text:
    LIMITATIONS BY CARRIERS OF LIABILITY ON ACCOUNT OF THEIR OWN NEGLIGENCE.
    [Circuit Court of Cuyahoga County.]
    The Baltimore & Ohio Railroad Company v. George C. Hubbard and C. F. Frazier.
    Decided, December 14, 1903.

      Negligence — In the Transportation of Goods — Carrier Can Not Limit Liability by Special Agreement — Provision as to. Notice Void.

    1. A common carrier can not, by special agreement, limit liability for his own negligence at less than the real value of the article carried.
    2. A provision in a shipping contract that no claim for damages growing out of the negligence of the carrier should be sued upon, unless claim therefor be made in writing within five days, is unreasonable, against public policy, and not binding upon the shipper.
    Winci-i, J.; Hale, J., aud Marvin, J. concur.
    Error to -the court of common pleas.
   The defendants in error brought their action in the common pleas court against the railroad company alleging that on September 8, 1900, they were the owners of a race horse known as Fred S., worth $1,200, and on said day delivered the same at Warren, Ohio, to the P. & W. Ry. Co. to be conveyed over its -road and the road of the B. & O. R. R. Co. and delivered safely at Wooster, for the freight charge of $22 which they prepaid; that the horse was carried by the P. & W. Ry. Co. in car number 38,388 of the B. & O. R. R. Co. to Akron and there delivered to the latter company which received it, and in consideration of its part of the freight money, assumed and agreed to complete the contract originally made with the. P. & W. Ry. Co. and deliver the horse safely at its destination.

The petition further alleges that the railroad company did not complete the performance of its contract and did not safely convey and deliver said horse as it had undertaken to do, but on the contrary conducted itself negligently and carelessly in the transportation thereof; then follow two allegations of the petition which read as follows:

"6. ' That when'said car No. -38,388; in which said horse was being transported, arrived'at Lodi', said defendant, by its agents and servants, carelessly and negligently caused, permitted and allowed an engine and cars to come in collision with said car No. 38,388 with great force and violence, therein and thereby throwing said horse, Fred S., down to and upon the floor of said car, and then and thereby causing and inflicting such injuries upon said horse as to cause his death within a short time thereafter, to the damage of the plaintiffs in the sum of twelve hundred dollars.
“7. The plaintiffs further say that said defendant neglected its duty and did not take proper care of said horse, nor did it safely carry and deliver the same at Wooster 'aforesaid, but wholly failed and neglected to carry and deliver the same to said Frazier at the city of Wooster aforesaid, by reason of which the plaintiffs have sustained damages in the sum of twelve hundred dollars.”

Then follows a general prayer for judgment in the suim of $1,200, "their damages so sustained as 'aforesaid.”

The railroad company answered, admitting the shipping of the horse, payment of freight charge, the receipt of the horse by the defendant company at Akron and its transportation to Lodi, where it claims it was removed from the car by the plaintiffs, they claiming that it was sick, and denying all else.

As a further defense the railro'ad company alleges that the horse was shipped pursuant to a special written contract whereby the plaintiffs agreed, in consideration of a lower rate of freight than the usual and official published tariff rate for the carriage of live stock, -that the railroad company should not be liable beyond an agreed valuation of $100 for the horse, whether loss or damage should occur through the negligence of the P. & W. Ry. Co. or any connecting carrier, or their employees, or otherwise, and that no claim for damages should be allowed or paid, or sued for by said plaintiffs, unless a claim therefor should be' made in writing, duly verified and delivered to the agent of the carrier upon whose line the loss or injury occurred within five days after said horse should be removed from the car.

The railroad company further alleges that the plaintiffs had the option of shipping the horse at a higher rate of freight and thereby receiving the security of the liability of the railroad company as a common carrier, but that they voluntarily decided to ship at said reduced rate of freight and upon the conditions of said special contract, and that the condition as to five days notice had not been complied with.

A reply being filed, the ease was tried to a jury and resulted in a verdict for $1,200 for the plaintiffs. Motion for a new trial was overruled, bill of exceptions taken and filed in this court with petition in error alleging numerous errors which may be classified as affecting pleadings, rulings on evidence and the charge of the court.

It is claimed by plaintiff in error that the petition sets forth an action on a contract for safe carriage and therefore should have contained an allegation that plaintiffs below had themselves performed all of the conditions of said contract by them to be performed. This question was raised by objection to the introduction of any testimony under the petition, and was overruled.

The petition appears, however, to set up two causes of action, one on contract and the other in tort. There was no motion made to compel an election, but the record shows that the plaintiffs below completely abandoned all claims arising out of any alleged breach of their contract and relied, solely upon the tort complained of. We think the tort is fully set up in the petition, although the contract may be pleaded more at length than it should be in an action wholly founded on a tort.

The charge of the court and many rulings on evidence aré objected to on the ground that the court erred in holding, as it did, that the limitation of liability and provision for five days notice in the shipping contract were not binding upon the owners and shippers of the horse.

We think that the law of Ohio was correctly applied to' this case by the trial court.

“It is the settled law -of this state that a common, carrier can not, by special agreement, relieve himself from responsibility for his own negligence, nor limit his liability for losses resulting therefrom.” Railway Co. v. Sheppard, 56 O. S., 68, and cases there cited.

This case was decided February 2, 1897, and was a race horse case. In November, 1897, Judge Summers of the Circuit Court, Second Circuit, in the case of Railway Co. v. Simon, 15 C. C., 123, distinguished the latter case from the former on the wording of the contracts. I-Ie says:

“In Railway Co. v. Sheppard, 56 O. S., 68, an examination of the record discloses that there was no agreed valuation of the horses, but the contract provided, That in consideration of being released from liability as hereinafter specified, the said company agrees to transport one carload of horses at the reduced rates’.”

Judge Summers held:

“A contract of carriage, fairly made and signed by a shipper, agreeing upon the valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to- the extent of the agreed valuation, will, even in case of loss through negligence, be upheld, and the shipper limited to the agreed valuation.”

Judge Parker of the Sixth Circuit, in another horse case (Pennsylvania Co. v. Yoder, O. L. R., Sept. 17, 1903; 1 Circuit Court—New Series, page 283) held otherwise, saying that the Simon case did not appear to be in harmony with the decisions of the Supreme Court, and we are inclined to the opinion of Judge Parker.

If an arbitrary valuation of $100 may be agreed upon, without reference to the true value of the horse, -why not an arbitrary valuation of $1, or any nominal valuation? Of course a mere nominal valuation would not avoid the rule laid down in Railway Co. v. Sheppard, 56 O. S., 68, and a partial exemption from liability seems forbidden by the rule laid down in 17. S. Express Co. v. Bachman, 28 .0. S., 144, 155.

These views are perhaps sustained by Judge Spear in the ease of Railroad Co. v. Bowler & Burdick Co., 63 O. S., 274, who says, on page 283, speaking of a carrier of freight:

Kline, Carr, Tolies & Goff, for plaintiff in error.

Thaddeus Hoyt and F. J. Pinney, for defendants in error.

“It has often, perhaps generally, been held that the carrier may not stipulate against his own negligence for a liability less than the real value of the article carried.”

This was said November 13, 1900, three years after the decision of Railway Co. v. Simon, 15 C. C., 123.

The provision as to five days notice is another limitation on the liability of a common carrier, which for like reasons is void, being against public policy. In this ease the record shows that the five day limitation was too short and altogether unreasonable.

The owners of the horse could hardly have complied with it, as shown by the evidence in the case. Stevenson v. Wells Fargo Co., 33 Bull., 247, decided by the Supreme Court without report.

We find no prejudicial errors in the rulings of the trial court on the presentation of evidence. As to the questions asked regarding the speed and pedigree of the horse, the matter was ruled upon in the case of Railway Co. v. Sheppard, supra, where it was held:

“In an action to recover the value of a trotting horse, evidence of his pedigree, and that some of his blood relations have a record for speed, is competent as affecting his value.”

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    SLANDER —ELEMENTS OF —PUNITIVE DAMAGES.
    [Circuit Court of Sandusky County].
    O. E. Phillips v. Michael LeJune.
    Decided, December Term, 1903.

      Action for Slander— Words 'Imputing CHme— Which Relate to a Transaction Not Itself Criminal — Intent of Slanderous Words — Injury to Feelings — Election as to Statements Pleaded and Statements in Evidence— Punitive Damages — Signature to Verification to Petition Not Genuine.

