text:
    CORPORATIONS — PRINCIPAL AND SURETY
    [Cuyahoga (8th) Circuit Court,
    April 11, 1907.]

      Frank B. Brown et al v. Frank H. Ginn, Assignee.
    1. One Promising to Pay a Definite Sum, Not Surety as to Items Making Up that Sum.
    An officer of a hanking institution who, to secure to the bank the payment of certain sums which he owes to the bank and other sums of the bank’s money which he has loaned illegally, executes an instrument by which he obligates himself to pay to the bank a certain sum, which is the aggregate of a number of items, does not thereby become a surety as to the note of a third party which was one of the items included, and he is not relieved from liability on his own obligation to the amount of the note by the failure of the bank to proceed against the maker of the note upon written notice requesting it so to do.
    2. Corporation Agreeing to Sell Stock of Stockholder for Certain Amount, when Liable.
    A corporation which agrees to sell a stockholder’s stock for him at the same price for which _he is about to sell it through a broker, and which fails to sell it as agreed or give him any notice of its failure so to do, thereby becomes liable to account to him for the sum for which it agreed to sell it.

      3. Assignee of Contract Finishing it for Original Contractor May Compromise.
    The assignee of a contract who agrees to finish the contract, pay , the bills and account for the balance received, after payment of all expenses, may,in good faith, make certain repairs for which the contractor was not legally liable, where by so doing it avoids litigation and is enabled to reach an earlier settlement.
    4. Payments on Claim Not Due Applied to Extinguish Principal and Interest Accrued.
    Payments made on a claim bearing interest, but not yet due, should be so applied as to extinguish a part of the principal and the interest which has accrued on the principal extinguished.
    Error.

      E. J. Pinney and Ford Snyder & Tilden, for plaintiff in error.

      Blandin, Bice & Ginn, for defendant in error.

       Affirmed, no op., Ginn v. Brown, 80 Ohio St. 718.

   MARVIN, J.

The plaintiff in error, Prank B. Brown, was secretary and treasurer of the Arcade Savings Bank Company, which company afterward merged with and transferred all its assests and business to the Euclid Avenue Savings & Banking Company. The defendant in error, Prank H. Ginn, is assignee in trust for the benefit of the creditors of said last named company. On or about December 15, 1893, it was ascertained that Brown had made loans of money of the banking company in a manner not authorized by the directors of the company, and in violation, of his duty as such secretary and treasurer, and for such misuse of the money of the company the bank claimed to hold him personally liable. To partially secure the indebtedness thus claimed by the bank against Brown, he executed and delivered to Henry W. S. "Wood, an officer of said company, his promissory note for $500, secured by mortgage on, certain real estate. Later, and about March 3,1894, upon a further examination of Brown’s transactions with the money of the banking company it was found that the total amount of the funds so misused by him was $21,824.07, which included the $5,000 evidenced by the note hereinbefore mentioned. On the date last named, it was agreed between Brown and the. banking company that he was liable to the company in said larger sum to evidence which he executed to the company a written instrument, reading as follows:

“1894, March 3. To F. B. Brown, Trustee, overdraft $ 3,770.60
To F. B. Brown personal, overdraft 151.05
To interest paid Chase and others since Aug. 3d, 1895............ 801.29
To F. B. Brown, special, after omitting Garson item, $350.00 and Bussell and Bice $200.00 to be hereafter considered .......... 1,349.40
To shortage, as per books........ 10,644.46
To National Street Cleaning Co., overdraft ...........;........ 158.14
To Sterling and Son............. 2,718.28
To W. G. Biehardson............ 179.07
To Keyless Lock Co.............. 349.43
To Philadelphia Dairy........... 1,661.35
$21,824.07
‘ ‘ Cleveland, Ohio, March 3, 1894.
“Due the Arcade Savings Company, twenty-one thousand, eight hundred twenty-four dollars and seven cents ($21,824.07), with interest at seven per cent, from March 3d, 1894. The above is subject to correction of all errors. Items not included in the above and not agreed upon are left for future liquidation.
“(Signed) Frank B. Brown.”

Afterwards Brown agreed with the banking company, that for the purpose of assisting in the payment of the indebtedness evidenced by the instrument last hereinbefore quoted, the bank should take upon itself the completion of certain contracts for street paving in the city of Cleveland, which had been undertaken by J. L. and H. L. Sterling, and which said Sterlings found themselves unable to complete.

Certain laborers and material-men had filed attested accounts against the Sterlings for materials furnished and labor performed in connection with this street paving, and a part of the arrangement between Brown and the banking company was that these attested accounts should be purchased by the banking company and in so far as it exceeded the amount which the banking company was required to expend in purchasing these attested accounts and in completing the Sterling contract for paving should be credited on the indebtedness of Brown to the banking company. This street paving was practically completed in 1894, but by the terms of the contract between the Sterlings and the city a certain percentage of the amount to be paid for the work was to be held until two years after the original completion of the work, to secure such repairs upon the pavements as should then appear as a result of any failure to do all the work as it should have been done in the first instance.

In 1896 the banking company did work upon the streets in connection with this paving, to repair defects which it was required to make under the original contract with the Sterlings, and a large amount of money came into the hands of the banking company for his work of completing the paving contracts. On the part of the banking company, however, it is claimed, that after applying all of the moneys received on the Sterling contracts, in excess of expenditures of the bank in connection with these contracts, there still remained due from Brown to the bank a large amount of money, to recover which, Ginn, as assignee of the Euclid Avenue Savings & Banking Company, brought suit against Brown.

Brown, by his answer, claims that the moneys received on the Sterling contracts were, after deducting all credits to which the banking company would be entitled for expenditures made by it, not only enough to pay all his indebtedness to the-banking company, but should leave a considerable amount which should be paid to him. This necessitated an accounting on the part of the banking company of its receipts and expenditures in connection with the Sterling contracts, and the case was referred to E. S. Cook, Esq., to hear the 'entire case, state an account, and report his findings of law and fact, together with the evidence to the court. This was done, and exceptions were filed both by Brown and the banking company to the report of the referee, and such exceptions were heard in the court of common pleas, in which some of the exceptions were sustained and others overruled, and a judgment entered for a considerable amount against Brown.

To this action of the court of common pleas both Brown and the assignee, Ginn, excepted, and Brown filed his petition- in error in this court, and Ginn filed a cross-petition in error.

The matters brought to our attention on the part of Brown are

First. An item spoken of as the “Richardson notes.”

It appears that among the items included in the obligation entered into by Brown for the payment of $21,824.07 were certain notes made by W. H. Richardson for moneys of the banking company which Brown had loaned to him without authority. These notes amounted to $1,500. They are not mentioned in the twenty-one thousand dollar contract by name, but are included, as appears by the evidence, in the item designated “to shortage as per books $10,644.46.” Brown claims that he has the right to be credited with the amount of these notes for the reason that they were retained by the bank, and after their maturity he served a notice in writing on the bank to proceed to collect the notes, which the bank failed to do or to make any effort to do. Brown says that Richardson was entirely solvent when notice was so served upon the bank, and that if suit had then been brought by the bank against Richardson the amount owing by him upon these notes would have been collected.

His claim for a credit for. these notes, or more properly, a reduction of the amount of his indebtedness to the extent of these notes, is based upon Sec. 5833 Rev. Stat. (Sec. 12191 G. 0.), which reads:

“A person bound as surety in a written instrument for the payment of money or other valuable thing, may if a right of action accrue thereon, require his creditor, by notice in writing, to commence an action on such instrument forthwith, against the principal debtor, and unless the creditor commence such action within a reasonable time thereafter, and proceed with due diligence, in the ordinary course of law to recover judgment against the principal debtor for the money or other valuable thing due thereof, and to make, by execution the amount thereof, the creditor, or the assigns of such instrument, so failing to comply with the requisition of such surety shall thereby forfeit the right which he would otherwise have to demand and receive from such surety the amount due thereon. ’ ’

The court of common pleas held against the claim of Brown in this regard, for the reason that though there is a sense in which Brown may properly be said to have been a surety to the bank for the payment of these Richardson notes, yet he did not undertake in terms to become surety for notes, nor were these notes mentioned in the obligation which he assumed when he executed the twenty-one thousand dollar contract. The Bichardson notes are nowhere mentioned in the contract. Brown took upon himself an original obligation to pay, among other items, an item hereinbefore mentioned, reading: “To shortage as per books, $10,644.46.”

