text:
    VALIDITY OF AN ASSESSMENT FOR. AN OUTLET'DITCH.
    Circuit Court of Sandusky County.
    H. A. Winters v. John Fangboner et al.
    Decided, 1907.

      Ditches — Validity of Assessments Against Lands on Account of Construction of an Out-Let Ditch — Benefits to Lands with Natural Drainage which Cast Their "Waters into the Ditch.

    A land owner is not entitled to relief from the assessment for an outlet ditch, where it appears that the assessment is only one dollar an acre, and his claim for relief is based upon natural drainage of the land in question, hut water flowing down from these lands finds its way into the out-let ditch,, whereas it was formerly east upon lower lands of the plaintiff and adjoining owners.

      Richard & Heffner, for plaintiff.

      Meek & Dudrow, contra.
    Parker, J.; Haynes, J., and Hull, J., concur.
   This action comes into this court by appeal. It is brought by Mr. Winters to enjoin the collection of certain ditch assessments.

The petition sets forth that in 1891, Mr. Wahl petitioned the commissioners of Sandusky county, Ohio, and the commissioners of Erie county Ohio, for the straightening of a certain ditch, called the “Wahl ditch,” along a certain route described in the petition; that the commissioners of said counties in joint session found that the ditch would be necessary, and that its construction would be conducive to the public health and welfare, and thereupon ordered that said improvement should be made, and the improvement was thereafter made, and the plaintiff’s lands were assessed therefor, as follows:

A certain tract of 120 acres, which is described as tract 1, was assessed $210; a certain 'tract of 10 acres, described as tract 2, was assessed at $70; a certain tract of 16 acres, described as tract 3, was assessed at $28 ; a certain tract of 40 acres, described as tract 4, was assessed at $70 and a certain tract of 140 acres, described as tract 5, was assessed at $89.70.

So that it appears that he had 333 acres assessed, and that the total amount of the .assessment upon these different tracts was $369.70, or a little over a dollar per acre.

The plaintiff complains that this assessment was not made according to the actual benefit. He sets forth what he supposes to have been the theory upon which the commissioners proceeded in making the assessment, viz., that they proceeded upon the theory that they had a right to levy an assessment upon all the lands that cast waters into this.ditch — which is an out-let ditch — all of the lands comprised within the bounding water-sheds, and he says that gross injustice was done in the apportionment of the cost of this improvement, and he asks that the consummation of this injustice may be prevented by injunction.

The averment as to these assessments not having been made-according to the actual benefits to the lands is denied by the defendants in their answer, and it is -averred therein that Mr. Winters was one of the petitioners for the ditch, and there are certain other facts averred therein in respect to plaintiff’s conduct in the matter, which the defendants contend give rise to an estoppel.

It appears that Mr. Winters was one of the petitioners for this ditch improvement; that his lands, consisting of these five several tracts, lie contiguous to one another, and are in fact one body of land. The tracts extend quite a long distance from north to south, but are not so wide from east to west. This outlet ditch begins near the north part of his lands, and extends thence through these and other lands into Erie county, and to the outlet in Sandusky bay.

It seems to have been quite a large and important improvement. It is described by the witnesses as a “dredged ditch,” because a dredge was used in its construction. It was constructed through marsh land, and it was necessary on account of the condition of the lands to dig it with a dredge.

Part of these lands of Mr. Winters are marsh lands, wet and boggy, and at certain seasons of the year they overflow, especially the north parts. The whole territory thereabout is quite flat. From the southern to the northern extremity of his land there is a fall upon the surface of about fourteen feet, and along the east side of all of his lands (excepting tract 4, which is about 40 acres), there has been for years a township ditch which affords him some drainage facilities, but all the water was not carried away from' the lower part of this land until after the construction of the improvement mentioned in the petition. Theretofore the water backed up quite a distance, and during wet seasons of the year it overflowed his lands and the lands of others in .that locality.

I have said that Mr. Winters was one of the petitioners for this ditch, and he appears to have been present at the joint hearing before the commissioners of these two counties when they had this improvement under consideration, and he was one of the promoters, and the testimony is undisputed that on the day the apportionment was made of the costs and expense that would arise from the construction of this improvement, he was present and made no objection to the amount it was then stated in his presence would be assessed upon his lands for this improvement, to-wit, the amount afterward assessed thereon of which he now complains.

We are not advised whether the burdens of this improvement have been fairly and equitably apportioned upon all of the lands of the different proprietors that have been assessed. We have no evidence upon that subject.

The contention of the plaintiff is not upon the ground that there has been an unfair distribution of the burdens between himself and the other proprietors, but he says that his lands have been assessed beyond the amount of the benefits accruing to them; and he invokes the aid of the court under Section 4911 of the Revised Statutes, which authorized a court of equity, even where the proceedings are legal and regular, to correct and remedy gross injustice, if it shall appear.

These assessments were distributed in six semi-annual payments. Two of the semi-annual payments were made by Mr. Winters without objection. The third and fourth were made by him under -protest; that is to say, when he went to the treasurer’s office, he offered to pay all of his taxes excepting the installments then due on account of these assessments, and the treasurer declined to receive any of his taxes and assessments unless he would also pay these. That occurred upon two occasions; and upon this statement being made by the treasurer, without more ado other than signifying his objection, and saying he did it under protest, plaintiff proceeded to pay these as well as the other taxes and assessments. He asks now that in adjusting his rights, the court shall take into 'Consideration what he has paid upon the various tracts, and allow anything paid on any tract, in excess of the amount justly payable thereon, as a credit upon.the unpaid assessments upon other tracts.

The view we take of the case will not require us to consider whether or not this may in any ease be done. The contention of the plaintiff is based upon the theory, as it seems to us, that no lands can be assessed for such an improvement except such as at the time of the making of the improvement, or subsequently thereto, receive a direct -benefit by way of drainage then or thereafter made or provided for.

We have considerable testimony here upon the part of the plaintiff as to the distance toward the south, up this township ditch, that water may be backed or banked by 'building a dam across it at the lower end. Experiments have been made, and it does not appear that the water can be backed up beyond the middle of tract 2, and the south part of tract 4, which lies immediately east of tract 2.

' Now tracts 1 and 5, which are the largest tracts, 1 being, the 120-acre tract, and 5 being the 117-acre tract, and which are the tracts that plaintiff says are not benefited at all by this improvement, can not be affected by such backing up of the waters in this township ditch. It appears to be demonstrated that, even before the construction of this out-let ditch, tracts 1 and 5 might have been so thoroughly drained into this township ditch that all the water would have been carried therefrom to some point below. That has since been 'done; and it appears that the carrying of the water off of tracts 1 and 5, has not been facilitated by the construction of this outlet.

From this state of facts, it is contended that tracts 1 and 5 are not so benefited that any part of the assessment may be lawfully levied thereon.

It is contended by counsel for plaintiff that a decision of this court, in Buckley v. Commissioners of Lorain County, 1 Circuit Court Reports, page 251 (not exactly a decision of this court, but a decision of the circuit court of this circuit, before the circuit was changed), sustains their contention and view of the matter. They also cite as authority in support of their position the case of Blue et al v. Wentz et al, 54 O. S., 247.

In those cases it is distinctly held that it is not proper for the commissioners to levy ditch assessments upon land simply because water from such lands may or does find its way into the ditch improvement. But the fact was in each of those eases, that the water found its way into the ditch, not by reason of the improved drainage thereby afforded, or by reason of the flow of the water being facilitated by the industry of man, but by reason of the fact that the natural drainage carried the water down to the outlet. It does not appear to us in the case at bar that the natural drainage from tracts 1 and 5 would have carried the water therefrom to the outlet afforded by the improvement, or further than the lands lying immediately north of said tracts.

The holding in the pase of Blue et al v. Wentz et al, is that:

“Where the lands of an owner, by reason of their situation, are provided with sufficient natural drainage, they are not liable for the costs and expenses of a ditch necessary for the drainage of "other lands, simply for the reason that the surface water of his lands naturally drain therefrom to and upon the lands requiring artificial drainage.
“A lower tenement is under a natural servitude to a higher one to receive from it all the surface water accumulating from falling rains and melting snows or from natural springs, that naturally flow from it to and upon the lower one. This advantage of the higher tenement is a part of the property of the owner in it, and he is not indebted to the lower tenements therefor.
“In making an assessment on lands, benefited by artificial drainage, the extent of their water shed is' not the proper rule, but the amount of surface water for which artificial drainage is required to make them cultivatable, and the benefits that will accrue to the lands from such drainage. However much water may fall on them or arise from natural springs, if, by reason of their situation, they have adequate natural drainage therefor, they are not liable for the cost of artificial drainage to other lands.”

