text:
    REVERSALS ON WEIGHT OF EVIDENCE.
    [Circuit Court of Mahoning County.]
    Pennsylvania Co. v. John F. Alburn.
    Decided, October Term, 1901.

      Railways — Negligence—Proceedings in Error — Assignment of Errors— Sufficient for Purpose of Plaintiff in Error, When — Cause Reversed Twice Against Same Party on Weight of Evidence — Remedy of Defendant in Error — Negligence at a Railway Crossing Over a Country Road — Question of, Becomes One of Law, When — Sections 6716 and 6723 Relating to Transcripts, and 5306 Relating to Reversals on Weight of the Evidence.

    1. Where a transcript is sufficient to exhibit the errors complained of, it meets the requirements of Sections 6716 and 6723.
    2. It is, therefore, unnecessary, where the plaintiff in error does not complain that the cause has been tried twice in the court below and the verdict set aside against the same party by the circuit court on the weight of the evidence, that he bring such facts into the record or transcript. If such facts become material parts of the record, it devolves upon the'defendant in error to bring them into the record, either by cross-petition in error, or by answer setting them up as extrinsic facts why the plaintiff in error can not have the judgment reviewed on the weight of the evidence.
    3. The amendment of Section 5306 (93 O. L., 217), providing that the circuit court shall not grant more than one new trial on the weight of the evidence, does not apply to a case pending prior to April 23, 1898.
    4. A question of negligence becomes a matter of law when the circumstances and undisputed facts make it plain, that by the exercise of ordinary care in the use of his faculties the party injured might have avoided the injury.
    It follows, therefore, that where one, having an unobstructed view of a railroad track for a distance of fourteen hundred feet, approaches within five feet of the track without seeing an approaching train, when the alarm whistle frightened his team, which sjprang upon the track and he was struck by the train, it is the duty of the trial judge to say to the jury, as a matter of law, that the plaintiff was guilty of contributory negligence, and the verdict must be for the defendant.
    Voorhees, J.; Douglass, J., and Cook, J., concur.
   This case comes into this court on petition in error to review the judgment of the Common Pleas Court of Mahoning County.

Defendant in error, as next friend of Lafayette E: Alburn, a minor, brought this action to recover damages for personal injury to the minor, resulting in loss of service to the defendant in error, John F. Alburn, and for the destruction of the personal property of said defendant, in consequence of an accident which occurred on October 28, 1893.

Without going into detail of the allegations of the pleadings it will be sufficient to state that the third amended petition sets forth facts sufficient to constitute a cause of action; and the averments of the petition as to the want of care on the part of the plaintiff in error or care on the part of the son of defendant in error, are sufficient as against a demurrer.

The case has been tried twice at least, resulting at each trial in favor of the plaintiff below; and as often this court on review has set the judgment aside, on the ground that the verdict of the jury was not sustained by the evidence.

One of the contentions now is, that the circuit court, under Section 5306, Revised Statutes, as amended April 23, 1898 (93 O. L., 217), can not grant more than one new trial on the weight of the evidence. This presents the first question which is raised by the motion of defendant in error to dismiss the plaintiff’s petition in error.

The ground upon which the motion is predicated, is, that the record does not contain a true and complete transcript of the proceedings in the case in the court below, in showing the various trials through which it has passed.

It is contended that the transcript should show affirmatively the number of times the case has been tried, and that if a complete record were here it would show that the case has been reviewed and reversed by this court two or more times on the weight of the evidence; and being so tried and reversed, the same court can not again review it upon the weight of the evidence; and the record not disclosing these facts, that there is a defect in the transcript, and for this reason the transcript does not meet the requirements of the law, that there should be a complete transcript of the record below filed with the petition in error.

Section 6716, Revised Statutes, provides that:

“The plaintiff in error shall file with his petition either a transcript of the final record or a transcript of the docket or journal entries, with such original papers or transcrips thereof as are necessary to exhibit the error complained of. ’ ’

And the Supreme Court in construing this section in connection with Section 6723, Revised Statutes, in Second National Bank of Bucyrus v. Moderwell, 59 Ohio St., 221, held:

“If a paper writing filed in this court [Supreme Court] as such transcript, etc., is not sufficient to exhibit the error complained of, no amendment thereof or addition thereto can be made after the expiration of such period of six months. Where, however, such transcript, etc., is sufficient to exhibit the error complained of, but the certificate of the clerk of the circuit court or court of common pleas authenticating such transcript is materially defective, such certificate is amendable * * * after the expiration of such period. ’ ’

The plaintiff in error does not complain that this cause has been tried twice in the court below and the verdict of the jury set aside by the circuit court on the weight of the evidence; that is not the plaintiff’s complaint. Nor does the plaintiff ask that the judgment be reversed because the case has been tried and set aside twice by a reviewing court on the weight of the evidence against the same party. That- is not the plaintiff’s contention. Therefore,- it is not necessary in determining whether there is error in the record, so far as this plaintiff in error is concerned, whether or not the cause was ever tried or reviewed before by this court.

If these facts as to former trials and reversals on the weight of evidence become material parts of the record, it would devolve upon the defendant in error to bring them into the record, either by cross-petition in error or by answer setting them up as extrinsic facts, as reasons why the plaintiff in error can not have the judgment reviewed on the weight of the evidence. Collins v. Davis, 32 Ohio St., 76.

If the record or transcript were defective as to extrinsic facts, but not defective in showing the errors complained of by plaintiff in error, they meet the requirements of Section 6717, Revised Statutes. The record in this case does show all the error complained of by the plaintiff in error; therefore the motion to dismiss the petition in error is not well taken and is overruled.

But the court upon examination of the ease, through an abundance of caution, think it best to have these facts brought into the record, namely, that this cause has been tried two or more times to a jury resulting in verdicts for plaintiff below, and upon error prosecuted to this court the judgments were reversed on the ground that the verdicts were against the weight of the evidence, and an order suggesting a diminution of record as to the former trials and the action of the reviewing court thereon will be made.

With these facts in the record an important question is presented, namely: Can the court review the verdict of the jury upon the weight of the evidence?

This depends as to whether or not the statute, Section 5306, as amended April 23, 1898 (93 O. L., 217), applies to this ease. The section as amended reads as follows:

“The same court shall not grant more than one new trial on the weight of the evidence against the same party in the same case.”

Section 5306, Revised Statutes, before the amendment, was as follows:

“A new trial shall not be granted on account of the smallness of damages, in an action for an injury to the person or reputation, nor in' any other action where the damages equal the actual pecuniary injury sustained.”

The exact date when this action was commenced the record does not show, but from the third amended petition it appears that the accident occurred on October 28, 1893. If the accident occurred on October 28, 1893, the action must have been brought before April 23, 1898. It must have been brought within four years from the accruing of the cause of action. Therefore the action must have been commenced before the passage of the amendment to Section 5306, Revised Statutes.

Is the section as amended applicable to this case ?

This act, being an amendatory one, must be construed in connection with Section 79, Revised Statutes, which reads as follows:

“Section 79. Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal; and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions or proceedings, unless so ex> pressed; nor shall any repeal or amendment affect causes of such action, prosecution or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending ’or repealing act. ’ ’

According to the statute in force when the cause of action in this case accrued to the plaintiff below, and at the time the action was commenced, there was no limitation on the right or power as to the number of times a reviewing court might reverse a judgment, or grant a new trial on the weight of the evidence against the same party in the same ease. Therefore at the time this action was commenced there was a subsisting right to either party to have any judgment or judgments reviewed and reversed by the circuit court on the weight of the evidence, regardless of the number of trials and reversals had in the case.

There being no provision in the amendment to the section making it applicable to pending actions, etc., it follows that the statute in force when the action was commenced must govern this case, and it is to be tried and to be heard on review as if this amendment had not been enacted. Travelers Ins. Co. v. Myers, 59 Ohio St., 332; Chapman Mfg. Co. v. Taylor, 61 Ohio St., 394.

Coming now to the merits of the case, the contention of plaintiff in error is, that by reason of negligence of the plaintiff’s minor son, Lafayette E. Alburn, he, the son, was responsible for the injury he sustained, and by his failure to exercise ordinary care he was responsible for the accident and the serious results that followed to himself and to the property of plaintiff. This raises two questions:

First. Do the facts as shown by the record as to the negligence of the plaintiff’s son, make the question of negligence one of law ?

Second. If the question of negligence on the part of plaintiff’s son should be regarded as one of fact for the jury, then is the verdict against the weight of the evidence?

