author: MARVIN, J.

text:
    ASSESSMENTS — SIDEWALKS.
    [Cuyahoga (8th) Circuit Court,
    November 12, 1906.]
    Idarvin, Winch and Henry, JJ.
    Fannie Meek v. Collinwood (Vil.) et al.
    1. Necessaey Proceeding iron Construction of Sidewalks.
    Resolution by a village council providing for the- construction of a sidewalk along a certain street, specifying materials to be used, with other specifications, followed by a notice to owners of abutting lots notifying them that if such walks were not built within a certain time they would be built by the village and charged against the property, is the proper proceeding for the construction of sidewalks under Lan. 3621 (B. 1536-232, et seq.).

      2. Liability of Abutting Owner for Sidewalks Built by City.
    A property owner is not bound to pay for a sidewalk built by the municipality in front of his property, where the materials used were different from those specified in the resolution, providing for the walk, and the notice sent to the abutting lot owners; and collection of an assessment to pay for the building of such different walk will be enjoined.
    [Syllabus approved by the court.]
    Appeal from Cuyahoga common pleas court.
    Miller & Linder, for plaintiff:

      Hunt y. Hunter, 5 Circ. Dee. 90 (HR. 69); Schmidt v. Ellmwood Place, 8 Circ. Dec. 113 (15 R. 351); Columbus v. Sohl, 44 Ohio St. 479 [8 N. E. Rep. 299] ; 24 Am. & Eng. Enc. Law (2 ed.) 1081, Par. 9; Bellaire Stone Co. v. Steel Co. 66 Ohio St. 1 [63 N. E. Rep. 587] ; 30 Am. & Eng. Enc. Law (2 ed.) 128, 190; Donohue y. Protherton, 10 Dec. 47 (7 N. P. 367) ; Folz v. Cincinnati, 12 Dec. Re. 433 (2 Handy 261) ; Knccht v. Cincinnati, 9 Circ. Dec. 392 (18 R. 875) ; Miller v. Graham, 17 Ohio St. 1; Younglove v. Hackman, 43 Ohio St. 75 [1 N. E. Rep. 230] ; 25 Am. & Eng. Enc. Law (2 ed.) 1169; Dima v. Cemetery Assn. 42 Ohio St. 128 [51 Am. Rep. 809]; Elliott v. Perry, 41 Ohio St. 110; Baker v. Norwood (Vil.) 11 Circ. Dec. 371; 25 Am. & Eng. Enc. Law (2 ed.) 1178, note 8; Vindicator Pub. Co. v. State, 68 Ohio St. 362 [67 N. E. Rep. 733]; Richardson v. State, 66 Ohio St. 108 [63 N. E. Rep. 593] ; Buchanan Bridge Go. v. Campbell, 60 Ohio St. 406 [54 N. E. Rep. 372].
    C. L. Stocker and E. H. Tracy, for defendants.
   MARVIN, J.

This is a suit brought by Fannie Meek against the village of Collin-wood and its treasurer to restrain the collection of an assessment made upon the property owned by the. plaintiff. It comes here on appeal from the judgment of the court of common pleas.

The facts are, that Fannie Meek owned, or did own, a lot in the ■village of Collinwood, abutting on Kirby avenue; that the village or the -council of the village passed a resolution to construct a sidewalk on Kirby avenué, from Adams avenue to Elm street in the village of Col-linwood., The specifications appear here in the general statement of facts and provide that a sidewalk shall be constructed on that street, to be of sandstone, sawed on both sides, and to be five feet in width and two and one-half inches thick, laid to the proper grade and six inches from the lot line. That resolution was passed on March 23,. 1903, and thereafter a notice was served upon each of the property owners who resided in the village or the county, and published to the nonresidents. 'This plaintiff was a resident of the village of Collinwood and received this notice, or the notice which was directed to be served and was delivered to the proper officer of the village, notifying the plaintiff of the passage of the resolution, and the notice containing the following:

“Mayor’s Office, Collinwood, Ohio.
“June 10, 1903.
“To Fanny Meek:
“You are hereby notified that according to .the provisions of a resolution passed by the council on the eleventh day of May, 1903, you are required to construct a sidewalk in front of your premises on the southerly side of Kirby avenue between Adams street and Elm street, known as No.-on said street. Said sidewalk to conform to the following specifications: To be of sandstone sawed on both sides, to be five feet wide, two and one-half inches in thickness and laid six inches from the lot line, and to be constructed in accordance with the general ordinances of the village pertaining to sidewalks.
“If said sidewalk is not constructed within thirty days from receipt "of this notice, the council will have the same done at your expense, and the costs will be made a lien upon your property and collected with penalty and interest as provided by law. ’ ’ And then follows the indorsement by the clerk.

The notice, as already said, contained-a copy of the resolution that upon the failure of the property owners to construct the sidewalk the village would proceed to construct the sidewalk and assess the expense thereof upon the property owners; that is, the proper amount of such assessment upon each property owner.

The plaintiff did not construct the sidewalk. The village did construct a sidewalk at this point in front of the premises of the plaintiff, nearly a year after the. passage of the resolution. At the time this sidewalk was constructed, this plaintiff was absent from the village and knew nothing of its being done, until after the work was completed.

As a matter of fact, the sidewalk which the village constructed was constructed of cement and not of sandstone. And the agreed statement of facts contains these words: “A cement sidewalk is of a different material than sandstone'; it is a mixture of cement, sand and gravel.” And then it tells what sandstone is. And the cost of said cement sidewalk is substantially the same as the cost of the standstone.

The plaintiff failed to pay the assessment which was certified as a lien upon her property to the county treasurer of Cuyahoga county, who, but being enjoined, will proceed to collect the amount of that assessment.

It is said, first, the village could not lawfully construct a sidewalk and have it assessed upon the property owner under the proceedings that were had in this case. And attention is called to Lan. 3600 (B. 1536-210), which is Sec. 50 of the municipal code, which provides that—

“The council of any municipal corporation may assess upon the abutting, adjacent and contiguous or other specially benefited lots or lands in the corporation, any part of the entire cost of, and expense connected with, the improvement of any .street, alley, dock, wharf, pier, public road or place by grading, draining, curbing, paving,” etc., and any part of the cost and labor by a percentage of the tax value of the property assessed, in proportion to the benefits which may result from the improvement, or by the foot frontage of the property.

And by Lan. 3602 (B. 1536-211) :

“Whenever it is deemed necessary by any city or village, to make any public improvement to be paid for in whole or in part by special assessments council shall declare by resolution (three-fourths of the whole number elected thereto concurring, except as otherwise provided herein) the necessity of such improvement. At the time of the passage of said resolution council shall have on file in the office of the board of public service in cities, and of the clerk in villages, plans, specifications, estimates and profiles of the proposed improvement, showing the proposed grade of the street and improvement after completion, with reference to the property abutting thereon, which plans, specifications, estimates and profiles shall be open to the inspection of all persons interested. ’ ’

And then it states that council shall also determine in said resolution the method of the assessment, the mode of-payment thereof, etc.

It will be observed that the proceedings here were not in conformity with these sections of the statute. But there is a «further provision in the statute with reference to sidewalks. Beginning with Lan. 3621 (B. 1536-232), which is Sec. 70 of the municipal code (96 O. L. 45), as published in Ellis’s work:

“The council of cities and villages may provide by ordinance for the construction and repair of all necessary sidewalks, or parts thereof, within the limits of the corporation, ’ ’ etc. °And then it provides:
“When the council of cities or villages declares by resolution that certain 'specified sidewalks shall be constructed, the clerk of council shall cause a written notice of the passage of such resolution to be served upon the owner or agent of the owner of each parcel of land1 abutting on such sidewalk, who may be a resident of such city or village, ’’ etc.

And in Lan. 3624 (B. 1536-235), it is provided that—

“If such sidewalks * * * are not constructed within fifteen days * * * from the service of the notice, * * * the department of public service in cities and council in villages may do or have the same done at the expense of the owner,” etc.

And I call attention especially to the last provision of Lan. 3624 (B. 1536-235), which is Sec. 73 of the code:

“No other or further proceedings * * # shall be necessary * * * by council proceedings, ” etc.

It is said that notwithstanding that provision it was still necessary before the council of the village or the board of public service in the city may assess upon the property owner the cost of constructing the-sidewalk, that there shall have been an ordinance passed, and that there shall have been the plans and specifications on file, as provided in Lan. 3600 (B. 1536-210).