In the discussion of the ease in the opinion of the court, it is distinctly indicated and emphasized that the rules laid down limiting the authority of the commissioners to extend the assessments beyond the immediate neighborhood of the improvement itself are based upon the right of a proprietor to have and enjoy, without charge or expense, his advantages of natural drainage. There is no question, I think, but that assessments for an outlet ditch may be extended so as to include all lands the drainage whereof is facilitated by artificial means, where the improvement on account of which they are assessed furnishes an outlet for the waters thus brought down from such lands.

If this township ditch and this county ditch, for instance, had both been constructed at one time, as one single continuous improvement, we think it is apparent that applying correct rules and principles applicable to the levying of assesments, the cost could have been assessed upon all these various tracts of land, and that the cost need not to have been limited to the amount that plaintiff might be required to pay for so much of the drainage as would be afforded by the township ditch, but, because of his having given this outlet, his assessment -might include a just proportion of the cost of continuing the ditch to the ultimate outlet in Sandusky bay; and in that ease the assessment might have been as much as he has been assessed, on the two improvements without exceeding his benefits or his just proportion of the burdens.

These different tracts described as tracts 1, 2, 3, 4 and 5, though lying in one body, seem to have been treated by the commissioners as separate and distinct tracts and perhaps we should treat them so, perhaps we are required to do so; and we will consider the rights of the plaintiff viewing them in that light; and to make our views clearer we will treat tracts 3 and 4 (the lower or northern tracts) as if they belonged to another proprietor, as if they were not owned by the plaintiff at all. In that case, would the commissioners have a right to assess any part of the cost of this outlet ditch upon tracts 1 and 5 belonging to this plaintiff ?

According to the testimony of the witnesses as I have said, tracts 1 and 5, as well as the other lands, are flat lands, although they lie from twelve to fourteen feet above that part of the northern portion of plaintiff’s land where this outlet ditch begins. They require considerable artificial drainage. They had been tiled and ditched to some extent before this other ditch was dug, but they have been tiled and drained more effectually since.

It appears that part of tract 5 was marshy and In a bad condition and not cultivatable before this ditch was dug. One of the witnesses testified that in the spring of the year it was impossible to go upon part of it with horses, because they would become mired. And upon tract 1 was a large swail of an acre and a half or two acres, in which water stood the year round, and where persons skated and cut ice in the winter and fished in the summer, and in which, according to the testimony of one witness, who was very specific upon the subject, there were certain “fish known as pike that would swim in the water. ’ ’

After this outlet ditch was dug, and' not before, the boggy land of tract 5 was drained so as to be subject to cultivation, and the swail in tract 1 was drained so that it was made dry and subject •to cultivation, and the remainder of these tracts were in some measure improved, to exactly what extent, measured in dollars and cents, we will not pretend to say; but we can not' say that they were not improved after the digging of this outlet to an extent that would justify the assessment upon tract 5 of $89.75, and upon tract 1 of $210.

We think that enough land was reclaimed in tract 1, to nearly justify the assessment thereon. As I have pointed out, the assessment upon the whole territory amounted to only about $1 per acre, which does not seem to ns, who have been accustomed to ditch assessments in northwestern Ohio, to be a very heavy assessment.

Now while it may be true that it was possible and practicable to have drained tracts 1 and 5 as effectually before the construction of this outlet as after, yet we must consider the consequences to other property to have done that before the outlet was constructed — •the consequences to the proprietors below, if we treat these lower tracts as lands of other proprietors. It must be considered whether plaintiff had a right to thus drain tracts 1 and 5; whether before he obtained his outlet he was in a situation where he might do it lawfully and without being subject to a claim for damages. We think he had not that right, and that the benefits that accrued to him from the construction of this outlet, were these: that, being the owner of the lower tracts, he was enabled to cast the waters down upon the same from tracts 1 and 5 without doing damage to the lower tracts, and with respect to the lower lands of other proprietors he was relieved of liability for damages. He has drained this large pond through the lands below without injury thereto, but, according to the testimony, if this had been done 'before this outlet was constructed, the water carried down to the lands below would have backed up in the township ditch, and would have overflown the lands below near where the outlet ditch begins, so as to damage the lands of plaintiff and those of his neighbors lying in that locality.

As throwing some light upon the legal phase of this situation, I refer to the case of Sidney C. Butler v. Rufus Peck, 16 O. S., 335. The syllabus reads:

“Where, upon the lands of ‘B’ there is a marshy basin, from which, in times of high water, a portion of the water contained in the basin overflows its rim and naturally finds its way through a swale to and upon the lands of ‘P’ while the remaining portion of the water of the basin has no outlet, and is dissipated by evaporation, ‘B’ can not rightfully, by an artificial drain, conduct the water that has no natural outlet from the basin and along said swale, so as to cause them to flow upon the lands of ‘P’ to his damage.”

Now that case, as stated in the syllabus, and as more fully and distinctly stated in the report, described the situation of the plaintiff here, with respect to the injury and damage that would be done to his lower tracts and those of his neighbors by drainage of marshes and swamps and swails, if it were done before the opening of the outlet that this new improvement gives to them.

Upon this subject of the servitude for drainage, of lower lands to lands lying above, I read from this same report, at pages 342 and 343:

“The principle seems to be established and indisputable, that where two parcels of land, belonging to different owners, lie adjacent to each other, and one parcel lies lower than the other, the lower one owes a servitude to the upper to receive the water which naturally runs from it, provided the industry of'man has not been used to create the servitude. Or, in other words, more familiar to the students of common law, the owner of the upper parcel of land has a natural easement in the lower 'parcel, to the extent of the natural flow of water, from the upper parcel to and upon the lower.”

Besides his own lower tracts there were lands of other proprietors in that locality which were overflowed somewhat by water from this township ditch, and an increase of the overflow upon which would have been caused by the complete drainage of the waters from tracts 1 and 5. By making this improvement, the plaintiff is given the means of easting down the water from tracts 1 and 5, without increasing the damages to his lots below, and without incurring liability for damages to other lots below, and therein and thereby we think he has received a very substantial benefit to tracts 1 and 5 as well as to his other lands, and we are not prepared to say that these benefits are not as great as the amount assessed. Therefore the petition will be .dismissed and.the.costs adjudged against him.


source: Caselaw Access Project

license: Public Domain

text:
    LIQUIDATED DAMAGES FOR. BREACH OF COVENANT AGAINST RELEASING.
    Circuit Court of Hamilton County.
    George F. Fish et al v. John F. Robinson.

    Decided, June 24, 1911.

      Lessor and Lessee — Covenant Against Releasing — Liquidated Damages —Remedy of Lessor in the Event of a Breach — Hearing of Testimony Unnecessary, When.

      1. Where the pleadings disclose all the facts, the introduction of evidence is unnecessary, and a judgment will not be reversed for refusal of the trial court to hear testimony as to the circumstances surrounding the parties at the time the contract was made.
    2. A stipulation in the lease of a theater for payment of $5,000 to the lessor as a forfeiture in case of the releasing of the property,'will not be regarded as ’a penalty, but. treated as an agreement for liquidated damages in that amount; and In case of violation of the stipulation the lessor may elect whether he will sue for the sum named as liquidated damages or for a forfeiture.
    3. An agreement between a lessee and one to whom he has surrendered possession of the property, that the lessee is to be saved from all losses and is to receive rent from said third party who is to pay all bills, does not establish a partnership between them but constitutes a renting to said third party.

      Kramer & Bettman, for plaintiffs in error.

      Sayler <& Sayler, eontra.
    Smith, P. J.; Swing, J., and Jones, J., concur.

       Affirming Robinson v. Fish et al, 8 O. L. R., 520.

   By consideration of tbe trial court, defendant in error recovered a judgment upon the pleadings in the above case, to set aside which this action is brought.

The pleadings disclose that defenadnt in error, being the owner of an opera house building in Cincinnati, leased the same to plaintiffs in error by indenture of lease dated September 5, 1904, for a term ending on the 19th of June, 1907, at a rental valúe of $9,000 per year, the lease' containing a provision that plaintiffs in error should not sell, rent, transfer or assign said leased premises, or any part thereof, without the written consent of the said lessor, under a forfeiture of $5,000; that in pursuance of said contract of lease, said plaintiffs in error entered into possession of said premises under the terms of the lease, the same being for theatrical purposes; . that on December 26, 1906,. a few months prior to the expiration of said term, said plaintiffs in error executed a contract with one Canfield, by the terms of which Can-field assumed control of the property in question and was to pay rent for the same to plaintiffs in error, and thereafter under this contract Canfield conducted the theatrical business in said premises.

Plaintiffs in error complain that the judgment of the court below is wrong for the reasons:

1st. That evidence should have been introduced to show all the circumstances surrounding the parties at the time the contracts were made.

2d. That defendant in error waived the condition and covenant in the lease against renting, and estopped himself from enforcing said contract for the reason that after December 28, 1906, the date of the execution of the contract between Canfield and plaintiffs in error, he accepted rent under the lease with bnowlegde of the contract.

3d. That the provision against renting or assigning said lease is one for a forfeiture and not for liquidated damages; and

4th. That as a matter of fact there was no assignment of the .lease in question; but that the contract between plaintiffs in error and Canfield was that of a partnership.