Considering the questions in this order:

1. It is undisputed that where this a.eeident occurred there was nothing to obstruct the view of Lafayette E. Alburn when he approached the railroad crossing at the time the accident occurred. The topography of the country, as described in the record, puts him in such a position and afforded him such opportunity, that if he, in the exercise of ordinary care, had looked and listened for the approach of a train he would have seen this train that caused the accident.

One about to pass over a. railroad crossing has no right to assume that at any hour or moment he may attempt to cross the track, that no train will approach. He may know that a regular train is behind time; he may know that the time for its approach at the point of crossing has passed, yet that alone does not justify him in assuming there will be no train crossing over the highway at the moment he may have occasion to cross it. Pie must at all times exercise reasonable care, such care as is required of an ordinary prudent man, and use his faculties of hearing and seeing. He is not exempt from listening merely, he must look and listen; and if he fails to do either, and by reason of his so failing, injury results to him, it is his fault and he can not recover.

The law of the ease is well settled by repeated decisions by the Supreme Court of our state; and some of the cases we will refer to.

In Cleveland, C., C. & I. Ry. Co. v. Elliott, 28 Ohio St., 340, the court held:

"It is the duty of a traveler upon 'the highway, when approaching a. railroad crossing, to make use of his senses to ascertain if there is a train in the vicinity; and if, when in full possession of his faculties, he fails to see or hear anything, when a prudent man, exercising his eyes and ears, with ordinary care would have discovered a train in close proximity, and he is thereby injured, he is guilty of such negligence as will prevent a recovery. And that where the undisputed facts show that by the exercise of ordinary care a party might have avoided injury, he can not recover. ’ ’

Judge Wright, on page 352, says:

“Manifestly a plaintiff can not, with his eyes open, drive squarely into a train, which he sees and knows is before him, and then claim to recover because the bell was not rung nor the whistle sounded. Equally true is it, that if he could have seen the train, and could have avoided it by the exercise of orinary care, he can not recover. And if the circumstances were such that he could have known and ought to have known, the accident must be chargeable to his own fault. And we hold the rule to be that if, by the exercise of ordinary care, the plaintiff could have seen and avoided the train, the omission to whistle or ring alone is not such negligence on the part of the company as will justify a recovery.”

The court cited with approval Wharton on Negligence, Section 382, where the author says:

“ ‘It is the duty of a person who attempts to cross a railroad to listen for signals, to notice all signs that may be put up as warnings, and to look up and down the road. It follows, therefore, that if a traveler by looking along the road could have seen an approaching train in time to escape, it will be presumed, in ease of collision, that he did not look, or looking did not heed what he saw, and in such case the road under ordinary circumstances is not liable.’
“The same author (p. 384) says: ‘Where a person knowingly about to cross a railroad track may have an unobstructed view of the railroad so as to know of the approach of a train a sufficient time to clearly avoid any injury from it, he can not, as a matter of law recover, although the railroad company may have been also negligent or have neglected to perform a statutory requirement.’ ”

In Pennsylvania Co. v. Rathgeb, 32 Ohio St., 66, the court, by Wright, J., on page 72, says:

“We think the law must now be considered as well settled that the traveler approaching a crossing must be upon the lookout for danger. Ordinary care requires that he must look and listen to see if a train is in the vicinity, and if he fails in this, it is not merely evidence of negligence to be considered by the jury, it is itself such negligence as will prevent a recovery.”

Also on page 73, the court says:

“The evidence is clear that Rathgeb might have seen the train at any point less than three hundred feet from the crossing until’ he reached it, and seen it in time to have avoided a collision. Although he says he was near-sighted, still he stated that he could have seen a train for a distance of fifty rods, and his defect of vision was not such as to vary the principle.
“Being able to see, therefore, and the opportunity of seeing being presented, his failure to discover or to be aware of the approaching cars, we think, was not only evidence of negligence, but negligence itself, and sufficient to justify a verdict against him. And in other parts of the charge the court declined to say that the positive duty of the plaintiff was to look up along the track, but left it to the jury to determine whether it was incumbent upon him to do so or not. We think such directions do not meet the requirements of the ease. The rule should be laid down in such clear terms that there can be no mistake in its application. This ease is really disposed of by that of Railroad v. Elliott, 28 Ohio St., 340. In The Cleveland, C. & C. R. R. v. Crawford, 24 Ohio St., 631, the first clause of the syllabus is: ‘Ordinary prudence requires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a known railroad crossing, should use them for the purpose of discovering and avoiding danger from an approaching train; and the omission to do so, without a reasonable excuse therefor, is negligence, and will defeat an action by such person for-an injury to which such negligence contributed.’ ’’

In the late case of Wabash Ry. Co. v. Skiles, 64 Ohio St., 458, the court, by Judge Davis, announcing the opinion, held that where an employe of a railway company whose duty requires him to cross a track in the yards or at his station, “will be held to the exercise of ordinary care in going from a place of safety upon or across railway tracks; and ordinary care requires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a railroad track, should use them for the purpose of discovering and avoiding danger from an approaching train; and an omission to do so, without reasonable excuse therefor, is negligence which will defeat an action by such person to recover damages for an injury to which such negligence contributed. Where such an employe without looking or listening, steps upon a railway track from a place of safety on a platform, immediately after the passing of a train, and in front of and close to a backing switch engine, so that he is immediately struck and injured by such engine, he is guilty of contributory negligence and can not recover for the injury thus received. ’ ’

If a party looks and listens, and the circumstances and surroundings were such that if he had exercised these faculties he could not have discovered the.threatened danger from the approaching train, then a different rule would apply, and there would be duties devolving upon the railroad company to be considered that do not arise in this case. To illustrate: If the location were such that by reason of obstruction in the way the party, even if he had exercised the caution of looking could not have seen an approaching train, then the question as to whether he listened or not would become important; and if the railroad company failed to use ordinary care in giving warning, by sounding a whistle, ringing a bell, or otherwise, such party might not be charged with negligence in attempting to cross the railroad. Cleveland, C. & C. Ry. Co. v. Crawford, 24 Ohio St., 631; W. & L. E. Ry. Co. v. Suhrwiar, 22 C. C., 560.

But suppose when such party approaches the crossing he listens, and hears no whistle, or bell, but there is a train in full view, approaching the crossing which he seeks to cross, could it be claimed that he would be exempt from using his faculty of seeing, when by looking he could have seen such train approaching, although it may not have made any noise, or given warning by a whistle or bell? ~We think not. Cleveland, C., C. & I. Ry. Co. v. Elliott and Pennsylvania Ry. Co. v. Rathgeb, supra.

Coming to a closer analysis of the facts of the.case at bar, did plaintiff’s son see this train approaching, or could he have seen it had he looked? Tie claims that when he was one hundred feet from the crossing he looked in both directions. The undisputed testimony is that at that distance from the crossing he could have seen a train coming from the west (the direction from which the train came which caused the injury), at least for a distance of fourteen hundred feet. The record shows that there was nothing to prevent his seeing the train if he had looked. Then it resolves itself into this condition of facts, either he did not look when he was within a hundred feet of the crossing, or, if he did look, he must have seen the train coming. But not resting the case at this point, on the theory that different minds might possibly differ as to it being negligence per se or a question of law, on the ground or possibility, that at one hundred feet from the crossing, the train running at the speed it is claimed this train was running, may not have come within the space of fourteen hundred feet when he looked and listened as claimed at one hundred feet, the record shows that he moved on towards the crossing, his horses in a walk, and when he reached within twenty feet of the crossing he claimed that at that point he again looked and listened. Testing the ease now under such conditions how does it stand. The situation of the country at this crossing, from the undisputed facts and admissions of the plaintiff’s said son, are that he was familiar with this crossing. He knew its location, knew all about it, and with the opportunities he had of seeing, if he had looked, according to the undisputed testimony, he could have seen beyond the point of fourteen hundred feet when he was within twenty feet of the crossing. But he leaves this place and moves on towards the crossing. The excuse he offers for leaving this place of safety twenty feet from the crossing, is that he looked and listened and that he heard neither whistle nor bell. But if he looked he must have seen the train. ,He could not, from the testimony, when he was within twenty feet of the crossing, have looked without having seen the approaching train. At this distance he was in a place of safety, and if he moved on seeing the train coming, it was immaterial as to the speed of the train, or whether it whistles or not, because he is bound to look and listen, and if either faculty gives him warning, he must heed it. A mam would be reckless to drive upon a railroad crossing, although he were deaf, if he saw an approaching train within close proximity. Therefore this party, from the circumstances and facts disclosed in the record, if he looked when he was within twenty feet of that crossing, he must have seen the approaching train; if he did not look, he was equally negligent. When he reached the point twenty feet from the crossing and the train was approaching within his view, as appears in the record, lie would then he reckless if he undertook to cross; and from these facts and circumstances we must find that he either looked and disregarded what he saw, or that he did not look, and, therefore, was careless and negligent in approaching, and as a matter of law can not recover.

