text:
    OFFICE AND OFFICERS.
    [Hamilton (1st) Court of Appeals,
    May 8, 1916.]
    Jones, Jones and Gorman, JJ.
    State ex rel. Gerhard Fischer, v. Cincinnati Pub. Serv. Dir.
    Temporary Appointment to Municipal Service before Act of 1913 Effective is Incumbent and Holds until Disqualified or Discharged for Cause.
    One given a temporary appointment to the municipal service during the year 1912 and prior to the furnishing of an eligible list by the civil service commission, after a competitive examination in which he participated, is an incumbent at the time the civil service law of 1913 went into effect, and is entitled ■to hold his position until he fails to qualify therefore or is discharged for cause; no rights were waived by his taking such competitive examination.

      MovMnier, Bettman <& Hunt, for relator.

      Charles A. Groom, city solicitor, and Saul Zielonka, Assist, city solicitor, for respondent.
   GORMAN, J.

The relator, Gerhard Fischer, avers in his amended petition that on May 16,1912, the mayor of the city of Cincinnati, to prevent the stoppage of public business, appointed him temporarily to the position of machinist of the filtration plant of the sub-department of waterworks in the city of Cincinnati; that he continuously occupied said position and performed the duties thereof up to and including November 9, 1914; that his occupancy of said position and the performance of the duties thereof were in accordance with and in pursuance of the orders of the director of public service of the city of Cincinnati duly issued and made in the course of the management by that 'director of said waterworks ; that at the time he was appointed to- said position the same, was and has ever since been and is now' in the classified service of said city; that no examination for said position, competitive or noncompetitive, was ever held or given by the civil service commission of said city until September 11, 1914; that on said day a competitive examination was held for all the positions of machinists of the subdepartment of waterworks of said department of public service, such examination covering the said position occupied by the relator as well as many other positions of machinists in said waterworks; that the relator took and passed said competitive examination; that the civil service commission of the said city has never held or fixed any time for a noncompetitive examination for relator of said position; that about November 6,1914, an eligible list for the positions of machinists in said subdepartment of waterworks was made up by said civil service commission from the list of those who passed said examination; that on November 6,1914, the said Philip Fosdick, then director of public service, issued and furnished relator with a copy of a pretended order of discharge to be effective November 9, 1914, containing as the exclusive and sole reason for the same the following: “for the reason he is a temporary appointee and civil service commission now has an eligible list;” that the eligible list referred to is the eligible list produced as the result of said examination of September 11, 1914; that since November 9, 1914, said Fosdick as director of public service, and his successor, Charles F. Hornberger, has refused to recognize relator as the occupant and incumbent of said position, and has refused to assign relator any work in said position or to permit him to do any work in said position, but has made an appointment of another person in place and stead of relator to perform the work of said position; that the director of public safety is the appointing officer of said position, and that at the time relator was laid off or discharged as aforesaid said director of public safety did not furnish relator with a copy of an order of discharge, lay-off, reduction or suspension, or with any reasons for the same except the above-named order and reasons of November 6, 1914. Relator prays that a writ of mandamus may issue ordering the director of public safety to recognize the relator as, from and after November 9, 1914, the incumbent and occupant of said position of machinist at the filtration plant at the waterworks.

To this amended petition of relator an answer was filed admitting most of the allegations of the petition; and admitting especially that the defendant, the director of public safety, issued and furnished relator with a copy of an order of discharge to be effective November 9, 1914, containing as the sole and exclusive reason for the same the following: “for the reason that he is a temporary appointee and civil service commission now has an eligible list,” the same reason set forth in relator’s petition. The defendant further says, that relator on August 29, 1914, made application for competitive examination for the position of machinist in the division of waterworks of the department of public service, pursuant to the ordering of and advertising same by the civil service commission of the city; that said examination was conducted according to law; and that relator pursuant to his application for admission to said examination appeared and took the same and" received an average of 71 per cent, and the rank of nineteenth on the eligible list, which was approved and posted September 25, 1914, as required by the statutes and rules of the civil service commission in such ease made and provided; that on November 7, 1914, relator was served with personal written notice that he was discharged for the reason that he was a temporary appointee and the civil service commission then had an eligible list and that his discharge would be effective November 9, 1914, at 5 o’clock P. M., and that he might make and file his explanation with the director of public service. Defendant further avers that the eligible list referred to in said order and reasons for discharge was the eligible list produced as a result of the examination held September 11, 1914, at which relator competed. The defendant further avers that the relator has not made or filed any explanation whatsoever. Defendant further avers in his answer that on November 6, 1914, a regular requisition to fill the vacancy in the position formerly held temporarily by relator was made by the director of public service as required by the statutes in such case made and provided, and three names from said list having higher grades and averages than the relator certified by the civil service commission from the eligible list for the position formerly held temporarily by relator, and from said eligible list and certification of the civil service commission of three persons qualified therefor the said director of public service made an appointment to fill the vacancy on November 10, 1914, as required by the statutes in such case made and provided. The defendant further says that in March, 1912, the said civil service commission by a unanimous vote of the members of said commission in regular meeting adopted rules and regulations, among which is rule 74, reading as follows:

“74. A temporary appointment to prevent the stoppage of public business or to meet extraordinary exigencies shall continue only until such time as the commission can certify persons from an appropriate eligible list to fill the vacancy.”

Defendant therefore prays that the petition and the amended petition be dismissed.

A demurrer has been filed to this answer for the reason that the allegations thereof are not sufficient in law to constitute a defense.

A. demurrer was filed to the answer to the original petition, and came on to be heard before Judges Spence and Pollock while they were sitting as judges in this district. And upon arguments and presentation of the law those judges found that the demurrer searched the record, and that the petition was insufficient in law and therefore sustained a demurrer to the petition and gave relator leave to file an amended petition, which was accordingly done. In the amended petition relator has sought to meet some of the objections made by the visiting court in sustaining the demurrer to the petition.

The first question to be determined is whether or not Fischer was legally removed or separated from his position or appointment. At the time this temporary appointment was made in 1912 many places in the city service were not in the classified list. Under the provisions of Sec. 4488 G. C., as it existed when Fischer was appointed, there was no eligible list from which an appointment could be made because the civil service commission had not held an examination and furnished such a list, and under the section above cited the appointing power was authorized to make a temporary appointment.

In 1913 the civil service law was amended so as to bring within its protection very many persons who previous to the adoption of the law were not on the eligible list. Under the law of 1913 (103 O. L. 703), it was provided, among other things, in Sec. 10, that:

‘ ‘ The incumbents of all offices and places in the competitive classified service, except those holding their positions under existing civil service laws, shall, whenever the commission shall require, and within twelve months after the rules adopted by the commission go into effect, be subject to noncompetitive examinations as a condition of continuing in the service. Kea-sonable notice of all such noncompetitive examinations shall be given in such manner as the commission may require, and all such noncompetitive examinations shall conform in character to those of the competitive service.”

As has been stated, when Fischer was appointed there was no eligible list, and during the time that he occupied the position down to September, 1914, the civil service commission had failed to conduct a noncompetitive examination or to give him an opportunity to submit to such an examination. The question presented is whether or not he was an incumbent of his place at the time the civil service law of 1913 went into effect? He was entitled to hold his position until he had been given an opportunity to take a noncompetitive examination. It was not his fault that he did not take such examination but it was the fault, if any, of the civil service commission of the city.

We are of the opinion that the proper construction to be placed on Sec. 10, of the law of 1913, is that Fischer was an incumbent of the place he occupied at the time this law went into effect, and as such he was protected by the civil service law and entitled to hold his position until he failed by either a competitive or a noncompetitive examination. In view of the fact that the character of the noncompetitive examination shall be the same as that of the competitive examination, we see no reason why Fischer, when he passed the examination in 1914, although that was a competitive examination, should not be entitled to hold as though he had passed a noncompetitive examination.

By the provisions of Sec. 17 of the civil service law of 1913:

“No person shall be discharged from the classified service * * * laid off, suspended or otherwise discriminated against by the appointing officer for religious or political reasons. In all cases of discharge, lay-off * * * or suspension * * * whether appointed for a definite term or otherwise, the appointing officer shall furnish the subordinate discharged, laid off * * * or suspended with a copy of the orders of discharge, lay-off * # * or suspension, and his reasons for the same, and give such subordinate a reasonable time in which to make and file an explanation.”

Under the civil service law of 1913, as we read it, there were two classes of incumbents: those who had been appointed under the civil service law theretofore existing, who had taken the examination or who had otherwise been appointed in conformity to the law; and those who had been appointed without an examination as temporary appointments. Section 10, of the law of 1913, requires all those persons who had been temporarily appointed, as a condition of their continuance in the service, to take a noncompetitive examination which should be of the same character as a competitive examination; all those persons who were in classified service who had taken an examination under the civil service law as it existed prior to the law of 1913 were protected and not required to take another examination. There were two classes of incumbents — those who had been appointed without an examination, and those who held by virtue of an examination taken under a previous civil service law.

In our opinion, therefore, Fischer was entitled to hold his place until he failed to pass a competitive or noncompetitive examination; or unless he was discharged for some cause or reason.

