text:
    BUILDINGS — NEGLIGENCE.
    [Hamilton (1st) Court of Appeals,
    March 15, 1915.]
    Jones, Jones and Gorman, JJ.
    Standard Extract Co. v. H. Belmer Co.
    Negligence Concurring with Act of God Submitted to Jury.
    One whose negligence, concurring with an extraordinary occurrence in the natural world resulted in serious loss, cannot be held liable for the damage so sustained; but the question whether the two causes concurred in bringing about the loss should be submitted to the jury.

      Thomas E. Schmuck, for plaintiff in error.

      Fulton & Woost, for defendant in error.
   GORMAN, J.

This was an action in the common pleas court brought by plaintiff in error to recover damages from the defendant in error for the value of goods injured, and also injury to the business of plaintiff in error.

In January, 1913, the plaintiff in error rented from the Henry estate and occupied the second and third floors of the building known as No. 10 East Second street in Cincinnati, and. the defendant in error rented from the same landlord and oc» eupied the cellar and first floor of said premises. There was a party wall on the west side of the building, separating it from another building owned by the Henry estate and occupied in part or in whole by one Klum.

Plaintiff in error sets up in its amended petition that it gave permission to defendant in error to store temporarily on the third floor of the premises on January 13, 1913, about six hundred and fifty kegs of nails, each keg weighing from seventy-five to eighty pounds, or a total of about twenty-five tons, upon the agreement that defendant in error should indemnify plaintiff in error for any loss that plaintiff in error might sustain resulting from the storage of said goods; that the defendant in error in placing said nails on said floor did so negligently and carelessly, by reason whereof the said building collapsed and the goods of plaintiff to the value of $4,097.87 were totally destroyed, and that as a direct result thereof plaintiff was obliged to discontinue its business, whereby it suffered further damage in the sum of $15,912.13, making a total loss to it of $20,000.

Plaintiff’s claim is set out in two causes of action: first, it seeks to recover the damages arising from the alleged breach of the contract of indemnity; and, second, it seeks recovery on the ground of negligence on the part of the defendant in negligently piling up the nails and in overloading the building.

The defendant admits the placing of the nails on the third floor of the building with the permission of the plaintiff, but denies negligence, and denies that there was an agreement to indemnify plaintiff. The evidence showed that on or about January 13, 1913, the Ohio river was rising rapidly and had begun to flood the cellar and ground floor of said building, and that the defendant, in order to place its goods out of the reach of the rising floods, asked and received permission from some one con nected with plaintiff company to remove said nails to the third floor of said building, and did there store or pile them up in the place pointed out for that purpose.

' On the trial of the case the jury returned a verdict for the defendant, and judgment was entered thereon; and the plaintiff in error now asks this court to reverse said judgment. A hill of exceptions in narrative form and a transcript of the docket and journal entries have been filed as a part of the record.

Counsel for plaintiff in error bases his claim for a reversal on five grounds, which we shall briefly note and pass upon.

First, it is claimed that the trial court erred in his general charge to the jury in failing to state that there might be two concurring acts of negligence which would render the defendant liable. It was claimed by plaintiff that the collapse of the building was due to the negligence of the defendant' in the manner in which it piled the kegs of nails on the third floor against the partition wall in too small a space, and in overloading the building greatly beyond the tensile strength of the partition wall; while the defendant denies this alleged negligence, but claims that the building collapsed because of the decay, deterioration, age and imperfect construction of the walls and foundation when it was erected about fifty or sixty years ago, and by reason of the further fact that it had been frequently subjected to the floods of the river and its walls weakened thereby and rendered insecure and unsafe, unknown to defendant until after the collapse. There was evidence tending to establish both of these claims.

In this situation the court in substance charged the jury that if they found that the direct and proximate cause of the collapse of the building was due to the overloading of the third floor by the defendant, and that the defendant was further negligent and careless in overloading said floor by storing its nails in a careless and negligent manner as alleged in the amended petition and in not distributing them about the floor of the room as an ordinarily prudent person would do, then the defendant would be liable for the. damages caused to plaintiff’s property. The court further charged the jury that if they should find from the evidence that the building collapsed because of the inherent defects in the foundation and walls and not by reason of any act of storing or overloading of the building, then the plaintiff could not recover, as under such circumstances the storing or overloading of the building would not be the proximate cause of the injury to plaintiff.

Plaintiff in error claims that tbe court erred in the first part Of his charge in failing to call the jury’s attention to the situation which may have been shown from the evidence, that the collapse might be due to the concurrent causes of the inherent defects in the building and the careless and negligent overloading of the same, and he contends that if such were the case plaintiff would be entitled to recover and that the omission to so charge was such prejudicial error as calls for a reversal of the judgment.

As to this contention it may be said that if plaintiff desired such a charge he should either have asked the court to give it or should have called his attention to the omission, neither of which courses did he pursue, and we believe that he waived this error, if it was error, by his failure to call the court’s attention to the omission.

But it is doubtful, to say the least, if plaintiff was entitled to such an instruction, assuming that the evidence clearly established that the collapse of the building was due to these concurrent causes. In the first place, it may be that the inherent weakness of the building was a condition and not a cause; and, secondly, it is quite certain that there is a great conflict of authority whether in such cases the court should not instruct a verdict for the defendant or for the plaintiff. See Green-Wheeler Shoe Co. v. Chicago, R. I. & Pac. Ry. 130 Ia. 123 [106 N. W. 498; 5 L. R. A. (N. S.) 882; 8 Ann. Cas. 45]; Rodgers v. Missouri Pac. Ry. 75 Kan. 222 [88 Pac. 885; 10 L. R. A. (N. S.) 658; 121 Am. St. 416; 12 Ann. Cas. 441].

The facts in these two cases are practically the same, and this was the question to be determined: Was the common carrier of the goods liable for their loss, where there was negligent delay in delivering the goods, and when so delayed an unprecedented flood (an act of God) arose and destroyed the goods? If the goods, in both cases, had been promptly delivered they would have escaped the flood. These two cases were decided directly contrary to one another; in' the one case there was an instructed verdict for the plaintiff, and in the other an instructed verdict for the defendant. If the trial court in the case at bar had followed the rule laid down in the Kansas case, supra, he would have instructed a verdict for the defendant, assuming that the damages were the result of the two concurring causes above mentioned. If the Iowa case, supra, had been followed, he would have instructed a verdict for the plaintiff. We think the proper course to have pursued would have been to submit to the jury the question of whether or not the plaintiff’s damages were the direct result of the defendant’s negligence or were brought about by reason of the collapse of the building from its inherent weakness, or from some other cause. We do not believe that defendant would be liable if the damages were the result of the concurrent causes claimed to have produced the injury. See Denny v. New York Cent. Ry. 79 Mass. (13 Gray.) 481 [74 Am. Dec. 645]; Daniels v. Ballantine, 23 Ohio St. 532 [13 Am. Rep. 264].

For a full discussion of eases of this character, where although the plaintiff was in fault, yet no damage would have resulted but for an occurrence in the natural world which constituted an extraordinary departure from the usual course of nature, see appendix to article by Jeremiah Smith, 25 Harvard Law Review, 321.

We are also of the opinion that the court’s charge is not open to the criticism urged, because the court stated to the jury that if the building collapsed because of the inherent defects of the building, etc., and not by any act of storage or overloading of the building, then the plaintiff can not recover, etc. So that, under the charge, if the jury had found that the building collapsed by reason of any act of overloading or storing, they would have been justified in finding for the plaintiff.

Secondly, it is claimed that there was prejudicial error in the court’s charge in iteration and reiteration of parts of his charge, thereby giving undue emphasis to parts of the charge. We have read this charge with care, two or three times, and do not find it open to this criticism.

Third, it is claimed that the court erred in submitting to the jury the question of authority or lack of authority of the agent through whom the agreement of indemnity is claimed to have been made on behalf of the defendant. This question was raised by the issues in the pleadings. It was an issuable faet to be determined by-the jury, unless the agency was admitted by the defendant, which it was not. The business of a corporation is conducted by a board of directors, and the directors are the ones and the only ones, acting as a board, who can bind the corporation. If it were shown by the evidence that the directors either generally or specifically conferred power and authority on Albert Belmer to enter into this agreement, then his authority as agent for the company would be established; but he had no such authority to enter into an agreement to bind the company without the sanction of the board of directors. Bradford Belting Co. v. Gibson, 68 Ohio St. 442 [67 N. E. 888].

As to the fourth ground of complaint, that the court erred in the statement of the pleadings and the presentation of the issues, we are of the opinion that there was no error prejudicial to the plaintiff in this regard. The burden of proof was not upon the plaintiff to show that the latent defect in the building caused its collapse and the consequent damage to plaintiff. This might have been shown under a general denial. See Cincinnati Trac. Co. v. Forrest, 73 Ohio St. 3 [75 N. E. 818]; Cincinnati Trac. Co. v. Stephens, 75 Ohio St. 171 [79 N. E. 235].

