text:
    NEGLIGENCE — RAILROADS.
    [Cuyahoga (8th) Circuit Court,
    December 9, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Henry Gahan, an Infant, by J. C. Lower, Guardian.
    1. Duty of Railroads to Protect the Public at Established and Customary Crossings.
    A railway company must-use ordinary care to protect persons crossing its track upon the public highway or at a place where the public are so accustomed to crossing that the knowledge and consent of the railway company will be implied, but it owes no duty to mere trespassers upon its private right of way except to do what it can to protect such persons after they are seen.
    2. Mutual Negligence — Proximate and Remote Causes of Injuries.
    The rule that in case of injury by negligence, where the parties are mutually in fault, the plaintiff may recover if the negligence of the defendant is the proximate cause of the injury while his own negligence is only the remote cause, consisting of some act or omission not occurring at the time of the injury, does not apply where the negligence of each party was the same in character, time and duration and equally active in causing the injury.
    J. Contributory Negligence Precluding Recovery.
    A hoy fourteen years of age who has lived near a railway and understands the mode of operation of railway cars and the dangers attending it, who passes through a train of cars standing upon a street crossing, and without looking about him or taking any precautions against possible danger, looks under the train in search of a companion, and in so doing stands so near another track that he is struck by -an engine and injured, is guilty of contributory negligence, and cannot recover.
    Error .to the court of common pleas.
    John T. Dye and E. A. Foote, for plaintiff in error.
    John F. Clark and C. W. Sheldon, for defendant in error.
   CALDWELL, J.

Harry Gahan, in March, 1897, being then nearly fourteen years erf age, was injured upon the track of the plaintiff in error near Linndale in this county. In his petition he says that he was endeavoring to cross the railroad upon a highway and that the highway being obstructed by the train standing across it, when he reached the other side of the train, he was injured by a train on another track, striking him while he was upon the highway crossing, and inflicting injuries upon him for, which this action is brought.

The defendant (plaintiff in error here) claims, in its answer, that he was not on the highway when he was struck, but was at a considerable distance, some three hundred feet therefrom, on the private right of way of the railroad company.

There is testimony in the case to support the claim of the plaintiff (the defendant in error here) as to the place where he was injured, and also testimony to support the claim of the defendant as to where he was injured. There is not much, if any, conflict in the evidence that the plaintiff at the time he was injured, was so near to the track upon which the engine, injuring him, was run, that it struck him and caused the-injuries complained of. As to what the plaintiff was doing, and where he was at the time he was struck, there is conflict in the evidence. The plaintiff’s evidence may be summarized by saying, that when he was struck, he was upon the highway crossing, but was standing in a position near enough to the track, on which the engine was being run, to inflict the injury of which he complains, and that, while thus standing there, he was looking under another train — the train that had been standing across the highway and which was at that time moving forward ■ — to look for the boy that was with him, and was paying no attention to the movement of other trains upon the railroad tracks. The plaintiff’s evidence shows that had he looked for the approach of the engine that hit him, he could have seen it in time to have moved from his position of danger.

The defendant’s evidence tends to show, as above stated, that he was injured some three hundred feet from the street crossing; that he was not then upon the highway, but had come on to the property of the railroad company not from the highway, but from another direction, and that he was injured by jumping out from between two cars where the engineer could not see him, directly in front of the engine, and was instantly struck and the injury was thus received.

There are complaints made in this action, as to the charge of the court. The court was asked to charge, before argument, this request by the plaintiff, which request was given :

“ If the plaintiff, Harry Gahan, was guilty of negligence in going upon defendant’s tracks and if he was placed in a position of imminent peril, and the employes-in charge of said engine could, by the exercise of ordinary care, have discovered the plaintiff and the perilous position in which he was placed, in time enough to have stopped said engine, or slackened the speed of the same sufficiently to have allowed the plaintiff to have escaped in safety, it was its duty to do so, and if the failure of the defendant to use ordinary care to discover the plaintiff in the perilous position in which he was placed, was the proximate cause of the injury, the plaintiff would be entitled to recover, notwithstanding the plaintiff was guilty of negligence in going upon defendant’s track and being in that position.”

The court, on page 617 of the bill of exceptions, after reciting to the jury the defendant’s claim that Harry Gahan came on to the railroad, property from another direction than from the highway, and that he was making no use of the highway crossing at the time of the accident, then said to the jury:

“ If you find from the evidence, that the plaintiff came upon defendant’s tracks and was struck and injured at a place where there was no public highway, and át a place not commonly used by the traveling public in crossing the tracks, and where the public were not allowed or permitted to be, then and under such circumstances the defendant did not owe to him that degree of care which I have said to you that it owed to persons using the highway crossing. Under such circumstances, the company would owe to the plaintiff the duty to exercise ordinary care for his safety after his peril became known to those in charge of the engine, or shquld, by the exercise of ordinary care, have become known to those in charge of the engine, and if the engineer, after discovering the presence of the plaintiff upon its tracks at such point remote from the highway, made every reasonable effort to stop the engine and prevent the injury, there would be no liability of the defendant in this case; and, if you find from the evidence that the plaintiff climbed upon the standing train and jumped out from between two cars on to the defendant’s tracks, whether upon the crossing or not upon the crossing, if he thus jumped in front of defendant’s moving engine and so near thereto that the person in charge of the engine had not time, in the exercise of ordinary care, to discover plaintiff’s position of danger in time to stop the engine or to prevent the injury, such act of the plaintiff would be contributory negligence on his part proximately contributing to his injury, and, for that reason, he could not recover in this action. But, if the plaintiff so jumped upon the defendant’s track in front of the approaching engine and far enough from the engine to enable the person in charge of the engine to stop the same after he saw, or, by the exercise of ordinary care, should have seen the dangerous position of the plaintiff, then if the engineer failed to stop the engine, such failure would be negligence of the defendant, and, if the proximate cause of the injury, would render the defendant liable.”