We do not think any of these contentions of plaintiff in error are well taken. The pleadings themselves sufficiently set forth the facts existing under the lease and contract to Canfield, and what was done thereunder.

There was no waiver on the part of defendant in error of the covenant not to transfer the lease, as defendant in error would have the right to sue upon the covenant and recover the liquidated damages mentioned in the lease, or for a forfeiture under the terms of the lease.

Under the ease of Doan v. Rogan, 79 O. S., 372, the court is .of the opinion that the $5,000 mentioned in the lease as a forfeiture in case plaintiffs in error should assign or transfer the •lease, was the sum fixed and intended by the parties as liquidated damages for the breach of the contract of lease, and was not ^ penalty. This we gather from the entire instrument itself.

Plaintiffs in error further contend that the contract between them and Canfield was not an assignment of the lease in question but was only a contract of partnership between them. In this contention we can not agree with plaintiffs in error. Under this contract plaintiffs in error were to receive rent from Can-field for the balance of the term, but -not to be liable for any losses, and all bills were to be paid by Canfield; clearly the instrument shows that it was an assignment of the lease and not a contract of partnership.

The pleadings fully disclosing all the facts, the introduction of evidence was immaterial and unnecessary.

The judgment of the court below upon the motion for judgment, being correct, the same is affirmed.


text:
    CULVERT WITHOUT GUARD-RAILS IN CITY STREET.
    Circuit Court of Shelby County.
    City of Sidney v. Franciska Schmidt.
    Decided, October Term, 1910.

      Negligence — Responsibility of a Municipality for Maintaining a Culvert Without Guard-Rails — Question of Adjudication of a Former Trial —Jury Must Determine the Question of Contributory Negligence, When.

    1. A culvert which forms part of a city street is under control of the city council, and the municipality, as well as the county commissioners,' is responsible for maintenance of guard-rails thereon.
    2. In the second trial of a case, wherein a reversal of a judgment in favor of the plaintiff has been obtained upon the ground that it is against the weight of the evidence and it does not affirmatively appear in the record that the evidence is substantially the same as at the former trial, it is not error for the trial court to refuse to direct a verdict for the defendant upon the ground that the former judgment of reversal was an adjudication.
    3. The Act of May 9, 1908 (99 O. L., 454, 11577, G. C.), denying the right of the same court to grant more than one reversal in favor of the same party in the same action, upon the ground that the verdict is against the weight of the evidence, applies in the circuit court where the judgment to be reviewed was rendered and the proceedings in error were brought after its enactment.
    4. Whether one in the lawful use of that part of the street intended for pedestrians was guilty of contributory negligence in turning out upon the gravel and rough stones, which caused her to trip and fall over the side of a culvert which was not provided with guard-rails, is a question for the jury which can be reviewed only by a court having jurisdiction as to weight of testimony.

      J). Finley Mills, City Solicitor, and John F. Wilson, for plaintiff in error.

      Percy B. Taylor and Charles C. Marshall, contra.
    Allread, J.; Dustin, J., and Sullivan, J., concur.
   The defendant in error, Franciska Schmidt, recovered judgment in the court of common pleas for personal injuries resulting from a fall off a- culvert, thirteen feet in height and forming part of North Main street in the city of Sidney.

The basis of the cause of action is the alleged negligence of the city in maintaining the culvert, without guard-rails or other safe-guard, by reason whereof the plaintiff in the lawful use of thé street without her fault, in attempting to pass over the culvert, fell therefrom and was injured.

The city prosecutes error here to the judgment so recovered. Upon the admission of the petition that the culvert and highway of which it is a part was constructed by the county commissioners, and that the city received no part of the bridge fund, it is contended that there is no cause of action shown against the city.

In support of this contention counsel cite .Section 4941-1, Revised Statutes (7563, General Code), requiring boards of county commissioners to maintain guard-rails “on each end of a county bridge, viaduct or culvert more than five feet high.” But in such cities and villages as by law receives part of the bridge fund levied therein, such guard-rails shall be erected by the municipality. The petition states that this culvert was a part of the municipal street. It was, therefore, as a matter of law under control of the city council, who by the terms of Section 2640, Revised Statutes (3714, General Code), are bound to keep the streets and bridges forming .part thereof reasonably safe for public travel. City of Troy v. Brady, 67 O. S., 65; Cavey v. Cincinnati, 12 C.C.(N.S.), 285.

Section 4941-1 imposes a primary obligation upon county commissioners in the prescribed cases to construct guard-rails, but does not limit nor supersede Section 2640. Both sections are available for protection of the traveling public.

The ease of Village of Mineral City v. Gilbow, 81 O. S., 263, is not opposed to, but in harmony with this view. . The distance, in that ease, of the dangerous excavation from the street was such that the street itself was not defective nor unsafe.

There are other objections to the petition, but in our view the petition states a cause of action. And it also follows that the' trial court did not err in the charge in stating that the culvert was under control and supervision of the city.

Reliance is placed upon the motion of the city for an instructed verdict offered at the close of plaintiff’s evidence and renewed at the close of all the evidence. This motion was overruled by the trial court.

The motion is supported here upon the claim (1) that the judgment of reversal of this court upon the former petition in error is an adjudication; and (2) that the evidence is insufficient.

As to the adjudication it is insisted that the case presented here is substanially the same as upon the former hearing; that the decision of this court upon the former petition in error was binding upon the trial court in the second trial, if the evidence was substantially the same and called for an instructed verdict for the city. The case of the Michigan Mutual Life Insurance Company v. Whitaker, 9 C.C.(N.S.), 126, is cited. In that case the transcript of evidence of the former trial was offered in evidence upon the second trial, thereby establishing in the view of the circuit court the identity of the case. But the Supreme Court (77 O. S., 518) without denying the primary doctrine, as to the effect of the adjudication of the reviewing court, held that the record under review must affirmativey show the identity of the ease to justify the application of the doctrine.

In the present case the plaintiff in error refiled in this’ court the former bill of exceptions with exhibits detached, and seeks thereby to differentiate the present case from the Whitaker case; but the former bill of exceptions was not presented to the trial court and is not embodied in the bill now under review.

Confining our consideration to the present bill of exceptions, we find that the witnesses whose testimony appears in Schedule “A” were called, sworn and examined.

In a stipulation appearing in the schedule in connection with the recital that the testimony of certain witnesses were read, it may be inferred that such testimony was the same as upon the former trial..

Assuming that the certificate of the bill is capable of reconeilation with the schedule, it still appears that Franeiska Schmidt testified anew and it does not appear but that Otis McCreary and Dr. C. E. Johnston testified orally.

The cross-examination of Mrs. Schmidt contains reference to portions of her formdr testimony, and certain parts were offered by the city for impeachment. These extracts were referred to and offered to show contradiction, but nowhere in the record now under review does it appear that the testimony of Franeiska Schmidt was substantially the same as on the former trial, nor are we advised by this record that the testimony of Otis McCreary and Dr. Johnston is identical.

The trial court was not in error, therefore, in rejecting the plea or contention of former adjudication of the law of the ca§e.

Upon the claim of insufficiency of evidence, it follows from what lias been said as to the duty of the city, that the verdict so far as it establishes negligence in failing to maintain guardrails or other safe-guards should not be disturbed. There is, therefore, left for consideration the question of contributory negligence.

Upon the question of the weight of the evidence, it is contended that the credibility of Mrs. Schmidt upon whose testimony the case mainly stood, as to contributory negligence is impeached by the former testimony, and this court upon the former review reversed the judgment for insufficiency of evidence. As the ease was remanded for trial it is obvious that the reversal was upon the weight of evidence.

Under the act of May 9th, 1908 (99 O. L., 454; G. C., 11577) the jurisdiction of the court to review the weight of evidence after one reversal is withdrawn.

This act being one relating to the remedy and having been passed before the proceedings in error were begun and the judgment complained of rendered is applicable here. Halderman v. Larrick, 44 O. S., 438.

It is contended that plaintiff being familiar with the situation and having knowledge of the absence of a guard-rail was negligent as a matter of law, and that it was the duty of the court to so instruct the jury. We think, however, that the fact of the plaintiff going on the culvert and attempting to pass over the same along the portion intended for and used as a sidewalk i.s not negligence as a matter of law.

The cases cited by plaintiff in error can be distinguished. In case of Village of Mineral City v. Gilbow, supra, the plaintiff carelessly or knowingly departed from á known safe way and went beyond the limit of the street into danger. In Schaefler v. Sandusky, 33 O. S., 246, and Dayton v. Taylor’s Admr., 62 O. S., 11, it was decided that a traveler going into danger he can easily avoid, can dot recover. In the cases of Norwalk v. Tuttle, 73 O. S., 242, and Village of Conneaut v. Naef, 54 O. S., 529, the qualification as to avoiding the danger is omitted from the statement of the rule, but the cases under review and the citation and approval of previous cases mate it obvious that no departure was intended. See Smith v. Toledo, 11 C.C.(N.S.), 167.