    1. In an action for slander evidence is competent as to the effect upon the plaintiff of the alleged slanderous words, and in the absence of such evidence the jury may presume such suffering as it might be reasonably concluded such language would cause.
    2. Language used but not pleaded may only be put in evidence for the purpose of showing malice.
    3. Language imputing a crime is not slanderous, where the transaction to which the words related was not criminal and must be so understood by the hearers. Whether the defendant intended to charge a crime is a question for the jury.

      4. If the words were spoken in the heat of passion, this fact should be considered by the jury in determining whether punitive damages should be allowed and in what amount.
    5. Objection to a petition, on the ground that the signature of the plaintiff attached to the verification of his petition is not genuine, must be raised before trial.
    Hull, J.; Haynes, J., and Parker, J., concur.
    Heard on error to the court of common peas.
   In this case, which was an action in slander, the defendant in error recovered a judgment against the plaintiff in error for $200 in the court of common pleas, and this action is brought to reverse that judgment.

The plaintiff, LeJune, complained that the defendant called him a thief, and, to read from the petition, “the slanderous words were ‘you (meaning plaintiff) damn thief, you stole six bushels of my apples’ (meaning then and thereby that this plaintiff was guilty of and did stéal, take and carry away six bushels of apples),” etc.

It is claimed that the verdict was 'against the weight of the evidence and that the court erred on the trial of the case, in the exclusion and admission of evidence, in tlie charge and in the refusal to charge, and in some other respects.

It appears that the trouble.between Dr. Phillips, the defendant below, and LeJune, grew out of some transactions that they had, as landlord and tenant. LeJune was living on the .doctor’s farm near Fremont, and working it “on shares.” There was on the farm an orchard where the apples grew that this trouble grew out of. ...

Plaintiff claims that on the day in. question the doctor came out to the farm and used the words set up in the.petition;.called him a thief and- charged him with stealing six bushels of. apples.. The defendant denies using the language, or making any. charge, of theft, but claims that.they had some differences.there :on that day, in regard to the 'apples; that he, Phillips, was picking up..some apples on the ground;, that LeJune. upbraided him for it, asking him what he was doing there, and.he told him that he, LeJune, had taken six bushels of apples and giyen them to a man by the name of Frj", and that .he was about to t'ake three bushels for a Mr. Iiall, who was with him helping pick up the apples, and Dr. Phillips claims that that was all there was of it; that he made no charge of theft, but that it-was simply a disagreement which grew out of the diyision .of these apples. He claimed that LeJune had taken either, six or three bushels to pay Fry. for helping pick apples, it . being Le June’s duty to pick the. apples, and- the doctor denied .using -the language plaintiff charged him with.

A number of exceptions were taken on the. trial of -the case. It will not be necessary to refer to them all.

After the trouble in the orchard, Dr. Phillips went to the house and out into the road, and at the house, at the gate leading into the road, some more talk occurred between him and LeJune, the plaintiff claiming the doctor said to him: “Then you did steal these apples; you know you did.” And this was said in the- presence of his wife.

At the conclusion of the testimony the defendant below asked the court to require the plaintiff to elect ¡which statement of the defendant he would proceed upon. The court overruled this motion, but did say in the presence of the jury that there was only one thing complained of, 'andthat was tbe language set’up in the petition, and that that was the only language that could be recovered upon, and said at another time to the jury, in the charge, that the language used at the gate, if any was used, could only be considered for the purpose of showing malice. We think there was no error in the court refusing to require the election to be made.

The plaintiff below was permitted to testify to the effect this language had upon his feelings; that it wounded his feelings and that he was unable to sleep, and other effects he claimed the alleged slanderous language had upon him. This was objected to and exceptions taken. In a slander case injury to feelings may be considered by the jury — such injury as they would reasonably conclude a man suffered; such effect may be presumed — but plaintiff may go farther and testify and offer evidence, if he sees fit, as to the actual effect the language had upon him, and there was no error in the action of the court in admitting that testimony, nor was there any error in the court refusing -1» dismiss the case, when, upon cross-examination, the plaintiff looked 'at the signature attached to the verification of the petition and gave as his opinion that it was not his handwriting; that he did not sign it. He may have been ■confused at -the time. At all events it was his case; he authorized the suit to be brought; no objection was made at tbe time the petition was filed and answer was filed, and we think no objection could be made upon the trial upon that ground.

A number of requests to charge the jury were asked by the defendant below, among them request No. 3, which was refused by the court, and it is claimed that this was error. This instruction or request for instruction was as follows:

“3. Gentlemen, I say to you as a matter of law, that an action of slander can not be maintained for words which impute a crime, where, from all that was said at the time the words were spoken, it appears that the words had relation to a transaction that was not criminal, and that they must have been so understood by tbe hearers.”

This request by the defendant below was in line with his defense, that whatever he said on that occasion was not said with any intent to charge LeJnne with having committed a crime, but tbat what defendant said was said under such circumstances that those who were present must have understood that it was not' intended to charge LeJune with a crime. •

As I have stated, the trouble arose in the orchard over these apples which LeJune had raised on the farm that he liad leased from Dr. Phillips “on shares.” It would not be a crime, of course, for LeJune to take undivided crops. While it would constitute a civil cause of action, it would not be larceny as long as they owned the property in common, he being a tenant upon the farm, and this charge that LeJune stole property from him might be understood as merely the taking of more than his share of the apples that had been divided up to that time, and not a charge of crime. And Dr. Phillips’ testimony and the witnesses that he called tended to support this claim.

There were present at the time of the transaction, besides the plaintiff and the defendant and a Mr. Hall, who had gone out to the farm with Dr. Phillips, a witness by the.name of Stiffler, and a young son of LeJune,.a boy about nine or ten years old, at the time this occurred. LeJune’s wife was at the house, and did not hear what had occurred in the orchard. Dr. Phillips testified that he was picking up apples under the trees when LeJune came and asked him what he was doing, and that he, Dr. Phillips, said: “You gave Fry six bushels of my apples,” or “took six bushels of my apples for Fry, I am taking three for Mr. Hall.”

And Dr. Phillips testifies there had been some trouble before between them about some wheat; that LeJune had threatened to whip Mm, and that he, perhaps, had made some threats toward LeJune, and told him if he attacked him as he had on a prior occasion he might shoot him — might put a bullet through him.

It was apparent there was quite a quarrel — quite a violent quarrel- — -between these two men on this occasion. The witness, Stiffler, who was called by LeJune, testifies upon examination in chief, when he was examined -as a witness for plaintiff, that he did not hear the language complained of by plaintiff. He said he heard them quarreling about their crops, but what was said he was unable to state, and finally counsel stated that plaintiff was taken by surprise by -the witness, and he was permitted to cross-examine the witness and put - the question to Mm directly and in leading form whether he heard this language, and he then said that he did, but not till then.

So the issue was fairly raised here — squarely raised — as to what language.was used upon this occasion; the doctor denying that he used the language with which he was charged; admitting that he did say something in regard to the apples, and saying that he had no intention of charging plaintiff with theft. The doctor testified that immediately after he said whatever he did to LeJune, LeJune called upon those who were present and asked them if they heard the doctor charge him with stealing, and some of them said they did and some that they did not, and the doctor then said:

“I did not charge you with stealing; I had no intention of charging you with stealing; what I said was that you took these apples.”

So the issue was presented to the jury whether Dr. Phillips used the language complained of and whether the language used was language which showed an intention to charge LeJune’ with a crime, or whether it was used under such circumstances that those present would or would not understand that he was being charged with a crime. If the language was used under such circumstances that those present would have known that it was not intended to charge LeJune with a crime, if is not slander, for the injury and damage done by slanderous language is in charging a man in such a way that those who hear the words understand that he is being charged with a crime, or with some offense involving moral turpitude. If those who hear the language have no such understanding as that, and if the words are spoken under such circumstances that a man would naturally have no such understanding, no damage is done.

The Supreme Court say in Alfele v. Wright, 17 Ohio St., 238:

“Upon the question whether slanderous words are actionable in themselves, as charging the plaintiff with crime, the general rule of the common law is, that where the charge, if true, would subject the plaintiff to an indictment for a crime involving moral turpitude, or to an infamous punishment, the words are actionable per sej 'and otherwise not. ■
“One of two partners can not be guilty of burglary or larceny in respect to a house or goods of which the ownership and possession are in both partners. An entry of such house, and carrying away of such goods by one of the partners, would not subject him to a criminal prosecution, either at common law or by statute. Therefore, words charging a partner with such conduct are not actionable, without special damage.”

