text:
    LOSS BY A GIRL OF PART OF HER. SCALP IN REVOLVING SHAFTING.
    Court of Appeals for Hamilton County.
    The John Holland Gold Pen Co. v. Juengling.
    Decided, March 22, 1913.

      Employee Injured in Shafting — Whether Statute as to Boxing Had Been Properly Complied With is a Question for the Jury — Report of State Inspector of Workshops, Made after the Accident, Not Competent as Evidence — Exhibition to Jury of Injured Part of the Body — Section 1027.
    1. The purpose of the statute providing for the casing or boxing of all shafting is for the protection of operatives, and the “floors” contemplated therein are those upon which the operatives are employed, and whether the shafting is so “cased” or boxed” as to comply with the statute is a question of fact to be submitted to the jury under the evidence and circumstances of a case where injury has occurred to an operative from being caught in shafting alleged to have been exposed or improperly covered.
    2. The official report or opinion of a state visitor of workshops and factories as to the safety of the shafting in which the accident occurred, based upon an inspection made after the accident, is not proper evidence in the trial of an action for damages on account of injuries received in such shafting.
    3. An operative engaged in burnishing penholders can not be charged with contributory negligence in attempting to recover a holder which had fallen under her bench, where it is in evidence that under the rules of the shop operatives were charged with holders which they lost
    4. The plaintiff in the present case had her hair and a portion of her scalp torn from her head by a revolving shaft.. Held: That the exhibition to the jury of the scalp, which had been preserved in alcohol, was not prejudicial to the defendant, where done with the care and in the manner in which the exhibition was made in this case; nor was an award of $5,000 .damages for such an injury excessive.

      Victor Heintz and Geoffrey Goldsmith, for plaintiff in error.

      Thorne Baker and L. F. B-atterman, contra.

      Jones (Oliver B.), J.; Jones (E. PI.), J., and Swing, J., concur.
   Plaintiff below, Clara Juengling, was an operative in the gold pen factory of the defendant. ITer duty was to polish pens and penholders, by holding them against “buffs” or polishers which revolved above a table and which were operated from a horizontal revolving shaft below the table in front of which she stood. This shafting was about 25 inches from the floor and about 18 inches back from the front of this work table, which was against the back wall and ran from one side wall to the other and varied from about 26 to 41 inches in width.

In looking for a penholder which had dropped from her hands while polishing it, and which she thought was on the floor under this work table, plaintiff placed her head under the edge of the table, and her hair was caught and woiind around this shafting, tearing off a considerable portion of her scalp and resulting in great suffering and serious permanent injuries and personal disfigurement and loss of her hair.

Negligence was charged against the defendant chiefly in that the shafting in front of which she worked was not properly cased and guarded as ordinary care and the laws of Ohio required that it should be. Plaintiff relied upon the terms of Section 10027, General Code;

“The owners and operators of shops and factories shall make suitable provisions to prevent injury to persons who use or come in contact with machinery therein or any part thereof as follows:
“1. They shall case or box all shafting operating horizontally near floors, or perpendicularly or otherwise between, from and through floors or traversing near floors, or when operating near a passageway or directly over the heads of employees.”

Defendant below claims that this statute had been substantially complied with and that it was in effect “boxed or cased;” that the wall in the rear and the top of the work table furnished two sides of “this boxing,” and in front, for the greater part of the distance, was a set of five heating pipes, connected with a single steam pipe, for the remainder of the distance, at the place where the accident actually occurred. These five pipes were placed parallel to each other on a horizontal plane at a level considerably lower than the shaft and further forward. Undoubtedly they did in a manner serve to guard this shaft, but the question whether they were sufficient to constitute the necessary part of the boxing or casing to answer the requirements of the statute may well be doubted, especially when the accident itself shows they did not protect this shafting from the very danger which the statute contemplated.

Counsel for defendant below, question the applicability of this statute to the kind of shafting that here caused the injury and undertake to draw a fine distinction beweeA a “structural” floor and a “traffic” floor. The purpose of the statute was undoubtedly for the protection of the operatives, and the “floor” contemplated by it were those on which the operatives were engaged in their labors, and it was probably intended to include shafting sufficiently near the floor to come in contact with operatives upon it. This shafting was undoubtedly so placed as to come within the terms of the statute. Whether it was such a shafting and whether it was so “cased” or “boxed” as to comply with the law were questions of fact which were properly submitted to the jury under appropriate instructions by the court.

Nor was it error in the court to exclude the opinion or report of the witness who was a state official, known as a lady visitor of workshops and factories, as to the safety of this shafting based upon an inspection after the accident. Fowler v. Delaplain, 79 Ohio St., 279; Laidlaw-Dunn-Gordon Co. v. Miller, 12 C.C.(N.S.), 246.

Tt is urged by counsel that plaintiff below was guilty of willful and gross negligence in placing herself in sufficient proximity to this shaft to have permitted the occurrence of the injury, because the opening into which she protruded her head was not large or easy of access and also especially because of the fact claimed by defendant that it was not in any way her duty to look for dropped penholders, but that office was performed solely by the shop foreman. This was disputed by the plaintiff below, and the fact that each operative was charged with each penholder given her to polish, that brooms or broomhandles were provided to help find them on the floor and sweep them out from under the table, and the question of her fellow operative, Mrs. Porter, which immediately led to the accident, whether she had looked for that holder, would seem to support the claim that she was in the performance of her duty.

Another claim of error in the trial below strongly urged by plaintiff in error is that the scalp of plaintiff below, which had been preserved in alcohol, was introducted in evidence and exhibited to the jury against the protest and objection of defendant below and that same was-for the sole purpose of exciting the sympathy of the court and jury and constituted niisconduet of counsel.

While this kind of evidence may often be used to their advantage by skillful attorneys for the improper purpose of securing undue sympathy for plaintiff in a trial, it frequently may become necessary to exhibit an injured part, of the body to best describe the injury, and in a case like this at bar it might be desirable to show the thickness of the scalp removed or the quality and quantity of hair lost by plaintiff. Tt often becomes a question of good taste in counsel, and where such evidence is improperly sought to be used to excite sympathy for the injured party it might at times have a different result and create a revulsion of feeling to his detriment.

As to the propriety of this kind of evidence, we quote the. latter part of Section 1158 of 2 Wigmore on Evidence:

“No doubt the trial court has a discretion, which it shall firmly exercise, to prevent the abuse of such-a mode of proof. But it seems too rigorous to forbid a party to prove his case by the clearest evidence; and a jury which through violent prejudice would not be restrained by the court’s instructions would probably give way to its prejudice even without this evidence. The courts impose no prohibition, except so far as the discretion of the trial court may-prevent abuses.”

In Rost v. Brooklyn Heights Rd. Co., 10 App. Div. (N. Y.), 477, cited by plaintiff in error, -where the court held “that the exhibition of a child’s foot which had been amputated and preserved in a glass jar, was error which warranted a new trial where it appeared that the direct tendency was to arouse the prejudices and inflame the passions of the jury into an angry resentment against the defendant,” in discussing the law on this subject the court say on page 480 of its opinion:

‘ ‘ It is the undoubted rule that the exhibition of an injury oían injured member of the body to the jury is proper where it is the subject of examination, and where such exhibition is necessary to enable the jury to understand the circumstances surrounding the injury, or to obtain a more comprehensive and intelligent conception of the conditions which existed when the injury was received, or of the character of the injury itself. But where such exhibition is not essential or necessary to enable the jury to better understand the conditions under which it was received, or where the jury may be led to illegitimate considerations on account of it, then it may become improper.”

Along the same line defendant below objected to the fact that plaintiff below, on one occasion during the trial, sat in the court room for a short period with her hat removed, showing her head denuded in a large part of its hair and scalp. The head had been exhibited to the jury in the course of her testimony. As soon as objection was made by counsel, by direction of the trial judge, plaintiff replaced her hat upon her head, although the weather was warm and she explained that it oppressed her head. This would come within the sound discretion of the court under the law as above stated, and in our opinion was properly treated by the court. And the suggestion by counsel for defendant below, in cross-examination of plaintiff’s physician, that the injury to plaintiff’s head could be better shown by an X-Ray picture than by an examination of the head itself or of the scalp which had been torn from it, was rejected by the expert physician and does not appeal to the court.

The amount of the verdict, considering the severe character of the injury, seems to show that it was not the result of passion or prejudice on the part of the jury, and counsel for plaintiff in error in their reply brief are candid enough to say if they were really liable the verdict should have been greater, but argue that because they deny all liability any verdict is an evidence of improper sympathy.

It is also urged that the court erred in practically giving a double charge against the defendant. The record shows that all of the eight special charges requested by defendant were given by the court without objection and the same ground was again covered by the court in its general charges, so if there could be any complaint against the court in the matter of a so-called double charge it should hardly come from the defendant below.

Other errors were pointed out, but a careful consideration of the record and the able arguments of counsel lead us to the conclusion that there is no error in the record sufficient to warrant a reversal, and the judgment below is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    CONSTRUCTION OF THE STATUTE RELATING TO EXCAVATIONS.
    Court of Appeals for Hamilton County.
    Geo. P. Carrel, Executor, v. The Roche-Brunner Building Co. et al.