There was nothing in this item to indicate that the Bichardson notes were included, though, as a matter of fact they were included, and so, if Brown had to pay this item, he would doubtless have been subrogated to the rights of the bank , on the Bichardson notes, yet it was an original obligation on his part to pay that entire item. In coming to this conclusion it is not necessary to adopt the reasoning of the court of common pleas entirely, nor is it necessary to adopt the reasoning of the case of Morrison v. Equitable National Bank, 9 Dec. 31 (6 N. P. 7). And, although this remedial statute is to be liberally construed, it requires, as we think, a construction more than liberal to hold that Brown can be said to be in the language of the statute, “A person bound as surety in a written instrument for the payment of money.” He was bound, as principal, for the payment of this entire amount of $10,644.46. If he paid it, as has already been said, he would be subrogated to the rights of the bank in the Bichardson notes but not because he was bound in a written instrument in terms to pay those notes.

The next matter to which Brown takes exception in the judgment of the court of common pleas is connected with 30 shares of the stock of the banking company owned by Brown. These 30 shares,had been pledged by Brown to the Produce Exchange Bank, to whom he delivered a certificate to secure an indebtedness of his to said last named bank.

The certificates for these shares had printed or engraved upon them a statement that they were pledged to the bank which issued them for any indebtedness which such bank might hold against the holder of these shares, and it was claimed on the part of the banking company that it, therefore, had a lien on these shares of stock superior to the lien of the Produce Exchange Bank.

Brown being desirous of availing himself of this stock for the purpose of paying so far as he could his indebtedness to the banking company, negotiated with the Produce Exchange Bank, and it was agreed some time in 1901, between Brown and the last named bank, that upon payment to it of $2,700 the indebtedness of that bank against Brown should be canceled and the stock released. Brown thereupon authorized a brokerage firm in this city to sell the stock, which was worth about 35 per cent, above par. Brown communicated to Stewart, an officer of the banking company, who had charge of its business, the fact that he had made this agreement with the Produce Exchange Bank for $2,700 and that his stock was in the hands of the broker for sale. Stewart told him that the banking company could sell the stock for him and that if he would authorize them tó make the sale, they had a customer who would take the stock at 35 per cent, above par, and that it would be better for him (Brown) to let the banking company make the sale, as he would thereby save the commission of the broker. To this Brown ¡agreed, and the referee finds as a fact, that Brown was never notified that this sale had not been made. Brown says he supposed it had been made, and that he had been credited on his indebtedness to the banking company to the amount of these shares, above the $2,700 for which they were pledged to the Produce Exchange Bank. The feourt of common pleas held against the claim of Brown in this regard. . In this we find error.

We think Brown was entitled to a credit upon his indebtedness to the banking company to the entire amount of these shares at 35 per cent, above par. If the bank had done what Stewart agreed with Brown to do, he would have had the benefit of these shares at the price named. True, $2,700 of the amount would have been paid to the Produce Exchange Bank, so that it would not have come into Brown’s hands, but his indebtedness to that last named bank would have been paid; whereas by the course pursued Brown was left with the indebtedness to the Produce Exchange Bank still upon him. We think Brown had a right to rely upon the banking company making this sale at the stipulated price, or, upon failure to sell, to notify him forthwith, so that he might have made a sale, and failing to give him such notice, as the referee finds was the case, we hold that Brown was entitled, as above stated, to the amount of these shares at 35 per cent, above par.

Another item of the judgment of the court of common pleas complained of by Brown is with reference to 26 shares of stock which Stewart, representing the bank, reported to Brown that he had sold at the rate of 102, and for which Brown was given credit only at the rate of 100. This amounting to $52 should have been allowed to Brown.

Brown further complains that in making up the accounts between, the bank and himself the court of common pleas erred in allowing a credit to the bank of $2,400 paid to Henry W. S. Wood, for superintending the work done by the banking company in the completion of the Sterling paving contracts. The referee had allowed on this claim $2,500. The evidence fairly shows that an agreement was made by the bank with Wood, which agreement was assented to by Brown, that Wood should be paid at the rate of $200 per month for his services in superintending this work. Under the evidence, we think it is fair to say that the entire time spent by Wood in 1894 and 1895 was substantially twelve months, and we affirm the judgment of the court of common pleas on this item.

Another item complained of by Brown is that there was ah lowed to the bank $525 for work done in connection with the finishing up and completing the repairs of the pavements in 1896; it being claimed on Brown’s part that to this extent (that is $525) this work was rendered necessary by injury to the pavements done by the city in putting in sewers and other improvements and therefore the Sterlings would not have been bound, and therefore the banking company was not bound to have made these repairs. From the evidence, it seems reasonably clear that Brown’s claim in regard to this fact is well founded, but it appears further that there was a considerable amount of money due from the city on these contracts. That to get this money without litigation with the city the bank was compelled to do this work, which really should have been done by the city. As a matter of fact the bank did make the expenditure, and, as we think, was fairly justified in making it rather than to be at the expense of litigation with the city, and to be out the money which was owing upon the paving contracts. That being so, the banking company might well have yielded on this point rather fhan to have been at the expense of litigation with the city, and it was really in the interests of Brown himself. "We find no error in the judgment of the court of common pleas in this regard.

By his cross-petition in error the assignee raises the question of whether the court of common pleas was right in its holding in reference to a claim against one George Worden, trustee. The facts in connection with this claim as found by the referee are somewhat complicated, but from them we conclude that Worden, acting as a trustee for the bank, received money which should have been applied to the completion of the Sterling contracts, a part of which was not thus applied, and to the extent that it was not so applied, the bank and not Brown should be the loser; that is, that Brown should be entitled to a credit for the amount of such excess. We concur, therefore, in the finding of the court of common pleas in this regard, and if it becomes necessary, in order to ascertain this amount, to re-refer the case, it will be done. It 'is probable, however, that the parties can, upon this finding, agree upon the amount thus to be charged to the bank.

Another matter complained of is the one of applying credits given Brown in the accounting. The instrument for twenty-one thousand dollars and over sued upon is spoken of as a due bill, and but for the arrangements made subsequent to the execution and delivery of the instrument, was due and payable forthwith, that is, upon demand, and so to the extent that payments were made upon it prior to the contract between Brown and the banking company in reference to the Sterling contracts, whenever a payment was made upon it in excess of the interest which had accrued at the time of such payment, it was proper to add to the principal indebtedness the interest which had thus accrued at the time of such payment and then deduct therefrom the payment and compute interest on the balance at 7 per cent, until the time of the next payment. But, after the arrangement was made in reference to the Sterling paving contracts, the effect was to postpone the time when the dividend evidenced by this contract matured, and, as no interest would become due until the maturity of the principal indebtedness, it was not proper to pursue the course which was proper to pursue prior to the making of the agreement with reference to the Sterling contracts. Therefore, the payments should have been applied in reduction of the principal and the interest which had accrued upon such amount of the principal as was then paid. That is to say, if the payment was made of $535 at the end of one year, $500 of such payment should have been allowed in reduction of the principal and the remaining $35 should have been applied in payment of the interest which had accrued on the $500 of principal. In short the rule should have been adopted which is given in Miami Export Co. v. Bank of the United States, 5 Ohio 260; the third clause of the syllabus reads:

“Payment made on an installment bearing interest, but not due, should be so applied as to extinguish a part of the principal and the interest which has accrued on the principal extinguished.”

On September 29, 1894, subsequent to the ■ giving of the twenty-one thousand obligation, Brown gave another note which reads:

‘ ‘ 6933.46 Cleveland, Ohio, Sept. 29, 1894.
1 ‘ On demand after date, I promise to pay to the order of the the Arcade Savings and Banking Company, six thousand, nine hundred and thirty-three dollars and interest at 7 per cent.
“Value received. F. B. Brown.”

This note was not for an additional indebtedness, but as a further security for the indebtedness evidenced by the twenty-one thousand dollar contract. To the extent of this note 7 per cent, was to be paid on the indebtedness, even though a part of this note may have been made up of the interest which had already accrued, and to the extent that this requires a modification of the rule already stated in reference to the computation of interest, it will be modified, and not otherwise.

In this case we feel this court should proceed to enter a judgment which should have been entered in the court below, and when the proper computations shall have been made and accounts stated as indicated in this opinion, such judgment will be entered here.

Winch and Henry, JJ., concur.


source: Caselaw Access Project

author: SWING, J.

license: Public Domain

text:
    CONTRACTS — PRINCIPAL AND AGENT — SALES.
    [Hamilton (1st) Circuit Court,
    July 17, 1909.]
    Giffen, Smith and Swing, JJ.

      National Bed Co. v. Charles M. Bates.
    Uncertainty of Goods to be Sold, Defect in Contract for Sale of Goods Precluding Recovery of Commissions.
    An agreement to purchase during a designated period a stipulated amount in money’s worth of certain kinds of goods, the exact goods to be agreed upon within the period specified, does not amount to a contract in which the legal relations between the parties are determined and recovery for commissions maintainable until the agreement is reached as to the exact goods to be purchased.
    Error.

      Charles McCamic and F. H. Williams, for plaintiff in error.

      Charles B. Wilby and Mitchell Wilby, for defendant in error.