The Moores-Barnes law was passed and became effective September 1, 1915, about ten months after the discharge of Fischer and after this suit was commenced. Under this law no person is entitled to hold his place unless he has submitted to and passed a competitive examination, or unless he had been in the public service for at least seven years. When this law went into effect Fischer could have been discharged, because it is admitted that he had not been in the service for seven years, nor had he passed successfully, as one of the three highest a competitive examination. But at the time Fischer was discharged or released from the service the Moores-Bames law was not in effect and that law can not be invoked, in our opinion, to aid the defendant in his action in discharging Fischer.

It is claimed that by taking the competitive examination in 1914, Fischer waived his right to have the noncompetitive examination. This court is of the opinion that Fischer did not waive his right to hold the position, by taking a competitive examination. A person who is in the service, and who has been duly appointed after taking a successful examination, may nevertheless take a competitive examination for any position in the city service without waiving his right to hold his place or position.

Non constat but Fischer when he took a competitive examination was anxious to learn whether or not he would be eligible to appointment to some other place or position than that which he held in the city service. He was given no option to take a noncompetitive examination or a competitive examination, and therefore we are unable to see how he waived any right when the option was not given him to take a noncompetitive examination.

Further, it is claimed that by failing to give an explanation after he was released from the public service he is not entitled to maintain this action. No explanation which Fischer could give would affect his case. He was not removed from the service or discharged because of any conduct on his part, but because of the construction placed on the law of 1913 by the director of public service. His construction of the law was that as soon as an eligible list was furnished for the position which Fischer occupied he thereby automatically ceased to hold his temporary position, notwithstanding the fact that he had not been given an opportunity to take a noncompetitive examination. The construction placed upon the law of 1913 by the director of public service was that Fisher was not an incumbent of the office within the meaning of the law at the time the law of 1913 became effective. In this construction the court is not in accord with the director of public service. As has been stated above, we are of the opinion that he was an incumbent at the time the law of 1913 went into effect, and was entitled to the protection afforded him by that law.

The defendant further sets up the rule of the civil service commission passed in 1912, to the effect that temporary appointments shall continue until there is an eligible list. This rule was adopted under the civil service law as it existed prior to the taking effect of the law of 1913. The rules of the civil service commission could only apply to the state of law as it existed when the rules were adopted, that is, the law in force prior to 1913. A rule of the civil service commission inconsistent with the law of 1913 must necessarily fall when that law became effective, and therefore the rule invoked by the defendant, in force in 1912, could not aid the defendant in ousting the relator from his position because that rule was abrogated when the civil service law of 1913 went into effect making Fischer an incumbent.

Counsel for defendant cited to us the case of Shalvoy v. Johnson, 84 N. J. Law 547 [87 Atl. Rep. 471], in support of his contention that Fischer was not an incumbent at the time the law of 1913 went into effect. We have read the case and the facts upon which the law of that case was enunciated, and we are unable to see how it applies to the ease before us.

Upon a full consideration of the case, together with a consideration of the decision of Judges Spence and Pollock, this court has reached the conclusion that the demurrer of the relator to the answer filed to the amended petition should be sustained, as the same does not present a defense.

Jones, E, H., and Jones, O, B,, JJ., concur.


source: Caselaw Access Project

author: NIMAN, J.

license: Public Domain

text:
    CHATTEL MORTGAGES.
    [Summit (8th) Circuit Court,
    October 4, 1912.]
    Marvin, Winch and Niman, JJ.
    Harry Holub v. Kirk Co.
    Purchaser of Chattel Mortgage Selling Same Liable for Conversion.
    One who purchases of a mortgagor, a chattel upon which there is a properly executed and recorded chattel mortgage, and resells the chattel to a third person, is liable to the mortgagee in an action for conversion.
    Error.

      Holloway & Chamberlain, for plaintiff in error.

      Slabaugh, Seiberling & Huber, for defendant in error.
   NIMAN, J.

It appears from the agreed statement of facts, embodied in the bill of exceptions, that the Kirk Company, the defendant in error, sold to one Meredith a davenport of the value of $70.20; that a partial payment was made on the purchase price at the time of the sale, and a chattel mortgage on the davenport to secure the balance of the purchase price was given by Meredith to the company; that the mortgage was duly filed with the county recorder, and has ever since remained uncanceled; that at the time of the institution of the original action a balance of $15 remained unpaid on the purchase price of said davenport; that after the condition in said chattel mortgage had been broken, the said Meredith sold said davenport to Harry Holub, the plaintiff in error, who bought and paid for it without actual knowledge of the existence of the chattel mortgage; that thereafter the plaintiff in error sold said davenport to some person to him unknown ; that the value of said davenport at the time of its purchase and resale by the plaintiff in error was in. excess of $15; that the defendant in error, upon being apprised of what had taken place, demanded of the plaintiff in error, that he either surrender said davenport so that it might be subjected to the terms of said chattel mortgage, or pay to defendant in error the balance of $15 due it on the purchase price thereof; that plaintiff in error did not know, and did not have the means of ascertaining the location of said davenport and could not comply with the.demand to surrender the same, and neglected or refused to pay the bálance of the purchase price.

After the failure of the plaintiff in error to comply with the demand above mentioned, the defendant in error brought suit in a justice court to recover the balance of the purchase price due on said davenport. On the trial of the action on appeal in the court of common pleas, the plaintiff there recovered a judgment. A motion for a new trial having been overruled, this proceeding in error is prosecuted to secure a reversal of said judgment.

The sole question presented here is whether or not the plaintiff in error, in buying the davenport in question, covered by a chattel mortgage duly filed with the county recorder, and selling the davenport under the circumstances recited, can be held liable for conversion.

The legal wrong denominated “conversion” is defined in Cooley, Torts (3 ed.) 859, as being any distinct act of dominion wrongfully exerted over one’s property in denial of his right, or inconsistent with it.

The interest of a mortgagee under a chattel mortgage is that of a general owner of the property mortgaged. Robinson v. Fitch, 26 Ohio St. 659; Root v. Davis, 51 Ohio St. 29 [36 N. E. Rep. 669; 23 L. R. A. 445],

The defendant in error, by virtue of its chattel mortgage, was the general owner of the davenport. The chattel mortgage on file in the recorder’s office was constructive notice to the world of that ownership. When the plaintiff in error took said davenport under his purchase from Meredith and sold it again, he exercised acts of dominion over it which in contemplation of law were wrongful and in denial of the right of the defendant in error, and inconsistent with such right. His acts amounted to a conversion of the davenport, although he acted in good faith.

In Woolsey v. Seely, Wri. 360, it was held that the owner of a chattel, or one having a special property in it, coupled with the right to possession, may follow it into whosoever’s hands it may come, and make him liable in trover, if he shall have abused it, used it as his own, or done any act inconsistent with the rights of the owner, which is conversion.

The case of Kanaga v. Taylor, 7 Ohio St. 134 [70 Am. Dec. 62], is authority for the same proposition of law. It is true that in that case the defendant, who was an innocent purchaser of property covered by a chattel mortgage, was still in possession óf it when demand wTas made upon him for its surrender, but his refusal to deliver it to the owner on demand was no more inconsistent with the right of the owner than assuming and exercising the power to sell and dispose of the property would have been.

On the agreed statement of facts, the plaintiff below was entitled to a recovery, and the judgment is affirmed.

Marvin and Winch, JJ.. concur.


author: MERRIMAN, J.

text:
    ATTACHMENT AND GARNISHMENT.
    [Hamilton (1st) Court of Appeals,
    March 9, 1916.]
    Sayre, Merriman and Walters, JJ.
    Joslin-Schmidt Co. v. Joseph F. Herrmann.
    Affidavit for Attachment Executed Before Plaintiff’s Attorney not Validated by Substitution of Name of Another Notary.
    The rule that an affidavit in attachment can not be made before a notary public who is the attorney for one of the parties to the action has reference to the status of the parties at the time the affidavit is made. Hence, where an affidavit for attachment is made before plaintiff’s attorney acting as notary, the substitution by him of the name of another notary, after attempting to file the affidavit and petition, does not give the action life as against a motion to discharge the attachment.
    Error.

      George 8. Bailey and L. D. Oliver, for plaintiff in error.

      Cobb, Howard & Bailey, for defendant in error.
   MERRIMAN, J.

The record shows that Mr. D. S. Oliver had been the attorney for the plaintiff for many years, having general charge of all its legal matters. Mr. Oliver had been consulted about bringing this suit, prepared the necessary papers, signed the petition as attorney for the plaintiff, and as a notary public swore Mr. Schmidt, treasurer of the plaintiff company, to the affidavit in attachment. "When Mr. Oliver attempted to file the petition and affidavit in the court of common pleas the clerk suggested that he was disqualified from acting as both attorney and notar3>r, and he thereupon substituted the name of his brother, L. D. Oliver, as attorney, and filed the papers.

The court of common pleas discharged the attachment.

Plaintiff prosecutes error to this court.

In Leavitt v. Rosenberg, 83 Ohio St. 230 [93 N. E. Rep. 904], the court held:

"An affidavit in attachment can not be made before a notary public who is the attorney for one of the parties to the action. ’ ’

Mr. Oliver was the attorney for the plaintiff company at the time the affidavit in attachment was made by its treasurer, Mr. Schmidt, and he acted as the attorney in preparing the petition and affidavit.

