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    SCHOOL BUILDING JANITORS UNDER CIVIL SERVICE.
    Court of Appeals for Hamilton County.
    State of Ohio, on the Relation of Archie Bartholomew, v. Richard B. Witt, as Treasurer of the City School District of Cincinnati.
    Decided, September 26, 1914.

      Civil Service — Janitor of a Public School Building is i?i the Classified Service — Hold Over Janitors Subject to a Non-Competitive Examination — '-Liability of Treasurer of School District Under Section 486-21.
    1. Under the rules of the board of education of Cincinnati a janitor of a public school building is an employee of the board rather than an independent contractor.
    2. Such janitor of a public school building is within the classified service, but those who were legal incumbents of the position at the time of the passage of the civil service act are entitled to hold over, subject to a non-competitive examination.-
    3. Where the money has been drawn by the treasurer of a school district for payment of any salary due one legally employed as janitor and there is no sufficient reason for his not paying it over, a writ of mandamus will issue to require such payment.

      E. M. Ballard, for plaintiff.

      Walter M. Schoenle, City Solicitor, and Charles A. Groom., Assistant Solicitor, contra.
    Jones, O. B., J.; Jones, E. TL, J., concurs; Swing, P. J., dissents.
   The board of education of Cincinnati has provided certain rules for janitors and engineers, under which a janitor, janitor-engineer, or janitress shall be appointed in each schoool building and graded according to the character of heating plants and closet systems, and shall be at all times subject to the direction of the mechanical engineer or his representative and under the immediate supervision of the principal of the school. Under this arrangement the janitor has general supervision of and re-sponsibility for the school building, yard, machinery and equipment committed to his charge. It is his duty to employ and pay out of the compensation allowed him all necessary assistants and provide all necessary supplies in the way of buckets, soap, brooms, etc., that may be required by him in cleaning and caring for said property. A compensation, which is also termed ' ‘ salary ’ ’ in the code of rules prepared by the board, is fixed on a per diem basis, determining the entire compensation for the care of each building, yard, and apparatus on a schedule which provides for a computation by the square feet of floor space and yard surface and the character of heating, the number of boilers used, the number of stoves, pumps, shafting, engines, dynamos, electric 'motors, etc., the entire compensation being determined by this schedule. The rules provide for dividing the amount of such compensation treated as a yearly salary, by 313 for the per diem compensation, and for the payment thereof.on the regular salary days of the board, for the number of days included in the period elapsing from the previous salary day.

The relator in this case has been a janitor of Woodward high school since the 26th day of June, 1911, and claims in the petition herein that the relations existing between him and the school board in rendering such service as janitor were those of a contractor with the board, rather than the relations of an employee. Under the rules of the board of education he was entitled to receive $8,238.82 per year for the care and custody of said building and apparatus, out of which he was required to paythe necessary help and to purchase the necessary supplies for cleaning said property and keeping the same in order in accordance with said rules. Relator alleges the performance of all of his duties and requirements under said conditions and payment for same up to August 3, 1914, and that an .order has been made by the board of education for the payment to him of the sum of $631.20 for services in said capacity between August 3, 1914, and August 29,1914; that pursuant to the action of the board ofedueation ordering such payment the clerk of said board drew a cheek or voucher on the depository in which the funds of said school district are deposited, against the proper fund, which voucher or check was signed by the necessary officers, and that the defendant in this ease, who is the treasurer of the city school district of Cincinnati, drew from said depository the sum in cash necessary to pay the compensation due to relator in accordance with said action of the board; that he now holds said sum of $631.20 for such purpose, but refuses to pay it over to relator, who prays that a writ of mandamus issue commanding said treasurer to pay to him said sum.

The answer of the treasurer alleges that the relator is within the civil service of the school district of Cincinnati and within the classified service thereof. Ho denies that reLator stands in a contract relation with the board of education, and alleges that the relator was appointed as a janitor and was paid a salary in accordance with the payroll transmitted by the board of education to the defendant for payment. He denies that said board of education had any authority under the law to enter into a contract as claimed by relator because of the statute providing for the employment of janitors by appointment, and alleges that said position of janitor is within the classified service of said school district. His answer fails to allege any reason why the defendant should not pay over the money which he has drawn from the depositor for payment to relator.

From the argument of the case, however, it would appear that defendant has declined to make this payment by reason of the provisions of Section 486-21, General Code (Section 21 of the act, 103 O. L., 710).

The first question to be considered is the nature of the relations between relator and the board of education, whether as janitor, under the rules and regulations of the board he is an employee of the board, or whether he is an independent contractor.

In the broad sense of the term, every employee, sustains a certain contract relation with his employer. A careful examination of the laws relating to the board of education fails to show lack of authority on its part to make and carry out the rules and regulations provided for the care and maintenance of its buildings. Broad powers are given to the board under Section 7620, G. C., to “make all other provisions necessary for the convenience and prosperity of the school.” The usual limitations as to public letting of contracts by bids.seem to be required as to such board only as to matters falling within the terms of Section 7623, G. C., with reference to buildings and repairs, Gosline B’d of Ed. v. Toledo, 11 C.C.(N.S.), 195. Section 7690, G. C., authorizes the board to appoint janitors and fix their salaries. This, no doubt, may be done either in the customary way o£ appointing each, person serving in such capacity and fixing a monthly or yearly salary for his particular service or in the manner which has been provided by the plan adopted by the Cincinnati board. Whether or not such a plan is contrary to public policy is addressed rather to the General Assembly than to the court, and, finding as we have said, no inhibition against such an arrangement in the law, we arrive at the conclusion that the method of employing janitors adopted by the Cincinnati board is legal.

Under the law as we view it, it is possible that the board of education might provide for this service by an independent contract, or by direct employment. Considering however the terms expressed in the rules and regulations, the manner of employment of relator, the fact that no written contract was prepared and signed between the parties, and that his relations with the board are subject to termination at any time, we must conclude that his position is rather that of an employee than an independent contractor.

The case of State, ex rel Bloom, v. Cin. Bd. of Ed., 20 C.C.(N.S.), p. —, has been relied upon as holding that a janitor under such a regulation was in no sense an employee. The language used in the opinion in that case might be so construed, but was not intended to have that effect nor was such ruling necessary for the purposes of that case.

The next question to determine is whether or not the relator comes within the provisions of the civil service law as found in 103 O. L., 698. The general terms embraced in this law convince the court that such a position as is occupied by the relator is intended to fall within the class of service covered by Section 8 (b) as found on page 702 (G. C., 486-8), and should be included within the classified service subject to the rules provided by said act. Had an exemption been intended for this class of service it should be found among the paragraphs under Section 8 (a). The evident purpose of the act found in 103 O. L., 698, was to bring all classes of public service in the state, city and school district within its provisions, subject only to the exceptions therein contained. The position held by relator not being named among those exceptions he must be held to be a public employee within the classified service as defined in Section 8 (b) of said act. But as a legal incumbent of the position at the time of the passage of the act he would be entitled to hold it subject to a non-competitive examination as provided in Section 10 of the act.

The real question, however, raised by the pleadings is whether the treasurer is justified in refusing to pay over to the relator the amount of money drawn by the treasurer from the depository for the benefit of the relator. As above stated, defendant’s counsel relies upon Section 486-21 of the General Code as a defense. A careful examination of this section shows that it is intended to prevent the drawing of a warrant on the treasurer, for the payment of salary or compensation to any person in the classified service unless the estimate, payroll or account for such salary or compensation should have the certificate of the State Civil Service Commission, or in case of service in the city, the certificate of the municipal civil service commission. It will be noticed while the first part of this section in relation to the drawing of a warrant includes the fiscal officer of a city school district the provision in regard to a certificate by the civil service commissioner relates to the service of a city and fails to include specifically the service of a city school district. The last part of this section makes liable for the repayment of money improperly paid both the officer making an appointment in contravention of the provisions of law and the officer signing, countersigning or authorizing any warrant for the payment of same. It will be noticed that the defendant in this ease would not be included in the liability fixed by this statute. There is nothing in the pleadings of record of this case as to whether or not the payroll estimate or voucher upon which this money was drawn bore the certificate of the city civil service commission, but as the court has found that the relator was regularly and legally employed, it was the duty of the civil service commission to so certify his payroll or voucher. The money has actually, been drav/n and is in defendant’s hands for the benefit of relator. No legal reason is shown by him for not paying it over.

A writ of mandamus will therefore issue as prayed.


source: Caselaw Access Project

license: Public Domain

text:
    APPLICATION OF THE STATUTE SHORTENING THE TIME FOR BRINGING PROCEEDINGS IN ERROR.
    Court of Appeals for Hamilton County.
    Emma E. Harding v. C., C., C. & St. L. Railway Co.
    Decided, June 3, 1914.

      Error — Statute Limiting the Time for Bringing Proceedings to Seventy Bays — Applies to Gases in Which Judgment Has Been Rendered Since the Law Went Into Effect — Section 12270.
    A proceeding in error is an independent action, and jurisdiction in such a proceeding is not acquired under the present statute, in a case in which it is sought to reverse a judgment rendered since the law went into effect, unless commenced within, seventy days after the entering of such judgment.