No special damage was either 'alleged or claimed in this case. It is set up in -the petition that plantiff was a farmer, and that to be charged with being a dishonest m'an injured him, and that it was necessary that he should be of good repute to carry on his business, etc.; but it was not alleged in the petition that he had lost the lease of any farm, or lost any property, or any advantage on account of these words, and no special damage was proven or undertaken to be proven on the trial of the case, so that he would not be entitled to recover in this case on the ground of special damages, and, if at all, it must be on 'the ground that' he was charged with a crime. Such a charge is actionable per se.

Under the testimony as it stands we think that there is a good deal of a question whether the doctor intended to charge plaintiff with a crime. It was certainly a question that should have been properly and fairly submitted to the jury. They were having a quarrel which grew out of the division of this crop of apples — a quarrel between landlord and tenant; there was trouble about the apples LeJune was raising “on shares.” It is admitted all around that there was some talk about that. And whatever defendant said was under such circumstances as made it a very proper question to leave to the jury, whether there was any intention on the part of Dr. Phillips to charge LeJune with a crime, even if he did use the words which LeJune claims he did.

There was no sufficient instruction to the jury in the general charge along this line — upon this feature of the case — and it was an important question in the case.

Dr. Phillips having testified that he did s'ay to LeJune, “You took six bushels of apples for Fry, and I am going to take three for Hall,” the jury might, possibly, without any instruction on that question, have thought that the statement of defendant was practically an admission that he charged LeJune with stealing, while according to the doctor’s testimony and the testimony of Hall, who was present, whatever the language was, these words were used in such a manner and under such circumstances as to show that he had no intention of charging-LeJune with anything more than taking five or six bushels of these undivided apples — a portion of them — and thus entitling him, Phillips, to a like amount, and that he had no intention of charging him with theft.

We are of the opinion that the instruction No. 3 asked by the defendant below should have been given. It is plain to us that it was pertinent to the case, and is the law as laid down by the Supreme Court of this state.

In the case of Brown v. Myers, 40 Ohio St., 99, the Supreme Court say in the syllabus:

“An action of slander can not be maintained for words which impute a crime, where, from all that was said at the time the words were spoken, it appears that the words had relation to a transaction that was hot criminal, and that they must have been so understood by the hearers.
“In such ease it is error to exclude evidence offered by the defendant to show what the transaction was to which the words related.”

That being the law, the only question is whether the request was pertinent to the facts of this case, and we think that it was very pertinent, and that the jury should have been charged fully upon that question.

Whatever was said on this occasion was said in a quarrel — in the heat of passion; there was no deliberate and premeditated charge of theft. Whatever was said grew out of the differences between these two men, in regard to this crop of apples. The circumstances under which the words were uttered; the place where they were uttered, and the fact that LeJune had, in fact, given six bushels of apples, or set apart six bushels of apples for Fry, before this trouble occurred; the testimony of Mr. Hall — all go to corroborate Dr. Phillips’ claim as to this transaction.

According to the testimony, some of it, at least, LeJune had made an arrangement with Fry to give him six bushels out of eighteen, for picking them, and the apples were all there on the ground in sight of the parties; twelve bushels in one pile and six in another, which were to go to Fry.

However, as the plaintiff testifies to the use of this language— denies the claims of Dr. Phillips, and is corroborated, to some extent, by his son, but who was quite young, in fact, so young that he testified on the witness stand that he did not understand the nature of an oath — in view: of this testimony, we do not hold, as a matter of law, that the judgment should be reversed and verdict set 'aside because against the weight of the evidence, but it was a'question for the jury, under proper instruction from tbe court.

We think it was reversible error in the court to refuse to give this instruction to the jury, and that, the charge was faulty and defective in not mentioning to the jury the facts and circumstances as claimed here -by the defendant, as surrounding the speaking of the words, whatever they were, and stating to the jury the law upon that question as laid down by the Supreme 'Court. That was a very important factor in this case, and we think the jury should have been fully instructed upon it.

We think that this is a case where the jury might well have been instructed more fully on the question of punitive damages. They were simply instructed that they might return punitive damages. It is true that this, to some extent, lies in the discretion of the" jury, if the evidence warrants it. It may or may not warrant such damages in addition to compensatory. But there was evidence strongly tending to show that the words were uttered in passion, without any intention of injuring Le June; and the jury should have been instructed that this should be taken into consideration by them on this question of punitive damages in determining whether or not -any should be allowed, and generally in fixing the 'amount of the damages if they found for plaintiff.

We find this in Seaton v. Cordray, Wright, 101:

“An action may be sustained for charging another with being a thief or with having stolen, but not for imputing a mere intention to steal, or with having an evil disposition.
“To make words imputing crime actionable, they must be such, as, if true, would subject the accused to infamous punishment.
“Slanderous words, uttered in heat and passion, or provoked by the plaintiff, entitle the plaintiff to merely nominal damages.”

And the court said:

“An action may be sustained for charging another with being a thief, or with having stolen, but not for imputing a mere intention to steal, or with having an evil disposition. * * *
“If the words spoken do impute crime, but were spoken in heat and passion, while the parties were excited, and in contest, the damages should, be merely'nominal lor the, plaintiff. ’

If whatever was said in the case at bar was said in a quarrel between these two men and in passion, if the jury found for the plaintiff, that should have been taken into consideration -by them in fixing the amount of punitive damages and in determining whether any such damages should, be allowed, and upon the question of damages generally this should be considered, and the jury should have been instructed fully upon that point by the court.

We think from the whole, record in this case, that the ends of justice have not been reached by this verdict and judgment, and for the errors pointed out the judgment will be reversed, the verdict set aside, and the case remanded for a new trial.


text:
    RECOVERY FOR CARE AND SUPPORT FURNISHED TO A DECEDENT.
    Circuit Court of Wood County.
    Frank P. Clark, Administrator of the Estate of Catharine Grant, Deceased, v. Abner Boltz et al.
    Decided, April 29, 1906.

      Contract — For Care ancl Support During Remainder of Life — Property to he Conveyed in Consideration — Failure to Make the Conveyance ■ — Action for Quantum Meruit — Not for Enforcement of Contract-Evidence as to the Contract — Limiting Recovery to the Value of the Property — Charge of Court — Special Requests — Pleading— Surplusage — Parties—Misjoinder.
    B and wife brought an action against the administrator of G for personal judgment on account of care and support furnished to G for a number of years. The petition set forth an agreement whereunder such care and support were to be furnished to G during the remainder of her life in consideration of a certain house and lot being conveyed to them, of which G died the owner, and intestate. Held:

      X. The action was for a quantum meruit, and the references in the petition to the agreement or contract were surplusage.
    2. The defendant, having successfully interposed an objection to the introduction of testimony as to the value of the house and lot, will not thereafter be heard to complain that the recovery may be for a much larger sum than the value of the house and lot.
    3. An’ allegation of demand and default is not necessary in such a ease; the presentation of the account to the administrator and its rejection by him was sufficient.
    4. The claim that the proof has established that the cause of action, if any existed, was in favor of the wife, and not in favor of both husband and wife, does not on review furnish a basis for the contention that there has been a misjoinder of parties, where leave to answer as to the alleged misjoinder was not sought at the trial below; nor would the joining of the husband, by gift, assignment or otherwise, in the right of action existing in the wife, be necessarily a matter of any prejudice to the defendant administrator.
    5. Where the record does not affirmatively show that requests for instructions to the jury before argument were submitted in writing, the correctness of the instructions will not be inquired into by a reviewing court.
    Parker, J.; Haynes, J., concurs.
   The action below was by Abner Boltz- and his wife against Frank P'. Clark, adminástlpatior of the estate of Catbiar'irne Grant, deceased. In the petition it is set forth with considerable particularity that the plaintiffs, being husband and -wife, entered into a contract — with one Catherine Grant to the effect that the plaintiffs should board and lodge her, and she on her part was to provide a house for all of them; in this house she was to have a special room of her own; the remainder of the house was to be the habitation of the plaintiffs, and at her death this house was to be the property of the plaintiffs as compensation to them for her support. The petition does not so aver, but the evidence discloses that the contract was oral.

The petition does not state distinctly that Catherine Grant failed or refused to perform her part of the contract, but it does disclose that she died intestate the owner of this property, so that it went to her heirs.

The plaintiffs set forth that the value of what was furnished in the way of services, purchases, support, etc., was nine hunclred and thirty-one dollars and ninety cents, covering a period of nearly six years, from January, 1898, until October 10, 1903; and for the same period they credited five dollars per month for the use of the premises as rental, making three hundred and forty-five dollars; and they ask for a judgment for the balance, of five hundred and eighty-six dollars and ninety cents, and interest.