The legislature has distinctly said that no other or further proceedings than those contained in the sections last read, which provide for exactly what was done in this ease, would be necessary.

And, so we hold that the proceedings of the council in providing for the construction of the sidewalk and the serving of the,notice and the like, was all that was necessary to authorize the construction of the sidewalk, if it constructed the sidewalk which it said it would construct, and to have-the cost of such construction assessed upon the property.

So that, there remains the question only whether having provided for a sidewalk of sandstone it should be constructed, and that upon failure of the owners to construct such sidewalk the village should proceed' to do the work and assess the cost upon the property owner. In short, did the village do what it said it would do 1 Did it say to this woman,, ‘ (Unless within fifteen days from the service of this notice you construct a sandstone sidewalk, six feet wide,” — giving the dimensions of the sidewalk, — “we will construct such sidewalk at your expense, and you will have to pay for it ? ” Is there a greater obligation upon her than if she had entered into a contract? The village had the authority to construct a sidewalk of cement if it wanted it. It could have passed a resolution and notified her; and if such sidewalk was constructed by the village, provided she did not construct it, and they put in something else which was just as good and did not cost as much and want her to pay for that, I can’t see where she is under obligation other than she would be under obligation to do if she had entered into a contract. If she entered into a contract with the village, the village had the right to do just as provided in this resolution and require her to pay for it. “If you do not care to do it, you let us do it and you pay for it. ’ ’ By her silence she said, “You proceed;” and, instead of putting in the sidewalk they told her they would put in, they put in something else that was just as good. I suppose it could hardly be claimed by anyone that, if an arrangement had been made, that in a house that was being built there should be a particular finish, a particular wood, used in the parlor, that it should be finished in a particular way, and a wholly different kind of woodwork was put in, though just as good, the owner would be required to pay.

We think this woman was not bound to pay for this sidewalk. The injunction prayed for in the petition is allowed.

Winch and Henry, JJ., concur.


source: Caselaw Access Project

author: PARKER, J.

license: Public Domain

text:
    CUSTOM AND USAGE — EVIDENCE—MASTER AND SERVANT —NEGLIGENCE.
    [Lucas (6th) Circuit Court,
    June 22, 1907.]
    Haynes, Parker and Taggart, JJ.
    (Judge Taggart of the fifth circuit, sitting in place of Judge Wildman.)'
    Lake Shore & M. S. Ry. v. Botefuhr, Admr.
    1. Evidence or Custom oe Giving Signals Admissible.
    Evidence that it was the custom of a railway conductor to give warning to the train men assisting him in the making up of a train in the yards, is admissible upon the. question whether, knowing the custom, the conductor exercised ordinary care, and also upon the question of whether the deceased, being aware of the custom and of the habit of the conductor, was guilty of contributory negligence.
    [For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 689-693. — Ed.]

      2. Brakeman Has Right to Rely on Signals of Conductor.
    Tlie yard brakeman of a railroad company, in the pursuance of his duty, in making up a train in the yards of the company, it being desired to reverse the location of the cars on the track, and it being necessary in so doing to pass between the cars to couple them up, has a right to expect that the cars will not be moved without a warning to him from the conductor, where it has been the habit or custom of the conductor to keep track of the trainmen assisting him.
    [For other cases in point, see 3 Cyc. Dig., “Custom & Usage,” §§ 106-112.— Ed.]

      3. Charge to Jury as to What Constitutes a Custom.
    Where the court in its charge to the jury refers to a habit as a custom, evidently meaning a custom in the general acceptation of the term, and not a custom having the force of law, it devolves upon plaintiff in error before he can be heard to complain thereof to frame a charge that would correct the alleged error, as a general exception to the charge, is not sufficient for that purpose.
    [For other cases in point, see 2 Cyc. Dig., “Charge to Jury,” §§ 382-408; §§ 619-657. — Ed.]
    4. Nonprejudicial Error in Court’s Charge.
    Where rules of a railroad company in evidence go no further than to impose upon employes such duties and obligations as are imposed by the law, and such rules of law, in so far as they bear upon the issues, are ■correctly set forth in the charge of the court, the failure of the court to mention such rules of the company specifically or to state that such rules also impose the duties and obligations arising under the law, is not prejudicial error.
    [For other cases in point, see 2 Cyc. Dig., “Charge to Jury,” §§ 702-781; 4 Cyc. Dig., “Error,” §§ 1718-1766 — Ed.]
    5. Evidence of Defective Car is Admissible, when.
    Where the only negligence charged is that of the conductor of a train in the operation whereof plaintiff intestate was injured, it may be competent to show defects in the cars of such train in explanation of the movements of the train and the conduct of the parties, though no recovery could be based upon such defects.
    [For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 675-698. —Ed.]
    [Syllabus approved by the court.]
    ERROR to Lucas common pleas court.
    O. S. Brumback, for plaintiff in error.
    Doyle & Lewis, for defendant in error.
   PARKER, J.

The action in the court below was by the administrator of Elmer F. Grover against the railroad company for damages to the next of kin of Grover, resulting from his death, which it was charged in the petition was brought about through the negligence of one Ford, a conductor of the railroad company, superior in authority to the deceased, and while the deceased was in the line of his duty as an employe of the railroad company, to wit, as a yard brakeman.

The negligence alleged was in the failure of the conductor to keep himself advised of the situation of the deceased while they were both engaged with other train men in the making up oí a train in the yards of the company near the Union passenger station in this city, and in directing a certain movement by the engineer of his locomotive whereby the cars were brought together and the deceased was killed, without waiting for a signal from the deceased, or being otherwise apprised that the deceased was in a place of safety.

The trial in the court below resulted in a verdict in favor of the plaintiff for $5,500, upon which judgment was entered. Error is prosecuted by the railroad company to this court to obtain a reversal of that judgment.

Upon the trial of the case the railroad company took exceptions upon the admission of evidence, upon the overruling by the court of a motion on its behalf to withdraw the cause from the jury and direct a verdict in its favor at the close of plaintiff’s evidence; upon the overruling of a like motion when all the evidence was in; on account of alleged errors in charges given at the instance and request of the plaintiff below, and in the general charge of the court with respect to various propositions.

I cannot undertake to discuss all the questions that are presented for our consideration, but will give brief attention to those which we consider most important and material, and most worthy of attention.

I shall not go into details as to the transaction or movements which resulted in -the death of Grover. I have already mentioned the capacities in which Grover and the conductor, were acting. They were engaged with the \other train men in making up a passenger train; that is to say, in bringing the coaches and cars into position and connecting them together, so that they would be in proper form to make a regular trip. In doing this, the positions of the ears upon a certain track as the train was brought into the station were being reversed; the train coming in from the east and stopping at the station, and it being intended that it should go out toward the east, it became necessary to reverse the location of the ears upon the track. So the eastermost ear, which was a parlor car, was taken from the train by the locomotive and pulled away from the train, and then shoved in upon another track, and the next car, which was a passenger day coach, was likewise disconnected from the train, pulled away from it, and pushed in on the track with the parlor car, -so that it stood eastward of the parlor car; then the. smoking ear was likewise changed, and then the baggage ear was likewise changed. So 'it 'will be observed the order of the position of the ears was merely -reversed.

In the course of these operations it became necessary for the deceased and for Ford, the conductor, to pass from one track to the other, Ford, as conductor, directing the operations. 'It seems that when the cars were all in proper position it then became desirable to shove them together and couple them up. - They were provided with so-called automatic couplers, but that as the train was being made up upon a track which had considerable curve the couplers would not operate automatically without some adjustment or manipulation by the train men to put them into position so they would couple together.