Fifth, it is contended that the rule laid down by the court as to the measure of damages was wrong. It must be remembered that it was not for the loss of the goods alone that plaintiff was claiming damages. This element of damages was but about one-fourth of the amount claimed. A claim was made for the loss of profits which plaintiff might have realized from its business and we think the court did not err in laying down the rule to govern the jury in computing the damages.

On the review of the whole case, we are unable to say that substantial ’justice has not been done in this case, and unless we can do so it would appear that it is our duty to affirm the judgment of the trial court; and this is accordingly done.

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


source: Caselaw Access Project

author: HOUCK, J.

license: Public Domain

text:
    BENEFICIAL ASSOCIATIONS — INSURANCE.
    [Fairfield (5th) Court of Appeals,
    October 27, 1917.]
    Powell, Houck and Shields, JJ.
    Sovereign Camp W. O. W. v. Mary Clelland.
    1. Answers of an Applicant for Membership in Mutual Benefit Society Must Be Considered as a Whole.
    A beneficial association, in resisting payment of a death claim, can not rely on part of the answers made by the decedent in his application for membership and ignore his answers to other Questions, but the answers must be taken as a whole in determining their truth or falsity.
    2. Determination as to Truth or Falsity of Answers of Applicant for Insurance Is for Jury.
    Whether or not the decedent answered falsely is a question for the jury, and it is not within the province of a reviewing court to set aside the verdict of the jury on such an issue upon the weight of the evidence unless the verdict is clearly and manifestly against the weight of the evidence.
    [Syllabus by the court.)
    Error.

      Ben B. Dolson, Jdhn V. Sees and Doud, Crawfis, Bradford & Dones, for plaintiff in error.

      B. E. Shell, for defendant in error.
   HOUCK, J.

Tbe suit below was to recover on a beneficiary certificate issued on the life of Harry Clelland, now deceased, by the plaintiff in error, on July 14,1914. The defendant in error was the beneficiary named in the certificate.. Upon issue joined, as made by the petition, answer and reply, the cause was submitted to a jury in the court of common pleas upon the evidence and charge of the court, and after due deliberation a verdict was returned for the plaintiff, Mary Clelland. A motion for a new trial was filed by the plaintiff in error, the defendant below, which the trial judge overruled, and entered a judgment on the verdict.

Error is here prosecuted seeking a reversal of the judgment below, and numerous grounds of alleged error are set out in the petition in error, but in oral argument counsel for plaintiff in error insisted upon but three: (a) That the court erred in not sustaining defendant’s motion, after all the evidence was offered, instructing the jury to return a verdict for the defendant; (b) that the trial court erred in its charge to the jury; (c) that the trial court erred in not sustaining the motion of defendant below for a new trial.

We will discuss the alleged errors together, and in doing so we will refer to the parties hereafter as they stood in the court below. An examination of the record discloses that the defendant admitted issuing a membership certificate to the deceased; his death; the presentation of a claim for death benefit, by plaintiff, and the refusal to pay the claim. In its answer the defendant sets up as an affirmative defense that the deceased member had made false representations in his applicatin for membership; had warranted these representations to be true, and had agreed to forfeit all rights under his membership should these representations be false. The reply of plaintiff in substance denied all of the material allegations of defense set forth in the answer of the defendant. The record further discloses that at the trial it was agreed by counsel in the case and concurred in by the court that the burden of proof was upon the defendant, and thereupon defendant offered its evidence in the case, and to maintain the issues raised by the answer the defendant offered in support of the same the application of Harry Clelland, the benefit certificate, and the testimony of three physicians.

The real basis of the defense of defendant was that the member, Harry Clelland, in his application for membership made certain statements as to his health, and that the answers to the interrogatories concerning such health were made by him to Dr. C. G. Axline, the local camp physician and examiner, and that they were written down by said examiner, and after they were so' written the said Harry Clelland signed the application; that the application contained a warranty that all of the answers to all of the questions were true, and an agreement that if any of said answers were untrue, the membership of applicant and all rights under the certificate of membership, and the insurance thereunder should be null and void. Defendant insists that among other answers in the application were some to the effect that Harry Clelland did not at any time previous to his application have any disease of the nervous system, nor any disease of the kidneys, nor any disease of dropsical swellings. It is urged by counsel for plaintiff in error that the evidence conclusively shows that the deceased had suffered with at least three diseases specifically mentioned in the application, a short time before signing the same; that in said application said Harry Clelland denied that he ever had any of these diseases, and that in said application he agreed to forfeit all rights against said beneficial society if any of the answers so made in his application were false or untrue.

It is maintained by counsel for defendant in error that this claim is untrue, and is not supported by the evidence submitted at the trial of the case. It is further urged by the defendant in error that the plaintiff in error is estopped from making the claim relied upon by it because Harry Clelland in his application had stated in answer to the question, “Diseases or injury?” the answer, “Breakdown from overwork, date 1910, duration one and one-half years.”

We are of the opinion that the claim made by the defendant in error in this respect is well taken, because it can not properly be contended that the beneficial association can rely upon part of the answers to questions contained in the application and ignore the answer or answers to certain other questions. The application must be taken as a whole, and from it must be determined whether or not any answer or answers to questions were falsely made, or at the time of making such answers the ‘applicant knew they were false or not.

But passing this question, because we do not deem it decisive of the ease at bar, and coming now to the real question involved in this controversy, namely: Did Harry Clelland make any misrepresentations in his application for membership ? This was a question of fact to be determined by the jury under all the evidence in the case and under proper instructions by the trial judge as to the law governing the established facts.

It is a well-known rule of law that litigants in jury trials have the right to submit the evidence to the jury, the weight and sufficiency of such evidence to be passed upon by the jury. It therefore follows that it was within the province of the jury to determine the true question involved in this ease, and it is not within the province of a reviewing court to set aside the verdiet of a jury upon the weight of the evidence, unless it was manifestly so. Although a reviewing court might have rendered a different verdict than the jury did, if it had been sitting as a jury in the trial of the case under the same state of facts, yet it was for the jury to determine the facts and to weigh the evidence, and that being true, we can not say in the present case that it was improperly done.

Plaintiff in error maintains that the trial judge in his general charge committed errors of law. We have examined the charge with much care and we find that the claim of plaintiff in error in this respect is not well takeii. Learned counsel for plaintiff in error also insist that the motion for a new trial should have been sustained, and to this claim we do not agree. An examination of the record discloses that before argument of the case the plaintiff in error, the defendant below, requested the court to give certain propositions of law to the jury. These requests were made in writing and were given to the jury, and are as follows:

“First. If you find from the evidence that Harry Clelland ever had any disease of the liver before his application for membership in defendant, your verdiet must be in favor of the defendant, whether he know of such disease or not.
“Second. If you find from the evidence that Harry Clelland ever had any disease of the nervous system before his application for membership in defendant, your verdict must bo in favor of defendant, whether he knew of such disease or not.
“Third. If you find from the evidence that Harry Clelland ever had any dropsy or dropsical swellings before his application for membership in defendant your verdict must be in favor of defendant, whether he knew of such condition or not.”

We have examined these propositions of law and find them sound and clearly applicable to the facts in the case at bar. In view of this we do not understand how- plaintiff in error can now complain of the verdict in this case, because the main issue to be determined in this controversy was whether or not the alleged statements made by Harry Clelland in his application were false or not, and the law, as given to tbe jury in these special requests before argument and which were given at the instance of plaintiff in error, fully and completely covered every phase of the case, so far as the vital question at issue was involved. It therefore seems to us that no prejudicial error appears in the record in this case that would justify a reviewing court in reversing the judgment of the court below, and the judgment of the common pleas court is affirmed.

Powell and Shields, JJ., concur.


author: CHITTENDEN, J.

text:
    PARTITION.
    [Wood (5th) Court of Appeals,
    May 8, 1915.]
    Richards, Kinkade and Chittenden, JJ.
    Newton N. Stearns v. John A. Stearns et al.
    Whether Property Sought To Be Partitioned Is Ancestral Arises In Partition.
    Where a testator bequeaths the residue of his property to his “living heirs” and leaves surviving him both brothers and sisters and half-brothers and half-sisters, a demurrer lies to a petition filed by a half-brother for partition of property passing under said bequest, where there is nothing in the petition to show whether the property is ancestral or non-ancestral.
    [Syllabus by the court.]
    Error.

      Benj. F. James, for plaintiff.

      S. W. Bowman, for defendant.
   CHITTENDEN, J.

Tbis action was brought in the common pleas court by the plaintiff to secure partition of certain land and to have the title to such land registered. A demurrer to the petition was sustained and the plaintiff not desiring to plead further judgment was entered in favor of the defendants, dismissing the petitiou of the plaintiff.

The cause is submitted t® this court upon the demurrer to the petition.