A general demurrer to this petition was filed. It is stated that the point made upon the demurrer was that the petition disclosed that if there was a cause of action at all, it was one for specific performance, that it was not quite sufficient in its averments for that purpose, and there was no prayer for specific performance, but a prayer for personal judgment; that while the petition disclosed imperfectly a clause of action of that character, the action was in effect an action at law. The demurrer was overruled.

It seems to us that there is a good deal in this petition that might have been safely omitted from it. That, of course, would be no reason for sustaining the demurrer to it; but it is because of this large amount of matter disclosing the contract and giving to the petition the appearance of a claim for the specific enforcement of a contract, that counsel for plaintiff in error seem to have been led to the view and conclusion that it was an action of that character, or should have been so framed distinctively.

It appears to us, however, that it is an action for a quantum meruit, and not for the specific enforcement of this contract, and that as an action for quantum meruit all reference to 'this contract might have been omitted. Some years ago the firm of which I was a member had a claim of this nature which we undertook to enforce, in the case of Marx v. Loo, and in that case in the petition we made no reference whatever to a contract, although there was a contract of this character; we simply sued on a quantum meruit, and the petition was very brief indeed, and that petition passed muster both in the lower courts and in the Supreme Court. In the course of the investigation we undertook to prove the contract, and the court of common pleas would not allow us to do so. The action of the court of common pleas in the premises was affirmed by the circuit court, but both courts were reversed by the Supreme Court — that court holding that we had the right to prove the contract not to obtain specific performance thereof, because the contract being oral, and being in respect to land, could not be enforced on account of the statute of frauds, but that we had a right to prove the contract as a part of our showing that the services were not performed gratuitously; the court holding that since the contract could not be enforced, and since the services were not performed gratuitously, we had a right to sue and recovér on a quantum meruit. The final hearing in the case, including the petition and all matters pertaining to it, will be found in final record No. 49 of this court, and the mandate of the Supreme Court will be found at page 309 of that record. ' We came back and retried the case along those lines, though we failed to recover for lack of evidence to satisfy the jury, and failed to have the matter reviewed again by the circuit court on account of some irregularity in preparing our bill of exceptions, and so the matter ended; but that particular point was considered and passed upon by the Supreme Court. So we think that the plaintiffs in this case had a right to sue upon a quantum meniit, and that the petition is sufficient along that line, and that all of this matter about the contract set forth in the petition, may be x*egarded as surplusage.

In Berry v. Collins, 9 C. C. R., 656, an action for services as a housekeeper, while this particular point does not appear to have beexx involved, it is refex’red to by Judge King in his opinion at page 660. There was in the case testixnony that the defexxdant promised that he would give the plaintiff a farm as compensation for her services, and Judge King in the opinion, says :

“In this connection the court refused to allow the plaintiff to show the value of any famx, or of the farm which seemed to have been indicated by the declarations of Mr. Rerry in stating that he would give her a farm. Nothing was done by the court in that respect certainly, .which could be prejudicial to the ¡defendant. Circumstances could be easily imagined where that class of testimony would be entirely competent; but it is perhaps not necessary to pass upon that. I'might suggest, however, that if there was testimony that went to the jury that could be said to tend to prove that he had engaged this woman under a promise to give her a farm for her services, such an arrangement or contract would be within the statute of frauds, and she could not enforce it, and she might sue, as she did in this case, to recover the value of those services, and the value of the farm would be competent evidence to be given to the jury for the purpose of showing exactly what he intended to pay her. That far it would be competent to show that her services were worth as much as that farm. A verdict would not be disturbed based upon that kind of testimony.”

It will be observed that Judge King’s opinion goes a little further than the holding of the Supreme Court, in the case of Marx v. Loo. It is intimated that the value of the farm might be the measure -of damages. That, question was involved in Marx v. Loo, but all we asked in that ease was leave to show that the services were not gratuitously performed.

It is urged in this case that the amount recoverable for the ' services, if this contract were established by the evidence, would be the value of this house and lot — whereas the recovery here may be for a great deal more, that the house and lot majr not be worth over a hundred dollars; while recovery was of many times that amount. There may be something in that; we are not prepared to say; we have not been called upon to examine into the question closely, but we think that in the view of the condition of this record the plaintiff in error is not in a position to take advantage of the absence of evidence as to the value of the house and lot, and we shall assume that the house and lot was worth as much as the amount of the recovery, for the reason that the plaintiffs below undertook to prove the value of the house and lot and this was objected to by the defendant below, and because of that objection the plaintiffs were not permitted to make this proof'; and having stood in the way of making this proof, this court will not now assume, in order to find ground ' for reversal of this judgment, that the house and lot were not as valuable as the amount of this recovery. What plaintiff so offered to prove is found on page 97 of the record.

It is said that there is no allegation or proof of a demand of performance and a default. If this were an action for specific performance of the contract, perhaps something of that kind would be necessary; but nothing was necessary in this case other than what was done — the presentation of the account to the administrator and its rejection by him.

It is said that the evidence discloses that this cause of action, if there was a cause of action, was in favor of the wife and not in favor of the husband; that it was not joint, and that therefore there was a misjoinder; and that this results from the fact that the deceased lady promised in her lifetime from time to time to convey this property, or declared it was her purpose to convey it, to the wife. Looking into the record we find her declared purpose stated both ways. She seems to have said on occasions that she meant it for “them,” referring to the husband and wife, and it appears that the support furnished to her and the services, were furnished and performed by both husband and wife. But aside from that we think that question can not be raised now by the plaintiff in error. There was no demurrer upon the ground of misjoinder though perhaps nothing can be claimed from that because it is not disclosed by the petition that it was a cause of action in favor of one and not the other or of both. But passing that, there was no answer that the cause 'of action was not in favor of both, but that if it existed it was in favor of one; in other words, the plaintiff in error did not seek to take advantage of this misjoinder, if there was one, by either demurrer or answer, and the statute, Section 5063, provides as follows:

“When any of the grounds of demurrer to the petition do not appear on its face, the objection may be taken by answer; and if no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objections that the court has no jurisdiction of the subject of the action, and the petition does not state facts sufficient to constitute a cause of action.”

That certainly is very plain. ITad the plaintiff in error been desirous of taking advantage of claimed misjoinder, an answer should have been filed. That was not done but it is urged by the plaintiff in error that the fact of the misjoinder developed upon the trial of the case. That is no reason for not complying with the statute. If that fact then developed and plaintiff in error had not been advised of it before, he might then have taken leave to answer. The court would have undoubtedly given him leave to make that answer. We know of no authority for permitting one to pass the question without raising the issue by pleading, and then undertaking to raise it upon the evidence and show that the verdict should be set aside and judgment reversed because it is disclosed by the evidence that the cause of action was not in favor of all of the plaintiffs joined in the petition. If it were time that the cause of action was in favor of but one .of the plaintiffs, if that plaintiff agreed to share the cause of action with another by an assignment, either as matter of gift or otherwise, or, not pursuing the- method by formal assignment, had agreed to join another as plaintiff so as to give him a share of the recovery, it is not apparent that that would be a matter of prejudice to the defendant in the case, though the defendant might have objected to such misjoinder had he eared to do so.

There were certain requests to charge on behalf of the defendant below which were not given. We think the court was justified in refusing to give these requests,'because the propositions of law contained in them are not correct; but aside from that we would not reverse the judgment in this ease even if we found that those instructions were correct, for the reason that it is not disclosed by the record affirmatively, as it must be to justify a reversal upon that ground, that the requests were submitted in writing. The record says: “Before any argument of counsel the defendant requested the court to charge the jury as follows, to-wit:” and then' follow these charges.

S. P. Harrison and Poe & Poe, for plaintiffs in error.

W. H. McMillen, for defendant in error.

The ease of The Toledo, Fremont & Norwalk Company v. Gilbert, 2 C. C. — N. S., 432, presented this same question. The opinion is by Judge Hull, and on page 436 he says:

“This record before us does not show that these instructions that were requested of the court were written instructions; it simply shows that the defendant submitted to the court certain requests which they asked to be given to the jury before argument, and shows that the court gave some instructions. It does not show that the court read those that were given, and if there should be any inference at all it might be inferred that those were committed to writing or printed, by someone, but by whom it does not appear. And as to those that were refused, the record shows nothing, and üor aught that appears in the record, the requests, as is often the case after argument, may have been oral requests of counsel, and not made in writing. To constitute error in the action of the court in this respect, the record must show affirmatively that the requests for instructions were written requests, which the statute clearly contemplates the court shall have oppoi’tunity to examine and deliberate upon, if it desires, before they are given to the jury or refused.”