When it seemed to the conductor desirable to couple up the cars, he discovered that the last car brought in, to wit, the baggage car, was not likely to couple onto the smoking car because of some need of adjustment of the coupler; so he passed in between these cars, and he says before doing so he signaled the engineer that he was about to do so, in order that no movement might be made that would be likely to injure him; but he passed in and made the necessary adjustment and stepped out, and then signaled to the engineer to back up. This was done. He says that at that time his purpose was simply to effect a coupling up of those two cars, he supposing that by other movements that had been made in the making up of this train all the other cars had been coupled together. But in coupling up these cars the cars standing to the westward of him were moved, he thinks, ’ not more than six inches, .and he thinks that the westermost, to wit, the parlor car, could not have been standing more than six inches distant from the day car standing immediately to the east of it. Then he says that in order to determine whether all the cars were coupled together he directed the engineer to move them all forward toward the east, and upon this movement being made, it was discovered that the two rear cars were not coupled together. So he stepped back to the rear end of the train, or to the space between these two cars, to see why it was they had not coupled together —to see what the trouble was — and there they found Grover lying between the tracks, dead, with his head crushed; apparently his head had been crushed between the buffers of these two cars. The conductor says that until then he was not aware that Grover was in that position. He did not see him go there. He was unaware that it was necessary for anybody to go to that position to attend to any duty, to look after the coupling up of the cars or to do anything else. He had not seen Grover from the time before this when they had hauled the last car from the other track, to wit, the baggage car, and he says that he supposed that Grover had gone about Some other business or duty in the yard, and was no longer assisting in the making up of this train; and it appears that Grover had various duties to perform in the yard, sometimes one thing and sometimes another, so that he was likely to be called upon to do a variety of work in the yard.

It is contended on behalf of plaintiff in error that if Grover did go in between the ears for the purpose of assisting about their coupling up, he was negligent in that he did not give warning to the conductor or to the engineer that he was about to go into that perilous position.

On behalf of the defendant in error, it is contended that the deceased was not necessarily negligent even if he went' into this place without giving any warning, because it was customary in doing the work there to take that position between the ears and adjust the couplers, and it was customary for the conductor to keep track of the train men assisting him, and the conductor had every reason to anticipate, Grover not being within view, that he was about the performance of' ■such duty, and that Grover, on the other hand, had every reason to believe and anticipate that the conductor would be regardful of his safety and looking out for him.

Upon this contention the plaintiff below produced witnesses, of whom counsel inquired as to the custom that had prevailed there in the yard for a period of years in the making up of trains, and especially in the making up of this train, and more especially in the manner that Grover performed his work as a brakeman while working under Ford; and various witnesses testified that the custom was as contended for by the plaintiff below; that Grover was in the habit of going between the cars and making these adjustments of the knuckles or couplers, and that Ford was not in the habit of giving any signals for the movement of the train until Grover would step out and give a signal that a movement might be made.

There was testimony, on the other hand, tending to sustain the contention of plaintiff in error that the custom was not so. Questions are made as to the admissibility of evidence of this character, and also :as to its sufficiency in this case.

As to the admissibility of evidence of this character, we think there can be no question. The views of this court upon that subject have been expressed by Judge Haynes in the case of Carl v. Pierce, 10 Circ. Dec. 711 (20 R. 68) [affirmed, without report, Hunt v. Pierce, 64 Ohio St. 578], and especially page 712 (70), and by myself in the case of Pennsylvania Co. v. Mahoney, 12 Circ. Dec. 366 (22 R. 469).

It is, according to our views, admissible upon the question of •whether, knowing the custom, or knowing the habit of train men there, ■and especially of Grover, the conductor exercised ordinary care; and .also upon the question of whether the deceased, being aware of the eus-tom and of the habit of the conductor, was guilty of contributory negligence, or exercised ordinary care.

The evidence in the case, we should say, is hardly sufficient to establish a custom having the force of law, and perhaps not one having the force of an established and promulgated rule binding upon all employes, of the company, at all times and places. But we think it is quite sufficient to show this habit, in the performance of the work upon the part, of this conductor and this train man when working together in the making up of that train, and our view of the matter upon the weight of the evidence is, that their habits as contended for by the defendant in error were fairly established. The fact that at times, in the questions and in the remarks of the court, and perhaps in the charge of the court, this habit has been designated as a custom, which might mean a custom of the general character I have alluded to, was not, in our judgment, a matter prejudicial to plaintiff in error. Perhaps it would be more correctly described as a habit of ,these people in the performance of their work, the habit of each being known to the other. But we hold with respect to the charge upon the subject, that if counsel for the plaintiff in error apprehended that the evidence might not be properly understood or applied by the jury — that the jury might have had in mind the subject of customs rather than the habits or usages of these parties — it devolved upon him to frame a charge embodying his views. Columbus Ry. v. Ritter, 67 Ohio St. 53 [65 N. E. Rep. 613] we hold that a general exception would not reach to the alleged error upon the part of the court in that respect-

It is contended on behalf of plaintiff in error that the trial judge erred in his charge to the jury in that he failed to charge that they were to be guided by certain rules introduced in evidence, the charge being that they were to be governed by the customs or usages or habits of the employes in the making up of this train at this station. What I have-said with respect to the general exception on the other point we think is as well applicable to this; but aside from that, we have considered these rules very carefully- and we have failed to discover any specific-rule applicable to this situation, though many of the rules provide generally that in all operations the employes are to be heedful of their own safety and the safety of their fellow employes. In so far as the rules, provide for this, they provide for no. more than the law requires of the employes; or, in other words, they impose no different burdens or duties, upon employes than those imposed by the law. And when the judge-came to charge, as he did very fully, upon the respective duties and the-relative duties of the deceased and the conductor, he, in effect, gave in charge all that was material and pertinent in these rules upon the subject, though the rules were not specifically mentioned. It would have’ given no additional force to the law as laid down by the judge to say that the company had adopted and promulgated certain rules in which these same duties of care were imposed upon the employes.

In the course of the trial, to explain why it became necessary for the train men to go between these cars in order to adjust these knuckles, witnesses were permitted to testify that certain parts of the apparatus were-not in order so that they could be worked by standing in any other place’ than between the cars; they would not work automatically, and they could not be operated from the platforms. This was objected to upon the ground that the plaintiff was attempting to show defects in the couplers that had not been charged in the petition. We think that objection was not tenable. The only negligence alleged as a ground of recovery was that of the conductor. The fact that this apparatus was in the condition that witnesses testified, whether defective or not defective, was only incidental to explain the purpose and necessity of train men going between the cars and standing upon the ground while operat-' ing the same, and that necessity it was competent to show, even though incidentally it turned out that it was made necessary by defects in the car. It did not follow that recovery could be had upon the ground of such defect, because it might well be shown that the risk of those defects had been assumed, or that the deceased was negligent in so far as he undertook to operate defective machinery; and the court was careful in the charge to advise the jury that the only ground of recovery was the alleged negligence of the conductor. If the conductor was negligent as charged, of course that was a risk entirely distinct from any risk of injury from defective machinery or defective appliances which the deceased might have assumed, and was a risk’which was not assumed by the deceased.

We find no error in this record prejudicial to plaintiff in error, and the judgment of the court of common pleas will be affirmed.

Haynes and Taggart, JJ., concur.


author: WILSON, J.

text:
    EMINENT DOMAIN — EASEMENTS—HIGHWAYS—INJUNC= ■ TION.
    [Franklin (2nd) Circuit Court,
    1907.]
    Wilson, Sullivan and Dustin, JJ.

