text:
    INJURY TO EMPLOYE FROM EXPLOSION OF GAS.
    [Circuit Court, of Hamilton County.]
    The W. J. Gawne Company v. Ellen Fry, Administratrix, et al.
    Decided, January 13, 1906.

      Negligence and Concurrent Negligence — Master and Servant — Wrongful Death Caused from Explosion of Gas — Implied Duty of Foreman — Assumed Rislc — Fellow-Servant—Charge of Court.

    1. In an action on account of the wrongful death of an employe, caused by an explosion of gas in the tunnel where the men were at work, there should be submitted to the jury the question of negligence on the part of the company in permitting the gas to accumulate, where testimony has been introduced tending to prove that the means employed for the expulsion of the gas were insufficient and defective, and that the defendant company knew and the decedent did not know of these defects.
    2. Whether it was an implied duty of the foreman under the circumstances to attempt to repair a light connected with a wire charged with electricity, and was therefore acting within the scope of his employment when he produced a spark which caused the explosion, was also a question which should have been submitted to the jury.
    3. There being testimony tending to prove that the engineer, who was a fellow-servant of the decedent, failed to operate the air compressor on the day of the accident, it was error to refuse to charge the jury that an employer of men is not an insurer of the safety of such men, and if he furnishes reasonably safe machinery and competent men to operate the same, and an accident happens to an employe by reason of the failure of fellow-servants to operate such machinery, then the employer is not responsible for the ■ injury.
    4. It was also error to refuse to instruct the jury in a special or in the general charge that the plaintiff assumed the risk of such injuries from accident as are incident to the nature of the work in which he was engaged, and against which the defendant could not by the exercise of ordinary care have protected him.
    5. Failure to point out in other parts of the charge the particular respects in which the defendants were alleged to be negligent, renders erroneous, under 72 O. S., 58G, the instruction that “before the plaintiff can recover she must prove by a preponderance of the evidence that the city or the Gawne Company, or both, were negligent in at least some of the respects alleged in her petition, and that her husband was killed as a direct result of this negligence.”
    6. It was error in such a' case to state to the jury that the petition contained the allegation that the ways and means for putting air into the tunnel and getting the gas out were insufficient, and known to be so by the defendants, but unknown to the deceased, without adding the instruction that each and every fact contained in this averment was essential to constitute negligence.
    Giffen, J.; Jelice, P. J., and Swing, J., concur.
   The plaintiff below averred in her second amended petition that the defendants at the time of the accident complained of were constructing a conduit or tunnel to supply water to the western pumping station in Cincinnati, Ohio; that all of said defendants had full knowledge of the inherently dangerous character of the work by reason of the presence of an explosive gas, of which the plaintiff’s decedent had no knowledge. That all the ways and means adopted for the admission of air and expulsion of the -dangerous explosive gas were insufficient and defective and known to be so by the defendants, but wholly unknown and not- communicated to the plaintiff’s decedent. That on the fifth day of July, 1901, the decedent, who was in the employ of the defendants, was ordered to work in the end of said tunnel near Torrence road and Eástern avenue, under a foreman named McLaughlin. That while decedent was so employed, the foreman having charge of said work negligently and. carelessly undertook to repair a light on a wire charged with electricity, and in so doing caused some metallic substance to come in contact with the wire used for lighting said tunnel, generating a spark of fire, when; without warning or notice, the explosion occurred which caused the death of the decedent.

The W. J. Gawne Company, the only defendant against whom the jury returned a verdict, admitted in its answer that it was engaged in the work of constructing a tunnel under a contract with the commissioners of the water works. That on the day mentioned, James O.’Brien was employed by it, and that an explosion occurred resulting in his death; and denied each and every other allegation contained in the second amended petition; and as a second defense, alleged that his death was caused by reason of the negligence and carelessness either of said James O’Brien himself or of some other person under circumstances for which and for whose acts the defendant was in no way responsible.

The first alleged error to be considered is the overruling of the motion at the conclusion of plaintiff’s testimony, and also at the conclusion, of all the testimony to arrest the case from the jury and render judgment for the defendant.

Counsel for plaintiff in error claim that it was incumbent upon the plaintiff to establish the following three propositions as the essential allegations of the petition: First, that the accident was caused by the negligent accumulation of gas; second, that the Gawne Company knew of this state of facts, or could have known it by the exercise of ordinary care; third, that deceased did not know, or could not by the exercise of ordinary care have known of this state of facts.

Counsel has overstated the first proposition, because if gas was permitted to accumulate through negligence, and caused the acciden^, that of itself would give a cause of action; but as we understand the allegations of the petition, the actionable negligence in this particular consisted in the Gawne Company knowing of the existence of the explosive gas and the decedent not knowing it.

The negligence charged in the second amended petition may be classed as follows: First, the presence in the tunnel of an explosive gas with the knowledge of the Gawne Company, and without the knowledge of the decedent; second, the defective means employed for the expulsion of .the gas which were known by the Gawne Company to be defective, and unknown to be such by the decedent; third, the negligent act of the foreman in attempting to repair the electric light.

Although there is nothing in the testimony to show that the defendant Gawne Company or the decedent knew of the presence of the explosive gas' just prior to the accident, yet it does' appear that each of them knew that the existence of such gas might reasonably be anticipated during the progress of the work.

There is testimony tending to prove that the means employed for the expulsion of the gas were insufficient and defective; that the defendant company knew of such defects while the decedent did not. It was incumbent, therefore, upon the court to submit this issue of negligence to the jury.

Upon the other ground of negligence, the evidence is undisputed that McLaughlin was the foreman in charge of the work, having authority and control over the decedent. It .is disputed, however, that he was acting within the scope of his employment when he undertook to repair the electric light. There is testimony, however, tending to prove that the act done was within the scope of his employment, and it therefore became a question to be submitted to the jury under proper instructions from the court, and even though the jury found that McLaughlin was not acting within the scope of his employment, and that his act precipitated the explosion, the defendant company would nevertheless be liable under the second ground of negligence above stated, if the jury so found, for the reason that the two acts of negligence, that of the company and of the foreman, were concurrent in causing the accident.

Counsel further claim that the proof shows that the accident in question was not caused by any culpable neglect for which this defendant is answerable, inasmuch as the gas became explosive only when the marsh gas was mingled with air in the proportion of five to thirteen per cent, of marsh gas and ninety-five to eighty-seven per cent, of air, there must be a time during the process of expelling the gas when it would become explosive, and that, therefore, the defendant could not provide against the accident. It is sufficient to say in answer to this argument that the period when the gas is explosive would be reduced thereby to a minimum and the chances of an accident would be but slight.

It is further contended that the evidence is undisputed that the act of the foreman was not within the scope of his employment and unauthorized by the master, because the company had employed one Delaney, an electrician, to attend to the electric lights and make the necessary repairs, and assigned no such duty to the foreman. It does not appear in the testimony that the foreman was informed of the duties of the electrician. If, therefore, it may be fairly implied from the work assigned to the foreman, that it was his duty to repair the electric light in case of an emergency, then it would be immaterial what positive instructions or authority the company had given to the electrician. The foreman was placed in charge of the decedent, with three other workmen, and directed to remove the earth from the tunnel, and during the progress of the work, the foreman accidentally broke one of the glass bulbs, and while undertaking to replace it with a new one, used a metal rule to extract the glass, thereby causing the spark which resulted in the explosion. The foreman at the time was undertaking that which was necessary for the prosecution of the work assigned to him, and unless it was necessarily dangerous and known by him to be such, or unless he knew that the electrician alone was authorized to make such repairs, or unless he was positively ordered not to make such repairs himself, he was justified in assuming that such work was one of the implied duties imposed upon him. The court properly overruled the motion to arrest the case from the jury.

The next alleged error is the refusal of the court to give certain special instructions requested by the defendant, the W. J. Gawne Company. The record discloses that:

“After the argument the W. J. Gawne Company, by its attorney, requested the court to give each of the instructions hereinafter set forth and lettered from ‘A’ to ‘K’ respectively, as part of the general charge.”

If this request is to be construed literally as requiring the court to give each of the instructions unconditionally asm part of the general charge, the court correctly refused the same, for the reason that there is no rule of law requiring a court to adopt the language of counsel as a part of its general charge, but we apprehend that this point will not be insisted upon, not having been referred to in argument.

Special charge marked “ G, ” 'is as follows:

“The jury are instructed that an employer of men is not an insurer of the safety of such men, and that if said employer furnishes reasonably safe machinery and competent men to operate the same, and an accident happens to an employe by reason of the failure of fellow-servants to operate such machinery, then the employer is not responsible for such injury. ’ ’

There is testimony tending to prove that on the day of the accident, the engineer failed to operate the air compressor. If by reason of such failure the accident occurred, the company would not be liable for the reason that the engineer having no authority or control over the decedent, was his fellow-servant. The equivalent of this instruction was nowhere given in the general charge, and the refusal to give it as requested, was prejudicial error.