That has been our construction of the statute as applied by us in a large number of cases, though that is the only reported ease I am able to lay my hands on at this time. The paragraph of Section 5190, Revised Statutes, applicable, reads:

“When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.”

We think a right of recovery on a quantum meruit of the amount that the jury returned in their verdict was clearly established by the evidence, that the verdict was right, and that the judgment ought to stand, and it will be affirmed.


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    SIDEWALK ASSESSMENTS.
    Circuit Court of Cuyahoga County.
    Fannie Meek v. The Village of Collinwood et al.
    Decided, November 12, 1906.

      Corporations, Municipal ancl Tillage — Procedure for Construction of Sidewalk — And Assessment of Cost Upon Abutting Property-Change of Material — Notice—Sections 1536-210-211a-232 and 235.
    1. When council provides for the construction of a sidewalk, and serves notice on an abutting owner that in case of his failure within a specified time to construct a walk of certain material and a certain width, it will be laid by the municipality or village and the expense assessed back upon the property, all procedure has been had which is necessary for the construction of the walk and the levying of a proper assessment therefor upon the property.
    2. But where the notice served on the property owner calls for a walk ’ constructed of sand-stone, no greater obligation is imposed on the property owner than if he had entered into a contract for a sandstone walk, and the laying of a cement walk by the municipality without further procedure imposes no obligation on him for the cost thereof.
    Marvin, J.; Winch, J., and HeNry, J., concur.
    Heard on appeal.
   This is a suit brought by Fannie Meek against the village of Coilinwood and its treasurer to restrain the collection of an assessment made upon the property owned by the plaintiff. It comes here on appeal from the judgment of the court of common pleas.

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

“Mayor’s Office, Collinwood, 0.
June 10, 1903.
‘ ‘ To Fanny Meelc:
“You are hereby notified that according to the provisions of a resolution passed by the council on the 11th day of May, 1903, you are required to construct a sidewalk in front of your premises on the southerly side of Kirby avenue, between Adams street and Elm street, known as No. - on said street. Said sidewalk to conform to the following specifications: to be of sand-stone sawed on both sides, to be 5 feet wide, 2y2 inches in thickness and laid 6 inches from the lot line, and to be constructed in accordance with the general ordinances of the village pertaining to sidewalks.
“If said sidewalk is not constructed within thirty days from receipt of this notice, the council will have the same done at your expense, and the costs will be made a lien upon your property and collected with penalty and interest as provided by law. ’ ’

And then follows the endorsement by the clerk.

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

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

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

The plaintiff failed to pay the assessment which was certified as a lien upon her property to the county treasurer of Cuyahoga county, who, if not enjoined, will proceed to collect the amount of that assessment.

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

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

And by Section 1536-211a:

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

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

• It will be observed that the proceedings here were not in conformity with these sections of the statute. But there is a further provision in the statute with reference to sidewalks. Beginning with Section 1536-232, which is Section 70 of the municipal code, as published in Ellis’ work:

“The council of cities and villages may provide by ordinance for the construction and repair of all necessary sidewalks, or parts thereof, within the limits of the corporation,” etc.

And then it provides—

“When the council of cities or villages declares by resolution that certain specified sidewalks shall be constructed, the clerk of council shall cause a written notice of the passage of such resolution to be served upon the owner or agent of the owner of each parcel of land abutting on such sidewalk, who may be a resident of such city or village,” etc.

And in Section 1536-235, it is provided that—

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

And I call attention especially to the last provision of Section 1536-235, which is Section 73 of the code — ■

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

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

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

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

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

Miller & Lincler, for plaintiff.

G. L. Stocker and IS. II. Tracy, for defendant.

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


text:
    VERIFICATION OF PLEADINGS.
    Circuit Court of Cuyahoga County
    The Bulloch-Beresford Manufacturing Co. v. H. E. Hedges.

    Decided, June 26, 1905.

      Pleadings — Verification of — When Made by an Agent or Attorney of a Oorporation — Officers Who May Verify Pleadings Without Restriction — Sections 5102 and 5109.

    The provisions of Section 5109, Revised Statutes, regarding verification of pleadings by agents and attorneys, apply to the pleadings of corporations as well as those of natural persons.
    Winch, J.; Henry, J., concurs; Marvin, J., dissents.
    Error to the court of common pleas.

       Affirmed by the Supreme Court, March 19, 1907; reported, 76 Ohio State, —

   The question presented by the petition in error in this case is whether a petition in an action instituted by a corporation having its place of business within the county should be stricken from the files because it was not verified by an officer of the corporation. The verification complained of was by the corporation’s attorney, no reason being given wh}1- it was not verified by an officer, and no statement being made that the facts were within the personal knowledge of the attorney.

This question requires a construction of Sections 5102 and 5109, Revised Statutes of Ohio; the'former section, so far as applicable, reads as follows:

“Every pleading of fact must be verified by the affidavit of the party, his agent or attorney; when a corporation is a party, the verification may be made by an officer thereof, its agent or attorney. ’ ’

George 8. Groot, for plaintiff in error.

W. J. Patterson, for defendant in error.

Section 5109 provides: “The. affidavit verifying a pleading can be made by the agent or attorney only when; ’ ’ then follows four specified cases when it can be done, within none of which the verification in this case is brought.

It is said that Section 5109 does not apply to the pleading of a corporation. The common pleas court held otherwise. We apprehend that it was right.

Were it not for Section 5109, under a fair construction of Section 5102, read without reference to any other law, we take it that every pleading, whether of a natural or artificial person, might be verified by an agent or attorney, without restriction or qualification.

The same may be said of Section 5109. Read by itself it applies to all pleadings, whether of natural or artificial persons. It is a manifest limitation upon the privilege of having pleadings verified by agents or attorneys, granted'under Section 5102.

It would seem, then, that by combining the two sections there would not result any exemption of corporations from the operation of Section 5109, though we are aware that the conclusion reached by the Common Pleas Court of Cuyahoga County is not in harmony with the conclusion reached by the Common Pleas Court of Franklin County, 7 N. P., 127, and the Common Pleas Court of Lucas County, 2 N. P., 260.

The two cases last cited proceed -upon the proposition that officers, agents and attorneys of corporations are all of them its agents. True, but it does not follow that all its agents and attorneys are officers, and we believe that the only agents of a corporation who may verify its pleadings without restriction are such as are strictly officers, having charge and control of its affairs, whom the law must presume to have sufficient knowledge of its affairs to warrant them in verifying statements of fact on its behalf, as though made for themselves.

The judgment is affirmed.


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    ALOTMENT OF COST OF IMPROVING JOINT COUNTY DITCH.
    Circuit Court of Huron County.
    Commissioners of Crawford County v. Commissioners of Huron County et al; Smith et al v. Commissioners of Huron County, and Ferguson et al v. Commissioners of Huron County.
    Decided, April, 1907.

      Bitches — Improvement of a Joint County Bitch — Jurisdiction of the Common Pleas — In an Action to Apportion the Costs of such an Improvement — Right of Contribution from an Upper County — Not Lost by the Bitch Becoming a Public Water-course by Operation of Section 4510 — Time Within which Viewers are to Report — Parties —Who Should, be Joined in an Action for Contribution.

    1. Where it was decided, during proceedings by and before the boards of commissioners of three counties convened for the purpose of improving a joint county ditch, that the lower county should do certain work upon the ditch in that county, reserving all rights as to compensation from the other counties, the court of common pleas has jurisdiction, by virtue of Section 4488a, of an action against the other counties for an apportionment of the cost of the improvement; and voluntary submission to the jurisdiction of such court, by tender of issues in pleadings without questioning-jurisdiction therein and by assenting to the journal entries, is equivalent to an agreement by a majority of the boards of commissioners of the several counties under which the alternative procedure may be had in the court of common pleas under Section 4510-10 to compel contribution for the expense of constructing or improving an outlet for waters from other counties.
    2. Where the county commissioners, by virtue of Section 4510-1, clean and enlarge that part of a joint county ditch lying within their county so that better drainage is provided for an upper county, contribution may be had from such upper county to meet the cost of improvement.
    3. Where a county ditch has once been established by law, and has been used for a period of over seven years, it does not by operation of Section 4510 become a public water-course in the sense that the right to improve it as an established county ditch no longer exists.
    4. Under Section 4510-10, viewers are given thirty days from the time of their appointment to act and report, and are not limited to thirty days from the filing of the petition.
    5. Provision is only made by statute for proceedings between the boards of county commissioners of the different counties interested in a suit for contribution for a ditch improvement, and the owners of lands affected by the improvement can not join in .the action- and become parties thereto.
    Error to Huron Common Pleas Court.
    C. H. Henkel and J. R. McKnight, for plaintiffs in error cited—
    As to jurisdiction of commissioners of one county to construct a ditch in another county: Schamp v. Kennedy, 16 C. C., 604; Carlin v. Hosler, 58 Ohio St., 694; Lucas County v. Fulton County, 2 N. P., 47 (affirmed, Fulton County v. Lucas County, 12 C. C., 563) ; Zimmerman v. Canfield, 42 Ohio St., 463; Buckley v. Lorain County, 1 C. C., 251, where the land of a party was not benefited by the improvement; Redfern v. Hancock County, 18 C. C., 233; Blue v. Wentz, 54 Ohio St., 247; Pleasant Hill v. Commissioners, 71 Ohio St., 13; Greene County v. Harbine, 74 Ohio St., 318.
    Wildman, J.; Haynes, J., and Parker, J., concur.
   Three cases numbered on the docket, 413, 414 and 415, involve proceedings relative to a joint county ditch, so-called, with regard to which there is some dispute concerning its precise character, and as to what proceedings should have been taken. The first of the cases so numbered is that of the board of comity commissioners of Crawford county against the board of county commissioners of Huron county; the second of them, that of Charles R.- Smith and others against the board of county commissioners of Huron county, and the third, that of Daniel Ferguson and others against the board of county commissioners of Huron county and others.