       Affirmed, no op., Bates v. National Bed Co., 86 Ohio St. 330.

   SWING, J.

This cause is in this court on error to the judgment of the superior court. In that court Bates brought an action to recover commissions on a contract for the sale of goods made by the bed company. Bates sold the goods of the bed company in Cincinnati and Kentucky.

Bates alleged in his petition that the bed company agreed to fill all orders for its goods procured by him and accepted or approved by the bed company. He further alleged that he procured certain contracts which were accepted and approved by the bed company, but that the bed company violated its contract with him, that it discontinued making the goods and that it refused and still refuses to ship and deliver the good sold by him.

. Bates sets out in his petition the several sales made by him under his contract with the bed company. He alleged “that according to the terms of his agreement with the defendant he was to receive on the invoice price of all good that were shipped, less the freight, a commission of five per cent, except where a reduction was made in the price and in the commission by special agreement. ’ ’

Bates sets out in his petition thirteen sales or contracts of sale which he had procured for the bed company. At the end of each he alleges, “wherefore there is due to the plaintiff by the defendant as his commission on said order the sum of $.......” He alleges that no part thereof has been paid, and prays for judgment for the total sum alleged to be due.

The bed company answered alleging that by the terms of the contract between it and Bates, Bates was to be paid commissions on goods that were actually shipped, and that on all goods actually shipped Bates had been paid his commissions. It further denied that it made contracts as severally alleged to have been made in the petition.

It is practically agreed that the contract made between the parties was that Bates was to be paid his commission ‘ ‘ on goods actually shipped,” and that he had been paid his commissions on all goods that have been actually shipped. The present action is one for commissions and not for damages for a breach of contract.

It would, on principle, necessarily seem to follow that Bates can not recover in this action. He has been paid all the commissions he has earned under his contract. If the bed company had violated its contract, Bates in a proper action and under proper allegations and proper proof would be entitled to recover whatever damages he proved he had sustained, and certainly what he would receive as commissions would be very strong evidence to prove the amount of the damage, but by the very terms of his contract he can only recover commissions on goods that are actually shipped, and as he sues for commissions and not damages he can only recover for commissions.

Are the contracts alleged to have been procured enforcible contracts? The following is the contract of the Queen City Tin Ware Company:

‘1 Gentlemen — Kindly enter our contract for $20,000. Gray two coat white lined first quality like samples submitted, we to have control of this ware in our city, Newport and Covington private label, specifications to follow. Contract expires November 5, 1907. Discount, 80, 7% per cent, freight allowed to our city. Dated November 5, 1906. Queen City Tin Ware Co., O. D.”

As a part of this contract the following is added: “Goods to be taken out as wanted.” All the other contracts are of similar import. In considering this question the surrounding circumstances should be taken into consideration in order to understand the intention of the parties.

The bed company was a manufacturer of enameled ware, such as coffee pots, pans, etc., making over five hundred different shapes and patterns. The parties with whom the alleged contracts were made were wholesale and retail dealers, selling their wares every day. The questions involved as to the nature of this contract were fully and ably argued by learned counsel on either side, orally, and this has been supplemented by able and elaborate briefs in which the authorities are cited at length. We may say that the authorities have not been uniform, but it will not be our purpose to distinguish them or in fact to cite any of them, but after a careful consideration of them to state our conclusions.

Judge William Markby, in his concise and profound work, “Elements of the Law,” gives this definition of a contract:

“A contract is the concurrence of several persons in a declaration of intention, whereby their legal relations are determined.”

It may be said that it is of the highest importance to the business interests of our country, that when parties enter into a contract, the contract should be enforced where the intent of the parties can be ascertained, but tested by the definition given by Judge Markby, .what is the declared intention of the parties whereby their legal relation is determined? These contracts were to run one year. It was an agreement to take so many dollars worth of ware within this time, as wanted, and as specified. The specifications might include over five hundred. The party agreeing to purchase might want the articles at any time within the year. The bed company was a manufacturer of these articles, and of course it could not know what particular bind of goods the purchaser would want or when he would want them. The articles were not in existence at the time the agreements were made.

This agreement must be read in the' light of the business that each was engaged in. The dealers were engaged in selling their goods daily and the manufacturer made the goods for daily consumption, and yet by the terms of the agreement the purchasers were not bound to take any goods until the last day of the year, and until that time he was not bound to specify what kind of goods he would take and the manufacturer could not know what particular kind of goods should be made so as to fill the . order when it came, if it should come on the. last day of the contract.

It follows, therefore, that the particular goods to be purchased were not known to the parties at the time the agreement was made, and were not a part of the agreement, and as to this the concurrent declarations of the intentions of the parties had not been made; but it is clear that it was not the intention of the parties that the agreement contemplated that the provision in the agreement that the goods could be ordered as wanted and as specified, up until the last day of the year, and yet such is the exact reading of the agreement. It would seem manifestly unjust and contrary to the intentions of the parties that the purchaser could on the last day of the year send in an order for particular goods, and if the order were not filled, recover damages for a breach of the contract. That this was not the intention of the parties seems clear from the way the business was carried on and the correspondence between Bates and the bed company.

As we read this contract it amounts to "this, that it was an agreement to purchase during a certain period a certain amount in money’s worth, of certain kinds of goods, the exact goods to be agreed upon within that time, and that until the agreement was reached as to 'the exact goods to be purchased there was no contract in which the legal relations between the parties was determined.

Judgment reversed,

Smith, J., concurs.

Giffen, J., dissents.


author: GIFFEN, P. J.

text:
    CORPORATIONS — PLEADING
    [Hamilton (1st) Circuit Court,
    February 5, 1910.]
    Giffen, Swing and Smith, JJ.
    State ex rel. Henry T. Hunt, Pros. Atty. v. Union Gas & Elec. Co.
    Allegations as to Discrimination for Electric Current Rates Insufficient without Alleging Injury to Customers.
    Mere discrimination by a public service corporation without substantial injury is not necessarily unlawful; hence, allegations will not lie as to discrimination in rates charged for electric current, when made without regard to circumstances and conditions or any averment that consumers are unfavorably affected thereby.

      Miller Outcalt, Lawrence Maxwell and J. S. Qra/ydon, for defendant.

      Henry T. Hunt, Pros. Atty., for plaintiff.
   GIFFEN, P. J.

The defendant, a corporation under the laws of Ohio, exercising the rights- and privileges in the city of Cincinnati, and engaged in supplying gas to the inhabitants thereof, and also electric current for light and power, was charged in the petition, with discrimination in the matter of rates, which the petition alleged were not uniform but are based on whim, favor and caprice ; and the court was asked because of the discrimination so practiced to oust the company from its rights and franchises.

It is charged in the petition that—

“The defendant discriminates in the price charged and exacted from the users and consumers of its product, basing said prices in multitudinous instances not upon the cost of service, but upon various other irrelevant and unlawful facts, circumstances and conditions:
‘ ‘ 1st. It charges a less rate per kilowatt for electric current used for power than for electric current used for light. ’ ’

There is no averment that the rate charged for electric current used for light is unreasonable, nor is there any averment of other facts tending to prove that the discrimination is unjust or unlawful. On the other hand the very difference in the conditions suggests a discrimination in rates, and the burden of alleging and proving its illegality rests upon the relator.

‘12d. It charges rates based on the average consumption of electric current per 16-eandle-power lamp possessed and available by the said users and consumers, and not upon the actual amount of current consumed.”

The objection to this discrimination is, like the first instance, based on the theory that the rate should be uniform, regardless of conditions. If one consumer has available ten times as many lamps as another, but they both use the same number, it is manifest that the additional expense of preparing for the unused lamps should be borne by the customer causing it. Hence the actual amount of current consumed is not the true and correct basis for fixing rates, Under the circumstances and conditions are similar.

“3d. It charges such users and consumers as have access to other sources of supply, a less rate per kilowatt consumed than the rate per kilowatt charged to users and consumers as have not access to other sources of supply. ’ ’

There is no averment that the rate charged to the latter class is unreasonable, nor that the discrimination in favor of the former class is unjust to the latter, nor of facts warranting such inference. It is manifest that this discrimination is based upon competition, which is a proper element to be considered in fixing rates, although by no means conclusive. If the discriminating rate will tend to ereate a monopoly by excluding from the market the products of the competitors of the favored class it is not justifiable, even though defendant could not otherwise secure the custom. State v. Cincinnati, N. O. & T. P. Ry., 47 Ohio St. 130 [23 N. E. 928; 7 L. R. A. 319].

The same objection applies with equal force to paragraphs four and five of the petition, and assailed, by the motion of the defendant, which in effect is, that the pleader assumes the only correct basis for determining the rates to be charged is the amount of current consumed, without regard to circumstances and conditions, and whether or not injuriously affecting consumers. The question whether the charges of a public service corporation are unjust and unreasonable, and whether they unjustly discriminate, often depends upon a variety of circumstances, making it complex and difficult of solution, as shown by the exhaustive discussion in the case of Scofield v. Railway, 43 Ohio St. 571 [3 N. E. 907; 54 Am. Rep. 846].