Special instruction “H,” is as follows:

“The jury was instructed that plaintiff assumed the risk of such injuries from accident as are incident to the nature and character of the work he was engaged in at the time in question and against which defendant, the W. J. Gawne Company, could not, by the exercise of ordinary care, have protected him. ’ ’

We are of the opinion that this instruction correctly states the law and unless it was substantially given in the general charge, its refusal by the court was erroneous.

The only part of the general charge which touches upon the question of the assumption of risk, is as follows:

“You must determine whether or not O’Brien knew that there was a dangerous state of affairs there when he went into the tunnel on July 5th. If he did, he assumed the risk of that state of affairs; but he did not assume the risk of his boss negligently causing an explosion, if you find this to be the case.”

This charge is limited to the state of affairs existing when he went into the tunnel, and can have no application to what might occur or exist after he went into the tunnel. It might also be construed to mean a state of affairs existing within the tunnel alone, and have no reference to the compressor and other appliances provided for the purpose of removing such dangerous state of affairs. We think this special charge should have been given.

The last clause of that part of the general charge above quoted is objectionable in stating that he did not assume the risk of his boss negligently causing the explosion, whether or not he was at the time acting within the scope of his employment.

In another part of the charge, however, the court submitted to the jury the question whether the act done was within the scope of his employment. We think that by considering the two clauses together, the jury would fairly infer the meaning to be that the decedent did not assume the risk of his boss negligently causing the explosion while acting within the scope of his employment.

The general charge contains this clause:

“Before the plaintiff can recover she must prove by a preponderance of the evidence that the city or the Gawne Company, or both, were negligent in at least some of the respects alleged in her petition, and that her husband was killed as the direct result of this negligence.”

This charge comes within the rule announced in the case of the B. & O. Railroad v. Lockwood, 72 O. S., 586, unless in other parts of the charge the court pointed out the particular respects in which the defendants were alleged in her petition to be negligent.

In the second paragraph of the general charge the court refers to the allegations of the petition setting forth the several acts of negligence, but fails to state what particular allegations constitute a separate and distinct act of negligence. The court charged them substantially that the petition alleges that the city and trustees knew or ought to have known that pockets of gas were found in the tunnel, which they knew or ought to have known was explosive when mixed with air. But this of itself did not constitute negligence unless the decedent did'not know of the existence of the gas, that it was explosive, and had not equal means with the master of knowing it.

The court further stated in substance that the petition contained the allegation that the ways and means for putting air into the tunnel and getting the gas out, were insufficient and known to be so by the defendants, but unknown to O’Brien, the deceased. The court failed to instruct the jury that each and every fact contained in this averment were essential to constitute negligence, and the jury may well have inferred that the failure to provide sufficient ways and means for expelling the gas in itself constituted negligence independent of the knowledge of the defendants or of the decedent.

Cohen & Mach, for plaintiff in .error.

Robertson & Buchwalter and Dempsey, Motion & Vordenberg, for defendants in error.

The only other act of negligence referred to by the court in the general charge is that of the foreman in undertaking to repair the electric light, so that the jury’s attention was really called to only two distinct grounds of negligence, whereas in the paragraph quoted from the general charge, the jury must have inferred that more than two grounds of negligence were charged in the petition. The charge of the court on the subject of negligence was therefore erroneous and prejudicial to the rights of the plaintiff in error.

The court admitted testimony to the effect that the defendant' after the accident caused a register to be placed upon the air compressor, for the purpose of showing the number of revolutions per minute. This was incompetent evidence, and could only serve to mislead the jury to believe that the absence of the register before the accident was a negligent omission on the part of the defendant.

The admission in evidence of the petition in the injunction . suit brought by the city against the board of trustees of the water works was incompetent as an admission, either of the city or of the defendant, the Gawne Company, but inasmuch as the court limited it to the case against the city only, it was not prejudicial to the defendant, the Gawne Company.

For the reasons above stated, the judgment is reversed, and cause remanded for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    ACTION AGAINST THE BACKER. OF A BUSINESS FOR PAYMENT OF THE DEBTS.
    [Circuit Court of Huron County.]
    William Schick v. Edward J. Ott et al.
    Decided, October Term, 1905.

      Actions — Pleading—Principal and Surety — Where there was an Agreement to Become Responsible for Debts Incurred in a Certain Business — Joinder of with am Action on a Note — Statute of Frauds— Amendment — Failure to Allege that Claims have Matured.

    1. Failure to set out the endorsements in an action on a note, or to state that there are no endorsements, is a defect to be reached by motion and not by demurrer,
    2. A petition which alleges that the plaintiff was engaged at , a specified salary to carry on a certain business for the defendants, who .were to become responsible for the liabilities incurred in the conduct thereof, sets forth a state of facts which would create the relation of principal and surety, upon which an action could be maintained after the debts have become due to compel the defendants to pay them.
    3. But a petition in a suit to compel a principal to pay the debts to save his surety is open to demurrer for failure to allege that such debts have become due.

      i. The joinder of a cause of action on a promissory note with one to compel the payment of debts by a principal to save his sureties improper and open to demurrer, .as is also the joinder as parties defendant to such an action of creditors of the principal who are strangers to the note and in no way connected therewith.
    Wildman, J.; Haynes, J., and Parker, J., concur.
    .Error to the Huron Common Pleas Court.
   This is a somewhat peculiar case and to give it any kind of elaborate consideration would perhaps require a reading of the 'entire petition and several demurrers thereto.

The case was disposed of in the court below upon the demurrers of several defendants to the petition of the plaintiff. The court sustained the demurrers and dismissed the plaintiff’s petition, and Schick, who was the plaintiff below, comes to this court by a proceeding in error asking for a reversal of the judgment of the court of common pleas.

' It is substantially claimed in the petition that Schick was engaged by the defendants, Edward J. Ott and Theresa Ott, to conduct a saloon in Norwalk, they to become responsible for such liabilities as he should incur in the purchase of stock and in the hiring of help; they were also to pay him the sum of twelve dollars a week, two dollars a day for the working days of the week.

The defendants demurred, in one form and another, but generally alleged misjoinder of the several causes of action in the petition, the most of them, perhaps all, claiming also that the petition failed to state facts constituting a cause of action, against the parties demurring. There are three alleged causes of action set out in the petition, and upon the theory that the creditors of William Schick, who had furnished him goods or loaned him money during the time that he was engaged in this business under his arrangement with the Otts, were interested in the adjudication between him and the Otts as to the liability of the latter to pay the indebtedness so incurred by him, they are all brought into the suit as party defendants; he sues not only Edward J. Ott and Theresa Ott, but he also sues a large number of persons who, it is said, furnished supplies to the saloon and became creditors therefor; also the bank which, at one time, loaned money to Schick.

It is not claimed in the petition that these various creditors were apprised of the arrangement between the Otts and Schick; that they had any knowledge whatever that the Otts were to become the backers of Schick, or were in any wise to become responsible for debts incurred by him. “

The judge below, as we understand from a typewritten transcript of the opinion delivered by him, concluded that no right of action would arise in favor of Schick as against the Otts until he had been compelled to pay some of these debts; and he also took the view apparently that there was a misjoinder of the causes of action as alleged in the demurrers.

In his opinion, and in the journal entry, it is not stated that the demurrers are sustained by reason of a misjoinder of the causes of action, or upon the other ground, that the petition fails to state facts; but the dismissal of the petition by the court would leave the impression that the court was sustaining the demurrers upon the general ground — perhaps upon both— but at least upon the general ground, that it failed to state facts.

The first cause of action in the petition is the one in which the debts of the various creditors who had furnished supplies to the saloon, are described. The second cause of action is the one in which the debt to the bank is mentioned. The third cause of action is of entirely dissimilar and distinct character. It is an ordinary suit upon a promissory note made by Edward J. Ott and Theresa Ott to Schick.

For convenience, I will consider the third cause of action first: It has been argued to the court by counsel for the Otts that the claim upon this cause of action is defective, in that it fails to set out the indorsements upon the note, or to state that there are no endorsements. The third cause of action is drawn substantially in the short form provided by the code — a form which provides that it shall be sufficient to set out copies thereof with all credits and endorsements thereon. This petition fails' to state that the note bears no indorsements and it fails to set out any indorsement.