The plaintiff claims as a beneficiary under the last will and testament of one Orrin Stearns. The petition alleges that Orrin Steams in his lifetime was the owner of the property in question, and that he died, leaving a will. After providing for certain specific legacies, the use of the property is given to his wife during her lifetime. It is provided that after the death of his wife, certain sums shall be paid from the estate for a specific purpose, and the will then provides as follows:

“It is my request that the balance of my estate be equally divided between my living heirs and the living heirs of my wife, Sarah Ann Stearns, share and share alike.”

The petition alleges that Sarah!Ann Stearns died leaving no children. The petition further alleges as the living heirs of Orrin Steams the following named persons: John A. Stearns.' a brother; Silas D. Steams, a brother; Mary Jane Bucher, a sister; Newton N. Steams, a half-brother, and also names seven other persons who are half-brothers and half-sisters of Orrin Stearns, deceased. The living heirs of Sarah Ann Steams are alleged to consist of four brothers, two sisters and two nephews. The plaintiff, Newton N. Stearns, claims an interest in the estate of Orrin Steams and the right to have partition of the estate by reason of the allegation that he is a living heir of Orrin Steams, deceased.

It does not appear from any allegation in the petition as to whether or not the property sought to be partitioned is ancestral or non-ancestral property. Section 8574 G. C. provides how property shall descend if it did not come by descent, devise, or deed of gift. Section 8573 provides for the order of descent when the title came by descent, devise or deed of gift. By the terms of See. 8574 G. C., when the decedent leaves no children or their legal representatives, and no husband or wife, the estate shall pass to the brothers and sisters of the whole blood.

It is contended that this section of the General Code has no application in this case, because the petition alleges that the estate of the plaintiff comes to him by will and not by descent, and that the term “living heirs” of Orrin Stearns, as used in the will, includes all persons who answer that description, regardless of the degree of their relationship to the testator. This proposition is said to be based upon the decision of the Supreme Court in Mooney v. Purpus, 70 Ohio St. 57 [70 N. E. 894]. We are of the opinion that this latter case does not supply the rule of law governing the interpretation to be placed upon the will of Orrin Stearns as set forth in the petition. It was held in that case that where a testator bequeaths his residuary estate to has lawful heirs, and the will directs that it “shall be equally divided amongst my lawful heirs share and share alike,” all persons who at the time of the testator’s death answer the description, his “lawful heirs,” are entitled to share in such residuary estate regardless of the degree of their relationship to the testator, and in the distribution of such estate such heirs take per capita and not per stirpes. The question that arises in every case of that character is, who are the lawful heirs ? and the question presented by this petition is, who are the living heirs of the testator and of his widow?

The term “living heirs” designates a class to whom the testator intends his estate to go. We quote from the opinion in Mooney v. Purpus, at page 64, as follows:

“This being the only designation or description of those who were intended as beneficiaries under the clause of the will, of necessity resort must be had to the statute, in order to determine who are the legal heirs of the testator within the meaning of this clause.”

We quote no more than the foregoing from the extended discussion of the subject found in that report.

Resorting then to the statute to ascertain who are included in this class of living heirs, we find that, if this property is non-ancestral property, half-brothers and half-sisters are not “living heirs” within the terms of the will.

The petition failing to contain any averment which brings the plaintiff within the class designated by the will, the allega-, tions are not sufficient to constitute a cause of action on behalf of the plaintiff, and the demurrer to the petition will, therefore, be sustained.

Richards and Kinkade, JJ., concur.


author: JONES (O. B.), J.

text:
    ASSESSMENTS.
    [Hamilton (1st) Court of Appeals,
    May 17, 1915.]
    Jones, Jones and Gorman, JJ.
    Kelly v. Cincinnati (City) et al.
    1. Necessity for Street Improvement Declared by Council Prerequisite to Special Assessment.
    When an improvement is to be made by a city for which a special assessment is to be levied, council must declare the necessity by resolution, which shall determine the nature of the improvement and the method of the assessment, and where this is not done the cost can not be assessed.
    2. Grading-Proper Subject for Special Assessment.
    Grading is a proper subject for special assessment.
    $. Special Assessments Limited to Special Benefits.
    Special assessments can not be sustained in any instance in excess of special benefits.
    4. Front Foot and Benefit Plan of Assessments not Commingled.
    An assessment by the front foot can not be made under the guise of the benefit plan. Whichever plan is adopted must be pursued in accordance with the statute, and the two plans can not be commingled.
    5. Failure to Object Under Provisions of Assessment Statutes Not Bar to Proceeding to Enjoin Assessments.
    The failure of property owners to file objections to special assessments under the provisions of Sec. 3848 G. C., does not prevent them from seeking relief under the provisions of Sec. 12076 G. C., where the provisions of the law relating to assessment in proportion to benefits have been clearly violated.
    [Syllabus by the court.]
    Appeal.

      Oliver 8. Bryant, for plaintiff.

      Walter M. Schoenle, City Sol., and Frank K. Bowman, Asst. City Sol., for defendant.
   JONES (O. B.), J.

This cause was beard in this court on appeal from tbe court of insolvency. It is a proceeding brought by owners of lots and lands abutting on Isabella street, seeking to enjoin the collection of so much of an assessment as they deem illegal and excessive, levied on such lands by the city of Cincinnati for the improvement of Isabella street from Markbreit avenue to a point 610 feet south.

Isabella street is a highway in said city, extending from Mark-breit avenue, almost at Madison road, southwardly about half a mile, and that portion between its southern terminus and a point 610 feet south of Markbreit avenue had been improved by paving the roadway and setting curbs and gutters, the cost of which improvement had been assessed against the abutting property. The part of Isabella street lying between Markbreit avenue and this point 610 feet south of it had not been improved prior to the improvement for which the assessment under consideration was levied, but the lots fronting on it had been built upon and it was traveled on the natural grade of the street by vehicles, except for a portion of about 200 feet at its north end just south of Markbreit avenue, which portion was about twenty feet lower than the portions of the street both south and north of it. This low portion could not be used for vehicles, and Mark-breit avenue could only be reached over this low portion of the dedicated street by pedestrians by means of a wooden footbridge.

Preliminary to this improvement, no previous grade having been established, the city by ordinance of March 26, 1912, established the grade of Isabella street from Mai’kbreit avenue to a point 610 feet south, the grade so fixed being that of the natural surface of that part south of the 200-foot portion. In the improvement of said street and as a part thereof this low portion was filled with an embankment 20 feet in height by about 200 feet in length, to bring it up to such established grade, the cost of such fill being $3,955.39. In making said improvement the city also constructed certain cement sidewalks, at a cost of $46.08, said sidewalks not being provided for in the legislation had by the city council for the improvement.

Plaintiff, Barton H. Kelly, contends that these two items should be eliminated from the assessment to be charged against his property.

The power to levy special assessments on abutting or benefited property is conferred by statute, and this power can be exercised only in the manner provided by law. Section 3812 G. C. When an improvement is to be made for which a special assessment is to be levied, council must declare the necessity by resolution, which shall determine the nature of the improvement and the method of the assessment. Sections 3814 and 3815 Gr. C. It being conceded that the small item of cement sidewalk was not provided for in the legislation for this improvement, its cost can not be assessed.

The matter of grading, however, is not so easily disposed of. The evidence submitted is in an unsatisfactory state in respect to whether grading was or was not provided for in the improvement legislation. In both the amended petition and the amended answer, on which the ease was tried, it is alleged that the resolution declaring the necessity for the improvement, and the ordinance to proceed with the improvement, were for an improvement “by paving the roadway with bituminous macadam, according to certain plans and specifications then on file and according to the grade set forth in said resolution.” Whether grading specifically appeared as one of the items of said improvement is not shown by the production of a copy of the resolution, the ordinance to proceed with the improvement, or the specifications. It is, however, agreed, that in order to make the grade of said street comply with the grade so established, the city in improving Isabella street constructed said fill at the cost named. And from the assessment ordinance, a copy of which was introduced, it appears that the improvement was to be “by grading, paving the roadway with bituminous macadam, and constructing the necessary drains and inlets.”

It is contended with great ability, on behalf of plaintiff, that where in the improvement of a street it becomes necessary to radically change the natural contour of the ground in the street by grading, in order to present a proper smooth surface suitable to receive the paving, such grading is analogous to the acquirement of the land itself on which the street is built, and that its cost can not be charged against the owners of abutting property; that, while under the old doctrine laid down in Cleveland v. Wick, 18 Ohio St. 303, such an assessment could have been upheld for the cost of the land occupied by the street, the later law, as laid down in Cincinnati, L. & N. Ry. v. Cincinnati, 62 Ohio St. 465 [57 N. E. 229; 49 L. R. A. 566], which directly overrules Cleveland v. Wick, and in Norwood v. Baker, 172 U. S. 269 [43 L. Ed. 443; 19 Sup. Ct. 187], and Dayton v. Bauman, 66 Ohio St. 379 [64 N. E. 433], would forbid it. And it is argued that the same law would apply to forbid the assessment of the cost of necessary grading.