But the plaintiff’s son claims that he moved on until he got within five feet„ of the crossing before he discovered the train, and his attention was first called to it by the sounding of the alarm whistle, and his team became unmanageable and sprang upon the track and he was injured. This would not relieve him from the charge of negligence.

Without spending more time upon the first branch of the proposition, the one that we think raises the vital question iu this case, namely, that under the circumstances disclosed in the record it was the duty of the court to have said to the jury, as a matter of law, that upon the undisputed facts and according to plaintiff’s own version of the transaction, Lafayette E. Alburn was guilty of negligence per se, and that it is not a question of fact where different minds might differ as to whether he was negligent or not, we hold, as a question of Jaw, that the court below should have instructed the jury as requested in .the third instruction, by saying to the jury, as a matter of law, that upon the undisputed facts in the case said Lafayette E. Alburn was guilty of contributory negligence, and that the verdict must be for the defendant. Cleveland, C., C. & I. Ry. Co. v. Elliott; Pennsylvania Ry. Co. v. Rathgeb; Wabash Co. v. Skiles, supra.

2. From the view taken by the court, that Section 5306, Revised Statutes as amended, does not affect this case, it is still open for consideration by a reviewing court upon the weight of the evidence.

If the case, as presented in the record, rested solely upon the weight of the evidence, notwithstanding the rule that a reviewing court should not reverse simply because it differs from the jury upon the facts, yet where there is substantially no evidence to support the verdict, or the verdict is manifestly against the weight of the evidence, in such case it is the duty of the reviewing court to set aside the verdict and judgment based thereon. And this is the conclusion of the court, upon a review of the evidence, that the verdict is against the weight of the evidence.

Carey & Mullins, for plaintiff in error.

James Kennedy, for defendant in error.

Therefore, this cause is reversed and the judgment set aside, because it is contrary to law, and the verdict of the jury is against the manifest weight of the evidence.


source: Caselaw Access Project

license: Public Domain

text:
    SPEED OF ELECTRIC CARS.
    [Circuit Court of Hamilton County.]
    Cincinnati Street Railway Co. v. Mary A. Lewis.
    Decided, December 18, 1901.

      Electric Cars — Speed of, Within Municipal Limits — Ordinance Regulating Speed of Horse Oars in 1879 — Not Applicable to Electric Cars of the Present Lay — Rule of Reasonable Safety Applied.

    1. An ordinance of 1879, providing that “no cars shall be drawn at a greater speed than six miles an hour,” having been passed in the days of horse and mule cars, applied to practically a different subject from modern electric locomotion, and is not regulative of the speed of electric cars of the present day.
    2. In the absence of a regulative ordinance, the rule as to speed of electric cars is that of reasonable safety in view of all the facts and surrounding conditions.
    Jelke, J.; Swing, J., and Giffen, J., concur.
   The principal question raised in this case is what speed ordinance, if any, is applicable to the operation of the electric cars of the defendant company upon the streets of the city of Cincinnati. So far as the record shows three enactments by the legislative board of the city are submitted for consideration, and it is stated that these three ordinances comprise all the legislation upon the subject. They are:

1. The ordinance of February 7, 1879, which provides:

“No cars shall be drawn at a greater speed than six miles an hour..” Coppoek & Hertenstein’s Ordinances, p. 538, Section 18, Par. 1.

2. The ordinance of October 25, 1889, which is:

‘ ‘ Sec. 2. That the schedule time for operating cars over said routes 5 and 7, and over all portions of said company’s other .street railway routes over which any kind of motors or means of rapid transit are authorized to be used, shall not exceed ten miles an hour, and Article I, Section 18 of the general street railway ordinance, passed February 7, 1879, or any provision of any other ordinance relative to the speed at which each ear shall be operated, shall not be applicable to such routes.” Henderson’s Ordinances, 1887-1895, p. 83.

3. The ordinance of October 14, 1892:

“Therefore, be it ordained by the board of legislation of the city of Cincinnati, that said ordinance, passed October 25, 1889, entitled ‘An ordinance, No. 4286, to provide for the extension of route No. 7 of street passenger railroads, and for the construction of an electric system of motive power along said route No. 7 and upon a portion of route No. 5, and to fix rates of speed upon certain routes,’ be and the same is hereby repealed; and all rights, privileges and franchises granted to the Cincinnati Street Railway Company under and by virtue of said ordinance, be and the same are hereby forfeited and held for. naught.” Henderson’s Ordinances, 1887-1895, p. 83. !

The court below held that the ordinance of 1889, providing for a schedule rate not to exceed ten miles an hour, was void, as being unreasonable, and charged the jury that the ordinance of 1879, reading that “no cars shall be drawn at a greater speed than six miles an hour, ’ ’ obtained and was controlling upon the company.

We are of opinion that this ruling of the court below was error. The ordinance of 1879, this court feels, must be construed in view of existing facts and conditions. We can not divest ourselves of the knowledge that in 1879 the cars in the streets of the city of Cincinnati were drawn by horses and mules, and the use of electric motive power for the purpose of propelling cars through the streets had not then been thought of as practicable.

The language of the ordinance, the use of the word “draivn,” would point to the use of horses and mules, and indicate that electric rapid transit as we know it to-day' was not in contemplation.

We are of opinion that the ordinance of 1879 is practically on a different subject matter — that modern electric locomotion is a different thing from that regulated by that ordinance. This brings us to the consideration of the ordinance of 1889.

We are of opinion that Section 2 of the ordinance of October 25, 1889, to the extent that it regulates the speed of electric ears, was repealed by the ordinance of October 14, 1892. Haying come to this conclusion, we do not pass upon the question of reasonableness which engaged the attention of the court below.

It is contended by the street railway company that the ordinance of 1892 only partially repeals the ordinance of 1889. It is true that the 1892 ordinance speaks of fixing the rates upon certain routes, and does not in express words mention that part of the ordinance of 1889, which says “and over all portion of said company’s other railway routes upon which any kinds of motive or street railway transit are authorized to be used,” or to the part which provides, ‘ ‘ and Article I of Section 18 of the general street railroad ordinance, passed February 7, 1879, or any provision of any other ordinance relative to the speed at which each car shall be operated, shall not be applicable to such routes.” The quotation in the ordinance of 1892 is of the caption of the ordinance of 1889, and is used for the purpose of reference to everything upon the subject of speed contained in that ordinance.

This leaves the city, so far as our attention has been called to the ordinances upon the subject, without an ordinance as to the rate of speed at which electric cars can be operated upon the streets of the city of Cincinnati. This is somewhat startling, but we reach the conclusion without misgiving or hesitancy because such conclusion works little or no substantial change in the law as it would be under the ordinance of 1899 as construed in the Gannon case.

In the Gannon case [not reported] the existence or validity of the 1889 ordinance was not questioned, but it was treated as a valid and subsisting ordinance. In that case the trial court charged as follows:

“In regard to speed, the ordinance provides ‘that the schedule time for operating cars over said routes 5 and 7 and over all portions of said company’s other street railway routes over which any kind of motors or means of rapid transit are authorized to be used, shall not exceed ten miles an hour,’ etc. I charge you that this ordinance fixing the rate of speed at which defendant’s car might be operated at the time in issue here, does not mean that the car shall not be operated at any time or place at a speed exceeding ten miles an hour, but its true construction is that in planning the movements and operation of its cars the defendant company shall allow sufficient time for a car to make its round trip by running at an average speed not to exceed ten miles per hour.
“It is permissible under this ordinance for a car which has been obstructed in the moré crowded and populous parts of the city and has been compelled to run at a very slow speed, to make up its time by running at a rate to exceed ten miles per hour on parts of its route which are unfrequented by vehicles and pedestrians, provided it can do so with reasonable safety. This leaves the rate of speed at which the car may travel to be determined by you, in view of all the surrounding facts and circumstances, and of the degree of care to be observed by those operating it. Manifestly a car may be operated at very much greater speed through Eden Park than on Fourth street, between Main and Vine. What would be a lawful and reasonable speed for the car upon which James Gannon rode upon the night of his death is for you, gentlemen of the jury, to determine in view of all the facts and circumstances of the case. And in this determination you may consider the location in the city, the time of day or night, whether or not it was between intersecting streets, the presence or absence of persons and vehicles in the street along the tracks, the load which the car was carrying, and everything which, in your judgment, would influence a reasonable man in exercising the degree of care incumbent upon the defendant company.”

That charge received the approval of this court and the Supreme Court.