      Geo. W. Harding, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, contra.
    Swing, J.; Jones, E. II., J., and Jones, O. B., J., concur.
   This is an action from the court of common pleas, brought in this court on the 4th of March, 1914. It was heard in this court on motion to strike the petition from the files for the reason that it was not brought within the time limited by the statute for the filing of petitions in error. Trial was had in the court of common pleas on the 21st day of October, 1913. A verdict was rendered for defendant on October 23, 1913, and judgment entered on tbe verdict November 17, 1913.

On May 9,1913, the Legislature amended Section 12270 of the . General Code so as to read as follows:

“No proceeding to reverse, vacate or modify a judgment or final order shall be commenced unless within seventy days after the entry of the judgment or final order complained of; or in case the person entitled to such proceedings is an infant, a person of unsound mind, or imprisoned, within seventy days exclusive of the time of such disability.”

- The section before it was amended provided four months as the time within which such action might be brought. The question presented to us therefore is whether the old or the amended section applies.

The present law applies by the force of the words of the statute, unless Section 26 of the general provision of the statutes exempts it from the operation of the amended law. This section reads as follows:

“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 is related to the remedy it shall not affect pending actions, prosecutions or proceedings unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution or proceedings existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing action.”

The law of May 9, 1913, by force of law went into effect ninety days from that time, August 8, 1913. The action of Harding against the railway company was pending at the time of the passage of the act, and of course was pending in the court of common pleas at the time the law went into effect. Whether or not this act is saved by this general provision of the code must be determined.

The action pending in this court was pending in the court of common pleas when the act of May 9,1913, went into effect.

The’Supreme Court in the case of Charles v. Fawley, 71 O. S., 50, at page 54 in the opinion of the court, speaking of proceedings in error, said:

“Such proceedings recognize the termination of the original case. To institute them it is required that a petition in error be filed in the -reviewing court, and to acquire jurisdiction of the person of the adverse party there must be the issuance and service of summons; whereas, the steps necessary to effect an appeal are taken in the court having jurisdiction in the original action and the adversary party is bound thereby without summons. An obvious analogy is found in the doctrine of lis pen-dens where the distinction between appeals and proceedings in error, in this respect, is recognized. The property which is the subject of a suit is bound by its event not only while the case is pending in the court of first resort, but also while it is pending in a court to which it may be taken by appeal; but where a review of a judgment is sought'by proceedings in error, the suit is regarded as ended by the judgment of the court of first resort. This distinction was recognized in Heirs of Ludlow v. Kidd’s Exrs., 3 Ohio, 541, where Sherman, J., speaks of an appeal as a proceeding in the original cause, and concludes that its effect is to continue the cause and suspend the decree of the inferior tribunal until the judgment of the tribunal to which the appeal is taken.”

We have carefully gone over the cases cited by counsel in argument, as well as others that we have found, in the Supreme Court and Circuit Courts, especially the case in Hays v. Olentangy Park, 1 C.C.(N.S.), 101, and the case in 1 N.P.(N.S.), 195, and have arrived at the conclusion that the proceeding in error is an independent action, and that the statute' limiting the time in which such proceeding may be brought, to seventy days, applies in a ease where a judgment was rendered after that law went into effect and which judgment is sought to be reversed in a proceeding in error, which is the case here, this action in this court having been brought 107 days after the rendition of the judgment in the court below. The judgment of the court of common pleas was rendered after the law of 1913 went into effect, and it must apply.

We think the motion was well taken, and the petition is therefore stricken from the docket.


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    RULING ON DEMURRER. HELD NOT PREJUDICIAL.
    Circuit Court of Cuyahoga County.
    W. J. Holden v. Rose M. Davey et al.
    Decided, March 6, 1905.

      Pleading and Practice — Sustaining Demurrer to Second, Cause of Action When a Repetition of First Cause Not Prejudicial Error.

    Where a petition has set out two causes of action, hut the second is only a repetition of the first with the addition of other facts which would not in themselves constitute a cause of action, sustaining a demurrer to the second cause is not prejudicial error, the demurrer to the first cause of action being overruled.
    Marvin, J.; Hale, J., and Winch, J., concur.
   The error complained of here is that the court sustained a demurrer to the second cause of action set out in the petition.

Two causes of action were set out in the petition. Demurrer was filed to each of said causes. The court overruled, and properly overruled the demurrer to the first.

The second cause of action begins with the words:

“For his second cause of action plaintiff says that he incorporates therein all the allegations set out in his first cause of action the same as if therein rewritten.” Then follows allegations which do not in themselves constitute a cause of action.

It is urged, however, that since by virtue of Section 5083, Revised Statutes, the first cause of action is to be treated as though rewritten in the second, and since it is held that the first cause of action is good as against demurrer, it necessarily follows that the second cause of action was also good against a demurrer, without reference to what follows, the allegations making the first cause a part of the second. Logically and technically this is correct, but since by overruling the demurrer to the first cause, the court had left the petition with that cause still to be answered, there was no prejudice to the plaintiff in the rulings as to the second. Since only facts stated in the petition which constitute a cause of action against the defendant were left in full force by the ruling on the demurrer, the plaintiff was not prejudiced by such a ruling as confined such facts to one cause of action, wherefore the judgment is affirmed.


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    AN UNREASONABLE BUILDING RESTRICTION.
    Circuit Court of Cuyahoga County.
    State of Ohio, on Relation of Frederick F. Book and George H. Book, v. City of Cleveland and J. F. Dooley, as Inspector of Buildings of Said City.
    Decided, March 6, 1905.

      Police Power — Provision of Building Code Prohibiting Erection of Certain Buildings Within Sixteen Feet of Lot Line, Unreasonable and Void.

    The section of a building code enacted by a municipal council, which prohibits the erection of any building for the working of wood or other combustible materials within sixteen .feet of any lot line is an unreasonable exercise of the police power and is void.

      Frank E. Dellenbaugh and Philip F. Hintz, for relators.

      N. D. Baker, contra.
    Marvin, J. (orally) ; Winch, J., and Henry, J., concur.
   This is a proceeding in mandamus.

A demurrer is filed to the petition and it is submitted upon that demurrer.

The defendant the city of Cleveland is a municipal corporation of the state of Ohio. The defendant Dooley is inspector of buildings for said city. A duty of the inspector is to issue certificates for permits to erect buildings in the city whenever persons applying therefor have legal right to erect such buildings.

The relators made a proper application to the defendant Dooley for permission to erect a building. That certificate of permission was refused. An appeal was taken to a proper board of tbe city which sustained the ruling of the building inspector, and the building inspector still refused, to issue any certificate.

The building which relators propose to erect on the land owned by them is to be one story, twelve feet high, ninety-three feet long and twenty-nine feet wide. It is to be constructed of brick, substantially fire proof. The outer walls will be about one foot from the lot lines of the relators. The building is to be used, if erected, as a carpenter shop, heated with gas, and all the machinery is to be operated by a gas engine. From this description of the building it clearly would not be in itself a nuisance, unless there be some lawful authority which has declared that such building shall be a nuisance.

The relators would be entitled to the certificate for which they have applied but for the provisions of an ordinance of the city which is in these words:

‘ ‘ No building * * * or shop for the .working of wood or other combustible materials * * * shall be erected within thirty (30) feet of any building of the first grade, or ‘hotel,’ ‘tenement,’ or ‘dwelling,’ or ‘office’ except the dwelling owned by owner of the building to be erected for or converted to the uses aforesaid.
“No building shall be erected for or converted to the uses aforesaid within sixteen (16) feet of any lot line or any other grade of building not provided for above, except that when such buildings are located in a block between street lines, wjhere all buildings located thereon contain stores, warehouses, shops or factories devoted to the same or similar uses as herein prescribed, then such buildings, if provided with dead brick walls along their inner lot lines, may be spaced near each other, and if such stores, warehouses, workshops or factories are built up to such lot lines and separated only by dead division or party walls, there shall be an open alley not less than sixteen feet wide in the rear thereof, if such width is not in conflict with any other provision of this code.”

This ordinance was passed under authority of Section 1536-100, Revised Statutes, which provides:

‘ ‘ Every city and village shall be a body politic and corporate, which shall have perpetual succession, may use a common seal, sue and be sued, and acquire property by purchase, gift, devise, or appropriation for any municipal purpose herein authorized, and hold, manage and control the same and make any and all rules and regulations, by ordinance or resolution, that may be required to carry out fully all the provisions of any conveyance, deed or-will, in relation to any gift or bequest. All municipal corporations shall have the following general powers and council may provide by ordinance or resolution for the exercise and enforcement of the same.”

Paragraph 13 reads:

“To regulate the erection of buildings and the sanitary condition thereof, fences, bill boards, signs, and other structures within the corporate limits;” etc.

The authority given by this statute comes clearly within the police power which municipalities may exercise. (See Dillon, Muñe. Corp., Section 141.)

There are, however, limits to this power. It can not be exercised in a manner wholly unreasonable. In speaking of this, Judge Dillon, Section 379, says:

“Much must necessarily be left to the discretion of the municipal authorities, and. their acts will not be judicially interfered with unless they are manifestly unreasonable and oppressive * =» * in which case the contemplated action may be prevented by appropriate suit or proceedings.”

This brings us, then, to the consideration of the reasonableness of the ordinance under authority of which the defendants refuse the certificate asked for by the relators.

