text:
    NEGLIGENCE — DEFECTIVE CARS.
    [Lucas (6th) Circuit Court,
    January 13, 1902.]
    Haynes, Parker and Hull, JJ.
    Michigan Central Railway Co. v. Wm. Butler.
    1. Fairure to Establish Notice to Servant oe Defective Car.
    Where a chalk mark, three X’s, generally used to indicate that a car is defective, was made on one end of a car, hut was not readily observable, a brakeman, operating the car in the yards at night, is not chargeable with notice of its defective condition; nor is the fact that the car was being set in on a repair track notice of defects where the track is also used for the loading and unloading of car wheels, etc.
    2. Such Notice Courd Onry Rerate to Defects Discovered.
    If a brakeman is chargeable with notice of defects in a car by reason of customary though not readily observable chalk marks on its side or end, such notice would only relate to the defects discovered by the car inspector and for which the car was then marked ; the notice would not go beyond the information which the employe might obtain if he went to the car inspector; as to other defects it would not impose assumption of risk upon the employe or overcome the negligence imputed prima jade by Sec. 3363-21, Rev. Stat., because of the use of defective cars.
    3. Fairure to Make Thorough Inspection.
    Where it appears that a car was inspected and found to be defective in one respect, a failure to observe that a grab-iron or hand-hold was not fastened except by being placed behind a certain plate bolted to the car, indicates a failure to inspect thoroughly, and the operation of such a car constitutes prima facie negligence under Sec. 2365-21, Rev. Stat.
    4. Jury may Consider Circumstances as Governing Action of Injured Person.
    It is proper for the jury, in the consideration of a personal injury case, in determining the question of contributory negligence on the part of an employe, in his selection of methods, to consider circumstances making it impracticable for such employe to carefully consider or deliberate upon the shades of difference in point of safety between the different usual and customary methods open to him.
    5.VlORATION OF RURES EXCUSED.
    Where, by the practice of railway employes, known to- the railway company, rules are construed as inapplicable to certain situations in;the operation of trains, such construction may relieve employes from what might otherwise be a violation of rules.

      Weight oe Circumstantial .Evidence.
    Circumstantial evidence relating to an accident and injury to a railway employe, as opposed to the positive testimony of the injured person, is not controlling unless clearly irreconcilable with such testimony. Rule applied to condition of car appliances and manner in which an accident happened.
    Testimony Corroborated by Failure to Use Witness Against It.
    Testimony of an employe, in an action against a railway company for personal injuries, that he heard the yardmaster make certain statements as to the disposition of certain cars, is corroborated to a certain extent by the fact that the yardmaster, who had been subpoenaed as a witness, was not put upon the stand to dispute the statement.
    Heard ON Error.
    E. D. Potter, for plaintiff in error.
    Cole, Whitlock & Cooper and Hamilton & Kirby, for defendant in error.
   PARKER, J.

William Butler, a yard switchman, in the employ of the Michigan Central Railroad Company, was injured on May 4,1900, at about 10 p. M., while in the line of his duty attempting to mount a flat car for the purpose of setting a brake upon it. He fell upon the track and the wheels of a car passed over his right leg, crushing it, making necessary the amputation thereof just b.elow the knee-joint. In the court below he recovered a judgment for $7,500.

The negligent act complained of was having a car in service with a defective grab-iron on the end thereof, which Butler claims gave way as he put his hand and part of his weight upon it in an attempt to spring upon the car.J

It appears that Butler had been at work for the company at its North Toledo yards, that evening, coupling and uncoupling cars that were being shifted by the yard engine to the various tracks in the yards ; that just before the accident the engine had pushed two flat cars eastward upon what -is called the ‘ ‘short repair track” of the company. That the foremost car was empty and the second car was loaded with defective car wheels. There was no eye-witness to the accident other than Butler-He’testifies that as these cars came upon the short repair track he was a short distance eastward of the point where said track diverges from the other tracks, and south of said track. That he started to intercept the cars and mount them and set brakes upon them. That because of car wheels upon the ground between him and the short repair track, he was obliged to pass a short distance to the westward, and as he came to said track, the forward or east end of the forward car, which was the empty car, had passed him, so he continued westward until he came opposite to the opening between the two cars, when he stepped between them, and, placing his right hand upon the grab-iron, which was upon tbe west end of the east car, and his left hand upon the platform of the approaching, or westward car, he attempted to spring or throw his body so as to seat himself upon the forward car, and, in so doing, he threw his weight partly upon this grab-iron, as before stated, when it gave way, with the result stated.

The evidence shows that the grab-iron, which' consisted of an iron rod about three-quarters of an inch in diameter and eighteen inches long, was placed upon the end of the car-to aid trainmen in coupling and uncoupling cars, but that it was not unusual to make the use of it, which Butler attempted on this occasion, and that this manner of mounting the cars was not considered especially hazardous: That this' grab-iron was securely fastened at the inner or northern end, but the outer or southern end had not been fastened except by being placed behind a certain plate bolted on the southwest corner and west end of the car — slipped or dropped between this plate and the end beam of the car — where it could not be dislodged by pulling down or pulling outward toward the west, but might be easily dislocated by lifting about five inches and then pulling an inch or so to the westward.

An inspector of cars in the service of the company testifies that at about 2 o’clock A. m. of the same day he inspected this car and found the forward journal on the south side cut, and the western end sill somewhat broken, and that he then put three X’s ” upon the car, with chalk, which was the usual manner of indicating to the trainmen that the car was defective, a “cripple,” and was to be set upon the répair track for repair; and he says that at that time he observed that the grab-iron was in position, though he admits that the method described of fastening the southern end was defective, and that he overlooked this defect, which we think he would have discovered if he had observed due care.

Now counsel for the company contend that the plaintiff has failed to establish that the accident happened in the way he describes it, and says that it is fairly inferable from the evidence that he áttempted to mount the eastern car, at the southeast corner thereof where there was a stirrup, a hand-hold and a brake staff, affording safer and more convenient means of mounting the car, and that he slipped and fell, through no defect in the car and no fault of the company.

This conclusion is urged, first, upon the ground that that would be the most natural and ordinary way to mount the car; and, second, because, it is said, the grab-iron, if in place, could not be dislodged by the the movement attempted, since that would cause a pressing down upon and not a lifting up of the grab-iron ; and, third, because a close inspection of the second or westward car failed- to disclose a particle of blood upon any of the wheels, while particles of blood, though infinitesimal were found upon tbe second wheel westward from the east end of the forward car, indicating that that wheel passed over the leg.

Of these in their order: First, under the circumstances related by Butler of the east end of the forward car having passed him before he came near enough to mount it, and especially in view of the fact that it was his purpose, as he says, to set the brake upon the eastern end of the westward or loaded car, whereby he could better control both cars, it is not apparent that it would have been more natural or convenient to mount at the southeastern corner of the eastern car; aud it is. shown by the testimony of many witnesses upon the subject, that the difference in the two methods, in point of ease, convenience or safety, was not great that is, the employes in this line of service discerned no great difference, and the method attempted was not unusual.

Second. While the inspector at 2 a. m. observed the grab-iron in position, and Butler testifies that at the time he took hold of it, it seemed to be in position, it is evident, if credit is to be given to the account o£ Butler of what happened, that the end had become dislodged from its position behind the plate, though the nearly horizontal position of the iron may have been preserved. This might easily happen in the twenty hours intervening between the inspection and the accident. The evidence shows that the fastening at the north end was so tight that the horizontal position of the iron might have been maintained though the south end were not behind the plate.

Third. Butler was not removed from the track until both cars had passed beyond him. Even if three of the wheels of the front car passed over his leg, four wheels of the hind car must have done so also, so that if blood should have spurted and lodged upon any car wheel, it is difficult to see why some sign of blood could not be found upon the wheels of the hind car. But the examiners thereof found no blood on the wheels of the hind car, which certainly ran over the leg whether the accident happened as related by Butler or as conjectured by the company. In view of these facts and of the extremely insignificant quantity found, which might have come from a scratch or abrasion of a hand in taking off the wheel, or a slight bleeding of the nose of some employe, or might have come from some animal (for the experts cannot say that it was human blood, or how long it had been upon the wheel), or from any one of a multitude of causes not improbable, we think that this and the other circumstances mentioned are not sufficient to overcome the positive statement of. Butler; at least they are not sufficient to require the jury to disregard the testimony of Butler or to authorize us to say that the verdict is contrary to the weight of the evidence. Besides, Butler’s account has some corroboration in the testimony of the car inspector who says that twenty-five minutes after the accident happened he found this grab-iron hanging down, the south end- having become entirely liberated from its fastening behind the plate and the north end only being attached, and one Gayes Orr, an employe, also testifies to this grab-iron hanging down soon after the accident.