We have examined the question thus arising with some care and have concluded, upon the basis of a number of authorities in Ohio, that a demurrer will not lie for this defect. Almost the precise question is raised in the case of Kline v. Wehrmann, 8 N. P., 336. Other eases more or less in point are the cases of Ingersoll v. Craw, 1 Clev. L. Rep., 1, a case decided by the Cuyahoga Court of Common Pleas; also the case of Ives v. Strideland, 8 Dec., 309, and of which cases I will make mention for brevity without reading. There is a case which may have some bearing incidentally in one of the Supreme^ Court decisions —the case of Schrock v. Cleveland, 29 Ohio St., 499. The case, however, is one in which the short form was not exactly adopted; there was a little more than that but there is some comment by the judge that may throw some light upon the question presented here and it is cited for such use as may be made of it by counsel, if there is any wish to go higher with the question. There is also a case decided by the Cuyahoga Common Pleas Court, Beck v. Ball, 1 Clev. L. Rep., 147, which may be cited for such bearing as it may have in the opposite direction, of sustaining the claim of defendants in error.

The drift of the authorities seems to be, that while this is a defect under the short form, it is a defect that is to be reached by motion to make the petition definite rather than by demurrer; and indeed in one or more of the eases, it seems to be indicated that it is not necessarily a requirement of the statute that the petition shall state that there are no indorsements. The statute says that it shall be sufficient to set out a copy of the petition with all credits and indorsements thereon. It does not, however, appear by this pleading that it had any indorsement to be set out. There is nothing in the statute which requires, in terms, that if there are no indorsements, that that fact shall be stated; so that it may be said, that the court will not assume that the note had indorsements upon it. Our judgment is, that this third cause of action does state facts sufficient to constitute a cause of action in favor of Schick against the Otts. We are very clear’, however, that it has no possible connection with the claims stated in the first and second causes of action, and we have no doubt then, that the qourt was right in the view that there was a, misjoinder of causes of action.

I believe that not one of these demurrers, demurs to the causes of action separately, but the demurrers are all addressed to the petition ás a whole, and in each demurrer where the question is raised as to the sufficiency of the statement of facts, the claim is made in the demurrers that the petition fails to state facts sufficient to constitute a cause of action; not that any one alleged cause of action fails to state the requisite facts, but that the petition, as a whole, fails to state them.

Of course, no one of the defendants other than the Otts would be bound in any way by claims upon the note against the Otts. It might be .entirely proper for all the other defendants to demur upon the ground that the petition failed as a whole to constitute a cause of action against them, that is, against said other defendants.

There is another matter to which counsel did not especially invite the attention of the court, but which became apparent to us upon an examination of the petition, and that is, that in the assertion of-the claims of the plaintiff in the so-called first and second causes of action in which Schick is insisting that the Otts should pay the debts therein described, there is an entire lack of any averment that the debts had accrued, that is, that they had matured, had become due. It is plainly enough asserted that the debts were owed, but it is not asserted that the time had arrived for payment, and without looking at the statute, and without looking at any adjudication, it should be plainly apparent to any mind that a person ought not to be compelled to pay a debt until the time has come for its payment. It was said in argument, however, that whatever may appear upon the face of the petition, there is no question but that the debts are due; it was so stated by the attorney for the plaintiff in error, ‘and that it would be easy to show that the claims had matured so far as that question was concerned.

Another matter was suggested with regard to the first cause of action, by counsel for defendants in error, and that is, that the contract made, as alleged in that claimed cause of action, was a verbal one and that, under the statute of frauds, it would be invalid. We have not found it necessary for the time being, to discuss or-consider that particular phase of the ease.. We have preferred to leave the question for future consideration, either of the court below, or this court, in ease it should ever come to this court, and in view of what manifestly appears here, that counsel for Schick was led, by the position taken by the court below in dismissing the action, or in holding rather, that no action at all would lie under the payment of the debt by Schick, into permitting the case to go to a dismissal and coming here without asking leave to amend.

The court below might have held, and we think properly, that the first and second causes of action were defective by reason of their failure to show that the debt had become due; but the court went a little further than that and held, as we read in the opinion, that the surety would have no right to sue the principal until the surety had paid the debt. The attention of the court below probably was not called either to the section of our statute as to another right of a surety, or as an equitable principle which indeed, obtained before the existence of the statute, and it is presumed it did not occur in the mind of the court at the time. Section 5845, Revised Statutes, provides that, “A surety may maintain an action against his principal, to compel him to discharge the debt or liability for which the surety is bound, after the same becomes due.” This is an additional remedy to that which a surety has who is compelled to pay a debt which the principal ought to pay. If the principal fails to pay a debt which he should pay, the surety may pay and sue the principal at law, and by virtue of this statute, he may even before payment, and without payment, sue the principal to compel payment after the debt has matured.

It has been held by our Supreme Court in several cases, that this right existed in equity even without this section of the statute.

Reference may be had to the case of McConnell v. Scott, 15 Ohio, 401, 403, and a note in the annotated edition citing Sheldon, Subrogation (2 Ed.), 195, note 3, as to the right of a surety to compel the principal to pay a debt after it has become due.

Reference may be had also to Stump v. Rogers, 1 Ohio, 533, in which it was held that a surety may proceed against the principal in equity, to have his estate subjected to the payment of a debt, without making payment himself before commencing suit. I

Now, the Otts are not said anywhere in this petition, in words, to have become, as between them and Schick, the principal debtors upon these several debts, but we think that that is the result of the allegations in the petition, in the first and second causes of action. It is alleged that Schick was to incur these obligations, or that he was to carry on this business^ it is stated also that the creditors had no knowledge whatever of the relaiton which the Otts bore to it. I do not know that that is alleged in the petition, but it is conceded in argument before us. As between the Otts and Schick, we think the relation of principal and surety arose, assuming these allegations in the petition to be true. That being so, if the debts had become due prior to the beginning of this suit, we think then that Schick might properly have brought suit against the Otts to compel them to pay the debts so incurred.

Some question has arisen as to who would be the proper parties in such an action.

In Horst v. Dague, 34 Ohio St., 371, or perhaps more properly in the dictum on page 375 in the opinion, is a suggestion that the creditors are necessary parties. It is not very apparent as to just what creditors are to do when they are brought in, unless perhaps do what I find one of the creditors did in this particular case — one represented by Judge Mills of Sandusky — who has filed a cross-petition asking for judgment upon his claim, asking for it, however, against Schick, without mentioning the Otts, if I remember aright. We simply notice that in looking over the files; however, it has no special bearing upon this case, but whatever might be the right of the creditors, when brought into the case, they are not here sued in the sense that any relief is asked against them, that is, any judgment asked against them.

There is a prayer, or there is something in the -prayer of the petition in the way of seeking to bar them against any future assertion of their claims, unless they assert them in this action, and the explanation of that in the argument is, that counsel desires to avoid a multiplicity of suits and so brings in all these several claimants.

Under all the circumstances, we do not, at this stage of the matter, feel it necessary to indicate what would or would not be the rights of the creditors when brought into the suit, and we have concluded, in view of the manner in which this case has come to us, and the apparent misapprehension of just what were the rights of the parties in the mind of the judge below and the counsel for the plaintiff in error, to set aside the judgment rendered and remand the case for further proceedings. We think, as I have already stated, that the facts as stated in the first and second causes of action, do not constitute a cause of action against the creditors, or against the Otts, by reason of a failure to show that the debts have become due.

McKnight & Thomas, for plaintiff in error,

E. G. Martin and J. M. Bechiol, for defendants in error.

We think there is good cause of action stated against the Otts in the third cause of action. We think there is a misjoinder of the causes of action and that by reason of the misjoinder of the causes, the demurrers should unquestionably be sustained and there should be a redocketing'of the eases separately, and that then the court below should take such proceedings as may be proper, and if the court sees fit to permit the plaintiff in error to amend so as to show that the debts have become due, referring to the debts described in the first and second causes of action, that would be entirely within the province of the court below.

We have concluded that, under the circumstances, we would permit the cases to be docketed separately, so that each cause of action will stand upon its own foundation, unless perhaps the first and second may still stand together and the question then be fairly raised again upon demurrer, if the counsel sees fit, or otherwise.

The costs will be divided half and half between Schick and the Otts.


text:
    THE SCINTILLA RULE.
    [Circuit Court of Hamilton County.]
    Emily Barr v. Chester M. Poor, Executor.
    Decided, January 10, 1906.

      Statute of Frauds — Remedy—Res Adjudicata — Scintilla Rule — Duty of Nisi Prius Judges to Follow.

    1. The statute of frauds prescribes a rule of procedure and relates to the remedy (56 O. S., 101).
    2. Res adjudicata can not be based upon matter pertaining to remedy only, as the kind of proof required, but must rest upon a determination of the essential merits of the .controversy.
    3. Until the Supreme Court sees fit to modify or abolish the “scintilla rule,” it is the duty of a nisi prius judge to follow and apply it, notwithstanding his personal inclination, or his opinion as to the merits of the case.
    Jelke, P. J., Gifeen, J., and Swing, J., concur.
   We are of opinion that the conclusion of the court below in overruling the demurrer to the reply was right, for the reasons set out in the opinion, per Swing, J., in 2 N. P. — N. S., page 208.