It is apparent from that case, as well as others following and approving it, that mere discrimination without substantial injury is insufficient to make it unjust and unlawful, but the facts showing such injury must be averred and proved.

We are of the opinion, therefore, that the motion to strike out certain paragraphs of the petition should be sustained.

Smith and Swing, JJ., concur.


author: TAGGART, J.

text:
    QUO WARRANTO — RAILROADS
    [Holmes (5th) Circuit Court,
    November, 1909.]
    Taggart, Donahue and Voorhees, JJ.
    State ex rel. Simpson, Pros. Atty. v. Pennsylvania Co. and Cleveland, A. & C. Ry. State ex rel. Simpson, Pros. Atty. v. Baltimore & O. Ry.
    1. Quo Warranto Instituted by Prosecuting Attorney to Oust Railway Relief Association.
    A prosecuting attorney may institute and prosecute an action in quo warranto to oust a railway relief association which it is alleged has been organized and is being conducted in violation ' of the laws of the state.

      2. Power of Legislature to Restrict Railway Relief Associations.
    Tlie general assembly has power to enact proper restrictions with reference to the character of relief associations which railway companies may maintain or assist in maintaining, and the requirement as to such relief associations contained in Sec. 3270 R. S. (Sec. 8746 G. C.), as amended (99 O.L. 71) is not violative of any constitutional provision.
    These actions were brought by the prosecuting attorney of Holmes county for the purpose of ousting certain railway relief associations organized and maintained by or under the control of the defendant companies. The allegations were that the employes of these companies, as a condition of their employment, are required to sign a contract which makes them members .of the relief association and contains the conditions of a policy of insurance, though the relief ássociations are not organized under the insurance laws or for the protection of said employes; and that said contract contains the provision that the employe signing it thereby waives any claim for damages on account of personal injuries or death, contrary to the provisions of See. 3270, R. S. (Sec. 8746 G. C.), or of the insurance laws of the state.

      David T. Simpson, Pros. Atty. and F. S. Monnett, for plaintiff.

      Cary & Mullins, for Pennsylvania Co.

      Allen, Waters, Young & Andress, for Cleveland, A. & C. Ry.

      Arrel, Wilson & Harrington and Geo. W. Sharp, for Baltimore & 0. Ry.
   TAGGART, J.

This cause was submitted to the court on motion of the Pennsylvania Company to require the plaintiff to make its amended petition more definite and certain in respects stated and set out in said motion.

We are of the opinion.'that this motion must be overruled, as the averments of the petition in our judgment are sufficient to maintain this action, in that the petition sets forth that the Pennsylvania Company has established and still maintains and has assisted in establishing and maintaining a certain relief association, or society, commonly called Voluntary Relief Association,, which require of its employes to enter into contracts, agreements or stipulations, which are contrary to the provisions of the statutes, provisions of See. 3270 R. S. (Sec. 8746 G. 0.), as amended April 7,1908, 99 O. L. 71, 72.

We think the petition with certainty and definiteness informs the defendant filing this motion what is asserted and claimed against it.

The motion may be overruled with exceptions and with leave to file a demurrer.

The Cleveland, A. & C. Ry. filed a demurrer to this amended petition. The grounds of the demurrer are:

1st. That the plaintiff has no legal capacity to sue.

In respect to this we think that the clear provisions of the statutes authorize the plaintiff as prosecuting attorney to institute and prosecute this character of cases.

It is further contended, as a second ground of demurrer, that the amended petition does not state facts sufficient to constitute a cause of action on the grounds that said See. 3270 R. S. as amended April 7, 1908, is unconstitutional and void.

We are of the opinion that it is entirely competent for the Legislature to place proper restriction upon a corporation, such as a railroad company, in respect to its conduct and operation, and the character of relief associations that it maintains or assists in maintaining, and that it is not violative of any of the provisions of the Constitution.

The third ground of demurrer is that there is a misjoinder of parties defendant.

The provisions of the statute are, that a railroad company may establish and maintain or assist in establishing relief associations, but they are not permitted to maintain or assist in maintaining relief associations having certain specific rales and regulations. It is averred in this petition that both of the defendants are engaged in maintaining such relief association's, and that there is such unity of action and consort of parties that would bring the case w’ithin the provisions of the amended section.

We are of the opinion that the demurrer to the amended petition should be overruled with exceptions. The defendants are given thirty days to answer herein, and the plaintiff thirty days thereafter to reply.

The same holding and judgment may be entered in the case of the State ex rel. v. Baltimore & Ohio Ry. And the same rule for answer made therein.

Donahue and Voorhees, JJ., concur.


author: MARVIN, J.

text:
    CONTEMPT OF COURT — WITNESSES
    [Cuyahoga (8th) Circuit Court,
    November 18, 1908.]
    Marvin, Winch and Henry, JJ.
    Addie Sutter v. State of Ohio.
    Incrimination Question for Witness and Court can not Commit for Contempt.
    Inasmuch as the witness, and not the court, is the judge as to whether the answer to a question would incriminate him, the court is without jurisdiction to commit him for contempt in refusing to answer; but a witness who does not act in good faith in giving such a reason for refusing to answer may be subjected to the penalties for perjury.
    Habeas Corpus.

      O. W. Broadwell, for petitioner.

      W. E. Carey, Assistant Pros. Atty., for respondent.
   MARVIN, J.

We reach the conclusion now which was indicated by what was said from the bench this morning. In doing so, we are not unmindful of the fact that outside of the state of Ohio a different conclusion has been reached by the highest courts in a great many other jurisdictions, but we think, in Ohio, in the case to which attention was called this morning, being that Warner v. Lucas, 10 Ohio 336, the exact question we have here is decided. This is upon the assumption that the allegations of the relator here are true, and that she refused to answer on the ground that it would incriminate her, and we understand it to be conceded that this is the ground upon, which she refused to answer certain questions put to her, theréfore making the case very similar in character to the one above cited.

It is said, however, that the question involved here was not necessarily involved in, that case. It is true that case was a suit for damages, but it is further true that counsel in the case, Benjamin F. Wade and Rufus P. Ranney, for the plaintiffs in error, and E. Wade, Joshua Giddings and Hugh Chaffee, of counsel for the defendants in error, in briefs on, both sides, discussed this question, and on this point, and called the attention of the court to authorities, and then the court, in passing upon, it, and discussing the case, said that two questions seemed to be¡ involved in the present inquiry, the first being: “Was the decision of the- magistrate that the witness ought to testify' so conclusive as to render his silence inexcusable and thus to authorize a suit against him for falsely and wilfully refusing to give evidence ? ’ ’ But as to the second branch of the ease, the court says:

“It seems to be supposed that if the witness is in the last resort, the exclusive judge of what will be the tendency of his answers to certain questions, that this not only protects him from giving testimony, but protects him also from a suit, the object of which is to show that his refusal was without foundation, that it was both wilful and false. It is supposed in other words, that the decision of the witness is without appeal, not merely on the trial where he is offered, but in any future proceeding which may be set on foot for the purpose of elucidating the truth. Such, however, does not appear to me to be a fair inference; and the protection which is thrown around the witness as such,' is rather a reason why he should be subjected to an action if he has abused that privilege.”

And so here that would be true if she has abused the privilege extended to her.

The court, in discussing the question which we have here, uses this language :

“The rule laid down on the trial of Col. Burr, 1 Rob. 242, was the first attempt to give a clear and detailed exposition of the practice of the court as to the first branch of the inquiry. It is there declared, that ‘it is the province of the court to judge whether any direct answer to the question proposed, will furnish evidence against the witness.’ The rule had before been laid down, in general terms, that the witness is himself to be the judge, and it is difficult to perceive how the court can be the judge, if the bearing of the testimony which is sought to be disclosed is a secret locked up in the bosom of the witness, and if to give a reason why he declined to testify, should have the effect of partially revealing that secret. The court can only be enabled to judge when it understands the situation of the witness. To understand that, may require a disclosure from the witness of his reasons for withholding his testimony, and yet in giving these reasons he may furnish a necessary link in the chain of testimony against himself. The rule laid down in the ease of Col. Burr, therefore, must not be considered as one of universal application, because there may be cases in which the court are absolutely unable to judge. But the rule was undoubtedly correct in that particular ease; for the witness did voluntarily give his reasons for refusing to testify.”

Then follows a statement of the particular matter upon which the witness was asked to testify, and in this language, quoting from-the Burr case: “It was held that he might testify; the court did decide that he must testify.”