It is also urged on behalf of the company that Butler was guilty of negligence in adopting the method he attempted to pursue to mount the car. I have said enough on that point to indicate our views that the jury was not required to come to that conclusion. If he went about his work in a usual and customary way and did not take a hazard that a person of ordinary care and prudence would avoid, he was not guilty of negligence even though he did not take the very safest course open to him. The jury had a right to give some consideration to the circumstances, making it impracticable for Butler to carefully consider or deliberate upon the shades of difference in point of safety between the different usual and customary methods open to him.

It is also urged on behalf of the company that Butler acted in violation of rule No. 26, governing employes, which appears upon page 97 of the record and reads as follows:

“Jumping on or off cars or engines in motion to couple or uncouple them, and all similar imprudences are forbidden. Every employe is required to exercise the utmost caution to avoid injury to himself or fellow employes, especially in coupling, switching or other movements of cars and trains.”

It is not claimed that this rule is strictly applicable to the case in hand, but it is said this imprudence upon the part of Butler was similar to the imprudence which is expressly prohibited, namely, the jumping on or off cars or engines in motion, to couple or uncouple them. But it seems by the evidence that by the practice of .the employes, which seems to have been known to the employer, the general or uniform practice of employes, this rule was not regarded as applicable to a situation like that which we have under consideration; hence we cannot say that this rule was violated.

Counsel for the railroad company also urges that under the circumstances this was an assumed hazard or risk. I cannot better state his claim and proposition than by reading it from his brief.

“ We submit that the verdict and judgment was contrary to law. That even if the plaintiff was injured in the manner in which he claims to have been — the car having been by the company inspected, the defect having been found, and the car marked for the repair track to be repaired, all in the usual and customary method and manner of giving notice or warning to those who were to perform service upon it — that Butler in attempting to perform service upon it, without objection and complaint as to the method and custom of giving such notice and warning, assumed the risk and peril of the service.”

“ We submit that the judgment should have been in favor of the plaintiff in error, upon the ground that there was no legal negligence proven against the company ; in other words, that the company having inspected this car and found it to be defective and marked it for the repair track which was the known, customary and usual notice and warning to those who were handling it before they performed any particular service upon it to look to see if it was fit to perform service on; that attempting to perform some particular service at some particular point on the car, without making some investigation and examination to see to its condition, whether safe or not, he took upon himself and assumed the risk and peril of the service.”

Section 2365-21, Rev. Stat., makes the use of the defective car prima facie evidence of knowledge of the defect. This prima facie case is not overcome in this case by proof of lack of knowledge and lack of opportunity to obtain knowledge of the defect; The car inspector had discovered a defect in this car, and, in our judgment, by the exercise of ordinary care, he would have discovered this defect.

Did the marking of the car give Butler such notice of the defect as to put him in the position of assuming the risk incident to operating the car? As a rule the employe does not assume the risk of using defective machinery or appliances; but if he have knowledge of the defect and risk and continues to use the defective machinery and appliances without objection and without a promise by the employer to remedy the defect, he will be held to have assumed the risk. So, if his employment requires him to take charge of and operate defective máchinery, etc., and he is aware, or by the exercise of reasonable diligence and prudence may be made aware that he is operating such defective machinery or appliances, he will be held to have assumed the risk. The case of the Chicago & Northwestern Railway Co. v. Ward, 61 Ill. 130, is a case of that character.

Does the case at bar fall within this class ? Butler says that he was not in fact aware of this defect, or of any defect in the car. That he had not observed the three “ X’s” marked with chalk by the inspector on the end of the car, and that his attention had not been drawn thereto in any way. These marks were on the west end of the empty car> where, after night, though a bright night, and though he had his lantern in his hand, he might not have readily Observed them. He could not see them until the car passed him and he had turned to go between the cars to mount the car. The fact that the car was being set in on the repair track did not necessarily indicate to Butler that it was a defective car, designed for repairs, for that track was used for the loading and unloading of car wheels and other parts of cars, as well as for repairs; and Butler testifies that he heard the yardmaster tell the conductor, shortly before the accident, to run these two cars upon this track, unload the loaded car and then load both cars with car wheels, and this testimony has some corroboration in the fact that the yardmaster, who was subpoenaed as a witness, was not put upon the witness stand to dispute it. It is also shown that the words: Set on short repair track for wheels ” were chalked upon this car, and that these words indicated that it was to be set in there to be loaded with wheels; so that, under all the circumstances, we cannot say that Butler was guilty of lack of ordinary care or diligence in failing to discover that this was a defective car, or that he was chargeable with knowledge of that fact so that he should be held to have assumed the risk of going upon and operating the car. That it was his duty at that time and place to mount the car and set the brake is unquestionable and conceded.

But, assuming that he was bound to know what the “ XXX’s ” would convey to him, i. <?., that this was a defective car, of knowledge of what defect would he thereby become chargeable ? The only defects discovered by the car inspector, whose duty it was to detect defects, were those in a journal of one wheel and a break in the west end sill, though this grab-iron was in immediate proximity to the defect in the end sill.

We are of the opinion that if Butler was chargeable at all with constructive notice of defects in the car, because the car had been marked with " XXX’s ”, it would be of such defects only as had been discovered by the car inspector, and on account of which he had thus marked the car for repairs. That such notice would not reach beyond the-information that Butler would have gained if he had gone to the inspector for information as to the reason of his putting the “ XXX’s ” on the car. To hold otherwise, might, we think, afford the railroad company a simple and yet effective, though unfair, method of nullifying Sec. 3365-21, Rev. Stat., for they might mark all cars “ defective, ” on account of actual, suspected or possible defects, and thereby throw the risk, under the doctrine of assumption of risks, upon the employe, and wholly escape the responsibility designed to be fixed by this statute.

And, under the circumstances, we cannot see that Butler was guilty of negligence, in failing to discover this defect which had been overlooked by the car inspector.

The case of New Orleans & N. E. R. Co. v. Clements, 40 U. S. App. 465, is a case in many of its aspects like the one under consideration, and I read the statement of the case as given upon pages 466 and 467.

“This is an action to recover damages for personal injuries, brought by E. T. Clements against the New Orleans & Northeastern Railroad Company, a corporation created under the laws of the state of Louisiana, and tried before the circuit court and a jury, in which a verdict and judgment were rendered against the defendant for $12,600. There was a motion by the railroad company for a new trial, which was overruled, and thereupon a writ of error was sued out. The defendant in error» Clements, was an employe of plaintiff in error in its Meridian yards, in the capacity of night yard foreman. It was his duty to place cars coming into Meridian on tracks or sidings where they belonged, according to the course of business of the company. The company had certain inspectors in the yard, whose duty it was to inspect all cars as they came in, and it was Clements’ duty to handle such cars after they had been inspected. He had an engine and crew under him to assist in handling these cars. On the night of October 15, 1897, a train of flat or gondola cars, loaded with gravel, consigned to Meridian, reached Meridian on the Alabama Great Southern Railroad about 9 o’clock p. m. These cars were immediately inspected by the inspectors, and about 11 p. M. Clements proceeded to place the cars on their proper track. For this purpose he had the engine coupled to the cars, and on signal by him the engine pulled the cars forward. Clements, having first cut the cars intended to be moved from other cars to which they were coupled, started forward the way the cars were moving, — walking along the south side of the cars. Noticing that a brake on one of the cars — a flat car belonging to the Alabama Great Southern Railroad Company — was “ set up,” and that the car was jerking along impeded by the brake, he, in pursuance of his duty, climbed on front of the adjoining car in order to let the brake off. Having reached the platform of the connecting car, the cars then being slowly moving, he turned and stepped from that car forward to the end of the next car, where the brake was, at the same time reaching forward and taking hold of the brake wheel. The wheel of the brake came off, and Clements fell backward and against the end of the car from which he had just stepped, and thence to the ground, on the right side of the train, — the side opposite to that from which he had climed, — and his left hand fell across the rail and was run over, and so injured that it had to be and was amputated. It transpired that the nut which belongs on the top of the brake rod was absent, and there was evidence that it had been off a day or two. This nut is for the purpose o( holding the brake wheel on, and the brake wheel came off because of the absence of this nut. The action was predicated upon the alleged negligence of the company in not properly inspecting the car, the plaintiff alleging that he was exercising due care. The railroad company, in defense of the action, denied the alleged negligence, and also denied that the plaintiff was in the exercise of due care, and pleaded certain rules of the company which it claimed made it the duty of Clements to inspect the brake wheel, and averred that Clements had ample time and opportunity to so inspect said brake as to have discovered said defect and thus guard himself against injury, and that plaintiff was guilty of contributory negligence.”