We regret'that the established law seems to require this conclusion, as it is hardly consistent with right that a plaintiff should be permitted to affirmatively allege a fact which on demurrer becomes determinative of that particular action, and then be permitted in a subsequent action, to allege the exact contrary. The only thing which saves the former judgment from being res adjudicata as to the second action is the circumstance that the fact pertains to the remedy, procedure and measure of evidence and not to the essential merits of the controversy. This being so, brings us to an examination of the correctness of the action of the court below in arresting the case from the jury, and giving judgment for the defendant.

An examination of the record shows that there is a scintilla of evidence upon all the essential points, and this rule demands that the ease should have been submitted to the jury. This is one of the eases where ,the court would, like to evade the force and effect of the scintilla rule, as the record hardly presents a meritorious action, or a ease where a verdict, had there been one for the plaintiff, could be permitted to stand, and yet the law requires a submission to the jury.

Frederick E. Niederhelman, for plaintiff in error.

Hollister (& Hollister, for defendant in error.

Judgment will be reversed, and cause remanded for a new trial.


text:
    PREVIOUS CONVICTION AS A PLEA IN BAR.
    [Circuit Court of Eranltlin County.]
    William Whitman v. State of Ohio.
    Decided, March 25, 1905.

      Bills of Exceptions — -Certified Transcripts Attached — But No Reference Thereto in Bill — Plea in Bar must he Supported, How — Judgment upon may he Reviewed, How — Presumption—Criminal Law.

    1. Certified transcripts attached to a bill of exceptions, but not referred to in or made, a part of the bill, can not be considered by a reviewing court as a part of the bill.
    2. In a criminal prosecution, a plea of a former conviction or acquittal for the same offense, presents ■ an issue of fact, and the record of such former conviction or acquittal, is competent evidence in support of such plea. Where such plea is tendered by a motion, to which is attached the transcript of a former conviction or acquittal, the act of attaching such transcript" is not the offering-of the same in evidence.
    3. The judgment of a mayor upon an issue presented by a plea in bar may, under the authority of Section 6565, be reviewed independently of the other issues of the case, where presented upon a bill of exceptions containing the evidence upon this issue alone.
    Sullivan, J.; Dustin, J., and Wilson, J., concur.
    Error to Franklin Common Pleas Court.
   These cases involving substantially the same questions were presented and ai'gued by counsel as one case, and what is said in the opinion disposing of the contention between counsel, applies to both cases. The record shows before proceeding to trial before the mayor, counsel for plaintiff in error filed a plea in bar in shape of a motion. To this motion was attached certified transcripts from the docket of a justice of the peace, which were referred to in the motion, as certain exhibits claimed by counsel for the accused, as showing that the accused had been charged, tried and convicted of the same offense set forth in the respective affidavits before the mayor. These several transcripts are attached to the respective bills of exception, but nowhere referred to or made a part of the bill as required by the statute and therefore can not be considered as constituting a part of the bill itself. Lake Erie & W. Ry. v. Mackey, 53 Ohio St., 370.

Counsel for the • accused contends that because of the fact, as shown by the record, that a plea in bar was filed before the mayor, and that the transcript of the docket of the justice, before whom it was claimed the accused had been tried and convicted for the same offense; was attached thereto as an exhibit, that he had done all that was necessary to support the plea, and that upon the mayor overruling his motion or plea in bar as designated by him that when he had' his exception noted in the form of a journal entry, that Section 6565, Revised Statutes, ■had been fully complied with, and this court can review that proceeding of the mayor, though the transcripts referred to are not made a part of the general bill.

When a plea in bar is offered, it must be supported, not only by the record of a former conviction or an acquittal of the same offense, but the accused must further prove that he is the same. person charged in the record. In these cases the act of attaching the transcript to the plea was not an offering of them in evidence. The record fails to show that they were offered in evidence. After the mayor overruled the plea in bar, the counsel for the accused excepted generally and then excepted specially because the court overruled the motion before reading the transcript. This was followed by a statement by counsel for the accused as to what the- transcripts contained in bill of exceptions, page 405, but nowhere is it shown by the bill of exceptions that the transcripts were offered in evidence upon plea in bar or for any other purpose and that the mayor passed upon the competency or incompetency of them as evidence, and it can not be assumed that they were offered. Nowhere in the bill does it appear that the accused offered any testimony to show that he was the identical person stated in the record. Upon the failure of the accused to present any evidence upon his plea in bar, the court below could not do otherwise than dismiss it, which was accomplished by overruling the motion.

E. G. Turner, for plaintiff in error.-

G. T. Clark, for defendant in error.

A plea in bar presents an issue of fact, and hence requires evidence, and a finding upon the evidence; all of which must be presented by a bill of exceptions, taken as required by statute, so that the judgment upon such issue may, if desired, be reviewed by proceedings in error. Under Section 6565, Revised Statutes, the judgment of the mayor upon this issue could have been reviewed, independent of other issues in the cause, by proceedings in error, upon a bill containing the evidence upon this issue alone. The record simply shows that a plea in bar was offered with no testimony offered to support it, and the overruling of the motion must be assumed to be a judgment adverse to the accused because the plea was not sustained as required by law.

We therefore find no error prejudicial to plaintiff upon this ground, and none in any of the other several grounds set forth in his petition. It therefore follows that the judgment of the court below must be affirmed at plaintiff’s costs.


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    RIGHTS UNDER. THE SCHOOL TEACHERS’ PENSION FUND.
    [Circuit Court of Hamilton County.]
    W. H. Venable v. Eugene Schafer et al.
    Decided, January 3, 1906.

      School Teachers’ Pension Fund — Nature of the Contract — Construction of Statutes — Rights under an Unconstitutional Law — Restoring the Statu Quo.

    1. Tlie school teachers’ pension fund does not provide a bounty, but the basis of a mutual contract, in the nature of insurance; hence all terins should be given a fair interpretation, without favor, and where one does not come within the express terms there .is no reason to strain them to include such person.
    2. In construing statutes a word is not to be given a limited or specialized meaning until such meaning is made by legislative enactment.
    3. Where rights under an unconstitutional law can not be enforced, equity will endeavor to restore everybody to their rights and their former statu quo.

    Jelke, P. J.; Swing, J., and Giffen, J., concur.
   This is what is denominated an “agreed case” under Sections 5207 to 5209, Revised Statutes. It is submitted to the court by the parties to determine whether or not W. IT. Venable is entitled to receive a pension from the School Teachers’ Pension Fund, as created and provided for by acts of the Legislature of April 16th, 1900, Ohio Laws, Vol. 94, page 305, and of May 12, 1902, Ohio Laws, Vol. 95, page 609.

A doubt has been suggested by one member of the court as to whether this controversy in its present form was properly submitted as an agreed case. Although the parties have agreed to submit their question to the jurisdiction of this court in this manner, it may be that the court’s conclusion can not be effective in a proceeding of this kind.

If Professor Venable is entitled to a pension, we do not think a money judgment could be entered against these trustees, either in their individual or trust capacities. The remedy to be afforded must be in the nature of an order granting a peremptory writ of mandamus, because if these trustees, being officers chosen and empowered according to law, should pay this sum of money, it would be an act which the law specially enjoins as resulting from an office, trust, or station, and such a writ can only issue at the behest of the sovereign or at least in an action to which the sovereign state is a party.

On the other hand, it has been suggested that an action of this kind is not particularly adversary in its character, but one in which the trustees might be looked on as petitioners coming into a court of equity and asking the chancellor to construe and advise as to the terms of their trust. Be that as it may, the parties have invoked the jurisdiction of this court, and this question not being raised by them, we are willing to waive the same and endeavor to answer the questions properly propounded by the agreed case. As provided in the act of .1900, 94th O. L., Sec. 3897<7":

“Said board of education of said city district and said union board or other separate board having the control and management of the high schools of said city district shall each of them have power by a majority vote of all the members composing said board to retire on account of physical or mental disability any male or female teacher under such board who shall have taught for a period aggregating twenty (20) years, whether before or after, or partly before or after the passage of this act; provided, however, that three-fifths of said period of service shall have been rendered by said beneficiary in the public schools or the high schools of said city district, or in the public schools or high schools of the county in which said city district is located. ”

The question here arises, whether or not Professor Venable’s long service in the various schools constitutes teaching for a period aggregating twenty years within this provision. It is claimed that as the whole object of this act is to provide a pension fund for teachers in the public schools, Professor Venable’s service in the schools not supported in whole or in part by public taxation, can not be reckoned in computing these twenty years. The wording of the act does not call for such a construction. Further, the act of 1902 provides:

“The term ‘teacher’ under this act, shall include all teachers regularly employed by either of said boards in the day schools, including the superintendent of schools, all superintendents of instruction, principals, and special teachers; and in the estimation of years of service, only service in public day schools or day high schools shall be considered.”