      William T. Burns v. Columbus Citizens’ Telephone Co. Daniel E. Sullivan v. Columbus Citizens’ Telephone Co.
    1. Right op Abutting Owner to Enjoin Telephone Company.
    An abutting owner who consents or submits to tbe use of tbe street in front of bis premises for telephone purposes, by means of poles and wires is not, as matter of law, entitled to an injunction against a telephone company engaged in putting its wires in a conduit in a street of a city, as an invasion of bis private rights.
    [For other cases in point, see 5 Cyc. Dig., “Highways,” §§ 151-154; 7 Cyc. Dig., “Telegraphs & Telephones,” §§ 50-53. — Ed.]
    '2. Taking op Peoperty without Due Process op Law.
    A new and inconsistent use of a street is not necessarily a taking of private property within the meaning of the constitution. It must be such a use as palpably and injuriously affects the adjacent property, and to plead, or prove merely the invasion of a private right does not stir the conscience of a court of equity.
    [For other cases in point, see 2 Cyc. Dig., “Constitutional Law,” §§ 952-'957. — Ed.]
    .3. Right op Abutting Owner in Street.
    The use of a street for telephone purposes, being a permanent occupancy of a part of the -highway by a private corporation for private gain, and to that extent an exclusion of the public, is an additional servitude for which an abutting owner is entitled to compensation.
    [For other cases in point, see 4 Cyc. Dig., “Eminent Domain,” §§ 291-302;
    '3 Cyc. Dig., “Easements,” §§ 180-191; 5 Cyc. Dig., “Highways,” §§ 155-163; 7 Cyc. Dig., “Telegraph & Telephones,” §§ 30-62. — Ed.]
    [Syllabus by the court.] '
    Appeal from Franklin common pleas court.'
    The petitions and answers in these cases are substantially the same, and the cases are submitted together as involving-the same questions in law.'
    The petitioners aver the corporate existence of the defendant, their ownership of property abutting on North High street in the city of Columbus; that without the consent of the plaintiffs, and without having compensated or offered to compensate them the defendant is about to construct a conduit about five feet in depth and three feet in width in front of their premises; that they have an easement in the soil of the ■street; that they notified the defendant not to construct the conduit; that said conduit if constructed will interfere with the access to, and the enjoyment of, their said premises and will work a material and ir-xeparable injury to the same, and will greatly impair and injure the -street, entirely destroying the asphalt covering thereof; that the damages which would be caused by the threatened construction would be impossible of ascertainment in an action at law. They ask that the construction of the conduit may be enjoined.
    The defendant, in the answers, denies that the plaintiffs have an easement in the soil of the street in front of their premises; that the construction of the conduit will interfere with the plaintiffs’ access to and enjoyment of their premises, or will work any material and irreparable injury to the said premises or the street and its covering in front of the same.
    The defendant then avers that High street, where said conduit is being constructed, is about one hundred feet wide and is in a very thickly settled portion of the city, largely devoted to business purposes ; that the ditch for the conduit will be twenty-two feet from the curb in front of the plaintiffs’ premises, and that the sidewalk in front of the same is more than fifteen feet wide; that it is constructing said ■conduit in compliance with the terms of the agreement entered into with the city defining the mode of use of said street for telephone pur-^ poses; that it is under bond to restore the street in as good condition as it was before the construction of the conduit, and that the interruption of the use of the street will be but temporary and the injury resulting therefrom only such as is common to the public; that at this time the wires of the defendant in the vicinity of the plaintiffs’ property are strung on poles above the surface of the ground (it was conceded in argument that the poles and wires are in front of said property on the same side of the street), by the surroundings made dangerous to the public, and that the placing of the wires in the underground conduit will be a benefit to the adjoining property owners, as well as to the public.
    A general demurrer was interposed to the answer in each case in the court of common pleas, and sustained by that court. A temporary injunction having been allowed, it was made perpetual, and the injunction is still in force.
    The cases are submitted in this court for final determination on the demurrer to the answer.
    Barton Griffith, for plaintiff.
    F. A. Davis, for defendant.

      Affirmed, without report, Burns v. Telephone Co. 76 Ohio St. 589; 52 Bull. 193.
      Affirming Burns v. Telephone Co. 17 Dec. 731.

   WILSON, J.

Two questions are raised upon the pleadings:

First. Is an abutting property owner entitled to an injunction against a telephone company engaged in putting its wires in a conduit in a street of a city, as for an invasion of bis private rights ?

Second. Do the averments of the petition which are not denied by the answer, and the averments of the answer which are admitted by the demurrer, entitle the plaintiff to relief in a court of equity?

Upon the question, as to whether the use of a street for telephone purposes is an additional servitude for which an abutting property owner is entitled to compensation, the authorities are not agreed. i

The authorities holding that it is not, are supported by the argument that it is simply a new method of intercommunication, and, therefore, not a perversion of the original use. Pierce v. Drew, 136 Mass. 75 [49 Am. Rep. 7]; Coburn v. Telephone Co. 156 Ind. 90 [59 N. E. Rep. 324; 52 L. R. A. 671]; Julia Bldg. Assn. v. Telephone Co. 88 Mo. 258 [57 Am. Rep. 398].

The contrary doctrine is sustained by the reason that it is a permanent occupancy of a part of the highway, not a moving or passing use, by a private corporation for private gain, and to that extent an exclusion of the public. Krueger v. Telephone Co. 106 Wis. 96 [81 N. W. Rep. 1041; 50 L. R. A. 298]; Smith v. Printing & Tel. Co. 1 Circ. Dec. 475 (2 R. 259) ; Daily v. State, 51 Ohio St. 348 [37 N. E. Rep. 710; 24 L. R. A. 724; 46 Am. St. Rep. 578].

This view is supported, we think, by the weight of authority as well as by the better reason.

In support of the claim that it is an extension, merely of the dedicatory use, it is no,t sufficient to say it facilitates intercommunication. The steam railroad facilitates travel, yet it is, admittedly, a new use. The telegraph is simply a new method of communication, yet in Daily v. State, supra, the Supreme Court holds it an additional burden. It is. not the purpose, alone, but the character and construction of the use, as well, that determine whether or not it'is a perversion. But a new and inconsistent use is not necessarily a taking of property, within the meaning of the constitution. It must be such a use as palpably and injuriously affects the adjacent property; and in order to invoke the power of injunction the injury should be made to appear.

To plead, or prove, merely, the invasion of a private right does not stir the conscience of the court. Domschke v. Railway, 148 N. Y. 337 [42 N. E. Rep. 804]; Castle v. Telephone Co. 30 Misc. N. Y. 38 [61 N. Y. Supp. 743]; Irwin v. Telephone Co. 37 La. Ann. 63.

The answer wholly negatives any material injuries. Moreover, it is averred in the answer that the defendant is using the street in front •of the plaintiff’s property for telephone purposes, by means of poles •and wires, and that this use, as regards any rights the plaintiffs may have, is more objectionable in form than would be the conduit. It is mot sought to prevent the present use by mandatory injunction, or otherwise, but rather to prevent the defendant from changing it into what is averred, and would appear, to be a less obstructive form. If the plaintiffs are consenting, or submitting, to the present use, as against the right to construct a conduit, they would seem to have no standing in equity, and should be remitted to their remedies if any at law.

The demurrers to the answer respectively, will be overruled, and, the cases having been submitted on the pleadings for final determination, the injunctions heretofore granted will be dissolved and the petitions dismissed; the defendant to recover its costs.


text:
    NEGLIGENCE — EVIDENCE—ELECTRICITY.
    [Fulton (6th) Circuit Court,
    May 29, 1907.]
    Haynes, Parker and Wildman, JJ.
    Dan W. Raker, Adm’r, v. Toledo & Ind. Ry.
    1. Prima Facie Case of Negligence from Accident.
    Where, in an action lor damages for the death of a workman, alleged to> have been caused by negligence of defendant, the evidence shows that before the completion of a building that was to be used as a power house' and ticket office for the electric railway company, certain electrical transformers were installed in an unfinished part of the building, and necessary connecting wires, carrying heavy currents of electricity were strung-across the room; and that while doing necessary work in the completion of said room deceased was killed by striking his head against a heavily charged unguarded wire, a prima facie case of negligence against the-electrical company is established, and it not appearing clearly that deceased was guilty of contributory negligence, an instruction to return verdict for defense is error.
    [For other cases in point, see 6 Cyc. Dig., “Negligence,” §§ 539-551. — Ed.]
    2. CONSTRUCTION OF WARNING AND NOTICE OF DANGER.
    Whether or not a warning to such workman, not to touch the machinery or wires placed in a room in which he was working, should be regarded, as a warning of the extreme personal danger to himself,' or merely a calling of his attention to the wires and machinery which should not be; disturbed, is for the jury to determine when the evidence is such as would lead reasonable minds to differ.
    3. Admissibility in Evidence of Statements of Deceased.
    Where a workman is killed by striking his head against an electrical wire, while doing work required and necessary for the completion of the building, statements made by him to-other workmen as to the danger of working in such place are admissible for the sole purpose' of showing, the-state of mind of the deceased touching the safety of working there, as bearing upon the question of contributory negligence.
    [For other cases in point, see 6 Cyc. Dig., “Negligence,” §§ 602-606. — Ed.]
    [Syllabus approved by the court.]
    ERROR to Fulton common pleas court.
    Bailey, Mallahan & Conway and Handy & Wolf, for plaintiff in error.
    King & Tracy and Files & Paxson, for defendant in error.
   PARKER, J.

This, in the court of common pleas, was an action to recover damages on account of the death of Frank Durst, which the plaintiff alleged was caused by the negligence of the defendant. After the testimony on behalf of the plaintiff was in, the court directed a verdict for the defendant, wbieb was returned, and judgment was entered upon it. The quesr tion presented for our consideration and determination is, whether the court erred in so directing the verdict. ■ . '

The Toledo & Indiana Railway Company operates a railroad upon which the cars are propelled by electricity. At one of its stations, Pettis-ville, it has a station house, and in one of the rooms thereof it has; certain electrical machinery and apparatus — specifically, three transformers of electricity and one other machine the name of which I do-not at this moment recall. A. L. Guthrie was employed by the railroad company to construct this building, and he with his employes did so. Before it was finished, however, the company installed this machinery in this apartment of the building.