To this we can not agree. It is common knowledge that one of the most important elements of roadbuilding is the grading of the road bed itself to a suitable and proper grade; by excavation, where the natural surface is too high, and by embankment, where it is too low. And in a locality like Cincinnati, where the natural land is more or less hilly, this item of grading is usually one of the important matters in the improvement of a street that has not been previously improved. It is recognized as such in the statute itself by which such special assessments are authorized, Sec. 3812 G-. C., in which section it is distinctly named as one of the elements of such an improvement. It is generally an essential part of every surface improvement, for which a special assessment may be levied not to exceed the special benefits conferred, as laid down in Dayton v. Bauman, supra, 393. Grading has been distinctly held to be a proper subject for special assessment in numerous other cases, among which are Longworth v. Cincinnati, 34 Ohio St. 101, and Jessing v. Columbus, 1 Circ. Dec. 54 (1 R. 90), affirmed, Central Ohio Ry. v. Columbus, 22 Bull. 453.

Counsel for plaintiff relies upon Fridman v. Norwood, 25 O. C. C. 258 (1 N. S. 97) affirmed, no op., Norwood v. Fridman, 70 Ohio St. 431; Carlisle v. Cincinnati, 29 O. C. C. 81 (8 N. S. 46), affirmed, no op., Carlisle v. Cincinnati, 77 Ohio St. 637, and Bartley v. Cincinnati, 4 Circ. Dec. 549 (8 R. 226). An examination of these cases shows that in each of them the item of grading which it was held could not be assessed was one occasioned by the change of an established grade to which an improvement had been previously made, and came within the terms of See. 3838 G. C.

In the legislation for this improvement it was provided that 50 per cent, of its cost, and the cost of intersections, should be paid by the city, and the remainder should be assessed upon the abutting property in proportion to the benefits resulting to it from the improvement. This is the second method of assessment provided by Sec. 3812 G. C.

There is no question under the evidence but that the making of this improvement, opening the street to public travel by means of this fill out to Markbreit avenue, opened up a thoroughfare of general benefit to the public, and of particular benefit not only to the north 610 feet of Isabella street, but to the southern portion of that street as well, and to cross streets and the entire neighborhood. This is undoubtedly recognized by the city in paying more than one-half of the cost. Whether this was the fair proportion of the cost to be paid by the city, and whether the district to be specially assessed as being specially benefited should have been limited as it was, are matters to be determined by the city council, and its discretion can not be controlled by the courts in the absence of manifest abuse.

The power of the court can however be invoked under Sec. 12075 G. C. to enjoin the collection of illegal assessments, and special assessments can not be sustained in any instance in excess of special benefits. Chamberlain v. Cleveland, 34 Ohio St. 551; Walsh v. Barron, 61 Ohio St. 15 [55 N. E. 164; 76 Am. St. 354], and Walsh v. Sims, 65 Ohio St. 211 [62 N. E. 120].

In this case a consideration of the assessment as fixed by the ordinance- to assess, confirming the report of the estimating board and the evidence as to values and special benefits, shows that the amounts assessed were not fixed as required by law in proportion to the special benefits, but that the lots abutting the fill on the east side were assessed on a basis of $1.61 per front foot and those on the .west side on a basis of $1.04 per front foot, while all the remainder of the property was assessed at amounts that would be obtained by the uniform rate of $4.50 per front foot.

From the evidence it is apparent to the court that the lots at the north end, abutting the fill, received as much and in fact greater benefit from the improvement than did the other property, and that the low amounts for the assessments were fixed with the idea that larger amounts might be uncollectible because of the limited value of the lots. The evidence also shows that the value of the deeper lots on the east side was greater than that of those on the west and the special benefit was correspondingly greater.

An assessment by the front foot can not be made under the guise of the benefit plan. "Whichever plan is adopted must be pursued in accordance with the statute and the two plans can not be commingled. Kelly v. Cleveland, 34 Ohio St. 468, and Dick v. Toledo, 5 Circ. Dec. 157 (11 R. 349). See also, as to benefit assessments, Cincinnati v. Batsche, 52 Ohio St. 324 [40 N. E. 21; 27 L. R. A. 536]; Klein v. Cincinnati, 4 Circ. Dec. 589 (7 R. 266), and Frey v. Findlay, 4 Circ. Dec. 611 (7 R. 311, 319).

The property owners had an opportunity to object to this assessment under the provisions of Sec. 3848 G. C. and should have done so, when the amounts might have been properly equalized and adjusted under Secs. 3849 and 3850 G. C. But their failure to file such objections does not prevent them from seeking relief under Sec. 12075 G. C. where, as in this case, the provisions of the law relating to assessment in poportion to benefits have been so clearly violated. The amended petition does not ask for an injunction against the entire assessment as levied, but only for an injunction as to any excess over what might be found to be a legal charge. The validity of the entire assessment as made is, however, brought to the consideration of the court, and with an amendment of the pleadings might be set aside as entirely illegal, with an order permitting the city to levy a reassessment. This would involve delay and expense. The evidence shows, and plaintiff admits, that his property has been specially benefited. If the amount assessed had been distributed at a uniform rate on the entire frontage assessed, it would have amounted to a rate of about $3.45 per front foot. In the opinion of the court each of plaintiff’s lots has been specially benefited to that extent, and said assessment is a proper charge in the several amounts that may result from a calculation of the front feet of the respective lots by such rate, and to that extent will be sustained.

A decree may be taken enjoining the collection of any part of said assessments in excess of such amounts.

Judgment accordingly.

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


author: JONES (E. H.), J.

text:
    WORKMEN’S COMPENSATION.
    [Hamilton (1st) Court of Appeals,
    January 19, 1916.]
    Jones, Jones and Gorman, JJ.
    Ohio Trac. Co. v. Washington.
    Receipt of Award from State Fund not Bar Action Against Joint Tort-Feasor, Other Than the Employer.
    Receipt of money by an injured employe from the state liability board of awards by virtue of the workmen’s compensation law is not a bar to an action for damages against a person other than the employer whose negligence contributed to the injury.
    ERROR.

      Kinkead & Rogers, for plaintiff in error.

      Fulford, Shook, Wilby & Fricke, for defendant in error.
   JONES (E. H.), J.

The receipt of money by an injured employe from the state liability board of awards by virtue of the workmen’s compensation law is not a bar to an action for damages against a person other than the employer whose negligence contributed to the injury, there being no provision in said act making the remedy therein provided exclusive. The rule that settlement with one joint tort-feasor is a bar to recovery from the other has no •application and can not be invoked in such a case.

The presence of the piece of timber in the court room was within .the discretion of the trial judge, and, while the prominence given it during the trial may have been unusual, it was not error upon which a reviewing court could bottom a judgment of reversal.

We find no error in the proceedings in the superior court, and its judgment will be affirmed.

Judgment affirmed.

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


author: HOUCK, J. Powell, J.,

text:
    BILLS AND NOTES — CHARGE TO JURY.
    [Knox (5th) Court of Appeals,
    June 19, 1916.]
    Discount & Deposit State Bank v. B. E. Litt et al.
    1. Instructions on Abstract Propositions of Law Unless Applicable not Required.
    A trial judge is not bound to give to the jury written charges before argument which embody abstract propositions of law, however sound, unless they are applicable to the pleadings and the particular facts developed during the hearing.
    2. Holder of Promissory Note Has Burden of Proof to Establish Title.
    Where the defendant, in an action on a note, denies that the plaintiff became the owner in good faith before due, but on the contrary was aware of infirmity in the note and that defenses would be interposed thereto, and testimony is offered in support of these allegations, the burden of proof is cast upon the plaintiff to establish his title, if he has not already done so, by affirmative proof; and where the jury has found that the plaintiff did not become the owner of the note in good faith for value before maturity and without notice of defect in the title of the person negotiating it, a reviewing court will not reverse the judgment as against the weight of the evidence, unless the court is satisfied upon the whole record that the judgment is manifestly against the evidence.
    [Syllabus by the court.]
    ERROR.

      Wm. Darroch and Greer, Greer & Cromley, for plaintiff in ’error.
    W. A. Hosach and L. C. Stillwell, for defendants in error.
   HOUCK, J.

The parties to this action stand in this court in the same position that they stood in the court below.

The action below was based on a promissory note executed and delivered by defendants to one Will H. Ade for $1,100, and claimed to have been duly sold, assigned and transferred to the plaintiff for a valuable consideration, before due, and that it is the owner and holder thereof, and entitled to recover said sum of $1,100, with interest. Said note was dated February 13th, 1913.

The defendants filed an answer in which they set forth the following alleged defenses:

1. That said note was not purchased by plaintiff before due, and that plaintiff is not now and never was the legal owner and holder of said note.

2. That said Will H. Ade, the original payee of said note, is the owner and holder of same, and is indebted to these defendants in the sum of $2,850 in this, to wit: That on September 3, 1912, the defendants purchased a certain stallion of said Will H. Ade, paying therefor the sum of $1,500, and that said Ade warranted said stallion to be a sure foal getter, etc., and that they relied on said warranty; that said stallion proved worthless for the purposes for which they purchased him, and they were damaged in the sum of $2,850; that as soon as they learned the defects of said stallion they so informed said Ade, and that he then promised to make said loss good, but has failed to do so.