It is contended that this sentence inserted in the act of 1902 is interpretative and sheds light upon the meaning of the word in the act of 1900. The contrary conclusion would be required by the usual canons of statutory construction. It'is apparent that when the Legislature, meant to give a restricted meaning to the word “teacher,” it knew perfectly well how to do so, as it expressly did in the act of a year later. When it did not enact the restricted definition, the word should be' given its broader significance. The intention of the Legislature in passing the act of 1900 is to be deduced from that which it said. The law does not concern itself with an unexpressed intention or an intention which there has been no effort to express.

Resolving this question in favor of Professor Venable, we then come to the question, whether or not three-fifths of said period of service was rendered by him in the public schools or high schools of the city of Cincinnati. It appears that he was appointed on June 13, 1889, and served continuously until June, 1900; that for the next succeeding year, 1900-1, he was granted a leave of absence on account of ill health, during which year his son substituted for him, receiving a salary as substitute but contributed nothing toward the pension fund. Did Professor Venable, using the words of the act, render services for twelve years? We think not. The law does not provide for a period upon the teachers’ roll of Cincinnati, but Tor the period of twelve years of actual service. We, therefore, are of opinion that Professor Venable is not within the provisions of the act of 1900.

We are further of the opinion that the act of April 16, 1900, was unconstitutional and void, as being in contravention of Section 2, Article XII, of the Bill of Rights. 22 C. C. Rep., 253, paragraph 4 of the syllabus:

“Such act in providing that one per cent, of the salaries paid to teachers shall be deducted therefrom and applied to create a school teachers’’ pension fund, also violates Section 2, Article XII, Constitution of Ohio, providing for a uniform taxation of property, and also the Bill of Rights, in the taking of the private property from one citizenJ for the benefit of another without his consent, and against his will.”

Ellis G. Kmkead and Challen B. Ellis, for plaintiff.

Chas. J. Hunt, contra.

It appears that this defect in the act of 1900 was removed by a provision in Section 3897c, of the act of 1902, which reads:

“All teachers hereafter appointed in said public schools, or high schools, if any, in said school district, shall be notified with in thirty days after their appointment by the clerk of such board of education of the election of said board of trustees of said school teachers pension fund, and they shall be required to notify said board of education within six months thereafter whether they consent or decline to accept the provisions of this act. ” •

It does not appear that Professor Venable ever took any action to avail himself and bring himself within the provisions of the act of 1902. However, under the act of 1900, there was raised a fund, we are informed, aggregating approximately thirty thousand dollars, which passed and was paid over to the pension trustees chosen under the act of 1902. The mere fact that the law creating this fund was unconstitutional does not deprive Professor Venable of any interest he may have therein, or deprive him of his right to recover whatever contribution he may have made to the creation of said fund, for it is said that Professor Venable’s salary 'was charged the usual amount and the charge was paid into this fund.

To the extent that any of Professor Venable’s money was paid into this fund, he had an equitable interest therein, which must be preserved to him.

We do not think that the pension scheme provided for by the unconstitutional law of 1900 can be enforced in detail, and we do not understand that Professor Venable has in any way brought himself within the provisions of the law of 1902, and the trustees in accepting said^ fund, accept it charged with equitable interests.

We therefore conclude that Professor Venable is entitled to all the money he has paid into the pension fund with interest, but that the trustees of said fund are not required to and may not pay him a regular pension.


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    AUTHORIZATION AND SALE OF WATER. WORKS BONDS.
    [Circuit Court of Licking County.]
    Charles Vadakin, on Behalf of the City of Newark, Ohio, v. Andrew J. Crilly et al.

    Decided, March, 1905.

      Municipal Corporations — Water Worlcs ^Bonds — Advertisement of and Offer of at Public Sale — Bids Withdrawn Because of Injunction Suit — Bonds then Sold at Private Sale — Tax-Payer Acting in Interest of Water Company — Without Standing in Court — Section 97, Municipal Code.

      1. A tax-payer suing under favor of Section 1778, Revised Statutes, to enjoin the corporate officers from selling municipal bonds, whose sole purpose in bringing the suit is to favor a water company hs against the municipality, and prevent the municipality from building its own water works, such tax-payer having been by agreement with said water company indemnified from the payment of costs and expenses of such suit if it should fail, has no standing in court and said suit should be dismissed.
    2. Municipal officers charged with the duty of selling municipal bonds for the building of water works, advertise the sale of said bonds according to law. At the time fixed for the sale they receive bids for the same pursuant to the advertisement. Said officers are willing and ready to sell said bonds pursuant to the offer to sell the same. After bids are received and before an award of sale is made, an injunction, procured by the city solicitor, is served upon said officers, enjoining them from selling said bonds upon that day. ' Thereupon all bids are withdrawn by the persons offering them. The next day an entry is put upon the journal of the court by agreement of the city solicitor and the attorney for the defendants in said injunction suit, without the intervention of the court, sustaining a demurrer to’ the petition therein and entering judgment upon said demurrer. Thereupon, the officers charged with the sale of said bonds sold the same at private sale for a fair price, without collusion, arid in good faith on their part, and as they thought in the interest of the municipality.

      Held: Said bonds had been once offered according to law and “remained unsold” within the provisions of Section 97, Municipal Code, and such private sale is legal, and should be sustained. •

      Donahue, J. (orally); McCarty, J., and Voorhees, J., concur.
    Heard on appeal.

      Affirming 3 N. P. — N. S., 609; affirmed by the Supreme Court, without report, 73 O. S., —.

   The city council of Newark, Ohio, provided for tl^e issue'of $300,000 of what were denominated water works bonds. This was done in pursuance of a vote of the electors of the city authorizing that to be done; an ordinance was then passed directing the finance committee, mayor and auditor to proceed with the sale of the bonds.

The bonds were advertised according to law and, at the time that these officers were to act on the bids received for the purchase of the bonds, an injunction was served upon .them, restraining them from proceeding with the sale upon that day. Thereupon the bids were withdrawn by all bidders, and a motion was made and carried by the finance committee that all the bids be rejected. That was done after the( bids were withdrawn by the bidders, and there were really no bids then before that committee.

A few days after that, negotiations were had by these officers with certain bond-bidders, and a sale of the bonds were negotiated at private sale- the bonds were delivered and the money paid. The money is still in the hands of the treasurer of this city, and the bonds are still in the hands of the first purchasers. This suit is brought by Vadakin, as a tax-payer, in behalf of the city of Newark, Ohio, for the purpose of declaring that sale a nullity, requiring the bonds to be delivered up and canceled, and requiring the city officials to return the money received from the purchasers for these bonds, and not appropriate it to any other purpose.

The first question in this case is as to the good faith of the plaintiff in bringing this action, and upon this question the court is not a unit. A majority of the court, however, think that that is one of the important questions in this case; and if he is not bringing this suit as a tax-payer, in the interest of the city and the tax-payers of the city, but is bringing it solely for the purpose of furthering private ends, and the ambitions and schemes of other men who are not in court themselves, and bringing it with the express provision and understanding that he shall not be burdened with costs or expenses, attorney fees or the legitimate costs incurred in court, we think that is very important to be determined, and if determined against the plaintiff, is conclusive in this ease.

The authorities in Ohio upon this question at this time are divided. We do not think the Supreme Court has spoken with any certainty upon the question; and while it is insisted that in the Elyria case, in the 57th Ohio State, page 374, that question was determined, yet a careful reading of that case fails to disclose that it was called in question by counsel or the court; and there the question of maintenance could not have been in the ease, because of the fact that it was the gas company itself that went into court and asserted its rights as a tax-payer, and took its chances of paying its own legitimate costs and attorney fees.

This question of maintenance is one of grave importance in a court of equity. It is against public policy that a man shall be urged into litigation with the assurance that the necessary expenses that ordinarily make men hesitate before they annoy their neighbor with litigation, should be secured to them, and we think, if a man comes into court with that sort of an arrangement, or with that agreement manifest upon the -face of things, he is not in good faith; he does not come in with clean hands; he ought not to be heard in a court that he is asking to exercise extraordinary powers for his relief.

The authorities upon which the majority of this court rely to support-their position are collected and carefully considered in the case of Ampt v. Cincinnati, 30 W. L. B., page 237.

In the opinion, on page 241, this language is used:

‘ ‘ It certainly should not be contended that, in considering such a case from the standpoint of equity and justice, a court of equity should ignore the time-honored and settled principles that constitute the warp and woof of its jurisdiction and shut its eyes to the obvious evils that would flow from permitting in a case where a fact is plainly proven and openly admitted, a party to farm out, for a money consideration, to private interests and for private benefit solely, the high privilege conferred by the statute.”