It seems that in connection with this machinery, leading to and from it, were electric wires carrying a very strong current of electricity, saidi by the witnesses to amount to 13,200 volts, which, it is admitted, is a deadly current to one coming in contact with it. These three-machines were set up close together upon the west side of this room.. There were a variety of wires in this room, but the particular wires carrying this high voltage came into the building, somewhere near the ceiling of the room, then came down the walls to near the top parts of these-transformers, then they were carried across to the tops of the transformers. That brought the wires to within four feet or four and. one-half feet of the floor. The transformers were situated -vsdthin from twenty to twenty-four inches of the west wall. On the west side of the room-was a door leading to the outside of the building. On the east side was-, another door leading into the ticket office and waiting room.

A part of the work which remained for Mr. Guthrie to do was to-hang this door at the west end or side of the building with certain heavy weights whereby it might be operated, and another part devolving-upon him was the putting in of cement floors. It appears that he had been called upon by Mr. Darrow, the general manager of the company,, shortly before January 12, 1906, to finish up his work upon the building, that he had had some conversation with Mr. Darrow about the apparatus, and wires in the room where he would be required to work, and, according to the testimony of Mr. Guthrie, he had been assured by Mr. Darrow that there would be no danger in his proceeding with his work at that place.

The deceased, Frank Durst, was one of the -employes of Guthrie, and upon January 12, 1906, he was, under the direction of Guthrie, put to work putting down the cement floor in this room where the electric wires and apparatus were situated. It does not appear, directly at least,. that Mr. Durst had been informed of the conversation between Guthrie ■and Darrow respecting the danger or safety of the place, but there is testimony tending to show that Durst had been warned or cautioned by Guthrie and had been warned by the station agent, Mr. Laver, that he -should be careful about the machinery and the wires — that he should not .get against them. By most of the witnesses who testified upon this subject it is not stated definitely that he was warned that there would be any danger to him in so doing. For aught that appears in most of the •testimony, it was simply a warning that might be construed to mean that he might do some damage to the wires or machinery by getting •against the same. But by one witness it is said that he was warned that the machinery and wires were dangerous.

He worked at the floor to the eastward of these machines during the forenoon of that day. Shortly after the noon hour, Mr. Guthrie came to the place and set about hanging this door or hanging the weights to the ■door. One of the weights was inside of this room near the door that opened between this room and the waiting room. It appears that the most direct •and convenient way to convey that weight to the door to which it was to be fastened, to the place where it must be hung, was the way pursued, to wit, by carrying it toward the westward, to the southward of these machines near to the wall, and then between the machines and the west wall to near the northwest corner of the room. In doing this, it was necessary to go under these wires carrying these powerful currents of ■electricity. '

Frank Durst, at the request of Guthrie, took hold of one end of the weight which was lying on the floor, which appears to have been somewhat bulky, perhaps ten or twelve inches wide and twenty to twenty-four inches long, weighing from ninety to one hundred pounds. Mr. Guthrie took hold of the other end, and together they carried it, Mr. Durst proceeding backward, Mr.1 Guthrie following, Mr. Durst in a •stooping position, Mr. Guthrie also, as he passed under the wires, necessarily in a stooping position. So that they both passed safely under those wires. About that time, Mr. Laver, to assist the parties, climbed upon •a ladder set up against the west wall, the top of it resting over the top of the door, the bottom upon the floor, and stood in that position, giving some directions. The weight was laid down by these men who had been carrying it, and Mr. Durst appears to have arisen to a standing or upright position, and in doing so brought the back of his head or neck in contact with one of these wires, the one, we judge, which led from the northermost of these transformers over to the wall— the one near the northwest comer of the room. He was not noticed in ■the act of making this movement, bnt at the time he reached, the upright position and struck the wires he made some exclamation which attracted the attention of those present, and they say that he at once straightened up and apparently became rigid and then fell forward to the floor, and they carried him out in an unconscious condition, and in about ten minutes he died.

The negligence charged against the company is, that it failed to keep the deceased away from this wire by - guarding it or barricading it properly, and that it failed to insulate the wire si> as to make it safe for one working in and about the building, and that it failed to give him specific warning of the danger of working in that place; in short, that it put him in an unsafe place to work without proper safeguards ■or proper warnings so that he might take care of himself.

We think there can be no question but what a prima facie case of negligence was made out against the company. As we understand it, it is hardly contended, on behalf of the defendant in error, that that is not true. We believe it was such a case of negligence as the court would be required to submit to the jury. But it is said that the case was withdrawn from the jury because it was apparent from the evidence introduced on behalf of the plaintiff that the deceased was himself guilty of such contributory negligence as would have defeated his right of recovery had he lived and sued on his own account, and such as would, therefore,defeat the right of recovery of those suing on account of his death.

This conclusion of the court of common pleas appears to have been based upon the evidence touching the warnings given to the deceased, as well as upon the other circumstances.' Now, the general rule upon the ¡subject is, as we understand it, that where reasonable minds may differ in their views and conclusions as to whether a party is guilty of negligence — that is, as to whether, upon the facts, applying proper rules of law and properly construing the facts, he is guilty of negligence— the case should be submitted to a jury. It is only where negligence is so .apparent, so clear, that reasonable minds could not differ about it, that a court is authorized to withdraw the ease from the consideration of the jury. Was this a case that might be properly withdrawn from the consideration of. the jury?

As bearing upon the conduct of the deceased, it should be borne in mind that his employer, and he, through his employer, was directed to work there in that place at a certain kind of work in the finishing up of that building and room. The hanging of the door was a part of the ■work. Doing that, it seems to us, must almost inevitably bring them into dangerous proximity to these wires. There was no effort made to shut off the current, and they appear to have been advised that they would be expected to work while the machines were in operation, while-the current was flowing. Not only were they expected and directed to-do that, but the cementing of the floor, which had not yet been finished, upon the west side of these machines, in that little narrow space or alley between the machines and the west wall of the building, devolved upon, them, and it appears that they were expected to do it without the current’s being cut off, and this work must necessarily bring them into close- and dangerous proximity to these wires, so that a mi'sstep, any unconscious movement, might result in instant death to the person thus employed. This, to our minds, not only discloses culpable negligence upon the part of the company, but it reflects a light upon the conduct-of the deceased; because unless 'we are otherwise convinced by most potent •evidence, we would conclude that the deceased must have«supposed that those-wires were less dangerous than they in fact turned out to be; otherwise,, he would not be apt to do that kind of work in that kind óf a place.

To merely say to him, if it was said to him, that the machines were-dangerous and that the wires were dangerous, would not, in our judgment, be adequate warning of the extreme danger, not simply of .some-injury which might be of a trifling nature, but of the extreme danger of instant death resulting from coming into collision with those wires. If, after being warned of the danger of the wires, the deceased had voluntarily approached them and come in contact with them consciously, purposely, the case would be quite different; but it appears that he came-in contact with this wire accidentally; that he had backed into this posi-tiqn; that his position was such that the wire’was behind him and slightly above him. For aught that appears, he was at that moment unconscious, of the presence of the wire in that place. For aught that appears he-had never been apprised, either by having it pointed out to him .or otherwise, of the presence of the wire in that particular position or place. And when he came to do the very natural thing of straightening up, after laying down the weight, he accidentally came in contact with the wire and was instantly killed.

We must regard this, then, as an accidental contact with the wire; and the question is presented whether, under all the circumstances, this accidental contact with the wire upon his part makes it clear that he was-guilty of contributory negligence precluding recovery. After a full consideration of the matter and much discussion we have arrived at a different conclusion from that which seems to have influenced the direction of the jury by the learned judge of the court below. We think the evidence-of contributory negligence is not so clear as to justify withdrawal of the case-from the jury, and that the order in that respect was erroneous.