In the opinion by Judge Pardee, there appear quotations from a number of cases in point, but I shall confine my reading to his language in closing, at pages 473 and 474. He says :

“ In the light of these decisions, we understand the law to be that, as to patent defects in machinery furnished by railroad companies for the employes to use, the railroad companies are insurers in all cases where the employe, by reason of his employment or the circumstances of the case, has no full opportunity, before using the machinery in question, to observe and note the patent defect; and the rule is the same with regard to all defects that can be discovered on proper examination and inspection.
“ In the present case the defendant in error was not called upon by his duty to make any particular inspection of the cars turned over to him after the regular inspection. As to the particular defect which resulted in his injury, the proof is clear that although the defect was patent, and could and would have been readily noticed by any employe called ordinarily to use the same, the defendant was called upon to use it at night, in an emergency, and without opportunity to examine or inspect the same. It may be, as counsel for plaintiff in error argued, that he knew that the car had lately come in from another road; that after he reached the platform of the car he could, with the slightest movement of his hand, or instantaneous movement of his lantern, have discovered the condition of the brake (that is, the absence of the nut); and that upon that discovery he could have used the brake (“ let it off”) in such a way that he would not have been injured. But the trouble is; he had no opportunity to examine the condition of the brake with his hand, or by any movement of the lantern. In the line of his duty, he was climbing on top of the car as it was moving, and he reached for and caught the brake to support himself preparatory to using the same; and to say, under such circumstances, that he should have made a preliminary inspection, is contrary to both reason and authority.”

As I have said, the plaintiff recovered a verdict and judgment lor $7,500. It is urged on behalf of the railroad company that this was excessive, I do not wish to discuss that, but will simply say that we have given it very careful consideration, both in connection with the tables which show what annuity this sum would purchase, he being forty years of age, and in connection with the testimony as to his condition and the probabilities of his being able to earn something in the future, and also after considering the testimony as to his expenses, his pain and suffering, and the embarrassment, hindrance and mortification due to being crippled in this way, and after full consideration of all these and other matters bearing upon the question, we conclude that this amount is not so large as to indicate prejudice or passion on the part of the jury ; neither is it demonstrable that, by mistake, the jury has made a wrong estimate which we should correct by requiring a remmittitur. Finding no error in the record, the judgment of the court of common pleas will be affirmed.


source: Caselaw Access Project

author: DONAHUE, J.

license: Public Domain

text:
    TRADE SECRETS — DAMAGES—JURISDICTION.
    [Muskingum (6th) Circuit Court,
    1902.]
    Douglass, Voorhees and Donahue, JJ.

       The National Tube Company v. Eastern Tube Co. et al.
    1. Trade Secret Deexned.
    A trade secret is a plan or process, tool, mechanism or compound known only to its owner and those of his employes to whom it is necessary to confide it, in order to apply it to the uses intended ; and is distinguished from a patent in that as soon as the trade secret is discovered, either by an examination of the manufactured product sold or offered for sale, or in any other honest way the discoverer has the full right to use the same, while in case of the inventor, who obtains a patent, the secret is made public, and the inventor is protected by letters patent from iuiringement thereof.
    2. Rule as to Trade Secrets Known by Employes.
    The fact that the discoverer of a trade secret which he is using secretly, • communicates to an employe to better enable the latter to discharge his duties as such, does not authorize such employe to sell it in the market, nor to sell his services with the added value of the secret; but if the employe himself knew the idea or brought the knowledge to his employer, the only property interest the employer can claim is the product of the skill, the industry and intelligence of the workman ; he does not own the idea.

      3. Ideas Evolved by Employes and Known to Others not Trade Secrets.
    The patterns and castings evolved and perfected in a tube mill by the combined skill, knowledge and experience of employes during several years, are the property of the concern, but, though there may be a certain individuality in their construction and some care taken to keep them from the public, if such articles are in general use in tube mills, if artisans in that line of business have lull knowledge of the character of the machinery and patterns used, and can readily, approximately reproduce them, they are not trade secrets, the use of which by another can be restrained by injunction.

      4 Equity wile Enjoin use of Property Wrongeueey Obtained.
    A court of equity will enjoin tbe use of patterns of one tube mill by another where they were surreptitiously and wrongfully abstracted by an employe having charge thereof and also in the employ of the latter, if brought in time, but if, when the action is brought, no further use of such patterns is contemplated, the granting of an injunction would effect no relief.
    6. Inquiry as to Damages — When Equity wiee not Retain.
    A court of equity will take jurisdiction of an inquiry of damages only where it is incidental to other relief in order to dispose of a whole controversy in one court, but when the main reason for which the aid of equity is sought has vanished, no reason exists for retaining jurisdiction for assessment of damages.
    APPEAR.
    Sullivan & Cromwell, of New York; Garfield, Garfield & Howe, of Cleveland, ior plaintiff. >

      F, A. Durban, of Zanesville; Willis F. McCook, of Pittsburg, for defendants.

       For common pleas decisions in this case, see 12 Dec. 100.

   DONAHUE, J.

This is an action filed in this court for an injunction to restrain the defendant company from using certain patterns and machinery cast therefrom, in and about its tube works in this city. The pleadings are long, and I shall not undertake to read them, but the issue, as we understand it, is this: The plaintiff claims that, during the time of the building of this defendant company’s plant, a certain Harry Nuttall was in the employ of the plaintiff company; that the mill of the plaintiff had been in operation for something like twenty years, and in the course of that operation, had perfected, through various stages of evolution, certain patterns that were strictly individual and distinct from the patterns ot all other tube mills; that the shape and construction of these patterns were a trade secret; that about the time the defendant company was building its plant, it took into its employment the said Harry Nuttall, who was then in the employ of the plaintiff; that he was then in confidential relation, and in a position of authority with the plaintiff, and that he wrongfully, fraudulently and secretly took and carried away the patterns of the plaintiff, and had certain castings made for the use and benefit of the defendant company; that he could not have secured these patterns except by reason of his confidential employment; and plaintiff asks this court to enjoin the defendant company from the use of the castings made from these patterns ; that a receiver be appointed to take charge of these castings and destroy them, and that damages may be assessed.

The defendant admits the taking and the use of patterns, the confidential relations of Nuttall, substantially as pleaded, but denies that the patterns were a trade secret and avers that these and like patterns were and are in common use ; that artisans in that line of business had full knowledge of the character of the machinery and of the patterns and could easily and readily reproduce them, and that if any advantage was derived by it from the use of the patterns, it was not more than the saving of time and expense necessary to reproduce the same.

The first proposition, which must necessarily be conceded by the defendant, is that the plaintiff had a property right in these patterns, i. e., in the thing itself; whether in the idea of the thing is another proposition, but in the pattern, the article itself, plaintiff hada property right.

The second proposition that must also be conceded, is that the use by Nuttall was wrongful and in breach of his confidential relations with the plaintiff. The acceptance of employment and salary from two rival concerns at the same time is, at least, deserving of censure. “No man can serve two masters; either he will love the one and hate the other or he will hold to the one and despise the other.” We take it counsel will not care to dispute the authority in support of this proposition. No man in the confidential employment of a master, or of two masters, can be permitted to take the property of one without his consent and use it for the benefit of another. That is wrongful, whether the property be a trade secret or not.

The questions here presented are important in any view we take of it. The necessity of good faith and honest, fair dealing, is the very life and spirit of the commercial world. It is absolutely necessary that it should be protected aud enforced by courts, and, on the other hand, it is a serious proposition for a court to lay forcible hand by injunction upon a large concern of this character, in which hundreds of thousands of dollars are invested and a large number of men are employed, and thereby for the time, destroy its usefulness to owners, employes and the public, and it ought not to be done if relief can be had in any other way. It should be done only when the necessities of the case demand such stringent measures.

But if these patterns are trade secrets, then it cannot be permitted that the defendant company here should have the benefit of the same, or ©f any of the castings made from the same, when the patterns were procured in the reprehensible manner charged and admitted; but if they are not trade secrets, if the idea of these patterns is known generally to the world, or at least to the people interested in that kind and character of business, then it cannot be a trade secret, and plaintiff is not entitled to any protection as to the idea.

A trade secret is a plan or process, tool, mechanism, or compound, known only to its owner and those of his employes to whom it is necessary to confide it, in order to apply it to the uses for which it is intended. It is not protected by patent, for tbe secret then is made pnblic, and the inventor is protected by letters patent from infringement thereof; while, as soon as anyone fairly and honestly discovers a trade secret, either by examination of the manufactured products sold or offered for sale to the public, or in any other honest way, that person discovering it has full right to use the same. That is the risk the owner takes, and if he would have further protection, he must seek it in a patent. We beleive that is the correct definition and the correct law of trade secrets, and we will not stop to cite authorities in support of it, because we believe none are necessary.

The question of defendant company’s knowledge of the conduct of Nuttall is not, in the opinion of this court, of serious concern. He was an employe of the defendant corporation, charged with certain duties and possessed of certain powers to discharge these duties, and assisting in procuring these patterns was a part of his duties. Therefore, he was the agent and vice principal of the defendant and his knowledge was defendant’s knowledge, though defendant actually had no knowledge whatever of the transaction, and we are free to say that we do not believe that the elective officers of this corporation, i. e., the directors and the officers selected therefrom, had any knowledge whatever of the procuring of these patterns in this way or of the uses to which they were to be put; but the very fact that they had no such knowledge shows that they had delegated that power, authority, and duty to Nuttall, and relying upon him, they were giving no further attention to it. Therefore, his acts, for all the purposes of this case, are the acts and conduct of the defendant company.