The law, with or without the 1889 ordinance, is that of “reasonable safety, in view of all the facts and surrounding conditions. ” If it is deemed wise and necessary that there be an ordinance on the subject, one should be properly and regularly passed.

Paxton & Warrington and Kittredge & Wilby, for plaintiff in error.

Prescott Smith, contra.

Further, there were a number of special charges requested by the defendant and refused by the court. We are of opinion that the court refused the first special charge properly.

We think that the court should have given the second charge.

We think the third special charge would be better if the word “when” were changed to “if;” the word “when,” perhaps not necessarily, but in its reading, seems to imply a little finding of fact by the court.

The fourth and fifth were properly refused; the sixth ought to have been given; so should the seventh and eighth; the ninth was properly refused.

For these reasons the judgment of the court below will be reversed.


text:
    ADMINISTRATOR’S BOND.
    [Circuit Court of Cuyahoga County.]
    Anna L. Murphy v. Margaret Dorsey, Administratrix.
    Decided, December 16, 1901.

      Sureties — Liability of, on Bond of Administrator — For Moneys Received on Policy of Insurance — For the Benefit of Designated Beneficiaries.

    Sureties on tbe bond of an administrator are not liable for tbe proceeds of a policy of insurance on tbe life of tbe decedent, paid to tbe administrator “as trustee for tbe beneficiaries entitled thereto.”
    Marvin, J.; Caldwell, J., and Hale, J., concur.
   This is a proceeding in error to the court of common pleas of this county.

The parties, plaintiff and defendants here, are respectively as they were in the court of common pleas. The only judgment rendered in that court, as appears by the transcript, was one in favor of the defendant, Margaret Dorsey, administratrix, etc., and this was entered upon a verdict returned in her favor by direction of the court.

The suit was upon a bond given by the defendant, Kate Murphy, as administratrix of the estate of Dennis E. Murphy, deceased, which was executed by the defendants, James Reilly and one Rosa Ward, as sureties. Since the execution of said bond; said Rosa Ward has deceased, and the defendant Margaret Dorsey is the duly appointed and qualified administratrix de bonis non with the will annexed of the estate/of said last named decedent in which representative capacity she was made defendant in this original action.

The facts in the case are, that at the time of the death of said Dennis E. Murphy he was a .member of a mutual benefit society, which entitled such person as he should designate to the payment of a sum of money by such association, at his death. By his last will he designated this plaintiff as the beneficiary of one-half the amount so to be paid. The entire amount to be paid was $1,485; so that the sum to which this plaintiff was entitled was $742.50.

This last amount was paid to said Kate Murphy by said association while she was engaged in the execution of her trust as administratrix as aforesaid, and she receipted therefor as such administratrix, and has not paid the same or any part thereof to the plaintiff. Thereafter plaintiff brought suit in the court of common pleas of this county against said Kate Murphy, both in her individual capacity and as such administratrix, for the money so received by her from said association; in this action of plaintiff recovered a judgment against said Kate Murphy in both capacities in which she was sued; that judgment is still in full force.

The petition in this action is based upon said judgment, the same having been first duly presented to the defendant, Margaret Dorsey, as administratrix as aforesaid, of the estate of Rosa Ward, deceased, and having been disallowed by her. It is averred by the plaintiff in the petition upon which the judgment hereinbefore mentioned was obtained, that the money obtained by Kate Murphy from the association, “is in her possession as such administratrix, but not as assets of said estate, but only as trustee for the beneficiaries entitled thereto.”

In the view taken by the court, of the law applicable to the ease, no other facts need be considered, and only two questions of law decided.

First. Are the sureties upon the bond given by Kate Murphy as administratrix liable for money in her hands for which she receipted as administratrix, but which was not assets of the estate being administered upon, but held by her "only as trustee for the beneficiaries entitled thereto ? ’ ’

Second. Are such sureties so bound by the judgment hereinbefore mentioned ■ that they may not defend here, upon the ground that the obligation assumed by them in the bond did not include any liability for money coming into the hands of the administratrix as this money did ?

The condition of the bond executed by these sureties so far as it need be considered here, is in these words:

"The condition, of the above obligation is such, that if the above named Kate Murphy, administratrix with the will annexed of all and singular the goods, chattels, rights and credits which were of Dennis E. Murphy, deceased, * * * shall administer, according to law, all the moneys, goods, chattels, rights and credits of the deceased, and the proceeds of all the real estate that may be sold for the payment of decedent’s debts, which shall at any time come to her possession, or the possession of any other person for her.
"Third. Shall render, upon oath., a just and true account of her administration within eighteen months, and at other times when required by the court or the law. * * *
"Fourth. Shall pay any balance remaining in her hands upon the settlement of her accounts to such persons as said court or the law shall direct, * * * then this obligation shall be void, otherwise it shall remain in full force and value in law. ’ ’

Unless the administratrix failed to comply with one or more of these conditions, the obligation was null and void. She was bound to administer according to law, all the property of the deceased, which came to her hands ■ or any other person for her, all such property would be assets of the estate. She was bouhd to render upon oath a just and true account of her administration, that is, of what was done by her with these assets. She was bound to pay over to the proper parties any balance of the avails of such assets remaining in her hands upon the settlement of her accounts.

Unless the administratrix has failed in some one of the above-named things which she was bound to do, it is difficult to see how any action could' originally have been maintained upon this bond.

The money which she received from the benefit society was not assets of the decedent’s estate; this is averred in distinct terms in the petition upon which the judgment sued upon in this action was obtained.

It follows that no judgment rendered in that action could have made this money assets of such estate; and it further follows that unless the sureties upon the bond of the administratrix can be held for the wrong-doing of the administratrix in connection with some property not assets of the estate, they can not be held in this action.

Looking to the language of the bond, we find nothing for which the sureties became responsible except for the proper administration and distribution of the decedent’s estate, and if these sureties may rely upon the general principle that the obligation of the surety is not to be extended beyond the plain terms of his undertaking, then these sureties can not be held.

In Gregg v. Currier, 36 N. H., 200, it is said:

“The rule applicable to official bonds in general, that the sureties are liable only for the official acts and defaults of the principal and for funds in his hands in his official capacity, applies also to administrators’ and executors’ bonds.”

In Wattles v. Hyde, 9 Conn., 10, it is held:

“So the principal himself is liable on his bond only for official acts and defaults. Hence as respects any remedy for his misconduct by a proceeding on his bond, his liability and that of his sureties are co-extensive.”

In Hobbs v. Middleton, 1 J. J. Marsh, 178, the same proposition is asserted.

In a note in Commonwealth v. Stub, 51 Am. Dec., 515, 519, this language is used:

“This is, no donbt, the general rule,- but it does not follow that there can always be a recovery on the bond against the sureties whenever there can be a recovery against the principal, for although as respects the act or default which constitutes the cause of action, their liability may be the same, he may, in certain cases, be estopped by some act or admission from making a defense which is open to them.”

Givens, Matter of, 34 N. J. Eq., 191. In this case an administrator was ordered to sell certain real estate of the deceased. He did sell, in addition to that ordered to be sold, another tract of land; and it was held that his sureties were not liable for the avails of the sale of the parcel not ordered to be sold. This language is used in the opinion at page 192:

“It is clear that the administrator and his sureties are bound to answer only for the administration of the proceeds of the sale of land sold by the former pursuant to the order of the orphans’ court.”

In Pace v. Pace, 19 Fla., 438, paragraph 6 of the syllabus reads:

“The sureties upon the bond of an administrator who has collected money neither assets of the estate nor subject to distribution by him, and to which as the legal representative of the decedent he was not entitled, are not liable for any appropriation or use of the same by the administrator for his personal benefit. ’ ’

In this case, money was paid to an administrator upon a life insurance policy held by the decedent.

Under a statute of the state of Florida the money to be paid upon this policy was mot liable for the payment of the debts of the decedent. And the court say, in reference to the policy, that—

“Under this statute and under this policy, unquestionably upon the death of the assured, no creditors had a right to participate in the proceeds of this policy. It enured exclusively to the benefit of his child surviving him, the plaintiff in this case, and even if the contract was with the assured, and his executors, administrators and assigns (as to which the bill is silent), the administrator would not hold it as general assets in his hands liable to the payment of debts, or to distribution according to the laws of the domicile of the intestate. lie would hold it as trustee, coupled with the single duty of payment.”

White, Johnson, McCaslin & Cannon, for plaintiff in error.