We think the reason for the rule, as laid down in Ward v. Ward, 10 Circ. Dec. 656 (20 R. 136), and Leavitt v. Rosenberg, supra, contemplates the status of the parties at the time the affidavit is made.

The affidavit in question, therefore, never had legal existence, and no subsequent action by Mr. Oliver could give it life.

The judgment of the court of common pleas is affirmed.

Sayre and Walters, JJ., concur.


author: JONES, O. B., J.

text:
    STREET RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    January 10, 1916.]
    Jones, Jones and Gorman, JJ.
    Cincinnati Street Ry. et al. v. Cincinnati
    Payment Required of a Traction Company for Strengthening a Viaduct it no Longer Uses.
    The provision contained in the fifty year franchise granted by the city of Cincinnati to the Cincinnati Street Railway Company, that in the event the Liberty street viaduct should be reinforced by the city so as to make it safe for heavy vehicular traffic or electric cars the street railway company should be required to contribute $7,000 toward the expense thereof, was one of the conditions upon which the granting of the franchise was based, and the obligation thereby imposed upon the street railway company was neither abrogated nor in any manner modified by a subsequent ordinance providing for the removal of the oar line from the viaduct to other streets and to which removal the street railway company consented.
    ERROR.

      Joseph Willy and George 3. Warrington, for plaintiffs in error.

      Walter M. Schoenle, city solicitor, and Constant South-worth, Assist, solicitor, for defendant in error.
   JONES, O. B., J.

One of the many terms and conditions contained in the resolutions passed by the board of administration of the city of Cincinnati August 13,1896, providing for the extension of routes and franchises of the Cincinnati Street Railway for a period of fifty years under the so-called Rogers law, was Sec. 18 of said resolutions, as follows:

“18. Whenever the city of Cincinnati and the county of Hamilton, or either, through its authorized officers, shall desire to reinforce the Liberty street viaduct, situated on Liberty street between Garrard and State avenues, so that it will be safe for the operation of heavy vehicular travel or electric ears over the entire structure, the said the Cincinnati Street Railway Company shall be required to pay $7,000 towards defraying the expenses thereof. ’ ’

All the terms and conditions of said resolutions were accepted and agreed to by said company on the same day they were passed and a bond was then given for the faithful performance of all the provisions of said resolution.

In February, .1901, the Cincinnati Street Railway Company, with the consent of the city, leased to the Cincinnati Traction Company all of its properties, routes and franchises, subject to the terms and conditions of said resolutions of August, 1896.

Prior to September, 1909, the city, at an expense of much more than $7,000, to-wit. about $189,000, reinforced Liberty street viaduct so that it was safe for heavy vehicular travel. Demand was made by the city on the Cincinnati Traction Company for the payment of $7,000 toward this expense. This demand being refused, .suit was brought in the action below against both of the plaintiffs in error, as defendants, for the recovery of said sum.

The county of Hamilton originally built this viaduct and it was afterwards taken over by the city some time prior to the passage of said resolutions, at which time horse cars were being operated over it as part of what was called the Seventh street route.

Similar answers were filed by each of the defendants, setting up two defenses:

The first defense was to the effect that said Seventh street route had been, under resolutions of the board of public service of the city agreed to by the traction company, changed so that it no longer extended from Liberty street over said viaduct to State avenue, but instead ran from the intersection of Dalton' avenue and Liberty street to the base ball park at the intersection of Findlay and McLean avenues. Since the construction of the necessary tracks the traction company has operated its Seventh street route over the new route, so changed’ with its terminus at the base ball park, and no electric cars were ever operated over said viaduct. There are no street car tracks, nor is' there any provision for them on said viaduct as reinforced by the city in 1909, but all tracks and rails were removed from the viaduct, as it existed in 1896, by the city or by the street railway company with the assent of the city, shortly after the date of the resolutions of August 13, 3896, and no tracks have been constructed thereon since.

The. second defense in defendants’ answer denied that the viaduct had been so reinforced by the city as to make it safe for the operation of electric cars over the entire structure, alleging that it was not safe for the operation of electric cars and heavy vehicular travel, and was unsafe- for the practical operation of electric cars of the present type, and that to so operate would be dangerous to cars and passengers as well as to pedestrians using said viaduct.

A demurrer was sustained to the first defense of the answers, defendants each reserving an exception. Upon trial, plaintiff having offered evidence to sustain all of the allegations of the petition, defendants then offered evidence to prove the several allegations set out in the first defense of their respective answers, which had been stricken out by the sustaining of plaintiff’s demurrer. This evidence was excluded by the court, to which defendants excepted and offered no further evidence, but requested an instructed verdict in their favor, on the following grounds:

(1) That the plaintiff has offered no evidence tending to prove that the Liberty street viaduct has been reinforced so as to be safe for the operation of electric ears over its entire structure.
(2) That the evidence shows that the city of Cincinnati and the defendants had agreed to abandon the use of the Liberty street viaduct for street railway traffic.
“ (3) That no provision has been made or was ever made in the reinforcement of the Liberty street viaduct for the operation of street railway cars; and that there has been a failure of the consideration stipulated to be paid by the defendants as set forth in paragraph 18 of the resolutions of August 13, 1896. ’ ’

The court charged the jury—

“that if you find from the evidence that this resolution, known as paragraph 18 of the franchise described, was passed and accepted by the Cincinnati Street Railway Company, that it thereupon became a binding contract between the two p'arties; 'and if the city of Cincinnati reinforced the Liberty street via-dnct so that it was safe for heavy vehicular travel, these companies, the defendants herein, would be liable for the amount claimed, which they agreed to pay. ’ ’

A verdict was returned for plaintiff, upon which judgment was entered.

Plaintiffs in error urge that a proper construction of clause 18 of the franchise resolution requires that as a condition of payment of the $7,000 the viaduct must not only be made safe for the operation of heavy vehicular travel, but also for electric cars. In other words, that the word “or” should be made to read “and.”

This argument is based upon the idea that the reinforcement of the viaduct would be of no special benefit to the traction company unless its cars could run over it, and that it had no interest in the matter of its use for other heavy vehicular travel. Such an argument might well be used as an objection to the acceptance of the franchise clause in the form in which it was written. But it is one of the many conditions found in that franchise. Counsel for the traction company concede that it might have been drawn to provide for an absolute payment of $7,000 simply upon the acceptance of the grant, or at any particular time or on the happening of any particular event. It does so provide for the payment upon the reinforcement of this viaduct to be sufficient for either of two purposes. The traction company may have had no interest in any vehicular travel upon the viaduct other than the electric cars; the city, however, had an interest in such other vehicular traffic, and this condition was for the benefit of the city and was therefore inserted in the alternative form in which we find it. If, as counsel contend, the present heavy type of electric car — which is considerably heavier than any other present form of “heavy vehicular travel” — was then in contemplation and must be provided for before the payment can be demanded, then the use of the words “heavy vehicular travel” would be superfluous.

The language as written does not make the continued use of the viaduct for street railway purposes a prerequisite to enforce payment. It is conceded that the route was abandoned and that the tracks were removed by the consent of defendants below. If by such change it had been intended to relieve the traction company from the payment required from it by clause 18, it might well have been so provided in the resolutions as one of the conditions of the change of route. The fact that this was not done must be construed to show that the parties to the agreement did not regard the continued use of the viaduct as in any way essential to the obligation to pay such a small part toward the repair of a structure that had been previously used by horse cars without, so far as is shown by the record, any contribution to its cost or maintenance by the street railway company. The proportionate share of cost, which may be charged against a traction company where a viaduct is constructed for the abolition of a railroad crossing at grade, is allowed by statute (See. 8892 Gr. C.) to be so much greater a percentage that the small amount here provided could hardly be deemed to have been intended as the proper share of the necessary cost to be borne by the traction company for the continued use of the viaduct for electric cars during the life of the franchise.

The fact that the change of route, made with the consent of the traction company, has taken away its right to now occupy the viaduct makes it of no importance to it whether the reinforcement made has or has not so strengthened the viaduct as to support the operation thereon of electric cars.

In the construction of ambiguous language, both of laws and of contracts, courts have at times found it necessary to change the word “and” to “or” and vice versa. But no case will be found which would authorize such change in the language under consideration. In fact, in the opinion of the court, the words' used in clause 18 are clear and without ambiguity, and no occasion arises requiring interpretation of the language used, contrary to its plain meaning. Slingluff v. Weaver, 66 Ohio St. 621 [64 N. E. Rep. 574],

If there were any doubt in the matter as to the construction of this franchise condition, that most favorable to the city should be adopted. East Ohio Gas Co. v. Akron, 81 Ohio St. 33, 52 [90 N. E. Rep. 40; 26 L. R. A. (N. S.) 92; 18 Ann. Cas. 332]; Wabash Ry. v. Defiance, 52 Ohio St. 262, 307 [40 N. E. Rep. 89]; Cincinnati v. Railway, 22 Dec. 723 (12 N. S. 305); Detroit U. Ry. v. Detroit, 229 U. S. 39 [33 Sup. Ct. Rep. 697; 57 L. Ed. 1056].

The duty of making this payment of $7,000 towards the expense of reinforcing this viaduct thus being one of the obligations imposed by the terms of the franchise, Secs. 9102 and 3771 G. C. forbid any release therefrom by the officers of the city.