The plaintiff, was, therefore, lawfully upon the street and in the lawful use of it and upon the portion intended and devoted to footmen, and whether it was negligence to suddenly stop and turn in the gravel and rough stones and to trip and stumble and fall, over the coping is a question to be submitted to the jury, and can only be reviewed by a court having, jurisdiction to weigh the evidence.

Judgment affirmed.


author: (Yoorhees, Shields and Powell, JJ.)

text:
    AS TO THE AUTHORITY OF COUNCIL TO FIX GAS RATES.
    Circuit Court of Licking County.
    The Village of Granville v. The Crawford Natural Gas & Fuel Co.

    Decided, March Term, 1911.

      Municipal Corporations — Cas Bates Fixed try Council Are Not Binding on the Gas Company, When.

    Where no rate has been agreed upon for gas used within the limits of a municipality, and council attempts by council to fix rates on both a meter and flat basis and to give to consumers the privilege of changing from one basis to the other at their option, and the gas company refuses to accept the terms thus imposed, the ordinance is not enforcible.

       Reversing 11 N.P.(N.S.), 641. Through misinformation the note in that case makes the’Circuit Court give the same judgment on appeal.

   By the Court

(Yoorhees, Shields and Powell, JJ.)

The plaintiff filed its petition in the court of common pleas, alleging that it is an incorporated village of the state of Ohio; that the defendant is a corporation, doing business in Ohio' in the way of furnishing natural gas for fuel and light to the village of Granville and its inhabitants aforesaid, by virtue of a franchise granted by the council of said village to the defendant company on June 7, 1898. That by the ordinance granting such franchise, there was granted to the defendant company the right and privileges of laying pipes through the streets of said village for the purpose Of supplying and .conveying gas to the inhabitants of the village for the period of twenty-five years. Said ordinance further provided that, for. ten years from the passage of the same, the. defendant should have the right to charge the consumers of gas twenty-five cents per thousand cubic feet, meter measurement.

' -Said period of ten years having expired, the plaintiff, by its council, duly and legally passed an ordinance on the 2d day of June, 1908, fixing the price which said defendant might be allowed to charge for gas furnished said village, and its inhabitants, at the rate of fifteen cents per thousand cubic feet, • and which price should prevail, by the terms of said ordinance, for the period of ten years, the defendant to supply meters to all who desired gas at meter measurement. Said ordinance further provided that the consumer should have the option to take gas at either meter measurement or flat rate, and fixed the flat rate for the price of gas which the defendant company should be allowed to charge, and which rate was that it should not charge more than five cents per month for each gas light; for a cooking stove .in private house two dollars a month from October 1st to May 1st of each year, and $1.50 a month for the period of the year 'from- May 1st to October 1st; for each heating stove, grate or fire-place Used in a private family $2.50 per month from October 1st to May 1st'of each year; for each furnace, hot-water, steam, or hot air apparatus in private family $7 per month from October 1st to May 1st, of each year. The petition avers that said prices so fixed are reasonable.

The defendant, operating under said ordinance, notified the inhabitants of said village that on and after a certain date named, the price for gás would be twenty-two cents per thousand cubic feet, and that unless this price is paid by the people of the said village the defendant would stop the supply and refuse to furnish gas at any less rate or price; and the petition alleges that said company intends to malee the price for all gas furnished on and after the date named, to-wit, November 1, 1910, the sum of twenty-two cents per thousand cubic feet and no less; that unless restrained by the court, the consumers of gas furnished by the defendant will be required to pay twenty-two cents per thousand cubic feet, contrary to the provisions of such ordinance.

It is further alleged that the defendant company, contrary to the provisions of said ordinance, will refuse to furnish gas to the inhabitants of said village other than at meter rate, and refuses and will refuse to furnish gas at the rates provided in said ordinance, commonly called flat rates, or rates by the month with certain appliances.

The plaintiff prays for an injunction restraining the defendant from charging prices in excess of the amount fixed by said ordinance to either the village of Granville or to the inhabitants thereof, and from refusing to furnish gas other than by meter and at meter rates; and it further asks that defendant be restrained from shutting off the supply of gas to the village or the inhabitants of said village in the event that persons refuse to pay the price in excess of the price fixed by said ordinance.

A temporary injunction was allowed on said petition, to which a demurrer was filed. The demurrer, on hearing, was overruled, to which exceptions were noted.

The defendant filed its answer, in which it admitted the corporate capacity of the plaintiff, and the defendant, as alleged in the petition. It also admitted the passage of the ordinance of June 7, 1898, and that, by said ordinance, it acquired the privilege of laying its pipes through the streets and alleys of said village for the purpose of supplying natural gas to the inhabitants of said village for the period of twenty-five years. The provisions of said ordinance as to the price to be charged consumers were admitted. It admits the acceptance of said ordinance, and that it has been doing business in said village under the terms thereof. The answer further alleges that the defendant had no knowledge of the due and legal passage of the ordinance of June 2, 1908, other than the averments contained in the petition, and denies the same. It admits that it was notified of the alleged passage of said ordinance, but it avers that it never accepted the terms and conditions of the same, but, on the contrary, expressly repudiated said ordinance, and notified the plaintiff .of its refusal to accept under said ordinance immediately after the notice of the alleged passage thereof had been given.

Por a second defense, the defendant adopts the averments of its first defense, and alleges that said ordinance of June 2, 1908, is contrary to and in violation of Section 1, Article II of the Bill of Rights, Constitution of the state of Ohio, and, for this reason, is null and void.

For a third defense, the defendant adopts the averments of the first defense, and says that the said alleged ordinance of June 2, 1908, is contrary to and in violation of Section 10 of Article I of the Bill of Rights, Constitution of the state of Ohio, and is therefore null and void, and of no effect, for the reason that it is a taking of private property without process of law.

For a fourth defense, it adopts the avermente of the first defense, and sa,ys that the alleged ordinance of June 2, 1908, is contrary to and in violation of Section 1, Article XIV, of the amendments to the Constitution of the United States of America, and is therefore null and void, and of no effect, for the reason that it is a denial to this defendant of the equal protection of the laws, in that it attempts to compel the defendant company to furnish gas in a manner and at a price entirely at the option of the consumer, without the consent of the defendant thereto.

To this answer a demurrer was filed by the plaintiff, and, on hearing, the demurrer was sustained.

The defendant then came to this court by appeal, and a motion has been filed in this court to dissolve the injunction allowed in the court of common pleas. The motion is based upon the following grounds:'

1st. That the plaintiff has not legal capacity to maintain the action as brought.

2d. The facts set forth in said petition are insufficient in law to entitle plaintiff to the relief sought by way of injunction.

It will be observed that the motion is, in effect, a demurrer.

The cause eomes on to be heard in this court on said appeal. On consideration whereof, the court is of the opinion that the demurrer to the answer should be overruled.

And coming on further to be heard- upon demurrer to the petition, the court is of opinion that said demurrer is well taken, and should be sustained.

The injunction heretofore allowed is dissolved, and the petition of the plaintiff dismissed, with costs.

A motion for a new trial is overruled, and exceptions.


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    INJURY TO EMPLOYE BY A SAW.
    Circuit Court of Hamilton County.
    The Standard Millwork Co. v. Wm. H. Bick, a Minor.
    Decided, December 23, 1911.

      Negligence — Master and Servant — Independent Contractor — Liability for Injury to Employe Where There Was'a Presumption of Negligence on the Part of the Master Which Was Not Refuted.

    1. Where there is evidence creating a presumption of negligence on the part of a master, directly contributing to the injury to plaintiff, and no evidence is offered in refutation thereof, a judgment for damages in favor of the injured employe will not -be set aside on the ground of weight of evidence.
    2. One is not an independent contractor who operates a part of a manufacturing plant, under an arrangement whereby he is to hire and pay and have entire control of all the employes at work in that portion of the plant, and the owner is to furnish the material for manufacture together-with the use of the plant.
    The defendant in error recovered a judgment below of $2,500, on account of the loss of his left hand in .a saw, operated in the factory of the Standard Millwork Company in Norwood. At the time of the accident one E. B. Swartz was operating a part of the factory for the construction of a certain kind of window blinds and shutters, under a contract that the company should furnish the plant, machinery, lubricating oil and material, and Swartz was to employ and pay all the employes, the company to have no control or supervision over them.

      Albert Bettinger and Walter Schmitt, for plaintiff in error.

      T. B. Snyder and Thos. L. Michie, contra.
    Jones, J.; Smith, P. J., and Swing, J., concur.
   There is evidence in this case supporting the allegation of the petition charging negligence in starting the saw, while the boy had his hand in the blow-pipe cleaning it, and that the saw was started without any notice or warning.