F. A. Beecher and J. P. Dawley, for defendants in error.

On page 453, the court further say:

“With this construction of the policy, the necessary result is that upon the death of the assured, the child became entitled to its proceeds, had title thereto, and that the administrator, the legal representative, had no title, and was in no way entitled to the possession or control thereof.
“The infant, therefore, does not here claim as heir or distributee. His claim is like that which a stranger would make if he were the beneficiary. The necessary result of this is, that the sureties of the administrator are not responsible for the management of this fund for Pace. The fact that he did, as administrator, receipt for the property of the child, can not bind his sureties.”

From these and many other authorities we hold that the sureties upon the bond of Kate Murphy, as the administratrix of the estate of Dennis E. Murphy, were not liable for the moneys received from the benefit association.

As to the other question, of whether by reason of the judgment obtained against Kate Murphy as administratrix, these sureties are estopped, we hold in the negative.

It is true that, in the absence of fraud, the settlement made by the probate court of administrators, guardians and the like, binds the sureties; yet they are so bound because those accounts show the balance of assets remaining in the hands of the trustee for distribution; but, in this ease, the judgment itself, which is the foundation of the present action, was upon a petition showing that the money was not assets of the decedent’s estate. The judgment, therefore, as has already been said, in that case, was not a finding that this money was assets. There has been then, no finding that there were assets in the hands of Kate Murphy as such administratrix which she has failed to pay over. That being true, there is no breach of the condition of her bond.

The judgment of the court of common pleas is affirmed.


text:
    GARNISHMENT OF A DEBT OWING BY A FOREIGN CORPORATION.
    [Circuit Court of Cuyahoga County.]
    Riter-Conley Manufacturing Co. v. John Mzik.
    Decided, November 11, 1901.

      Attachment and Garnishment — Where the Garnishee is a Foreign Corporation — And the Property Attached is a Debt — Owing to a NonResident Defendant — Situs of the Debt — Service Upon Agent of Corporation.

    1. Where a foreign corporation is prosecuting business in Ohio, and is capable of suing and being sued in the courts of this state, it is subject to garnishment in a ease wherein an attachment may rightfully issue.
    2. And thé garnishment is not defeated by the fact that the property reached by the garnishee process is a debt owing by the garnishee to a non-resident.
    3. Service upon a district manager constitutes a legal service, where it appears that the general manager, upon whom service was authorized, occupied the same office, and had knowledge of the service before the filing of the motion for the discharge of the attachment.
    Hale, J.; Caldwell, J., and Marvin, J., concur.
    Heard on error.
   The defendant in error commenced an action in the court of common pleas against the plaintiff in error to recover compensation for injuries which he alleges were caused by the 'negligence of the plaintiff in error while in its employment. At the commencement of the action he procured an attachment to issue and garnishee process to be served upon the American Steel & Wire Company. The plaintiff in error is a Pennsylvania corporation having its domicile in that state. The garnishee, The American Wire & Steel Company, is a New Jersey corporation and domiciled in that state, but, by compliance with the laws of Ohio relating to foreign corporations, its business is prosecuted, in part, in this state. It has also appointed and keeps an agent in Ohio (see Sections 148c and 5046, Revised Statutes, upon whom service of process in all legal proceedings can be made. The defendant in error is a resident of Ohio.

Before the garnishee had answered, a bond for the release of the property was given in accordance with the terms of Section 5545, Revised Statutes. That bond was not signed by the plaintiff in error.

It appears that {he only property reached by the garnishee process, if any, was a debt owing by the garnishee to the plaintiff in error. Subsequently to the giving of the bond, a motion was made to discharge from the attachment the credit owing by the American Steel & Wire Company to the plaintiff in error. That motion reads:

“The defendant', The Riter7Conley Manufacturing Company, appears here for the purpose of this motion only and moves the court to discharge from the attachment in this case the credit owing to it by The American Steel & Wire Company sought to be attached herein, on the ground that .this defendant is a nonresident of Ohio and The American Steel & Wire Company is likewise a non-resident of Ohio, and the credit sought to be attached beyond the jurisdiction of the court. ’ ’

At the time the defendant in error sustained the injuries of which he complains, the plaintiff in error, was constructing for The American Steel & Wire Company under contract a blast furnace in the city of Cleveland.

The motion to discharge the attached property was overruled, and error proceedings are now prosecuted to i*everse that order of the court.

In support of the petition in error, it is argued that the courts of this state have no jurisdiction of property of any kind not within the state, and since the garnishee and its creditor both reside without the state the situs of the debt is without the state and not subject to the jurisdiction of the court in which the principal action is pending, and, therefore, the motion should have been sustained, and the court erred in deciding otherwise.

In proceedings by garnishment for the attachment of a debt, it may be conceded that a corporation non-resident of this state, exercising no corporate powers or franchise within the state (and entirely non-resident) is not liable to garnishee process in an action by a resident of this state against a foreign corporation. Reimers v. Seatco Mfg. Co., 70 Fed. Rep., 573 (37 U. S. App., 426); Louisville R. R. Co. v. Dooley, 78 Ala., 527; The Alabama R. R. Co. v. Chumley, 9 So. Rep., 286 (92 Ala., 317); Everett v. Insurance Co., 4 Colo., 509; National Bank v. Furtick, 2 Mar. (Del.), 35; Associated Press v. United Press, 29 S. E. Rep., 869 (104 Ga., 51); Illinois Central Ry. Co. v. Smith, 12 So. Rep., 461 (70 Miss., 344; 19 L. R. A., 577; 35 Am. St. Rep., 651); American Central Ins. Co. v. Hettler, 56 N. W. Rep., 711 (37 Neb., 849); Douglas v. Insurance Co., 33 N. E. Rep., 938 (138 N. Y., 209; 20 L. R. A., 119; 34 Am. St. Rep., 448); Towle v. Wilder, 57 Ver., 622; Moraweitz v. Sun Ins. Office, 71 N. W. Rep., 109 (96 Wis., 175; 65 Am. St. Rep., 43).

But if, as in this ease, the garnishee is a foreign corporation, but by virtue of the statute of this state and by a compliance therewith is prosecuting its business within the state and is capable of suing and being sued in the courts of the state, it is subject to garnishee process in any action against its creditor in which an attachment may rightfully issue. See Sections 148c, 5046 and 5521, Revised Statutes; Lancashire Ins. Co. v. Corbetts, 46 N. E. Rep., 631 (165 Ill., 592; 36 L. R. A., 640; 56 Am. St. Rep., 275; German Bank v. American Fire Ins. Co., 50 N. W. Rep., 53 (83 Iowa, 491; 32 Am. St. Rep., 316); Nat. Fire Ins. Co. v. Chambers, 32 Atl. Rep., 663 (53 N. J. Eq., 468); Burlington Ry. Co. v. Thompson, 1 Pac. Rep., 622 (31 Kas., 180; 47 Am. Rep., 497); Railway Co. v. Barnhill, 19 S. W. Rep., 21 (91 Tenn., 395; 30 Am. St. Rep., 889); Cross v. Brown, 33 Atl. Rep., 147 (19 R. I., 220); Neufelder v. Insurance Co., 33 Pac. Rep., 870 (6 Wash., 336; 6 Am. St. Rep., 166; 22 L. R. A., 287).

The cases announcing a contrary doctrine hold that the situs of the debt is with the creditor and with his domicile, and if the creditor be a non-resident, the debt is not within the jurisdiction of the court.

This may be the rule where specific tangible property is sought by proceedings in garnishment, but does not apply by proceedings in garnishment for the attachment of a debt. The law, we believe, to be correctly stated in 6 Thompson’s Corporations, Section 870. Speaking of the jurisdiction to reach a debt due by one foreign corporation to another foreign corporation, he says:

“In so far as the proceeding involves a summons co the garnishee, requiring him to appear and answer, and provides for further proceedings against him upon his answer, or in default of his answer, which may result in a judgment against him, it is a proceeding in personam. Now, in so far as it is a proceeding in personam against, the foreign corporation, no jurisdiction can be acquired unless the situation of the foreign corporation within a domestic state is such that an ordinary action in personam could be prosecuted against it in the domestic tribunal. It follows from these considerations that a foreign corporation which is entirely non-resident, is not subject to garnishment, and can not be made so, for the states have no power to extend their judicial process into other states; but if it is resident in the domestic state in such a sense as makes it amenable to the ordinary judicial process of such state, then it is amenable to process of garnishment, unless the statute governing the question is so framed as to exclude such a conclusion. There is certainly no principle of public policy or justice upon which an* intention can be imputed to the Legislature to distinguish between actions brought directly against a foreign corporation for the recovery of a debt, and those in which they are indirectly brought before the court for the purpose of satisfying the demand of some third person.”

In such case the garnishee can only be held to answer in the jurisdiction where proper service can be had upon him.

If, in this case, the situs of the debt alone governs and that is at the domicile of either the debtor or creditor, the debt is not within the jurisdiction of the court out of which the attachment issued.