Later on, still quoting from the Burr case, the court uses this language: “If the answer may disclose a fact, which forms a necessary and essential link in the chain of any testimony, which would be sufficient to convict the witness of any crime, he is not bound to answer it.” “In such a case, the witness must himself judge what his answer will be, and if he say on oath, that he can not answer without accusing himself, he can not be compelled to answer.”

Our own Supreme Court, in the case of Warner v. Lucas, supra, after making this last quotation from the ease of Col. Burr, says:

“That is, inasmuch as it is impossible for the court thoroughly to understand the situation of the witness or to comprehend the bearing which his testimony may have on his past actions and conduct, he must necessarily, in the last resort, be the judge himself what will be the effect of that testimony. ’ ’

In view of this holding by our own Supreme Court, we reach the conclusion here, that the judge before whom the relator refused to testify, and by whose orders she was committed to jail, was without authority to commit her, after her statement, that to give answers to the questions propounded would tend to criminate herself; that she, and not he, knowing what the answers to the questions must be, was the final judge of what the effect of such answers would be.

It must be remembered that this witness was under oath when she gave as a reason for not answering the questions, that she believed the answers, if given, would tend to criminate her, to furnish' evidence, under which she might be convicted of a crime. If so, while under oath, her statement that she believed her answers' would thus tend to criminate her, she told what was not true, she committed perjury, and if she were to be indicted for perjury, for having so stated, and it could be shown that she was not acting in good faith when she made the statement, and that she had no reason to' believe that her answers would tend to criminate her, there can be little doubt that she could be convicted of perjury; so that notwithstanding the witness is permitted to judge for himself at the time he refuses to answer questions, whether the answers would tend to criminate him, he is not relieved from the consequences of so stating, if the statements can be proved to be false.

In view of the provisions of Sec. 5729 R. S. (Sec. 12165 G-. C.), which reads as follows:

1 If it appear that the person alleged to be restrained of his liberty is in custody of an officer under process issued by the court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ is allowed; or if the jurisdiction appear after the writ is allowed, the person shall not be discharged by reason of any informality or defect in, the process, judgment or order,” we could not release the prisoner here without first finding that the court ordering her commitment was without jurisdiction to make the order; that is, that it had no authority to order and determine the question of whether she was acting in good faith in thus refusing to answer. Holding as we do, however, that the witness and not the court, was the judge in this matter, we are of the opinion that the court was without jurisdiction. The result necessarily is that the prisoner must be discharged, and it is so ordered.

Winch and Henry, JJ., concur.

       Affirmed, no op., Sutter, In re, 80 Ohio St. 711.


author: KINKADE, J. KINKADE, J.

text:
    MASTER AND SERVANT — PLEADING—VERDICT.
    [Lucas (6th) Circuit Court,
    December 4, 1909.]
    Parker, Wildman & Kinkade, JJ.
    John C. Carland et al v. John Feller.
    1. Testimony as to Incompetenoy of Fellow Employe Inadmissible without Averment Negativing Knowledge of Incompetence or Dangers of Work.
    In an'action by an employe for injuries received in the course of his employment, testimony as to the incompetency of a fellow employe whose negligence caused the accident or as to failure of the master to provide any rule for carrying on the dangerous work in which they were engaged, is admissible where there is no allegation in the petition to the effect that the plaintiff did not know the work was being carried on without any rule for its conduct, and did not know or have equal means with the master for knowing of the alleged incompetence.
    2. Verdict not Supported by Evidence when Negligent Employe not Shown to have Authority to do Act Causing Injury.
    A verdict for damages for injuries resulting from the premature firing of a blast is not supported by sufficient evidence, when there is an entire absence of any evidence that the man who pulled the lever which caused the discharge had ever been given .any authority so to do, or that it was known on the work either "by the master or fellow employes that he was in the habit of «o doing.
    Error.
   KINKADE, J.

This case is in this court for the third time. At the first trial of the case a verdict was directed for the defendant on'the motion of the defendant, and error was prosecuted to that action of the court below, and that judgment of the court of common pleas was reversed for two reasons: first, for excluding evidence relative to whether the company had or had not a rule governing how the work should be done; and, second, for having directed the verdict. That went to the Supreme Court and was dismissed in the Supreme Court, as we understand, on the ground that the plaintiff in error did not file a supersedeas bond. The case was retried in the common pleas court and a verdict of $5,000 recovered by the plaintiff. That case came to this court on error and was affirmed by a majority of the court; then proceeded to the Supreme Court, and was reversed and remanded. The case was again tried and the plaintiff recovered $10,000, and that is the case now here in which the plaintiff in error, Carland & Company, seeks to reverse the judgment of the court of common pleas.

The record is not long; presents less than 100 pages. It would not be accurate to say that the court had committed 100 pages, but it would be entirely accurate to say that all the members of this court are so familiar with every page of the 100 pages that we eould stand any kind of an examination on this record. We have read the whole evidence and read it with care. The plaintiff in this case sought to recover principally upon two grounds: First, that the defendant had employed and kept in their employ a man by the name of Pete Eekebaum who was entirely incompetent to do that which he was employed to do; and second, that the company had no rule directing how this dangerous work of blasting should be done, and consequently that they were negligent in that regard. The petition and the supplement to the petition contained the allegations of course that no notice was given, when notice should have been, given before the blast was fired and so forth, and sets up also the insufficiency of force that the defendant had employed, and other things, but the principal grounds relied upon for the recovery and submitted to the jury at the time of the trial in the court below were the known, incompetency of the employe, Pete Eckebaum, and the failure to have any rule.

It will be observed upon reading this petition that neither the petition nor the supplement to the petition states that the plaintiff, John Feller, did not know of the incompeteney of Eekebaum, nor does it state that he did not know that the company had no rule, nor does it state that he had not equal means of knowing with the employer. Our attention has not been called to this feature of the case by counsel, but in examining the pleadings we notice this to be true. We also notice in the record that when evidence was offered to prove that the company had no rule, that it was objected to and was admitted over objection. The court is unanimously of the opinion that the evidence was not competent; there being no allegation in, the petition or the supplement to the petition that the plaintiff did not know this fact, and the evidence being objected to when offered, the court is unanimously of the opinion that that evidence was not competent and should not have been admitted, and that no recovery should be based upon that feature of the case.

We then come to the question of the incompetency of the man Eckebaum. It must be conceded that there is some evidence in the case tending to show the ineompetency of Eckebaum, to wit, the statements of witnesses that he did not always at first understand what was said to him, and that at times they would have to tell him once or twice or more before he would distinctly understand what he was to do; and also the statement' of Mr. Brenkamp that on the day of the accident he called to him as he was about to throw the lever, admonishing him not to throw it because it would result in injury to the men who were in the cut and were not prepared for the blast to be fired, which he did not hear, or if he did hear, apparently paid no heed to. Of course, it is possible that it may have been said at such a time as that he could not heed it, that he had not time to comprehend it before he threw the lever; may have been said simultaneously with the throwing of the lever; but a fair construction of the evidence is that it was prior to that and no heed paid to it. So there was some evidence to submit to a jury on the question whether this man was incompetent to do that class of work.

The serious question in this case is whether this man was when doing that particular act inside or outside the scope of his employment. Counsel realize that, and the question has been presented to us with force, not only in argument but in the briefs, and as I have said, we have examined the record with great care in that regard. I am not going to take the time to go through the record in detail, but I will state our conclusion of what this record states unmistakably in, some respects. In the first place, there is not a syllable of testimony in this record anywhere that anybody ever told Pete Eckebaum to pull a lever; not a syllable. All there is on the subject in the record is practically to the contrary. When witnesses are asked whether any instruction was given to Eckebaum or to Flynn as to what Eckebaum should do, they say no instructions. It is conceded that Mr. Flynn was an entirely competent blaster; had worked for years, perhaps eight or ten years at the business, and was competent in every regard to do everything connected with the blasting. This man Pete was sent to-him by the superior of Flynn as a helper, without any instructions as to what his duties should include. Mr. Flanagan says he gave Flynn no instructions, and he gave Pete no instructions as to what he should do. He sent him to Flynn because Flynn asked for him and he worked there some months, perhaps four months all told, with Mr. Flynn and the predecessors of Mr. Flynn in the blasting situation. As I have said, the record contains not a syllable from anybody that anyone ever heard Flynn or any other person tell Eekebaum to pull a lever. So that if Eckebaum was authorized to pull the lever at the time and pulled it, it must be determined from the course of conduct in which he was engaged. Of course, it will not be contended that he might not have been authorized otherwise than by direct instructions to pull the lever, because if he was continually, or very frequently, pulling the lever, the jury might have a right to infer that somebody had instructed him, although no one could say in behalf of the plaintiff that anyone had so instructed him.