As to what is unreasonable, we have examined various authorities, and special attention is called to the ease of Crawford v. City of Topeka, 20 L. R. A., 692, where it is held that an ordinance providing that “No person shall erect a bill-board or other structure for advertising purposes unless the same is placed at such distance from the line of the street or sidewalk as shall exceed at least five feet the height of such bill-boárd structure,” to be unreasonable and therefore void. In the opinion, this language is used:

“All statutory restrictions of the use of property are imposed upon the theory that they are necessary for the safety, health or comfort of the public; but a limitation without reason or necessity can not be enforced.”

It is believed that properly states the law, and we come to consider whether the ordinance complained of here comes within the description or definition of what is unreasonable. The language used is: “No building shall be erected or converted to the uses aforesaid, that is for the erection or use of shops to be used for the working of wood within sixteen feet of any lot line. ’ ’ The phrase “any lot line,” is susceptible of two interpretations, one of which is so manifestly unreasonable that it can hardly be supposed that that definition was intended to mean the lot lines as fixed by the platting of lots. It clearly would be unreasonable to say that a man who owns four or five lots platted in any part of the city that he might not erect a building that would cover the lot lines if he kept away from his own boundary lines for a proper distance, and still be very close to or upon the lot lines as fixed by the plat in which his land is situated. That is so manifestly unreasonable that it can not be supposed that that was intended, but if that is not intended, then it clearly must mean the boundary lines of the land of the party who projooses to erect a building. That boundary may be a street line; it may be the line of an alley; it may be on the line of the river; it may be on the line of the lake; it may be opposite to some public grounds of the city, still, with that construction of the language used in the ordinance, one would be prohibited from building within sixteen feet of his boundary line. And so, if he owned a lot bounding on the river he would be kept back sixteen feet from the river lest he should communicate fire from his building; he would be kept back sixteen feet from the street lest he communicate fire. Tt is contemplated that if there is an alley sixteen feet wide at the rear one may build upon the lot; so it is certain, it seems clear, that the council in passing the ordinance overlooked the fact that lot lines, meaning boundary lines of one’s property, might be, as already stated, on the street, river, lake or opposite to public grounds and still restrict and keep bim back sixteen .feet from his line. An effort was made in the examination of this ordinance to see if a construction could be given the language by which side lines would be meant, but the matter of sides lines was not overlooked in -the passage of this ordinance and was provided for later on, so that we must construe this to mean, not lot lines as platted, but boundary lines of the party who proposes to erect a building. It would seem to us so clearly unreasonable to say that one owning property bounded by a street, river, lake or public ground must be restricted in the erection of a building to sixteen feet from that line, that we must declare the ordinance, in so far as it provides that the building shall not be within sixteen feet of a lot line, unreasonable and void.

The demurrer to the petition is overruled.


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    COMPETENCY OF ADMISSIONS AS TO PHYSICAL CONDITION.
    Circuit Court of Cuyahoga County.
    Hiram D. Jones v. State of Ohio.
    Decided, March 28, 1905.

      Criminal Evidence — Admissions of Accused when Voluntary, are Admissible.

    Where in the course of an examination being made by physicians, appointed by a court for that purpose, the accused makes admissions as to his physical condition, such admissions are admissible in evidence, even though the court had no right to order such examination' and the physicians had not right to make it and the accused did not know that he was not obliged to submit to such examination.

      Hart, Canfield & Croke, for plaintiff in error.

      H. R. Keeler, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   This is a proceeding in error. Jones was tried in the court of common pleas for a felony and convicted; the only error for which it is claimed the judgment should be reversed was, that over the objection of the plaintiff in error evidence was admitted which was incompetent and was prejudicial to him.

It is shown by the record that while Jones was in prison awaiting a preliminary examination before the police court of the-city of Cleveland, the judge of said court called two physicians, Dr. ~W. M. Jones and Dr. Maurice Budwig, to his court room and directed or requested them to make a physical examination of the accused to ascertain whether he was afflicted with a contagious disease. From the testimony of one of the physicians, Dr. Budwig, it appears that the prisoner was present in the court room when this direction was given to the physicians and the prisoner went to prison with the two physicians. Dr. Jones says nothing about having seen him in the court room, but says that he told him that he and Dr. Budwig were to examine him by order of the court. The physicians then proceeded to make the examination, having the prisoner remove his clothing.

At the trial in the court of common pleas, both of these physicians were called by the state as witnesses. Each was asked as to the result of the examination, but their testimony on this point was rejected by the court. Each was also asked as to what, if anything, the prisoner said as to his condition of health, and each gave a conversation then held by them with the prisoner, in which things are stated to have been said by the prisoner which though in no wise constituting any confession of guilt on his part, yet constitute the admission of certain facts which tend to show his connection with the crime charged against him. This testimony was admitted over the objection of the defendant, and exception to its admission was duly taken. ■

If these admissions were voluntarily made by the prisoner, there can be no question as to the admissibility of the testimony. If they were made under such circumstances as to show compulsion, or the promise of clemency for making them, or the threat of punishment for not making them, such promise being given, or such threat being made by one having authority to make such threat, or by one having such apparent authority, and whom the accused believed had the authority, they ought not to be received.

It is provided by Section 10 of Article 1 of our State Constitution that no person shall “be compelled in any criminal case to be a witness against himself.” And this has been held to protect a prisoner from any forcible examination of his person for the purpose of securing evidence against him. It has also been uniformly held, as hereinbefore stated, that confessions of guilt-made under threats or promises of those in authority, can not be used against one on trial for crime, and though the text boobs and eases call attention to the difference between the confessions of guilt and admission of independent facts tending to show guilt, the rule as to their admission as evidence seems to be the same, except that in some, if not all, of those jurisdictions where it is required of the state to show affirmatively that confessions were voluntarily made, before they can be admitted in evidence, this affirmative evidence is not required as to such admissions.

However, in Ohio, the rule is that whatever one confesses or admits as to his connection with a criminal act. is presumed to have been voluntarily made and will be admitted in evidence against him, unless it be shown on his part that the same was involuntary.

The only ground on which the admissions in this case can be claimed to have been involuntary is, that they were made to physicians who were directed or requested by the judge of the police court to make an examination of his person, and which order the prisoner probably supposed the judge'had the right to make, whereby the physician had some authority over him, and that they were made at the time of and in connection with such examination. Of course the judge had no right to make the order and ought not to have made it. The physicians had no more right, after receiving the order or direction of the judge, to make any examination of this prisoner than they had to make such examination of any other citizen, but it does not follow that what was said by the prisoner was not voluntarily said. No one said to him that he must answer questions; it would appear from the evidence that he did not hesitate about answering, and it is altogether probable that it did not occur to him that he was making any admission of any incriminating nature.

Under what circumstances the confessions of one accused of crime will be held to be voluntary has been considered in Fouts v. State, 8 O. S., 98; Leuth v. State, 5 C. C., 94; Spears v. State, 2 O. S., 583, and in other cases.

We have examined also many other authorities, including People v. Glover, 71 Mich., 303, and State v. -, 71 Iowa, 11.

Judgment affirmed.


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    DEFENSE OF DISMISSAL OF REPLEVIN SUIT AS A RESULT OF SETTLEMENT.
    Circuit Court of Cuyahoga County.
    Stephen Praschl v. Christ C. McMahon and The Cleveland Metal Stamping Company.
    Decided, March 27, 1905.

      Parol Evidence is Admissible- to Show that the Dismissal of a Suit ~Was the Result of an Agreement.

    Where the plaintiff in an action of replevin has executed the delivery bond required by statute, received the property replevined, dismissed the replevin suit at its costs, and is later sued by the defendant in the replevin suit for the value of the property, an answer alleging that the dismissal of the replevin suit was the-result of a settlement states a good defense, and parol evidence is admissible to show the agreement upon which the suit was dis- . missed and the disposal of the property.

      L. A. Grossner and H. Preusser, for plaintiff in error.

      N. Marks Flick, contra.
    Marvin, J.; Winch, J., and Henry, J., concur
   Suit in replevin was brought by the metal stamping company against Praschl and one Meigs before a justice of the peace. Writ was issued to one McMahon, who was a constable, and some 20,000 small metallic ticket boxes were taken by him from Praschl under the writ, and statutory bond being given by the company, these goods were delivered to it.

Later this suit was dismissed at the costs of the company, but the boxes were retained by the companyThe present suit was brought by Prasehl to recover for the value of the boxes.

The defense set up by the stamping company was that the dismissal of the suit before the justice of the peace was made under an agreement by the company Avith the defendants in that action, by the terms of which the plaintiff here Avas to have delivered to him certain tools; that the company should pay the costs of the action and retain said boxes and sell the same upon the best terms it could, retaining out of the avails of the same some $800 due it from said Meigs, and pay over to him the balance. The metal stamping company paid the costs, delivered the tools to Prasehl, and is converting the boxes into money for the purpose of carrying out said agreement, as it is claimed.

In his reply the plaintiff denies the making of the agreement under which the case before the justice of the peace Avas dismissed. With the pleadings in this situation the case Avent to trial.