That tangible property within the jurisdiction of the court, although in the custody of a non-resident corporation, may be reached in attachment and by garnishee process, is not disputed.

If The American Steel & Wire Company had under its control tangible property, it could in these proceedings be attached or reached by process of garnishment. In such case, the fact that both debtor and creditor are non-residents of the state would not prevent attachment proceedings. Instead of having in its custody property, The American Steel & Wire Company is indebted to the plaintiff in error.

Indebtedness is a thing of substance and of value. It can be sold and assigned, its payment enforced by the creditor in an action in any court in whose jurisdiction legal service of process can be served on the debtor.

It is not controverted that the plaintiff in error could enforce its claim against The American Steel & Wire Company in the court from which this attachment issued. Then, for what reason can not this debt as well as tangible property of the plaintiff in error be reached by attachment? The right in respect to it can be enforced by the plaintiff in error in an action at law in the tribunals of this state. He may enforce its collection, receive payment in full and take the proceeds beyond the jurisdiction of the court.

We know of no good reason for denying the defendant in error the right to reach this claim, this property, by garnishment in attachment proceedings, nor for sustaining the plea of either the plaintiff in error or the garnishee that this property is not subject to attachment in this state.

The defendant in error, on the hearing, suggested that the trial court had no jurisdiction to entertain the motion to discharge this property after the giving of the release bond.

Coming to the conclusion we do upon the other proposition in the ease, it is unnecessary to pass upon this claim.

It is suggested by counsel for plaintiff that no legal service was made upon the garnishee. The return of the sheriff reads:

‘ ‘ I served the foregoing on The American Steel & Wire Company, garnishee, by leaving a true and certified copy thereof, and also a notice to appear and answer as such garnishee in the Court of Common Pleas of Cuyahoga County, in the form provided by law, at the office, the usual place of business of said company, with J. H. Early, assistant district manager in charge thereof.”

It appears from the bill of exceptions that Albert T. DeForest was the authorized agent of the garnishee upon whom legal service could be made within the state, and he was also the general manager of the corporation. J. H. Early was his assistant, and botb occupied the same office at the usual place of davit of Mr. DeForest, made part of the bill of exceptions, that the notice to the garnishee came to his possession and knowledge prior to the filing of this motion, and we are, therefore, of the business of the corporation. It further appears from the affiopinion that th$ motion should not be sustained upon this ground.

Gilbert & Hills and J. H. Van Derveer, for plaintiff in error.

Noble, Pinney & Willard and H. F. Payer, for defendant in error.

Our conclusion is, that there was no error in overruling the motion to discharge from the attachment the debt due from The American Steel & Wire Company to the plaintiff in error, and the judgment of the court of common pleas is affirmed.


text:
    WAIVER OF A RIGHT OF FORFEITURE.
    [Circuit Court of Ashtabula County.]
    Mary L. Field and Albert T. Field v. Lake Shore & Michigan Southern Railway Co.

    Decided, October 12, 1897.

      Deed — Of Land to a Railroad — With a Right of Forfeiture — Dependent Upon a Condition Subsequent — Waiver of Right — Bars a Recovery for the Land Tahen as for Appropriation and Without Compensation — Section 6448.
    F and others conveyed land to a railroad company in consideration of one dollar in hand paid and on the express condition that the road be constructed within two years. After a lapse of seventeen years from the time the condition was to be performed, and after improvements had been placed upon the property which raised its value to $600,000, suit was brought by the grantors which in its present form is for recovery of the value of this land taken as by an appropriation and without compensation being made. Held:

    1. That the omission to take any steps for so long a period for the forfeiture of the title on the ground of failure of a condition subsequent, constitutes a waiver of the right to insist upon forfeiture, and bars the plaintiffs from recovering the property.
    2. The fact that in such a case the condition was not performed does not give to the grantors the right to maintain a suit against the grantee for recovery of compensation for the land, under the provisions of Section 6448, authorizing actions as for appropriation for land tafeen without compensation and not under contract in writing.
    Laubie, J.; Frazier, J., and Burrows, J., concur.
    The case of Mary L. Field and Albert Field against the Lake Shore .& Michigan Southern Railway Company and William K. Vanderbilt, has been submitted to us in the arguments of counsel and extensive briefs, wherein the plaintiff ask to have the judgment of the court below reversed for various claimed errors as stated in the petition in error.

       Affirmed by the Supreme Court without report (62 Ohio State, 633).

   The court below charged the jury that the plaintiffs could not recover in that action the value of the lands claimed as upon an appropriation, and if that direction of the court to the jury is correct, that ends all questions in this ease. It is entirely immaterial what other errors may have been committed, if that was not erroneous.

Now the action was brought, according to the ninth amended petition before us, to recover the value of certain lands in this county which were deeded to the railway company or its trustees (the same thing) in 1871 by the plaintiffs, in consideration of the sum of one dollar in hand paid and upon the condition that was provided in the deed for the construction of the road within the period of two years. It was alleged that this condition has not been complied with, but that the plaintiffs have not enforced it, except as they seek to enforce it now. That is, they seek now to recover the value of the lands conveyed, because the condition was not complied with as to the building and operation of the road, and the court instructed the jury, as I have said, that the action could not be maintained.

Why might a recovery be had, as claimed by the plaintiffs? They say that they are entitled to recover because of the fact that this condition in the deed was not complied with, and that this was the condition:

“Nevertheless, the above conveyance is upon the express condition subsequent, that if the Lake Shore & Southern Michigan Railway Company shall not within two years from this date have constructed and in operation its Ashtabula and Jamestown branch railroad, having its main business line running from the east side of the harbor of Ashtabula to Jamestown, in the state of Pennsylvania, then upon the demand of the said Mary L., her heirs and assigns, the said Clark shall reconvey the above granted lands to said Mary L., her heirs and assigns.”

That the plaintiffs had in 1890 commenced an action by ejectment to recover possession of these lands and damages for their retention, and that that action is this one — this being the ninth amended petition in the case; that they abandoned the right to recover by ejectment and they now seek to recover the value of the premises, by alleging that this condition was never performed; that it is true they stood by and saw the railway company occupy the land and make large and valuable improvements upon it, but that they are now entitled to charge the defendant company with having taken the lands as by an appropriation, at least an appropriation in fact; and, therefore, that they should have compensation for the value of the land, which they declare I to be six hundred thousand dollars. This, in short, is this ninth • amended petition.

I need not recite the defenses. It is sufficient to say, as solely bearing upon what I shall pass upon in this ease, that they deny that this condition was not performed. They allege in their answer that the company did perform it; that it built and operated its road and has been running it ever since; that it built it and operated it within the time mentioned, the two years specified in this condition subsequent, or whatever it may be, and that they did expend, as alleged in the petition, large sums of money in making large and valuable improvements and changing the aspect of the land, and they claim the plaintiffs are estopped from any relief by reason of the fact that they never made, up to the time of the commencement of the action, any claim of recovery of the land, nor any objection to the railroad company’s using it, or that the condition had not been performed.

The rights of the plaintiffs to recover I have simply stated as they make it, that is, that under the facts and circumstances of the case they were entitled to charge the company with the value of the premises, because compensation has never been paid and the company have appropriated in fact, the land; and, $s I have said, the court below held that action could not be maintained by the plaintiffs and so charged the jury.

It is entirely immaterial, as we think, and as viewed by the court below, what the condition was, whether it was a covenant or a condition subsequent; but we are not disposed to hesitate about the matter, and consider it in the light claimed by the plaintiffs, that it was a condition subsequent and the performance of which might avoid the estate. If a condition subsequent, however, the thing did not work of itself, it had to be worked by somebody. A plow is a good thing to plow up land with, but it won’t do much effective excavation unless somebody uses it with some kind of force. So a condition subsequent is a very good thing to rely upon, but it don’t work out any one’s rights of itself; the grantor in the deed must do something. If he wants to recover the land on the ground that the condition subsequent has not been performed, he has either got to enter the premises and take possession on that ground for the reason that the condition was not performed, or else he has to apply to a court that can grant him that relief and have the forfeiture declared and a reconveyance ordered of the premises. They commenced an action for that purpose upon ejectment in this instance, and finding that would not hold, they abandoned it; that is, we assume so, because it would not hold. An action of ejectment under the circumstances stated here, was not a remedy open to these parties, and we assume that is the reason they abandoned it, but the title remains in the grantee until some act is done by which he is ousted from the premises, either by the act of the party or by an act of the court, and the mere saying that the condition has not been complied with, works nothing for •either party; it does not disturb title or possession of the grantee in any sense or form.