There being nothing in the record to the effect that anybody ever told Eekebaum to pull the lever, we are brought to the question whether his conduct indicates that he was in the habit of pulling the lever or firing the blast, and in this regard it is said in the brief of counsel for defendant in error that the record clearly shows that Pete Eckebaum was in the habit of pulling the lever and firing the blast. It may be said that no one can find a syllable in this record, other than the single statement on page 23, touching this subject. On that page of the record, this question is put to Mr. Brencamp, who was a driller and who was the man who said to Pete, “For God’s sake, don’t fire, you will kill somebody,” or words to that effect. This quesion was put to Mr. Brencamp:

“Did you see this man Pete operate the lever to the battery prior to the day on which the blast was fired that injured Feller ? A. Yes, sir.”

That is the sum total of all there is in this record to show that Pete ever fired the blast prior to this, time, and it will be observed that this question does not inquire of Brencamp whether he ever saw Pete pull the lever and fire the blast; it does not inquire when he saw him pull the lever, whether one, two or three months before; it does not inquire what happened when he pulled the lever; it does not inquire whether he was immediately censured; it does not show but what he may have been immediately censured or admonished never to do it again, and it does not show that this pulling of the lever fired the blast. The language is limited, and exceedingly limited:

“Did you see this man Pete operate the lever to the battery prior to the day on which the blast was fired that injured Mr. Feller! A. No, sir.”

We think that the evidence falls very far short of establishing the necessary fact that this an Eckebaum had been in the habit of firing the blast at that quarry such number of times as that his employer must take cognizance of the fact that he was acting outside of the scope of his employment. It does not, we think, establish the fact that the scope of his employment included that duty. The plaintiff for some reason saw fit to press this inquiry no further, to make it no more definite, and the defendant left it as the plaintiff had left it; and that is the sum total in this whole record indicating that Pete ever fired the blast before, and it does not even state that he did ever fire the blast before.

Now when this case was submitted to the jury, the jury were handed by the court certain interrogatories, and the first interrogatory reads as follows: “Was the stringing of wires, attaching the same to the electric battery, operating the lever and firing the blast within the scope of Pete’s employment; that is to say, such as he, Pete, might in the absence of any instructions reasonably be expected or permitted to do or perform in his services as a helper to Flynn?” and the jury answered “No”; and we think that the absence of any proof in the record other than this one indefinite statement, taken in connection with this special finding of the jury, that in the absence of express directions, it was not within the scope of his authority, clearly and definitely settles that this man Pete Eckebaum was acting at the time he pulled this lever entirely outside the scope of his authority. It seems to us that no other conclusion can be reached, and we feel that the subsequent finding of the jury in answer to interrogatories two and three, first in answer to two, that he was incompetent, and second, that it was known to Flanagan, are immaterial in the case.

I may say in this regard to certain other errors that have been alleged. The plaintiff in error here contends first that a verdict should have been directed at the close of the plaintiff’s evidence, and not securing that, it should have been directed upon the motion that was made at the close of all the evidence, and that not having been done, a judgment should have been entered for the defendant notwithstanding the verdict on the coming in of this special finding, for the reason that the special finding is entirely inconsistent with the general verdict, can not be reconciled with it, and must be a controlling a factor in this ease, and that that motion should have been granted. ¥e were also cited to certain requests which were refused, being 6, 8, 13, 28 and 29.- We have considered the other items of error, but in view of the conclusion we have reached we have determined to express no opinion upon any error in this case except one. If the ease should proceed to the Supreme Court and our conclusion should there be reversed, it might be back here for us to pass on the errors not passed on now.

I will say this generally that it is the unanimous opinion of the court that this verdict should be reversed as being against the weight of the evidence as shown by this record.. That is the opinion of a majority, that the court below should have granted a motion for the judgment notwithstanding the verdict and entered a judgment in behalf of the defendant; and this being the conclusion that the court has arrived at, we think it is the duty of the court here to enter the judgment that the court of common pleas should have entered, and that will be a judgment in behalf of the defendant.

Wildman, J., concurs.

Parker, J., dissenting.

As has been said by my associate' in announcing the judgment of the majority of the court, we have agreed that the general verdict is against the weight of the evidence, but I am not in accord with my associates upon the proposition that a final judgment should be entered against the plaintiff below, the defendant in error. I believe that such a judgment should not be entered against the plaintiff, if it can be found by a search of the record that there is a scintilla of evidence tending to support the general verdict, and also where the record is such that the special findings of fact may stand. In my judgment the special findings of fact may stand in harmony with the general verdict here and still leave a scintilla of evidence in support of the general verdict upon the material issued that has been discussed by my associate as to the authority of Pete in the premises, or as to whether Pete was acting within the scope of his authority in firing the blast. We all agree, I believe, that this first interrogatory and the answer to it, do not, standing alone, require a judgment non obstante veredicto; that the question and answer are not sufficiently comprehensive to effect that purpose; but the question and answer may be construed as meaning simply that within the ordinary scope of his powers, such things as he might reasonably be expected to do as a helper, in the opinion of the jury, would not include this particular thing of firing the blast, still leaving open the question, which was a question upon the trial, a question which has been discussed before us, as to whether Pete might not still have been acting within the scope of his duty in obeying a direction from Flynn to fire the blast.

Now I believe with my associates that this record as it stands is against the weight of the evidence on that proposition. We think it is not fairly established by the whole evidence: First, that Pete was acting under some special direction from Flynn, and secondly, that Flynn was authorized to give that special direction, that it might be reasonably expected or anticipated by the company that Flynn would direct Pete to do that class of work, or to do that particular thing. And yet in my judgment there are circumstances in the ease indicating that Flynn had authorized the firing of blasts by Pete, and that Flynn was not being regarded by the company as violating his duties to the company in thus directing or permitting Pete to fire the blast; and believing that there is a scintilla at least of evidence upon that, subject to support that contention, I can not concur in the judgment denying him a right to have his case retried in the common pleas court. In this respect the record is substantially as it was before, but because of the answer of the jury that it was not within the general scope of Pete’s authority, merely as a helper, the record is considerably different than the record had under ground upon which their might be a recovery notwithstanding the special finding in answer to the interrogatory No. 1.

Now as to Pete’s ineompetency, the jury have answered that he was incompetent; but before I go to that I wish to remark this upon the subject of the helper. Péte'was employed in and about this work to do various things that might be described as rough work. From time to time as the predecessor of Flynn called for an assistant about the shooting, Pete assisted him; from time to time after the operation of shooting devolved upon Flynn, and when Flynn desired a helper, Pete would leave his other work of ditching, carrying ties, or whatever he may have been doing in fiis work, and go to the assistance of Flynn. He had other duties to perform, and perhaps his other general duties outside of assisting Flynn required as much or more time of him than was devoted to his assisting Flynn.

It does not appear from this record that by the company or any one in authority the duties of the helper were defined; that the duties of the helper were in any way circumscribed, and I still hold to the opinion expressed on behalf of the majority of the court, and I believe expressed on behalf of the entire bench, when the case was here in the first instance, and which I then understood to be an expression of the opinion of the whole court in the one case and of the majority in the other, that being employed generally as a helper and assistant without his duties being defined or in any way circumscribed, that it might reasonably be anticipated by the company that he would be directed by Flynn to do anything in and about the operation of loading and directing the blasts to be shot and firing them. But as a part of this the answer of the jury to interrogatory 1 is opposed to the opinion expressed by the court and the views of the jury .upon that question, of course as the ease now stands before us, we are bound to obey. But as I say, it does not cover the whole question, it still leaves something. It still leaves something that was left if the jury had answered this same interrogatory by saying this: Yes, if directed so to do, which to my mind means substantially the same thing as the answer given. Pete no doubt was incompetent in a sense. The jury must have understood the respect in which he was regarded as incompetent. "Why this particular duty of pulling the lever should be singled out as something that should not have been done by Pete is made manifest by the testimony as to the character of Pete’s ineompeteney. Pete was physically competent to pull the lever. There is no doubt from this record but that Pete was competent to understand the object and effect of pulling the lever; there is no doubt but that Pete had sufficient intelligence and understanding that it would not do to pull the lever and fire the blast when men were near the blast. No doubt he had sufficient humanity to not purposely endanger the lives of his fellow workmen. But the trouble with him and the respect in which he appears to have been incompetent was that he was apt to misunderstand his orders because of his not being well acquainted with the language. And to my mind his situation there was very much like that of a deaf person put in the same position, or person almost deaf, to whom an order might be given that would be misunderstood, and therefore the danger of having a man of that character to fire the blast.

• But perhaps we are not much at variance upon that question. The real vital question that is left unanswered by this special verdict, and upon which I think there is a scintilla of evidence, is as to whether Pete was doing that which he had been directed by Flynn or the company to do, and if he did it under the direction of Flynn, whether Flynn had authority to direct him to do it. I dissent only from the judgment.

KINKADE, J.