And again on page 243:

“The provision of the act is, that actions may be prosecuted by a tax-payer to prevent waste or injury to the property of the corporation; hence it is apparent from the language of the statute that if such is not the object of the action no power is conferred upon the court to entertain the suit.”

That doctrine is supported by the 6th Nisi Prius, 82; 8th Nisi Prius, 498; 10 O. C. Rep., 642, 645; 1 Pomeroy, 397.

On the other hand, there are authorities of equal respectability with these authorities that we cite, that hold the statutory right to bring the action being once fixed and determined, the motives of the actor are in nowise important; that if he is a taxpayer, he has a right to bring the action, without giving to any man a reason why he brings it.

That is very strong reasoning and it is supported by the 24th C. C. Rep., 215; 15th C. C. Rep., 517, and some other authorities of equal value. However, a majority of this court thinks that if the evidence shows that this action is brought in the interest of somebody else, and not in the interest of the tax-payer, that if there is a contract of maintenance here between the water works company and the plaintiff, that the plaintiff ought not to be granted any relief in this case, but if any of the citizens or tax-payers are aggrieved by what has been done, there are many of them who can come in in the interests of the city and bring it to the attention of the court in a proper case.

Upon the evidence submitted we find there was a contract between the Newark Water Company and the plaintiff, Vadakin, to bring and maintain this suit, and the same to be free of all costs and expenses to him; that the suit is brought wholly in the interest of the water company now supplying the city of Newark with water; that it is brought by the plaintiff for the purpose of delaying and preventing the city from building its own water works and assisting the water company to sell its plant to the city or continuing its contract with the city to supply water to the city and its inhabitants.

Mr. Vadakin, by entering into this arrangement, which we think is apparent from the evidence, destroys his standing in court, and in the opinion of the majority of the court ought not further to be heard, but in courtesy to our associates, and believing that this ease ought to receive some further investiga; tion, we have gone beyond that to consider the conduct of the officials and their rights to sell these bonds.

. The sections authorizing the sale of bonds read as follows:

“Whenever any municipal corporation issues its bonds, it shall first offer them at par and accrued interest to the trustees or commissioners, in their official capacity, of the sinking fund. ’ ’

That was done in this ease.

The next provision is that- all bonds shall be sold at not l^sfe than par and accrued interest.. -That was also complied with.

The next provision is that—

“All sales of bonds, other than to the sinking fund, by any municipal corporation, shall be to the highest and best bidder, after thirty days’ notice in at least two leading newspapers of opposite polities and of general circulation in the county where such municipal corporation 4s situated, setting forth the nature, amount, rate of interest and length of time the bonds have to run, with time and place of sale. ’ ’ * * *
“Provided, however, when any such bonds have been once so advertised and offered for public sale, and the same, or any part thereof, remain unsold, then said bonds, or as many as remain unsold, may be sold at private sale at not less than their par value, under the direction of the mayor and the officers and agents of the corporation by whom said bonds have been, or shall be prepared, advertised and offered at public sale.”

We think that is conclusive of the right of these officers to sell the bonds, provided the advertisement and offer were sufficient. All other conditions precedent having been complied with, the officers who did sell these bonds were authorized to sell them, by Section 97 of the Municipal Code. But if that is not sufficient, Section 123 certainly is. A part of said last section is as follows:

“All contracts requiring the authority of council for their execution shall be entered into and conducted to performance by the board or officers having charge of the matter to which they relate, and after authority to make such contracts has been given and the necessary appropriation made, council shall take no further action thereon.”

The council had nothing further to do with a sale of these bonds after directing these officers to make the sale.

It is claimed that there was a change in the ordinance as published; and there is some evidence to support the claim of the plaintiff in that behalf, but we think it absolutely unnecessary to make any finding as to that, because the ordinance as published must obtain, and- what we find there is the authority upon which we base our conclusions in this case. If that ordinance as published is sufficient, well and good. If not, the words that were left out of the publication can not aid or add to the authority of these officers.

The question of vital importance in' this case is as to the right to sell at private sale. It is undoubtedly the law of Ohio that municipal bonds may be sold at private sale after offering them by advertisement to competitive bidders. The purpose, as stated by the Supreme Court of Ohio, is two-fold: One, to give publicity to the act of the officials, of what is going on in the affairs of the city; the second is, to provide for competitive bidding, in order that the highest and best bid may be had. And these being the objects, they are the guides to courts in determining whether in fact those things have been done. Upon first glance, it would seem that all that is provided for— the advertising and offering to sell at competitive bidding — had been aborted and had not accomplished the purpose of the statute and had brought no good results to the tax-payers; that it had invited competitive bidding, and at the same time had destroyed the effect of that by withdrawing the bids. But let us see. The section reads that the bonds may be sold at private sale if any part or all of them remain unsold after advertising and offering to sell at competitive bidding. Advertisement was made; competitive bids were duly received, but, owing to the service of the injunction, which, in fact, is directly traceable to Mr. Vadakin himself, the people whose bids-had been filed in good faith, with a large cash deposit, were induced to withdraw their bids before the acceptance of the bids made by them.

There is no question but that, at any time before the acceptance of the bid, the person who makes a bid may withdraw it. So that the effect of it all is that, notwithstanding the advertisement, there were absolutely no bids at the time the officers were called upon to award the bonds to the highest and best bidder. The people who had made those bids, for purposes satisfactory to themselves, and serving their own interests, as they had a right to do, had withdrawn their bids. The purpose of the deposit of the money is to insure that the bonds will be taken when the bid is accepted, and not that it shall remain there for weeks or months waiting the pleasure of the board having charge of the sale of the bonds. They were withdrawn as a matter of right, and that left the officers without a bid to act upon. True, their hands were tied for a time, by an injunction, but that was not important. A suspension of the act on the part of the board from the time the injunction was served until the injunction was dissolved would not affect their right to accept the bids had the bids remained. They were entitled to accept any bid that had been received, but there were none there to accept. So that the advertisement was made, there were no offers received as contemplated in the statute, no propositions were left in the hands of the board for them to accept, either at the time they were authorized under the advertisement to accept them, or later, when the injunction was dissolved and they might act without being in contempt of court.

If they had conspired to that result in any degree whatever, the whole cause would have been attributable to them, and there would have been no offer to sell at competitive bidding. But they were absolutely without fault or blame for any of the conditions that existed. If they had been culpable in the least degree, that would perhaps charge them with all the wrongs, and would show an unfairness on their part, and a desire not to sell at competitive bidding but to sell at private sale in the interest of their friends or against the interests of the city. But,, up to that time, so far as this record discloses, they were absolutely without fault. They had advertised the bonds, as required by the statute; they were there ready for competitive bids; there were no bids; the bonds, in the language of the statute, “remained unsold”; and that was all that was necessary to authorize them to sell at private sale.

We realize the full force and effect of the argument of counsel that simply because the terms of the statute are fulfilled apparently to the letter, that that is not sufficient. That we must not stick in the bark. That the question is whether the purposes of the statute have been subserved. If the purposes were not subserved, it was the fault of somebody beyond the committee, and they were called upon to do the next best thing they could do, and that was, to follow the statute in such ease made and provided; and they did do that.

Now, having the right to make this sale of bonds at private sale (and we so find), the fact that they proceeded with haste is not commendable in the opinion of this court, yet we can not condemn it .because it was their business; they were clothed with-discretion to dispose of the bonds as best they could, but with an honest discretion, and a discretion that they must exercise in good faith, and with an eye single tot the interests of the people they represented; and the fact that they moved with such alacrity in the sale of the bonds is not sufficient to attribute any particular intent on their part to do wrong, yet it is a circumstance to be considered. But this fact is not sufficient to show that there was any conspiracy or intent to wrong; but, on the contrary,.we find that they were acting in good faith, in their opinion in the best interests o'f the city.

As to the manner of procuring the dissolution of the injunction that had been obtained to restrain the sale of the bonds in the first instance at the request of Yadakin, that is a matter that does not appeal to us as being a thing that ought to have been done. We think the solicitor should have walked into court and dismissed his suit if he thought there was nothing in it. And, so far as that is concerned, we think the solicitor was at fault in bringing that suit at all, unless he believed in it. It is true that solicitors in Ohio bring a great many suits that they think .probably ought not to be brought, because of the fact that if they do not bring them some one else will, and large fees therefor will be paid out of the public treasury and they feel that they ought to protect the treasury because they are paid for that sort of service, and therefore that they ought to represent the city in these suits. But that is a mistaken idea. We think the solicitor ought tó exercise discretion in that behalf, and not bring a suit for every man who demands it.