If the patterns then are trade secrets, the injunction must be allowed and relief given as fully as prayed for, for there is no contention but that Nuttall wrongfully used these patterns for defendant’s use and benefit.

Now, what is the evidence upon this important question? The evidence seems to fairly demonstrate the fact that these mills had a certain individuality ; that this individuality was the growth of experience, the evolution, as it were, of the tools and machinery used in and about the concern. One of the witnesses for the plaintiff, — and I want to refer to one only (Mr. Bray), — has this to say (I read from page 165), being inquired of as to the several men who possessed the requisite knowledge and skill to reproduce a mill of this kind, he having said that there are such men :

Q. Then these mills and the construction of them is a matter of purchase in the market, and there are a number of men in*'this country, at this time, who can do it? A. It is a question of engaging a competent engineer and a man to do the work.
“ Q. The advantage of taking this pattern, you say, was a matter of several months time ? A. Yes sir.”

Now, at another place, he says that he can make a mill, and these other men can make a mill, approximately like the Pennsylvania Tube Works mill. The same can be said of the bricks in the walls of the buildings of this city. Each brick is approximately like the other, but there is no brick exactly like another brick. It is not possible, in the affairs of men, to reproduce any article more than approximately like another. The word “approximately” is subject to wide differences of meaning and shades of meaning. It may be exactly alike, so far as the human senses can determine, and on the other hand, it may have a difference that we can determine by the ordinary senses, and yet be substantially the same; but we think that testimony of Mr. Bray is the strongest' evidence in the record that the plaintiff has offered to this court, upon which it asks us to stop a mill in which there are invested, as we have said, hundreds of thousands of dollars, and in which there are a great many men employed. The balance of the evidence is all to the same affect. That there was some care taken of these patterns and some intention of keeping them from the public generally, there can be little doubt, but a trade secret, as we said a moment ago, is a secret, known only to the owner or proprietor of it and such of his employes to whom it is necessary to communicate the secret, in order that he may use them to advantage. It does not mean that, when I employ a man who has skill, knowledge, and experience' in a particular line, ask him to furnish me the knowledge, and employ him because of his knowledge and experience, and he then supplies me an article, or does for me that which his skill, knowledge, and experience enable him tó do, the idea or ideas he evolves become the property of the employer as a trade secret. That is not the idea at all. The trade secret must be in the mind of the man who discovers it, and he must be using that secretly, and the communication to his employe must be made for the purpose of better enabling that employe to discharge his duties as such. Then the fact that he communicated it to that employe does not permit the employe to sell it in the market or to sell his services in the marketj where he can, with the added value of that secret; but if the employe himself knew the thing, if he is the one who brought the knowledge to the employer, the only property interest that the employer can claim is the product of the skill, the industry, and the intelligence of that workman, i. e., he owns the pattern, but he does not own the idea. If he would own the idea, he must contract not only for the services of this man but that be may bave tbe idea that shall be developed through his experiments. In other words, the natural rule of right is this: That a man shall have the benefit of all his intelligent thought and enterprise) of all that he may discover by industry and ingenuity, and unless he contracts to sell some other man that idea, he may use it for his own benefit or for the benefit of any employer he may afterward find service with.

Therefore, if these mill owners desire to cripple a man’s enterprise and his energy and intelligence, to hamper., him in his future employment by requiring that he shall not give to that future employer the benefit of his skill or tb things that he has developed for the former master, they must contract to that effect. Nothing but a specialty would control the natural rule of right in that case.

That was hot done here. These patterns, whatever they were, were the result of the combined knowledge of men in the employ of the master. It is not even contended in this case that the corporation or the men constituting the corporation had any ideas on the subject themselves, but they went into the market, where skill, knowledge, and experience were to be bought, and they bought the use, but they did not buy the brain of their employes. All they can claim' then is the product of the labor of these men, and that amount to the patterns and nothing more.

To illustrate, here are draughtsmen first required, then pattern makers, then the skilled mechanics of the mill. These three working together produce a certain individuality in a certain mill. This is natural, but that individuality can be transferred to another plant tomorrow by the draughtsmen, the pattern makers, and the skilled mechanics resigning their employment with this master and taking service with another. There is no question about that, under the laws of this state or under the laws of any state. Therefore, we believe that if there was an individuality in these patterns, it was not a trade secret. We believe further, that these patterns could be reproduced by a skilled workman, that is to say, there would be no functional differences whatever. There might be a flange here or a flare there, but the idea, the central, main idea has been in use, to the common knowledge of man, for at least seventeen years, according to the evidence. • So, therefore, we find that there was no trade secret here, nothing that this court could protect, as a property right, in a secret.

It is contended further, on the part of the plaintiff, that there was sudh confidential relation existing between the defendant Nuttall and the plaintiff company, at the time that he procured these patterns, that a court of equity ought to enioin from the use and benefits of the same We think plaintiff is right in that contention. We believe this is a viotion of his plain common duty to this master, such that a court of equity ought to reach out and stop by injunction. But stop what ? Why, stop the use of these patterns, not the use of the idea, because we have now held that there is no property in the idea. Harry Nuttall, by his delinquency to his master, by his fraudulent conduct, by his breach of confidential relations, gave to this defendant company the patterns for castings. He did not give to them an idea that belonged to the plaintiff. If he had, this court would not hesitate a moment to grant the injunction prayed for, and to order every one of these castings broken, because, in such event, the company must bear the loss; it acted at its own peril; but he gave to this company the use of these patterns, and when he did that, if we had been called upon to enjoin it from using them, and to enjoin him from using them, we would have done so without hesitation; but when this action was planted, the use was over, the thing was accomplished that they sought to accomplish. Therefore, while the contention of plaintiff’s counsel is right as to the law, the application of it is wrong, because it goes no further than to the thing that Nuttall’s wrongful conduct gave to the defendant company, and he gave them only the use of these patterns. Now that exhausts the inquiry as to the question of an injunction being granted in this case.

That there has been a wrong committed here and that plaintiff has a remedy is equally certain. On the one hand, it is contended that the plaintiff should be sent out of court into another forum for that relief, and again it is urged that we should retain this case for relief, even though an injunction is not granted. We do not agree with this theory of counsel. An inquiry as to damage is the merest incident of a court of equity. It is simply because it is incidental to some other relief that a court of equity will take jurisdiction of it at all. It is because the experience of man has proven it to be better to dispose of a whole controversy in one court, if it can be done; but when the main reason for which the aid of a court of equity is sought has vanished, as we hold it has in this case, under our theory of it, there is no reason why we should retain it for the assessment of damages. The question of damages must be determined in some other forum, and with an order so that the question shall not be res adjudicata against this plaintiff, and so that it shall have a right to inquire as to damages in a suit at law, this petition is dismissed at the costs of the plaintiff and a motion for a new trial will be overruled, statutory time given for bill of exceptions, and thirty days for finding of facts. That will be the order and judgment of the court..


author: GIFFEN, J.

text:
    NEGLIGENCE — RES ADJUDICATA.
    [Hamilton (1st) Circuit Court,
    1902.]
    Swing, Giffen and Jelke, JJ.
    Gustav R. Werner, v. Cincinnati.
    1. Erroneous Charge as to Contributory Negligence.
    The owner of private property owes no duty to a city requiring him, in constructing his house or maintaining his water service pipes, to anticipate and provide against a rush of water from a break in a water main caused by the negligence of the city. Hence, in an action against the city for damages resulting therefrom, there being no issue and no evidence of contributory .negligence, a charge that if the acts or omissions of the property owner contributed in any degree to the injury complained of he cannot recover, is erroneous. Schweinfurth v. Railroad Co., 60 Ohio St. 215; Johnson v. Cincinnati, 11 Circ. Dec. 318 (20 R. 657), followed.
    2. Former Recovery Should be Pleaded — Rule when not Pleaded.
    A former recovery to be relied upon as an estoppel should be pleaded; if not pleaded, a petition filed by the same plaintiff together with the judgment thereon, are admissible in support of the claim that the matters in litigation were determined in another suit, but such determination is not a conclusive bar thereto, the jury having the right to find for the plaintiff if he is entitled to recover.
    3. Questions which Might have been Ditigated.
    Every question that parties might have litigated in a suit will be deemed at rest, whether actually determined or not. The fact that part of a judgment obtained by consent is in satisfaction of one cause of action and of damages accruing thereafter, does not detract from the judgment proper covering all the issues.
    4. Eeeect oe Defense oe Res Adjudicata.
    A defense of res adjudicata, sustained by evidence and considered by a jury as a bar to the action, renders the consideration of other questions unnecessary, a verdict having been found for the defendant.
    Heard on Error.
    Gustav R. Werner, for plaintiff.
    Corporation Counsel, contra.
   GIFFEN, J.