Immediately after the charge quoted above, the court proceeds to say to the jury that if the plaintiff came upon the tracks in some other way than by use of the highway, he would be a trespasser upon the defendant’s premises, and would not be entitled to the exercise of such care upon the part of the defendant as he has heretofore told them that the defendant owes to persons using the public highway at the crossing; and then he proceeds:

“ But even if the plaintiff was such trespasser, the defendant would not have the right wantonly to run upon him and injure him. In such case, if the person in charge of the engine discovered the plaintiff’s presence upon the track, or, if, by the exercise of ordinary care under the circumstances, he should have discovered his presence upon the track, it would then be his duty to exercise such means as were within his power to avoid injuring the plaintiff, and if he did not exercise such means under such circumstances, to avoid such injury, it would be negligence upon the part of the defendant, for which the defendant would be liable in this action if it was a proximate and sole cause of the injury.”

There is more in the charge, pertaining to the points complained of by the plaintiff in error. The first point is, that the charge makes the railroad company owe a duty to a trespasser upon its tracks before he is seen, and that duty is to exercise ordinary care for the detection of any one upon the tracks. And the second point is, that although the plaintiff was negligent in being-where he was upon the tracks, yet if the engineer could have seen him by the exercise of ordinary care, it was his duty to have saved him, and that if he was injured after being thus seen or after he should h'ave been seen by the engineer, the engineer of the railroad company, under the circumstances of the case as they were to be found by the jury, would be the proximate cause of the injury, and that the plaintiff’s negligence would not then be a proximate cause. In other words, if the railroad company had the least chance to save the plaintiff from injury and did not avail itself of the chance, then that would be negligence on its behalf, and would be the proximate cause of the injury.

The first question-, as to what duty the railroad company owes a trespasser upon its right of way, is discussed in a similar case, although as to a depot building, in Pittsburg, Ft. W. & C. Ry. Co. v. Bingham, 29 Ohio St. 364.

The question is discussed to some extent, in the case of the Cleveland T. & V. Ry. Co. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821].

In Cincinnati, H. & D. Ry. Co. v. Aller, 64 Ohio St. 183 [60 N. E. Rep. 205], there is a discussion of the duty of railroads to persons using their right of way or their property as trespassers or licensees. The question came before the Supreme Court in the case of the Cleveland, A. & C. Ry. Co. v. Workman, 66 Ohio St. 509, 540 [64 N. E. Rep. 582], which case is reported therein :

“ An employe of a railroad company, whose duties in the performance of his employment do not require him to be on the main track of the railroad with a three-wheeled handcar called a ‘ speeder,’ but who so goes upon the main track without any invitation or inducement therefor by the company, but with no objection on the part of the company, is at most a mere licensee, and his use of the track in such manner is subject to all the risks incident to the use of the track by the company, in the same manner it was used at the time the license was granted, and the company does not owe him the duty to especially look out for and protect him, when running its trains, except to use reasonable care t'o avoid injuring him after discovering him upon the track.”

In commenting upon the court’s refusal to give the defendant’s first request, the court say:

“ It was in this view, apparently, that the court refused to give to the jury the defendant’s first request to charge, and instructed the jury 'instead that the defendant ‘had a right to run its cars at the time and place of the accident at any speed and in any manner' consistent with safety, which was necessary in the conduct of its business in the usual Hx/\ ordinary manner, taking into consideration, however, all circumstances surrounding the locality, and having a due regard to the safety of persons who might be upon its tracks. It was required to use ordiT/.sf,y -care in running its train, having due regard to the rights of others.’ Such a conception of the law is opposed to reason because the bare licensee must know that his license is subject to all the risks inddent to ;ke use of the track by the company, in the same manner in which it ▼/as used at the time the license was granted, and the .company assumes ao new obligation or duty toward him. Therefore the company owed Mm no duty of active vigilance to especially look out for and protect Mm.” •

And the court adds:

“ It may be added here, that the rule is substantially the same as to trespassers or mere licensees, that is, licensees without invitation or inducement. An employe who goes upon the track or elsewhere upon the company’s premises not in the line or discharge of his duty, and with-c*ut any invitation, express or implied, is at most a mere licensee to whom the company owes no duty to keep such place safe.”

This line of cases seems to establish the doctrine that a railroad '.r.mpany owes no duty to a trespasser or licensee upon its private right 0'f way except to do what it can to protect such persons from injury after *hey are seen.