It is urged that there Avas error on the part of the court in admitting evidence of the agreement under Avhich the replevin case was dismissed. We think there was no error in admitting this evidence. The only entry on the docket of the justice of the peace is “Dismissed without prejudice at plaintiff’s costs.” If this dismissal Avas made under some contract as to AAdiat should be done with the goods taken in replevin, that fact is admissible.

The plaintiff proved by the constable that the goods were taken from him (the plaintiff) by the officer under this writ of replevin and were turned over to the metal company upon such company giving the bond required by law. The bond was not produced in the case, but it is to be presumed to have been such as is required by Section 6616, Revised Statutes, and must therefore have provided that plaintiff would prosecute the action to final judgment, and that if the judgment Avas against the plaintiff the property should be returned, etc., or pay the appraised value thereof.

The entry of the justice of the peace of a dismissal of the case without prejudice Avould, unexplained, entitle the defendants in replevin to a return of the property, but we think it clear that, if the dismissal was made upon an agreement such as set out in the answer of the metal stamping company, it would be entitled to have the agreement carried out. This view was taken by the court below.

The only evidence tending to show any agreement for dismissing the replevin case was the testimony of the plaintiff, and falls far short of establishing any agreement. It appears from the evidence, which is exceedingly unsatisfactory, for the plaintiff was unable to speak English clearly, that this plaintiff and Meigs at one time had a joint interest in these boxes; that Meigs gave the plaintiff an order for them. Plaintiff says that' they became his; that they were taken from him in the replevin suit.

So far as appears, there was no agreement about settling that suit. The boxes, then, should have been returned to the plaintiff. They were not returned.

At the close of plaintiff’s evidence motion was made by the defendant that the jury be directed to return a verdict for defendant. This was overruled but the court then, of its own motion, ordered the case dismissed without prejudice, unless plaintiff make Meigs a party. Meigs was not made a party, and so the dismissal without prejudice was made. We think this was error on the part of the court. Taking the evidence as plaintiff gave it, Meigs was not a necessary party to the suit.

The judgment is reversed and the case remanded to the court of common pleas.


author: Per Curiam.

text:
    APPLICATION OF FUNDS UNDER. THE WORKMEN’S COMPENSATION LAW NOT SUBJECT TO INJUNCTION.
    Court of Appeals for Hamilton County.
    Washington T. Porter et al, Trustees of the Public Library, v. Wm. A. Hopkins, Treasurer of Hamilton County, et al; and Board of Education of Cincinnati v. Same; and State, ex rel Thomas L. Pogue, Prosecuting Attorney, v. Same; and City of Cincinnati, by Walter M. Schoenle, City Solicitor, v. Same.

    Decided, October 24, 1914.

      Jurisdiction — Not Conferred Upon the Courts — To Enjoin Payments Under the 'Workmen’s Compensation Law.

    The authority conferred by Sections 2921 and 4311 on the prosecuting attorney of the county and the city solicitor to bring actions for the purpose of restraining the illegal payment of money from the public treasury do not give jurisdiction to a court to entertain an injunction proceeding contrary to the provisions of Section 58 of the workmen’s compensation act.

      W. T. Porter, Walter M. Schoenle, City Solicitor; Chas. A. Groom, Assistant City Solicitor; Thomas L. Pogue, Prosecuting Attorney; J. V. Campbell, Carl M. Jacobs and Simon Ross, Jr., Assistant Prosecuting Attorneys, for plaintiffs.

      Timothy S. Hogan, Attorney-General; John A. Deasy, Jos. I. Boulger, Thomas H. Morrow, Assistants to the Attorney-General, contra.

      Affirmed by the Supreme Court, December 15, 1914 — Porter et al, Trustees, v. Hopkins, Treasurer, reported in 90 Ohio State.

   Per Curiam.

These actions come into this court on appeal from the court of common pleas. They are brought on behalf of the city of Cincinnati, county of Hamilton, the board of education of the city school district of the city of Cincinnati and the trustees of the public library for the purpose of having Sections 15, 16, and 17 of the act known as the workmen’s compensation act, 103 O. L., pages 72 to 92, inclusive, declared unconstitutional, and to enjoin the treasurer of- Hamilton county from paying a warrant issued by the auditor of Hamilton county in favor of the Treasurer of the State of Ohio, to pay the fund provided for in said Sections 16 and 17.

Objection is made by defendants to the jurisdiction of this court to entertain these injunction proceedings, by reason of Section 58 of said act, which is as follows:

“No injunction shall issue suspending or restraining a,ny order, classification or rate adopted by the board, or any action of the Auditor of State, Treasurer of State, Attorney-General, or the auditor or treasurer of any county, required to be taken by them or any of them by any of the provisions of this act; but nothing herein shall affect any right or defense in any action brought by the board or the state in pursuance of authority contained in this act.”

Plaintiffs rely, however, upon the right of the prosecuting attorney of the county by virtue of Section 2921, General Code, and the solicitor of the city by virtue of Section 4311, General Code, to bring such actions for the purpose of restraining the misapplication of funds and the illegal payment of money from the treasury.

While these sections relied upon are both broad in their terms and would ordinarily confer the authority to bring such actions by the prosecuting attorney and the city solicitor, Section 58 of the act in question is so specific that it must be held to control. And as it does not take away the right of the courts to entertain other actions to determine the question of constitutionality sought to be raised herein, by its terms, this coirrt has no jurisdiction to entertain these cases, and is without authority to grant the relief prayed therein.

The actions, therefore, will be dismissed.


text:
    PASSENGER. KILLED BY THE BACKING OE THE CAR. FROM WHICH HE HAD ALIGHTED.
    Circuit Court of Cuyahoga County.
    Elsie L. Cleverdon, Administratrix de bonis non, With Will Annexed, v. The Lake Shore Electric Railway Company et al.

    Decided, June 5, 1905.

      Negligence — Carriers—Question of Negligence of Carrier in Inviting Passenger to Alight, and of Passenger in Alighting at a Dangerous Place is for the Jury.

    Where the evidence discloses that a passenger upon an electric car had notified the conductor of his desire to alight at a certain stop; that the car ran past that stop and came to a stand-still upon a trestle; that the passenger who was upon the rear platform, thereupon alighted from the car and started to walk back along the trestle to the station, but before he could do so was killed by the car backing upon him without warning; Held: That the question of the negligence of the carrier .and of the contributory negligence of the passenger were for the jury to determine.
    Marvin, J.; Winch, J., and Henry, J.. concur.

       Affirmed without opinion, Dafoe Shore Electric Railway Co. v. Cleverdon, Admrx., 75 Ohio State, 618.

   On the 23d day of August, 1902, IT. L. Cleverdon, plaintiff’s intestate, boarded car No. 17 on the road of defendants. Said car was bound eastward, and said Cleverdon paid his fare to a point known as Cahoon road, which is stop No. 24 on said road, and notified the conductor that he desired to get off at that point. He was a frequent passenger on this line and often got off at this stop.

He was an engineer by occupation and was engaged largely in the construction of bridges, and at this time was superintending the construction of a bridge for the county not far from said stop No. 24. He was about 33 years old, and was a strong, active man in excellent health.

Just east of stop No. 24, the tracks of defendant’s railroad are supported on a wooden trestle over a ravine for a distance of several hundred feet and at a considerable elevation. This trestle is nine feet wide. At the time mentioned the conductor of the ear gave the proper signal to stop the car at stop 24, but for some reason it did not stop there but ran on a considerable distance until it was upon the trestle. The witnesses vary as to how far the car was upon the trestle, but it 'was probably not less than sixty feet from the west end of the trestle when the car stopped, at a point where the elevation of the trestle was in the neighborhood of forty feet above the earth. Cleverdon had stepped out upon the rear platform of the car ready to alight at stop 24, but as the car went by he did not get.off until the car stopped, when he immediately stepped off, swinging around so as to .step upon the trestle back of the ear, and started to walk back toward the stop at which he bad intended to alight. The car at once backed toward him. The conductor, seeing his peril, gave the signal to stop and called to Cleverdon, warning him of his danger, but too late to save him, and he was precipitated to the ground beneath, sustaining such injuries that he died therefrom the next day at St. John’s hospital in Cleveland, to which he had been removed.

The plaintiff, having been appointed administratrix of his estate, brought this suit to recover damages against the railroad company and its receivers for wrongfully causing his death.

The deceased was the engineer under whose direction and superintendence the trestle was constructed, and was entirely familiar with it and its surroundings.

At the close of the plaintiff ’s evidence the court, on motion of the defendant, directed the jury to return a verdict for the defendant, which was accordingly done and judgment entered upon such verdict. To this action of the court the plaintiff excepted. By proper proceedings the case is here for review. A bill of exceptions is filed containing all the evidence. The only error complained of is the action of the court in directing a verdict for the defendant.

It has been urged on behalf of plaintiff that there should have been submitted to the jury the question of whether the action of those in charge of the car in stopping on the trestle was an invitation to the passenger to alight, or at least whether he did not have a right to understand it to be such invitation. It is shown by the evidence that the custom in the operation of the car was not to back. Decedent was a frequent passenger. He was a_ strong young man, entirely familiar with the trestle and its surroundings. The car stopped for some purpose. Did it stop with the intent to run back? The conductor did not signal it to do so. Did it start back instantly by its own recoil at the very moment of stopping, or did it, as testified to by Kuepfer, stand twenty or thirty seconds and then start back? Was it negligence, if the passenger understood that the stop was to let him alight, and the car stood twenty or thirty seconds, to get off and walk away from the car ?