So, if there was any blame it was in bringing" the original suit to enjoin the sale, unless he believed in it. If he believed in it, he ought to have brought it. Yet, that is not important at this time. The fact -that the injunction was suspended by putting the entry on sustaining the demurrer and dismissing the petition, without the action of the court, does not commend itself to this court. Blit it does not affect the other officers. It does not affect him, so far as that is concerned, except that it was unwise and an improper thing to do. It was a mistake of judgment, no doubt, on his part; but, passing that, wre- come to the question whether the consideration received for the bonds was such as to show conspiracy or want of good faith on the part of the officers. From what we have before us, we think they were not sold for such an inadequate price as would raise a presumption of moral turpitude on the part of the officers, or of any conspiracy against the interests of the city, or in favor of any particular buyer. We think the committee believed at the time they sold the bonds that they were receiving a good, fair, and liberal price for them; and we are not prepared to say from the evidence that they were not receiving such price. Other investors may give more, and others may give less, but they did get a fair and liberal premium for the bonds, and such a 'premium as evidences to our mind that their was no moral turpitude, or corruption, or conspiracy, on their part to sell these bonds for less than they believed them to be worth in the market. Whether they made a good bargain or not is not a question that comes to this court. They may have made a poor bargain. That is not important, for if they had the power to sell, they had the power, to sell at what they believed to be right, or what they thought was the best price they could obtain, provided it was not less than par value and accrued interest.

We think this covers the entire case. Upon this latter question, as to the right to sell the bonds, the court is unanimous. The court is also' unanimous as to the good faith of the officers rpaking the sale. The court is also unanimous in the opinion that the price obtained was substantially the full value of the bonds; and we are also unanimous upon the question as to who should sell fhese bonds after the failure to sell at public sale. We are also unanimous that the advertisement and offer at public sale was sufficient under the statute, and while perhaps it did not accomplish all that the statute intended it should do or that we might hope now it would have done, yet it did put them in that position that there was no legal reason why they should re-advertise these bonds.

Flory (& Flory and Jones & Jones, for plaintiff. A. A. Slasel, Phil B. Smylhe, Kibler c& Kibler, J. R. Fitzgibbon, Squires, Sanders & Dempsey, William C. Boyle, for defendants.

Therefore the judgment of this court is that the temporary injunction allowed by the probate judge, and dissolved by the common pleas court, be dissolved at the costs of the plaintiff.


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    ILLEGAL OCCUPATION OF LAND BY RAILROAD.
    [Circuit Court of Lucas County,]
    Frank Collins et al v. Craig Shipbuilding Co. et al.
    Decided, March. 18, 1905.

      Eminent Domain — Railways—Occupation of Land by, under Written Agreement■ — Railroad Company Assignee of the Grant — Its Rights no Greater than Those of the Grantee — Usurpation of Rights — Injunction — Law of Appropriation.

      Í. Section 0448, relating to the appropriation of property, applies only where the occupation is without any agreement with the owner.
    2. A railroad company which began the occupation of land under an assignment of a written agreement with the owner, can not by usurping rights prohibited by the agreement be said thereafter not to be occupying under the agreement; nor do the rights of the railroad company under such an assignment rise higher than those of the original grantee.
    3. Where the grant permitted the laying of a spur-track across the land of the grantor, with the condition 'and limitation that the track can be used only for certain specified business, injunction will lie to prevent tlie carrying ot a greatly increased business over this track without compensation to the owner.
    4. The fact that the owner of the land in such a case might tender a deed and demand compensation for the land occupied by the track, is no defense to an action to enjoin the railroad company from unlawfully continuing its use and possession of the property.
    Hull, J.; Haynes, J., and Parker, J., concur.
   This is an action brought by the plaintiffs, Frank Collins and the Northwestern Realty Company, who are the successors in title of William A. Collins, to enjoin the defendants, the Craig Shipbuilding Company, the Toledo Belt Railway Company and the Wheeling & Lake Erie Railway Company, and especially the two railroad Companies, from the use that they were making of a certain spur or side-track running from the Wheeling & Lake Erie railroad tracks down to the lot or land of the Craig Shipbuilding Company, the plaintiffs claiming that such use was in violation of certain conditions and limitations-contained in the grant by which the right to lay the track was conferred upon the predecessor of the Craig shipbuilding Company, to-wit, John Craig, from whom the company has acquired this title. The action came on for hearing before us upon a motion for judgment in favor of the plaintiffs upon the pleadings.

It appears from the evidence that in 1886 William A. Collins and Louis Paine were the owners of certain lands lying between the Craig shipbuilding lots and the Wheeling & Lake Erie railroad lots and that they granted to John Craig, who was then the owner of the Craig Shipbuilding Company lots, the right to lay this track to the Wheeling & Lake Erie tracks, by a written grant, and among the conditions and limitations of said grant it was provided that the track should not be used except for the business of the Craig Shipbuilding Company and their purposes, or for industries-located upon the Craig Shipbuilding Company lot, and the track was laid under this grant.

Some years afterward another side-track or spur of the Wheeling & Lake Erie Company was built easterly to connect with another track running down to the Wheeling & Lake Erie track and thus connecting with several industries lying east of the Craig shipbuilding lot, the connecting road being known as the Maumee Connecting Company, and the products of these other industries lying east of the Craig shipbuilding lot were transferred on this connecting line to the Craig shipbuilding track, across that and up to the Wheeling road, upon this track in question, thus increasing very largely the transactions upon this track, the right to lay which had been granted to Mr. Craig, and in the respect that the traffic was increased and the number of cars largely increased in this manner the conditions of the grant which limited the use to the Craig Shipbuilding Company and the industries thereon, were violated and this action was brought by the plaintiffs as the successors of William A. Collins and Paine, to enjoin the Wheeling & Lake Erie. Railroad Company and the other roads from violating these provisions of the grant and to require them to comply with all the provisions of the grant in respect to transportation, etc.

The claim of the railroad companies as set forth in their answer and as argued before us, in brief is, that the plaintiffs have an adequate remedy at law and therefore there should not be a remedy by injunction. It is said that they have two remedies; that they may tender a deed to this right of way to the Wheeling & Lake Erie and demand compensation, and if not paid, interfere with its use of the track; or, they may compel an appropriation of that part of the railroad under Revised Statutes, 6448, and that, therefore, they should not be granted an injunction.

A large number of authorities were cited by counsel on both sides. We shall not undertake to mention or review many of them. It appears that this condition was contained in this grant; that it is being violated and has been violated for some years, and that this violation will impose an additional burden upon this land, in that a great many more- cars, several times as many perhaps, will be run across the property, than passed over it at the inception of the grant.

The grant was made in writing. Revised Statutes, 6448, applies in its express language only to cases where corporations authorized to appropriate are in possession of property without any agreement in writing with the owner thereof, and it provides in that event the owner may serve notice in writing upon the corporation, in the manner providing for service of summons against a corporation, etc., and proceed under the chapter to appropriate the lands, and on their failure to do so, the statute provides what may be done. Now, it is said that while this original grant was in writing, the writing only conferred certain privileges upon John Craig, and if it was undertaken to go beyond that, it could be said that the railroad company were in possession by virtue of the writing, and therefore the owners would come within the provisions of this statute.

It seems to us this is tenable. The original entry here was a written grant. The position of the plaintiffs is, that, should they undertake to avail themselves of this statute, they would be met by the proposition of the railroad company that they were in possession under a writing and that, therefore, their possession could not be both — and we think that is correct. The original possession was in writing; they have a right of possession with certain limitations and conditions, but possession for the laying of this track and for the occupancy of this land twenty feet in width was granted to Mr. Craig in writing, and this statute provides that it shall only apply to cases where the possession is not held by any agreement in writing. It can not be said here that the possession is not in writing because the railroad company is now insisting upon certain rights which were not given by that writing; the contract can not be wiped out and abrogated by an attempt on the part of the railroad company to go beyond the stipulations of the written agreement, so that it seems to us that it can not be said that the plaintiffs here might avail themselves of these provisions.

There is another reason why they are not required to do this. The grant was originally made to a private individual, Mr. Craig, who had no power to appropriate or condemn land, and he afterwards assigned it to a railroad company, which has the power of appropriation, but by this assignment to the company they could nót acquire any greater rights under the contract than he had; they had no more right, as it seems to us — it being assigned to them under these circumstances — to compel the owners of this land to require an appropriation than Mr. Craig would have had. Of course the railroad company has a right to condemn this property for all purposes; under their right of eminent domain they may do that at any time, but it seems to us that the possession not having been taken by them originally, but having been granted to a private individual without this power of appropriation and this right of eminent domain, that their right, so far as this'man is concerned, can rise no higher than his, and that the owners of this land are entitled to hold their rights as against the railroad company the same as they would if this grant were still held by Mr. Craig.

