant, conducting, as it did, a business so dangerous to the public, the highest degree of care which skill and foresight can attain, consistent with the practical conduct of its business under the known methods and the present state of the particular art.”

Would not the exercise of reasonable care upon the part of these two companies that jointly occupied this pole for their wires have required that they should have put up guard wires or adopted some other appliance to have prevented the two wires from coming in contact with each other" They necessarily knew that if the telephone wire fell across the trolley wire, injury and possibly death very probably would follow. Had not the break taken place the central station at Burton would have been burned out. If connection was made, a patron with his ear at a telephone on the line would have been injured, possibly killed.

The poles of both companies had many times been previously struck by lightning in electric storms, the wires detached, and just such an occurrence as this one should have been anticipated; yet nothing whatever was done to prevent the wires from coming in contact. In order, however, that a party may be liable in negligence, it is not necessary that he should have contemplated or even been able to anticipate the particular consequences which ensued or the precise injuries sustained by the plaintiff. It is sufficient if, by the' exercise of reasonable care, the defendant might have foreseen that some injury'would result from his act or omission, or that consequences of a generally injurious nature might have been expected. 21 Am. & Eng. Enc. Law (2 ed.) 487.

In the case of United Elec. Ry. Co. v. Shelton, 89 Tenn. 423 [14 S. W. Rep. 863; 24 Am. St. Rep. 614], the court held:

“The wire of a telephone company had become, impaired where it crossed an electric railway wire, and was in such a condition as to arrest the notice of a prudent man engaged in the business of either company. There was no guard wire over the electric wire. The fall of a burning building broke a telephone pole, which caused the telephone wire to break and fall across the railway wire; and, while in this condition, plaintiff’s horse came in contact with the telephone wire, and was killed: Held, that both companies were negligent and liable for the value of the horse. ’ ’

Turney, C. J., in the opinion says:

“Shelton’s horse was killed by coming in contact with a wire of the telegraph and telephone company, which had fallen across the trolley wire of the electric railway company. The wire of the telephone company had become much impaired. The falling of a wall of a burning building broke a pole of the telephone company, breaking the wires at several points. At the point of the accident, the telephone wires crossed the railway track above the trolley. A broken wire fell across the trolley wire, and, while resting on it, the horse came in contact with it, and was instantly killed. There was no guard wire over the trolley wire.' The case was tried by the circuit judge without the intervention of a jury. The condition of the telephone wire was such as to arrest the attention of a prudent man engaged in the business of either company. The circuit judge found, under the facts, that both companies were guilty of negligence, and responsible for the loss, and gave judgment accordingly. -The judgment is correct. While it was the primary duty of the telephone company to see that its wires were in a reasonably safe and sound condition, and protected against the contingency of falling, it was also a duty of the electric company to see that its trolley was in like manner protected from such contingency. "While it was the duty of the one company not to use unsound and unprotected wires, it was equally the duty of the other not to operate its road under such defective machinery. It might as well insist that it was not responsible for damages resulting from the fall of a hanging rock which it had constantly recognized as threatening to fall, or of a dead tree which it had frequently notice with decayed and giving roots, and knew would fall in the first wind or rain. The obligation to see that its road was in good repair, and its machinery in safe operating order, is not confined to the immediate and abstract presence of either, but extends to all surroundings that may depreciate the security,of either. Both companies knew of the unprotected trolley, and the consequences of a contact of the wires of the one with those of the other. Both knew of the unsOundness likely to produce a fall of the one upon those of the other. Both were bound to guard against such likelihood, and, having failed to do so, are liable. Affirmed.”

Block v. Street Ry. Co. 89 Wis. 371 [61 N. W. Rep. 1101, 1102; 27 L. R. A. 365; 46 Am. Rep. 849], was a case in which Block was injured in coming in contact with a telephone wire which had fallen upon the defendant’s trolley wire, and the negligence complained of was the failure of the street railway company to put guard wires over its trolley wires so as to prevent the telephone wire from coming in contact with the trolley wires. The judge, upon the trial of the case, instructed the jury that such failure constituted negligence as a matter of law and practically told the jury to return a verdict for plaintiff. Upon appeal to the Supreme Court, Newman, J., who rendered the opinion, says:

“In the present condition of the science and of the practical knowledge on this subject, it cannot be said, as a matter of law, what method of guarding the wires shall be required, nor whether any guards shall be required; for it is not known to the law that any method now known will prove effective. But it is a question for the jury, under all the facts in the ease, to determine whether the method actually used was negligent. The trial court treated this question as one of law. He instructed the jury, in effect, that guard wires placed over the trolley wires is the approved method of protecting the telephone wire, in such places, and refused to submit to the jury, in the special verdict, the following question proposed by defendant: ‘Did the defendant, in the construction and operation of the street railway • in question, exercise such care and prudence for the safety of persons using the highway as men of ordinary intelligence and prudence engaged in operating the railway in question would have exercised at the place in question!’ The instruction virtually took the question of the defendant’s negligence from the jury. The refusal to submit the question asked withdrew it altogether from the jury. The question of defendant’s negligence is always for the jury, unless the negligence is so clear upon the evidence that intelligent minds cannot fairly form different conclusions upon it. This question was a proper one to be submitted in a special verdict. It related to a material issue of fact, and one upon which the case, in a large measure, turned. Both the charge upon this point and the refusal to submit this question wei’.e error. This is in no way inconsistent with what was decided in State v. Street Ry. Co. 87 Wis. 72 [57 N. W. Rep. 970]. That case was on demurrer to the complaint. The action was mandamus to compel the railway company to put guard? wires above its trolley wires at crossings. An ordinance of the city required it. The complaint alleged the ordinance, and that guard wires are the proper and approved method of preventing danger from the falling of the telephone wires upon the trolley wires. These facts were admitted by the demurrer. The case in no way involved the decision of the question whether guard wires are the proper method, or whether it is negligence to omit the guard wires.”

Not only in the case of State v. Street Ry. Co. 87 Wis. 72, 75 [57 N. W. Rep. 970; 22 L. R. A. 759; 41 Am. St. Rep. 23], but in many other cases it has been held that an ordinance requiring the company to put up guard wires is a reasonable provision and that is the general holding upon that queslion. Western Union Tel. Co. v. State, supra, 31 L. R. A. 582, 583n. If such an ordinance of a municipal corporation would be a reasonable proyision, can it be said that, when a jury under all the circumstances of the case, finds that such provision should have been made by the companies to protect the traveler, its finding is wrong ? Furthermore it is for the jury to draw the inference under a given state of facts, when fair intelligent minds would differ as to whether or not it was negligence. Block w Street Ry. Co. supra.

To the same effect is the case of Cincinnati St. Ry. Co. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276],

We think the court was right in not taking the case from the jury and in also overruling the motion for a new trial.

It is hardly necessary for us to say that in such case both the railway company and the telephone company would be liable, and if jointlv liable they would be severally liable. McKay v. Telephone & Telegraph Co. 111 Ala. 337 [19 So. Rep. 695; 31 L. R. A. 589; 56 Am. St. Rep. 89] ; City Electric St. Ry. Co. v. Conery, 61 Ark. 381 [33 S. W. Rep. 426; 31 L. R. A. 570; 54 Am. St. Rep. 262],

Judgment affirmed.