It seems to be assumed by counsel in argument here, that the mere declaration on their part that the condition was not performed works a forfeiture of all right and that they are entitled to recover the land. That is the assumption, and yet in these same briefs, counsel for the plaintiffs in error, say this: “A conveyance upon a condition subsequent passes a present estate in the land subject to be defeated by non-performance of the condition and the estate continues until avoided for breach of the condition by one having a right to avoid it. ” It is expressed in a little different- language from mine, but it includes what I have said, that some one, who has a right to avoid it, must in some way avoid it, either by taking possession of the premises and ousting the grantee on the ground that he has not performed the condition, or else by application to a court of justice upon that proposition. They say: "If devised, the condition is transmitted, for the condition endures until performed, destroyed, released, waived or barred;” and the same admissions are substantially made in this long brief of our Brother Jones; and yet, after all, as I have said, the arguments proceeded upon the proposition all the way through, that the mere claim on the part of the vendor or grantor, that the condition has not been performed, avoids the estate, and we are entitled to recover the full value of it, if the party don’t give it up, without entering into the estate and dispossessing the grantee or without having an order or decree of the court to confirm it.

As I have read from their own briefs, the right to enforce a forfeiture in such a case may be waived and barred. It is expressly waived in this case, waived in the petition. They were compelled to waive it, I suppose, from the knowledge of the fact that the deed was made early in 1871, and the condition subsequent was to be performed within two years, and from that time on to 1890 — seventeen years after the condition was to be performed (the road to be built and operated) — the plaintiffs remained quiet, allowing, as they say, the railroad company to be in possession and make large and valuable improvements and expend a large amount of money upon the land; and it is evident from these undisputed facts, that they waived the performance of that condition and they were barred from enforcing it. The facts show that they waived it and were barred from enforcing the condition subsequent, and therefore the estate remains in the grantee, the title is there, the railroad company is owner in fee of the land; and I say these facts not only appear uncontroverted and undisputed, but it is pressed as a ground for recovery in this ninth amended petition, that they did in fact waive the performance of the condition, waive it as a forfeiture, but they say that the condition was not in fact performed, and by reason of that, they still have the title and they offer it and deposit a deed with the clerk of the court of the lands to the defendants, and ask to recover the value of the land as upon appropriation, alleging that the company was not entitled to the land under the deed by reason of the failure to perform the condition, and therefore they must be considered as having appropriated it in fact wrongfully and without a right.

That is getting into a muddle of contradictions that I am not able to properly extricate. If, by way of error, the grantee becomes absolutely vested with the title to the premises, I do not see what title there is left in the plaintiffs to convey, and if that is so, I am at a loss to know what remedy they have. If they have a remedy, what is it ? What else is left them, if they have waived the condition and the estate has become absolute in the vendees ?

As I have stated, the court below held that in all events they could not maintain this action, and it is sufficient for us to determine whether the court was right in that or .not. We are not called upon to determine whether there is any possible remedy left open to the grantors, the Fields. It is time enough to decide cases when they arise. The question is whether they were entitled to maintain this action. If they were not, that ends the question before this court at this time.

Is it true, or is it the law, that under such circumstances, being unable to recover or enforce a forfeiture of a condition subsequent, if there was one, unable to do that by reason of their own conduct, if for nothing else, if the condition had not been performed to the letter, unable to enforce it by reason of their own conduct — standing silently by for seventeen years and uttering no word of complaint — never suggesting to this railroad company “you do not own that land, here was a condition subsequent, you should have performed it but you have not performed it” — standing quietly by and perceptibly reaping the benefits to their other land of the construction of the road as it was run — for, according to the evidence, an immense traffic had been put upon it— not by way of carrying passengers but of freight, they reaping the benefit of it and standing by, I say, are they entitled now to maintain this action to recover as upon an appropriation, in fact, upon the assumption that the facts in the ease show that the company got possession, or is holding possession of the land under its power of eminent domain, an appropriation in fact, although not in law? It is somewhat difficult to grant them that proposition, that they are entitled to anything like that, and say they may recover six hundred thousand dollars for the value of these premises.

As I have said, I need not undertake to decide whether they have any remedy at all or not. If they have any, perhaps it would be an action for damage, for a breach of contract, if there is anything left, but I am at a loss to see how they can maintain this action, or in what respect the position assumed by the court of common pleas was wrong.

The much larger part of these briefs are devoted to the question of the construction of this deed,whether it is a condition subsequent or a covenant, and but little is said in regard to the right to maintain this action in its present form, so far as I could make out, and I have examined the authorities submitted by counsel for the plaintiffs in error upon that question. That is the only question we have in the case, because, as I have already said, as the court below said, it is entirely immaterial what you call that condition, whether you call it a covenant or a condition subsequent, if it is one by reason of the waiver, from the fact that they are barred from enforcing it as such, so it is entirely immaterial what you call it; the name gives no sanctity to it in any way or form.

They rély and cite to us Chapman v. Railway Co., 6 Ohio St., 119, as sanctioning this action. It is a long case and I am not going to take up much time with it. I will read but two paragraphs of it, and I take that from the opinion; on page 139 the court say:

‘ ‘ The analogies, spirit and policy of the statutes before quoted, seem to point to such a remedy, and we are strongly impressed with the conviction that the equities of the case demand it. The particular injunction prayed for by the complainants in this case, is in the nature of, and is sought by the complainants, in order that it may operate so as to enforce a specific performance of the contracts between them and the railroad company.
‘ ‘ It seems to be well settled that where it is found that a complainant was originally entitled to a specific performance, but pending the litigation, the very subject matter of the agreement, to which the complainant is found to be entitled, is abstracted or destroyed, a court of equity will not turn him over to seek his damages in a court of law, but will afford a remedy by compensation. ’ ’

We concede that law to the fullest extent. No doubt it is true and beyond question, that where a party commences a proceeding for a specific performance of a contract, or, as the court here puts it, for an injunction, and looking to that remedy and pending that litigation, finding that he was originally entitled to a specific performance, the defendant abstracts or destroys the property in controversy, so that specific performance can not be decreed, a court of equity will afford him a remedy by compensation for the property which he ought to have received. That is good law or good equity, if you please, which is enforced in courts of equity. Whether it is appropriately applied to Chapman v. Railway Co., supra, I will not' say, but it was an action commenced originally for an injunction, as the court declares, and they find the parties were entitled to that injunction originally and that the property became destroyed in litigation. If that has any bearing upon this case before us, to show that these parties are entitled to recover the value of these premises, why we are not able to see it.

A quite recent case is next cited; and in this connection I may say that it is a little difficult to understand from the petition and from the arguments submitted by some counsel for the plaintiffs as compared with the arguments of others of them, whether the argument is predicated upon the statute of the state, or whether they claim the right to exist independent of the statute. As to Fries v. Railway Co., 56 Ohio St., 135, Spear, J., delivering the opinion, on page 136, says this:

“It appeared by the second amended petition, among other things, that the land taken (three and 56-100 acres) was part of a farm in Huron county, to which plaintiff, April 3, 1880, aequired title, with every claim and right of action of the former owner; that prior to that date the Wheeling & Lake Erie Railroad Company, without the consent of the owners, took posession of the strip and constructed its railroad thereon; that June 25, 1886, the Wheeling & Lake Erie Railway Company, the successor of the said railroad company, without any grant or conveyance from or agreement with the plaintiff; without any right or- title, legal or equitable thereto, and with the verbal consent of plaintiff on condition of compensation never performed, took possession of said strip, and has. since used and now uses it as an integrad part of its permanent railroad.
“It was originally taken possession of without the consent of the owner, not under a deed conveying the title, transferring the title and the possession both as in this case — but it was a ease where the defendant had taken possession without right or authority of any character, without the consent of the owner, and Judge Spear says further along in regard to this:
“As to the right of ejectment we suppose the law is entirely settled. He could not have that remedy. His consent to the entry would estop him (Goodin v. Canal Co., 18 Ohio St., 169; Penna. Co. v. Platt, 47 Ohio St., 366). The reason for the rule lies in considerations of public convenience.”

Then again, who are they that are entitled to the benefit of this statute? The court says, “Why, all owners,whose lands have been taken by such corporation and have not been appropriated and paid for, or are not held by any agreement in writing with the owner, shall have the benefit of this statute. ’ ’ And again, “If an agreement in writing has been executed by which the land is held, that is the measure of the owner’s rights and such owner can not have the benefit of the statute. Verbal agreements are not recognized as binding, for the same reason, doubtless, that induced the enactment of our statute of frauds with respect to verbal contracts for lands, viz: to prevent frauds and perjuries. The natural effect of the words used is, that if the owner has a contract in writing, on which he may rely, that must be his sole reliance.” It would hardly be worth while to read any more of that. That excludes the plaintiffs in this case from any such remedy, at least under the statute referred to, by which parties whose lands are taken without right or held without contract in writing, may compel an appropriation or may sue for compensation as upon appropriation. Section 6448, Revised Statutes.