These are all based upon claimed errors of the court of common pleas in a proceeding instituted under favor of Section 4488a, Revised Statutes.

It appears that some time in the year 1905, petitions were filed in the three counties, Huron, Crawford and Richland, for the Avidening, deepening 'and straightening of a so-called joint ditch, known as the Nogg'le Joint county ditch, and certain ditches draining into the same, known as Spring run and Marsh run.

One of the three counties named (Huron) is the lower county and the one into which the waters of the other two counties would naturally drain, or into which waters might be conducted by proper drainage.

The commissioners of the three counties held certain meetings and had certain proceedings, but we are favored with no record of any of them until the date of March 6, 1906, when a meeting was held at the office of the board of county commissioners of Huron county for the purpose of further considering the petition of one J. W. Dawson and others, which was the foundation of the proceedings. An examination of the record of this meeting is vital to the proper determination of the controversy here involved.

I may say that the claims of Richland county, as represented by the board of commissioners of that county, are practically eliminated from the contention here; no petition in error has been filed by the board of commissioners of that county and the real controversy here is between the board of commissioners of Huron county and the board of commissioners of Crawford county except in so far as certain residents of the.two comities of Richland and Crawford have sought to become parties in the proceedings to contest before the court the claims of Huron county under the statute to which I have referred.

- Before entering upon any critical examination of the recorded proceedings, it may ,be well to mention, in a general way, the terms of Section 4488, Revised Statutes, immediately preceding Section 4488a, Revised Statutes, which provides for the bringing of a proceeding in the court of common pleas. Section 4488, Revised Statutes, provides that when a ditch or improvement is proposed, which will require a location in more than one county, application shall be made to the commissioners of each of said counties, and the surveyor or engineer shall make a report for each county. Application for damages shall be made, and appeals from the finding of the commissioners, in joint session, locating and establishing such ditch, and from the assessment of damages or compensation, shall be taken to the probate court of the county in which the greatest length of such ditch or improvement is located; and a majority of the commissioners of each county, when in joint session, shall be competent to locate and establish such ditch or improvement; but no commissioner shall serve in any case in which he is personally interested, and any two of the commissioners may form a quorum for the transaction of business for their respective counties.

There are certain other provisions in the section which it is not necessary to read.

Now, Section 4488a, Revised Statutes, provides:

“If the commissioners in joint session find in favor of the proposed improvement, and are unable afterwards to agree as to the proportion of the costs of location and constructing the improvement, which shall be assessed in each of the counties, respectively, the board of commissioners of either county may petition the cóurt of common pleas of their county for the appointment of three disinterested freeholders, not residents of either of said counties, who shall within thirty days thereafter, after being duly sworn and upon actual view of said improvement, estimate and report to said court the amount which should be charged to the land in each county interested in said improvement, respectively. ’ ’

Now, examining the proceedings of March 6, 1906, we find it recited that, among other persons present, were two commissioners of Crawford county, Samuel Easterday and J. IT. Petri, with all the members of the Richland and Huron county boards.

The meeting was called to order by the chairman of the joint board. It is recorded that the minutes of the -meeting of February 23 were read and on motion, duly approved, but we are not informed as to just what had taken place at the meeting of February 23.

I now read from the record of the proceedings of March 6:

“After a further explanation of their reports by the engineers of the several counties respectively, it was moved by Felton and seconded by Miller, that ‘Noggle Joint county ditch,’ ‘Spring run’ and ‘Marsh run’ be cleaned out, deepened and widened as prayed for in the petition.
“Mr. Easterday moved to amend the motion by providing for the elimination of that part of ‘Noggle Joint county ditch’ .■which lies in Crawford county from the proposed improvement. The amendment being accepted by Mr. Miller, the following vote was had on the amendment: Crawford county— Easterday, aye, Petri, aye; Huron county — Noble, aye, Miller, aye, Felton, aye; Richland county — Finney, aye, Baker, aye, Patterson, aye. The amendment was carried by a unanimous vote.
“Then it was moved by Mr. Finney to further amend the motion by providing that that part of ‘Spring run’ lying in Richland county be eliminated from the proposed improvement. That amendment was accepted and the motion was carried.”

It was moved by Felton and seconded by Miller that the motion be amended by providing that of the cost of said proposed improvements exclusive of that part of “Noggle Joint county ditch” in Crawford county, and that part of “Spring run” in Richland county, there shall be paid by Crawford county, $1,300; Richland county, $750, and by Huron county, the balance of the cost thereof.

A vote was taken on this motion and it was declared lost. All these are proposed amendments to original motions. Then it was moved by Finney and seconded by Patterson to amend the motion by providing that Huron county pay all the cost of said proposed improvement.

The vote on this amendment was unanimously no, all the commisioners from the three counties present voting against the proposition to amend the original motion by throwing the entire charge upon Huron county. It was then moved by Finney and seconded by Baker that the motion as amended be laid on the table and the vote was unanimously in favor of so doing.

It was then moved by Finney and seconded by Baker-—

“That it is the sense of this joint board that that part of ‘Noggle Joint county ditch’ lying in Huron county be improved, reserving to Huron county any existing right of repovery for benefits to, or damage caused by Richland and Crawford counties or landowners therein.'”

Up to this time-there is no hint that this was not a joint county ditch which was sought to be improved. No question is raised in this meeting, and we are not advised that any was raised in any prior one, as to the legality of a proceeding for the improvement of an existing joint ditch, parts of which were in all of the three counties named.

The motion which I have just read was carried by a unanimous vote. It was then moved by Finney and seconded by Petri that the reports of the engineers of the several counties be accepted, and this motion was carried by a unanimous vote.

It was moved by Easterday, one of the Crawford county commissioners, and seconded by Patterson, that the joint board adjourn subject to call of its president and this motion was carried by a unanimous vote, and the meeting adjourned.

It will be noted that while there was no question raised as to the legality of the proceedings,' under Section 4488, Revised Statutes, applicable to a joint ditch, still th^re had been no agreement as to the proportion of the expense which should be borne by the one county or the other. There was no agreement among the commissioners, for instance, that Crawford county should bear a proportion of the expenses stated, and that Huron county or Richland county should bear another. We are left with the express reservation that Huron county preserves all its rights as to compensation from the other counties, whatever those rights may be.

On March 8, 1906, the board of county commissioners of Huron county commenced its action in the Court of Common Pleas of Huron County,' Ohio, under Section 4488a, Revised Statutes, alleging a failure to agree as to the proportion of the expenses that should be borne by the different counties, and asking for the action .of the court, under said section.

We find that summons was issued upon this petition and properly served on the board of commissioners of Crawford county and also that the board of commissioners of Crawford county filed an answer. There can be no question, in our judgment, as to the jurisdiction of the court of common pleas of the board of commissioners of Crawford county, authorized to represent, the county in the manner provided by this statute, and by the general statute as to county commissioners, making that body capable of suing and being sued.

I have before me the answer of the board of commissioners of Crawford county. There are certain admissions in this answer which may be important in view of some of the contentions of counsel.

It is expressly admitted that on October 10, 1905, a petition praying for the cleaning out, deepening and widening of a joint county ditch, known as “Noggle Joint county ditch No. 370,” was filed with the proper officers in the said counties.

It is expressly admitted that on November 9, 1905, said boards of county commissioners met in joint session at the place of beginning of said proposed improvement.