    Decided, June 4, 1914.

      Excavations — Liability to Adjoining Owner — Measure of Damage for Excavating a Greater Depth than Nine Feet — Sections 3784 and 3785.
    1. The statutes of Ohio permit an excavation to the full depth of nine feet without incurring liability, regardless of the depth of adjoining foundation walls.
    2. Where an excavation is made to a greater depth than nine feet, liability for resulting damages to adjoining property is limited to that caused by going below nine feet, and not that caused by tlj.e whole excavation.

      Dempsey ■& Nieberding, for plaintiff.

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

      Franklin T. Cahill for plaintiff in error; John C. Healy, contra.

      Affirmed by the Supreme Court without opinion, May 4, 1915, “the constitutionality of Sections 3782 and 3783 not being determined.”

   By the Court.

The eircuit court of this circuit having put a construction upon Sections 3782 and 3783 of the General Code, then found in Sections 2676 and 2677 of the Revised Statutes, in cause No. 4575, Hosea et al, Ex'rs, v. McGuire, reported in the Court Index of June 2, 1908 (see below), which judgment was affirmed by the Supreme Court in an unreported ease, 81 O. S., 543, this court feels bound by that construction, and the injunction prayed for by plaintiff herein must therefore be refused, and the petition will be dismissed, without prejudice however to an action at law for damages, if any are suffered by plaintiff on account of the excavation contemplated by defendants.

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

The opinion to which reference is made above was as follows:

4575. Lucy K. R. Hosea et al, Executors, v. Joseph Maguire.

Giffen, J.; Swing, P. J., and Smith, J., concur.

The phrase “and by such excavation” as used in Section 2676, Revised Statutes, means one to a greater depth than nine feet below the curb of the street; and the damage for which this owner is liable is only that which is caused by such greater depth and not that which may be caused by the whole excavation.

This is made plain by Section 2677, Revised Statutes, which expressly allows an excavation to the full depth of nine feet without reference to the depth of adjoining foundation walls and without incurring liability.

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

Judgment affirmed.


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    DEBTS IN THE HANDS OF AN ADMINISTRATOR.
    Court of Appeals for Monroe County.
    Urpman v. Urpman et al.
    Decided, November 13, 1913.

      Estates of Decedents — Promissory Note of Administrator Upon Which the Decedent Was Surety — Not Chargeable as Assets in the Hands of the Maher, When.

    Where the surety upon an unpaid promissory note dies and the principal maker thereof is appointed and qualified as administrator of such surety’s estate, the debt represented by such note is not chargeable as assets in the hands of the administrator, before the estate has been required to pay the same or it has been presented and allowed as a- valid claim against the estate.

      Jeffers, Moore & Devaul and Harry C. Shepherd, for plaintiff in error.

      Lynch tk Jjynch and Maíz & Kramer, contra.
    Metcalfe, J.; Norris, J., and Pollock, J., concur'. ,
   Tlie facts necessary to an understanding of the questions involved in this case are briefly as follows: George IT. Urpman was principal and Peter C. Urpman surety upon certain notes. Peter C. Urpman died in 1906, and George IT. Urpman and A. W. Urpman, his sons, were appointed and qualified as administrators of his estate. Some of the notes in question have been reduced to judgment, but none of them has been paid. The notes were not included by the administrators in the inventory, nor did they charge themselves with them in their accounts as assets of the estate. Exceptions were filed to the inventory and accounts of the administrators on the ground that the notes should have been inventoried and that the administrators should charge themselves with them as assets in their hands. The exceptions were referred to a master commissioner for hearing and determination. In his report the master commissioner held as matter of law that the. notes, including those reduced to judgment, are assets in the hands of the administrators under favor of Section 10691, General Code. Exceptions to the finding of this master commissioner raise the only question to be determined here. There can be no doubt that under the law of Ohio a debt owing either by an executor or administrator to his decedent at the time of his death becomes assets in bis hands as administrator or executor. Bigelow v. Bigelow, 4 Ohio, 138; Hall v. Pratt, 5 Ohio 72; Tracy v. Card, 2 Ohio St., 431; In re Raab, 16 Ohio St., 273; Section 10691, General Code.

The question here is, where the surety upon a note dies and the principal maker qualifies as administrator of his estate, does the-debt become assets hi his hands as such administrator if neither the decedent nor his estate has been compelled to pay it? The master commissioner based his holding upon the authority of Yakey v. Strunk, a case which was affirmed by the circuit court. We do not doubt that that ease was decided right on its merits; but the facts differ from the case at bar. There the principal maker became executor of the will of the deceased surety, and paid his own notes as they became due as claims against the. estate out of the funds thereof. The opinion demonstrates clearly the duty of the executor to charge himself with the debt as assets under these circumstances. We do not, however, find ourselves in harmony with that part of the opinion which holds to the conclusion that the liability of the surety to his principal is an unqualified debt- of the surety to his principal. The reason of the rule. Mrhieh requires the debtor upon becoming administrator of his creditor’s estate to charge himself with the debt in thus stated in Winship v. Bass, 12 Mass.. 199:

“The executor having voluntarily assumed the trust, which prevents any other from receiving, and being unable to sue himself, he shall be considered as having paid the debt, and-as holding the amount in his bands as administrator.”

Tn Shields v. Odell, 27 Ohio St., 398, it is held to apply only where the administrator or executor owes the debt individually and unconditionally. And in James v. West, 67 Ohio St., 28, it is said in the opinion, page 45:

“While under the rule of decision of this court in Bigelow v. Bigelow, Ball v. Pratt and Tracy v. Card, supra, debts owing by an administrator to the estate are to be regarded and treated as assets in his hands, the rule is so far unsatisfactory that it should not be extended, but should be confined to cases in which the administrator owes the debt individually and unconditionally. The statute, Section 6069, Revised Statutes (Section 10691, General Code),when fairly construed, does not go further.” Citing in support of this proposition Shields v. Odell, supra, and Rossman v. McFarland, 9 Ohio St., 369.

We do not think that the liability of the surety to the principal is an unconditional liability. The surety could not bring an action against the principal to recover the indebtedness until he has paid it. He may compel the creditor to proceed against the surety to collect the indebtedness. But having no right to sue the surety before the debt was due the reason of the rule that the administrator can not sue himself fails, for the case is no different in that respect than it was before the death of his decedent, while the creditor, that is, the holder of the note, may bring his action against the administrator as such, and also against him individually, as surety on the note. Hence, we think the rule does not apply in this ease. Whether it will apply if the estate is compelled to pay the debt is not decided. The exceptions to the report of the master commissioner are sustained.


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    ANNEXATION OF MUNICIPAL CORPORATIONS.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel N. C. Lathrop et al, v. M. B. Excell.
    Decided, May, 1908.

      Municipal Corporations — Annexation of One Corporation by Another Results in Merger of Corporate Powers.

    Annexation of one municipal corporation by another does not put an end to the corporate life and powers of the annexed municipality, but simply merges them with those of the annexing corporation, and an agreement that the firemen in the service of the former shall continue in the service of the latter is valid.
    Henry, J.; Winch, J., and Mjarvin, J., concur.
   In this appeal it is sought by mandamus to enforce the provision of the Glenville annexation agreement for the retention of the Glenville firemen. It is objected that this provision is void, because it is inconsistent with the civil service requirements of the municipal code providing for admission to the fire department only on examination, etc., and, even though Glenville was subject to the same requirements of law, the civil service regulations there may have been such as to let in firemen who could not have come into the Cleveland fire department.

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

Section (1536-57) of Bates’ Statutes indicates that this is the true construction of the matter. It provides that “when the annexation is completed, the two former corporations shall be governed as one, embracing the territory of each.”

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

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


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    INEFFECTUAL CORRECTION OF CHARGE TO JURY.
    Circuit Court of Cuyahoga County.
    The City of Cleveland v. The Standard Contracting Company et al.
    Decided, May 18, 1908.

      Practice — Objection to Improper Oounter-Olaim may be Waived — Error in General Charge not Cured by What is Said Colloguolly by the Court to Counsel.

    1. Where several defendants file answers setting up, as against each other, cross-demands in the nature of counter-claims which are within the original jurisdiction of the court, and all parties without objecting thereto join issues and the case proceeds to trial and judgment, the various parties will be considered as having waived the question whether such cross-demands were the proper subject of counter-claim.
    2. Where the court has erroneously charged as to the burden of proof and upon the request of counsel that he correct his charge in that respect says, addressing himself to counsel, “Very well, if you insist I will charge that the burden of proof was on plaintiff as to both defendants” without addressing the jury or modifying or withdrawing his original charge, the error committed therein is not cured.

      Newton D. Balter, for plaintiff in error.

      Lee & Marty, Hoyt, Dustin & Kelly and Garfield,, Howe í§ Westenhaver, contra.
    ITenry, J.; Winch, J., and Marvin, J., concur.
   The original action in the court of common pleas was- commenced by the Standard Construction Co. against the City of Cleveland, the Great Lakes Towing Company and the American Cooperage Co. for negligently damaging plaintiff’s pile driver.