If the railroad company desires to have full and complete use of this right of way and of these tracks, they have a right under the law to appropriate and condemn. By running this increased number of cars over these tracks they are simply taking the private property of the owner of this land across which the track lies and imposing an additional servitude upon it. The right to use the land is the right not to have any additional burdens imposed upon it beyond the burden stipulated for in the original grant; is a right of property upon their part— a right of private property in which they are protected by the Constitution and which can not be taken from them until just compensation shall have been made to them in money.

It has been held many times that a corporation may be enjoined from taking private property for public purposes without first making compensation for it, and that seems to be what is attempted to be done here. The railroad company has not the-right, in our judgment, to compel the landowners to resort to the provisions of this statute, even if they were within it; they must stand upon their contract — the grant has been made that certain cars may be run across these tracks. They are satisfied with their contract; they do not desire to have their entire property taken away from them for that purpose, but they stand upon their contract which they have made, and in our judgment they can not be compelled to abandon the contract in any event and ask the court to require the railroad company to take their entire property rights.

It is claimed further that the landowners might tender a deed and demand compensation for their land. But they do not desire to do this, and we do not think the case is one where that could be done properly. The case cited upon this proposition is that of Fries v. Railway, 56 Ohio St., 135. That was a case where the railroad company entered into possession, as appears from the syllabus, under the verbal consent of the owner, and a verbal promise was made that they would compensate him for his land, which they afterwards refused to do and without appropriation proceedings or any agreement in writing they continued to hold the land. The court say:

“Such owner has an election of remedies, either (1), to proceed in the probate court to compel appropriation under Section 6448, Revised Statutes; or (2), by assenting to such possession by the company as an appropriation in fact,' and tendering conveyance, to proceed in the court of common pleas to recover compensation. ’ ’

Now here was a case where the railroad company had possession without any contract, agreement or grant such as there is here, without any limitation even, and took absolute possession of the property under a promise to pay him for the whole property, and under no limitation that it should only be used for a certain purpose; they had taken possession with the intention to take full possession and control of the premises and to pay him for it, and afterwards refused to do it, and the court held that he might treat that as an appropriation, and if they so desired to tender a deed and demand compensation for the land. But that is not this case, where a grant has been made providing for a certain limitation under which a track can be used and the amount of business that shall be sent over the tracks.

A I say, a great many eases have been cited. Stines v. Dorman, 25 Ohio St., 580, is in point on the general power to grant an injunction under a case not exactly similar to this, but involving the same questions. Also Lawrence Ry. v. Williams, 35 Ohio St., 168; Wagner v. Railway, 38 Ohio St., 32; Balt. & O. Ry. v. West, 57 Ohio St., 161; Niles v. Cedar Point Club, 175 U. S., 300; Railway v. O’Harra, 48 Ohio St., 343, and many others have been cited, which I will not mention here. None of them cover a case just exactly like this one, but the principles in regard to such action are laid down in them. .

E. D. Potter, Ralph Emery and B. F. Brough, for plaintiffs in error.

8eiders & Monnett, for defendants in error.

The conclusion of the court is, that these parties have a right to have this contract enforced and carried out; that the railroad company is performing repeated acts of trespass upon their land; and, further, that they are taking or threatening to take the property of these landowners without compensation in thus increasing the number of cars that they are sending and propose to send over these lines; and under the principles of law and equity, as we understand them, they are entitled to an injunction to prevent this until they have been paid for the property, and they are entitled to stand upon this contract and have it enforced.

The judgment, therefore, will be the same as that of the court below- — in favor of the plaintiff and enjoining the defendant from violating this provision of its grant.


text:
    DAMAGES IN LIEU OF SPECIFIC PERFORMANCE.
    [Circuit Court of Hamilton County.]
    Trustees Cincinnati Southern Railway v. James J. Hooker et al.
    Decided, July 20, 1904.

      Equity — May Award Damages — In Lieu of Specific Performance, When —Measure of Damages is the Actual Loss.

    Damages in lieu of specific performance may be awarded by a court of equity, where such a course becomes necessary in order to do full justice between the parties and confer complete relief in one judicial proceeding; but in such a case the damages awarded will not include speculative or accidental profits, and will be limited to saving the parties from loss.
    Jelke, P. J.; Gifeen, J., and Swing, J., concur.
   Although the proof is conflicting and plaintiff’s case is hardly made by that clear and satisfying measure of proof usually required to move a court of chancery to put forth its decree, we have nevertheless on examination found on the evidence that a contract was entered into between Maria T. Spieker and Walter Kamman, of which contract the H. J. Reedy Company was to have the benefit, not by way of transfer or assignment, but through Maria T. Spieker’s agreement that Walter Kamman might sub-let the premises to the H. J. Reedy Company.

Maria T. Spieker was cognizant of the fact that it was by virtue of this contract so made with Kamman, and in reliance upon the same, that the H. J. Reedy Company at considerable expense moved into the premises and expended money and did the things provided for in said contract.

The lapse of time does not seem to us of sufficient importance to be made the basis of a rescission of the contract by the counsel of Mrs. Spieker, if there was a contract of lease.

While neither party was particularly diligent in executing the written contract, the H..J. Reedy Company does not appear to have been especially derelict or blameworthy. Both parties seem to have been sparring for trifling advantages in the final execution of the lease, and on the subject of delay honors are even.

Mrs. Spieker lost nothing by delay. She would be in no worse condition if the execution of the lease were decreed to-day, or if' it had been actually executed in February, or December, than if it had been executed on November 17 or on any day between the beginning of negotiations by Mr. Kamman and the final breaking off of the deal by Mr. Dorger.

We feel that a contract was so far entered into and was acted upon to such an extent by the EL J. Reedy Company as to make a court of chancery consider what relief, if any, in equity and good conscience, can be afforded.

The testimony of Walter Kamman that he had' no further interest in the lease and that he did not care anything about the IT. J. Reedy Company was probably true but must not be given too broad a significance. Ele probably no longer had any personal beneficial interest in the lease, but he had so acted and h,ad permitted the IT. J. Reedy Company to act to such an extent, all to the knowledge of Mrs. Spieker, as to make it inequitable for him to slip out or for Mrs. Spieker to let him go freed from the duty of acting as a “tertium quid” trustee, or agent, or in a capacity necessary to secure and preserve the rights which had accrued and were dependent upon him.

“That a court of equity has the power, in a proper case, to do full justice and confer a complete relief in one judicial proceeding, by giving damages in connection with some other kind of relief, and, even alone, is a familiar doctrine.” See “Damages given in place of Specific Performance,” Section Y, Pomeroy on Contracts, Section 469, p. 533; (Ed. of 1897) Sections 474 to 481, inclusive.

In the case at bar, we think both sides have made too much importance of the intervention of the trustees of the Cincinnati Southern Railroad Company by their suit in condemnation.

The coming along of this third and new interest was entirely without' the procurement of either party and was not caused by the delay in executing the written lease. We are not bound to assume that said trustees have agreed to pay a large price, a price exceeding the value of the property, at the time the lease was agreed upon. In proper theory the purchase by condemnation of the property by the trustees of the Cincinnati Southern Railroad Company and the price paid should work a detriment to nobody, or to no interest in the property, but should make everybody whole. Whatever of profit or advantage there may be in it, should be shared somewhat by all parties affected.

John B. Bayler, for the plaintiff.

Miller Outcalt and O. P. Gobi, for the TI. J. Reedy Company.

J. G. Healy and P. J. Dorger, for Mrs. Spieker.

On the other hand, the concern of a court of chancery in a case like this is to save parties from harm or loss and the court is not interested in securing any part of a speculative or accidental profit to anybody.

As a court of chancery always strives to conserve all interests which its decree may touch, and inasmuch as the proof requiring specific performance is not coercively strong, and since a lease executed under a decree for specific performance could endure but for a short time and would be immediately subject to the right of eminent domain of the Cincinnati Southern Railroad Company, the court in its effort to do complete justice is moved, in place of specific performance, to award to the H. J. Reedy Company such compensation as will make it whole and in view of all the circumstances will work no hardship to Mrs. Spieker.

We are therefore of the opinion that the TI. J. Reedy Company should receive the sum of $2,500 out of the sum agreed to be paid by the trustees of Cincinnati Southern Railroad Company, and that when said sum of $2,500 is so paid, the prayer for specific performance should be denied. In order to carry out this conclusion, the court says that if Mrs. Spieker refuses to pay said sum of $2,500, the prayer for specific performance will be granted; if Mrs. Spieker tender the $2,500 and it be not accepted by the TI. J. Reedy Company the prayer for specific performance will be denied: If the $2,500 is paid and accepted and the controversy thus concluded, the costs will be divided.