But it is said that this court has made a different holding in the case cf the Lake Shore & M. S. Ry. Co. v. Orvis, 4 Circ. Dec. 452 (12 R. 710). The question was not involved in that case, and whatever was laid on that question was outside of the facts. The trespasser in that case, if such he should be called, was seen by no one at the time he was struck by the train except the flagman, and his view of the boy was imperfect, owing to the fact that he could only see him as a train running at ten or twelve miles an hour between him and the boy would afford him an opportunity to look between the cars to see the boy, and he places the boy only a foot or two off to the west of the west line of the street, and there is no evidence in the case that that was not on the traveled path of footmen crossing over the railroad tracks. The court treated the case as though the boy was upon the street crossing. The evidence placing him off of it, was very unsatisfactory, and even if he were but a foot or two from the ordinary line of travel, there being no visible line to mark the exact site of the highway as it crossed the tracks, the court was justified in treating him as upon the highway when he was injured. The judge, delivering the opinion, was led to make some remarks upon the, question of a trespasser upon the railroad right of way, from much that has been'said in the argument of the case upon the question and from what he understood to be the question in the case of the Lake Shore & M. S. Ry. Co. v. Canfield, 27 Bull. 311, which had been affirmed by the Supreme Court, and, as he thought at the time, upon the question here under consideration. But an examination of the record in the case discloses that while that question was in the case, it was not the question upon which the Supreme Court was called to pass in its determination of the case. . But what was said in the case of the Lake Shore & M. S. Ry. Co. v. Orvis, supra, was not warranted by any facts in the case and should not be regarded as having any application to the same.

There are several decisions in the state where the language of the courts might warrant the conclusion that a railroad company is under the duty of watching for trespassers upon its tracks; but the cases above cited, we think, settle and determine the law to be that the railroad company owes to a trespasser no such duty unless it be at some place where the public are so accustomed to crossing that the consent of the railroad will be implied and it has become such a place that it is the duty of the railroad to protect persons crossing over the same.

This part of the charge is error.

The second question involved in this charge is one that has been many times before the Supreme Court of the state, and, to the minds of the majority of the court, has become settled law, and the difficulty is not so much to determine what the law is as to determine its proper application to the facts of the case. It was first before the court in Kerwhacker v. Railway Co., 3 Ohio St. 172 [62 Am. Dec. 246]. The eighth paragraph of the syllabus is:

“ The doctrine that, in case of an injury by negligence, where the parties are mutually in fault, the injured party is not entitled to redress, is subject to the following material qualifications, as appears from a review of the decisions, both in England and in this country, on this sub-' ject, to-wit:
“First — The injured party, although in the fault to some extent, at the time may, notwithstanding this, be entitled to reparation in damages .for an injury which he has used ordinary care to avoid.
"Second — When the negligence of the defendant, in a suit upon such ■ground of action, is the proximate cause of the injury, but that of the plaintiff only remote, consisting of some act or omission not occurring at the time of the injury, the action is maintainable.
Third — Where a party has in his custody or control dangerous instruments or the means of injury, and negligently places or leaves them in a situation unsafe to others, and another person, although at the time even in the commission of .a trespass, or otherwise somewhat in the wrong, sustains an injury thereby, he may be entitled to redress.
“Fourth — And when the plaintiff in the ordinary exercise of hts own rights, allows his property to be in an exposed and hazardous position, and it becomes injured by the neglect of ordinary care on the part of the defendant, he is entitled to reparation on the ground that, although in allowing his property to be exposed to danger, he took upon himself the risk of loss or injury by mere accident, he did not thereby discharge the defendant from the duty of observing ordinary care, or, in other words, voluntarily incur the risk of injury by the defendant’s negligence.”

The question was before the Supreme Court again, in Cleveland, C. & C. Ry. Co. v. Elliott, 4 Ohio St. 474. This was also an action to recover damages for the killing of stock trespassing upon the private right of way of the railroad. Judge Thurman, in the opinion (page 476), says:

“ The remote negligence of the plaintiff will not prevent his recovering for an injury to his property immediately caused by the negligence of the defendant. The negligence of the plaintiff that defeats a recovery must be a proximate cause of the injury.”

In the case of Railway Co. v. Kassen, 49 Ohio St. 230 [31 N. E. Rep. 282], the first paragraph of the syllabus is:

“ It is a well settled rule of the law of negligence that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of the injury .of which he complains, if the defendant, after he became aware, or ought to have become aware, of the plaintiff’s danger, failed to use ordinary care to avoid injuring him, and he was thereby injured.”

And the third paragraph of the syllabus is:

“ The rule, that the negligence of the injured party, which proximately contributes to the injury, precludes him from recovering, has no application where the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him.”

This case has undergone, perhaps, as much discussion and contrariety of opinion in the bar of the state as any case that has been pronounced by the Supreme Court in recent 3'ears; and.it is contended that the first part of the syllabus is a direct authority that the railroad company owes the duty to strangers upon its right of way to look out for them and protect them from injury, but we apprehend that the Supreme Court only meant to say that if the railroad company has knowledge, or such facts have come to its knowledge, that it ought to know of the plaintiff’s presence upon its right of way, then it becomes its duty to protect him.

The question was before the Supreme Court in Schweinfurth v. Railway Co., 60 Ohio St. 215, 220, 221, 223 [54 N. E. Rep. 89]. The second paragraph of the syllabus is:

“ In an action for negligence, it is not error to refuse an instruction that the defendant cannot be held liable, though guilty of the negligence charged, if the negligence of the person injured contributed in any degree, or in any way to the injury of which he complains. Unless the negligence of the person injured contributed directly to, or as a proximate cause of the injury, it does not preclude a recovery.”

In considering the charge in the case, Judge Williams quotes extensively from the leading text-writers upon this question as applicable to this proposition as to whether there can be recovery if the plaintiff was “ ‘ negligent in any degree, or in any way, ’ however remotely, to the injury which caused his death, and without regard to the other circumstances of the case.” He says:

“ The rule is, that a party is only required to use ordinary care, and his failure to do so must, to defeat his recovery, contribute directly, or as a proximate cause to the injury of which he complains.”