3. That said plaintiff and said Ade, for the purpose of cheating and defrauding these defendants out of their said claim, or so much of it as is represented by said note in question, falsely represented and claimed that plaintiff had purchased said note befoi’e due for a valuable consideration.

The plaintiff filed a reply to the answer, being a general denial.

The cause was submitted to a jury and a verdict returned in favor of the defendants. The plaintiff filed the usual motion for a new trial, and the court overruled said motion, and a judgment was entered on the verdict.

The plaintiff in error seeks a reversal of the judgment below, and in its petition in error sets forth a number of grounds of alleged error, but in oral argument and brief seems to insist upon the following:

1. The court erred in its refusal to give certain special written charges before argument.

2. That the court erred in its general charge to the jury.

3. That the verdict was against the manifest weight of the evidence, and is contrary to law.

• As to the special requests in writing presented by the plaintiff before argument and refused by the court, the plaintiff presented twelve requests, the court giving four and refusing eight of them. We are aware of the fact that a party to a lawsuit has the legal right to have given to the jury, before argument, such written propositions of law as he may request, provided such written propositions of law so requested to be given before argument properly state the law applicable to the case on trial. Mei’e abstract propositions of law, while sound as such, yet if they are not applicable to the issues raised by the pleadings and the particular facts in the case in which they are sought to be given, the court may refuse to give without error. We have examined with much care the charges which the court refused to give to the jury, and we have no hesitancy in saying that as abstract propositions of law they are sound, but they are not applicable to the facts in this ease, and therefore the trial judge committed no error in refusing to submit them to the jury.

Counsel for plaintiff in error complain of the general charge of the court wherein the court says:

“If you find that the defendant B. E. Litt had a valid claim for damages against Ade for the breach of the warranty for this horse Constant, and you further find that Ade knew of this claim of the defendant, and you further find that he sold the note to the plaintiff for the purpose of defeating and defrauding defendant out of his claim, if the jury finds all these facts, then the possession of the note endorsed by Ade raises no presumption as against this proof that plaintiff purchased the note without notice or defect in the hands of Ade. * * * Now if these facts have been established by the degree of proof required by law, then that easts upon the plaintiff in this case the burden of showing by some affirmative proof that it had no knowledge of any such defense to the note at the time it purchased it. However, gentlemen of the jury, it must clearly appear that when Mr. Ade sold this note his object and purpose was to defraud Mr. Litt. Fraud is never presumed, and when pleaded must be proven, and we can not infer it. Of course, that may be proven by proving circumstances. ”

We can not understand how the plaintiff in error can complain of the above proposition of law as given by the trial judge in face of the fact of special requests Nos. 3 and 4 given to the jury by the court before argument at the instance of said plaintiff in error. Said-requests being as follows:

“No. 3. One is a holder in due course who has taken the instrument under the following conditions:
“That it is complete and regular on its face.
“That he became the holder of it before it was due, and without notice that it previously had been dishonored, if such was the fact.
‘ ‘ That he took it in good faith, and for value.
“That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.
“No. 4. The title of a person who negotiates an instrument is defective when he obtained the instrument or any signature thereto by fraud, duress, force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud. ’ ’

These two special requests in writing, given before argument and at the request of the plaintiff in error, are sound in law and certainly cover every issue made by the pleadings and the evidence in the case at bar, and if there is anything in the general charge in conflict with these special requests plaintiff in error certainly has no reason now to complain. We think if these propositions of law are propexiy applied to the evidence offered to determine the issues in this case they are clearly reconcilable.

The one important issue of fact to be determined in this case is, Was the plaintiff a purchaser of the note in question before due ? This was a question to be determined by the jury, under proper instructions from the court, and we think that every phase of the ease and the testimony offered was fully covered as to the law governing the question as to who is a holder in due course by special request No. 3, given before argument. The jury, before it could return a verdict for the defendants, was compelled to find that the plaintiff was not a purchaser before due of the note in question, or that it had knowledge of the defenses claimed by defendants or that Ade knew it. If the jury found that Ade knew of the defenses and claims of the defendants, which it could have found under the evidence as disclosed by the bill of exceptions, then the law as given in special charge No. 4 was applicable. If the jury found that Ade knew of the claims and defenses of the defendants, and this was clearly established by the evidence, which from the bill of exceptions seems clear to us, then inasmuch as the defendants in their answer denied that plaintiff was the owner of the note indue course, and that it had knowledge of the defense and claims of defendants, and submitted proof in support of these allegations, it devolved upon the plaintiff, if it had not already established its claim by affirmative proof, to rebut the evidence offered by defendants in this regard.

The burden of proof of making out good faith in this case under the facts here disclosed is, we think, with the plaintiff. It asserts title as a bona fide holder in due course, before due, and evidence has been offered by the defendants denying this claim. It makes no difference whether the plaintiff pursued the usual course required to establish its claim or not, it must in order to secure the advantages which commercial law confers upon holders of negotiable paper bring itself within the rule. Purchasers of such instruments are entitled to the benefits of that rule only when they have purchased such paper in good faith, in the usual course of business, before maturity, and without notice of any defects or infirmities therein, or any legal and valid defenses thereto.

As to the weight of the evidence, it is expected in eases like the one at bar that the purchaser will testify as to his good faith and want of notice, and the defendants are compelled to rely upon circumstances and surroundings to rebut 'such evidence. Whether the plaintiff in this case has satisfied this burden resting upon it, and whether it has made good its claim as purchaser before due and without notice of any defects in the title to or infirmities in or defenses to the note in question were questions of fact to be determined by the jury, unless the testimony is not only consistent with the good faith of the plaintiff, but is such that no fair-minded person can draw any other inference therefrom. The jury saw the witnesses and passed upon their credibility, their interest in the case, the reasonableness or unreasonableness of their statements, the time, place and manner of the transaction, its conformity to or its departure from ordinary methods of business, and all the facts and circumstances in the case, some of which may be slight, but when taken together' aid in the proper determination of the transaction between the parties hereto, which a court can not pass upon as a matter of law.

A reviewing court will not disturb a verdict on the ground that it is against the weight of the evidence, unless upon an examination of all the testimony offered, and upon the whole record, it is satisfied that it was against the manifest weight of the evidence. And not being so satisfied, we will not interfere with the judgment entered on the verdict in this case.

The plaintiff in error, in brief and oral argument, insists that the trial judge erred in not instructing the jury properly and fully as to the law governing the rights of an endorsee of a promissory note with reference to the presumption as to whether or not it was transferred by the owner to the transferee or indorsee, before due.

Before argument, and at the request of the plaintiff in error, the plaintiff below, the trial judge gave to the jury special written request No. 1, the same being as follows:

“Except when an endorsement bears date after maturity of an instrument, every negotiation is deemed prima facie to have been effected before the instrument was due.”

We think this is a sound principle of law, and applicable to the facts in this case, and fully covers the issue as to this particular question made by the pleadings and facts in this case, and therefore we do not understand how the plaintiff in error has any cause for complaint in this regard.

As to whether or not the bank was the owner and holder of the note in question in due course, purchased before due, and for a valuable consideration; as to whether or not it knew at the time it purchased the note of the alleged claim and defenses of the defendants thereto; as to whether it had knowledge of any defects or infirmities of said note at the time it purchased same, and as to its good faith or lack of good faith with reference to the entire transaction were questions of fact to be determined by the jury, under proper instructions from the court.

From an examination of the bill of exceptions we are free to say that upon some of the questions of fact the testimony was somewhat conflicting, and no doubt different minds might reach different conclusions therefrom. Yet the jury having reached its conclusion under proper instructions from the trial court as to the law governing the facts in this case, as evidenced by the charges given to the jury before argument, as contained in the written requests of the plaintiff in error, the plaintiff below, as well as the law applicable to this case as contained in the general charge of the trial court, it is not the duty of, nor is it within the province of a reviewing court to say that the verdict of the jury was wrong.

As disclosed by the bill of exceptions and the record in this case, which consists of nearly two hundred and fifty pages of typewritten matter, we are led to believe from our examination of same that the ease was warmly contested in the trial court, and it necessarily follows that some technical errors have found their way into the record, but none prejudicial to the rights of the plaintiff in error.

Upon our examination of the entire record in the case at bar, we feel that substantial justice has been done to all parties in interest in this lawsuit. We find no error apparent on the record prejudicial to the rights of plaintiff in error.

A majority of this court is of the opinion that the judgment of the common pleas court should be affirmed.

Judgment affirmed.

Shields, J., concurs; Powell, J., dissents.

Powell, J.,

dissenting.