Judgment affirmed.

Jones, E, H. and Gorman, JJ., concur.


author: JONES, E. H., J.

text:
    BASTARDS — PARENT AND CHILD.
    [Hamilton (1st) Court of Appeals,
    February 7, 1916.]
    Jones, Jones and Gorman, JJ.

      State of Ohio v. John Bone.
    1. Testimony of Abandoned Wife of Nonaccess of Husband Competent in Criminal Prosecution of Putative Father.
    The wife is a competent witness to testify to the nonaccess of her recreant husband, in a criminal case against the putative father of her illegitimate child, for failure to provide said child under sixteen years of age, with necessary and proper food, clothing and shelter, under the provisions of Sec. 12970 G. C.
    2. Putative Father of Bastard Child cannot be Prosecuted in Municipal Court for Neglect to Provide.
    The father could have been prosecuted under either Sec. 12970 or Sec. 13008 G. C., but prosecution under the latter section, could not be had in the municipal court.
    ERROR.
    The husband of the prosecuting witness, Mrs. Barber, at the time of the filing of the affidavit in this case had abandoned her and had been missing for nearly three years. Bone, the defendant, had occupied the relation of husband to Mrs. Barber for about two years, during which time she became pregnant and was abandoned by him. After the birth of the child he refused to provide for it, and this proceeding was commenced in the municipal court of Cincinnati, to compel him to do so. At the trial of the case the wife and mother of the child was offered as a witness to prove the nonaceeas of her husband, and against the objection of defendant’s counsel was permitted to testify to that fact. It was contended by counsel for defendant that this was error and that the defendant could not be prosecuted under the provisions of Sec. 12970 G-. C., but that the prosecution should have been brought under the provisions of Sec. 13008, which in express terms provides for the prosecution of the father of illegitimate, as well as legitimate children, while See. 12970 does not make such provision. The defendant was convicted; error was prosecuted to the judgment of the municipal court to the court of common pleas, which reversed the municipal court; to the judgment of reversal error was prosecuted to this court.

      John V. Campbell, Pros. Atty., Walter M. Loche, Assist. Pros. Atty., Ellis B. Gregg, representing the Ohio Humane Society, for plaintiff in error.

      John W. Cowell, for defendant in error.

      Motion to certify record overruled, Bone v. State, 61 Bull. 152.

   JONES, E. H., J.

Defendant was convicted in the municipal court of failure to provide for his seven months’ old child. The court of common pleas, whose action is under review, reversed the judgment. We think it erred in so doing.

There was testimony of several witnesses showing nonaccess of the recreant husband of Mrs. Barber, the mother of the child. The testimony, together with letters and statements of the accused admitting that he is the father of the child, were sufficient to justify conviction. Every word of the evidence seems admissible and was given by competent witnesses. There can be no question but that the father could have been prosecuted under either Sec. 12970 or 13008 G. C., although prosecution under the latter section could not be had in the municipal court.

So finding, it follows that the judgment of the common pleas court will be reversed, and that of the municipal court affirmed.

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


author: JONES, O. B., J. Jones, E. H., J,,

text:
    CONTRACTS — INJUNCTIONS.
    [Hamilton (1st) Court of Appeals,
    July 11, 1916.]
    Jones, Jones and Gorman, JJ.
    Queen City Cleaning Co. v. William B. Davis.
    One Selling Window Cleaning Business Including Good Will and Agreeing not to Reengage in Same Business Enjoinable.
    One selling a window cleaning business, including the good will and with the express agreement that he would not engage in the same line of business in the same city or vicinity for the period of ten years, may be enjoined from starting a new business of the same character within the same territory, but he can not be prevented from earning a livelihood at that class of work.

      Matthews, Klein & Scanlon, for plaintiff.

      Hunt, Bennett & Utter, for defendant.
   JONES, O. B., J.

This action was tried on appeal. Plaintiff was engaged in the house and window cleaning business in Cincinnati and .vicinity, having built up and established a trade and business in the cleaning of windows and general house-cleaning and having secured many customers who .regularly had their cleaning done by them.

The defendant, William R. Davis, doing business as the Crystal Window Cleaning Company, William R. Davis, proprietor, also had a similar business in the city of Cincinnati, with a list of numerous regular customers who had their cleaning done by him, and he had the stock and fixtures necessary for such business.

On November 9, 1915, plaintiff and defendant entered into a written contract whereby the defendant in consideration of $172.50 paid to him in cash, sold to the plaintiff all stock in trade, fixtures, paraphernalia, tools of trade and office equipment, and all contracts of every kind excepting book accounts, bills receivable and moneys due and belonging to the Crystal Window Cleaning Company, William R. Davis, proprietor; also the good will established by said Davis in connection with said business of the Crystal Widow Cleaning Company in the city of Cincinnati and vicinity. And as part of the consideration of said contract and the payment of said money, defendant further agreed that he would not during the ten years next ensuing after November-9, 1915, either as an individual or as a company or corporation, directly or indirectly, engage, in the city of Cincinnati and vicinity, in the house and window cleaning business, and that he would refrain from starting, conducting, managing or encouraging a like or similar business within said territory for said ten years, and would in no way come in competition with plaintiff or interfere with its business or customers.

After the sale of said business, the defendant was employed by the plaintiff at a salary, to assist plaintiff in said business, and remained in such employ until April 24, 1916, when the defendant left the employ of the plaintiff and begun and still continues in the house and window cleaning business contrary to the terms of his contract, and has solicited the business and trade of his former customers, a list of whom had been furnished to the plaintiff company, and has undertaken to again secure their patronage in house and window cleaning. Plaintiff alleged that the defendant is not responsible financiálly, and that an action at law for damages would be wholly inadequate to prevent damage and injury to plaintiff resulting from the violation of said agreement, and that unless defendant is restrained from continuing to carry on said business an irreparable injury would be suffered by the plaintiff; and plaintiff prays for an injunction from the court, to restrain defendant from violation of his contract.

The evidence shows that the contract was entered into between the parties as alleged, and that the plaintiff purchased and paid for the business and good will of the defendant in his former business, under said contract. And as part of the transfer under said contract defendant turned over to plaintiff a list of customers with whom he had subsisting contracts for the cleaning of windows and other work. It further appears that the defendant did leave the employ of plaintiff April 24, 1916, as alleged, and went into business with one Jaeon Gilman, cards for such business having been printed in the name of ‘' City House and Window Cleaning Co., J. Gilman, Prop., W. E. Davis, Mgr., House, Office and Window Cleaners,” the printing on this card being set up in the form and position of type similar to that used on the card of the Queen City Cleaning Co.

It further appears that the defendant had. directly solicited work for the new firm from former customers.

The law as to agreements in restraint of trade is stated by Minshall, J., in the opinion of the court, on page 602, in the case of Lufkin Rule Co. v. Fringeli, 57 Ohio St. 596 [49 N. E. Rep. 1030; 41 L. R. A. 185; 63 Am. St. Rep. 736], in the following words:

“It is the settled rule in this state that all agreements in general restraint of trade are against public policy and void; but it is held that agreements that only impose a partial restraint, made in connection with the purchase of a business, that are reasonably necessary to make' available the good will purchased with the business, and are reasonable and not oppressive, may be enforced. The ease of Lange v. Werk, 2 Ohio St., 519, is the leading one on the subject.”

In the opinion of the court, in this case plaintiff is entitled to a judgment enjoining the defendant from soliciting any of the former customers of the business carried on by him under the name of the Crystal Window Cleaning Company, the sale of which was made to the plaintiff, or from interfering in any way with the business of the plaintiff company as acquired by it under said purchase from the defendant.

But in so far as the contract between the parties undertook to limit the right of the defendant to practice his trade or engage in his work as house and window cleaner, the court will not interfere. This work is of a menial character, and to permit a man to restrain himself by contract from earning a livelihood in this class of work, in which he may become proficient, would be contrary to public policy.

Gorman, J, concurs.

Jones, E. H., J,,

dissenting.

The portion of the contract upon which this action is based, which provides that the defendant, Davis, -shall not engage in the work of cleaning windows within the city of Cincinnati for a period of ten years, is unreasonable and vitiates the entire contract.

The evidence shows that Davis was nothing more than an ordinary day laborer, and no matter how limited the territory might be in which the restriction operated, the contract or agreement because of its being unreasonable and against public policy is void. This being so, a court of equity should not recognize it or grant any relief based upon its terms.

But even if the contract be binding, no damage is shown by the defendant which is irreparable and which could not be compensated in a court of law.

For these reasons I dissent from the decision above announced.


text:
    LANDLORD AND TENANT.
    [Hamilton (1st) Court of Appeals,
    December 6, 1915.]
    Jones, Jones and Gorman, JJ.
    Julius C. Cloud et al v. David Peller.
    Replacing Foundations and Walls of Leased Building not Repairs.
    The necessary replacing of foundations and walls of a leased building are not in tbe nature of repairs, and the lessee is entitled to a rebatement of rent for so much of the building as he was obliged to surrender possession of during the time such rebuilding was in progress.
    ERROR.
    C. H. Iloffm.eAster, for plaintiff in error.

      Horstman & Horstman, for defendant in error.
   JONES, O. B., J.