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

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

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

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

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

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

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

The parties seem to have all assumed that the counter-claims were properly pleaded in this action, under the provisions of Section 5069, Revised Statutes, as follows:

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

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

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

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

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

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


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    ALTERNATIVE BIDDING NOT CONTRARY TO PUBLIC POLICY.
    Court of Appeals for Hamilton County.
    The State of Ohio, on the Relation of Charles F. Waltz, v. James A. Green et al.

    Decided, June 1, 1915.

      KiiUcling' 'Commissions — For' Construction of Court' Hdúses~'ór Other ■ - '■ County Buildings — Statutes Controlling Their Action — Plans' Providing in the Alternative for Different Materials and Methods — Do Not Invalidate the Award — Where Full Competition is Provided for.

    1. A--building', commission, -constituted under Die. provisions P.f.G,' Q., ■ - - Section- 2333,. is by. virtue of. tile, terms. of. .G. -C.,- Section: 2338 ... governed .by the.provisions o.f G. Q„ Section 2343, requiring accurate and' complete plans an.d specifications,' and also By'the'provisions ' of G: C.-, Section 2355,'that-such-contract shall be awarded to-the person' who offers to' perform'thé -labor'and furnish-'.'the materials at the lowest'price. ■ ' . • - ' .......

      2. Plans and specifications which provide in the alternative for different materials and methods of construction, and are full, accurate and complete as to each alternative in accordance with- the requirements of G. C., Section 2343, and afford the opportunity for full competition as to each alternative, are valid; and an award to the lowest bidder on such alternatives as may be finally adopted, after the bids have been opened and considered, will he sustained.

      Kinkead & Rogers and Galvin & Galvin, for plaintiff in error.

      John V. Campbell and Chas. A. Groom, Prosecuting Attorneys, for Court House Building -Commission.

      Pogue, Eoffheimer & Pogue, for the Charles McCaul Co.
    Jones (Oliver B.), J.; Jones (E. IT.), J., and Gorman, J., concur.

       Affirming State, ex rel Waltz, v. Green et al, 17 N.P.(N.S.),- — -. Motion for an order directing the Court of Appeals to certify its record overruled June 4, 1915, for the reason that no error has. intervened, the question, involved-, however,: being, ojie of ptihlic--interest;

   This is a proceeding in error seeking the reversal of a judgment rendered by the Superior Court of Cincinnati. The action below was brought by relator as a tax-payer to enjoin the defendants, constituting a building commission, and the Charles McCaul Company, as contractor, from proceeding to carry out the contract which has been entered into between them for the construction of a new court house for Hamilton county, Ohio. This contract was alleged by plaintiff’s petition to be illegal for the reason that the court bouse building commission had failed in certain respects to comply with the statutes and particularly in the plans and specifications and in the forms and Character of bids, received.

Issue was taken by defendants, two separate answers being filed, one by the members of the court house building commission and one by the Charles McCaul Company. These answers alleged the observance in every respect of all the requirements of the statutes in regard to the proceedings necessary for the letting of the contract, and charged that the relator was not prosecuting the action in go’od faith as a tax-payer, and that he Was guilty of certain acts Constituting laches and estoppel, in that he had known of all proceedings taken, and had not instituted suit until after the contract had been signed and the- work begun.

The case was.heard on the evidence and the law, and the court rendered its deéision in favor of the defendant's, finding that the contract is legal and valid and that the petition should be dismissed. Upon the request of relator the court separately stated its conclusions of fact and conclusions of law, and thereupon final judgment was entered for the defendants, dismissing the petition; to which and to certain conclusions of law due exceptions were taken by plaintiff. No bill of exceptions containing the evidence was filed.

The-ease is here for review, therefore, only upon the correctness of the conclusions of law to which plaintiff excepted.

The findings of the trial court that plaintiff prosecuted the action in good faith as a tax-payer and that he is not concluded either under the doctrine of estoppel or by laches, although questioned by counsel for defendants in their argument, can not be considered by us.

The first question presented is whether the amendment made in the language of that part of the law found in Section 2338, which was inserted in the enactment of the General Code of Ohio, had the effect to make the building commission subject to all the sections of that chapter which are applicable to court houses and jails and particularly to the provisions of Sections 2343 and 2355.'

Section 2338, in which the words so added in the codification are italicized below, is as follows:

Section 2838. “After adopting plans, specifications and estimates, the commission shall invite bids and award contracts for the building and for furnishing, heating, lighting and ventilating it, and for the sewerage thereof. Until the building is completed and accepted, by the building commission, it may determine all questions connected therewith and shall be governed by the provisions of this chapter relating to the erection of public buildings of the county.”

The General Oode of Ohio is not merely the work of a codifying commission, but it is also the enactment of the Genera] Assembly. Such important language could not have been added by inadvertence or without purpose. Nor is it inconsistent with the preceding words of the clause of which it has been made a phrti The power granted. the building commission to determine all questions connected with the building of the court house and. jail is simply thereby modified by the requirements of such provisions of the chapter as are applicable thereto. The fact that certain sections of this chapter relate exclusively to bridges, infirmaries or children’s homes only renders those particular sections inapplicable, and is no argument against the controlling force of all provisions which are plainly applicable. As has been noticed in the opinion of the trial court, the words used by Davis, J., in Mackenzie v. State, 76 O. S., 369, on page 373, * * * “It was the easiest thing possible, if it were intended that this building commission should be controlled by the existing. law to have, so said without, otherwise..defining.the;.powers' add. duties of _ the; commission., ’!. might, we lb have ..offered’ a. sn.gr gestión to the codifying commission and the General. Asseniblv for the'change so made iñ the law.

The main contention of plaintiff in error is that the.members of the building commission were, so limited by the terms of Sec- • tions 2343 and 2355 of the General Code, that it. was illegal fop.’.them to prepare plans and specifications for more.than ..one class of material or one mode of construction, in- any of the elements that enter into the building of the new court house, or to receive proposals under such so-called alternative plans'. Plans and specifications were made and bids taken in the alternative on different kinds of granite, limestone and sandstone for. stone work; oil different kinds of reinforced concrete work, and. .sundry other,..work and materials and for the'inclusion, or the exclusion of'the demolition of the present court house and jail on the site of the new structure as part of the masonry.

No claim is made that the plans and specifications were not sufficiently full, accurate, complete and detailed in all respects as required by the law, as to each and every one of these so-called alternates. Nor was it claimed that full opportunity had not been given to all persons to bid separately for labor and materials''on each or. all of said alternates, nor that the ..Charles McCaul Company was not the lowest bidder and lower than the separate bids therefor in the aggregate on the plan under which the-' award was made.

The objection to the contract therefore resolves itself down to plaintiff’s claim that Section 2343 requires that all matters relating to the contract must be so determined in advance that only one possible plan can be considered or bid upon, so that when the bids are received it only becomes a matter of mathematical calculation to determine the lowest bidder and make the award to him.

Cbunsel for plaintiff contend that such a construction should obtain in order to interpose a bar to any possibility for graft or corruption. They disavow any charge of corruption in this ease and admit the high character and honesty of purpose of all of the defendants, but at the same time claim that a different construction of the statute would, through the guise of a wide official discretion, offer an opportunity for dishonest officials by improper manipulation to defraud the tax-payers.

Counsel rely largely upon the case of State, ex rel, v. McKenzie, 9 C.C.(N.S.), 105, and adopt the reasoning of the court’s opinion there. The judgment of the circuit court in that case was reversed in Mackenzie v. State, ex rel, 76 O. S., 369. And while the Supreme Court did not base its reversal upon the incorrectness of the decision of the circuit court as to the legality of alternative bids, it in no manner approved that decision. It should also be observed that the circuit court in that case distinctly held that, where the material is controlled by a patent or other monopoly, alternative varieties of material should be specified in order to open the way for actual competition. The argument of that court against alternative bidding as a question of public policy is in our judgment ably refuted in the opinion of Cooley, J., in Attorney-General v. Detroit, 26 Mich., 263. In Emmert v. Elyria, 74 O. S., 185, bids for the improvement of a street by paving with brick, asphalt or other material in the alternative, were held within the requirement of the státute. Many other decisions sustaining alternate bids are cited in the opinion of the trial -court.

The argument of counsel for plaintiff is practically that such a method of alternative bidding is contrary to the statute because against public policy. The words of the statute itself do not prohibit such bidding nor make a single plan imperative. They make certain requirements as to fullness, accuracy and details of the plans, bills, specifications and estimates. It is conceded all of these requirements have been met as to each alternate. The fact that more than one alternate in different materials and methods of constructions is furnished can not interfere with the others, so long as each offers the completeness required by the statute and affords the opportunity for unhampered competition as to each, nor can it in any way be deemed illegal as not complying with the statute. It offers more than is required, not less. Any one desiring to bid on a single plan may do so, and is simply offered several from which he may select the one, or as many as he may desire.