And he quotes this language from Sherman & Redfield on Negligence, Sec. 99. <

‘“It is now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant’s negligence, notwithstanding the plaintiff’s own negligence exposed him to the risk of injury, if such injury was more immediately caused by defendant’s omission, after becoming aware of the plaintiff’s danger, to use ordinary care of the purpose of avoiding injury to him.’ ”

And he also quotes from other text-writers, language to the same purport and with approval, and adds:

“ This well settled doctrine as maintained by the foregoing authorities, was followed and applied by this court in the case of Railroad Co. v. Kassen, 49 Ohio St. 230, and had been recognized and approved in several cases before that.”

This same doctrine is recognized in the opinion of Judge Spear in Snyder v. Railway Co., 60 Ohio St. 487, 496 [54 N. E. Rep. 475] ; and in Railway Co. v. Heiskell, 38 Ohio St. 666, third paragraph of the syllabus. '

The last time the Supreme Court’s attention was called to this proposition, was in the case of the Cleveland, A. & C. Ry. Co. v. Workman, supra, so far as I have observed. In that case, Judge Davis says, p. 543:

“Úp to this point, we have endeavored to consider the questions of law which were under review without complicating them with the subject of contributory negligence. It becomes necessary now to look at that phase of the case. The court refused to instruct the jury as requested in the defendant’s fourth request. This instruction was sound and ought to have been given. If it were found to be true that the deceased chose to travel with the speeder upon the main track for no reason connected with his employment, other than his convenience; that he rode down the main track with a companion, on the speeder, in violation of the order of his superior, the station agent; that from the station to the south switch light there was a * passing track ’ on which he could have placed the speeder and easily and with absolute safety have reached his destination, and that instead of doing so he chose to go down the main track, without keeping any lookout behind him, there can be no doubt he was guilty of negligence which proximately contributed to his injury, unless the defendant could have avoided the injury after discovering the deceased upon the track.”

And, after citing authorities that sustain the request as asked of the court, the court adds, p. 544:

“ It will be seen from these authorities that the instruction, as requested, states the law more strongly against the company than was necessary. It makes the qualification that ‘ unless the jury shall further find that the defendant’s agents and employes * * * could have avoided said accident after they became aware of the presence of the said Arleigh J. Mead, upon said track.’ Strictly speaking, the law would require the defendant, after discovering the deceased to be upon the track, to use reasonable care under the circumstances to avoid the accident, not absolutely to avoid it; but this being an error against the party asking the instruction, it should not have been refused for that reason.”

The court not only approves the request with the criticism above, but says the court erred in not giving it. If this proposition of law involved in it — the one we are here considering, — was not the law of the case, then the trial court would be justified in refusing to give it even though the error in it was against the party requesting it. And we understand this case to be an approval of the charge in question in the case before us for consideration.

All the authorities agree that if the engineer of: a train sees a trespasser in danger of being hit by his engine, it is his duty to do what he can to save the person from injury, but they do not agree as to whether mere negligence on his part will make the company liable; many of them holding that there is no liability unless the negligence is such as to be wanton or intentional. But some of the courts that thus hold, that if the engineer should see the person in danger and should neglect to do what he could to .save him, hold that his action would be wanton and intentional; and such courts obliterate the distinction between mere negligence and injury intentional, where the party is seen upon the private right of way. But the real point of difference in the authorities, with which we are concerned here, is as to whether the plaintiff, if he has been guilty of contributory negligence, can recover if his negligence, in any way, contributed to the injury. Admitting that the defendant has been negligent, can the plaintiff recover if he has been negligent, even though his negligence is not remote and prior to that of the defendant ? The> rule, as established by the courts, and in the cases heretofore referred to, is in cases where the plaintiff has, at some time prior to the negligent act of the defendant, been guilty of negligence, and the rule is on the ground that the two acts of negligence did not co-operate ; that the plaintiff’s negligence created only a condition or circumstance upon which the defendant’s negligence thereafter acted; and where that is true, the defendant’s negligence is the proximate cause, or, as expressed by some courts, the “ last chance.” In citing the foregoing authorities upon this proposition, it has not been the purpose to establish when the rule applies, beyond this fact that it applies only when the plaintiff’s negligence is prior to that of the defendant’s, and to show that the plaintiff’s negligence in this case was not prior to, but co-operated with, that of the defendant.

This rule does not apply where the plaintiff may have been negligent in not looking for danger from an approaching train upon the track, when it would have been possible for him to have stepped from the track, had he thus looked. Nor will it apply where he stands so close to the track without looking for approaching danger, that he is struck by a rapidly moving tram. For, in these cases, his negligence, which cooperates at the same time with the defendant’s negligence, is his standing on the track without any effort to see approaching danger or without effort to move from his position, which is a continuing negligence, until he is struck. In such cases he cannot complain.

This was the state of facts in the case of Lake Shore & M. S. Ry. Co. v. Ehlert, 63 Ohio St. 320 [58 N. E. Rep. 812]. Although the deceased in that case was negligent in passing the gates that were down at the time he approached the track, yet that negligence was remote, as the negligence that caused his injury was his standing so close to the track that he was struck by the rapidly moving train, and, while standing in that position, not keeping any lookout for a train that would be likely to pass over the track ; and he continued in that act of negligence until he was hit, and that negligence co-operated as a proximate cause of the injury with that of the defendant.