It is expressly admitted that said boards of county commissioners met in adjourned joint session at the court house at Norwalk, Ohio, on February 23, 1906, and also that the plaintiff, the Huron county board, and the parties defendant, the Crawford county board and Richland county board, were unable to agree as to the proportion of the costs of location and construction of said improvement which should be assessed in each of said counties respectively, and that they have ever since been unable to agree.

This substantially admits about all the matters which the statute provides shall constitute conditions precedent to the invoking of the jurisdiction of the court of common pleas under Section 4488a, Revised Statutes. However there are certain denials and averments which should be taken into consideration in connection with the admissions which I have recited.

The answer alleges that no benefit would accrue to Crawford county by reason of the proposed drainage; it alleges that the lands in Crawford county do not need drainage; that they naturally drain the waters into “said” swamp (which does not seem to have been before mentioned in the answer), and that the same are carried off through said ditch,, referring evidently to the “Noggle ditch” concerning which we have this whole controversy, and if so, that that ditch is the natural outlet and drainage of these lands.

Then we find this allegation in the answer:

“And this answering defendant says that the said surface waters from off the lands in Crawford county have been running through depressions in which said ditch is constructed since time immemorial to the same extent that they now do; that said ditcb would be the natural drain and outlet for said water, and that all the land in Crawford county claimed to be affected by this improvement is as naturally and sufficiently drained thereby and as well and thoroughly as though this proposed improvement had been made, or will be when said improvement has been constructed.
“This defendant, for further answer, says that the proposed improvement will not require a location in more than one county, viz., Huron county, Ohio.”

Then it urges that no part of the costs or expense should be placed against Crawford county; that there are no lands in said county which can be assessed for the location and construction of the same, for the reason that they are not benefited thereby; and also that, if a portion of the expense for the location and construction of this proposed improvement should be placed against Crawford county, the same would be unjust, unfair and inequitable.

It is urged by counsel for defendant below, plaintiff in error here, the-board of commissioners of Crawford county, that this ditch had been in existence for many years and had not been obstructed or interrupted, and that it had become a natural water-course under the terms of Section 4500, Revised Statutes, which provides when a ditch shall become a public water-course. The language is:

“When a ditch has been established and constructed for the public health, convenience, or welfare, either by private agreement between two or more individuals, whose real property has been affected thereby, or by a board of township trustees, or by a board of county commissioners, and such ditch has been used for the purpose of drainage of private lands or public highways for seven years or more, without obstruction or interruption, the same shall be, and hereby is declared to be, a public watercourse, notwithstanding errors, defects, or irregularities in the location, establishment, or construction of the same, and such public water-course shall, in all respects, be considered and treated as a natural water-course, and the public shall have and possess in and to such public water-course, the same rights and privileges which pertain and relate to natural water-courses.”

We do not understand, however, when a ditch has been once established by law and has been used for seven years, that all right is lost to the proper authorities to widen or deepen or straighten it; that it has become a natural water-course in any such sense as to take away the right to improve it as an established ditch.

It is urged by counsel for plaintiff in error that as the work is required by the joint voice of the boards of commissioners of three counties to be done entirely in Huron county, therefore no such proceeding as we have here is permissible, and that an action should be brought under another section of the Eevised Statutes providing for the construction or improvement of an outlet in one county to waters drained therein from another.

Section 4510-1, Eevised Statutes, provides:

“In all cases where the commissioners of any county in this state shall cause to be constructed or enlarged, or cleaned, or repaired, any ditch, drain or water-course, the water frqm which flows into an adjoining county or into of finds an outlet in any ditch, drain or water-course constructed or being constructed in an adjoining county, and in all cases where the commissioners of any county in this state shall cause to be constructed, enlarged, cleaned out or repaired, any ditch, drain or water-course, which is or may be an outlet for any ditch, drain or water-course, of lands of an upper county” — and I emphasize the term “watercourse” in view of the argument which has been made under Section 4500, Eevised Statutes, that under certain circumstances, a ditch becomes a public water-course and subject to treatment as such — “or which, by reason of any proposed improvement thereof, will provide better drainage or a more sufficient outlet for any ditch, drain or water-course, or lands of an upper county, and in all cases where the commissioners of any county in this state find it necessary to construct, or enlarge, or widen, or deepen, or clean out, any ditch, drain or water-course of a lower county in order to secure a sufficient and proper outlet for a proposed ditch, drain or water-course óf an upper county, the commissioners of such upper county shall pay the commissioners of such lower county such sum as may be agreed upon by the commissionérs of both counties, for the use and benefit of such outlet, which sum the commissioners of said upper county shall apportion to the lands in their county, for whose benefit said ditch was, or is constructed,” etc.

There are several sections immediately following this, culminating in Section 4510-10, in which we think that we find authority to the commissioners of any one of these counties for an alternative procedure.

It will be noted that in the section which I have just read, the right is given to the lower county to compel contribution by the upper counties for work done solely in the lower county, in the cleaning out or widening or improving a ditch which drains the lands or water-course, or ditch of an upper county.

Section 4510-10, provides:

“All proceedings for the construction, cleaning out, repairing or enlarging either of said ditches, in either the upper or lower counties, whether or not the same have been originally constructed as joint ditches or whether or not the ditch to be constructed might be a joint ditch, may be commenced and conducted in the manner prescribed by this act and the law prescribed for single county ditches. ’ ’

I should perhaps pause to say that the procedure in what is here called “this act,” is a procedure instituted in the probate court where the parties have not agreed upon the proper proportion of the expenses.

Section 4510-10 continues:

“But in addition to the manner of procedure prescribed in this act for the construction, enlarging, cleaning out or repairing of any ditch, which furnishes or may furnish drainage for more than one county, proceedings shall be commenced and conducted in the manner prescribed by law for the construction of joint ditches, whenever a majority of each board of commissioners of such counties shall agree. ’ *

This, we think, gives the alternative remedy under which the board of commissioners of Huron county might proceed in the court of common pleas instead of the probate court, provided the boards of county commissioners have agreed to treat the case as one where such procedure may be adopted. Have they done so in this case? Perhaps not by any formal resolution to that effect; but, by filing their answer in the court of common pleas, by their agreement to what should be the finding of the court, on July 5, 1906, by their assenting to the journal entry and by their taking no exceptions to the action of the court on that occasion, it seems to us that they have acted as effectually as if they had placed a formal motion adopting this procedure upon their records. The. entire procedure on March 6 was entirely in harmony with the action which was taken in the court of common pleas. No objection was made in the court of common pleas to the jurisdiction of the court unless we are to treat the exceptions filed to the report of the viewers on December 8, 1906, as such an objection to the jurisdiction of the court.

Now, the court of common pleas, having that sort of jurisdiction which we think it might properly assume, from the apparent consent of all parties, and from the fact that summons had been issued and served and answers filed, proceeded upon July 5 to appoint certain viéwers, non-residents of either of the three counties named, to take action provided by law in. the apportioning of the expenses.

Section 4488a, Revised Statutes, provides for the appointment of three disinterested freeholders, not residents of either of said counties, who shall within thirty days thereafter, after being duly sworn and upon actual view of said improvement, estimate and report to said court the amount which should be charged to the land in each county interested in said improvement respectively.

It seems t-hat by some inadvertence, perhaps, the persons appointed by the court in July failed to qualify or to make any examination as required by law or to file any report thereon; and the attention of the court being called to these facts, at a later date, during the same term, on August 6, the court reappointed the same persons as viewers. More than the period of thirty days having elapsed from the time of the filing of the petition, and indeed from the time of their first appointment, it is contended that the court had no jurisdiction to appoint viewers after this lapse of time, and that the thirty-day period specified by the statute is intended to begin with the day of the filing of the petition in the court of common pleas.

This was not the view entertained by the court of common pleas, nor is it ours. We think, as is ably suggested by Judge Richards in the court below, that many matters might intervene to prevent the court of common pleas from taking immediate action by appointment of viewers upon the filing of the petition. We think that it is the design of the statute to allow viewers thirty days from the time of their appointment and qualification to do the work entrasted to them, and that the time is none too long.

If the contention of counsel for plaintiff in error is right, the first appointment by the court as well as the second was, as suggested, invalid for want of jurisdiction, because more than thirty days had elapsed from the time of the filing of the petition in the court of common pleas.