Another question is presented by this record. James Bundy,, a fellow workman of the decedent, was produced as a witness on behalf of the plaintiff. He was at this place upon this day. It appears, from his testimony, as well.as from other testimony in the case, that Mr. Durst was not familiar with electrical apparatus and wires and currents, and was probably not aware of the ordinary dangers incident to-such things. Bundy was asked:

“ Q. I will ask you to state to the jury, if you know, what, if any, information, Mr. Durst had received as to this being a safe place to work ? A. He told me it was a -safe place. ’ ’

That answer: “Hetold me it was a safe place” was allowed to stand. There was no motion to take it from the jury, and no objection made. But we take it that the scope of the argument upon what follows would' include it in what counsel for defendant in error conceive to be improper and inadmissible- testimony in the case, and, as the matter is to go back for retrial, unless some higher court entertains a different opinion about-it, we will express our views as to this as well as to what follows:

“Q. What did he say to you? (Objected to by Mr. Files on the-part of the defendant; question withdrawn.) Q. I will ask you what, if anything, Mr. Durst said to you with reference to Mr. Darrow, the general manager of the road, having said it was a safe place to work?' (Objected to by Mr. Files on the part of the defendant; objection sustained; to which ruling of the court Mr. Handy, upon the part of the plaintiff, then and there excepted. Statement of proof: The plaintiff' expected to prove ’by the answer of the witness to this question that Mr, Durst stated to him on the morning of the day he was killed that Mr. Darrow, the general manager of the company, had stated that it was a safe place for the men to finish that work.) ”

Now, one of the important questions here was as to the state of mind of the deceased upon this occasion, the information or lack of information that he possessed as to the dangers incident to his occupation at that time and place. Manifestly, it would not be competent to introduce this evidence for the purpose of showing that this was a safe place, nor for the purpose of showing that Mr. Darrow had said that it was a safe place, but was it not admissible for the purpose of showing the state of mind of the deceased, and 'therefore reflecting light upon the question of whether he was guilty of negligende ? For whether he was guilty of negligence or not must depend in a measure upon the knowledge or information that he possessed or that he supposed he possessed douching the safety or danger to him of the place and his employment then upon that occasion.

Generally, evidence of this character would be denominated hearsay, .and perhaps self-serving declarations, an objectionable'kind of hearsay; but the rule as to self-serving declarations does not apply where it is quite apparent from all the circumstances that the declaration is not made for the purpose of' being self-serving. As evidence to establish that it was a safe place, or that Mr. Darrow had said it was a safe place, it would clearly be hearsay, and, therefore, inadmissible; but as an expression or declaration indicating the state of mind or belief of the ■deceased at that time and place, we do not regard it as being opposed to any rule of law of which we have knowledge.

In the case of Norman v. Will, 1 Dec. Re. 269 (5 W. L. J. 508), which was an action to recover back money paid upon notes by mistake, this is said in the syllabus (I should say this is an opinion by the Supreme Court of' Ohio sitting in Gallia county at the March term, 1846, and April term, 1847, for they had the case before them on two occasions) :

“Money paid under a mistake of fact can be recovered back. Such mistake consists in the present belief of the party paying the money, that it has not previously been paid. ’ ’
“The declarations of the party, made to one holding his note, between the times of the two payments, recognizing the note as a subsisting note, are admissible in favor of such party, to show that he believed the note was not paid.”

The note had in fact been paid, but Norman not being fully advised ,of the fact by reason of the peculiar circumstances which are set forth in the case, went to an officer of the bank and talked’ with him in such .a way as to disclose that he supposed that the note was not paid. vHe .afterwards paid it. Still later he discovered that his payment of the note was a mistake, for it had been previously paid. Thereupon he undertook to recover back the money paid by mistake, and in support of bis contention that he paid it by mistake he undertook to prove what he himself had said as indicating that he was laboring under a misapprehension- — that, he was mistaken about the state» of the easev The trial ■court, over the objection of the defendant, admitted the evidence, "and this was assigned for error. The Supreme Court held that it was admissible, citing a number of authorities.

Another decision of our Supreme Court is more nearly in point perhaps. It is the case of Railway v. Herrick, 49 Ohio St. 25 [29 N. E. Rep. 1052]. It went up from Huron county and Judge Wildman, of this court, was one of the attorneys, and his contention respecting the-matter which is important here was sustained by the Supreme Court. It was a case wherein Herrick undertook to recover from the railroad company for damages resulting to him by being struck by a train which came into a certain station on time and which he had been informed 'and supposed was late, and his misinformation upon the subject was one of the things that explained his action in coming in contact with the train.’ • It is said in the «syllabus:

“Where, in such case, it became material to establish that the plaintiff was at the station to take passage on one of its trains, a declaration^ made by him as he left his house on his way to the station, that he was. going to another station on the same railway, is competent evidence to establish his character as a passenger.”

That was one of the points in issue of course. It will be seen, I think, from the opinion, that the court goes even further than that and allows evidence of this character to establish not only his character as a passenger but to establish his state of mind upon that occasion, — precisely the thing which we deem it important to* establish in the case at bar with respect to the deceased. (Reads from opinion beginning on page 27.)

The Supreme Court points out that it is very material that the court below should be advised of its views upon this evidence, because the ease was to go back for a new trial, and in the meantime the plaintiff had. died, so that it would be very important that this evidence of what the plaintiff himself had declared should be- admitted upon the retrial óf the case; which brings the case in some of its aspects very close to the case at bar.

In looking into this matter we consulted the last edition Greenleaf om Evidence, under the head of “Hearsay Evidence,” and we became very well satisfied therefrom that upon general principles this; evidence should be admitted, and we found-many cases there cited' so like the case at bar as to be fairly in point. We do not find that edition in. this city, so we cannot now give precise- reference thereto.

On account of the error of the court in giving this direction to the-jury to return a verdict in favor of the defendant, and on account of the error of the court in excluding this evidence, the judgment of the court below will be reversed.

Haynes and Wildman, JJ., concur.


author: WINCH, J.

text:
    CORPORATIONS — SALES.
    [Cuyahoga (8th) Circuit Court,
    October 21, 1907.]
    Marvin and Winch, JJ.
    (Henry, J., not sitting.)
    Joseph R. Nutt v. Minnie A. Wheeler.
    Purchaser of Ohio Corporation Stock on Open Market at Reduced Price cannot Recover Purchase Money from President for His Alleged Misrepresentations in Signing Certificates.
    •One who purchases stock in an Ohio corporation on the open market for about 25 per cent of its face value, without inquiry as to the ■assets of the company or the representations made upon the face of its icertificates of stock, cannot, upon the subsequent insolvency of the com■pany, recover the amount paid for said stock from the president of •the company in an action for deceit, upon an alleged misrepresentation made by him when he signed certificates of stock certifying that •they were “fully paid and nonassessable,” notwithstanding said president knew that upon the original issue of said stock property greatly overvalued had been received by the company in payment for it.
    |[Syllabus by the court.]
    Error to Cuyahoga common pleas court.
    McGraw & Messick, for plaintiff in error.
    Arnold Green and Thomas Gibbons, for defendant in error.
   WINCH, J.

It appears from the record of this case that defendant in error, who was plaintiff below, was a school teacher who also speculated in stocks dealt in on the stock market in Cleveland, Ohio, and that in September, 1902, through a broker in said city, she bought on the open market thirty-five shares of the capital stock of the Springfield & Xenia Traction Company, for which she paid $28 per share. Her instructions to her broker were contained in the following letter to him:

‘ ‘ Garrettsville, Ohio, September 16, 1902.
“Mr. Carl S. Russell,
“Dear Sir:
“I beg leave to acknowledge your favor of the fifteenth. Accept my thanks for the execution of the Western railway commission upon such favorable terms. I also desire to thank you for taking such very good care of my interests in the C. D. & T. deal., I wish you would expend the proceeds from the sale of that stock in the purchase of some good traction stock which your best judgment leads you. to believe will be a rapid riser. How is that new Springfield & Xenia road financed ? I lave faith in any road under the Mandelbaum and Pomeroy syndicate, nr in the ultimate success of a company financed by the Everett-Moore ■combination. I am out of the city, so cannot talk over the investment with you, but I assure you my previous transactions lead me to trust implicitly in your business sagacity.
“Yours truly,
“Mustnie A. Wheeler.”

This stock did not prove a “rapid riser,” but turned out to be a “rapid faller,” the company defaulting in the payment of interest on its bonds, a receiver being appointed and a suit being brought in behalf of its creditors in the common pleas court of Clark county, against Miss 'Wheeler and other stockholders of the company, to enforce their stockholder’s statutory liability.