Such evidence per se raises a presumption of negligence on the part of the master and places upon him* the burden of removing such presumption. No evidence was offered to explain the starting of the saw, and such presumption was in no way refuted.

The trial court correctly charged that Swartz was not an independent contractor, and we find the general charge in all other respects correct.

. There was no error in the refusal to give special charges requested by defendant below.

Special charge number 11 (refused) is defective only in that it does not predicate its statement of law upon the condition that the jury find that the saw was in motion when plaintiff placed his hand in the blow-pipe.

With the saw motionless there was no apparent danger.

We find the judgment works substantial justice between the parties and there being no error it is affirmed.


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    ACTIONS AGAINST DECEASED DEFENDANTS.
    Circuit Court of Ashland County.
    Catherine Glass v. Geo. W. Buzzard et al.

    Decided, October 21, 1910.

      Revivor — Administrator of Deceased Defendant Made a Party — Claim Involved in Action Need Not be Presented to Administrator — Section 11261.
    1. Where a cause of action has been revived without objection against the administrator of a deceased defendant, and upon being served with summons he entered an appearance and filed a demurrer, nothing further appearing of record, the revivor must be regarded as sufficient.
    2. No presentation or rejection is necessary of a claim' against an administrator, where the claim was in suit at the time of the death of the defendant and the petition stated facts sufficient to constitute a cause of action; such a cause may proceed to judgment.

      Chapman & Taggart, for plaintiff in error.

      McCray & McCray, contra.
    Taggart, J.; Donnelly, J. (of the Third Circuit), and Voorhees, J., concur.. ' .

       Affirmed by the Supreme Court, without opinion, 85 Ohio St.,--.

   By this proceeding in error, the plaintiff seeks to reverse the judgment of the court of common pleas.

In that court Catherine Glass was plaintiff and James Buzzard and Geo. W.' Buzzard were defendants. In her petition the plaintiff sought to recover from James Buzzard, then in full life, the amount which she claimed was due and owing to her for care, food and clothing for the infant children of the defendant, James Buzzard.

The second cause of action alleged the indebtedness set out in the first cause of action, and then claimed that, in order to defraud his creditors, the defendant, James Buzzard, had conveyed to George Buzzard certain real estate for a colorable consideration, but in fact without any consideration, and prayed that the defendant, George Buzzard, might be restrained from selling or incumbering said real estate, and that the conveyance so made might be set aside, and for such other relief as might be .proper and equitable in the premises.

From the transcript of the docket and journal entries we learn that service was had upon both of these defendants, and while the action was pending James Buzzard deceased, which fact was brought to the attention of the court, and leave was granted to substitute George Buzzard, administrator, as party defendant. At whose suggestion this action of the court was taken we are not advised. If it was- upon the suggestion of George Buzzard, it was entirely proper and legal. If it was on the suggestion of the plaintiff, no exceptions were taken by any one to the action of the court in respect thereto, but we are advised by this transcript that summons were issued and returned, serving the administrator personally.

Later George Buzzard, as administrator, filed a demurrer. The ground of such demurrer is that the petition does not state facts sufficient to constitute -a cause of action against him as such administrator.

This demurrer was sustained by the court, and upon plaintiff not desiring to plead further the action against the administrator was dismissed and final judgment rendered, dismissing the. petition. The entry recites that the court sustained this demurrer because the petition does not state facts sufficient to constitute a cause of action, and. because said administrator was not made a party to this cause as provided by law.

We think it reasonably appears that this action was revived as against the administrator, without objection, and upon service of summons upon him he entered an appearance and filed a demurrer, which would give to the court jurisdiction of the person of the defendant, and nothing further appearing on the record would be sufficient revivor of the cause of action as against him.

As to the other ground, that the petition does not state facts sufficient to constitute a cause of action, we are advised the court adopted the view that the petition did not aver an exhibition or presentation of the claim and the rejection by the administrator.

We think that where an action .is rightfully grounded against an intestate in his lifetime and subsequently revived, no presentation or rejection of the claim is necessary, and that the action may proceed to final judgment upon the cause of action as stated against the deceased, provided the petition stated facts sufficient to constitute a cause of action against the intestate.

We are supported in this view of the law by the 8th N.P. (N.S.), at 629, and by the case of Mussers’ Executors v. Melvina Chase, 29 O. S., at 577 and 586.

For the error of the court in sustaining this demurrer, the judgment of the court of common pleas is reversed, and this cause is remanded for further trial and proceedings according to law. ; , , ;


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    DETACHMENT OF LANDS FROM A MUNICIPALITY.
    Circuit Court of Lucas County.
    William Bay et al v. Village of Sylvania, and Ernest H. Cushman et al v. Village of Sylvania.
    Decided, June 12, 1911.

      Annexation and Detachment of Territory from a Municipality — Civil Actions — Appeal.
    A proceeding to detach unplatted farm lands from a municipality, as provided in Sections 3578 and 3579, General Code, is not a civil action, and is therefore not appealable.

      Bay & Cor dill and B. L. Hart, for plaintiffs.

      E. C. Froehlich, contra.
    Ejnkade, J.; Wild man, J., and Richards, J., concur.
    Motion to dismiss appeal.
   These were proceedings in the court of common pleas under General Code, 3578, 3579, to detach certain farm lands from the village of Sylvania. The court of common pleas found upon a hearing that the lands should be detached as prayed for and judgments were entered accordingly. The village of Sylvania brings the cases here on appeal, and the plaintiffs in the actions have filed in this court motions to dismiss the appeals on the ground that they are not civil actions, and therefore not actions that can be appealed to this court under General Code, 12224.

The sole question presented here is whether or not this is a civil action and is appealable under the sebtion of the code above referred to.

We think a good deal of doubt has existed among the members of the bar as to whether a proceeding to detach real estate from an incorporated village under General Code, 3578 and 3579, is in fact a civil action. Some appeals have been perfected and heard without the question being raised by either side as to whether the right of appeal existed, and were it not for a decision of the Supreme Court of Ohio, rendered in 1907, to which our attention has been called in this case, the subject would not be free from doubt with us. The case to which we refer is that of Hicksville v. Bricker, being a decision of the circuit court in Defiance county [unreported]. The decision of the circuit court was afterwards affirmed without opinion by the Supreme Court in Hicksville v. Bricker, 76 Ohio St., 563.

In that ease, like the one at bar, a judgment was entered detaching the real estate from the village as prayed for in the petition and thereafter an appeal was taken to the circuit court, and in that court a motion was filed to dismiss the appeal on the ground that the case was not appealable, not being a civil action. This was the sole question presented to the circuit court, and upon hearing the circuit court dismissed the appeal.

The counsel for the plaintiffs here has secured and presented to us the printed record in Hicksville v. Bricker, supra, together with the briefs of counsel on both sides, and also a certified copy of the mandate from the Supreme Court, all of which we have examined with care.

General Code, 11237, defining a civil action, was taken from an opinion of the Supreme Court in Missionary Society v. Ely, 56 Ohio St., 407, and the reply brief in Hicksville v. Bricker, supra, calls attention specially to this definition given by the Supreme Court, as to what constitutes a civil action. The whole subject was very thoroughly and very ably, presented to the Supreme Court in the briefs of counsel in the Hicksville case. There was but one question in that case, to-wit, the question as to whether a proceeding of this kind is a civil action, and therefore appeal-able to the circuit court, and the Supreme Court having affirmed the circuit in dismissing the appeal, the decision of the Hicksville case is controlling here, and upon that authority, the motion of plaintiffs to dismiss the appeal in this cáse must be granted.


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    RELEASE BY EMPLOYE OF CLAIM FOR INJURIES.
    Circuit Court of Hamilton County.
    Salena Maguire, Administratrix, v. Cincinnati Traction Company.
    Decided, June 24, 1911.

      Release — Effect of, Where Executed by an Injured Employe Who Afterward Died from the Effects of His Injuries — Sections 10110 and 11391.
    A release executed by an employe in full for all claims for damages growing out of an injury received by him while in said employment, bars his estate from further recovery in the event of his subsequent death in consequence of said injuries, but leaves intact any claim for loss sustained by the widow or'next of kin.

      J). T. Eackett, for plaintiff in error.

      George E. Warrington, for the traction company.
    Jones, J.; Smith, P. J., and Swing, J., concur.
   This action was brought below by plaintiff in error on behalf of the widow and next of bin of Hugh C. Maguire against the Cincinnati Traction Company, defendant in error, for damages on account of the death of said Hugh C. Maguire, which was caused, as alleged in the petition, by the negligence of defendant

An answer was filed by defendant, one of the defenses therein being that the action is barred for the reason that after the alleged accident upon which the claim of plaintiff is founded, and before his death, plaintiff’s intestate, upon payment to him of the sum of $25 by defendant company, executed and delivered to it a “receipt and release in full of all claims for damages growing out of said accident which he or anyone by, through, or under him might have or assert against said defendant, and that defendant is still in possession of said release.”