In the case of the Cleveland, A. & C. Ry. Co. v. Workman, supra, from the facts in the case it would seem that the deceased, Arleigh J. Mead, continued in his act of negligence until the moment of his injury, running the speeder upon the track where he was liable to meet the train, or where he was liable to be run down by the train. And yet the court may have regarded his act of negligence in not going upon the side track, where he would be out of danger of the approaching train, or it may be that he was in such a position at the time that he knew of his danger, that escape was impossible; and there is plenty of authority under either state of facts for holding the company responsible if it did nothing to save him after seeing his position of danger.

In the case under consideration, the facts are such that, if the plain-u..' had been an adult person, whether the accident occurred at the street crossing or upon the private right-of-way, he could not recover, for then it would appear, that the plaintiff stood in a place of danger on or near the track over which the engine was run that hit him, without looking for its approach and without moving out of danger when he might have '’one so had he been on the lookout for the engine.

The evidence in the case is, that the boy either jumped from between two cars directly in front of the engine, or that he passed through the train standing over the street crossing, and then took a position so near the next track that an engine passing over that track would hit him, and there he remained without keeping any lookout for danger until he was hit. The engineer, if the injury occurred at the crossing, should have been on the lookout for persons at that place ; he had an opportunity to see the boy; if he did not see him, and did not do all that he could to save him, he was negligent, and his negligence continuing until the boy was hit, was the proximate cause. The plaintiff took a place of danger.and stood in it without looking for approaching danger until he was hit. The negligence of each was the same in character, in time, in duration, equally active in causing the injury; they co-operated each as a proximate cause. lit such a case, there is no place for the charge complained of here. The proof was such that the proposition of law was entirely foreign to the case, and was prejudicial. The plaintiff’s request to charge before argument,'and which was given, does not state the law correctly. It charges that, even though the jury may find that the plaintiff was guilty of negligence in going upon the track or being there, still he may recover; and casts upon the defendant rthe duty of looking for the plaintiff upon the track, whether he is at the street crossing or on the private right-óf-way. And this charge is wrong in two regards : First, as to requiring the company to exercise diligence in discovering him on the private right-of-way; and, second, in making the defendant’s negligence the proximate cause, when the evidence shows that the negligence of plaintiff and defendant co-operated as a proximate cause. And these errors were prejudicial to the plaintiff in error.

The only remaining question for consideration is, whether, under the facts as they appear in the case, the verdict should be regarded as sustained by the evidence. This question is, by a majority of the court, determined for plaintiff in error.

This boy was accustomed to being around the cars, had lived near enough to them so that he knew their mode of operation and was well aware of the dangers attending such operations to persons who should get upon the tracks of the railroad company. The jury, no doubt, believed his story, that he passed through the train of cars that stood apon the crossing after waiting some minutes for the train to move, and, after being on the other side of the train, his position was so near the track that he was liable to be struck by any cars or engine moving upon that track that he did not look for danger, but instead looked under the cars or through them to see what had become of his companion; and, while thus giving his attention to looking for his companion, he received his injury. It appears also that he’ could have seen along this track from the direction from which the engine approached him, for a considerable distance, and had he looked, he could have seen the engine in ample time to have stepped across the track or away from it entirely out of danger. As I say, if an adult had been injured under like circumstances, he could not.recover. This act of negligence continued in the same manner, and under the same circumstances, from the time it commenced until the time of the injury ; and, under such state of facts an adult could not recover. And, knowing what this boy did know about the cars and about their movements on the track, and. all the circumstances that surrounded him, his acts were contrary to his knowledge and entirely contrary to the acts of boys of his age, posséssing the knowledge and. intelligence that he has. And we think that the jury should have found, under the facts of the case, only a few of which are here recited, that he contributed directly to his own injury without excuse, with full knowledge of the dangers to which he was exposed, and with full knowledge of his duty to look for the approaching danger that injured him.

The judgment of the court below is reversed for errors in the charge as hereinbefore found; and also because the verdict is not sustained by the evidence in the case. The case is remanded to the court below for a new trial.

MARVIN, J.: I concur in the judgment of the reversal, but I do not concur in the last grounds stated.


source: Caselaw Access Project

author: HALE, J.

license: Public Domain

text:
    COMMON CARRIERS — UNLAWFUL DISCRIMINATION.
    [Cuyahoga (8th) Circuit Court,
    December 8, 1902.]
    Caldwell, Hale and Hull, JJ.
    (Hull of the sixth circuit sitting in place of Marvin.)
    Youghiogheny & Ohio Coal Co. v. Erie Ry. Co., Erie Coal Transfer Co. and Pittsburgh Coal Co.
    Coaling Machine Part of Terminal Facilities of Railway.
    A machine for unloading coal from cars into boats, situated upon the docks of a railway company at its lake terminal, owned, constructed, and maintained jointly by such company and a coal transfer company, and operated by such coal transfer company for the accommodation of the patrons of the railway company under the direction of the railway company and at prices fixed by it, is devoted to a public use and is part of the terminal facilities of such railway, and a grant to one shipper of coal of the exclusive use of such machine is an unlawful discrimination, which will be enjoined, notwithstanding a conveyance by the railway company to the transfer company of all its rights in such machine.
    Appeal by defendant, The Erie Ry. Co.
    Hoyt, Dustin & Kelly, for plaintiff.
    Williamson, Cushing & Clark, for Erie Ry. Co.; Wilcox, Collister, Hogan & Parmely and Goulder, Holding & Masten, for Pittsburgh Coal Co. and Erie Coal Transler Co.
   HALE, J.

The plaintiff brought its action to prevent what it alleges to be a discrimination against it by the defendant, The Erie Railroad Company, in the handling ol freight at Cleveland. This discrimination is alleged to result by depriving it of the use of certain machinery for the rapid transfer of coal from cars to boats which is granted by the railroad company to the defendant, The Pittsburgh Coal Company.