Thereupon Miss Wheeler brought an action in deceit against Nutt, he being president of the company at the time her 'Stock was transferred to her, and having as such signed the certificate for thirty-five shares issued to her, which on its face he certified to be “ fully paid and nonassessable. ’ ’

In her petition she sets forth what she claims to be the transaction whereby $500,000 of the stock of the company was originally issued to said Nutt, and his associates, without any consideration whatsoever; that Nutt signed her certificate as president of the company, knowing at the time he signed it that the company had never been paid for it; that at the time of the disposal of the stock of the company, it was insolvent and that Nutt knew of its insolvency.

The petition further alleges that certificates so issued found their way into the market, where Miss Wheeler, relying upon the statement upon their face, that the stock was fully paid and nonassessable, bought thirty-five shares for which she paid $980; that she believed said statement to be true and later discovered that it was untrue and that her stock was worthless. ' •

The prayer of the petition is, that she recover from Nutt the money she paid another for her stock, plus the amount which she alleges as her contingent liability in said suit pending in Clark county.

The conceded facts regarding the deal whereby the $500,000 of stock of the company was originally issued, as ^hown by the record, are as follows:

One Martin and associates having acquired franchises for a traction company in the cities of Springfield and Xenia and made some progress towards acquiring a right of way for a suburban road between said cities,- and being unable themselves to finance the proposition, applied to Nutt to help them out. He agreed with them to organize a. company with $500,000 stock, cause it to issue $400,000 of bonds and deliver to Martin and associates $140,000 of said stock and $40,000 of bonds, and sell the balance of the bonds, $360,000, using the proceeds thereof in completing' and equipping the proposed road. Martin and associates were to deliver to Nutt or the company so to be organized by him, all their franchises, and property, and also agreed to furnish a complete private right of way between Xenia and Springfield along lines satisfactory to the purchasers.

This agreement was carried out, but Nutt, in turning the property over to the company, which later became known as the Springfield and Xenia Traction Company, induced it to issue to him therefor $500,000 of stock and $40,000 in bonds. He delivered to Martin and associates $140,000 of this stock and $40,000 of bonds, as he agreed, though this, is questioned by one of Martin’s associates who thinks only $30,000 in stock and $30,000 in bonds was so delivered. Whether Martin dealt, fairly with his associates, however, is immaterial.

The $360,000 of stock remaining in Nutt’s hands by this transaction, he gave as a bonus to the subsequent purchasers of the $360,000 of bonds-sold for construction purposes, each purchaser of a $1,000 bond thus-receiving ten shares of stock.

It is a part of this bonus stock which subsequently found its way upon the market in Cleveland, and was bought by Miss Wheeler, not. from Nutt, but from some third person.

Upon the fact that Nutt paid Martin .some $360,000 less for the property than he sold it to the company for, and the opinion of one expert, A. B. Dupont, that at the time it was probably not worth more-than $100,000, the point was attempted to be made by the plaintiff below, that the stock issued by the company was never paid for. This expert, however, admitted that if the franchises “were in the hands of somebody who had the power and would build the railroad, .he could probably unload the railroad at a great deal more than its physical cost.”

On the other hand, five experts for the defendant, all well known traction men, testified that the franchises transferred to the company were worth from $500,000 to '$750,000.

The trial court submitted the cause to the jury,- limiting the plaintiff’s right to recover to the amount she had paid for her stock,' with interest, and the jury brought in a verdict for her in that amount.

In this court several errors in the record are complained of, but the most important ones, in our view of the case, are, that the verdict is against the weight of the evidence, and that the motion of defendant at the close of plaintiff’s evidence, to direct a verdict for the defendant, should have been granted.

If Mr. Nutt made any misrepresentation to Miss Wbeeler, it was made either by the express language ,on the face of the stock certificate which she bought, or it was implied from the existence in the market of stock certificates signed by Mr. Nutt, or placed in the market directly or indirectly by him.

As the record discloses that Miss Wheeler never saw a stock certificate of the Springfield and Xenia Traction Company until after she had bought her thirty-five shares and had her own certificate issued to her, there was no express representation to her, and as her testimony shows that she had no thought as to the difference between “certificates of stock” and “stock” itself, but was looking for a “rapid riser” as a speculation, there was no implied representation arising from the presence of certificates of stock in the market.

In other words, bearing in mind that the original issue of this stock was not absolutely void, as in the case of fraudulently issued or over-issued stock, but, at the most, was voidable only, we think that no material representations upon which bliss Wheeler relied as to the value of this stock arose from the mere presence of certificates in the market which, indeed, purported to be fully paid and nonassessable, but which she had never seen, heard of, or apparently, thought about. She wanted to get rich quick and more than one broker having told her that Springfield & Xenia was good “stock,” and believing it would be a “rapid riser, ’ ’ she bought without inquiry as to its assets or the amount of stock it had issued, and paid $28 per share.

The price she paid for the stock is significant, as pointed out by Judge Sharswood in the ease of McAleer v. McMurray, 58 Pa. St. 126 129, and rebuts the remote inference arising from the mere presence of stock certificates on the market, that they had been issued but a short time before her purchase upon the payment of par for them.

It is unnecessary to recite Miss Wheeler’s evidence at great length, but it is sufficient for us to say that, as we weigh it, she failed to show that she parted with her money-at the time (she bought this stock by reason of her reliance upon the representation which she now says Nutt falsely made to her.

As we view this case, there is another reason why Miss Wheeler cannot recover under any view of the evidence. (

Miss Wheeler is a transferee of stock, not a creditor of the company. The representation made to her and the class she belongs to, to wit, stockholders, in law is no misrepresentation, but is true.

Nutt, when as president of the company he signed stock .certificates purporting to be fully paid and nonassessable, stated to the persons to wbom be issued said certificates and tbeir transferees, wbat was clearly true under the facts of this case.

Tbis court held in the ease of Orton v. Machinery Co. 27 O. C. C. 107 (affirmed without report, Edson Reduction Machinery Co. v. Orton, 75 Ohio St. 580), that:

“A corporation having issued its stock as fully paid, in exchange for property transferred at an agreed valuation, cannot thereafter, without the consent of the stockholder, treat his stock as only partially paid and assess him for the difference between the market value of said property and the par value of the stock issued in exchange for it.”

At page 111, we say:

“The authorities, however, agree that:
‘ ‘ ‘ The corporation itself, after issuing its stock as paid up. stock, and declaring it so to be, cannot subsequently repudiate that declaration and agreement and proceed to collect, either from the person receiving the stock, or his transferee, the unpaid part of the par value. It is estopped from so doing.

‘Where, however, actual fraud enters into the transaction, then the corporation is not estopped from having the agreement set aside. The person receiving the stock can then be compelled to return the stock or its market value, and take back that which he gave to the corporation, for it. But the corporation cannot hold him liable for the par value of the stock.’ 1 Cook, Corporations Sec. 38. See also 2 Thompson, Corporations Chap. 27, passim."

So we see that this representation, as made to stockholders and transferees, was truthful and it was Nutt’s duty, as president of the Company, to make it to them.

As to the right of stockholders, as such, among themselves, if Nutt ever received stock which he never fully paid for, and as to the rights of creditors in such case, we say nothing. We simply hold that Miss Wheeler has misconceived her remedy against Nutt, which must be for the fraud in his original transaction with the company, if any, and not for his subsequently signing and issuing stock certificates.

In this connection it is significant that the pleadings and record disclose that the creditors of the company in the case pending in Clark county have not claimed that there was any fraud in the original issue of stock, but are suing for an assessment of the stockholders’ statutory liability. There the matters here complained of can be fully investigated, while here the fact that the property was overvalued when stock was issued for it, is made to depend upon the opinion of one expert, contradicted, as he is, by five others equally good. However, we do not desire to be taken as approving the example of high finance here made public.

There are other errors in the record, besides the overruling of the defendant’s motion to direct a verdict in his favor, which we shall briefly mention.

We think it was error to admit in evidence the Kushman stock certificates, as it was not claimed that the plaintiff had ever seen them before she purchased her stock.

It was error to refuse to submit the defendant’s eleventh and twelfth interrogatories to the jury.

By the jury’s answer to the defendant’s third interrogatory it showed that it did not understand the case submitted to it. The interrogatory and answer are as follows:

“What misrepresentation, if any, was made to the plaintiff by the defendant, with knowledge, on the defendant’s part, of its falsity and with intent to deceive and on which she relied in making her purchase í ’ ’

Answer. “The fact of J. R. Nutt’s being connected with the Springfield & Xenia-Traction Company as president.”

This “fact” was not a misrepresentation, nor was it the one charged in the petition.