The plaintiff below alleges in his petition that the city negligently suffered its water mains to leak, and causes the water to flow over his premises, whereby his dwelling house was damaged in the sum of $2,000. -

The amended answer contains a general denial, and also an allegation that if any injury has happened to said property it has resulted from the negligent and improper construction of said house and the maintenance thereof, and to the negligent maintenance of service pipes unrepaired.

The reply contains a denial of new matter in the answer

A verdict was returned for the city and judgment rendered thereon. Plaintiff prosecutes error, and as a ground thereof says the court erred in giving to the jury, at the request of the city, the following special charge, to-wit:

“ If you find that the acts or omissions of the plaintiff, as you may find from the evidence, contributed in any degree to the injury of which he complains, your verdict must be for the defendant.”

Phis instruction and the facts of the case, are similar to those in Johnson v. Cincinnati, 11 Circ. Dec. 318 (20 R. 657), in which case this court held the special charge to be erroneous upon authority of Schwtinfurth v. Railway Co., 60 Ohio St. 215 [50 N. E. Rep. 89], The charge before us comes within the same authority, and for like reasons must be held erroneous.

It may be said in addition that the pleadings do not present a case of contributory negligence, and hence there was no occasion for a charge upon that subject. The proximate cause of the injury was, as alleged in the petition, the breaking of the water main, and if the damages were only enhanced by reason of the defective construction of the house or the negligent maintenance of the service pipes, neither of them was a cause without which no damages would follow, and if either or both of them cause all the damage, independent of the break in the main, then there was a failure of proof of the negligence alleged. If A negligently breaks a window in B’s house, B has a cause of action against A for damages, and it is no defense if the glass was thin and weak, and that had it been of double strength it would not have broken. So that in this case the plaintiff owed no duty to the city in constructing his house or maintain, ing his service pipes, to anticipate and provide against a rush of water caused by the negligence of the city.

This error, however, is immaterial if the defense of res adjudicate, is Sustained by the evidence. Such defense was not pleaded, but a petition filed by this plaintiff and the judgment thereon were offered in evidence, from which it is claimed by the city that the matters litigated in this suit were determined in the other'case. While a former recovery relied on as an estoppel should be pleaded, still if not so pleaded the judgment is admissible evidence, but it is not a conclusive bar to the action ; the jury may nevertheless find for the plaintiff if they think him entitled to recover. Meiss v. Gill, 44 Ohio St. 253 [6 N. E. Rep. 656],

In that case, which was commenced after the present suit, the petition contains the allegation that by reason of the careless and negligent manner in which the retaining wall in front of his premises was constructed, the same has become cracked, and that in consequence thereof the water and sewerage seeps through the said wall from said street and into the foundation of bis house, undermining the same and damaging the house in the sum of $500. In each case the petition contains the averment that the damage to the house was caused by the water flowing from the street, in the one case from a broken main, and in the other, presumably from the surface of the street, and the time within which the damage was done in the present suit, is included in the period covered by the suit first determined. Although the averments in the two petitions are not precisely alike, the same damages arising from substantially the same cause are set out in each.

It is immaterial whether the negligence of the city consisted in suffering the water main to be and remain out of repair, or whether any negligence was alleged or shown in the other suit, provided the same flow of water and resulting damage that are now' alleged were embraced in the "former adjudication, and we think they are identical.

It is urged by counsel for plaintiff in error that the former judgment is for damages arising only from a change of grade of Baltimore avenue» but it will be observed that this part of the judgment is by consent, and made to include damages thereafter accruing, while the judgment proper covers all the issues in the case ; and besides it is well settled that every question which the parties might have litigated in a case is deemed at rest, whether actually determined or not. Petersine v. Thomas, 28 Ohio St. 596.

It is apparent from the record that the jury found for the defendant below, for the reason that the former judgment was a bar to this action, and having affirmed this finding, we think it unnecessary to consider the other errors assigned.

Judgment affirmed.


author: CHERRINGTON, J.

text:
    BUILDING AND LOAN COMPANIES-INSURANCE — AGENCY.
    [Lawrence (4th) Circuit Court.]
    Sibley, Cherrington and Jones, JJ.
    John Geswine, Jr., v. Star Building & Loan Co.
    Duty op Loan Company to keep Property Insured — Liability for loss. The effect of a provision in the by-laws of a building and loan association . requiring members making loans, to be secured by mortgages, to insure the property for a sum to be named, and to keep it insured in a company approved by the association during the continuance of the loan and to deposit the policy with the treasurer of the company, and authorizing the association, upon failure of a member so to do, to make renewals at the expense of the borrower, is mutual benefit or insurance. Such a provision makes the association the agent of the borrower and imposes upon it the duty of renewing the policy if the borrower fails to do so; and if the association neglects to keep the property insured, and it is destroyed by fire, it is liable for the loss.

      Corn & Thompson, for plaintiff in error.
    Miller & Miller, for defendant in error.
   CHERRINGTON, J.

John Geswine against the Star Building & Loan Company of Iron-ton, Ohio, a corporation, is a petition in error to reverse the judgment of the common pleas court in sustaining a demurrer to the petition as amended.

The petition, after stating that the defendant is a corporation existing under the laws of Ohio, states that the defendant adopted a constitution and by-laws, and copies a number of the articles of the same, some of which I will read.

Article 5 provides that any person upon subscribing for, or in any way becoming the owner of one or more shares of the capital stock of this association, shall become a member thereof, and as such shall be entitled to all the benefits and privileges, and subject to all the liabilities and duties of membership as prescribed by the constitution and by-laws.

That on or about January 7, 1896, this plaintiff subscribed for and became the owner of five shares of the capital stock of said defendant and ever since has been and is now the owner thereof.

Article 3, provides that the association is organized for the purpose of raising money to be loaned among the members thereof, for use in buying lots and houses, in building and repairing houses, and for such other purposes as are authorized by law.

Section 4 of the by-laws provides, among other things, that the treasurer of said defendant shall be the custodian of all the funds, notes, mortgages, fire insurance policies, and other papers belonging to the association, and that his books shall be open to any member of the board of directors at any time. ”

While all of these that I have .read are important, Sec. 32 of the by-laws is the most important one of all; it provides that “when the board of directors see fit they may require any member taking a loan, to cause the mortgaged property to be insured for the benefit of the association against loss by fire, in some company to be approved by them, in a sum which they shall name and to keep the same insurance during the continuance of the loan. The policy of insurance, properly indorsed by the company insuring the same, shall be deposited with the association and all renewals on policies so deposited shall be made by the association and the cost thereof deducted from the amount paid from the borrower. Upon the failure of any member to insure said property as required or upon the cancellation of any policies deposited as aforesaid, the board shall insure the same at the expense of such member and deduct the cost thereof from the amount paid in by him.”

Section 27 provides, among other things, that all loans must be secured by first mortgages on real estate in Lawrence county, Ohio, or on the stock of the association or on government bonds or other equally good collateral, that he owns.

That on or about August 81, 1896, this plaintiff borrowed of said defendant on three shares of its capital stock owned by him, the sum of three hundred dollars, and in order to secure the payment thereof to the said defendant, according to the provisions of its said by-laws, executed and delivered to said defendant his certain mortgage upon certain lots of real estate described, of which he was and still is the owner; that a two story frame dwelling house stood upon the real estate on said date and continued to stand there, in good condition, until about September 11, 1900. That one of the conditions of said mortgage required the plaintiff to keep insurance on the property described therein as the board of directors of the defendant required : said mortgage has never been paid off or cancelled, and is still in full force and effect.

The amendment is as follows : “ That on or about August 16, 1897, this plaintiff caused said dwelling house to be insured for a period of three years from said date in the Teutonia Insurance Company of Dayton, Ohio, in the sum of five hundred dollars for the benefit of the plaintiff, loss, if any, payable to the defendant as its interest in said premises might appear as mortgagee. That at the-expiration of the date of said policy of insurance as hereinafter set out, the indebtedness of this plaintiff.to said defendant did not exceed the sum of one hundred dollars; that said board of directors required this plaintiff to deposit said policy of insurance properly indorsed by the company insuring the same, with said defendant, The Star Building & Loan Company of Iron-ton, Ohio, and to keep the same insurance during the continuance of the loan.”