All of these questions should have been submitted to the jury for its determination.

It could not be said as a matter of law, either that the company was not negligent in what it did, or that Cleverdon was negligent in what he did.

For error in taking the case from the jury and directing a verdict for the defendant, the judgment is reversed.


author: Swing, J.,

text:
    RESPONSIBILITY FOR COLLISION AT A STREET CROSSING.
    Court of Appeals for Hamilton County.
    The Cincinnati Traction Company v. Charles Dannenfelser.
    Decided, May 29, 1914.

      Negligence — Wagon Struck by Car at Street Crossing — Court Divides in Its Application of the Rule in the Steubenville Case.

    The charge of the court to a jury must be considered as a whole. The fact that a charge to the jury contains language which taken, alone is subject to criticism, does not require a reversal of the judgment, when the charge considered as a whole was a fair and proper one.

      Paxton, Warrington & Seasongood and Robert S. Marx, for plaintiff in error.

      Overbeck, Kattenhorn & Park and Jos. W. Conroy, contra.
    Jones, O. B., J.; Jones, E. Hy, J., concurs; Swing, P. J., dissents.
    The action below was one to recover for personal injuries suffered by plaintiff and the expenses of medical attendance, and for injuries to plaintiff’s horse • and wagon and its contents, caused by an electric oar operated by the defendant company running westwardly on Chapel street which struck plaintiff’s loaded express wagon in which he was driving northwardly on Ashland avenue across Chapel street.
    Plaintiff alleged that said ear was operated in a careless and negligent manner in that it was running at an unlawful and excessive rate of speed, that the gong was not sounded, and that the motorman had ample time and opportunity after observing plaintiff’s horse and wagon to stop said car and prevent said collision, but failed to do so. And plaintiff pleaded his own inability by reason of defendant’s negligence to avoid its consequences, and alleged that he had exercised due care and was without negligence on his part.
    • The answer was a general denial and a plea that plaintiff was injured by reason of his negligence and without negligence of the defendant, and that plaintiff was guilty of contributory negligence, which were denied by the reply.
    The trial below resulted in a verdict in favor of paintiff on which judgment was entered, and ,these proceedings were instituted in which defendant below seeks to reverse the judgment below and to have a judgment entered here for it, or if that can not be done, for a new trial.
    The record discloses that Ohapel street extends westwardlv from AVoodburn avenue, descending at a considerable grade for some 1200 or 1500 feet, being nearly straight, until it reaches Ashland avenue, where there is a considerable bend towards the south, and the street is nearly level, and after leaving Ashland avenue toward the west it has another bend and ascends a grade. Ashland avenue is the first street west of AVoodburn avenue extending across Chapel.street.
    The motorman of the car which struck the plaintiff had turned off the power and was coasting down this grade running at a speed which he admits was not less than eight or -ten miles per hour and which some other witnesses testified was much faster. The defendant was proceeding north on Ashland avenue about to cross Chapel street. There was a high tight board fence or billboard along the east line .of Ashland avenue and the south line of Chapel street at the corner.
    Plaintiff claims to have looked out for the car, but testified that he heard no gong or warning, and claims he did not see the car until it was too late to avoid the collision because of its speed.
    The motorman testified that he saw the horse about to cross the track when his car was seventy-five feet from the crossing, but not anticipating that the driver would attempt to cross he made no effort to stop the car until, he was within fifteen feet of the horse which was then on or across the track, and that he struck the wagon 'about the front wheel. It appears that the wagon was pushed at least ten feet beyond the west side of Ashland avenue, which was fifty feet wide, before the ear was stopped. The motorman was indefinite in his testimony as to within what distance he could stop this ear which was the usual open summer car type, but says that he stopped it on this occasion within a distance of about thirty feet.

      The record shows the usual conflict among the witnesses in their testimony as to the spied and signals and distances.
    The rules of law as to crossing a street railway track in such a case as this have been clearly laid down by our Supreme Court in the recent case of Steubenville & Wheeling Traction Co. v. Brandon, 87 O. S., 187, in which the excellent opinion written by Judge Spear gives a full discussion. ¥e deem it sufficient to refer to that" case and the principles there laid down, and do not regard it necessary to discuss the numerous eases collected and referred to in the briefs of counsel on both sides.
    This case is clearly a proper one for submission to a jury, and a careful reading of the record convinces us that its finding in .favor of the plaintiff as to the negligence of the defendant is sustained by the evidence and should not be disturbed.
    Numerous criticisms are made in the brief and oral argument by counsel for plaintiff in error, of the general charge of the court, quoting short paragraphs from it, particularly in defining “the burden of proof” and also “the proximate cause.” While the language quoted in the brief of plaintiff in error might be subject to criticism when taken alone, the whole charge must be read together and when so considered the charge of the court appears to be a fair and proper one. The court fails to find any error which might be regarded as prejudicial either in the general charge or in the giving or refusal to give the special charges.
    Complaint is also made as to the amount of the damages. When we consider that plaintiff suffered a fractured pelvis and that his personal injuries were serious and of a somewhat permanent character, and that he suffered also property damages to his horse and wagon, we do not believe that the amount of the judgment is excessive.
    A careful examination of the,record fails to disclose any error which may be deemed prejudicial to the defendant, and the judgment is therefore affirmed.
   Swing, J.,

dissenting.

I think the evidence clearly shows contributory negligence on the part of defendant in error and therefore dissent from the judgment of affirmance.


text:
    AMENDMENT OF PETITION AFTER. VERDICT.
    Circuit Court of Cuyahoga County.
    The Stowe-Fuller Company v. Louis J. Dominick.

    Decided, October 27, 1905.

      Error Lies to Action of the Court in Overruling Motion for Judgment Notwithstanding Verdict Though Case is Still Pending — Petition May be Amended to State Cause of Action After Verdict is Returned.

    1. Error lies to the overruling of a motion for judgment notwithstanding the verdict, even though a motion for a new trial is made and is undisposed of in the common pleas court.
    2. A court may allow the amendment of a petition after verdict and before judgment is entered, even though the petition in its original form did not state a cause of action.

      Henry ,& Couse, for plaintiff in error.

      Kerruish, Chapman & Kerruish, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.

      Affirmed without opinion, Stowe-Fuller Co. v. Dominick, 75 Ohio State, 593.

   J. Dominick brought suit against the Stowe-Fuller Company, filing a petition in which he alleges that while in the employ of the Stowe-Fuller Company he received a personal injury. In that petition he specified certain negligence which' he says the Stowe-Fuller Company was guilty of, by reason of which he was injured, and he' says in his petition that he was inexperienced in the work in which he was engaged at the time of the injury. He did not allege in the petition that he had no knowledge of the manner in which the sacks of lime, which fell over and injured him, were piled up. He did not allege that he did not have the means of knowledge which the defendant had of the manner in which the sacks were piled. But it is not necessary that an inexperienced man, as he says he was (he says he had only worked there ten minutes when he received the injuries) should aver that he did not have the means of knowledge, but it is, as we. understand the law, necessary that he aver, that he had not 1 lit. knowledge.

No demurrer was bled to this petition, nor was objection made to the introduction of evidence on the ground that the facts stated in the petition did not constitute a cause of action.

An answer was filed to the petition, the case went to trial and a verdict was returned for the plaintiff. Upon the return of the verdict the defendant moved for judgment notwithstanding the verdict. The ground upon which this motion was based wás that the petition failed to state a cause of action against the defendant in favor of the plaintiff. Plaintiff was then permitted to amend his petition and such amendment was made by the insertion of the words “that he had no knowledge of the manner in which said sacks were piled. ’ ’ That amendment having been made, the motion for a judgment notwithstanding the verdict was overruled. Tt is the overruling of this'motion which is claimed to constitute error. Following the overruling of this motion the court sustained a motion of the defendant for a new trial, and this ease is still pending in the court of common pleas. The defendant in error claims that the case is prematurely brought into this court; that so long as the case is pending in the court of common pleas this court can not entertain a petition in error to review the order of that court.

We hold against the contention of the defendant in error in this and we do so on authority of Davis v. Turner, 69 O. S., 101, and we are thus, brought to a consideration of the alleged error.

Section 5238, Revised Statutes, provides that:

“When upon the statements in the pleadings one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, although a verdict has been found against such party.”

It is urged here that the petition, as it stood at the time the verdict was rendered, did not state a good cause of' action against the defendant. Without stopping to read from the petition, we incline to the opinion that this is well taken, and that if a general demurrer had been filed to it, such demurrer should have been sustained. But the court permitted the plaintiff to amend his petition before passing upon the motion, and we hold that the petition as amended stated a cause of action in plaintiff’s favor. This amendment was allowed by the court under Section 5114, Revised Statutes, which reads:

“The court may, before or after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading by inserting other allegations material to the case,” etc.

■But it is said the court can not permit allegations to be made, under the name of “amendment,” which will state a cause of action, when no cause was before stated; that is, to use the language of the books, there must be something to “amend by” or there can be no amendment. This proposition appears to be supported uniformly by the authorities, and we must therefore inquire what is meant by the language, “there must be something to amend by.” If, as is urged by the plaintiff in error there must be, in the case of a petition, such a complete cause of action stated before an amendment can be allowed, then our practice from time immemorial seems to have been wrong.