If not found contrary to the words of the statute, why should it be deemed against public policy. The acts of the General Assembly certainly may be said to disclose public policy. The last paragraph of the very section which counsel for plaintiff claim has been violated, Section 2343. General Code, provides that nothing in the section shall prevent the commissioners from receiving alternate bids on iron or reinforced concrete substructures for bridges for which they themselves may furnish the necessary plans and specifications. Section 2345, General Code, authorizes alternate bidding on bridge construction on plans and specifications furnished by the bidders, and under Section 2344, plans may be prepared or not by the county at the discretion of the commissioners.

Sections 2362, 2363 and 2364, which were admittedly followed by the court house building commissioners in this case, also provide a method for alternate bidding by allowing distinct and separate bids for materials and labor for each separate and distinct trade or kind of mechanical labor, employment or business entering into the improvement, while at the same time receiving lump bids for the entire structure. It must therefore be apparent that the alternate bids complained of in this case are neither inhibited by statute nor contrary to public policy and that the contract thereunder is a legal and valid contract.

The opinion of the trial court furnishes a full and complete discussion of the questions involved and the authorities relied upon. It meets the entire approval of this court, and renders it unnecessary to further discuss the interesting questions raised and the many cases cited in the oral arguments and exhaustive briefs of counsel on both sides.

The judgment below is'affirmed.


text:
    ACTION UNDER AN AGREEMENT FOR SHIPMENT OF PERISHABLE GOODS.
    Court of Appeals for Licking County.
    Fruit Dispatch Co. v. F. Lisey & Co.
    Decided, March Term, 1915.

      Sales of Perishable Goods f. o. b. — At Rislc of Purchaser After Delivery to the Carrier — Title Passes With Delivery to Carrier, "When— Errors in Charge of Court.

    1. The judgment rendered in this case has been twice reversed on the weight of the evidence, and but for the statute which provides that the same court shall not grant more than one new trial on the weight of the evidence against the same party in the same case, a third reversal would be granted on that ground.
    2. It is error to refuse to give to the jury before argument charges which have been submitted for that purpose and which embody substantially the provisions of the agreement upon which the action is based.
    3. In charges which are given to the jury it is error to include one which in effect permits the jury to add to the agreement,' but they should be restricted to a determination of the rights of the parties under the agreement as made and entered into by them.

      Jones & Jones and Watson, Stauffer & Davis, for plaintiff in error.

      Smythe .(& Smythe, contra.

      Shields, J.; Powell, J., and Houck, J., concur.
    A petition in error is filed herein to reverse the judgment of the court of common pleas, in which a judgment was rendered in favor of the defendant in error against the plaintiff in error.
   In its second amended petition filed, the plaintiff alleged, in . substance, that it is and was on the 19th day of July, 1906, a corporation, and that the defendant is and was on said date a partnership doing business in said Licking county, Ohio. That on said date—

“the plaintiff and defendant entered into an agreement in writing for the purpose of fixing and determining the terms and conditions on which they would then and thereafter do business by and with each other in the matter of purchasing and selling bananas and fruit, and that by the terms of that agreement it was agreed by and between the plaintiff and defendant that all bananas and fruit which then or thereafter was sold by the plaintiff to the defendant should be sold and purchased under and pursuant to the terms and provisions which were then known and designated by the plaintiff as ‘uniform conditions covering sales,’ and which uniform conditions covering sales provided that all bananas that might then and thereafter be sold by the plaintiff to the defendant and purchased by the defendant from the-plaintiff should be sold and delivered f.o.b. every car at the seaboard, with the exception of special sales, which are mentioned in said agreement. It was further agreed that after delivery by the plaintiff of bananas and fruit to. the carrier at the seaboard, the same would be at the sole risk of the defendant, that every order for or sale of bananas or fruit given or made after the same should have been shipped at the seaboard should relate back to the time of such shipment, and should have the same force and effect in every respect as if made prior to such sale.”

That other and further provisions are incorporated in said agreement, defining the rights and liabilities of said parties, which are set forth in said petition in minute detail and at considerable length, but which are not deemed necessary to set out or refer to herein at this time. That on the 27th day of November, 1908, when said written agreement was in full force, and in pursuance of the terms of said agreement, and upon the order of the defendant, the plaintiff sold and delivered to the defendant one carload of Jamaica 9-hand bananas, at the agreed price of $181.-08, for which said sum, with interest from said date, judgment was asked.

To the foregoing second amended petition of the plaintiff, the defendant in its answer set up two defenses, one containing a general denial, and the other:

“That on or about the date stated in plaintiff’s second amended petition the defendant ordered a car-load of bananas from plaintiff, to be delivered to defendant in Newahk, Ohio. That said bananas were not delivered to it by plaintiff and were not accepted by the defendant; that on the contrary thereof said bananas arrived in said city of Newark spoiled and were of no value. That said bananas were spoiled by reason of the carelessness and negligence of the plaintiff in preparing and packing the same for shipment and were accepted by plaintiff from the carrier at Newark, Ohio.”

In a reply filed by the plaintiff to the second defense -in said answer a general denial is made of the allegations therein, except that the defendant ordered of plaintiff a- car-load of bananas-.

Cpon the issues thus made trial was had, resulting in a ver-, diet for the defendant. Upon a motion for a new trial being overruled, judgment was entered upon said verdict for the defendant, ¿nd a petition in error, with a bill of exceptions, was filed in this court for a review of said judgment and proceedings in said court of common pleas.

Of the numerous grounds of error alleged in said petition in error for a reversal of said judgment, those only which are deemed important, and which were argued to this court on behalf of plaintiff in error, will be adverted to in this opinion.

The record shows that this ease has been tried three different times in the common pleas court and has been passed upon twice by the circuit court, each time the judgment below having been reversed because of being against the manifest weight of the evidence and contrary to law, and the case is now again in this court. If there is any virtue in the legal maxim stare decisis, it would-seem that this case ought not to have many more years to run— its judicial history should be ended. But while the uncertainty of the administration of the law and of the law’s delay should not receive judicial sanction in encouraging protracted or unnecessary litigation, still it is the constitutional privilege of litigants to pursue their legal rights in methods of their own selection. As indicated, this ease was twice reversed on the weight of the evidence, and but for the statute noAV in force that the same court shall not grant more than one new trial on the weight of the evidence against the same party in the same ease, we would reverse the judgment of the ‘court below on that ground, if for no other, because an examination of the evidence contained in the bill of exceptions in connection with the agreement made between these parties, and the order given for the bananas in question for which a recovery is laid in the petition of the plaintiff below, shows, in our judgment, that the verdict of the jury was clearly against the weight of such evidence. A reading of said bill of exceptions shows that Fred Lisey, one of the defendant’s witnesses, and the principal defendant herein, on the last trial testified in direct examination that he ordered of the plaintiff “Jamaica firsts,” but that the bananas shipped were not “firsts,” and therefore the order Avas not filled as given. On cross-examination of said witness on page 147 of the record appears the following:

“Q. When did it occur to you to say, as you did yesterday afternoon, that the bananas in this-shipment were not ‘firsts’? A. They were not ‘firsts.’
“Q. When did it occur to you to make that statement? A. As soon as I looked iiito the car.
“Q. Don’t you know that in all the controversy in this case for five years that you have not mentioned that feature of this case before? A. I don’t know.
“ Q. Do you say that, you ever complained to anybody about this car on account of their not being ‘firsts’? A. I couldn’t say about that.
“Q. If so, when did you malm it? A. I think I said in my former testimony that they Avere a thin skinned banana.
“Q. What does it take to make a ‘Jamaica 9’? A. It takes 9-hands.
“Q. Did you 'know at that time how the Fruit Dispatch Company classified its bananas? A. Yes si.
“Q. You knew that they classified 9-hand as ‘firsts’? A. Yes, sir.
“Q. Irrespective of what they weighed, yon know that a. 9-liand Jamaica banana was a ‘first’ irrespective of what it weighed? Yes, sir, it was called a ‘first.’
“Q. These were called ‘firsts.’ A. Yes, sir.
“Q. And they were ‘firsts.’ A. They were 9-hand.”

The best evidence showing what the order really given was is to be found in plaintiff in error’s exhibit “A,” at page 82 of the record, which appears to be an acknowledgment of such order by the resident manager of the plaintiff in error at Columbus, Ohio, to the defendant in error, and which is in the words and figures following, to-wit:

“Columbus, 0., November 27,1908.
“F. Lisey & Co.,
Newark, Ohio.
“Dear Sirs: We beg to acknowledge the receipt of your telephone order for one car Jamaica nine hand bananas, to be shipped from Philadelphia, on November 27th, 1908, or as near thereafter as possible. The price to be $1.20 per cwt. f. o. b. seaboard.
“This memorandum is merely an acknowledgment and not an acceptance of your order, which is to be accepted only by shipment, and upon' and subject to the terms printed on the back hereof.
“Yours truly,
“Fruit Dispatch Company,
“H. E. Reynolds.”