That the said policy of insurance properly indorsed by the company insuring the same, and that in pursuance of the provisions of Art. 82, was by this plaintiff immediately deposited with the treasurer of the defendant and approved by him and said association received said policy without objection and took the same into its custody and still has possession and control thereof; that upon the deposit of said policy by this plaintiff with said treásurer, as aforesaid, this plaintiff paid no further attention to the insurance on said dwelling house and thought nothing more about the same, but relied upon the defendant to renew the said policy as by said section 32 required, and as it was bound to do, and this plaintiff had entirely forgotten the date of its expiration and had no means of knowing the date of the expiration of said policy; neither did the defendant nor any other party notify him of said expiration nor did plaintiff have any knowledge of the expiration thereof, and he says on August 16, 1900, said policy of insurance expired and that defendant, failed and neglected to renew the same or to insure said dwelling house in any other company; that this plaintiff had no other policy of insurance upon said dwelling and on September 11, 1900, said dwelling house was partially destroyed and damaged by fire to the amount of $400, and he asks that he recover judgment for the said $400 with interest.

The court sustained the demurrer to that petition as amended, and the sole question for determination in this court is as to the validity of this petition as amended. Do the averments state a cause of action ? The theory of counsel for the defendant is that the scheme of the defendant as indicated by its by-laws was that this insurance should be for the benefit of the association alone, and for its own convenience. It is provided by by-law 32 that it shall be deposited with the treasurer and that he shall make renewals and attend to all these matters and charge the same up to the mortgagor, and that that clause 32 being solely for the benefit of the defendant, he can comply with it or waive it as he sees proper and if he waive the benefits intended to be covered by that clause of the by-laws, and decline to take out a policy at the expiration of the original policy, that is an end of the matter so far as that policy was concerned and it would involve no liability.

We have been cited to no authorities in this matter; counsel has stated that they have searched for them and are unable to find anything bearing upon this point and it must be decided upon elementary principles ; and some of the members of the court, possibly the majority of us, thought at the conclusion of the argument — we were rather inclined to adopt the views urged by the defendant, but on further examination, we have come to the conclusion, while there may be some doubt about the matter, that that is not the proper view to take of this case. It is true that the scheme on the part of the defendant was, in addition to this security by mortgage on the stockholder’s real estate, to, have an additional security for itself in the shape of insurance; while it is true that was the case, yet, we think also, that it is pretty plain from the reading of these by-laws, that this insurance was for the mutual benefit of the company and this stockholder.

There is only one paragraph in this section 32 that militates against that view, and that is, for its convenience, of course “ that all renewals on policies so deposited shall be made by the association and the cost thereof deducted from the amount paid from the borrower. Now let me transpose the language a little bit right here. And upon the failure of any member to insure said property as required or upon the cancellation of any policies deposited as aforesaid, the board shall insure the same and deduct the cost thereof from the amount paid in by him.”

The only feature in these by-laws that militates against the view that it is for the mutual benefit of both parties is this:' “ Upon the failure of any member to renew the same, the renewal shall be made by the association and the cost deducted from the amount paid in by him; ” but, whatever may be the intention as to that paragraph, the effect of it is the same. The effect of it is mutual insurance. The company had already been secured by mortgage. The stockholder had borrowed only $300 and he had taken out insurance for $500. It is very apparent that the effect of the whole thing was for the mutual benefit of both parties.

We think that can be settled on the doctrine of agency; that these by-laws made the association the agent for this mortgagor and the one insuring and they agreed these by-laws, that is the effect of them, they agreed to take charge of this policy and renew it if it became necessary and charge it up to the plaintiff, and failing to do that, why are they not liable for the failure to comply with their contract ?

I say there have been no authorities cited; we don’t attach much value to this brief opinion in 65 Illinois, 453-62, yet it tends in the direction that I have named. Now, it is not authority of any value because there is an entire absence in the statement of the case of any by-laws governing the association which show or determine the respective duties of the parties, but there the plaintiff had procured a loan of $700 from the Chicago Building Association, giving his note and deed of trust on the real estate for security, and he covenanted in that deed to keep the building insured in such company as the building association should designate. Crowell procured a policy for $1,000 and deposited the policy with the company; the secretary paid the premium of five dollars and charged it up to Crowell on his pass-book; a short time before it expired he went to the secretary, said he would take out the policy himself, and the secretary replied that the association preferred to do it; thereupon Crowell left the matter with the secretary and the secretary neglected and failed to renew the policy and' the building burnt down and suit was brought. The only defense made in the case is, that this secretary had no authority|to make the representation or the agreement with Crowell that he did make, but the court holds that this secretary had the right to make these representations and we take rt, although it does not so state, that the company, having induced Crowell to permit this company to insure, is estopped from saying that it was not their duty to do so, and holds the company liable, and, of course, it must have been on the theory that the company was the agent of Crowell, the plaintiff in the case.

As before stated, we think these by-laws, constituted this defendant the agent tor the plaintiff, to renew this policy, and having failed to do it, it shows dereliction of duty and the company is liable therefor.

The judgment will be reversed and the cause remanded with instructions to the court below to overrule the demurrer.


author: MARVIN, J.

text:
    MUNICIPAL CORPORATIONS — STREETS,
    [Lorain (8th) Circuit Court,
    May 27, 1902.]

    Caldwell, Hale and Marvin, JJ.

       Elyria v. Lake Shore and Michigan Southern Railway Co.
    1. Municipal Authorities Cannot Contract to Surrender street.
    Municipal authorities are prohibited by Sec. 2640, Rev. Stat., requiring streets to be kept open and free from nuisance, from making contracts which will permit encroachments. Hence an action will lie to compel the removal of abutments of an overhead railroad bridge which encroach upon and materially lessen the width of a street, notwithstanding the same were constructed under agreement with municipal authorities.
    2. No Such Authority Coneerred by Sec. 3284, Rev. Stat.
    A railroad company, under Sec. 3284, Rev. Stat., providing that when a street or stream, etc,, shall be crossed, etc., and it becomes necessary to divert the same, the company shall restore the street or stream to its former state of usefulness, acquires no right to so occupy a street as to materially lessen its width or impair its usefulness.
    W. W. Boynton and F. M. Stevens, for plaintiff.
    E. G. Johnson, for defendant.

       For decision of the court of common pleas, Hayden, J., see 12 Dec. 609.

   MARVIN, J.

The case of the city of Elyria against the Lake Shore and Michigan Southern Railway Company is tried to us on appeal from the judgment of the court of common pleas.

The action is brought by the city of Elyria against the defendant railroad company, the purpose of which, and the prayer of which is for an injunction, to restrain the defendant from further continuing and maintaining certain abutments which it has built at the crossing by the railroad of West River street in the city of Elyria, the point being where West River street is intersected by Huron street and West Bridge street, and for an order requiring the railroad company to remove those abutments.

The plaintiff, the city of Elyria, is the successor of the village of Elyria, and is, as the village was, a municipal corporation.

The defendant is a corporation owning and operating a railroad; its tracks pass through what is now the city of Elyria. The railroad company'for more than fifteen years last past has maintained its railroad track passing through this municipality, and its track during all that time has crossed West River street at the intersection of West River street with Huron street and West Bridge street. The general direction of the railroad track is east and west, crossing the street, which runs north and south. Up to about February 20, 1890, the track of the railroad was maintained at the street grade. At the date last named, the defendant changed its crossing at the point to an overhead crossing, to do which it put in large stone abutments on both the east and west sides of the street. These abutments narrow the street at this point to a width of forty feet; that is to say, it narrows the available traveled way of the street to a width of forty feet. The width of the street as it existed prior to this time was sixty-six feet.

There was some evidence introduced tending to show, or it was claimed tending to show that the street was but sixty feet, but we find from the evidence that the street, at the time to which attention has been called, was sixty-six feet in width. Each of these abutments from north to south is about twenty-nine feet in length.

There is a sidewalk along the easterly abutment, above mentioned, six feet in width. The easterly abutment above mentioned, extends into the street as it existed prior to the making of such abutment, but a little more than five feet at one point, and at the point where it encroaches least upon said street, the encroachment is considerably less. The entire encroachment, except as made by the easterly abutment already mentioned, is of course made by the abutment on the west side of the street.

Since the construction of these abutments a street railroad has been laid along said West River street, under a franchise granted by the city of Elyria, and said street railroad is now in full operation, running cars at. frequent intervals along said street and between said abutments.

The change of the crossing of defendant’s road at the point named from a grade crossing to an overhead crossing became necessary for the proper use and operation of said railroad, but there was no imperative necessity for placing the abutments nearer to each other than the full • width of the street, sixty-six feet.

Before the railroad company made the change at said crossing, it entered into what is in terms an agreement with the municipal authorities as to the manner, terms and conditions upon which • said change might be made, and the construction of the abutments heretofore men tioned, and the way in which they are now maintained, is in substantial compliance with the terms of said agreement.

If the municipal authorities had the lawful right to make this agreement in such wise, that the municipality should forever be bound by it, then the petition must be dismissed.