The leased building having been so damaged by the settling of its foundation that it became necessary to reconstruct a material part of it by reason of an order from the city building inspector requiring such work to be done, said work was done by lessors under an agreement between lessors and lessee by which it was provided that the lessee would continue to occupy all of the building not rendered untenantable by reason of such damages and reconstruction, retaining five dollars per month as the value of such unused portion, pending its reconstruction; and that the question as to whether it was the duty of the landlord or of the tenant to pay the cost of said work, should be determined by the courts. If it should be decided that it was the duty of the tenant to pay such cost then he would also pay the portion of the rental retained; but if it should be determined that it was the duty of the landlord to pay such costs, then the tenant should be deemed to have paid the rent in full for the period during which he was unable to occupy the entire building; and it was provided that the rights of said parties should be in no way prejudiced by said arrangement.

' In the opinion of the court this work of taking out and rebuilding the foundations and walls of the house as done under the agreement could not be considered in the nature of repairs which in the contemplation of the parties were to be made by the lessee under the provisions of his lease, and he is not Hable for the cost thereof. Said provision is as follows:

"Lessors agree to beep the roofs and down spouts of the 21-2 story brick residence in good repair during the term of this lease; all other repairs to be made by said lessee at his expense.”

The terms of Sec. 8521 G-. C., apply, and the lessee might have surrendered possession of the entire property upon such material portion thereof becoming unfit for occupancy. Instead of so doing the agreement above set out was entered into, and under its terms the lessee is relieved from the payment of that part of the rent deemed an equivalent for so much of the premises as he was unable to use.

The judgment is therefore affirmed.

Jones, E. H. and Gorman, JJ., concur.


author:
GORMAN, J.
      Jones, E. H., J.,

text:
    MASTER AND SERVANT — NEGLIGENCE.
    [Hamilton (1st) Court of Appeals,
    July 6, 1915.]
    Jones, Jones and Gorman, JJ.

      Cincinnati Trac. Co. and Adams Express Co. v. John Wynne.
    1. Negligence of Driver of Express Company’s Wagon not imputed to Wagon Boy.
    The negligence of the driver of an express company’s wagon cannot be imputed to the wagon boy, who was to some extent under the direction of the driver, and whose business it was to keep watch that no packages were lost or stolen; nor can it be said that the driver and boy were engaged in a joint enterprise; whether or not they were fellow servants was a question properly left to the jury under the evidence adduced.
    2. Question of Liability of Joint Tort Feasors Submitted to Jury.
    Where two parties have been made defendants as joint tort feasors, the question may properly be submitted to the jury whether the injury complained of was due to the concurrent negligence of both, or whether it was caused by the negligence of either.
    3. Remittitur for Excessive Damages for Loss of Leg of Boy.
    The court regards a judgment of $10,000 in favor of a fourteen year old boy for the loss of a leg as excessive, and the plaintiff below is given the choice of acceptance of $7,500, or a reversal.
    ERROR.

      Robertson & Bnehwalter, for Adams Express Co.

      G.eorge H. Warrington and Robert S. Marx, for Cincinnati Traction Co.

      Littleford) James, Ballard & Frost, for defendant in error.

      Affirming with further remittitur, Wynne v. Traction Co. 26 Dec. 000, with the exception of the amount of damages to be allowed.

   GORMAN, J.

On November 7, 1911, about 6:30 P. M., a street car of tbe Cincinnati Traction Company and a wagon of tbe Adams Express Company collided at the corner of Ninth street and Freeman avenue in the city of Cincinnati. As a result of this collision James Russell Wynne, a fourteen year old wagon boy employed by the Adams Express Company, was thrown from the wagon and sustained injuries which required the amputation of his left leg about three inches below the knée. John Wynne, his guardian, commenced this action against both defendant companies as joint tort feasors.

The plaintiff in his petition alleged that the boy was injured as the result of the concurrent negligence of the two defendant companies and that the negligence of both was the proximate cause of the boy’s injuries. It was claimed that the negligence of the traction company’s employee consisted in running the ear at a high and excessive rate of speed without giving any warning of its approach and without the motorman being on the lookout and without having his car under proper control. Plaintiff alleged that the negligence of the Adams Express Company was that the driver of the wagon upon which the boy was riding, was in driving at a high and reckless rate of speed and that the driver failed to keep a lookout when approaching the crossing at Ninth and Freeman streets. The boy was standing upon the rear part of the wagon, which was heavily loaded, where it was his duty to stand as assistant to the driver of the wagon. When the collision occurred the wagon was struck near the left hind wheel and the boy was thrown under the wheels of the street car and his left leg was badly mangled, so that an immediate operation and amputation were -necessary.

Upon the trial of the case the jury returned a verdict in favor of the plaintiff as guardian of James Russell Wynne in the sum of $15,000. The- trial court on the application for new trial .found the verdict excessive in the sum of $5,000, and decided that a new trial would be granted unless the plaintiff would consent to a remittitur. Plaintiff accepted this reduction and judgment was entered in his favor for $10,000. The cause is now in this court on error to reverse the judgment of the court of common pleas.

The Cincinnati Traction Company, plaintiff in error, claims that the negligence of the express company’s driver was the sole proximate cause of the boy’s injury, while the Adams Express Company claims that the sole proximate cause of the boy’s injury was the negligence of the motorman of the traction company.

This is one more instance of the thousands which have occurred since the comedy enacted by Adam, and Eve in the Garden of Eden, where each sought to excuse misconduct by shifting the blame on to the other or the serpent.

We are satisfied that each of the plaintiffs in error has demonstrated that the other was guilty of negligence proximately contributing to the injury of the boy. We think the evidence in this case was sufficient to warrant the jury in finding that the negligence of both the traction company’s motorman and the express company’s driver contributed directly and proximately to the injuries of this boy. The negligence of the driver of the wagon could not be imputed to the boy. He had no part in the driving of the wagon nor any control over'the driver; his place was on the rear end of the wagon, and he was standing there when he was injured.

It was proper to submit the question to the jury, as the court did, whether or not the boy’s injury was the result of the concurrent negligence of the two defendants below or whether it was the result of the negligence of either.

It is claimed by the traction company that the driver of the wagon and the wagon boy who was hurt were engaged in a joint enterprise, and therefore the boy can not recover if his injury was caused or partly caused by the negligence of the driver of the wagon.

We are unable to say on the evidence in this ease- that the boy and the driver of the wagon were engaged in a common enterprise because they happened to be employed by the same employer and were both upon the wagon at the time the boy was injured. There was evidence tending to show that the driver of this wagon had authority and direction over the boy and that he was the assistant to the driver, and that the driver gave orders to the boy as to what he was' to do. We think the jury were warranted in finding that the driver was a superior of the boy and stood in the place of his employer, the Adams Express Company, in his relation towards the boy. The boy had nothing to do with the driving of the team; he was not even sitting upon the front seat with the driver. No part of his duties required him to either drive the team or to keep a lookout for the driver. He had no interest whaisoever in the driving of the team, and we can see no application in this case of the rule laid down in New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130]. If the boy and the driver had owned the wagon and were using it in the prosecution of their joint business, then there might be some foundation for the claim that they were engaged in a joint enterprise. Toledo & O. C. Ry. v. Fippin, 32 O. C. C. 755 (33 N. S. 125).

it is claimed by both the plaintiffs in error that the amount of the damages is excessive even after the remittitur made by the trial court, and this court is of the opinion that a $10,000 verdict would be excessive under the circumstances. The boy’s left leg below his knee has been lost, and there is no doubt but that he suffered great pain and anguish, but so far as his ability to earn a livelihood is concerned we think that will not be impaired to the extent claimed by his counsel. Upon a full consideration of this question we are of the opinion that $7,500 would be ample compensation in this case, and that there should be a remittitur of $2,500 from the amount of the judgment entered by the court below. This court is authorized, in the exercise of a sound discretion, to make the acceptance of this remit-titur of the excess a condition of refusing to grant a new trial, upon the authority of Pendleton St. Ry. v. Rahmann, 22 Ohio St. 446.

It is claimed by counsel for the Oincinnati Traction Company that the court erred in charging the doctrine of “last chance ’ ’ in this case'. As we read the charge given by the court at the request of counsel for the Adams Express Company it does not involve the “last chance” doctrine. In order to make a “last chance” case it would have been necessary for the boy only to have been guilty of contributory negligence, and although this plea was set up by the traction company we are not able to find any evidence in the record to support the claim of contributory negligence. It is quite certain that the boy was not placed in a perilous position by reason of his own negligence, but it was by reason of the negligence of the driver of the wagon.

We think that special charges Nos. 4 and 6 complained of were warranted under the rule laid down in Steubenville & W. Trac. Co. v. Brandon, 87 Ohio St. 187 [100 N. E. Rep. 325]. This was a collision at a street crossing, and there was no “last chance” question raised in the case. Nevertheless, Judge Spear in deciding the case uses the following pertinent language, on page 196:

“But, assuming that Brandon was guilty of some negligence in driving on the track, yet if the motorman, in the exercise of ■even ordinary care, after he' saw the horse and appreciated Brandon’s peril, had time and opportunity to avoid the possible consequences by checking the ear, and neglected to so exercise such care, such neglect would be negligence and might properly be regarded as the proximate cause of the injury.”