Plaintiff in error’s Exhibits “D” and “E” also show that on November 27th and November 28th, 1908, the defendant in error was advised that said shipment wras of Jamaica 9’s, which, when considered with the admissions of the defendant in error, leave no doubt in the mind of the court as to the order having been filled as given. We think the evidence is that Jamaica 9-hand bananas were ordered, as shown by said order, and said order governs, notwithstanding the claim made by the defendant in error in this respect, and if the bananas were furnished as ordered the provisions of said agreement would control. We are led to thus remark upon the effect of this evidence because of its connection with the court’s instructions to the jury in its general charge as follows:

“If, however, you find from the evidence that the bananas in question, delivered on the car at Philadelphia, were not of the kind and quality ordered, or were not properly loaded by the plaintiff, and delivered to the railroad company in good condition, and by reason thereof the bananas were injured in transit, then the defendant was not bound to accept this car, and you will return a verdict for the defendant.”

Under the agreement made*and order given, we think this instruction was prejudicially erroneous. We are not unmindful of the rule laid down in the case of McAllister v. Hartzell, 60 O. S., 69, that where the jury find on any one of several issues presented by the pleadings the verdict may be upheld; but the case here is not of that character under the terms of said agreement and order, nor could such a claim, if made, be sustained in our judgment in the face of the record.

As was said by Judge Donahue in announcing the opinion of the circuit court in this case whén it was first heard by that court, when speaking of the entire absence of evidence that the bananas were to be delivered in - good condition at Newark under the terms of the contract:

“We recognize that it is an extremely delicate matter and sometimes error for the court to say there is no evidence in the case in respect to an issue involved therein, but it nevertheless becomes the duty of the court, when there is no evidence sustaining an alleged defense, upon proper request of the party, to so instruct the jury. And we think this was a case wherein the court should have instructed the jury in that regard.”

It is also urged that the court below erred to the prejudice of the plaintiff in error in refusing to give to the jury in charge before argument requests Nos. 30, 32 and 3.4, and each of them, submitted among others by the plaintiff in error. These requests, as we interpret them, embody substantially the provisions of said agreement to which they relate and, in our judgment, were proper instructions to be submitted to the jury, and in refusing to so give them we think that the action of the court below was prejudicially erroneous.

We are also of the opinion that requests Nos. 1 and 2, submitted to the jury -before argument on behalf of the defendant below, were not proper but wrong. Request No. 1 is as follows:

“A contract of sale for the delivery of perishable goods in carload lots, f.o.b., shipping point, where the car is loaded by the seller, and not by the common carrier, requires of the seller that he should properly load and deliver such car in good condition to the railroad company. There the responsibility of the seller ends, but if he should fail, in any particular, in properly loading such ear and deliver it to the railroad company in right condition, and-by reason of which failure the goods were injured and destroyed in transit, the buyer is-not'bound tó-receive--the same, nor does the property in the goods.pass to him until the obligation of'the shipper is discharged with reasonable care and diligence. ’ ’

This instruction -was certainly proper in so far as it relates to the proper loading of the bananas on the car and the delivery of such ear to the railroad company'for shipment, but it undertakes to and does, in effect, say to the jury that any failure-on the part of the plaintiff in this respect, resulting in injury to the fruit in transit, wquld absolve and’ discharge* the defendant from all obligation to receive it, and. that ■ the title .-to the same did not pass, etc. This, we think, was in direct violation of the express terms of the agreement pleaded and not denied.

Said request No. 2 is as follows:

“The law of such contract requires that the seller shall do that thing which is right and reasonable for -the protection of perishable property, to be delivered f.o.b. -at shipping point, and the question as to what is right and reasonable is a question for the'jury;”

This request delegates to the jury the exercise" of á power to determine what was and -what was not a proper method to be employed for the preservation of perishable property f. o. b. In other -words, it takes away .from the shipper and makes the jury -.the .judges of what should and what should not be done in this respect. The province of the jury was-not -tq makeup agreement for these parties, but to determine their rights under the agreement made, entered into and acted upon by them. In so instructing the jury, we think the court below erred to the prejudice of the rights of the plaintiff in error.

It is also urged that the court below erred in the admission and rejection of certain evidence offered upon the trial. If this were the only error alleged in the record for the reversal of this judgment, we should hesitate, if not refuse, to reverse it; but in addition to what has already been said, it appears that on page 133 of the record, when the witness Lisey was describing the condition of the bananas on Monday, as they reached Newark on the Sunday preceding, on direct examination was asked the following question:

“Q. In what condition would they have to be received by you — a wholesale dealer — to be in marketable condition?”

This question was objected to, which objection was overruled, and an exception duly taken.

Again, on page 139 of the record, it appears that said witness, on direct examination, 'was asked the following question:

“Q. Taking into consideration, Mr. Lisey, the condition of the.bananas when you first saw them, and the condition of the car when they arrived in Newark, and the length of time that they had been on the road, from your 28 years’ experience in the banana business, what do you say as to the condition of the bananas when they actually went into the car, or when they left the hold of the ship ? What condition must they have been in?
“By Mr. Davis: I object.
“The Court: The objection is overruled.
“By Mr. Davis: Note an exception.
“A. The bananas were either too hot coming out of the steainer, or the car was too hot when they put them in the car.
“By Mr. Davis: I move to rule out the answer.
“The Court: The motion is overruled.
“By Mr. Davis: Note an exception.”

We think that both of the foregoing questions, including the answer to the latter question, were objectionable, and that it was eiT'or off the part of the tíourt in admitting them.

For the errors indicated, the judgment of the court of common pleas will be reversed, and said cause is remanded to said court for further proceedings according to law.


text:
    DEATH IN AN ELEVATOR. SHAFT.
    Court of Appeals for Hamilton County.
    Mary Connelton, Administratrix, etc., v. Adolph Loeb, Doing Business as Adolph Loeb & Company.

    Decided, December, 1913.

      Negligence — Allegations of, Must he Supported Toy Direct Evidence as to Hoto the Accident Complained of Occurred — Guess Work as to Hoto an Employee Happened to Fail Down an Elevator Shaft.

    The mere finding of the decedent employee fatally' hurt at the bottom of an elevator ahaft in the building in which he was at work, does not make out a case of negligence in the lighting and guarding of the shaft, where no one saw the decedent fall into the shaft or knew how the accident happened which resulted in his death.

      McMullen &• McMullen and Olio Pfleger, for plaintiff in error.

      Cohen, Maók é¡ Hurtig, contra.
    Jones (E. IL), J.; Swing, J., and Jones (Oliver B.), J., concur.

       Affirmed by the Supreme Court with'dut opinion, Maiy 4, 1316.

   At the close of the plaintiff’s evidence offered at the trial of this ease in the court below the court sustained a motion by defendant for a directed verdict. A motion for a new trial was later overruled and judgment rendered for the defendant; and to reverse said judgment eiTor is prosecuted here.

Plaintiffs intestate whs a boy nineteen yeai’s of age, employed by the defendant as an assistant in the office. The day before his death, after having been missed from his work for over an hour, he was found with his skull factured at the bottom of the elevator shaft, and he died in the city hospital as a result of said injury.

The plaintiff’s petition avers that the area way surrounding the elevator shaft and the entrances thereto were insufficiently lighted, and that improper and insufficient guards and gates were furnished to protect employees and others from falling into the shaft; and that intestate by reason thereof fell into the said shaft, and on account of plaintiff’s negligence in not properly lighting and protecting the openings into said elevator shaft be received the injuries which caused his death.

No one saw the accident, and no evidence whatever was offered as 'to how it occurred. In fact, the evidence' does not prove that his death was accidental-or due to the alleged acts p| negligence in any-way.

In the case of L. S. & M. S. Ry. Co. v. Andrews, Admr., 58 O. S., 426, it is held, quoting from the syllabus:

"In the absence of direct evidence in its support, an allegation that one sustained injuries by reason of the negligence of the defendant is- not sustained by proof of circumstances from which the fact that his injuries were sustained is not a more natural inference than any other;”

And in the fifth, paragraph of the syllabus in Cleveland Terminal & Valley R. R. Co. v. March, 63 O. S., 286, the same principle is stated in the following language:

"To establish negligence there should be either direct proof of the facts constituting such negligence, or proof of facts from 'which negligence may be reasonably presumed. There should be no guessing .by either court or jury.” .. .. :. . ' ...

The court below followed the ¡imposition of law above stated by our Supreme Court in directing the verdict in this_case, and an examination of the bill of exceptions containing all the evidence offered by the plaintiff below forces us to the conclusion that the. trial court was not only justified in instructing the verdict rendered, but that Iris refusal so to do would have been error

Judgment -affirmed.


text:
    LIABILITY FOR. A GAS EXPLOSION IN A VILLAGE OWNED OPERA HOUSE.
    Court of Appeals for Wayne County.
    The Village of Ashland v. T. R. Marks.
    Decided, January Term, 1913.

      Negligence — In the Installation of a Gas Heater in a Public Building— Fine Results'and One of the Tenants Loses His Stock of Goods— Liability for the Loss.