It is said, on the part of the railroad company, that such authority is vested in the municipal officers by Sec. 3283, Rev. Stat., which reads: “ If it be necessary, in the location of any part of a railroad, to occupy any public road, street, alley, way or ground of any kind, or any part thereof, the municipal or other corporation, or public officers or authorities owning or having charge thereof, and the company, may agree upon the manner, terms and conditions upon which the same may be used or occupied; and if the parties be unable to agree thereon, and it be necessary in the judgment of the directors of such company to use or occupy such road, street, alley, way or ground, such company may appropriate so much of the same as may be necessary for the purposes of its road, in the manner and upon the same terms as is provided for the appropriation of the property of individuals.”

Without reading further, that includes so much of the section as it is claimed authorized the making of this contract by the municipal authorities with the railroad company; and that the agreement constitutes a binding contract between the municipality and the railroad company.

' This section has been construed in numerous cases. In Railroad Co, v. Defiance, 52 Ohio St. 262 [40 N. E. Rep. 89], the section was construed, and the seventh clause of the syllabus of that case reads: “An ordinance which in terms authorizes a railroad company to erect new bridges of a specified description over the track of its railway where it crosses designated streets, the bridges to be kept in repair by the company, does not divest the municipal authorities of their control over the streets, nor impair their power to improve the same, nor entitle the railroad company to perpetually maintain the bridges as constructed; but the ordinance and privilege granted by it are subject to a proper exercise by the municipal body of its power to improve the streets, and make such changes in the grades as may be necessary to subserve the public interest.”

In the opinion in this case pronounced by Judge Williams, this language is used, beginning on p. 308:

“ It may be observed that the extent of the authority conferred by this statute on municipal corporations is to agree with railroad companies upon the manner, terms and conditions upon which a street, etc.» may be used and occupied by a railroad, ‘ if it be necessary in the location ’ of the railroad, for any part of it to occupy such street, etc., and then, they may agree for the use of so much of the street only as is necessary for the purposes of the railroad. 'Chis limitation is manifest from the provision that if the parties are unable to agree, the company may appropriate so much of the street as is necessary for the purposes of its road. The object of the appropriation is to acquire such use of the street, etc., as could have been granted by agreement; and no greater use can be obtained in the one mode than in the other; the right acquired in either is limited to the use of so much of the street as may be necessary for the purposes ‘ of the railroad.’ The statute, we think, does not contemplate the destruction of the street, or the cessation of its use by the public, or its withdrawal from the control and supervision of the proper municipal officers; nor is authority found in it for any agreement having such results. On the contrary, the statute recognizes the street so burdened with a railroad as a ‘public street,’ with all that term imports.”

Then attention is called to the next section, Sec. 3284, Rev. Stat.‘ which requires, when a street or stream, etc., shall be crossed by a railroad, by the track of a railroad, and it becomes necessary to divert the same, that is the street or stream, whatever it is that is crossed, that the company shall restore the street or alley or stream that is diverted to its former state of usefulness. That is, it shall be required to place the road or stream or whatever it is thus crossed or diverted from its location without unnecessary delay in such condition as not to impair its former usefulness. And in the opinion Judge Williams holds that this is to be read in connection with the other section.

The same case, the case to which attention has just been called, of Railroad Co. v. Defiance, went to the Supreme Court of the United States, and is reported in Wabash Railway Co. v. Defiance, 10 O. F. D. 480. On p. 486 in the opinion of the Supreme Court, delivered by Mr. Justice Brown, commenting on two Secs. 3283 and 3284, Rev. Stat., he uses this language: “ Reading these two sections together, it is open to doubt whether Sec. 3283 is not confined to cases where the railroad runs along and upon the street, road or alley, in which case some kind of contract or agreement with the municipality would seem to be almost necessary for the mutual accommodation of the railroad and the public, who desire to retain the use of the street for ordinary travel. The matter of crossing the street, however, is treated by Sec. 3284 as one of the necessary incidents of railroad construction ; and all that is required is that the company after having made the crossing, shall replace the road in such condition as not to impair its usefulness.”

A further discussion of the two sections is found in Zanesville v Fannan, 53 Ohio St. 605 [42 N. E. Rep. 703; 53 Am. St. Rep. 664], On p. 614 the court say, speaking of the duty imposed by the statute upon the municipal authorities to keep the streets open and free from nuisance: ‘‘And those powers and duties continue when a railroad corn-pan}7 has placed its tracks in a public street, whether they were so placed under permission granted by the municipality, or under an appropriation for that purpose. In neither event are the municipal authorities divested of their powers, nor absolved from the performance of their duties. Nor does Sec. 3283 contemplate that a railroad company in the use of a street for the purposes of its road, under a right acquired in either of the modes provided, may destroy the same or create nuisances therein. On the contrary, it contemplates that the company shall exercise its rights with proper regard to those of the public in the street, and that the street and its uses by the public shall be preserved and protected, with such additional use as may be necessary in the proper operation of the railroad, which is itself a means of public use. If the permission to occupy the street be granted by the municipal authorities, they may and should prescribe such reasonable regulations and conditions as will prevent the creation of nuisances, and preserve and best protect the free and full use of the street by the public.”

Without reading further authorities, though there are many in line with these which are cited by counsel in their briefs, and quoted from, we hold that by this agreement entered into between the municipal authorities of Elyria and the railroad company, the municipal authorities were not relieved from the obligation to keep the streets open and free from nuisance, nor did the railroad company acquire the right to so occupy the street as to constitute a nuisance to the public.

In one of the cases it is said that the public authorities could not make such contract, as to take away from the municipality the right to have the streets used for the purposes of a street.

The evidence is such that it cannot be doubted, that the construction of these abutments as they are, constitutes serious interference with the use of the West River street or the streets which there intersect. And under the statutes which require the municipal authorities to keep the streets free from nuisance, and the proposition that the city cannot contract in such wise that nuisances may be permitted in the street, it seems clear that the plaintiff is entitled to the relief here sought, to the extent that it is necessary to relieve the street from such obstruction as seriously interfere with the use of the street by the public.

The encroachment, as has already been stated, is chiefly on the west side of the street, and if the abutment there should be removed to the line of the street, the street would probably be sufficient for all the present needs and rights of the public, and we have come to the conclusion therefore, to require the railroad company to remove that abutment, which is on the west side, back to the line of the street, and a decree may be entered here as in the court below.


text:
    BENEFIT INSURANCE — EVIDENCE—ERROR.
    [Hamilton (1st) Circuit Court,
    1902.]
    Swing, Giffen and Jelke, JJ.
    Grand Lodge of A. O. U. W. v. Mary J. Bunkers.
    1. Evidence Tending to Vary Written Contract.
    Where the grand master of a beneficiary society testifies that he knew at the time a certificate was issued that the holder was a saloon keeper (a class of risks forbidden by its constitution) and had been for several years prior thereto, but that he did not know until several months later that the policy was issued to such holder, although signed by him, the part relating to his knowledge when the insured became a member, was properly excluded, as tending to vary and contradict the terms of the policy signed by the witness and upon which the action is based.
    2. Officers of Benefit Societies Cannot Waive Constitutional Provisions.
    Where the constitution of a fraternal beneficial order provides that no person shall be admitted to beneficial membership who is engaged in the sale at retail of intoxicating liquors, the officers thereof have no authority to waive such provision,
    3. Benefit Societies Exempt from Sec. 3625, Rev. Stat.
    Fraternal beneficiary orders authorized by Sec. 3631-11, Rev. Stat., are exempt from the provisions of Sec. 3625, Rev. Stat., providing that false material statements made in the applications for insurance cannot bar recovery on the policies issued thereupon.
    4. Exclusion of Testimony — When not Available on Error.
    The refusal of the trial court to permit an executive officer of a beneficiary insurance company to testify as to the time when he signed a particular policy cannot be considered on error, notwithstanding an attempt is made to show what the witness was expected to testify, where the record does not disclose any definite time that the witness would say was the date of signing.
    5. Impression or Opinion of Statement of Another, Inadmissible.
    The answer of a witness giving his impression or opinion of the statement of another party, not the statement actually made, should be excluded.
    8. Estoppel or Waiver Available though not Pleaded, When. • .
    A party on review may avail himself of the legal effect of facts constituting an estoppel or waiver, although not pleaded, where they first appear in the trial of the case below.
    7. Reviewing Court Bound by Record.
    The reviewing court is bound by the record made. Therefore, while it appears that plaintiff excepted to charges given and as modified, by the court, and also in what particulars they were modified, the exceptions cannot be considered thereto in the absence of any other statement in the bill showing that the court modified such charges.