As we have said, the negligence of the driver can not be imputed to the boy, and therefore if we assume that the driver was guilty of negligence which contributed proximately to the injury of the boy, nevertheless that situation does not present a “last chance” case. '■ •

We find no errors in the general charge, nor do we find that the boy was guilty of any contributory negligence.

We are of the opinion that the traction company and the express company were joint tort feasors in this ease, and that the case of Kopp v. Railway, 25 O. C. C. 546 (6 N. S. 103), affirmed, no op., Baltimore & O. S. Ry. v. Kopp, 71 Ohio St. 484, and the ease of Cincinnati St. Ry. v. Murray, 53 Ohio St. 570 [42 N. E. Rep. 596; 30 L. R. A. 508], as well as other cases of a similar kind, support this claim of the defendant in error that the plaintiffs in error were joint tort feasors.

The Adams Express Company claimed' that the wagon boy and the driver were fellow servants. The court submitted that question to the jury under the evidence, and the jury found that they were not fellow-servants. We think there was evidence sufficient to warrant the jury in reaching this conclusion. Counsel for the traction company complain of error on the part of the court in allowing the cause to proceed after one of the jurors became ill and complained of not feeling well, although he continued and Sat in the case with the other jurors until the ease ivas finally disposed of. He complained of pains in hi's leg, and counsel for the traction company urges that his mind was so occupied with his own misery and pains that he was unable to give the traction company or the express company a fair trial. The juror did not ask to be excused, and the court did not excuse him. He continued to serve, and, for all that appears in the record, his affliction did not affect the verdict. We see no good reason why a reversal of this c’ase should be predicated on a claim of this kind.

Upon an examination of the entire record we are of the opinion that the defendant in error should submit to a reduction of the judgment in the sum of $2,500, and if it does so, the judgment will be affirmed; otherwise it will be reversed, because in the opinion of the court the verdict and the judgment are excessive.

Jones, O. B., J., concurs.

Jones, E. H., J.,

dissenting:

I can not concur in tbe opinion that the judgment is; excessive, and favor its unconditional affirmance.


text:
    CONTRACTS.
    [Hamilton (1st) Court of Appeals,
    May 15, 1916.]
    Jones, Jones and Gorman, JJ.
    J. M. Dawson v. Fred W. Myers.
    Guaranty of Efficiency of Heating System not Met by Substantial Compliance in Design, etc.
    Under a contract for furnishing a heating system with a written guaranty as to its efficiency, the guaranty as to heating power must he met, and this is not done by showing substantial compliance with the specifications in the matter of design, material and workmanship.

      J. M. Dawson, for plaintiff in error.

      Kramer & Bettman, for defendant in error.
   JONES, E. H., J.

The judgment below will be reversed for error in the general charge wherein the court invoked the rule of substantial performance. This rale is applicable to building contracts where a departure from the specifications with reference to material of workmanship, etc., is the question in dispute. But we have here a contract for the furnishing of a heating system, with a written guaranty as to its efficiency. In such case the guaranty as to heating power must be met, and such requirement is not met by .showing a substantial compliance with the specifications in the matter of design, material and workmanship.

It follows that the following special charge requested by plaintiff below, and refused, should have been given:

‘ ‘ There being no allegation in the answer and cross petition that the plaintiff, J. M. Dawson, waived any of the provisions of the contract between.him and Myers, the guaranty of Myers that the heating system installed by him should produce seventy degrees of heat in all the rooms containing, radiators when the thermometer stood at zero on the outside, heat maintained continuously, was a continuous guaranty, and if you find that there was a failure of the plant installed by Myers to maintain such heat with proper firing and attention, the defendant, Myers, can not recover on his cross petition, and it will be your duty to find what damages, if any, the plaintiff sustained by the failure of Myers to furnish a system providing such heat.”

"We find no other errors in the record.

Judgment reversed.

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


author: GORMAN, J.

text:
    JUDICIAL SALES.
    [Hamilton (1st) Court of Appeals,
    May 25, 1915.]
    Jones, Jones and Gorman, JJ.
    Joseph Griefenkamp v. Robert J. Cresap, et al.
    Judicial Sale Invalidated by Failure to Give House Number in Advertisement.
    Failure to give the house number of property which is being advertised for judicial sale is an irregularity which invalidates the sale.

      0. W. Baker, for plaintiff.
    W. G. Burrell, W. C. Meyer and F. K. Schmuck, for defendants.
   GORMAN, J.

This ease is here on appeal from a decree of the common pleas court.

We are of the- opinion that a decree should be entered in this court such as the one entered in the court of common pleas, upon the reasoning of the trial judge in the opinion announced by him; and for the further reason that the sale made under the proceedings to sell for the tax lien, was not in conformity with the provisions of Sec. 11678 G. C., which was in force at the time of the sale, 1905, and among other things provides:

“All notices and advertisements for the sale of lands and tenements located in a city or village in this state, made by virtue of proceedings in a court of record therein, in addition to a description of such lands and tenements, shall contain the street number of the building or buildings erected 6n the lands, or the street number of'the lots offered for sale. If no such number exists, then the notice or advertisement must contain the name of the street or road upon which such lands or tenements aré located, together with the names of the streets or roads immediately north and south or east and west of such lands and tenements, that cross or intersect the street or road upon which they are located. ’ ’

The advertisement made by the sheriff in the ease in which the premises were sold by the sheriff, No. 131768 court of common pleas, omitted entirely to give the house number upon the east twenty-five feet of lot No. 80, which was one of the lots sold in said proceedings and bought in by William C. Meyer. While it is true that the parties may have mistakenly believed that a vacant lot was being sold, nevertheless, as a matter of fact it was not a vacant lot but there was a substantial house thereon, and we are of the opinion that the failure to comply with this statute was such an irregularity as would invalidate the sale.

The defendant, William C. Meyer, under the provisions of Sec. 5767 G. C., would be entitled-to have refunded to him the amount of the purchase money with interest thereon, together with the taxes subsequently paid by him, and interest on the same from the dates of payment. This, we understand, is what the court below decreed to him.


text:
    CONDITIONAL SALES.
    [Butler (1st) Court of Appeals,
    1913.]
    Swing, Jones and Jones, JJ.
    Charles Oglesbey v. National Box Board Co.
    Attaching Vendor’s Statement to Conditional Sale Contract by Fasteners Sufficiently Placed “Thereon."
    Section 8568 G. C., relating to conditional sales of property, is sufficiently complied with if the statement required to be placed “thereon” under oath, made by the vendor or his agent, is written upon a separate piece of paper and attached by means of fasteners to the conditional sale contract. National Cash Register Co. v. Closs, 32 O. C. C. 649, denied.
    Error.

      Stanley Shaffer, B. F. Ear wits and W. C. Shepherd, for plaintiff in error.
   JONES, E. H., J.

The question decided by the court below, from whose judgment this error proceeding is prosecuted, arose upon an intervening petition filed by plaintiff in error, the Hooven, Owens & Bentsehler Company, claiming title to an engine which it had previously sold to the National Box Board Company, which company later went into the hands of a receiver. This controversy is between the mortgagees and general creditors and the vendor of the engine, plaintiff in error here, and presents the question whether or not the engine shall be considered as general assets of the concern, and whether or not it will be sold and the proceeds applied generally towards the payment of debts, or whether it remains the property of Hooven, Owens & Bentsehler Company under the terms of conditional sale, which was evidenced by a paper writing in the ordinary form as provided by Sec. 8568 G. C., and duly filed by them in the recorder’s office. This conditional sale is attacked by the general creditors as not binding by reason of the fact that the statement required by Sec. 8568 to be “thereon” under oath made by the vendor or his agent, is not in compliance with the statute in that it is not written upon the same piece of paper as the copy of the contract, but upon a separate piece of paper and attached by means of brass fasteners to said copy of the conditional sale contract, which itself consisted of several pieces* of paper attached together by similar fasteners.

Defendant in error, in support of its contention, relies upon the case of National Cash Register Co. v. Closs, 32 O. C. C. 649 (12 N. S. 15). It appears that case supports the contention here made by the defendant in error, as well as the judgment of the lower court; but on careful consideration of the question here presented we feel that we are not bound by that decision and therefore must decline to follow it. The decision in that case seems to have been based upon the conviction that the word “thereon” had the same force and effect as had the language in regard to the acknowledgment of a deed in Sec. 8510 G. C., which expressly provides that the certificate must be on the same sheet on which the instrument is written or printed and which was construed in Winkler v. Higgins, 9 Ohio St. 599, to require strict compliance in order to make a valid deed. But the case of Norman v. Shepherd, 38 Ohio St. 320, held good a mortgage which was written on several sheets with a material part the testatum clause, upon the same sheet as the certificate of acknowledgment.

We are of the opinion that the requirements of Sec. 8568 have been sufficiently complied with in the preparation and filing of the contract of conditional sale, and that it reserved to the Hooven, Owens & Rentehler Company title in said engine against the claims of all creditors of the National Box Board Company, including the prior mortgagees.

Upon the other question involved in this case, viz., as to whether or not this engine became a fixture, we are clearly of the opinion that it did not; that it remained personalty in accordance with the terms of the contract which evidenced the intention of the parties and was notice to all persons.