    The village of A, through its council, entered into an oral contract with a natural gas company whereby there was to be installed, as an experiment, certain heating apparatus in the opera house building owned by the village, said apparatus to be paid for by the village if found satisfactory, otherwise to be removed by the gas company. Members of council directed where the heater should be placed, and one of their number supervised its installation and inspected the work after it was done. Two days later there was an explosion and the building was destroyed by fire, as a result of which the court found there was negligence in the installation of the heater. The plaintiff below was a tenant of the building, occupying one of the store rooms on the ground floor with a stock of goods which was destroyed in the burning building. In his suit for damages on account of his loss he 'made both the village and the gas company parties defendant. The triai judge dismissed the gas company from the case on demurrer. Subsequently the village in defending claimed that the plaintiff locked the door of his store, and thus prevented the saving of at least a part of his stock of goods. The court entered judgment against the village for an amount which covered a part of the loss sustained. Held:

    1. That the gas company was not an independent contractor in the installation of the heater,, and under the rule of respondeat superior was properly dismissed from the case.
    2. That the negligence of the village was of a character which under the circumstances of the case rendered it.liable to its tenant for some measure of the loss he sustained.
    3. That the village was protected by the charge of the court with reference to the alleged negligence of the plaintiff in locking his door and failing to use due diligence in the removal of his goods; and the verdict of the jury indicates that they had regard to the instruction of the court in that respect, inasmuch as the verdict which they returned was for less than the value of the goods destroyed.
    4. While it is the tetter practice to file an ainended petition from which a defendant who has been dismissed from the case has been eliminated, yet where this has not been done and the original petition is sent to the jury room without objection being made thereto, and the jury is instructed to disregard all averments regarding the defendant who has been dismissed, a reviewing court will not treat the sending of the original petition to the jury room as error.
    Marriott, J.; Vooriiees, J., and Sijiel-ds, J., concur.
    This case comes to this court on petition in error-from the Court of Common Pleas of Wayne County.
   The case had its origin in Ashland county, Ohio. Tlie suit was originally filed by F. R. Marks against the village of Ash-land to recover for damages to certain property of the plaintiff destroyed by fire, claimed to have been caused by the negligence of the officials of said vill.age, managing and controlling the opera bouse building owned by tlie village.

The original petition was filed on February 12, 190J, and the case has had a somewhat varied career in the courts from that lime 1o the present.

The plaintiff claims that he occupied a room on the lower floor of the opera house building, in which he conducted a general supply store, dealing in stoves, tinware, etc., and also stored his wares under a contract of lease with the said village.

The cause was first tried to a jury, resulting in a disagreement, and thereafter the plaintiff amended Ms petition, making the Logan Natural Gas & Fuel Company a party defendant, charging joint negligence of the village and said gas company. The gas company answered, and the cause went to trial upon the issues joined by the pleadings, at the October term of tbe Court of 'Common Pleas of Ashland County, to-wit, January 11, 1907, resulting in a verdict in favor of the plaintiff against the Logan Natural Gas Company for $500. A motion for a new trial was filed, overruled, and judgment rendered upon the verdict. The plaintiff below also- filed a motion for a new trial, which was overruled, and both parties prosecuted error to the cireuit court.

The cause was heard in the Circuit Court at the May term, 1907, where the judgment against the gas company was reversed, the circuit court holding that Marks, under the pleadings, could not maintain as matter of law his action or recover against the gas company, and that the court below erred in refusing to give to the jury certain charges requested by the gas company, and it was ordered that said judgment and proceedings of the court of common pleas against the gas company be, and the same wrere, reversed, set aside and held for naught; and the gas company restored to all things lost by reason of the judgment, and the cause was remanded to the Court of Common Pleas of Ashland County, to be proceeded in according to the rights of the parties.

The proceedings in error prosecuted by Marks against the village of Ashland, upon a petition in error, were heard by the circuit court at the November term thereof, 1907, where the record shows that the cause came on to be heard upon the petition in error, bill of exceptions, original papers and pleadings, and upon consideration whereof the judgment of the court of common pleas was reversed, for the reason that the court of common pleas erred in its charge to the jury and erred in rendering judgment against the plaintiff in error, F. R. Marks, and the cause was remanded to the Court of Common Pleas of Ash-land County for a new trial and to be proceeded in as provided by law.

Thereafter, on November 24, 1908, a motion by the plaintiff, Miarks, was filed, praying for a change of venue, which motion was heard December 5, 1908, and by order of llie court the cause was transferred from Ashland county to Wayne county, upon the ground, as the entry shows, “that a fair and impartial trial of the cause could not be had in Ashland county. ’ ’

After the cause was transferred to Wayne county, the defendant, the Logan Natural Gas & Fuel Company, withdrew its answer and filed a demurrer to the petition, upon the ground that the petition did not state facts sufficient to constitute a cause of action against the gas company. This demurrer was sustained by the court, and the gas company dismissed from the action, and the cause, as between the plaintiff and the village, came on to trial before a jury at the October term of court, to-wit, November 23, 1911, resulting in a verdict in favor of the plaintiff, Marks, against the village of Ashland in the sum of $5,690.

Motion for a new trial was filed by plaintiff in error, the village of Ashland, overruled, and judgment entered upon the verdict, to reverse which judgment these proceedings in error are now prosecuted to this court.

The petition in error alleges numerous grounds of error, but the principal grounds urged by plaintiff in error are: (1) That the verdict of the jury was not sustained by the evidence; (2) That the court erred in sustaining the demurrer filed by the gas company to the petition; and (3) in dismissing the gas company from the case.

The circuit court having had the question of the sufficiency of the petition before it in the proceedings prosecuted from the Court of Common Pleas of Ashland County, and having there held, as the entry shows, that the ifiaintiff below, F. R. Marks, under, the pleadings could not maintain, as matter of law, his action or recover against the gas company, this court will not review that finding, and therefore hold that there was no error in the judgment of the court below in sustaining the demurrer filed by the gas company to the petition.

This court is in accord with the finding of the circuit Court of Ashland County in its holding that the plaintiff below, under the averments of the petition, had no right of action against the Logan Natural G-as & Fuel Company, nor could he recover in this action against that company.

Under the averments of the petition it is not shown or claimecl that there was any contractual relation between the gas company and the plaintiff Marks, that there was any privity of eonfract between Marks and the Logan Gas Company. This being admitted, Marks could not recover against the gas company for any failure upon its part to properly perform its contract made with the village.

On the contrary the petition avers that the contract or permission under which the gas company installed the alleged dangerous and unsafe heating apparatus in the. auditorium of the opera house was made between the village and the gas company; that the gas company performed its work in a negligent, careless, improper and unsafe manner, by reason of which carelessness on the part of the gas company the building was burned and plaintiff’s property destroyed.

Under the averments of the peition we think there was no jause of action shown entitling the plaintiff to recover against the gas company.

In 4 C. C. Rep., 471, which case was affirmed without report in 52 O. S., 623, the doctrine here referred to is distinctly held. There the gas company entered into a contract with S. Bros, to install a fixture for heating by natural gas a steam boiler. The first time it was used the boiler exploded, and the claim was made that the explosion was caused by reason of the negligence of the gas company in putting in and connecting up the fixtures. But it was held that the contractual relations of the gas company were with S. Bros, alone; that there was no contractual relation between the gas company and the engineer; that the gas company owed no duty to the engineer that rendered it liable to him for the alleged negligence.

In the ease of Morrissey v. City of Cincinnati, 14 C.C.(N.S), 19, and which in its facts is very similar to the case at bar, the plaintiff brought suit against the city as well as the contractor, alleging a joint liability and charging negligence against Ma-honey, the contractor.

A demurrer was filed to the petition, as in the ease at bjar, upon the ground'that the petition did not state facts sufficient to constitute a cause of action against the contractor. The demurrer was sustained and Mahoney dismissed from the ease. The cause then proceeded to trial upon the issues made by the petition and the answer of the city, and at the close of plaintiff’s testimony the case was withdrawn from the jury and judgment rendered against the plaintiff.

The question of “independent contractor” was raised in that case, as in this. The case at bar is a much stronger case for the application of the rule discussed. In the case at bar there is no specific contract averred or shown in the record between the village of Ashland, the owner of the opera house, and the gas company, under which the gas company was to install the heater. The averment is that the “defendant, the village of Ashland, authorized and permitted the defendant, the Logan Natural Gas & Fuel Company, to install a dangerous and unsafe heating apparatus in the auditorium of the opera house as an experiment,” etc.

We think it quite clear that under the averments of the petition the relation of master and servant existed between the village and the gas company, and not the relation of an “independent contractor.”

The general rule is that if the master authorizes or directs the doing of a particular thing, he is liable for the negligence of the servant, and if he employs another to do for him a particular thing, under his immediate authority or control, the master is' still liable; that this liability rests upon the general rule of respondeat superior. .

We think the court did not err in sustaining the demurrer of the gas company to the petition, and in dismissing the company from the ease.