To this defense a demurrer was filed, which was overruled by the court, and, the plaintiff not desiring to plead further, the petition was dismissed and judgment given in favor of defendant. Plaintiff in error asks for a reversal of said judgment.

The question raised by the demurrer is: Does the release executed by plaintiff’s intestate bar a right of recovery for the benefit of the widow and next of kin?

The right to bring an action for wrongful death for the benefit of the estate of decedent is given by Section 11397, General Code.

An independent right of action to be brought by the administrator on behalf of the widow and next of kin is given by Section 10770, General Code. The only condition imposed by this section is that the “wrongful act, neglect or default” must have been such as to have entitled the party injured to maintain an action and recover damages in respect thereof if death had not ensued.

It will be seen that the circumstances of the accident or injury determine the right of such action. We do not think it is within the power of the party injured, by any act of his subsequent to the injury, to bar this action.

The case of Railway Company v. Van Alstine, 77 O. S., 395, is decisive of the case and clearly establishes the right to maintain an independent action for the beneficiaries named in the statute.

The right of the estate under Section 11397 is barred by the release, and when this ease is tried the' only ground of recovery will ° be the loss sustained by the widow and next of kin.

Judgment reversed.


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    AS TO DAMAGES FOR DELAY IN DELIVERING FIRE ENGINES TO A MUNICIPALITY.
    Circuit Court of Cuyahoga County.
    The City of Cleveland v. D. Connelly, Doing Business as The Cleveland Steam Boiler Works.

    Decided, June 26, 1905.

      Liquidated Damages — For Failure to Deliver Fire Engines to a Municipality — Gan Not be Recovered, When — Indefinite Provisions as to Liquidated Damages — Reasonableness of Amount Fixed— Tests to be Applied as to Amount Claimed on Bond for Faithful Performance — Uncertainty as to whether a Proposition Attached to a Contract Becomes Part of the Instrument.

    1. Where the formal contract, entered into by a municipality with a manufacturing concern for a specified number of fire engines, contains no reference to liquidated damages in case of failure to comply with the terms of the contract within the time fixed, hut such a provision was written into the blank presented by the successful bidder, and is so ambiguous that it is impossible from the language employed to say that the parties had any definite intent' with reference to damages for delay in delivery, an action will lie on the part of the contractor for recovery of the amount withheld on account of delay ia delivery, especially in view of the admitted difficulty in determining accurately what amount of damage would be sustained through delay in a cause of that character.
    2. The procurement of indemnity against loss from the threatened enforcement of a claim can not, of itself, he considered an admission, or in the nature of an admission, of liability on such claim.

      Newton D. Balter, City Solicitor, for plaintiff in error.

      Blandin, Bice & Ginn, contra.
    Henry, J.; Marvin, J., and Winch, J., concnr.
    Error to tbe court of common pleas.

       Affirmed without opinion, Cleveland v. Connelly, 75 Ohio State, 590.

   Tbe facts in this case are that on tbe 6tb day of August, 1900, tbe Cleveland Steam Boiler Works, by D. Connelly, proprietor, entered into a contract with tbe city of Cleveland to furnish seven steam fire engines, five being of tbe second size and two of the third size, for use in the fire department of the city. The contract was made pursuant to competitive bidding, the advertisement being authorized by resolution of the council passed in June, 1900; the advertisement required bids to be tendered not later than 12 o’clock m., July 12th, 1900, and contained a stipulation that each bid should be accompanied by a certified check on a solvent bank in the sum of $2,000 as a guarantee, if the bid were accepted, that a contract would be entered into, that the performance of the contract would be secured to the satisfaction of the city, and that, in addition to such guarantee, said check should be forfeited to the city as liquated damages for any failure to' comply with the terms of the proposal. By resolution of the council, of July, 1900, the bid of the Cleveland Steam Boiler Works was declared the lowest and best bid, and the director of fire service was authorized to enter into a contract with that bidder to furnish the engines: The bid of D. Connelly was then attached to certain specifications and writing, and was signed as a contract. This contract appears as defendant’s Exhibit “D,” the first page of it being the bid of D. Connelly, the remainder being the rest of the contract. After being duly signed, the contract was certified to by the city auditor, as is required by the Burns law, approved by the board of control and the corporation counsel, and subsequently by the committee on fire, and on the 20th of August, 1900, received the final approval of the council and became a valid and binding contract.

The bidding pursuant to the advertisement, was required to be upon blanks furnished by the board of control, and Connelly’s bid, partly printed and partly written, stipulated that the bidder proposes to furnish one or more second and third size steam fire engines, in accordance with specifications and guarantee accompanying the proposal, at Fire Station No. 1, within 210 days after the execution of the contract for the same; that for each day that the contractor shall fail to deliver said engine or engines, within the time specified, it is agreed that the contractor shall pay to the order of the director of fire service of the city, $25 per day as liquidated damages for such failure; and, in the itemized specifications as to price for the several sizes of engines, that deliveries are proposed to be made, two engines in 120 days, two engines in 160 days, two engines in 200 days and one engine in 210 day's.

The contract was made on the 6th day of August, 1900, and the engines were not delivered until the 21st day of May, 1901, fifty-one days over and above the 210 days within which the proposal accepted by the council agreed that they should be furnished. The city of Cleveland thereupon paid the agreed price for the engines, less the sum of ’$1,275 which it retained as liquidated damages for the delay. Subsequently the council of the city of Cleveland passed a resolution directing the payment of this $1,275 to D. Connelly. It was not paid and suit was brought. , The questions raised on this state of facts are as follows: 1. Is the proposition made by D. Connelly and physically attached to the contract a part of the contract? 2. If the proposal is a part of the contract, is the provision for $25 pér day as liquidated damages a provision for stipulated damages or a penalty? 3. Has the council of the city of Cleveland power by resolution to exonerate the plaintiff from the payment of stipulated damages after default in his contract?

It is evident that if any one of these questions is decided adversely to the city, such decision disposes of the whole case. The court below held that the proposition made by D. Connelly and physically attached to the contract, was in law no part of the contract. Passing, however, to the question whether the provision for $25 per day as liquidated damages is to be construed as a provision for stipulated damages, or as in the nature of a mere penalty, as upon a bond given for faithful performance of thei contract, the tests applied in such cases are usually these: 1. Is the subject-matter of the contract of sueh a nature that the actual damages in case of breach will be entirely uncertain and indeterminate? 2. Were damages evidently the subject of calculation and adjustment between the parties at the time the contract was made ? 3. Is the stipulation reasonable ? 4. What was the intent of the parties? 5. What was the language employed?

Without attempting formally to discuss or apply these tests in their order, we may note some significant facts shown in the record. The circumstance that the formal contract, as distinguished from the proposition attached thereto, contains no reference to this subject nor any express reference to the paper which does mention it, is itself an indication that the parties did not have the subject of damages so prominently before their minds when they made their agreement as to make it a matter of deliberate calculation and adjustment. Moreover, if the attached, paper is properly a part of the contract, the reference therein to the subject of damages is contained in the original form or blank furnished to bidders and not in the portion thereof afterwards filled in. It is a formal'provision which does not apply with precision to the plan of installment deliveries which was written into the blank by Connelly when he presented his bid. It is on that account admittedly ambiguous and uncertain. ' Does it mean $25 per day forfeiture for each engine, the delivery of which is delayed? If so, it is manifestly exorbitant. The city insists that it has adopted the construction most favorable to Connelly. But, suppose he had been in default as to but one engine; or had made- some deliveries punctually and had delayed others only until the day for delivering the last engine. If provision is made for some delays and not for others, what reason is there for the distinction? We can not .ascertain from the language employed that the parties had any definite intent on the subject. It is true that damages in a matter of this kind are not easily susceptible of ascertainment, but we can not discover, from the contract or from any evidence in the record, that the parties, in order to meet this difficulty, deliberately set a,bout in advance to estimate and adjust the damage to flow from a breach of this contract, and to stipulate and agree formally upon the rule or measure thereof. We think, therefore, that the court below was quite right in holding this action to be maintainable. As there was no attempt to prove actual damages, we do not. find it necessary to pass upon any of the other grounds urged as productive of the same result that we have reached on this ground alone.

It is claimed by the city, however, 'that there was error in the rejection of certain evidence, which it tendered to show that Connelly, by exacting from his sub-contractor a contract similar in this respect to the one in question here, and by claiming thereunder the same rights that the eity claims here, has evinced his construction of the contract here to be what the city claims. It is not contended that this evidence of res inter alios actae was admissable in order to prevent an unjust result here, but as tending to show how the parties themselves interpreted this contract. We think the' evidence was properly excluded. This court has recently held that the procurement of indemnity against loss from the threatened enforcement of a claim can not, of itself, he considered an admission or in the nature of an admission of liability on such claim. The cases are not precisely the same, but a kindred principle applies here. Mutual conduct of parties to a contract may serve to put a particular interpretation upon it. Such, however, is not the case here. We find no error in the record, and the judgment is affirmed.