It follows that the judgment of the lower court should be reversed and judgment entered for the vendor, plaintiff in error.

Swing and Jones, O. B., JJ., concur.


author: POWELL, J.

text:
    AUTOMOBILES — NEGLIGENCE.
    [Licking (5th) Court of Appeals,
    October Term, 1915.]
    Shields, Powell and Houck, J^f.
    Robert A. White et al v. Brandt G. Smythe.
    1. Charge to Jury View of Premises where Accident Occurred is Evidence Held Erroneous.
    To charge a jury that what they saw on a view of the premises was evidence to be considered in reaching- a verdict is erroneous; but in the present case the verdict being sustained by sufficient evidence without regard to the view of the premises the charge is, therefore, not prejudicial.
    2. Effect of Allegation that Automobile was Being Operated at an Unlawful Rate of Speed.
    In an action on account of injuries received from being struck by an automobile, it is error to charge the jury to the effect that if the machine was being run at an unlawful rate of speed at the time of the accident the defendant was guilty of negligence per se, but it is an error which does not necessitate a reversal of the judgment where the unlawful rate of speed was alleged in the petition as an affirmative ground of relief.
    Error.

      Fitz gibbon, Montgomery & Black, for plaintiffs in error.

      Kibler & Kibler, A. A. Siasel and L. G. Russell, for defendant in error.
   POWELL, J.

This was an action commenced by the defendant in error in the court of common pleas to recover damages alleged, by plaintiff in that action, now defendant in error, to have been sustained by him on account of personal injuries received in a collision between the plaintiff, riding in a buggy, and an automobile which was operated by the defendants.

The petition charges that at the time mentioned therein plaintiff, with two companions, was riding south on Sixth street in the city of Newark; that as he was abont to cross Wilson street in said city, a street running at right angles to Sixth street, the vehicle in which he and his companions were riding was struck by the automobile, or, as plaintiff describes it, by the locomotive engine, sometimes called an automobile, operated by the defendants, wbo were going west upon said Wilson street. Plaintiff then, alleges the injury sustained by him and prays judgment against the defendants.

A number of aots or grounds of negligence are alleged and set out in the petition and it is alleged, among the general averments of the petition, that the defendants were driving said locomotive engine at a furious rate of speed, contrary to law and the ordinances of said city of Newark. It is specified among the separate and specific grounds of negligence that defendants were operating their machine at a rate of speed largely in excess of that permitted by law or the ordinances of the city. Numerous other grounds of error are alleged, but this particular ground is mentioned because of its connection with a part of the charge of the court. An answer was filed setting up two defenses, the first of which was in the nature of a general denial of all the material averments of the petition, and the second charging contributory negligence on the part of the plaintiff. To this defense a reply was filed denying such contributory negligence. Trial was had to a jury and a verdict was returned in the sum of $1,352.50 in favor of the plaintiff. A motion for new trial was filed by the defendants, setting out several grounds upon which new trial was asked and the same was overruled by the court upon condition that the plaintiff would remit all of said verdict in excess of $1,000, as being excessive, which re-mittitur was entered and judgment rendered in favor of the plaintiff below for $1,000.

Error is prosecuted by the plaintiff in error in this court, and it is especially urged on behalf of plaintiff in error that there are three sufficient grounds of error on which such judgment should be reversed and a new trial granted.

1. That the charge of the court relative to the subject of punitive or exemplary damages was erroneous and ought not to have been given in the circumstances in this record shown to exist.

2. That the court erred in giving the requests upon this subject asked for by the defendant in error.

3. That the court erred in charging the jury, who were sent to examine the grounds where the accident occurred, that they should determine from what they saw as part of the evidence in the case whether this part of the city was closely built up or not, in order to determine whether or not the defendants were operating their machine at an excessive rate of speed or at a rate greater than that permitted by law.

Further, it is contended that the court erred in its charge as to the rate of speed and in saying to the jury that if they found that defendants were operating their automobile at a rate of speed in excess of that authorized by law that this constituted negligence per se.

Other errors are assigned in the petition in error and were not waived at the hearing, but the court is of the opinion that there are no other errors apparent in this record that would justify a reversal of the judgment below.

Generally speaking, it has been held in Ohio that the view which a jury takes of premises is not evidence in itself, but is simply allowed or ordered by the court to assist the jury in applying the testimony as detailed from the witness stand. We think there was error in this part of the charge of the court. We think, however, that in addition, the charge of the' court which limited the jury to a consideration of the premises as a part of the evidence only is modified by the fact that there was a large amount of testimony offered by plaintiff to show that at the place where the accident occurred the city was closely built up and that if defendants were traveling at a rate of speed in excess of eight miles an hour they were traveling in violation of the statutes of Ohio relative to motor vehicles. We have examined the record with reference to this testimony and are of the opinion that it is sufficient to sustain the verdict of the jury without reference to whether or not the court erred in its charge relative to such view of the premises.

With reference to the charge of the court that if the jury should find that the defendants were traveling at a rate of speed in excess of that allowed by statute it would constitute negligence per se, the court is of the opinion that where the petition itself alleges this rate of speed as an affirmative ground of relief, as was dong in this case, such charge is not such an error as would justify a reviewing court in setting aside the verdict and grant a new trial upon this ground alone.

Tt has been held to be the law in Ohio that the fact that the vehicle was operated at a higher rate of speed than that permitted by law was not in itself negligence per se, but was proper evidence to go to the jury to prove negligence on the part of the operator of such machine. This, however, has been largely modified and it has now been held as a part of the law of this state that “in an action for damages predicated up’on the failure of such owner or operator to comply with the requirements of this statute (Sec. 1027), it is the duty of the court to instruct the jury that such failure is negligence per se.” Manhattan L. Ins. Co. v. Burke 69 Ohio St. 297, [70 N. E. Rep. 74; 100 Am. St. Rep. 666],

In this case the court commented upon the rule laid down in Meek v. Pennsylvania Co. 38 Ohio St. 632, that “where a company was operating its ears in violation of a city ordinance at the time an injury was inflicted, while not sufficient per se to create a liability, is yet competent to go to the jury as tending to show negligence. ’ ’ So that the syllabus of that case must be read in connection with the facts there before the court. They recite that no reference was made to the ordinance in the petition in that ease. The charge of negligence was that the company carelessly, wrongfully and with gross negligence ran and moved its cars, and in that case it is said the trial court rejected the ordinance fixing the rate of speed when tendered in evidence, but the Supreme Court held it to be admissible upon the ground that it tended to show negligence on the part of the company.

In this case plaintiff bases his right to recover in part, at least, upon the averments of the petition that defendants were operating their machine at a rate of speed in violation of both the ordinances of the city of Newark and the statutes of Ohio. When this is considered the court is of the opinion that it was not such error in charging that such violation was negligence per se as would justify the court in reversing the judgment of the court below.

Aside from the questions of error in the particulars named, and aside from the question as to whether or not such errors were prejudicial, we have arrived at the conclusion, from an examination of this record, that substantial justice was done by the jury. In fact, the court is of the opinion that the court below ought not to have required a remittitur of the amount in excess of $1,000 to have been made; that the evidence sustains the verdict in every particular; that the amount returned was not more than should have been returned as compensatory damages, and that if there was error on the part of the court in the charge relative to punitive or exemplary damages, it has no application to the facts as shown by this record. We are further of the opinion that the. charge as to negligence is not erroneous when based upon the charge as made in this.petition, but that the acts of negligence by which plaintiff was injured consisted in part of the violation of the statutes and of the ordinances. As to the error complained of relative to the action of the court in charging the jury that it should consider the view taken by them as part of the evidence, we think it is not sufficiently prejudicial to justify a reversal. We think that while the errors insisted upon were strongly urged to the court, even though such errors existed, substantial justice requires that this judgment should be affirmed and an order may be entered affirming the judgment of the court of common pleas. The court finds there was reasonable ground for presenting this petition in error and therefore affirms such judgment without penalty. The ease will be remanded to the court of common pleas for execution.

Shields and Houck, JJ., concur.


author: RICHARDS, J.

text:
    ERROR — RELEASES.
    [Wood (6th) Circuit Court,
    March 3, 1912.]
    Wildman, Kinkade and Richards, JJ.
    Viola Cook v. Charles Cook et al.
    Finding in Court Below Supporting the Validity of a Release Upheld on Review.
    A finding in the court below against the claim that the release interposed as a defense was without consideration requires, in the absence of a bill of exceptions containing all the evidence, that the reviewing court assume the payments made prior to the execution of the release, the amount of which are not stated, were sufficient to warrant the judgment finding the release was sustained by sufficient consideration.
    EbROR.

      Stephens & Reed and Ladd & James, for plaintiff in error.

      L. D. Hill and J. E. Kelly, for defendants in error.
   RICHARDS, J.

In the court of common pleas Viola Cook brought suit against Charles Cook and Clara Cook to recover damages for the alienation of the affection of her husband, Claud Cook.