I am constrained to disagree with the judgment of affirmance arrived at by the majority of the court in this case. The petition declares on a negotiable promissory note in the short form authorized by Sec. 11334 G-. C. It was filed by the first endorsee on the note and proper averments are made to constitute the plaintiff a holder in due course.- To the petition an answer was filed setting up two defenses:

1. That plaintiff was not the owner of the note sued on; that the same was not assigned, transferred and delivered for a valuable consideration to the plaintiff before the same was due and payable. It is averred as a part of said first defense that Will H. Ade, the payee of said note, is the owner and holder of the stme and is indebted to defendants in the sum of $2,850, and that for the purpose of delaying defendants in the collection of their said claim Ade and the plaintiff are in collusion and that, in fact, no sale or transfer from said Ade to plaintiff has ever been made. All this is alleged as a part of said first defense.

2. For a second defense, an unliquidated claim for damages against the said Will H. Ade, who is the payee and endorser of the note sued on, arising out of an alleged breach of warranty in the sale of a horse by Ade to plaintiff in the sum of $2,850 is set up and judgment asked against Ade.

The said Ade was not a party to the suit, nor was any application made by either plaintiff or defendants that he be brought in as such party, with or without leave to answer. A motion was filed by plaintiff to strike said second defense from the answer, because the same is “irrelevant, immaterial and impertinent.” This motion was overruled. It should have been sustained. It is not a defense to the note sued on in the meaning of the term as used in the Negotiable Instruments Code, for defendants admit the execution of said note for good and valuable consideration and do not set up any defect in it or defense against it. This said second defense is not a counter-claim which defendants would be authorized to set off against the note, for it does not arise out of the contract or transaction set forth in the petition as the foundation of plaintiff’s claim, nor is it connected with the subject of the action. One of these two things must exist to constitute a counter-claim. Section 11317 G. C.

It is not a set-off because it does not exist against the plaintiff in the action brought, but against a third person who is not a party to the suit, nor could any judgment be obtained against plaintiff on said second defense. It does not arise on contract, nor has it been ascertained by the decision of a court. It is merely an indefinite, .unliquidated claim for damages asserted against an individual who is not a party to the suit and does not come within the definition of a set-off as defined by Sec. 11319 G. C. As snch second defense is neither defense, counter-claim or set-off as defined by the statutes, it should not have been allowed to encumber the records and it was prejudicial error to overrule the motion to strike it out of the answer. Nothing should be permitted to remain in an answer except matters of defense, counter-claim or set-off. Section 11315 G. C.

So far as the pleadings show in this ease no cross demands ever existed between the plaintiff and the defendants to this action. Defendants have no demand against the plaintiff; their demand is against a stranger to the record, one who is not a party to the suit at all, so that the case is not in any wise affected by the provisions of Sec. 11321 G. C.; besides, this section does not apply to negotiable instruments until after the same become due. Lillie v. Bates, 2 Circ. Dec. 54 (3 R. 94); Wyman v. Robbins, 51 Ohio St. 98 [37 N. E. 264].

There is but one defense pleaded to the cause of action set out in the petition and that defense is want of ownership on the part of the plaintiff. All of the testimony admitted on any other subject was erroneously admitted and involved absurd consequences. The result of this ease is a good illustration. The defendant in the action makes a claim for damages on account of a breach of warranty in the sale of a horse against a citizen of Indiana who is not made a party to the suit. This claim arises out of a transaction wholly independent of the transaction in which a note was given by the defendant to the citizen of Indiana in the sum of ‡1,100. It is alleged that the note became the property of a third person who claims to be a holder in due course, or, in the ordinary language of business, an innocent purchaser, and who brings suit against the maker of the note only, who in his turn sets up as a reason why he should not pay the note, that he has an unascertained claim for damages against the payee of the note and this payee is a stranger to the record and is not made a party even after this defense has been pleaded, and the issue thus made is submitted to a jury to determine whether or not the pajme of the note owes the maker anything in another and different cause of action; and the jury finds that the payee does owe the maker an unsettled amount, but at least sufficient in amount to offset the note sued on and therefore find for the defendant. This, it seems to me, is a proceeding unwarranted by any rule of law. If the finding and judgment are conclusive of anything, they are only conclusive that the plaintiff is not the owner of the note. Ade, the payee of the note, is not in court at all, and yet it is determined by a jury that he owes enough to offset a note admitted to be valid and without any defense, without his side of the story ever having been heard and submitted to a court for adjudication. The iniquity of this proposition from a legal standpoint ought to be apparent in the mere statement of it.

On the single issue presented by the pleadings the evidence should have been confined to the ownership of the note by the plaintiff and whether, in fact, he was a holder of the same in due course and entitled to collect it.

I have examined this entire record with reference to the issue of ownership of this note and can not find therein a single word of competent evidence that upholds the contention of the defendants. It is true that the testimony of Hosaek and Litt is to the effect that Ade said in their presence when at Frederick-town and Mt. Vernon, Ohio, on November 6, 1914, that he was the owner of the note. Plaintiff was not present when this statement was made by Ade, nor was there any one representing the plaintiff present, yet the court admitted these statements in evidence over plaintiff’s objections. This was error, and prejudicial error.

I am at a loss to understand the theory of the court in the admission of this evidence. Plaintiff offered to show by another witness who was present a part of the time when these admissions were said to have been made, that Ade had said to him he had sold the note to plaintiff. This evidence was excluded by the court for the reason as given, that Litt was not present when the statement was made. Ade’s statements seem to have been considered competent to bind the plaintiff, although no representative of the plaintiff was present, but the same class of testimony was inadmissible to bind the defendant because he was not present. I do not think any of Ade’s statements so made were competent evidence to go to tbe jury. But the particular vice that attaches to these admissions is that they have their weight with the jury as an indication of the position of the court on the issues presented. If it is necessary that either of these parties should be present in order to make this evidence competent against him, the other should have been present also to have made it competent and binding against it.

But aside from all this the controlling questions submitted in this case have all been passed on by one or more of the circuit courts of the state adversely to the holding of the trial court in this ease and consequently adversely to the judgment of affirmance of the majority of the court, and the judgment of such courts on these questions has been affirmed by the Supreme Court. This suit is brought by the first endorsee of a negotiable promissory note against the maker, the endorser not being made a party. The plaintiff in the suit claims to be the holder in due course and asks judgment for the amount of such note. This claim is denied by the defendants and it is affirmatively averred that the endorser is the real owner of the note; this is the only actual defense pleaded to the note. True, defendants claim a set-off against the endorser but not against the plaintiff, the only other party to the suit.

The case should have been tried and determined on this issue alone because:

1. The suit must be brought by the real party in interest. Section 11241 G. C. This provision of the statute applies to negotiable promissory notes as well as to all other actions, Nichols v. Gross, 26 Ohio St. 425 [1 N. E. 644]; Osborn v. McClelland, 43 Ohio St. 284. Under these authorities the plaintiff must be the real party in interest, or his action must be defeated. If the answer here means anything, it means that plaintiff is not the real party in interest in this kind of a case; that he is not the owner of the note and a holder in due course, for value, and without notice of any infirmity affecting the instrument. It takes all this to constitute him the real party in interest. If he is not the real party in interest, he should be defeated because none but the real party in interest can maintain the action.

This identical case, so far as general principles are con-eemed, is found in the case of Independent Coal Co. v. Bank, 27 O. C. C. 297 (6 N. S. 225). This action was brought by the first endorsee of a negotiable promissory note against the maker of the note, the endorser hot being made a party to the action. The defense made by answer was that the plaintiff was not the owner of the note, but held it by a fraudulent transfer from the endorser for the purpose of defrauding defendant out of a set-off or counter-claim against the maker of the note arising out of a contract to furnish coal, which contract the endorser had not complied with. Defendants offered evidence to show the contract with the endorser by-the terms of which the endorser was indebted to it. This evidence was excluded by the trial'court and the circuit court held there was no error in excluding it. The court says on page 299:

“It was not necessary that the defendant should show that if suit had been brought by the payee it would have had a defense. It was sufficient that the defendant show that the plaintiff was not the owner of the note. If he succeeded in showing this he made a complete defense to the action, for if the plaintiff was not the owner of the note then it was not the real party in interest as required by Sec. 4993 R. S. Under this section the real party in interest who brings suit upon a promissory note must be the owner of that note. Such suit can not be maintained by one to whom the note has been transferred, whether by endorsement or by mere delivery for the purpose of collection only.”

In the present case, all the evidence relating to the purchase of the horse, Constant, and the warranty of Ade, and the breach of it, was. incompetent and immaterial and should have been excluded on plaintiff’s objection, because it was only competent in a suit on a breach of the warranty, in which the warrantor is a party with a right to make his defense, if he has one. The evidence- offered and excluded was the same evidence in that case as the evidence offered and admitted in this case relating to the purchase of the horse, Constant, and the warranty accompanying such purchase and the breach of it; and if the exclusion of the evidence offered was not error in the case cited, the admission of this evidence in the case at bar must have been error. The ease last above cited was affirmed by the Supreme Court without opinion. Independent Coal Co. v. Bank, 74 Ohio St. 463.