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    SUFFICIENT GROUNDS FOR DIVORCE AGAINST AN INSANE DEFENDANT.
    Circuit Court of Lucas County.
    Elizabeth Wolcott v. Robert E. Wolcott.
    Decided, June 12, 1911.

      Divorce — Habitual Drunkenness and Extreme Cruelty Sufficient Grounds for Divorce Against an Insane Defendant — Where the Cause (of Action Accrued Before Insanity Intervened — Appeal from Dismissal of Divorce Petition^-Bection 12002.

    1. A petition for divorce states sufficient grounds for a decree against an insane defendant, where habitual drunkenness and extreme cruelty- are charged a-s continuing for more than three years prior to the adjudication of the defendant as insane and his commitment to an asylum for the insane.
    2. Appeal, but not error, lies to an order vacating the appointment of a trustee for an insane defendant in a divorce proceeding and dismissing, without hearing on the merits, a petition which charges statutory grounds for divorce which accrued prior to the adjudging of the defendant as insane.

      Earl L. Peters, for plaintiff in error.

      Kinkade, J.; Widdman, J., and Richards, J., concur.
    Error from common pleas.
   This was an action for a divorce in the court of common pleas. The petition set forth as grounds for the divorce, extreme cruelty and also habitual drunkenness on the part of the defendant for more than three years prior to March 9, 1901, and stated that these grounds arose while the defendant was sane. The petition further stated that the defendant was, on March 9, 1901, duly and legally committed to the Toledo State Hospital for the Insane at Toledo, Ohio, by the probate court of Wood county, Ohio, as an insane person and that he has ever since been insane, and since 1901 has been continuously confined in said asylum, and that at the time of the filing of the petition the defendant was incurably insane.

On motion of the plaintiff a trustee was duly appointed by the court of the common pleas to represent the defendant in the action, and the trustee filed an answer.

When the case was called for hearing in the court of common pleas the trial judge was in doubt (so we are informed by counsel for plaintiff) as to the right of the plaintiff to maintain an action for divorce against one then insane, and yet the court was not disposed to enter judgment against the plaintiff in such form as to deny plaintiff the right to review, on appeal, that question in this court. The common pleas court vacated its order appointing the trustee, as having been made without authority of law, and then dismissed the petition, stating in the entry that such dismissal was without any hearing on the merits and was based solely on the statement in the petition that the defendant was an insane person. The plaintiff appealed the case to this court and also filed' a petition in error here.

The statutes of Ohio never contained any provision authorizing proceedings in error to review a decision of the court of common pleas entered in a divorce casé. The courts have uniformly held that no such right of review on error exists in Oho.

I read from the case of Parish v. Parish, 9 Ohio St., 534, the paragraph of the ¡opinion of the court found on page 538:

“The statute of March 14, 1843, conferring jurisdiction in divorce cases upon the courts of common pleas, which was in force when these proceedings were had, provides that ‘no appeal shall be obtained from the decree, bnt the same shall be final and conclusive’ (Curwen, 991). This statutory provision is nothing more than a legislative recognition of the principle of public policy, which had been repeatedly affirmed by the courts, that a judgment or decree which affects directly the status of married persons by sundering the matrimonial tie, and thereby enabling them to contract new matrimonial relations with other and innocent persons, should never be reopened. Such a course would endanger the peace and good order of society, and the happiness and well being of those who innocently relying upon the stability of a decree of a court of. competent jurisdiction, have formed a connection with the person who, wrongfully perhaps, procured its promulgation.”

This case was followed by'the Supreme Court in the ease of Mulligan v. Mulligan, 82 Ohio St., 426.

This court passed upon this question in the case of Clowry v. Clowry, 16 C. C., 302. The opinion is by Judge Scribner, and upon a full examination of all the cases in Ohio the right to prosecute error in divorce eases is denied. We find some statements in the opinion concerning the right of appeal which were unnecessary in deciding the error case then before the court (there being no question as to the right of appeal then before the court), in which we do not concur.

The court of common pleas was given jurisdiction in matters of- divorce and alimony, concurrent with the Supreme Court, by the act of March 13, 1843, and by Section 3 of that act all right of appeal was denied and the decree was declared final and conclusive. 2 Curwen’s Statutes, Chap. 466.

March 11, 1853, the law of divorce and alimony was again amended, and while Section 16 of that act denied all right of appeal, Section 17 provided for an appeal under certain conditions named in 3 Curwen’s Statutes, Chapter 1252, Section 11.

The law was again amended April 15, 1857 (54 O. L., 131). This act gave the right of appeal under certain conditions, one being where a petition is dismissed without a hearing on the merits, and also provided for an appeal in any case from that part of the decree relating to alimony only.

These two provisions for appeal, when a petition is dismissed without a hearing on the merits, and from that part of the decree pertaining to alimony alone, have, been in the statutes ever since 1857, the different acts being but slightly different in form.

The provisions of the present General Code on this subject will be found in Section 12002, which reads as follows:

“No appeal shall be allowed from a judgment or order of the common pleas court under this chapter, except from an order dismissing the petition without final hearing, or from a final order or judgment granting or refusing alimony, or in eases under the next preceding section. When judgment is rendered for both divorce and alimony, the appeal will lie only to so much of the judgment as relates to the alimony. When an appeal is taken by the wife, she shall not be required to give bond.”

Plaintiff’s petition having been dismissed without a hearing on the merits, he is properly here on appeal, presenting for our determination the question whether his petition should have been so dismissed.

We are of the opinion that the petition states grounds sufficient for the granting of the divorce, it being stated in the petition that the statutory grounds therein set forth arose prior to the insanity of the defendant. It is not claimed that the insanity itself is a ground for the divorce.

The order of the court of common pleas appointing a trustee to represent the defendant was properly made, and should not have been vacated.

The appeal case will be remanded to the court of common pleas for further proceedings according to law.

The petition in error will be dismissed for want of jurisdiction.


text:
    DAMAGES FOR WRONGFUL DEATH OF A CHILD.
    Circuit Court of Lucas County.
    The Toledo Railways & Light Company v. Cornelius Wettstein, Administrator.

    Decided, February 24, 1908.

      Child Bun Down "by Street Car — 'Weight of Evidence as to Negligence of Motorman — Unprejudicial Errors in Charge of the Court — Mistake in Statement by the Court as to the Number or Identity of Beneficiaries Not Material.

    1. Running down a six-year-old girl, who fell upon the track 150 to 200 feet ahead of a street car, before she could recover from her fall, indicates negligence in operation, either in running the car at a reckless rate of speed, or inattention on the part of the motorman if he was running at reasonable speed; and proof that he di'd not cut out the power or apply the brakes until after passing over the child or until signaled by the conductor to stop at a regular place for passengers to alight, in the absence of a reasonable account by the motorman of the cause of the accident warrants a verdict against the company.
    2. The use by the court, in his instructions to the jury as to determination of damages, of the word “peculiar” as applied to injury resulting from the death of a six-year-old child by negligence, where qualified or defined in other parts of the charge relating to the same subject as “pecuniary” injuries, is not necessarily or presumably prejudicial.
    3. Under Revised Statutes, 6135 (General Code, 10772), prescribing the bringing of actions for death by wrongful act, the apportionment of damages therefor is of no concern or interest to the negligent party against which damages are recovered; and it follows, therefore, that an instruction to the jury in such a case to take into consideration the money value of the services of a child to’the father, mother and next of kin, although erroneous as to the “next of kin,” is not prejudicial in that nobody hut the father, and in some contingencies, the mother, have any pecuniary interest in such .services. The jury should allow the full value for such services, and it is not to be supposed that in apportioning the damages they would multiply the value of the services by the number of beneficiaries.
    4. A verdict of $1,000 for the death of a siix-year-old girl, large of her • age and bright and active, and a helper in a large family of moderate means where all were expected to assist, is not excessive.

      Smith •& Baker, for plaintiff in error.

      O. W. Nelson, contra.
    Parker, J.; Wildman, J., and Haynes, J., concur.

       Affirmed, without opinion, Toledo Railways & Light Co. v. Wettstein, Admr., 79 Ohio State, 439.

   This action in the court below was by the. defendant in error against the plaintiff in error and was for damages on account of the death of Louisa Wettstein, caused, as alleged, by the negligent action of the motorman of the Toledo Railways & Light Company, in running a car whereby it ran down Louisa Wettstein and billed her. She was a child about six years of age. She appears to have been large of her age and bright and active, and as a helper in the family, which was a family of moderate means, where all helped — as helpful as could be expected of a child of her age. The jury found that the defendant company was guilty of negligence as charged and brought in a verdict in favor of the plaintiff for one thousand dollars. It is urged that this verdict is against the weight of the evidence, that it is excessive, and that there is error in the charge of the court — those are the principal errors relied upon by counsel for the plaintiff in error in argument in this court.