It is made manifest'by the evidence, that the use of such machinery is indispensable to the successful prosecution of the business in which both of these companies are engaged.

The case of the Rhodes & Beidler Company v. Erie Railroad Company et al. (not reported), decided by this court at a former term, involved facts and issues in some respects identical with, and, in other respects, very similar to, those to be considered in the determination of this case. Because of the criticism made on our decision in that case, and the further fact that the court is now diiferently constituted, we have carefully considered all the facts bearing upon this case and the law therein announced.

The defendant, The Erie Railroad Company, is a common carrier of freight and passengers, and, as such, hauls large quantites of coal from the mines in Pennsylvania to Cleveland, designed for transshipment there to vessels for carriage to the upper lakes., Coal transferred over its road by the railroad company for this purpose, constitutes a distinct class of freight, for which a special or distinct rate is fixed by the company. This railroad company owns a large dock frontage on the Cuyahoga river, with which its tracks do, and for many years have, connected. A dock, owned by the railroad company with which its tracks thus connect, has, for a number oí years, been used mainly, if not solely, for the transfer of coal from cars to vessels or for loading coal on boats. The methods of doing this have been of various kinds and improved from time to time.

In 1895 several shippers of coal over this road caused to be incorporated the defendant, The Erie Coal Transfer Company. The business of this corporation was the unloading of coal from cars to vessels, which, up to this time, had been principally done by each individual shipper in his own way, but upon the docks provided by the railroad company. It was, undoubtedly, in contemplation of all parties to that arrangement, including the railroad company, that better facilities should be provided for that work. In furtherance of such purpose, the railroad company and transfer company, on March 9, 1895, entered into a written agreement as follows:

“This memorandum of agreement entered into this ninth day of March, 1895, between the New York, Rake Erie & Western Railroad Company, and John King and John McCullough, as receiver of the property of said company, and the successors and assigns ol each of them, party of the first part, and the Erie Coal Transfer Company (hereinafter called the transfer company), party of the second part, witnesseth: The party of the first part is to furnish, at his own expense, and maintain certain tracks and dock facilities on the Cuyahoga river, at Cleveland,, Ohio, as shown on the attached plans, to be used tor the transfer from cars to vessels of coal shipped over its lines. The transfer company agrees to provide, maintain and operate at its own cost and at its own risk, a machine for the dumping of coal from cars, via chutes into vessels. In so maintaining it second party shall keep it in good repair and condition so that in case of any purchase by the first party of the machine, or of stock of the transfer company, as hereinaiter provided, the machine shall be at the time of such purchase, as good as new, depreciating from ordinary use, wear and tear, that cannot be made good by such repairs as a prudent owner would naturally make, alone excepted. The plans for the said machine are to be submitted to and approved by the chief engineer of the said receivers, and the transfer company is to have the right to enter upon and use so much of the first party’s property as may be necessary for the erection, maintenance and operation of said machine, as shown on plan hereto attached. The transfer company is to influence as far as possible the shipments erf coal over the line of first party, for handling at its plant, and is to charge parties for coal handled at the plant, a price for said handling which shall be fixed from time to time by first party’s general freight agent at Cleveland, which price, however, shall in no event be less than the minimum charge for similar services at Cleveland, Ashtabula, Fair-port, Conneaut and Erie, nor less than the costs to the second party handling the same, in such cost of handling to be taken into consideration the expense of keeping the machine in good repair and condition, and a five per cent, annual profit on the costs of the machine.
“Should the chief engineer of the first party within the first sixty days of operation of the machine, after its erection, decide the machine to be a failure tor the purposes for which it is intended, this contract shall terminate on notice from first party, and thereupon second party shall remove the machine, and the net loss to second party on the cost of the machine shall be borne, half by the second party aad halt by the first party, first party paying second party halt of such net loss. Second party agrees to use its best endeavors to keep the plant in operation up to its full capacity during the whole of each season, and if second party shall fail, and after five days’ notice from first party continue to fail to comply with such agreements, first party may require second party to handle at the plant such coal as first party may tender, or cause to be tendered, at a price fixed by said general freight agent, such price, however, not to be lower than the minimum price for like service, at the time being, at the ports above mentioned. Should second party-fail for ten days thereafter to handle such coal at such price, then first party may terminate this contract upon five days’ notice to second, party, and thereupon second party shall be required to remove its machine and withdraw from the premises. First party shall have the privilege, during the month of January in any year during the continuance of this contract, of purchasing from second party the transferring machine herein provided for, or of purchasing from any stockholder of second party all or any of his stock upon giving at any time, during said month of January, thirty days’ notice of its desire so to do, at a price equal to the cost price of such machine as the stock purchased shall be of $te total stock of the second party, less the depreciation on such cost price from the ordinary wear and tear of such machine, not to be made good by the repairs that second party is to make, which depreciation is hereby fixed for the purpose of this provision at 6ve per cent, per annum; and first party agrees at the election of second party to purchase the machine, or at the election of any stockholder of second party to purchase his stock at a price measured by the cost price of the machine, less depreciation in the manner above described; provided, thirty days’ notice of such election of second party or of its stockholders shall be given first party in the month of January in any year during the continuance of this contract. In case, however, any such stockholder shall call on first party to buy his stock in such manner, first party may buy all, or any proportion of the rest of the stock of the transfer company at a price computed in the manner aloresaid, by giving notice of his desire so to do, within thirty days thereafter.”