      Heard ON Error.
    McKemy & Belville and Patterson A. Reece, for plaintiff in error,
    cited:
    Defendant below could not waive any rule or law of the Grand Lodge which was the substance of the contract. Leonard v. Insurance Co., 97 Ind. 299, 306; State v. Temperance Benevolent Assn., 42 Mo. App. 485; Supreme Council Am. Legion of Honor v. Green, 17 Atl. Rep. 1048 [71 Md. 268; 17 Am. St. Rep. 527]; McCoy v. Mutual Ins. Co., 25 N. E. Rep. 289 [152 Mass. 272]; Grand Lodge A. O. U. W. v. Jesse, 50 Ill. App. 101; Harvey v. Grand Lodge A. O. U. W., 50 Mo. App. 472 ; Leonard v. Insurance Co., 97 Ind. 299; Bacon on Benefit Soc., Sec. 140, p. 218; Secs. 149, 157; Sec. 426, p. 838 and Sec. 434a,-p. 878.
    Plaintiff in error had a right to rely upon the statement made by Bunkers as to his occupation, and if such statement was wilfully false and fraudulent, that of itself avoided the contract. Bacon Benefit Soc., Sec. 216a, p. 377; McVey v. Grand Lodge A. O. U. W., 20 Atl. Rep.' 873 [53 N. J. L. 17, 20],
    The answer of plaintiff in error in the court below specifically averred that Bunkers, at the time he became a member was engaged in the sale, at retail, of intoxicating liquors, and was therefore not eligible to membership. This averment clearly advised plaintiff below of the defense relied upon by defendant below, and the plaintiff below, if she intended to rely upon estoppel or waiver should have set it up in her reply to the answer. Eureka Fire & Marine Insurance Co. v. Baldwin, 62 Ohio St. 368, 382 [57 N. E. Rep. 57].
    Plaintiff below should prove averment that Bunkers complied with the rules of the order. Champaign Co. v. Church, 62 Ohio St. 318, 338 [57 N. E. Rep. 50].
    Bromwell & Bruce and W. R. Medaris, for defendant in error,
    cited:
    In order to maintain the issues on its part set up in the first defense, the defendant must show more than mere falsity in the application for membership; it must also be shown that it was fraudulently made, and that the agent and company had no knowledge of the falsity or fraud of such answer. Hancock Mut. Life Co. v. Warren, 59 Ohio St. 45 [511ST. E. Rep. 546]; Sec. 3625, Rev. Stat.; Metropolitan Life Ins. Co. v. Howie, 62 Ohio St. 204 [56 N. E. Rep. 908].
    Answers to questions in applications for membership in benefit societies are not warranties, but representations. Bacon Ben. Soc. 216; Northwestern B. & M. A. Assn. v. Cain, 21 Ill. App. 471; Continental Life Ins. Co. v. Rogers, 10 N. E. Rep. 242 [119 Ill. 474, 484]; I. M. B. Society v. Winthrop, 85 Ill. 537.

      The court should construe the rules and regulations of such societies liberally, to effect the benevolent object of their organization. Nibiack on Ben. Soc. 391, 392; Supreme Bodge v. Schmidt, 98 Ind. 374; Erdman v. Order of Herman’s Sons, 44 Wis. 376.
    Forfeiture of membership and the rights incident to it are not favored, and the construction should be such as to avoid the forfeiture, if the language employed will admit of such construction. Connelly v. Shamrock, 43 Mo. App. 283.
    In order to constitute a defense in an action of this kind, it is necessary that neither the company nor its agents had knowledge of the falsity or fraud of the answer of the applicant for membership. Metropolitan Fife Ins. Co. v. Howie, supra; Sec. 3625, Rev. Stat.; Hancock Mut. Rife Ins. Co. v. Warren, supra.

    Evidence of the usage or custom is inadmissible to enlarge or diminish or affect the legal rights and liabilities of the parties, fixed by their written agreement in which there is no ambiguity. ■ Abbott Trial Brief (2 ed.), p. 287; Bloomington Canning Co. v. Bessee, 48 Ill. App. 341; Gilbert v. McGinnis, 28 N. E. Rep. 382 [114 Ill. 28],
    Hearsay testimony. Greenleaf Ev. (Redfield ed.), Sec. 124.
    Aside from the general principle that one party to a contract cannot by parol declarations in pais change the contract, it is settled that a person whose life is thus assured cannot by such parol declarations affect the rights of the beneficiary in the policy. Evers v. Fife Assn., 59 Mo. 429, 432; Reid v. Fife Assn., 58 Mo. 421; McDermott v. Fife Assn., 24 Mo. App. 73; National Union v. Rothert, 1 O. S. C. D. 768 (39 Bull. 143).
    The question of waiver is one for the jury. Aurora F. & M. Ins. Co. v. Hosmer, 1 O. S. C. D. 45 (22 Bull. 290).
    The waiver, if any, in this case, arises from estoppel which was not disclosed by the pleadings. Where it is not so disclosed, it need not be averred, but as the testimony creating it arises the court shall apply the doctrine regardless of the pleadings. Bank v. Flour, 41 Ohio St. 552, 559, 560. Also, see Castalia Trout Co. v. Sporting Club, 8 Circ. Dec. 693 (8 R. 194).
    In Ohio the verdict is to be construed and entered by the court if it can be made certain from the pleadings as to the intention of the jury. Fries v. Mack, 33 Ohio St. 52; 28 Pa. C. C. 537; Fawcet v. Finthecum, 3 Circ. Dec. 700 (7 R. 141); Thornton v. Sprague, Wright, 645; Hay v. Ousterout, 3 Ohio 384; White v. Francis, 5 Re. 323 (4 Am. Faw Rec. 501); Morrissey v. Schindler, 26 N. W. Rep. 476 [18 Neb. 672, 673],
   GIFFEN, J.

The original petition of the defendant in error stated a cause of action upon a certificate of membership issued by the plaintiff in error to George E. Bunkers. The first defense was that said member, being a saloon keeper, was ineligible, under Sec. 74 of the constitution, to membership ; that he stated in his application that he was a painter by occupation ; that said statement was wilfully false and fraudulently made; that the certificate would not have been issued but for such statement, and that the local lodge and the grand lodge had no knowledge of the falsity of such statement. A verdict and judgment were rendered in favor of the defendant in.error.

The first alleged error that we will notice is the refusal of the court to allow the witness, Fred. Dhonau, the grand master of the grand lodge of Ohio, to answer the following question :

“ State to the jury, if you know, when you signed the particular certificate which was subsequently delivered to the husband of plaintiff in this case?”

It is sufficient to say that, although counsel for plaintiff in error attempted to state what he proposed to prove by the witness, the record does not disclose any definite time which the witness would say was the date of signing.

2. It is claimed that the court erred in striking out the answer of the witness, Burton R. Kob, that “ Geo. E. Bunkers on the evening of his initiation said that he did not remember to whom he had sold his saloon,” but the answer so stricken out is as follows :

“ Why, who did you sell your saloon out to, George? He thought for a while. I put the question a second time, and he couldn’t remember the man’s name he said he sold out to.”

It will be observed that this is not a statement that George E. Bunkers said he couldn’t remember, but merely an impression or opinion of the witness that Bunkers couldn’t remember.

3. The grand master also testified that he knew at the time the certificate was issued that Bunkers was a saloon keeper, and had been for several years prior thereto, but that he did not know until September, 1899, that the certificate was issued to Bunkers, although he himself had signed the certificate dated July 18, 1899.

The court upon motion of the defendant in error struck out that part of his testimony relating to his knowledge when Bunkers became a member. This was not error, as the testimony would vary and contradict the terms of the very instrument signed by the grand master, and upon which the action was based.

4. The facts tending to prove an estoppel or a waiver first appeared in the trial of the case and from the evidence offered by the defendant below. It was. competent therefore for the plaintiff below to avail him-sell of their legal effect, although not having pleaded them in her reply. Bank v. Flour Co., 41 Ohio St. 552, 559, 560.

5. It is claimed the court erred in modifying the four special charges requested by plaintiff in error; before giving them to the jury; but the bill of exceptions contains the following recital: “And the following charges asked by the defendant are given.”

While it is true that counsel for plaintiff in error excepted to the charges given and as modified by the court, and also stated in what particulars they had been modified, there is no other statement in the bill showing that the court modified the charges. This court is bound by the record made, and can not therefore consider the exceptions to the special charges given at request of plaintiff in error.

6. The court charged the jury in a special charge as well as the general charge in substance that although they found that at the time of the issuance of the certificate Geo. F. Bunkers was engaged in the saloon business, if the lodge or its agents waived that fact, plaintiff could recover.

Section 74 of the constitution provides that—

“ No person shall be admitted to beneficial membership in the order * * * unless he be of good moral character * * * and not engaged in the sale of intoxicating liquors at retail * * *. ”

To admit one engaged in the sale of intoxicating liquors at retail to membership would be a violation of this fundamental provision of the order, which is of the substance of the contract, and although the chief officer had knowledge of the fact he was without power to waive such provision. McCoy v. Insurance Co., 25 N. E. Rep. 289 [152 Mass. 272].

The plaintiff in error being a fraternal order, is exempt under Sec. 3631-11, Rev. Stat., from the provisions of Sec. 3625, Rev. Stat.

Judgment reversed and cause remanded.