Section 5.116, Revised Statutes, provides that:

“If the demurrer be sustained, the adverse party may amend, if the defect can be remedied by amendment, with or without costs as the court in its discretion shall direct.”

Section 5061, Revised Statutes, provides for demurrer to petition when it does not state facts sufficient to 'constitute a cause of action. This is denominated a general demurrer, and, as has already been said, it has been the universal practice to allow amendment to the petition after the sustaining of a general demurrer, where the petition undertakes to state a cause of action so plainly set forth that it is plain upon what the plaintiff relies, and where the amendment in no wise changes what the plaintiff clearly undertook to set out in the defective pleading. In the petition in this case there was something to “amend by” as those words are used in the books.

As said in Ellison v. R. R. Co., 87 Ga., 690:

“When an amendment needed is one of substance itself enough to amend by does not mean the same as ‘Enough to be good in substance without amendment.’ On the contrary, failing to be good in substance is generally the reason why amendment in substance is needed.”

The opinion of the court is most interesting, but time will not be taken to read from it.

The judgment of the court of common pleas is affirmed.


text:
    EXEMPTION FROM EXECUTION UNDER. THE STATUTE RELATING TO NECESSARIES.
    Circuit Court of Cuyahoga County.
    R. & G. Deacon v. Richard Powers.
    Decided, November 10, 1905.

      Attachment — Term “Necessaries” Defined.

    The word “necessaries” as used in the statute permitting the attachment of 10 per cent, of a debtor’s personal earnings when the claim is for necessaries, means necessaries for the debtor -or his family, and the personal earning's of a married man can not be attached on a claim for groceries furnished on his order to his mother with whom he boarded before his marriage.

      C. D. Frebolin, for plaintiffs in error.

      John Brown, contra.
    Marvin, J.; Winch, J., and Henry, J.. concur.
   This is a proceeding in error seeking to reverse the judgment of the court of common pleas.

These plaintiffs sued the defendant'before a justice of the peace and caused an attachment to be issued. The affidavit for the attachment sets out that the claim upon which the plaintiff brought suit was just and lawful; that he believes said plaintiff ought to recover thereon the sum of $30.42, and that the property sought to be attached is not exempt from execution; that said property is the personal earnings of the defendant; that the claim on which judgment is sought is for necessaries; that a demand in writing for the excess over and above 90 per centum of the- personal earnings of the defendant was made before bringing this action, which demand was not complied with as provided by statute. It is upon the ground that the claim upon which the suit was brought was for necessaries that attachment was issued by the justice, and it was for the personal earnings of the defendant.

The defendant moved to discharge the attachment and filed an affidavit in support of that motion. In that affidavit the defendant denies all and singular the statements and allegations contained in the affidavit of the plaintiff filed herein. Second, affiant says that the claim for which this action is brought is not for necessaries. Third, affiant says he is a resident of the state of Ohio and a married man living with his wife and the head and support of a family and that he is not the owner of a homestead in his own right or in the right of his wife, and that the money attached in this .action is the personal earnings of affiant, earned by him within ninety days next preceding the commencement of this action, and does not amount to the sum of $150. Therefore, affiant selects, elects to take and demands that the money herein attached be set off to him in lieu of a- homestead and for the necessary support of his family.

The justice overruled the motion to discharge the attachment and an appeal was taken to the court of common pleas, where the motion was sustained, and the ease is brought here on error.

The bill of exceptions filed here shows the facts to be as follows :

Plaintiffs are grocers. At the time of the transaction herein, defendant was a single man, living with his widowed mother and sisters. Defendant had had an account with plaintiffs, which had been paid by an order on his employer. The- mother was in the habit of ordering the goods. When the account sued on herein was begun, defendant with his mother came to plaintiff’s store. Plaintiff refused to give credit to defendant without an order from defendant on his employer to be held as security. Defendant said he would not again give an unlimited order, but would give one for $25, which is all he would “stand for.” He gave such an order. Goods were furnished on his credit by plaintiff, the mother usually ordering the same. The goods were consumed by the family. The son lived with his mother but paid board to her. Defendant is now married, and attempt is made to subject by attachment his earnings, upon this claim as for necessaries.

If the goods furnished by plaintiff were necessaries in the sense in which that term is used in the statute (Sections 6489 and 5430, Revised Statutes), then the attachment should not have been discharged.

Under the facts of this case, were the goods necessaries in that sense? They were groceries, such goods as are ordinarily necessary for the support of a family, but this defendant had no family to support. He was an unmarried man, and, unless his mother was ‘ ‘ destitute of means of subsistence- and unable, either by reason of old age, infirmity or illness to support * * * herself,” there was no legal obligation resting on him to support her (Section 7017-3, Revised Statutes). There is nothing in the agreed statement that she was in such condition. He was not the head of the family. He boarded with his mother, but he paid his board. Ilis rights in this action are exactly what they would be if he had ordered these goods furnished to any other person than his mother. They were not necessaries for him, and the word necessaries, as used in the statute, means such things as are necessary for the debtor and his family. That being so, we hold that as to him these were not necessaries, and the attachment was properly discharged.

The judgment of the court of common pleas is affirmed.


text:
    ENDORSER RELEASED BY DIVERSION OF COLLATERAL.
    Court of Appeals for Huron County.
    H. E. Frazier v. First National Bank of Ellwood City.
    Decided, October 3, 1913.

      Bills, Notes and Checks — Collateral Diverted by Payee Without Consent of Accommodation Endorser — Latter Released to the Extent He Was Injured Thereby.

    Under favor of Section 8300, General Code, and the rules of the law merchant an accommodation endorser is entitled to be protected in his right to collateral securities deposited with the payee, and such payee has no right to divert the securities without the consent of such endorser, and he will be released by such act, to the extent he is injured 'thereby.

      C. P. & R. D. Wickham and E. G. Martin, for plaintiff in error.

      G. Bay Craig, contra.
    Richards, J.; Kinkade, J., and Chittenden, J., concur.
    Error to common pleas court.
   The action in the court of common pleas was begun by the bank to recover on two promissory notes, one executed by Charles R. Brown and the other by the Huron Steel & Iron Company. Each of these notes was endorsed by H. E. Frazier, who was made a party defendant in that court. He filed an answer claiming as a defense, in substance, that at the time of making and endorsing the promissory notes on which he was an accommodation endorser, there was delivered to the bank .as collateral security certain negotiable paper, the market value of which was in excess of the amount of the notes upon which the action was brought.

He avers in his answer that after the delivery of this negotiable paper as collateral security, the defendant, Charles R. Brown, with the knowledge and consent of the bank, but without the knowledge or consent of H. E. Frazier, secured from the bank said collateral security and substituted therefor certain other collateral security. lie avers further that this substituted collateral security was of little value and was subsequently converted into cash and brought a sum entirely insufficient to pay the obligations signed by the answering defendant, and he asserts that the substituted security was itself withdrawn from the bank with the consent of its officers and that the proceeds arising from the sale of the collateral -were diverted and applied upon other instruments than those signed by the answering defendant. The allegations contained in this answer are denied by the plaintiff bank.

The case was tried in the court of common pleas without the intervention of a jury, and that court found all the facts in favor of the bank except that the journal entry specifically recites that “the court does not determine the facts set forth in the separate answer of II. E. Frazier, in regard to the deposit of collateral security, and the withdrawal thereof.”

The case as made, is one in which this court is required to decide as to the sufficiency of the answer of IT. E. Frazier. The trial court evidently reached the conclusion that the allegations contained in that pleading were immaterial, or at least did not constitute a defense to the claim set forth in the petition of the bank. That conclusion is said to have been based on the holding of the Supreme Court in Richards v. Market Exchange Bank Co., 81 Ohio St., 348. In the ease cited, Richards had signed an obligation as a surety and sought leave of court to file an answer setting up an extension of time whereby he contended that the instrument had been discharged. The Supreme Court held in that case that the codification of the law governing negotiable instruments provided in Sections 8224 and 8225, General Code, the method and the only method by which such instruments could be discharged. It is insisted in this case that the holding so made is determinative of the issues and requires an affirmance of the judgment of the trial court.