The parties to this agreement immediately entered upon its fulfilment. It cannot be denied that the plant which was to be, and was, constructed under this contract, was intended to be used by all shippers of coal brought to Cleveland by the Erie Railroad Company for shipment by boat to the upper lakes. The railroad company not only furnished a large proportion of the expense for the construction of this plant, considered as a whole, but retáined absolute control over the conduct of the business thus provided for. The railroad company built the trestle, tracks and foundations, and lurnished the dock as therein ¿greed. The transfer company erected the machine, but, before that was done, plans were to be and undoubtedly, were, submitted to and approved by the railroad company. Indeed, the railroad company, in fact, constructed the machine, but not at its own expense. The transfer company stipulated to influence as far as possible, the shipment of- eoal over the Erie railroad to bh handled at this plant at a price to be fixed by the railroad company. ■ Manifestly such influence was to extend to any and all shippers of this class of freight, and the use of this plant was to be extended to all without discrimination.

The transfer company also agreed with the railroad company to use its best endeavors to keep the plant in operation up to its full capacity during the whole of each season. It is plain that this agreement with the transfer company was exacted by the railroad company for the accommodation of shippers of coal over its road and that all might be served alike. There are other stipulations of the contract of like import.

Under these facts, it seems plain that the occupation of this dock, the use of this machine, the tracks and trestles leading to both — the plant as a whole, was only a means employed by the railroad company in the process of its legitimate business as a common carrier.

To induce th¿ shipment of coal over its track, designed for transshipment at Cleveland from cars to boats, it was entirely proper that the railroad company should furnish means for such transshipment. This contract provided pioper and effective means for that purpose. Moreover, it was the means designed by both parties to be open to all shippers of that class of freight wthout discrimination; and it seems clear that while this arrangement remained in force, the whole plant, the tracks, the trestles and foundation, which the railroad company was bound to furnish, and the machine to be used and operated by the transfer company under the restrictions and conditions named in said contract were intended to be, and were, in fact, devoted to a public use, and that, in this way, this plant became inseparably connected with, and was, in lact, a part of the property of the railroad company, used by it m the performance of its duty as a common carrier.

The business continued under this contract and in the manner therein contemplated, until December, 1899. A change in the size of the cars used in the carriage of this class of freight necessitated a change in the plant. The defendant, The Pittsburgh Coal Company, was, at this time, a large shipper of coal over the Erie railroad for trans-shipment at Cleveland and interested in bringing about these changes.

After some negotiations, on December 15, 1899, the Pittsburgh Coal Company and the Erie Railroad Company settled the preliminary steps to be taken in effectuating such change, as shown by the following memoranda:

“Memorandum of understanding between Mr. Osborne of the Pittsburgh Coal Company and Messrs. Cochran, Buchholtz, Moorhead and Middleton representing the Erie Railroad Company of Cleveland, December 15, 1899.
“The 'cost ol the new car-unloader to be erected at Cleveland is estimated at forty thousand dollars ($40,000). The cost oí transferring the present loader to a new site is estimated at twenty thousand dollars ($20,000). Total new capital required is estimated sixty thousand dollars ($60,000). The Erie Coal Transfer Company is to .increase its capital stock sixty thousand dollars ($60,000) or whatever amount may be sufficient to cover the above expenses. Of the increased new capital stock, the Pittsburgh Coal Company is to purchase at par filty per centum (50 per cent.). The increased capital stock is to be handled and placed in trust in the same manner as the present capital stock of the Erie Coal Transfer Company; the Erie Railroad Company to have the same option in regard to purchase as exists in the present contract between the Erie Railroad Company and its predecessors and the Erie Coal Transfer Company.”

On the construction of the new fast unloader, it was proposed to supersede the original contract between the Erie Railroad Company and the Erie Transfer Company bjr a new contract. A copy of that agreement as proposed by the railroad company, was given in evidence. That agreement was never signed. The design, however, of this proposed-arrangement was not different Irom that originally made between the railroad company and the transfer company. The understanding of the railroad company of the situation as it existed after the changes contemplated were made, appears not only from this proposed contract, but irom statements made by the officials of the road, by telegrams and letters sent to the plaintiff company. Clearly the railroad company designed to furnish a mode lor the transfer of this class of lreight at Cleveland from cars to boats, which should be available to all shippers of that class of freight over its road; and such was the understanding of the railroad company down to April 16, 1902. The old machine, known as No. 2, was moved and the new No. 1 constructed as contemplated. The cost was proportioned one-half to the railroad company and one-half to the Pittsburgh Coal Company. The tracks, trestles, etc., were adapted to the use of both machines by the railroad company, and the plant, as reconstructed, under this arrangement, has continued in use to the present time. From its completion in the spring ol 1900, the Pittsburgh Coal Company was, perhaps, the only shipper of this class of freight to Cleveland over the Erie road and the only user of this plant down to April, 1902. In April of that year, the plaintiff company began the shipment of coal over its road, demanding that its coal be handled over this plant. This request of the plaintiff was refused after considerable negotiations, for two reasons :

First. That the machine No. 1, constructed as we have seen, was the private property of the Pittsburgh Coal Company, used lor its own private purposes, and, whether owned by the coal company, or by the coal company and the railroad company jointly, it had never been devoted to a jpublic use, so as to be subject to the control of the courts.

Second. That if it ever was so devoted to a public use. it was by a sale and transfer made April 16, 1902, by the railroad company, ol all its interest to the Pittsburgh Coal Company, withdrawn from such use.