In this ease the land was taken possession of under an agreement in writing, under a deed conveying the legal title, and has evidently been held, ever since in the same way.

The nest case they refer to is Longworth v. Cincinnati, 48 Ohio St., 637, and 1 do not mean to take up much-time with that ease. Spear, J., delivered the opinion in that case also, and he says on page 640:

“It was shown by the pleadings that the city had wrongfully taken possession of the plaintiff’s property, and had devoted it to the purposes of a street, a public use. No appropriation in accordance with law had been made, nor had compensation in money, or otherwise been awarded the owners. The city simply took the property by force and was continuing its unlawful use, refusing to yield it up to the owners, and also refusing to make any compensation for it, thus disregarding the plaintiff’s natural rights, and violating their constitutional right secured by that section of the Constitution which provides that private property shall ever be held inviolate but subservient to the public welfare, and where taken for public use, a compensation therefor shall first be made in money. ’ ’

It is hardly necessary to say anything more about that. Where a city had taken possession without any lawful authority by force and held the property for street purposes, there, undoubtedly, this statute would apply, because the city was not in possession under a contract in writing and had paid nothing, and in that character of a case it is well settled that the party may have one of the two remedies. He may sue for • compensation for the value of the property, bringing in a deed and offering to convey the title, so when he gets the compensation the other party will have the title if it has not in the beginning, or he may compel any appropriation under Section 6448, Revised Statutes, the statute, which the court say is a cumulative remedy only, but it affords no aid to us here, where the parties are in possession under a conveyance.

The nest case is Platt v. Pennsylvania Co., 43 Ohio St., 228. Now that was a peculiar case. Originally the Lake Shore Company had commenced appropriation proceedings and had by appropriation proceedings obtained possession of the strip in question, one hundred feet wide. Many years thereafter, not desiring to hold the whole strip, not using it all, they conveyed twenty-five feet of it to the Pennsylvania Company, who thereupon entered against the protest of the former owner or the owners, and built its road and tracks and raised them up above the level of the Lake Shore, so as to cut off his communication to other parts and in that original appropriation not a dollar was paid for the land. Under the old Constitution, they could set off benefits against the damages and so it was fixed in that case; they just balanced the thing up, and the owner of the land got nothing at all in compensation for his premises, when it was appropriated by the Lake Shore road. In addition thereto the Pennsylvania Company took an additional amount of land and this action grew out of those facts. “The Lake Shore Company acquired an easement only, though an easement in perpetuity, and where there is an abandonment of such easement, the interest acquired reverts to the owner of the fee; ” and it was held by the court that the action of the Lake Shore Railroad Company was an abandonment of that portion of the land originally appropriated to its use, having been abandoned by that company as not being necessary or needed for the operation of its road, and that by reason of such abandonment, the title and the fee and the right of possession all reverted to the owner.

Now you see what a different state of facts that presents from the one before us. It was an appropriation proceeding for which he had not received a dollar, therefore the owner who owned the fee was entitled to recover it, but he acquiesced in the appropriation, in fact made of it by the Pennsylvania Company and tendered the deed and asked for the value of it and he got it, and it has no more application to the case at bar than any of the other cases I have referred to.

There is one case cited or referred to in the brief of counsel in that case and commented upon by the court; that is Junction Railroad Company v. Ruggles, 7 Ohio St., 1.

“It appeared that Ruggles executed to the Ohio Railroad Company an instrument in writing, under seal, agreeing that if the company would locate its road through any lands possessed by him, he would quit-claim to it so much land as the company was authorized to take, to-wit, a strip one hundred feet in width through such lands, for the purpose of location and construction of the road, with the right to immediate possession, and of taking and converting to their own use stone, gravel, etc. The company located its road through the lands of Ruggles, but before the road was completed, the state, which had loaned its credit to the company, took possession of and subsequently sold the road, under the act of 1837 and a joint resolution passed in 1845. Ebenezer Lane became purchaser, who conveyed his title to the Junction Railroad Company, and that company proceeded to build the road through the lands of Ruggles on the strip so located by the Ohio Railroad Company, Ruggles objecting and threatening to bring suit, the Junction Railroad Company commenced an action and obtained an injunction restraining him from interfering with the construction of the road, and this court made the injunction perpetual. Stress is placed by the court, and properly placed, on the fact that the rights, as against Ruggles, were acquired, not by invoking the power of eminent domain, but by c'ontract, and the case really turned on the assignability of the contract, in view of the terms of the agreement, the legislation and the existing facts. ’ ’

So here the possession acquired by the defendant in this case was not under the power of eminent domain, or any claimed exercise of any such power, but was by deed conveying title to it, and confessedly it has that title now and it has possession and has ever since retained possession under that deed.

Now under this statute of the state (see Sections 6448, Revised Statutes, &t seq.) authorizing a compulsory appropriation proceeding, certainly this proceeding could not be maintained for the reason that possession is held under and by virtue of a writing or a contract between the parties, and that contract is the sole measure of the remedy or rights of either, although this was the precise point upon which the case went off below, the court charging that this kind of a ease or this particular case, seeking for a recovery of the value as upon an appropriation in fact, could not be maintained; no case has been cited by counsel, wherein it ever said it could be maintained, not one; I mean a case anything similar in facts to this, where the land was taken possession of, nor under the exercise of the power of eminent domain, whether in fact or in law they shall appropriate, not under that, but where possession was taken and given under the deed, under the title; any such case as that, where the remedy is left to the party — where he is barred from claiming the forfeiture and can not rely upon the condition subsequent; any case that holds that in such an instance or under such a state of facts he may maintain an action to recover the full value of the premises as if no- contract had ever been made; no- such ease of that character has been submitted to us and we can conceive of no such right vesting in the party.

If there is any remedy at all, it may be, as intimated by the court below in the fore part of its charge, an action for damages for a breach of contract, but it is time enough to pass upon that question when it arises. Suffice it to say, that here it is clear to us that this action can not be- maintained and that the court below did not'err in so charging the jury.

This disposes of the ease and we need not refer to the second proposition, which the court charged the jury also prevented a recovery, that this condition was substantially performed, because it is entirely immaterial in this case whether it was performed or not. There is no right to- maintain this action upon any principle of law or equity that we are aware of, and none certainly has been given to us, which shows that the party has any such right.

The judgment of the court below is therefore affirmed.


text:
    DEDICATION OF PUBLIC SQUARE.
    [Circuit Court of Hamilton County.]
    Lunkenheimer Co. et al v. City of Cincinnati et al.
    Decided, July, 1902.

      Public Square — Designation of, on Plat — Acceptance of, by Municipality Necessary — Levying Assessment Against, Works an Estoppel —Injunction Will Lie Against Interference with Interest.

    1 Designating on a plat duly recorded a certain space as a “public square” does not vest title in the city, unless such “public square” is accepted by ordinance or some other act.
    2. The levying of assessments against such “public square” for the improvement of an alley abutting thereon estops the city from appropriating the space for public use by accepting the dedication.
    3. Under such a state of facts the plaintiff, owner of property abutting on the space designated as “public square,” has obtained such an interest therein as to entitle him to an injunction against interference with such interest, but not such an interest as to give him title in fee.
    Giffen, J.; Swing, J., and Jelke, J., concur.
    Heard on error.
   The strip of ground in controversy was designated “Public Ground” on the plat of Jesse Hunt, the original proprietor, made in 1807; but the City of Cincinnati never accepted the dedication, if it be such, either by ordinance or other act. On the contrary it levied and collected assessments for the imiprovement of the adjacent alleys upon the plaintiffs and their grantors as the owners of the land in dispute.

The testimony shows that the plaintiffs, about the year 1881, erected and have since maintained valuable and permanent improvements on the premises and have ever since been in the actual, open, exclusive and adverse possession of the same. Prior to that time the possession was not exclusive and adverse, nor does the petition contain any such averment. '

It is claimed that these improvements were made only after obtaining the consent of the city, thereby recognizing its title; but on the contrary its knowledge of the character of plaintiff’s possession together with the fact that it levied assessments against the plaintiffs and their grantors as the owners of the land should now estop it from appropriating the same to public use by accepting the dedication.

P. J. Cadwalader and Ben B. Dale, for plaintiffs in error.

Charles J. Hunt, contra.

We think, therefore, the plaintiffs are entitled to an injunction as prayed for, although not the owners in fee as averred.