The answer is not responsive to the question, and, of course, is no justification for the jury’s verdict. While we would not say that this special finding is so contrary to the general verdict as to warrant a judgment on it for the defendant, it nevertheless shows plainly that the jury had no intelligent conception of the case before it, and would be sufficient reason for a new trial, were we disposed to send the case back for further proceedings.

For the errors pointed out the judgment is reversed, and because, upon the conceded facts as to the original issue of stock, we think the plaintiff below has misconceived her remedy, judgment is rendered for the plaintiff in error.

Marvin, J., concurs.


author: SWING, J.

text:
    ERROR.
    [Hamilton (1st) Circuit Court,
    June 22, 1907.]
    Swing, Giffen and Smith, JJ.
    Cincinnati (City) v. Lohman et al.
    Duty of Common Pleas Coubt to Retain Case on Ekroe.
    Where error is prosecuted from the court of insolvency to the court of common pleas in an appropriation proceeding, and the judgment is reversed, it is the duty of the common pleas to retain the case and proceed to try the matter at issue as provided in Rev. Stat. 6438 (10015).
    [For other cases in point, see 1 Supp. Dig., “Error,” §§ 22-24. — Ed.]
    [Syllabus approved by the court.]
    ERROR to Hamilton common pleas court.
    Jesse Lowman, city solicitor, for plaintiff in error.
    Renner & Renner, for defendant in error.
   SWING, J.

This was in effect an action in the insolvency court for the appropriation of private property.

Error was prosecuted to the judgment of the insolvency court to the court of common pleas, in which court the judgment of the insolvency court was reversed, and the cause remanded to the insolvency court for a new trial.

We are of the opinion that the court erred in remanding the case to the insolvency court for a new trial. It should have retained the cause and proceeded to try the matter at issue as is provided in Rev. Stat. 6438 (Lan. 10015).

Laning Rev. Stat. 3598 (B. 1536-114) provides that municipal corporations and other parties may prosecute error to the judgments of probate and insolvency courts as in other civil actions, which we think means as in other civil actions for appropriation of private property.

Revised Statute 6453 (Lan. 10030) says the provision of this chapter shall not apply to municipal authorities, but it goes on to point out' in what respect it shall not apply, which is as to the payment of the judgment.

It is apparent that the intention of the legislature was to expedite the determination of appropriation proceedings, in order that the corporation may get the possession of the property for the benefit of the public ’ and further that the citizen may have his money for which his property is taken and which right is especially guarded by the constitution of the state and of the United States.

Judgmefit reversed to this extent.

Giffen and Smith, JJ., concur.


text:
    DIVORCE AND ALIMONY — ERROR.
    [Lucas (6th) Circuit Court,
    April 6, 1907.]
    Haynes, Parker and Wildman, JJ.

      Josie Casto v. John Casto.
    Necessity oe Filing Bill of Exceptions in Ebeor Pboceedings.
    Where upon an application to set aside a decree of divorce on the ground that plaintiff had no actual notice of the pendency of the action against her, service having been had by publication, the court finds against such claim, the appellate court cannot determine whether or not such question was correctly decided unless a hill of exceptions containing the evidence submitted in support of the application is filed with the record.
    [For other cases in point, see 1 Cyc. Dig., “Bill of Exceptions,” §§ 19-49. —Ed.]
    [Syllabus approved by the court.]
    ERROR to Lucas common pleas court.
    Templeton & Templeton and C. A. Thatcher, for plaintiff in error.
    E. E. Davis, for defendant in error.

      Decision on. motion to set aside judgment, see next case, post.

   PARKER, J.

John Casto brought suit in the court of common pleas against his wife, Josie Casto, to obtain a divorce on the ground of her adultery. Service upon her was obtained by publication; the allegations of the petition were found to be true and the divorce was granted, and, in pursuance of the statute providing therefor, her right to dower in the property of John Casto was denied and cut' off. At a subsequent term of court she filed an application for the setting aside of the judgment, ■so that she might be let in to defend, and she set forth in her motion and in the affidavit filed therewith, among other things, that she had no actual notice of the pendency of the action until after the decree and after the term at which it was entered, and that she had no opportunity to appear and make a defense.

This motion was denied by the court below, and Josie Casto prose•cutes error in this court to that order.

It is contended on behalf of the defendant in error that such proceeding after judgment is not authorized in divorce cases; that it is •against the policy of the law to set aside a decree for divorce upon such grounds, and that Rev. Stat. 5355 (Lan. 8881) under which the plaintiff in error proceeded in tbe court below, bas no application to cases', under the chapter on Divorce and Alimony, even though service is by publication, as provided in Rev. Stat. 5693 (Lan. 9227) of that chapter. But we do not see that that question is properly brought before us for consideration and decision; there is no bill of exceptions showing what, the evidence was that was submitted to the court upon that motion.

Even if the plaintiff in error might proceed under Rev. Stat. 5355 (Lan. 8881) to have the case opened up to and be let in to defend because the service was by publication, she must show, upon the hearing-of such application, or, to quote the language of the statute, she must make it appear to the satisfaction of the court, that during the pendency of the action she had no actual notice thereof in time to appear in court, and make her defense. In her application she recognizes this. In her affi--davit — looking at that for the purpose of ascertaining her view of the matter — it is apparent that this necessity was recognized; but whether she had actual knowledge of the pendency of the suit concurrently therewith was a controverted question in the court below, and, as I have said, there is no bill of exceptions here bringing up the evidence. Affidavits; are attached to the record, but we are not authorized to look at and consider or weigh them, and undertake to determine what they show or prove.

Counsel for plaintiff in error said, in his brief, that no bill of exceptions was necessary, since the action of the court below was based solely on a legal proposition, to wit, that this motion or application for leave to defend could not be entertained by the court, because in an action for divorce Rev. Stat. 5355 (Lan. 8881) did not apply. But, from the journal entry, that appears to be an incorrect statement.

A counter motion was filed on behalf of John Casto to strike the-motion or application of plaintiff in error before mentioned from the-files, but when the matter came on to be heard, as the journal entry recites, it was heard upon the motions ‘ ‘ and the proofs, and the court being fully advised in the premises, is of the opinion that said motion of said heirs of John Casto, deceased, should be and the same hereby is granted and said motion of said Josie Casto is hereby overruled and stricken from the files of the case.” It would have been sufficient if the journal entry had set forth that the matter was heard upon the proofs and the motion of Josie Casto was overruled, and the addition — that the motion was stricken from the files after it was overruled — was idle. To sustain the motion to strike from the files, was quite unnecessary; but the important fact appears in the journal entry, i. e., that the motion was heard upon the proofs and was overruled. Therefore the question of fact as to whether Josie Casto was advised of the pendency of this action and had dne knowledge of it during its pendency, was before the court and was determined against her; and for this court to determine whether or not the question was correctly resolved in the court below, a bill of, exceptions incorporating the evidence, is necessary. Counsel says, in his brief:

“However, should the court be of opinion that any alleged testimony should be before this court; the same is before the court in view of the holding of the court in the recent case of Pullman Co. v. Washington. The court has, in substance, laid down the rule that whenever papers are filed in the common pleas court, and thereafter in a reviewing court, the reviewing court will treat them as in the case. By reference to the transcript from the court of common pleas, it appears that all affidavits which were filed in the lower court are attached to, and filed with, the papers in this court. The necessity, therefore, of a formal bill of exceptions no longer exists, and this court will, of course, take judicial notice of all papers which appear with the files in this case. ’ ’

We are at a loss to know how this most extraordinary statement should be regarded — whether as a sarcastic reference to the former decision of this court in the case of Pullman Co. v. Washington, supra, or as an attempt at humor. In the ease of Pullman Co. v. Washington, there was a bill of exceptions, properly signed and filed. Certain depositions were referred to as exhibits and attached to the bill of exceptions, but they were not manually attached to the bill; they were, however, brought up with the record and were attached to the journal entries and other papers. We found that they were so clearly and distinctly identified as the exhibits referred to in the bill of exceptions, that they should be regarded as constructively attached — following, as we believe, the rule laid down by the Supreme Court in the case of Swart v. Dock Co. 69 Ohio St. 574. It will be' seen at a glance that the question there and that here are as different as daylight from darkness.

It is entirely clear that this contention is not worthy of serious consideration since it is founded on a proposition of law that is quite untenable.

The judgment of the court below will be affirmed.

Haynes and Wildman, JJ., concur.