I want to add a word that I had intended to include in what I have said, but omitted through an oversight, and that is that although there were forty or fifty men employed, at least a very large number of men employed about this cut and the case has been tried three times, yet nobody is produced to say that he ever saw a blast fired when he saw Flynn where he would not be if somebody else other than Flynn (Pete?) had been fiing the blast. Men in the cut could not see who was firing the blast, but they had every opportunity to see whether Flynn was away from where he would be were he firing the blast, and on the three trials, and with the large number of men employed in the cut, as I have said, nobody says that Flynn was ever in the cut and away from the battery at the time the blast was fired..

- One further thought, and that is this: That there is not a scintilla of -evidence in the record that this man Pete ever misunderstood an order before while he was upon this work; and he was under the direction of a man of high experience and judgment in connection, with the blasting, and was sufficient in his intelligence as helper.


author: KINKADE, J.

text:
    COUNTIES — SHERIFFS.
    [Wood (6th) Circuit Court,
    May 13, 1910.]
    Parker, Wildman and Kinkade, JJ.
    State ex rel. Lake Erie, B. G. & N. Ry. v. F. W. Toan, Aud.
    County Denied Power to Pay Electric Lights for Sheriff's Residence.
    County commissioners have no authority to provide for the expense of lighting that part of the county jail which is used by the sheriff as a residence.
    This is a suit in mandamus brought by the Lake Erie, B. G. & N. By. for the payment of $94.92 on a bill for electric lights, furnished to the Wood county court house, jail and sheriff’s residence. The bill was ordered paid by the commissioners, but the auditor refused to issue his warrant therefor, claiming that the. sheriff’s residence was not a part of the county jail and therefore it would be illegal to pay this bill.

      This case was submitted to the common, pleas court on an agreed statement of facts and the mandamus was sustained.

      B. F. James and J. E. Kelley, for relator.

      WilUam Dunipace, Pros. Atty., for respondent.
   KINKADE, J.

In this action the relator, the Lake Erie, B. G-. & N. Ry. on January 26, 1910, filed its petition and made application for the allowance of a writ of mandamus against .Fred W. Toan, as auditor of Wood county, Ohio, and an alternative writ was issued and the defendant was required to show cause why a warrant should not be issued by the auditor upon the treasurer of said county for the sum of $94.82 in favor of said relator.

The respondent filed his answer and set up that while the bill for lighting was correct in other respects, it was not correct in respect to the ten dollars, in that it covered the lighting of the entire jail building, and inasmuch as a considerable portion of the jail building was occupied by the sheriff as a residence, that that portion of the jail building should not be included in the bill, and that this ten dollars so charged made the bill erroneous, and for that reason the auditor should not be required to draw his warrant for the amount of the bill as presented.

To this answer a demurrer was filed, and the demurrer was sustained, and the defendant not caring to plead further, the case was submitted, and the court of common pleas held in favor of the .relator and ordered the auditor to draw his warrant for the full amount of the bill, $94.82.

It was stated that when the case was to be submitted it would be submitted on a brief furnished by the prosecuting attorney on behalf of the auditor, and that the relator would rest his case on the opinion of the court of common pleas. Counsel for the relator was not able to get the written opinion of the court of common pleas, nor was the court able to find it, so we simply heard from Judge Baldwin himself the grounds upon which this order was entered. No authorities were cited in support of the opinion rendered.

Judge Baldwin treated the term “jail” as described in the statute as being broad enough — comprehensive enough in its proper definition. — to include that portion of the jail building used as the residence of the sheriff, and consequently the statutory authority for furnishing light for the jail was broad enough to justify furnishing light for the residence portion of the jail, and that being his view of the situation, he ordered the writ to issue.

There is no case in Ohio that we know of in which this question has been directly raised and decided. We do not know of any authority under the statute for authorizing the lighting of any portion of the jail, other than that which is properly designated as a jail, and while we might be in accord with Judge Baldwin’s opinion as to what the definition of “jail” is, at the same time we are inclined to think that the decision reached in this ease is not warranted under the statute. As I have said, we know of no statute, no authority that would justify the lighting of the sheriff’s residence. It is true, that in most counties the jail buildings are so built as to furnish a residence for the sheriff, and so far as our information goes in no county is the sheriff expected to pay anything as a rental for the building which he occupies. It is furnished to him by the county in that way, but we can see no reason why the county should pay for the lighting of the residence part of the jail simply because it happens to be under the same roof, any more than the county should pay for it if it were in a separate building.

It might be wise for the legislature to so provide, but they have not done so, and without some authority upon the subject we do not feel warranted in entering the order here that the auditor should issue his warrant for the full amount of the bill.

We think the plaintiff should have leave to reply to this answer if it wishes to and present the question as to whether the amount set up here in the answer is applicable to the residence portion of this jail is in fact the correct amount or not. It is not apparent to us whether it is or not because there is no reply to the allegation.

The demurrer will be overruled and the plaintiff can file a reply.

Parker and Wildman, JJ., concur.


text:
    ANNEXATION — MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    October 28, 1910.]
    Giffen, Smith and Swing, JJ.

      Norwood v. Board of Elections. St. Bernard v. Board of Elections.
    Certificate of Clerk as to Signatures on Petition for Annexation Representing Percentage of Electors insufficient.
    The statutory requirement that the signatures to a petition praying for annexation to an adjoining municipality represent twenty^ five per cent, or more of the resident electors of the territory to be annexed, based upon the number of votes cast at the last municipal election held in that territory, is not satisfied by a certificate by the cleric of the board of deputy state supervisors and inspectors of election that the signatures on the petition represents twenty-five per cent, or more of the total votes cast at the last municipal election. Quaere — Whether it is within the power of the clerk to fully carry out the requirement of the statute is a matter of doubt.

      II. E. Engelhardt and Samuel B. Hammel, for plaintiffs.

      E. M. Ballard and Frank F. Dinsmore, for defendant.

       Affirming Norwood v. Deputy State Supervisors, 22 Dec. 644 (8 O. L. R. 380).

   SWING, J.

Section 3568 G. C., as amended May 10, 1910, is as follows:

“The submission shall be by ordinance adopted by council of each corporation at least thirty days prior to an annual election at which the vote shall be taken.
“If there shall be presented to the council of a municipality proposed to be annexed to an adjoining or contiguous municipality a petition asking for the submission of the question of annexation to a vote, signed by twenty-five per cent, or more of the resident voters of the territory to be annexed, and there shall accompany said petition a certificate duly verified by both * * * or from the clerk of the board of deputy state supervisors of elections of the county in which said municipality is located, to the effect that the petition contained twenty-five per cent, or more of the resident electors of the territory to be annexed, based upon the number of votes cast at the last municipal election ini said territory, the councils of both municipalities shall order the question of annexation to be submitted to a vote at tbe next general election.” * * *

Under the law before the question of annexation can be submitted to a vote of the people of the municipalities each council of the municipalities must find and determine that a petition has been presented to it signed by twenty-five per cent, of the resident electors of the territory to be annexed, and that is is accompanied by a certificate under oath, by the clerk of the board of deputy state supervisors of elections of the county in which said municipality is located to the effect that the petition contained twenty-five per cent, or more of the resident electors based upon the number of votes cast at the last municipal election in said territory.

In these cases the clerk of the board of state supervisors of elections for Hamilton county, Mr. George A. Gohen, made a certificate under oath to the effect that the signatures on the petitions praying for annexation represents twenty-five per cent, of the total vote cast at the last municipal election.

It must be noted that this certificate does not contain any statement to the effect that the signers of the petition were in fact resident electors of the municipality. It amounts simply to this, that the number of names on the petition is twenty-five per cent, of the total votes east at the last municipal election. It must be evident that this does not meet the requirement of the statute. Whether it was in the power of the clerk to fully carry out the requirements of the statutes is a matter of doubt.

But aside from this we are of opinion that each council not only had the right to determine, but it was its duty to determine, whether the petition presented to it was signed by twenty-five per cent, of the resident electors of the territory to be annexed, and that its finding upon this question must stand and is final until set aside by some competent tribunal. And we are further of the opinion, following the case of Dutten v. Hanover, 42 Ohio St. 215, that up to the time that council took action on the petition, any signer had the right to withdraw his name from the petition, and if after such withdrawal there was not twenty-five per cent, remaining on the petition, it was the duty of council to reject the same and take no further action.

If we are correct in this view of the law, there was not a petition in either case signed by the necessary twenty-five per cent, of the resident electors, and no question should be submitted to the vote of the people for or against annexation.

The injunction, should issue as prayed for.

Giffen and Smith, JJ., concur.


author: METCALFE, J.

text:
    INTOXICATING LIQUORS.
    [Ashtabula (6th) Circuit Court,
    September, 1910.]
    Judge Marvin of eighth circuit sitting in place of Judge Laubie. Metcalfe, Fillius and Marvin, JJ.