On the other hand, it is contended by counsel for Frazier that the decision just cited, is not a controlling one under the, facts disclosed in the record in the ease at bar; that the'statutes upon which that decision is based had no reference to a release from liability of an accommodation maker where collateral security pledged for his benefit had been wrongfully surrendered and the proceeds diverted without his knowledge or consent. Counsel for Frazier in their brief succinctly state their contention, as follows:

“We claim that if said notes were deposited as collateral to the notes in suit, they were so deposited for the benefit of the plaintiff: in error; and that if afterwards diverted to the security of some other notes upon which the plaintiff in error was not liable and without his knowledge or consent, that to the amount of their value, the plaintiff in error had a counter-claim to the notes in suit. The uncontradicted evidence of Mr. Edward Gardiner shows that they were equal in value to the two notes in suit, and so the defendant in error’s notes in suit were satisfied. ’ ’
‘‘What the defendant Frazier is claiming here is that the plaintiff who is the owner of the note, has no cause of action against him by reason of certain conduct of which it has been guilty; because having in its possession certain property that it was holding in trust for the satisfaction of the note, in violation of the trust, and in fraud of the rights, of Mr. Frazier, it diverted the property to another purpose. It is not a question of whether Mr. Frazier has been/discharged’ from the note; but rather whether the plaintiff is in a position to recover from him upon the facts in evidence. Mr. Frazier may still be liable on the note to some subsequent holder for value without notice, such as an endorsee, for instance, and so not ‘discharged’ from tjhe not»; and yet not liable to the plaintiff'by reason of the breach of trust of which it has been guilty., The authorities cited show that he, in common with sureties in all kinds of instruments, would not be liable under such circumstances to the person who had occasioned their loss.
‘ ‘ No attempt is made in Section 8225, General Code, to provide for a case like the one at bar. It is a case wholly outside of and independent of one note or its terms. It is simply a change in the status of the defendant, Frazier, occasioned and brought about by the breach of trust of the plaintiff. It was a situation which required of the defendant in error the utmost, good faith and honest dealing. It was a situation in which the defendant in error, under the law merchant, was bound to conserve Mr. Frazier’s interest and not surrender and throw away what had been put into its hands for his protection — what in fact belonged to him in equity. This duty rested upon the defendant in error, subject to any counter-claim the plaintiff in error might have against it. Mr. Frazier’s defense is in the nature of damages by way of counterclaim.
"The facts stated in the answer of the plaintiff in error constitute a complete cause of action in his favor and might have been set up in an independent action for damages.
"The defense of the counterclaim is wholly consistent with the right of the defendant in error to recover on its two notes. The plaintiff in error nowhere denies his liability on the notes. He is not asking to have the notes ‘ discharged. ’ He is counterclaiming against them for the amount and value of the collaterals, up to the amount of the two notes.”

The question at bar is not so much one of liability of a party on a negotiable instrument as it is the right of a surety or accommodation endorser to be protected by the preservation .of collaterals which have been deposited for his'benefit at the time he entered into the obligation. The courts have always jealously guarded the rights of a surety and it is inconceivable that the General Assembly by the adoption of the negotiable instrument law, intended to deprive him of all right to protection where collateral security deposited for his benefit has been improperly diverted and the proceeds applied on obligations in which he has no interest.

Richards v. Banks, supra, was a case involving the discharge of the instrument itself, while the case at bar is one in which the defendant sought protection of his rights as surety by insisting on the fulfillment of the contract whereby collateral security had been -deposited for his benefit, and we think that ease is not inconsistent with his claim.

If the argument of counsel for the bank is sound, then it would be possible in every case for a payee of negotiable paper holding collateral security to release the same at will and thereby deprive the surety of all protection. We can not believe, nor hold, that a surety, under such circumstances, is without remedy.

The subject of collateral security now under consideration does not appear to be embraced within the negotiable instrument statute, and it is provided in said statute in Section 8300, General Code, that any ease not-provided for, should be governed by the rules of the law merchant. . By those rules, Frazier would be entitled to the relief sought by him, if the allegations of his pleading are sustained by the evidence.

The trial court declined to pass on the issue raised in the pleading filed by Frazier. AYe think the court erred in so doing. For this reason, the judgment will be reversed and the case remanded for a new trial and further proceedings in accordance with this opinion.


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    ASSESSMENT FOR PAVING A STREET OCCUPIED IN PART BY A MARKET HOUSE.
    Court of Appeals for Hamilton County.
    Mary Eva Wolf et al v. City of Cincinnati and Ira D. Washburn, Auditor of said City.
    Decided, July, 1913.

      Assessment for Improving Street — Where Fixed at Fifty Per Cent. Not Inequitable Against Abutting Property, When.

    Where a market house occupies the middle of a street, extending across an entire square from one intersecting street to another, and the said street is improved with a new pavement on both sides of - the market house, an assessment of fifty per cent, of the cost, exclusive of intersections, against the abutting property is not inequitable but may be legally made and will not be enjoined.
    W. W. Prather, for plaintiffs in error.

      O. S. Bryant, Assistant City Solicitor, contra.
    Jones, E. H. J.; Swing, J., and Jones, O. B., J., concur.
   Plaintiffs brought an action in the court below for an injunction against the defendant, the city of Cincinnati and the auditor of the said city, seeking to enjoin the collection of an assessment against the plaintiff’s property bounding and abutting upon Pearl street in said city, between Broadway and Main streets, said assessment being made against their property to pay the expense of improving said portion of said street with bitulithie pavement, setting granite curbs, etc.

The lower court made a separate finding of facts and conclusions of law, and upon those findings and the arguments of counsel the cause was submitted to this court. The trial court found:

“That said Pearl street between Broadway and Main streets in said city is two blocks in length, crossing Sycamore at a point one-half the distance between Broadway and Main street, and that the portion of Pearl street between Broadway and Sycamore street is divided into two streets by a public market house running lengthwise of said Pearl street, which market house is bounded on both sides by said improvement for the entire length of said market house; that said market house is 400 feet long and 52 feet wide, and that portion of said Pearl street between Broadway and Sycamore that lies north of said market house is known as North Pearl street and is 400 feet long by 33 feet wide between curbs, and that that portion of said Pearl street between Broadway and Sycamore street lying south of said market house is' known as South Pearl street and is 400 feet long and 33 feet wide between curbs, and that both said North Pearl street and said South Pearl street were included and improved under said resolution and ordinance.”

It was also found by the lower court that the market house was a substantial brick structure containing stalls for the use of persons selling vegetables, fruits, etc., for which the city of Cincinnati receives an annual rent for each stall, and in which said merchandise is sold for profit.

It is contended by the plaintiffs in error, all of whom are owners of property abutting on said Pearl street, that the assessments for said improvement are illegal and void for the reason that no part of the cost of said improvement was assessed against the city of Cincinnati on acount of said market house, or that, admitting that property is not assessable, the frontage of said market house upon said so-called North and South Pearl streets should be included in estimating the total frontage and after same is done their property should onlyibear its ratable portion of said cost.

The resolution declaring it necessary to improve said portion of said Pearl street provided as follows:

“That fifty per cent, of the whole cost of said improvement, less the cost of intersections, shall be assessed by the foot frontage on. all lots and lands bounding and abutting upon the proposed improvement, which said lots and lands are hereby determined to be specially benefitted by said improvement.”

The ordinance passed later contained a similar provision. It will thus be seen that the city assumed the burden of paying fifty per cent, of the cost of said improvement, after, taking out the cost of the intersections. The percentage which the city shall bear in making an improvement is to be determined by council in each particular case. It seems to us to be the policy of the law that council should take into consideration all the circumstances and conditions of each improvement, and fix such a percentage to be borne by the city as will be equitable and just; in doing this it considers any public land that may be situated along the line of the proposed improvement or property which for any other reason might be exempt from assessment, the nature of the property assessed, and its ability to bear the burden placed upon it.

We must assume that in fixing the percentage in this case all those matters were taken into consideration by council and that the city undertook to divide this work equally with the abutting owners, because of the position of the market house in the center of said street. It strikes the court that this division was a liberal one upon the part of the city and that.there is nothing inequitable in the assessment as finally made.

It has been held that an assessment can not be levied against public property such as this market house was, for street or sewer improvements, and we think the ease of George Mathers et al v. City of Norwood et al, decided by this court and reported in the Court Index of February 21, 1910, is decisive of the question raised in this case. In its opinion, by Giffen, P. J., the court says:

“The resolution of the city council ‘that 98 per cent, of the whole cost of said sewers should be assessed by. the front footage upon all lots and lands bounding and abutting upon said improvements was not intended to embrace the strip of ground in the middle of the street which was dedicated for park purposes, because such public property is not liable to assessment for a sewer improvement. City of Toledo v. Bd. of Education, 48 O. S., 83.”

It is contended by counsel for plaintiffs in error that.the above case was decided upon the ground that the park in the center of the street in Norwood had natural drainage and was therefore not subject to assessment for a storm sewer. It is true that in its finding of facts the court finds such to be the ease, but the opinion above quoted shows that the court clearly held that the property was not assessable and was not to be considered in estimating the frontage. In its conclusions of law in the Nor-wood case the court found that “public property” is not liable to assessment for sewer improvement. Counsel for plaintiffs in error, in their brief, point out that in the resolution and ordinance passed by council, all the lots and lands bounding and abutting upon the improvement were found and determined by council to be “specially benefitted by the improvement.” This language, they claim, embraces the market house. We think not. It embraced only such lots and lands as could be assessed for said improvement. The resolution and ordinance were adopted and passed under requirements of law as notice to the owners who were to bear their ratable portion of the expense according to the ‘ ‘ foot frontage ’ ’ plan.

The words of the ordinance “which said lots and lands are hereby determined to be specially benefitted by said improvement” do not change or fix the mode of assessment, and refer only to the lots and lands which can be assessed. The city pays the whole cost for intersections and fifty per cent, of the remainder and in fixing this apportionment, liberal as it appears to be upon the part of the city, the location of the market house in the center of the street was obviously considered.

Judgment. affirmed.