The ordinary and proper allegations constituting a cause of action in such eases were set forth in her petition. The petition alleges and the answer admits that the defendants are husband and wife, and that they are the parents of plaintiff’s husband, Claud Cook. The defendants answered jointly, denying the allegations of the petition and setting up by way of a so-called second defense a release which they attach to their answer and which reads as follows:

‘ ‘ Prairie Depot, O., March 21, 1911.
“We, the undersigned, Isaac Mills and wife, Mary Mills, and Viola Cook, daughter of said Isaac and Mary Mills, and wife of Claud H. Cook, in consideration of two hundred and fifty dollars ($250) paid by said Claud H. Cook to Viola Cook, the receipt of which is hereby acknowledged, accept same in full settlement of all alimony assessed against said Claud H. Cook in favor of Viola Cook, and also release said Claud H. Cook from any and all claims whatsoever, for whieb we might have cause of action, and we also agree and promise that we will bring no further action for alimony against the said Claud H. Cook. We furthermore agree that we will bring no cause of action against Charles Cook and his wife, Clara Cook, or either of them singly, for alienating the affections of said Claud H. Cook from said Viola Cook.
“Isaac Mills,
“Mary Mills,
“Viola Cook.
' ‘ Signed and acknowledged in the presence of “D. W. Conger,
‘ ‘ Caroline Meyerbeck. ’ ’

To this answer the plaintiff filed a reply that admits that she signed the release, but avers in substance that she was induced to sign the same by false and fraudulent representations made to her by the defendants, and she avers further that the so-called release is without any consideration whatever. Upon the trial of the case a verdict was directed for the defendants on the ground that the release was a complete bar to the cause of action set forth in the petition. The parties made an agreed statement of facts, which is embodied in the bill of exceptions before us. The entire bill of exceptions embraces less than two pages and the material parts of it are in the following words, viz.:

‘1 That upon the trial of said cause the court found that the release pleaded by the defendants, copy of which is attached to their answer, is a full and complete defense to the cause of action alleged in the petition of the plaintiff.
“It is agreed by the parties hereto that all the evidence pertaining to said release is as follows, to-wit:
“That plaintiff, Viola Cook, recovered from one Claud Cook, her husband, in cause No.-in the court of common pleas of Wood county, Ohio, a decree for alimony in the sum of $400, to be paid $2 each week or settled by paying $300 in cash. That the defendants in this cause, Charles Cook and Clara Cook, are the father and mother of Claud Cook. That the release pleaded by the defendants was prepared by them at their home in Prairie Depot, Ohio, and was taken by them to the home of plaintiff’s parents in the city of Toledo, - Ohio. That Wm. Conger, notary public, was called, who read the release in the presence of plaintiff, after which it was signed and executed. That the total amount paid was $250, which was paid by the cheek of Charles Cook and from his own funds. That a true copy of said release is hereto attached and marked Exhibit A and made a part of this bill of exceptions.”

From the fact that the bill of exceptions does not purport to contain all of the evidence which was introduced, we are not at liberty to review the ease upon the weight of the evidence. This principle has been heretofore determined in many cases in this state and I only stop to cite three of them, Combes v. Miller, 3 Circ. Dec. 532 (6 R. 446), which was affirmed by the Supreme Court without report; Cincinnati, H. & D. Ry. v. Curtis, 9 Circ. Dec. 112 (17 R. 554), and Regan v. McHugh, 78 Ohio St. 326 [85 N. E. Rep. 559].

It will be noticed from the bill of exceptions that the court does not find any evidence to sustain the allegations of the reply that the release was obtained by false and fraudulent representations made by the defendants.

The only other ground by which it is sought to invalidate the release is the contention made by the plaintiff that the same is without consideration. In approaching the determination of this question every intendment must be made in favor of the regularity of the judgment entered by the court below. The bill of exceptions recites that the plaintiff recovered a decree for alimony against Claud Cook, her husband, in the sum of $400, to be paid $2 each week, or settled by paying $300 in cash.

Whether that decree remained still in force at the date of the payment of $250 does not appear; neither does it appear from the record how much, if any, had been paid upon the allowance of alimony made by the court to the wife. The date of the decree is not given, and it may be, for all that appears in the record, that a considerable amount of the allowance had been paid.

Again, it is entirely consistent with the finding of facts in the bill of exceptions that the weekly payments of alimony had not yiet accrued to the extent of $250.

In view of all these facts and circumstances, which are entirely consistent with the finding of facts contained in the bill of exceptions, we hold that the court of common pleas was entirely justified in finding, as it did, that a good and sufficient consideration existed for the release, which is set forth in the answer filed by the defendant.

The judgment of the court of common pleas will be affirmed.

Wildman and Kinkade, JJ., concur.


author: WINCH, J.

text:
    MUNICIPAL CORPORATIONS.
    [Summit (8th) Circuit Court,
    April, 1907.]
    Marvin, Winch and Henry, JJ.
    Akron (City) v. Elias S. Day et al.
    Acceptance by City Officials of Assignment of Part of Fund Due City Contractor.
    An order drawn on a fund due a city contractor, if accepted by the fiscal officers of the city, must be paid out of appropriations made by the council for the payment of the contractor.
    [Syllabus by the court.]
   WINCH, J.

On June 30, 1900, James McGowan, contractor, working on a city improvement under a contract with the city of Akron gave to Elias S. Day, defendant in error, an order on the city of Akron for $400 payable out of money due said McGowan under said contract. On the same day said Day presented said order to Charles H. Isbell, who was then clerk of the city of Akron and also clerk of the board of city commissioners, who received and filed it, told Day that the order would be paid when money was payable to McGowan under his contract, and notified the board of city commissioners that the order had been presented. Thereafter an ordinance was duly passed by the city counsel directing the payment to McGowan of the sum of $973 due him under his contract.

The law then governing the city of Akron required for the payment of the money due McGowan that an order on the city treasurer be drawn signed by the city clerk and countersigned by the chairman of the board of city commissioners. Such order for the sum of $973 payable to McGowan was duly drawn August 7, 1900, endorsed by McGowan, collected by one of the board of city commissioners and the proceeds expended by him in paying certain creditors of McGowan, including an order for $200 held by the city clerk himself, but no part of the money was paid to Day on his order. If further appears that the contract between McGowan and the city specifically provided that no assignment should be made by him of moneys due or to become due thereunder, without the consent of the city, bxit such is the law in the absence of any express provision of the contract. Consent to the assignment in such case, however, is inferred from very slight circumstances.

We think this case comes squarely under the decision in Robbins v. Klein, 60 Ohio St. 199 [54 N. E. Rep. 94]. I quote from page 202 of the decision:

“Doubtless it was at one time the established doctrine, at least at law, that a creditor had no right to split his debt and assign a part of it unless the debtor consented to the transaction. This court, however, held recently (Pittsburg, C. C. & St. L. Ry. Co. v. Volkert, 58 Ohio St., 362), that whatever the rule at law may have been, or now is, in equity an assignment of a part of a debt will be upheld without regard to the consent of the debtor. But whether that rule prevails or not is immaterial to the question here, for when in due course of mail the bank received the note and order involved, and filed them away without objection, it should be held to have thereby consented to the assignment. It was a matter of very slight concern to the bank whether it paid the amount of the deposit^by a single act to the depositor in person, or whether it was paid at different times to a number of persons to whom parts of it had been assigned, while to the several assignees it might be a matter of the highest concern. Under such circumstances justice and fair dealing require that the consent of the debtor should be inferred from very slight circumstances. No other purpose than to have the note in question paid out of the fund in the hands of the bank could have actuated Robbins & Co. to procure the order and afterwards send it to the bank together with the note. That purpose the bank must have perceived when the note and order were received by it. With the knowledge of this purpose the bank without objection received the note and order and filed them away. If the bank had not intended to consent to that division of the debt which was necessary to pay the note, its duty was to promptly return the note and order to Robbins & Co. The omission of the bank to pursue this course, together with its action in receiving and retaining the note and order and filing them away, are not circumstances that bear only slightly on the question. On the contrary, they possess a cogency not only amply sufficient to establish the consent of the bank to a division of the fund and payment of the order, but makes any other inference irrational. Therefore, if the order was sufficient in substance to have a valid operation, the right of Robbins & Co. under it should be regarded as complete from the date it was received and filed by the bank. This brings us to a consideration of the order itself.”

What are the circumstances in the case at bar indicating that the city of Akron consented to the assignment by McGowan of part of the money coming to him under his contract?

The order was presented to the proper officer of the city on June 30. He at once notified the board of city commissioners, so that all the officers of the city controlling the disbursement of funds of the city ordered by the city council to be paid out had notice of the order. No money was paid out under McGowan’s contract until August 17, 1900, and for more than five weeks Day rested quietly, relying, as he had a right to rely, upon his order being paid by the city. If the city had not intended to pay the order, it should have returned it to Day without delay and so notified him. Its consent to the assignment under the order of part of the money due McGowan is to be inferred. In the language of the decision just quoted, any other inference is irrational.

It is contended, however, that under the law governing Akron at the time, See. 1693 R. S., the order could not be accepted or paid except on resolution of the council and of the board of city commissioners. An unconditional acceptance, binding the city to pay, whether it owed McGowan anything or not, might require such action, but an order on a. fund payable by the city and duly appropriated by it, would not. The fiscal officers of the city, in such ease, could bind it to a consent that money due under a contract be assigned and that an order for such money be accepted.

Judgment affirmed.

Marvin and Henry, JJ., concur.