It is further contended by the plaintiff in error that the verdict of the jury was not sustained by the evidence. It is claimed “that the proof does not show by a preponderance of the evidence that the fire in question originated at the heater.” On the contrary it is contended that the fire which destroyed the building originated upon the stage, from furnaces under the stage, which had long been in use and which were far removed from the newly installed gas heater.

The testimony as to the origin of the fire was quite conflicting, but we have read the entire record, and we think the evidence fairly establishes the contention of the plaintiff below that the fire started at the gas heater, and was the result of negligence and carelessness in placing and installing the same, and that the verdict of the jury was warranted by the evidence shown in the record.

The petition charges negligence on the part of the village in installing and placing in the auditorium of the opera house an apparatus for heating the auditorium with natural gas; that the same was by the authority and permission of the village installed by the gas company in “a negligent, careless, improper and unsafe manner, pursuant to said authority given it;” that by reason of the negligent manner in which said gas heater was installed and connected up, the building was burned' and plaintiff ’s property destroyed.

Negligence is the want of care. It is the violation of a duty which one owes to so conduct himself and his business as not to injure others in person or property. In other words, it is the want of such degree of care as a person of ordinary prudence or foresight would exercise under like circumstances.”

The question whether the doing of a certain act or thing is negligence depends largely upon the circumstances surrounding each particular case. Under certain circumstances and surroundings an act may be entirely proper and harmless, while the same act done under other and different circumstances woiild be grossly negligent or even criminal, depending entirely on the time, place and circumstances at and under which the act is done.

We think there was evidence of negligence quite sufficient to. warrant -the jury in returning its verdict for plaintiff Marks, and that the court committed no error in entering judgment thereon.

The plaintiff in error further contends that the Logan Natural Gas Company occupied the relation of an “independent contractor.,” and that the city can not be held for the negligent acts of such contractor; and counsel have"prepared and submitted to the court a very able and elaborate brief on the law of “independent contracts” and the rule exempting employers from liability for damages where work is done by an “independent contractor. ’ ’

This issue is not made in the pleadings, and the second amended answer, upon which this case was tried, makes no averment as to an “independent contractor.'” Little if any evidence appears in the record tending to establish the claim made in argument that the gas company in its relation to the village was an “independent contractor.” We may nevertheless express our views upon that phase of the case.

We think the record falls very short of establishing a case of “independent contractor,” from whatever angle it may be viewed. Whether a person occupies the relation of an "independent contractor” must be determined from the terms and conditions of the contract. If the contract is in writing the language of the instrument will determine.

We have heretofore noted the fact that there was no written contract between the village and the gas company. ' The minutes of the proceedings of the city council are most meager and throw but little light upon the subject or the terms of the contract, if any was had. The village owned an opera house building, containing at least three rooms on the lower or ground floor, occupied by tenants, to whom the city, owed a duty of protection against damage to person or property from wrongful or negligent acts of itself, its agents or employees. The upper or second story was used as an auditorium, where the public generally were invited to assemble and witness public entertainments at all times. The auditorium being a place of public resort, and being under the care and control of the village authorities, a very high degree of care for the protection and safety of the public was imposed upon those charged with so great a responsibility.

If those in charge of such a place wished to "experiment” with a dangerous appliance for heating, common prudence and a .proper regard for the public safety would seem to have dictated that the experiment and test of the efficiency of the apparatus be made in some other place than the auditorium of an opera house. Yet the record discloses that the village council "authorized and permitted” the Logan gas company to install in the auditorium of this public hall one of its new and untested heating apparatuses "as an experiment,” with the agreement that if it proved satisfactory, the city would permit the Logan Gas Company to install two of its apparatuses. Til not., they would not pay for the one installed.

In pursuance of this agreement the gas company installed the heating apparatus, which the record we think fairly shows caused the destruction of the building, practically within two days after the gas was turned into it. It is fortunate that the •fire happened at the noon hour instead of at night, when the auditorium might have been filled by citizens of Ashland.

It is true, as a general rule, that one who has contracted with a competent and fit person, exercising an independent employment, to do a piece of work, not in itself unlawful or of such a nature that it is likely to become a nuisance, or to subject other persons to unusual danger, according to the contractor’s own methods, and they being subject to control, except as to the result of his work, and subject to other qualifications hereinafter stated, will not be answerable for the wrongs of such contractor * ,:i * in the prosecution of such work.” See Thompson on Negligence, Section 621.

But the ease at bar does not fall within the rule just quoted for the obvious reason that it is not shown that the. work done by the gas company was not subject to the control of the village. Oh the contrary the record shows that one of the members of the council at least, McAdoo, was in charge and had supervision of the installing of this heater.

Moreover, one of the “other qualifications” of the rule is “that if the master authorizes or directs the doing of the particular thing,” he is-liable for the negligence of the servant; «< * # liability rests upon the general rule of respondeat superior. * * * This rule is founded on the power of control and direction, which the superior has the right to exercise, and which for the safety of other persons he is bound to exercise over the acts of his subordinates.

There is a class of cases where the liability of the employer can not be. avoided by the.employment of an “independent contractor.” One exception to this rule is found where the employer, from the nature and character of the work, is under a duty to other persons to see that the work is carefully and properly performed. There is a class of cases where the owner of property is under such obligation to strangers and other persons to see that any work done on such property is done in a manner not to injure such persons or strangers, and the law toill not permit him to escape this liability by the intervention of an “independent contractor. ’’

When the evidence brings any given case within this class, the employer will be held liable notwithstanding any contract lie may make with a third person to perform the work. Thompson on Negligence, Section 539; 61 O. S., 222.

We think the ease at bar, as shown by the evidence, is brought clearly within the foregoing rule. Moreover, the evidence shows that the village authorities not only directed where the heater should be placed, but reserved control over the manner of doing the work. They were present while the work was being done, supervised it, and inspected it after it was done.

We are of the opinion that the relation between the parties to the work in the case at'bar was not an independent one, and that the rule of respondeat superior applies.

It is urged by counsel for plaintiff in error in their brief, but it is not one of the grounds assigned in the petition in error, “that the petition in the trial below went to the jury when they retired to deliberate, and we think the plaintiff should have filed an amended petition eliminating all reference to the Logan Natural Gas & Fuel Company;” and they therefore claim that they were prejudiced by the submission of the case to the jury in the form in which the petition went to the jury; that the allegations of the petition against the Logan Natural Gas & Fuel Company would have a tendency to prejudice the minds of the jury and to confuse the jury in their deliberations.

We do not think so. First, the record fails to disclose that counsel for plaintiff in error (defendant below) offered any objection to the submission of the case in the manner in which it was submitted, nor did they suggest to the court the propriety of requiring the plaintiff below to amend his petition, eliminating the Logan Natural Gas & Fuel Company. Moreover, we find that the court gave them complete protection in his charge, wherein he instructed the jury that they should not consider the averments of the petition relating to the Logan Natural Gas & Fuel Company, ‘ ‘ for the reason that' the Logan Natural Gas & Fuel Company had been dismissed from the case, and all allusion to it as a defendant in the case should be eliminated from your consideration. ’ ’

We may notice one further claim urged upon the court by plaintiff in error. The answer of the plaintiff in error charges negligence upon the plaintiff below, and avers that he was negligent in that he locked the doors of his place of business and was not diligent in removing his wares from the building, and by-reason of that negligence he suffered the loss.

No negligence is imputed to Marks as to the method of installing the apparatus, or as to the primary cause of the injury, to-wit: the explosion of the gas, the burning of the building, which destroyed or damaged his property. But the negligence charged to Marks ivas in his failure to remove or permit the removal of his property from the burning building.

The negligence, if established, would not wholly defeat a recovery, but would only go to the extent and amount of the loss occasioned by his negligence in the reduction of the amount of recovery.

On the other hand, it is insisted that even though Marks might have removed some of his goods, he could not possibly have removed all, and that in the very nature of things he would be entitled to recover from the defendant (plaintiff in error) if tl:e defendant was at all responsible to him for anything of value of so much of the goods as he could not have saved.

This question was fairly put to the jury by the court, and the jury were instructed to consider the evidence reflecting upon Shark’s action in locking the door, if they found the door was locked, and in his negligence in failing to remove or to permit the removal of his goods, if they found that such refusal was shown in the evidence.

We think the instruction of the court Avas right, and that the plaintiff in error was thoroughly protected by the court’s charge. It would appear from the amount of the recovery, as compared with the amount of loss sustained, that the jury most have regarded the court’s chargp in that respect and returned a verdict in such an amount as they found the plaintiff had been damaged.

Upon a full consideration of the Avhole ease we have reached the conclusion that there is no error apparent in the record prejudicial to the plaintiff in error, and the judgment is affirmed with costs but without penalty. Cause remanded for execution; exceptions will be noted.


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    MOTORMAN INJURED BY A COLLISION IN THE FOG.
    Court of Appeals for Hamilton County.
    Joseph J. Queen v. The Cincinnati Traction Company.
    Decided, January 9, 1915.

      Negligence — Motorman Running in the Fog — Collides with Car in Front and is Injured — Wealc Headlight Held Not Cause of the Accident.