Now, on August 6, the court appointed these viewers and they made their report at a later date, and on December 28 the court-heard certain exceptions that were filed by the commissioners of Crawford county. The court, prior to this time, had overruled motions made by the two groups of residents of Crawford and Richland counties to be made parties to the proceeding, and •when it was discovered that the viewers had not qualified or acted under the order made in July, the court set aside its entire order made as of that date, and the motion of these men to become parties seems to have been renewed and was again overruled, to which ruling of the court they took exceptions and they are prosecuting their claims here in two cases numbered as I have already stated, in which they appear as individual plaintiffs in error.

The board of • commissioners of Richland county attacked the report of the viewers upon the ground that the apportionment of the expenes to Richland county was unjust, and the court of common pleas, considering those exceptions, so far sustained them as to cut down the apportionment against Rich-land county. No objection, however, was made to the amount of expense assessed against Crawford county, but the board of commissioners of that county, in their exceptions, contended that no charge at all could legally be made against Crawford county by reason of the allegations in their answer and the facts which they claimed to exist. They based their contention almost entirely, if not entirely, upon these jurisdictional claims. They based their contention almost entirely, if not entirely, upon these jurisdictional claims. They claimed that the court of common pleas had no power to appoint viewers after the lapse of thirty days from the time of filing the petition; they claimed that after the court had once appointed viewers, the court had ■no jurisdiction to reappoint the same viewers or to appoint any others; and they also contended that the proceeding was not one in which the court of common pleas could act at all; that if the plaintiff had any rights, they were to be worked out in the probate court under Section 4510-10, a part of which I have read.

Perhaps I should qualify the foregoing statement: It is not quite clear that this last contention was made in the court of common pleas. It has been made in this court; and it is being urged now with force and earnestness that the only rights belonging to Huron county to improve a ditch in Huron county and assess any part of the expense upon other counties drained thereby, must be enforced by proceedings under Section 4510-10, and in the probate court, and not in the court of common pleas at all.

I have already attempted to explain our views as to the contention‘of the plaintiff in error upon that subject, by inviting attention to what seems to be an alternative procedure offeree! by Section 4510-10.

We are of the view, however, that even without this alternatiye the proceedings are properly brought in the court of common pleas because of the apparently conceded fact, that this was a joint ditch; and although no part of the work of widening, deepening or straightening was to be done in the other counties, still it was the improving of an apparently already established joint ditch in which the counties were jointly interested and by which they were presumably benefited.

We think that even if this ditch existed in part in Crawford and Richland counties, as well as in Huron county, and lay along the valley of any depression or water-course; and if it had existed for so long a time that it had become what, in Section 4500, Revised Statutes, is termed a public water-course, it would make no difference with the right to proceed under Section 4488a, Revised Statutes.

We are quite clear in the view that the court of common pleas, having once obtained jurisdiction by the filing of the petition by the board of commissioners of Huron county, the issuance and service of summons, the filing of the answers of the defendants below and the order of the court, as made, which seems to have been assented to by the prosecuting attorneys of the different counties acting as attorneys for the parties, the action then taken by the court, to which there was no exception, so far as appears by the certified journal entries before me, could not be subsequently attacked upon exceptions to the report of the viewers. No attack was at any time made directly to the jurisdiction of the court; it was the action of the yiewers, or the report of the viewers, that was attacked.

The statute provides for exceptions to reports of viewers and counsel filed such exceptions, and those exceptions were heard and disposed of on December 28, 1906.

It is said by counsel in argument that no replies had been filed to the answers, or to the answer of the defendant, the board of commissioners of Crawford county. It is true that no reply had been filed to the answer up to December 28, 1906, and it is a matter of some doubt as to whether any reply was necessary.

The material matters urged in the answer of the board of commissioners of Crawford county was, that there was no necessity for a joint ditch; that the lands of Crawford county were not going to be benefited, etc. All this was a matter for the commissioners to consider i.n their meeting, their joint meeting of March 6, 1906, or February 23, or at some time prior to the determination to go on with the proposed improvement in one county or more.

There was, by the authorizing of the work to be done, a substantial concession of benefit to the different counties joining in this action.

Upon December 28, 1906, the court of common pleas permitted a reply to be filed instanter and a reply was file'd in which the various pleas made by the commissioners of Crawford county were denied, except in so far as the allegations were admissions of matters previously stated by the plaintiff board below.

The statutes are somewhat meager as to provisions for forms of procedure. Nothing is said about any pleadings except the petition. It is possible that the procedure of the civil code might be followed so far as it can be made applicable, and it seems to have been followed in this case, but whether or not that was essential is a matter which it is not necessary for us at this time to determine.

We think that the court of common pleas committed no error in confirming the report of the viewers in the absence of any evidence showing that their apportionment of expenses to Crawford county was unjust.

Presumably, had there been evidence of unfairness in this regard, Crawford county would have been fairly dealt with. The court of common pleas found no difficulty in determining that too large an amount had been assessed against Richland county and promptly cut it down.

Now, as to the attempted interposition of the resident landowners in Richland and Crawford counties, it is perhaps sufficient to say that no section can be found in the statutes in which resident landowners can be made parties. The law makes provision only for proceedings between and among the boards of commissioners of different counties interested and the board of commissioners of Crawford county presumably represents the interests of the landowners of that county. It is not necessary that they should come into court to litigate their claims; nor is it necessary for us to determine at the present time just what procedure should be adopted by the board.of commissioners or other officials of Crawford county to place in its treasury the means of providing for the expenses charged against Crawford county in the apportionment of the costs of this improvement.

It is said by the prosecuting attorney of Crawford county that difficulties will arise; that it will be unjust to draw money from the general fund because that would be placing the expenses upon many people in the county who ought not to bear any. portion of it, who have no land that would be benefited by the drainage into this ditch, and it is claimed that there is no method under the law of assessing the expense upon the resident landowners whose land will be benefited.

¥e are not inclined to agree with counsel as to this; but however it may be, it is sufficient for us to decide the case in so far as it is presented to us.

G. H. Henkel and J. It. McKnight, for plaintiffs in error.

L. W. Wickham, for commissioners of Huron county.

G. H. Huston, for commissioners of Richland county.

We think that under the spirit of the various sections which have been cited to us, and those which we have examined and some of which I have read in part and commented upon, the judgment of the court of common pleas should be affirmed.


text:
    VALIDITY OF* ASSESSMENT UNDER SPECIAL ACT.
    Circuit Court of Hamilton County.
    The Cincinnati Building & Deposit Company v. The City of Cincinnati.
    Decided, May 11, 1907.

      Street — Delay in Completing Improvement of — Property Owner Estopped from Resisting Assessment, when — Validity of Assessment Levied Under a Special Act — Constitutionality of Section 2272.
    1. Delay in completing a street improvement does not relieve abutting property owners from assessment, and a mortgagee who has become the owner by foreclosure is estopped from denying that the property is not benefited to the extent of the assessment or that it is not valuable enough to stand the assessment, where the mortgagor joined in the petition for the improvement.
    2. In so far as concerns the validity of an assessment for a street improvement which has been duly petitioned for and promoted by the abutting owners, Section 2272 is constitutional.
    Smíth, J.; Swing, J., and Giffen, J., concur.
   We think the injunction prayed for in this case should not be allowed.

The ordinance for the improvement of Elberon avenue and the assessment for the cost of same against abutting property was duly passed by council of the city of Cincinnati and all necessary legislation in reference thereto was taken, by it and the board of administration of the city.

While the completion of the work was delayed from time to time by the board of administration and the board of city affairs of the city of Cincinnati, yet there never was an abandonment of the improvement, as council never rescinded its action in passing the ordinance.

Dempsey ds Nieberdi/ng, for plaintiff.

George II. KaUenhom, for the city.

As the owner of the property, George F. Meyers, with other property owners on Elberon avenue, petitioned the city for the improvement of said avenue, said Meyers having theretofore mortgaged the same to the plaintiff, the Cincinnati Building & Deposit Company, who subsequently became the owner of the property by foreclosure. That the property owner is bound by said petition, and is estopped from denying that the property in question is not benefited to the extent" of the assessment, or that it is not valuable enough to stand the assessment as levied, see Hendrickson v. Toledo, 3 C. C. — N. S., 355; Lewis v. Symmes, 61 O. S., 471.

That George F. Meyers, while the owner, and after the property was mortgaged, had the right to sign- such petition for the improvement, and thereby estop himself and his mortgagee from claiming lack of benefits, or lack of value of the property to stand the assessment, see Kemker v. St. Bernard, 60 O. S., 253-4.

We can not hold so far as this case is concerned that Section 2272 is unconstitutional, so as to relieve the plaintiff of the assessment. Such acts as Section 2272, at and previous to the passage of the ordinance in question, had been held constitutional, and as the property owners by their petition promoted the improvement that was subsequently carried out, we think the assessment should be sustained.