I shall not take time to discuss the facts. We have examined the case carefully and we conclude that the evidence warrants the verdict; that it fairly appears from this evidence that the motorman was negligent, either in running his car so fast that he .could not bring it to a'stop after he saw the child on the track —although the child was far enough away so that he could have stopped if he had been running his car at a reasonable rate of speed in the city. (In other words, if he saw the child and attempted to stop the car, the accident then must have been due to the fact that he was running at a reckless rate of speed in a city street, and, therefore, was not able to stop his ear in time.) Or he must have been negligent, and the jury must have found that he was negligent, in that he was inattentive and did not observe the child upon the street. The testimony tends to show that the child was crossing over the street and fell down upon the car track, anywhere from 150 to 20Ó feet in advance of the car, and that the ear came on at a rapid rate of speed, and before the child could recover, regain her feet and get off the track, the ear struck and crushed her. The evidence tends to show that the motorman did not cut out the power and apply the brake until after the child was struck or about the time the child was struck.

We think it was a fair inference from all the evidence in the case that the motorman did not in fact see the child on the track before it was struck — that he was not aware that anything unusual had occurred until after he had passed over the child. About that time he cut out the power and applied the brakes, but this appears to have been done in pursuance of a signal from the conductor to stop, that a passenger might alight, and he in fact stopped his car at the regular place of stopping after crossing over the street beyond where the child was struck and at which crossing the conductor had signalled him to stop the ear. Upon one or other of these theories his action may be explained, and upon either theory, he was guilty of negligence. We think the account of the motorman of how the accident occurred, is not such a reasonable account as should control a jury. The jury evidently did not place much reliance upon it, and we think they were warranted in not placing reliance upon it. So that we find that the verdict is not against the weight of the evidence; we think that it is fairly supported by the evidence; and it does not appear thus to be excessive. •

The complaint of the charge has reference to what the court said about the measure of damages, or as to the grounds and accounts upon which damages sometimes may be allowed. I will read that part of the charge :

‘ ‘ The statute provides that in every action the jury may give such damages, not exceeding in any ease ten thousand dollars, as they may think proportioned to the peculiar injury resulting from such death to the persons respectively for whose benefit such action shall be brought.”

Complaint is made of the use of the word “peculiar.” We think it quite likely that that is a typographical error; but it stands in the record and we must regard it as a part of the language used by the court. But it is not apparent to us that, if there is any error in this, it could have been prejudicial to the plaintiff in error. The court proceeds to point out more par1 tipularly what the injury is on account of which damages may be allowed, and therefore, if the word “peculiar” required any definition or explanation, the jury might have found it in the language of the court. The court proceeds:

‘ ‘ The persons in this action for the benefit of whom this action is brought are the father, the mother, the brother and the sisters. They are the next of kin. The jury may give such damages as they think proportioned to the pecuniary injury resulting from such death.”

Now that appears to have been written by the typewriter “peculiar” and changed to “pecuniary,” and where the word “peculiar” occurs above; perhaps it should be changed also. The court now says:

‘ ‘ The pecuniary injury resulting from such death is the money value of the services of the little girl to the next of kin, the father, mother and next of kin. This would exclude generally all damages in the way of the mental pain and suffering over the death of the little girl and it would exclude all damages in the way of punishment of the defendant. Thbre is no claim here that the motonnan willfully and wickedly ran into and killed the little girl. The only claim is, he negligently killed the little girl and there should be no damages in the way of punishment to the defendant, for any acts of the motorman or as a warning to other motormen, but whatever after consideration of the age of the little girl and her health and expectancy of life and the uncertainty of life. The fact that when she reaches a certain age she- might have a family of her own. Take into consideration all the facts and circumstances and then award such judgment and such value as you deem proportioned to the pecuniary injury resulting from her death, the money loss. ”

' Now we think it was made entirely plain to the jury that there was nothing to be added on account of some further peculiar injury that the court had not explained to the jury, but he says, and puts it very definitely and clearly, that it is only this pecuniary injury that is to be considered.

But complaint is made of this charge because it has said to the jury that they are to take into consideration the money value of the services of the little girl, to the next of kin — to the father and the mother and the next of bin; and it is said — and it is doubtless true — that at the time of the death of the little girl nobody had any pecuniary interest in her or her services but the father, and in certain contingencies, the mother might have had, but the next of kin, the brothers and sisters, could not have had, in any event, any interest in the services of the little girl; they were not entitled to her services; but the father was entitled to all her services until she reached her majority, and since he he was entitled to all of her services, and therefore was entitled to have a verdict returned for the full value of her services as they might be estimated by the jury, we can not see that any prejudice resulted to the plaintiff in error from the suggestion that the brothers and sisters might be entitled to participate in this recovery. The jury could allow no more than the value of the little girl’s services; they could not multiply the value of her services because that value might have been supposed by them to be something to be divided amongst many persons; it would be the value of her services, no more and no less, whether received by the father or the father and mother or by them and others. The court was evidently in error in the suggestion that the others of the next of bin would be entitled to participate in the recovery, but as I have said, we can not see that this was prejudicial to the plaintiff in error. The jury had nothing whatever to do with the apportioning of the damages among the next of kin in whose behalf the suit was brought. The court of common pleas had nothing to do with it. The statute allowing the-right to recover provides that it shall be done by the probate court. Section 6135, Revised Statutes (General Code, 10772) reads:

‘ ‘ Every such action shall be for the exclusive benefit of the wife or husband, and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall' be so caused.”

And it states how the suit shall be brought and that the damages shall not in any ease exceed $10,000, or such amount as the jury “may think proportioned to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought. ’ ’ An^ further along in the section it provides that the amount of the recovery, whether received through a suit or settlement, “shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiaries and the laws of descent and distribution of personal estates, left by persons dying intestate. ’ ’ Plow this amount shall be divided, whether the father shall waive his right-and allow some part of it to go to others, next of kin, is a matter of no concern or interest to the plaintiff in error. The suit might well have been brought perhaps without mentioning any others of the alleged beneficiaries than the father, if it turns out from the evidence that he was the only one really entitled to the avails of the judgment.

Finding that there was no prejudice in the erroneous statement or suggestion, there is, therefore, no ground for reversing the judgment. We find no prejudicial error such a would justify a reversal of the judgment and therefore it will be affirmed.


text:
    LIABILITY OF MUNICIPALITY FOR FAILURE OF CONTINUOUS WATER SUPPLY.
    Circuit Court of Hamilton County.
    The City of Cincinnati v. George & Allan.
    Decided, June 21, 1911.

      Municipal Corporations — Loss to Florist Through Failure of Water Supply — City Held Liaible as for Negligence.

    A municipality is liable to a consumer of water for damages sustained by reason of failure of tbe water supply, where the failure occurs without excuse; and a failure due to the turning by an employe of a wrong valve in an effort to, stop a lealr is without excuse and renders the municipality liable as for negligence, without regard to the question whether the contract between the city and the consumer guarantees or implies a continuous supply.

      Geoffrey Goldsmith, for the city.

      Littleford, James, Frost & Foster, contra.

    Smith, P. J.; Swing, J., and Jones, J., concur.
   Counsel for plaintiff in error asks for a reversal of the judgment entered by the court below in the above case upon the ground that no negligence was proven against the city of Cincinnati.

The negligence complained of in the petition is that the city turned off its water valve in Edwards road, near Madison avenue, thus cutting off the water supply to defendants in error’s plant and causing the freezing of their flowers in their greenhouses.

We think the evidence, both direct and circumstantial, when taken together, is sufficient to sustain the verdict and judgment of the court below.

Upon the question of contributory negligence, the jury in answer to special interrogatories found that at the time of the accident the boilers of George & Allan were in proper condition, and further, that if they were not in proper condition, then that this improper condition did not contribute to the accident.

Counsel for plaintiff in error argues that the evidence does not show that the valvés at Edwards and Madison roads were turned off by the water works department. We think, however, that this view can not be maintained. The fact remains that for some hours after the leak in the water main had been discovered the water supply of George & Allan’s plant was not diminished and it is reasonable to assume that it would have so continued notwithstanding the leak unless the valve on the main that furnished them with water was turned off, and the entire evidence, including that which is circumstantial, would seem to bear out the contention of defendants in error, that the Edwards road valve was closed, the closing of which was the proximate cause of the damage to defendants in error.

These questions were left to the determination óf the jury under a proper charge of the court and we see no reason to disturb the finding.

Argument was made to the court on the matter of contract between the city and George & Allan as to whether the former guaranteed a continuous supply of water or an implied warranty for such supply. We do not deem it necessary to consider this question for the reason as stated in the case of Watson v. Needham, 161 Mass., 406. Whether there was a contract or not in this regard, the question to be determined is, was the city negli-' gent in its duty to defendants in error in depriving them of their supply of water without any reasonable excuse therefor.

Under the entire evidence we feel that the conclusion of the jury was correct in this respect, and finding no error in the record the judgment will be affirmed.