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    ALIMONY ALLOWED INSANE WIFE DIVORCED BY HER. HUSBAND.
    Court of Appeals for Wayne County.
    Amos Knestrick v. Lide Knestrick.
    Decided, February Term, 1913

      Divorce and Alimony — Obligation to Support Wife Continues After Legal Separation Without Ser Fault — Considerations of Equity and Public Policy Govern the Amount to be Allowed.

    A decree of divorce granted a husband upon the ground of impotency of his wife, after they had lived together in cordial and affectionate relation for sixteen years and after she had become insane, cannot be said to be based upon the wife’s aggression or fault, and does not absolve him from liability to support her; hence, reasonable alimony should be allowed, based upon the husband’s financial condition and ability to support her, and her pecuniary needs, such as will save, her from becoming a charge on the charity of her friends, relatives or the state.

      Wieser & Ross, for plaintiff.

      Frank Taggart, contra.
    Shields, J.; Voorhees, J., and Marriott, J., concur.
    Appeal from common pleas court.
   This was an action in the court of common pleas of this county brought by the plaintiff against the defendant for divorce. The defendant, an insane person, through her guardian, filed an answer and cross-petition claiming alimony. A divorce was granted by said court to the plaintiff and the action was appealed to this court upon the allowance of alimony, and the same was heard upon evidence.

It appears that these parties were married in October, 1879, and lived together as husband and wife until July, 1895, when the defendant became insane and was so adjudged by the probate court of this county. That no children were born of such marriage. That in July, 1906, Dr. A. L. Hoisington, a brother of the defendant, was appointed guardian of her person and estate. That in September, 1909, the defendant left the home of the plaintiff in Wooster, Ohio, and went to the home of said guardian in Fremont, Ohio, where she remained, and the plaintiff continued to reside in Wooster. That after the defendant was adjudged insane, she was committed to the Massillon State Hospital from which she was released, upon the application of the plaintiff, who afterward placed her in a private hospital, and failing to show improvement in her mental condition, she was again committed to the Massillon State Hospital where she remained some time, and later on returned to live with her husband where she remained until she went to Fremont, as stated. That the plaintiff is now and for several years past has been a practicing physician in Wooster. That in 1906 he made an assignment for the benefit of his creditors,'and shortly afterward paid his creditors in full. That at that time, under said assignment, the defendant’s contingent right of dower in the plaintiff’s property was fixed at $628.45, which was paid to her guardian. That the defendant then owned and now owns the one undivided half interest in seventy acres of land in Wayne county, Ohio, valued by different witnesses at figures ranging from $50 to $85 per acre, from which real estate she receives an annual income of $100, which said sum before 1906 was paid to her husband, and after that time to her guardian. That the plaintiff’s income from said practice averages at least $10 per day, less expenses, and that he possesses property valued at about $3,800.

In his petition filed for a divorce the plaintiff says that prior to the time the defendant became insane “she was impotent and guilty of gross neglect of duty toward this plaintiff in that she refused to copulate and cohabit with him and neglected other duties.” The guardian .of the wife by answer denies the material allegations in said petition, and in a cross-petition charges the plaintiff with gross neglect of duty in failing to provide his wife with the necessities of life and that she has been so supplied by the charity and kindness of her friends, and that her separation from the plaintiff was caused by the plaintiff’s ill treatment of her, to which said cross-petition the plaintiff filed a reply in the nature of a general denial.

The appeal here is upon the allowance of alimony made by the court below. The rule laid down in the case of Cox v. Cox, 19 Ohio St., 502, has invariably been recognized and adhered to by-, this court in cases of this kind in reopening for trial all the issues of fact upon which the rights of the parties in respect to alimony depend. Ordinarily the husband is not called upon to support his wife when she abandons him and his home and voluntarily goes elsewhere to live, especially if the home so offered her is a reasonable one under the circumstances. This leads us to inquire of the circumstances under which the defendant is alleged to have left the plaintiff’s home. The evidence upon the part of the plaintiff tends to show that she was provided with a comfortable home, reasonably well furnished, that he cared for and supplied the defendant with clothing and other necessaries of life, and that the relations between the parties, at least up until July, 1895, were most cordial and even affectionate. The plaintiff himself testified that up to said date “she was helpful about the house and was a wife to me.” He further testified that after said date he continued to treat and provide for her properly, and so continued until about the--day of September, 1909, when Mrs. Hoisington, the wife of the defendant’s said guardian, while visiting at the plaintiff’s home, and while he was absent and without his knowledge, persuaded the defendant to pack her clothing and personal effects and store the 2nost of them with a neighbor, and go to her home in Fremont with' her, and where, as before stated, she has remained. Having left the home under these circumstances, the plaintiff testified that since said time he has made no effort to have his wife return to him, that he has not visited her, that he has not seen her, that he has not written to her nor to said guardian or other person iai Fremont about her, nor has he contributed or offered to contribute anything to her support, except the sum of $50 allowed by this court at its former term as alimony pending the suit. Opposed to. this is the testimony of Mrs. Hoisingten, who testified that the defendant frequently visited her and her husband in their home in Fremont prior to September, 1909, that she remained there with them weeks and even months at a time, and that the plaint iff at least during some of such visits also visited them while the defendant was visiting them. She further testified that prior to the -day of September, 1909, when the defendant left her home in Wooster, she had arranged with the plaintiff that she (the witness) was to visit at the plaintiff’s home and that the defendant was to return to her home in Fremont with her, and that in pursuance of such arrangement she visited the plaintiff at his home and the defendant returned to Fremont with her. That the plaintiff had full knowledge of the defendant leaving his home, and assented thei’eto, and that he was at his home when she so left. She further testified that she found the defendant lodging alone, in one of the back rooms in the plaintiff’s house, upstairs, that she had no shoes and was otherwise 'wanting in wearing apparel. Upon calling the attention of the plaintiff to this condition, the witness testified that the plaintiff answered “that if any purchases were to be made for her they would have to be made out of moneys coming from her own property.” That on other occasions when visiting at the plaintiff’s house she testified she observed the defendant’s necessitous condition and that she (the witness) had supplied her with clothing. Said witness also testified that the defendant is a great charge to her family, requiring her meals to be carried to her in her room and requiring also other special and personal services which one in her frail and mental condition craves. The guardian also testified that when he last visited the plaintiff, the defendant was occupying a back room alone, upstairs, in the plaintiff’s house, and ■when she last came to his house the defendant was poorly clothed. He also testified to the nature and extent of services necessary to her proper care, that she is in poor health and that her condition frequently requires medical attention, adding that “if she was well mentally, she could not maintain herself.” The plaintiff denied that the defendant was not properly cared for in his house, and he also denied that he did not furnish her all needful clothing, and he says the defendant refused to wear some of the clothing he did furnish because of her refusal to see people who called at his house and because of her aversion to dress.

It will thus be seen that the evidence is conflicting as to the circumstances under which the defendant left the plaintiff’s home, but it may well be said that whatever the circumstances, they are immaterial in the face of the admitted fact that the defendant was then an insane woman. With her reason lost, she was no longer a responsible agent. In her conduct, she was not accountable to the civil law or to the law's of society. True, the decree of divorce seems to have been granted on the ground of her impoteney — a strange charge to be made by the plaintiff after these parties had been married and presumably cohabited together for some sixteen years, and after she had been adjudged insane — an issue with which this court has nothing to do, but the fact that a divorce was granted does not absolve the husband from liability to support his wife. The cause, if there was a cause, was not of the wife’s aggression or sinning, for her reason was dethroned by a power over which she had no control. The charity of the law does not refuse its benefits to one so afflicted, much less punish the victim. The sacredness of the family relation supplemented with the husband’s obligation, under the circumstances here shown, unite in emphasizing this defendant’s claim to consideration upon the court, and while the plaintiff’s financial condition is not to be ignored but considered on the one hand, the helpless-and stricken condition of the defendant is not to be lost sight of on the other. The plaintiff is fifty-nine years of age, apparently in good health, possessed of a practice in medicine yielding him an average income of $10 per day, less expenses, has about $3,800 w'orth of property and has at least a fair earning capacitj' in his profession. The defendant is fifty-four years of age and is possessed, in her own right of her inchoate right of dower and her interest in certain real estate as hereinbefore stated. Such reasonable allowance of alimony should be made the defendant in view' of the financial condition of the husband as will save her from becoming a charge on the charity of friends, or relatives, or the state. This view we think is sanctioned both by good morals and by the practice of our courts. Upon the subject of granting alimony the distinguished judge announcing the opinion in Fickle v. Granger, 83 Ohio St., 106, says:

“Alimony is an allowance for support, which is made upon considerations of equity and public policy. It is not property of the wife recoverable as debt, damages or penalty. It is based upon the obligation, growing out of the marriage relation, that the husband must support his wife, an obligation which continues even after a legal separation without her fault.”

Considering that the plaintiff has not paid anything toward the support of the defendant since September, 1909, except the alimony allowed her pendente lite, hereinbefore referred to, we are of the opinion that the defendant should have and it is hereby decreed that she have as alimony to this date the sum of $500 payable as follows, to-wit: $250 on or before March 1, 1913, and $250 on or before April 1, 1913, and the further sum of $400 per year hereafter, commencing April 1, 1913, payable quarterly, that is to say, $100 every three months from April 1, 1913, such payments to continue until the further order of this court.