    A motorman, operating under a rule which required him to run no faster in foggy weather than was consistent with safety, with his ear always under control and in disregard of the time schedule if necessary, is not relieved from contributory negligence, in colliding with the car in front of him, by the fact that the headlight with which he was provided was not as strong as some in use, since the strength of the headlight could have no effect on the safety with which the car was run, but only on the rate of speed with which it could be safely run.

      Max Levy and IF. IF. Symmes, for plaintiff in error.

      Miller Outcalt, contra.
    Jones (Oliver B.), J.; Jones (E. II.), J., concurs; Swing, J., not sitting.
   Plaintiff in error was a motorman in the employ of defendant in error. On February 22, 1909, at 5:58 a. m. he reported at defendant’s car barns at Eighth and Depot streets to take out his regular car on its run to the west end of the city. The car was equipped with the usual sixteen candle power electric light, but was a car to which could be attached a more powerful headlight known as a searchlight.-

As the morning was foggy plaintiff made application to the man in charge at the barn for a searchlight to be placed on his ear, but as the supply of these searchlights had been exhausted none was given him. lie therefore proceeded to take out the car with the ordinary headlight, and ran on his regular trip down along the Ohio river towards Anderson’s Ferry. Before reaching that place, at a point on Liston avenue, the fog having grown much heavier, his car ran into another car of the defendant company which had stopped on the track because of an obstruction in front of it, and because of the difference in elevation of the platforms of the two cars, the front platform of the car which plaintiff was operating was sheered off by the rear platform of the car in front, and plaintiff was severely injured. At the time of the accident the car in front was stationary and its full complement of lights were burning. The car operated by plaintiff was coasting down the street at a rate at which, plaintiff testified, he could stop the car within five or six feet. The fog was so heavy that he claimed that he could see but three or four feet in advance of the ear. A rule of the traction company, which was in its printed book of rules with which plaintiff had been furnished a copy, and with which he was familiar, known as No. 217, was introduced in evidence. It is as follows:

“.217. Foggy Weather. — When it is foggy and sight ahead is obscured, run car no faster than is consistent with safety. Always have car under control, even should it become necessary to disregard schedule time.”

At the conclusion of plaintiff’s evidence defendant below nioved for an instructed verdict in its favor which motion after argument was granted, and error is now here prosecuted from this action.

Plaintiff in error contends that the failure to furnish his car a proper light was the proximate cause of the collision. It is conceded that the headlight in use was the one which ordinarily was used on that run, and the only reason for asking for a searchlight was because of the foggy weather.. The only difference in the practical use of the two lights would be as to the rate of speed at which the motorman would be justified in running the car. Rule 217, above quoted, required him to run the car under such conditions.no faster than would be consistent with safety, and further required him to always have the car under control even when so doing it became necessary to disregard schedule time. There is. no question but that the violation of this rule was the cause of the injury. He had disregarded schedule time, but at the time of the accident he was running the car at such a rate that he was not able to stop it upon seeing the obstruction in front. The light that he had and the heavy-fog permitted him to see only a few feet in advance of the car, and no matter how strong the light the fog might have become so intense as to require the complete stopping of the car. The rule quoted is applicable to such a situation. It would not only permit, but might require him to stop the car entirely, and certainly did require him to run the car at only such speed as was consistent with the safety of not only himself but of his passengers. If his injury was caused by his wilful violation of the rule, he could not recover.

5 Thompson’s Commentaries on Negligence, Sec. 5395:

“If a servant violates known rules devised and promulgated by the master to promote his safety, and is injured in consequence of such violation, he can not make his own fault the ground of recovering damages from his master, but must take the consequences of his diobedience, his folly, or his recklessness.”

Tt is argued that if he had been able to secure a searchlight for his car the accident would not have happened. This would not necessarily follow, but even if it were conceded, plaintiff was an experienced motorman and knew the condition of his run and the nature of the fog in that part of the city; he knew the difference between the strength of the two headlights; he did not refuse to operate the car without the searchlight and made no complaint, nor was any promise or guarantees given him by the defendant that the small light would answer all purposes and penetrate the fog. He must be considered to have assumed any risk that might arise.

Pennsylvania Co. v. McCurdy, 66 O. S., 118:

“An employee experienced in the service in which he is engaged is conclusively held to appreciate the dangers which may arise from defects of which he has or in the exercise of due care might have knowledge.” Coal Co. v. Norman, 49 O. S., 598; Hesse v. R. R. Co., 58 O. S., 167; McGill v. Traction Co., 79 O. S., 203.

Our attention has been called to two cases very similar to -the case at bar: LaPontney v. Shedden Cartage Co., 116 Mich., 514, in which the syllabus is as follows:

“A motorman who runs an electric car, upon a foggy morning, at a rate of speed which does not permit of its being stopped in time to avoid collision with a -vehicle after the same becomes discernible upon the track ahead, is guilty of contributory negligence.”

The other is Savage v. Nassau Elec. Ry. Co., 42 App. Div. (N. Y.), 241 (aff. 168 N. Y., 680), in which the court in its opinion, at page 245, used the following language:

“It was negligence for him to proceed on the east bound track on a morning so foggy that he could not see a distance of more than fifteen or twenty feet, at any such rate of speed that he could not, as in fact he did not, stop his car in time to prevent collision with an approaching vehicle.”

In the opinion of the court plaintiff below is not entitled to recover, and the judgment is therefore affirmed.


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    PASSENGER INJURED IN ALIGHTING FROM CAR.
    Court of Appeals for Hamilton County.
    The Cincinnati Traction Company v. Margaret Handy.

    Decided, July 1, 1914.

      Negligence — In Starting Gar While Passenger was Alighting Therefrom — Limitation of Negligence to Conductor Prejudicial, When.

    In an action by a passenger against a traction company for injuries suffered from premature starting of tbe car, the use in the charge to the jury of the word “conductor,” whereas the recklessness charged was that of “agents, servants and employees,” was a limitation prejudicial to the plaintiff, and is not available to the defendant company as a ground for reversal.

      Miller Out edit, for plaintiff in error.

      Cobb, Howard d Bailey and Henry L. liockel, contra.
    Jones (E. IT.), J.; Swing, J., and Jones (Oliver B.), J., concur.

      Affirmed without opinion, Cincinnati Traction Co. v. Handy, 90 Ohio State.

   It was not error for. the trial court to give the special charge excepted to by counsel for plaintiff in error. The only possible objection that can be made to the charge is that the court used the word “conductor.” It would have been proper in our opinion to have extended this to “agents or employees.”

The allegation of the amended petition upon this point is that:

“While plaintiff was in the act of alighting from said car, the defendant through its agents, servants and employees did suddenly, recklessly and negligently start said car before plaintiff had alighted therefrom.”

.This allegation is complete as 'a charge of negligence against the company, and it was not necessary for the plaintiff to show what particular servant, agent or employee caused the car to start. In limiting the act, in his charge, to the conductor the court erred, if at all, to the prejudice of the plaintiff. There being sufficient evidence in support of the allegations of negligence contained in the amended petition,^ and finding no errors of law, we are of the opinion that the judgment below should be affirmed.


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    FEE SIMPLE TITLE VESTED UNDER. A CONDITIONAL DEVISE.
    Circuit Court of Cuyahoga County.
    Cora Blee Tracy et al v. Miranda Blee et al.
    Decided, May 18, 1908.

      Wills — Devise of Real Estate with Power of Disposal Vests Eee.

    A will devising real estate to one person generally and with absolute power of disposal, invests that person with a fee simple estate, notwithstanding the fact that the will further provides that whatever may be left of such real estate upon the death of such devisee shall pass to someone else.

      Carpenter, Young ■<& Stocker, for plaintiff in error.

      Squire, Sanders ■& Dempsey; contra.
    IIenry, J.; Wincii, J., and Marvin, J., concur.
   The sole question in this ease is whether or not the will of Robert Blee disposed of his real estate to his brother, Hugh Blee, Jr., in fee, or for life only, with remainder over. The material part of the will is as follows:

“To my brother, Hugh Blee, Jr., if he survive me, I give and devise all the rest and residue of my property of every kind and description and wherever situate. * * * In the event of said Hugh Blee, Jr., dying without issue and without will,.and there be remaining some portion of the property here devised to him, then I direct that of that the remainder be divided equally between my sisters, Mary Miranda and Sarah, and my nieces, Lizzie, Mary and Florence, to each or their heirs one-fifth, share and share alike. This is not intended to limit or qualify in any way Hugh Blee’s power to use and absolutely dispose of as he may see fit, any or all the property here given to him. ’ ’

This court in Steuer v. Steuer, 28 C. C., 145, is committed to the proposition that a will of this sort, devising real estate to one person generally and with absolute power of disposal, invests that person with. a .fee simple estate, notwithstanding that the will further provides that whatever may lie left of such real estate on the death of such devisee shall pass to someone else.

We gave careful attention to the extremely interesting arguments of counsel on both sides of this case, but we do not think it profitable to enter into an extended re-examination of the question involved.

Plaintiff may take a decree.