Again, in this same case just quoted from, another question arose as to the admission of evidence which is conclusive of a question raised in the case under discussion. Defendant in that case offered to show by its manager that “after this note fell due the payee, in company with the cashier of the plaintiff, appeared at the office of this defendant and together they were anxious to have this matter settled up, and that thereupon and after a long consultation the payee, to wit, Mr. Walthour, and Mr. Thrasher, the principal persons in the payee, thereupon said to the manager of the defendant that they then were going to sue that note — the bank were going to sue on this note— and that thereupon the cashier of the bank made no objection or made no claim to be the owner of the note.” This evid'ence was excluded and the court say upon that subject that “if the witness had testified to exactly what counsel for the defendant stated he expected him to testify to, it would have had no tendency to show that the plaintiff was not the real owner of the note.” And the court say that the exclusion of this evidence was not error. If the exclusion of this evidence was not error, then it seems to me that the admission of the evidence of Ho-sack and Litt that Ade said he was the owner of the note, was error and such error as was prejudicial to the rights of the plaintiff below.

The case cited was decided right both in principle and upon authority, and while the questions are presented on the exclusion of evidence it is the same evidence, or bore the same relation to the case on trial as was admitted in this case, and if it was not error to exclude it in that case it certainly was error to admit it in the case under discussion. The evidence here was clear and conclusive that plaintiff was the owner of the note sued on and became such owner more than eighteen months prior to the date when such note fell due. Plaintiff produced the note in court and offered it in evidence. This alone made a prima facie case in its favor. Out of an abundance of caution the testimony of its cashier, assistant cashier and president were given at the trial, together with exhibits of its record of the transaction, all of which was uncontradicted and which was conclusive as to the ownership of said note if evidence of witnesses is to be believed at all. Against this testimony there was not a word of competent evidence offered, and only a few incompetent statements of a party who was not a party to the action.

It seems to me that the trial court misapprehended the issue that was before it and that the judgment of the majority is in direct conflict with the decision of the Supreme Court in affirming the case above cited, and that the judgment of the trial court should have been reversed and judgment given to the plaintiff in error on the admitted facts shown by the record. Minnear v. Holloway, 56 Ohio St. 148 [46 N. E. 636]. Many other authorities might be cited in support of the propositions set out in this opinion,- but it is not necessary to cite them, as those that are presented are conclusive of the points raised in the decision of the case.

The several errors, any one of which, in my opinion, would have justified the reversal of the case, are as follows:

1. The overruling of the motion to strike the second defense from the answer.

2. The admission of any evidence relative to the sale of the horse, Constant, the warranty by Ade relative to said horse, and the breach of the same.

3. The admission of the testimony of Hosack and Litt that Ade made the statement in their presence that he was the owner of the note in suit.

4. The overruling of plaintiff’s motion at the close of all the testimony for a directed verdict.

5. In refusing to charge before argument requests seven and eight asked for by the plaintiff.

6. The charge of the court relative to any and all other matters than the single issue of, whether or not the plaintiff was the owner of the note in suit. And

7. In overruling plaintiff’s motion for a new trial.


text:
    LEGAL EVIDENCE INCLUDES EVERY KNOWN MEANS FOR ASCERTAINING THE TRUTH.
    [Van Wert (3rd) Court of Appeals,
    April 22, 1918.]
    Kinder, Crow and Houck, JJ. Judge Houck of the Fifth District sitting in place of Judge Hughes.
    Pennsylvania Co. v. Ireton Brothers Co.
    Finding of Jury Will Not be Set Aside if Reasonable Under All Light Obtainable in Case.
    Where the claim of plaintiff is reasonable under all the surrounding circumstances and the facts as developed by proper evidence, and the Judgment below is responsive thereto, and the loss must fall upon one of the parties to the case, the finding of the jury under proper instructions from the trial judge will not be disturbed by a reviewing court.
    [Syllabus by the court.]
    Error.

      Wheeler & Bentley and Clark Good, for plaintiff in error.

      Dailey & Hoke and H. L. Conn, for defendant in error.
   HOUCK, J.

The Pennsylvania Co. operates, controls and manages a line of railroad running through the city of Van Wert, Ohio, from Chicago to Pittsburgh, with tracks, cars, locomotives and other appurtenances thereto belonging, and the defendant in error, the Ireton Brothers Co., owned a hay barn located on the north side of the right-of-way of the Pennsylvania Ry. tracks, and on the east side of Walnut street, in the city of Van Wert, and about one o’clock p. m., of September 26, 1916, the said hay barn, together with the contents, burned. Shortly before the fire was discovered, an engine and several cars owned and operated by plaintiff in error passed along and upon its tracks and by said bam.

Just prior to the time that said engine and cars passed said hay bam the engine had been standing still for nearly an hour. Employees of the defendant in error had been unloading and storing hay in said bam during the forenoon, and had worked in and about the bam until about eleven or twelve o’clock noon of that day. When the fire was first discovered in the bam it was at the top, in the southeast comer. Shortly before this the locomotive in question passed said barn and was puffing very loudly and throwing out a large amount of black smoke and red cinders. The defendant in error filed its action in the court of common pleas of Yan Wert county, Ohio, in which it asked for a judgment in the sum of $1,622.95, with interest from the 26 day of September, 1916. The issues in the ease were raised by the allegations in the petition of plaintiff and the answer of the defendant, which was in substance a general denial. Said cause was tried to a jury, which resulted in favor of the plaintiff below in the sum of $1,396.68, and the trial court entered judgment on the verdict.

A reversal of the judgment is sought in this court for two reasons:

First. That there was no legal evidence offered in support of the verdict and judgment.

Second. That the verdict of the jury was against the weight of the evidence.

As to the first claim of plaintiff in error, which in substance is that a demurrer to the evidence of plaintiff should have been sustained by the trial judge, we will say that we have read all of the evidence offered by the plaintiff and defendant, as embodied in the bill of exceptions, the same being necessary for the proper determination of the questions raised by counsel in the case.

Had plaintiff below, at the time it rested its case, made by the evidence thus offered a prima facie case, or established such facts as would entitle it to prevail, if not rebutted or disputed? In order to do so, it must have sustained by proper proof each and all of the material allegations of its petition; and this can only be determined from the proven facts as contained in the testimony offered in its behalf as found in the bill of exceptions.

It is urged that from these facts it was a physical impossibility for the locomotive in question to have caused the fire. This is based upon the conceded facts in the case, as to the location of the barn from the railroad track; the place where the engine stood prior to the fire; the rapidity with which it traveled past the barn, and its location where it stopped and was standing at the time the barn was discovered to be on fire.

Legal evidence is not confined to mere oral testimony and statements made by witnesses, but it includes every known means obtainable to ascertain tbe truth about any disputed question oí fact. All the circumstances and surroundings must be taken into consideration, and if when taken together they raise a mere suspicion as to the truthfulness of the claim made, the same is not sufficient. But in the case now before us, where the facts and all the surrounding circumstances seem to point to the reasonableness of the claim of plaintiff below, we hold the rule to be that as between parties situated as the ones in the present ease, where the loss must fall upon one or the other, it is just, legal and right, and the law casts it upon the one shown to have been the cause of the loss, if the proof establishes the reasonable probability of such fact.

If this rule is sound, and we feel that it is, then applying it to the present case the judgment below must stand, unless we further find from all of the evidence in the case, that the verdict of the jury was against the weight of the evidence. In the weighing of evidence it is not a mere question of mathematics, nor is it to be determined by mere conjecture, but depends upon its effect in inducing the jury or court to reach a proper conclusion based wholly and entirely upon the adduced facts.

The question here for determination is as to whether or not the proof on the part of the plaintiff below is greater than that of the defendant, as shown by all of the evidence in the ease as contained in the bill of exceptions. If it is, then the judgment should be affirmed; otherwise reversed. No complaint is made by counsel as to the law of the case as charged by the trial judge, yet we have read it and find that it fully and completely covers every issue of fact and law in the case. If a reviewing court was clothed with the same power as a jury in passing upon facts, and could see and hear the witnesses and observe their demeanor while upon the witness stand, instead of being, compelled to rely upon their typewritten testimony alone, it would be a great aid in determining the question as to whether or riot the evidence was properly weighed by the jury. The jury is not only the judge of the credibility of the witnesses, but of the weight of the evidence given by them, and a reviewing court is not authorized or justified in setting aside-a verdict of a jury because it is claimed that it is against the weight of the evidence, unless after a careful examination of the whole record in the case it is clearly and fully satisfied that such verdict was manifestly against the weight of the evidence. The Supreme Court of our state has said, “"Where there is no dispute or conflict in the testimony of different witnesses, but nevertheless the un-conflicting testimony discloses a variety of circumstances from which different minds may reasonably arrive at different conclusions as to the ultimate fact shown by such evidence, then it is the duty of the jury to determine such ultimate fact.”