      William G. Haas v. P. C. Remick, et al.
    A Boat, Belonging to Non-resident of State, Surreptitiously Brought by Lessor into Dry County not Subject to Sale under Rose Law.
    A boat, belonging to a resident of the state of Pennsylvania, which he leased to another- to be used exclusively on the waters of Erie Bay within such state, but who, without the knowledge or consent of the owner, brought it within the jurisdiction of a county in Ohio which had voted “dry” under the provisions of 99 O.L. 35, known as the “Rose law” and used it for the sale of intoxicating liquor, can not be levied upon and sold under the provisions of Sec. 4364-12, R. S. (Sec. 6077-8-9 G-. C.), to pay the tax assessed against lessor.

      Allen M. Cox, for plaintiff.

      Fred B. Hogue and Wayne B. Wheeler, for defendant.

       Former decision, see Haas v. Remick, 31 O. C. C. 591 (13 N. S. 1)

   METCALFE, J.

The plaintiff seeks by injunction to restrain tbe sale of his property for the payment of Dow tax levied thereon by the defendants. The plaintiff is a resident of Erie, Pennsylvania, and is the owner of a gasoline launch known as the Ah-go-on. In the summer of 1909, the plaintiff granted to Doering & Huster the right to use his boat on Erie Bay, but it does not appear that there was any written lease or other agreement executed between them. There are in evidence two copies of a written lease in form from Haas to Doering & Huster, but neither of these copies were signed by any of the parties. The petition alleges that there was a lease from Haas to Doering & Huster, and it seems to be regarded by counsel in argument as of some importance whether there was or was not a written lease, but in our judgment it is entirely immaterial whether the boat got into Doering’s possession by virtue of a written lease or by verbal permission only. The extent of the power granted by Haas to Doering & Huster was limited to the right to use the boat within the waters of Brie Bay, and wholly within the state of Pennsylvania.

After Doering & Huster had been in possession of the boat for some time Doering loaded it with intoxicating liquors and ran it out of Brie Bay into the lake two or three miles from Conneaut, Ohio, and proceeded to dispose of his cargo to the thirsty souls of Conneaut and vicinity who were unable to solace themselves on shore. It is conceded that Ashtabula county had voted “dry” under the provisions of the Bose county local option law prior to the visit of the Ah-go-on, and the waters of Lake Brie where Doering was operating are within the jurisdiction of that county.

When knowledge of Doering’s proceedings came to the prosecuting attorney he caused the Dow tax to be placed upon the duplicate of the county, and a levy was made in pursuance of the statute upon the boat, its fixtures and cargo, and the property was advertised for sale. Thereupon the plaintiff brought this action to restrain the sale of the boat alleging his ownership of the property; his residence in the state of Pennsylvania; his contract with Doering & Huster, permitting them to use the boat in Erie Bay; and that the property was taken out of his possession and out of the state of Pennsylvania against his wishes, and without his knowledge or consent; and that he had no knowledge of the purpose to which the boat was devoted- by Doering. And these allegations we find are sustained by the evidence.

The question thus arises, can the collection of the Dow tax assessed against Doering be enforced by a levy upon and sale of the property of the plaintiff, which had been brought in to the state of Ohio from a neighboring state without his knowledge or consent, and devoted to a business made illegal by the laws of Ohio? We must answer this question in the negative. The claim of the right of the defendants to sell this boat regardless of the rights of the plaintiff is founded on language found in Sec. 4364-12, R. S. (Sec. 6078 G. C.). Without quoting the entire section which provides the course to be pursued when property has been levied upon for the payment of a Dow tax, the statute reads:

“Nor shall any claim of property by any third person to such goods and chattels so used in carrying on such business avail against such levy so made by the treasurer. ’ ’

On the one hand it is urged that this section absolutely precludes thé owner of property used in an unlawful sale of intoxicating liquors from asserting any claim thereto even though he had no knowledge of such sales or his property be brought from another state without his consent. And on the other hand it is claimed that the quoted portion of See. 4364-12 is unconstitutional in that it deprives an owner of his property arbitrarily, and without due course of law, or that if not unconstitutional it can have no extra-territorial application, and can not affect the rights of a citizen of another state where the property is brought within, the state of Ohio without the owner’s knowledge or consent.

The simple question here is, where' a resident of the state of Pennsylvania gives to another, by contract or otherwise, the right to use his property within the state of Pennsylvania, and the renter without the knowledge of the owner brings the property into the state of Ohio and devotes it to an illegal purpose, can the property itself be taken to discharge a tax or fine imposed upon the wrongdoer who has taken it away? The act of taking the property out of the state of Pennsylvania and bringing it into the state of Ohio was an act of trespass (20 Am. & Eng. Ene. L. 571). It is said that the levy upon this property while an exercise of the taxing power, is also an exercise of the police power of the state, made necessary in dealing with the traffic in intoxicating liquors in consequence of the great evils that flow from that traffic and the difficulty in enforcing the law. We do not question that the dealing with the traffic in intoxicating liquors is a proper subject of the exercise of the police powers of the state but the exercise of-that power must not be unreasonable and oppressive, and it must be viewed in the light of those constitutional provisions which protect and safeguard the rights of the individual citizen, especially if that citizen be innocent of wrongdoing. In any event the police laws of a state have no extra-territorial effect.

If the plaintiff had brought his property voluntarily within the state of Ohio, or had permitted it to be brought here, then it would at once become amenable to the police laws of the state, but that is not the case here. The property was brought within the state of Ohio without the owner’s consent. The situs of the property at the time it was taken from the plaintiff, was the state of Pennsylvania. The plaintiff granted the right to Doering to use it within the state of Pennsylvania. Can it be said that when the plaintiff made his contract with Doering that the police laws of the state of Ohio entered into and formed a part of that contract? Certainly not unless that contract was to be performed within the state of Ohio. He was only bound to take notice of the laws of the state where his contract was made and to be performed. A contract is made with reference to the laws of the place where it is to be performed, and those laws enter into and become a part of it. So that the laws of the state of Ohio, which deal with the traffic in intoxicating liquors, enter into every contract which a man makes with reference to his property within the state of Ohio, and this is the basis on which the cases dealing with questions relating to priority of liens or the priority of the tax over the rights of lessors and lienholders rests. In Simpson v. Serviss, 2 Circ. Dec. 246 (3 R. 433) it is said:

“The lien for the assessments and penalties prescribed by the act entitled ‘an act providing against the evils resulting from the traffic in intoxicating liquors’ attach to the real property on and in which the business of such traffic is conducted by a lessee, although the lease forbids sales on the premises; * * * it is a universally recognized principle that laws which exist at the time of making a contract and in the place where it is made and is to be performed enter into and make a part of it. ’ ’

In Mullen v. Peck, 49 Ohio St. 447 [31 N. E. 1077] the lessor of premises was held for the payment of damages caused by unlawful sales of intoxicating liquors without her knowledge or consent, where the sale was made contrary to an express stipulation in the lease, but “where the premises on which the liquors were sold were occupied by the seller under a lease from the owner of a life estate therein, the estate in remainder can not be held for the damages caused by such sales.” On page 462 the court say:

“We are satisfied it is only her (Mrs. Peck’s) estate in the property that can be subjected to the payment of the plaintiff’s judgment and that the estate in remainder can not be taken * * * * nor can it with propriety be said that the owners of the estate in remainder permitted the premises to be used for the sale of liquors, for during the continuance of the life estate they had no control over them and their estate in the property could not be made liable by any act of the owner of the estate for life.”

In Pioneer Trust Co v. Stick, 71 Ohio St. 459, 563, [73 N. E. 520] the court say:

“The laws in force at the time and place where a contract is made and where it is to be performed which in their nature are applicable, enter into and become a part of the contract. And the contract as well as subsequent legislation is to be construed with respect to its efficacy as well as its meaning in the light of all such statutes as are applicable. ’ ’

So in this case the contract of the plaintiff with Doering which permitted the latter to use his property in the state of Pennsylvania was made with reference to the laws of that state and not Ohio, and the act of Doering in bringing the boat into Ohio was not anticipated in the contract with Haas nor was it in accordance with its terms; and the unlawful act of a trespasser in bringing the property into Ohio and using it for an illegal purpose would not affect the right of the owner to reclaim it.

We are not going so far in this case as to say that the clause in Sec. 4364-12 above quoted is unconstitutional. Such a holding is unnecessary. We simply say that it has no application in this case, that it can not apply where- the property is brought by a trespasser from another state into this state. While we may sympathize with what has been said by distinguished counsel in this case about the necessity for drastic measures in enforcing the laws relating to the liquor traffic, yet zeal for the enforcement of righteous laws should not override the rights of the citizen who is innocent of wrongdoing.

Arriving at this conclusion we deem it unnecessary to discuss other questions in the case arising from the former holding of this court on demurrer to the petition. The decree in this case must be entered for the plaintiff.

Fillius and Marvin, JJ., concur.