The ultimate fact as to whether or not the plaintiff in error was the cause of the mischief complained of in the ease at bar having been determined by the jury under proper evidence submitted to it, and under proper instructions as to the law by the trial judge, a reviewing court has no authority in law to disturb the verdict of the jury.

Counsel for plaintiff in error insist that the following rule of law be applied to this case t

“A scintilla of evidence is enough to send the case to the jury, but a preponderance of the evidence constitutes the degree as to the weight to which the party on whom the burden of proof rests must have in order to have sufficient evidence to sustain the verdict, and preponderance is the test measure of the weight of the evidence. If it does not preponderate in favor of the party the weight is not with him. If it is evenly balanced the weight is not with the party. If the evidence does not preponderate in favor of the party sustaining the burden, then and only then may it be said that the verdict in his favor is not sustained by sufficient evidence.”

We heartily agree with learned counsel that this proposition of law is sound, and that it is clearly applicable to the issues raised by the pleadings and the proven facts in the case now before us under review, and that when so applied it is decisive of same, and that by reason thereof but one conclusion can be reached, and that is that the judgment below is responsive to the facts and law, and must be affirmed.

Judgment affirmed.

Kinder and Crow, JJ., concur.


text:
    INJUNCTION — MUNICIPAL CORPORATIONS—
    [Stark (5th) Court of Appeals,
    April 1, 1918.]
    Powell, Houck and Shields, JJ.
    Lewis F. Reifsnyder et al. v. Canton Fertilizer & Chem. Co.
    1. Municipality not Permitted to Create Continuing Nuisance in Garbage Disposal.
    The authority vested in municipalities by the legislature to con-, tract for garbage disposal does not authorize the creation of a continuing nuisance, which will be a menace to health and an injury to private property; on the contrary the power so granted must be exercised with due regard to the health and comfort of the community and rights of property owners, and where not so exercised injunctive relief may be granted.
    2. Modern Equipment and Skillful Operation of Garbage Plant not Defense Against Emission of Smoke and Noxious Odors.
    The fact that a garbage disposal plant, operating under contract with a municipality, is equipped with the most modem facilities and operated with skill and care does not preclude relief from smoke and noxious gases and odors emitted by such plant.
    [Syllabus by the court.]
    Appeal.

      Webber <& Turner, for plaintiffs.

      Lynch, Bay, Fimple & Lynch, for defendant.
   HOUCK, J.

This is a suit in equity in which the plaintiffs seek to enjoin the defendant company from operating its garbage disposal plant, located near the city of "Canton, Ohio, and say that said plant throws off offensive gases, smokes and odors, which plaintiffs claim are injurious to their health, and further, that their homes, by reason of same, have become and are almost useless.

The pleadings being somewhat lengthy, we deem it necessary in this opinion to set out only such parts as we think essential to a proper determination of the facts and the law in the case.

Plaintiffs’ petition avers that—

“said so-called garbage disposal plant so erected by said company, and which is now operating for the so-called disposal of the garbage so delivered by said city of Canton to it, is either totally unfit and unsuited for the purpose of a garbage disposal plant and for the purpose of properly disposing of garbage, or the same has at all times by said defendant company been so unskilfully and inefficiently operated as to cause the same to be so unfit and inefficient. * * # Plaintiffs say that they are not well enough acquainted with the mechanism of a plant of that kind and character to allege or aver as to whether or not the cause of said injuries is by reason of the inefficient operation of said plant, or by reason of the fact that said plant is not adapted to nor is it fit for the purpose of a garbage disposal plant.”

The answer of the- defendant denies all of the material allegations of plaintiffs’ petition, and affirmatively sets forth—

“that defendant’s said plant complained of in plaintiffs’ petition was built, and was and is constructed and maintained upon the most modem sanitary and scientific plans, and was and is equipped and operated with the highest degree of care, and with the most modern and improved machinery, mechanism and devices for the elimination and destruction of any and all odors, vapors and gases which may arise in the operation of said plant, or which in any wise may be incident thereto, and that no odors, vapors or gases have arisen therefrom save and except such only as are unavoidable, and are necessarily incident to the conduct of said business by the highest degree of care, and by the most skilled and improved methods, both as to the construction of said plant and in the manner of its operation.”

The defendant, as a further defense, says—

“that on the 6th day of December, 1916, the defendant entered into a written contract with the city of Canton, Ohio, for the erection by defendant of a garbage disposal plant adjacent to its said fertilizing and rendering plant and for the disposal thereat by defendant of the garbage collected by said city within the limits of said municipal corporation during a period of ten years after Said disposal plant was completed and ready for operation. That said contract between said city and defendant was duly made • and entered into, and said disposal plant constructed and operated under it, and in accordance with and as authorized by the provisions of law contained in Sec. 3809 of the G. C. of this state, and under and in pursuance of an ordinance duly passed by the council of said city, on November 27, 1916, authorizing the making of said contract on behalf of said city. * * * Defendant especially denies that it at any time in the operation of its said plant has caused plaintiffs or any of them any actual, substantial or material injury or annoyance in the use and occupancy of their homes, and avers that in the event the operation of said disposal plant is enjoined and discontinued, such action would result in great and immediate loss and damage to the city of Canton and to the defendant, and would result in great and irreparable injury to the health and welfare of the residents of said city and the com • munity at large. ’ ’

Counsel for defendant in their printed brief say—

“that the garbage disposal plant in question, having been erected by defendant at a place designated by the city of Canton, under a contract entered into by defendant for the purpose of conserving the public welfare, in pursuance of legislative authority conferred upon the city by See. 3809 of the G. C. its operation can not properly be enjoined, providing the plant is properly constructed, and equipped and operated with the highest degree of care and skill, so as to produce the least possible annoyance.”

To this claim we can not and do not assent. While it is true that the legislature has enacted a law authorizing a city to contract for garbage disposal, yet the legislature can not authorize the creation of a continuing nuisance, which in effect becomes a standing menace to health, and destroys private property. It seems to us that the power granted by the legislature to municipalities in this respect is to be exercised with due regard for the health and comfort of a community, and when not so exercised courts of equity will not and should not deny an application for relief until violated private rights have been in some way protected. Does the mere fact that a garbage disposal plant is constructed, equipped and operated with the .highest degree of eare and skill, so as to produce the least possible annoyance, bar and preclude plaintiffs from the relief asked by them in their petition, in the face of the fact that the evidence before us clearly shows that the plant as now operated emits gases, smokes, vapors and noxious odors, to the injury of the health of plaintiffs, as well as to the material injury of their property ? Certainly not.

The plant may be conducted with as little annoyance as those who operate it can produce, yet does not the law require it to be so operated as not to injure the health of persons living near it? Also that it shall not throw off destructive vapors, causing injury not only to human life but destruction to property as well? There can be but one answer, and that is in the affirmative.

The owner of a garbage disposal plant has a right to send the smoke, vapors and noxious odors from the same into the open air, provided no one is actually injured or annoyed thereby; but such owner has no right to east off from such plant smokes, noxious odors and unwholesome smells upon his neighbor’s home and property, and then plead as a defense that he has done so with as little annoyance and inconvenience as possible. Such owner will not be allowed to manage, control and operate his business according to his own notions of how it shall be done, in total disregard of the health and comfort of his neighbor.. A person is bound to use his own property in such way and manner as not to injure the property of his neighbor: therefore a use -which produces injurious and destructive vapors, smokes and noxious odors, causing an annoyance to property owners in the neighborhood, in such an annoyance as will authorize a court of equity to act and grant the proper relief.

We must bear in mind that the city of Canton is not a party to this suit, nor is it necessary or proper that it should be. The fact that it made a contract with the defendant' in this case to dispose of its garbage does hot add to or take from the plaintiffs any of their legal or equitable rights in the premises, and it in no wise creates in the defendant any greater rights in law or equity as to the proper determination of this suit.-

Coming now to a brief discussion of what appears to us to be the real question in the case, have the plaintiffs or any of them suffered any actual, substantial or material inconvenience or annoyance in their homes, or have any of them been injured in health? This must be determined by the evidence in the case, which consists of more than nine hundred pages of typewritten matter. We have read this testimony with much care and no small amount of labor. Before the plaintiffs are entitled to the relief prayed for in their petition they must establish by clear proof all of their material allegations, as set forth in their said petition. A court of equity is not authorized to grant injunc-tive relief unless the proof clearly warrants it. We are then led to inquire, how stand the issues of fact in this case? The great weight of the evidence is with the plaintiffs, and they have fully satisfied us that the claim they make is right, and is clearly sustained by the evidence in the case.

After a careful consideration of the whole case we are of the opinion that the plaintiffs are entitled to an injunction restraining and preventing the defendant from operating its said plant in such a way or manner as to cause offensive or noxious odors, vapors, gases and smokes to be thrown off or east from its plant upon the homes or premises of said plaintiffs, or either of tbíf-% to the substantial or material injury or annoyance of the seed plaintiffs or any of them.

Decree and judgment accordingly.

Powell and Shields, JJ., concur.