The first of these claims has already been considered to some extent, so far at least as it related to machine No. 2, and the conclusion reached that it had been devoted to such public use.

The relation of the railroad company to this plant as reconstructed, and this new machine, independent of the alleged sale of April 16, 1902, is in no sense different from its relation to the plant before such reconstruction. It will not be denied that a railroad company may furnish terminal facilities, depots, etc., for the proper conduct of its business as a common carrier, to which «// shippers are entitled to equal privileges. The means of handling freight at depots should be, and is, available to all. The coal handled over this dock and this fast unloader belongs to a distinct class ol freight, for the handling ol which other means than yards and depots are required. This has been recognized by the railroad company, and proper terminals and facilities for handling have been provided. The tacts do not warrant the assumption that the business of receiving this class of freight and transferring it from cars to boats is disconnected with the business of the railroad company as a common carrier. It was recognized and made a part of such business by the railroad company. This entire plant, down to April 16, 1902, was devoted to a public use. The fact that the machine, which was only a part of the entire plant, which could not be operated independent of the railroad and the use of its property was owned, in whole or in part, by the transfer company or the Pittsburgh Coal Company, does not vary this'fact. The operation of taking loaded cars from the yard of the railroad company and dumping their contents into the vessels was, in part, done by the railroad company, which owned at least a large proportion of the property used in this operation, and the whole was an agency employed by the railroad company for that purpose.

As to the second claim of the defendants, it is not disputed that the railroad company might not, acting in good laith, withdraw this service from all shippers; deliver the coal only in its yards, leaving each to provide its own means of making the transfer, but this has not been done. Instead of enforcing the position taken by the railroad company, in its letters, it claims to have sold its entire interest in the fast unloader to the Pittsburgh Coal Company and leased to that company so much of its docks as is necessary for the prosecution of the business connected therewith, thereby putting out of its power to comply with the request of the plaintiff.

This alleged sale rests entirely in parol; no written evidence of the sale or receipt of the money is produced. A lease from the railroad company to the Pittsburgh Coal Company, of the proposed privileges upon this dock, was drawn, but has not, to che present time, been executed. There has been no change in the mode of doing business. The railroad company still owns the dock, trestles, tracks and foundations of the machine. It continues to deliver cars at the machine and remove them when unloaded, as heretolore. It is conclusive that this sale and lease, pretended or otherwise, was intended to aid in excluding the plaintiff from the use of this plant, and securing to the Pittsburgh Coal Company' the exclusive use of the same. This, we believe, was the sole purpose of this arrangement, and that the agreement went only so far as it was thought necessary to accomplish that one object. We seriously doubt whether it was intended that that lease-should be executed, or that it ever will be. It will have accomplished its full purpose if the plaintiff is excluded from the use of that machine.

We cannot hold from this evidence that this plant, by the transaction of April lb, was withdrawn from public use to which it had been for several years devoted by the railroad company. The dock, the trestles, tracks, and foundations of this plant are terminal iacilities ol the railroad company, the exclusive use of which it could not rightfully grant to one shipper of coal and refuse to another without an unlawful discrimination. The lact that, only part ot this plant which, prior to April lb; was owned jointly by the Pittsburgh Company and the Erie Railroad Company, but is now owned wholly by the former conipam , if such be the fact, cannot change the rights of the patrons of the Erie Railroad Company, and so long as that company maintains this plant for this purpose in the manner here indicated and handles the cars thereon for the benefit of one shipper, it must lor all.

The true intent and meaning of the arrangements between the railroad company, the Pittsburgh Coal Company and the transfer company was to provide by the railroad company a means for the transier of coal irorn cars to boats for the accommodation of its patrons. The control of the means thus provided, by whomsoever owned, has, at all times, been in the substantial control ol the railroad company and without its co-operation could not be operated. Any private ownership of the fast unloaders has at all times been and now is under such arrangements, subjfect to such control by the railroad company. This results from the nature of the transaction, the uses to which the fast unloaders were devoted in connection with the property of tbe railroad company, the service performed by th'e railroad company in making the transfer, and'the proper construction and interpretation to be given to the contracts between the owners or part-owners of the fast unloader machine and the railroad company.

But it is said that the railroad company has performed its full duty toward the plaintiff by tendering to it a dock and location ior a like plant further up the river. This claim is made from allegations sustained in the answer. We do not understand that the railroad company has, in any binding way, offered or agreed to ñt up a plant for the use of the plaintiff, of equal cost, convenience and efficiency as the one now used by the Pittsburgh Coal Company. The means now provided by the railroad company lor the handling of this class oi freight is ample to accommodate all shippers, over its road, of coal designed for the upper lakes; and we do not think that the railroad company has relieved itself- from the charge of discrimination as between shippers by the offer made.

We have examined the many cases cited by counsel; but, if the conclusions reached by us on the facts are to stand, there can be no disagreement as to the law applicable to those facts, and hence, we have not deemed it necessary to enter upon a review of the authorities cited.

Judgment for plaintiff..


author: COOK, J.

text:
    FRAUDULENT CONVEYANCE.
    [Jefferson (7th) Circuit Court,
    November Term, 1902.]
    Burrows, Laubie and Cook, JJ.
    John J. Parkinson et al. v. Asenath Parkinson et al.
    Fraudulent Conveyance — Ejectment—Cancellation of Deed.
    Where a deed of conveyance of real estate is made and delivered for the pur pose of hindering, delaying and defeating a creditor, as both grantor and grantee well knew, in the collection of a claim upon which an action had been brought; and after the execution of the deed the action is compromised and settled by the grantor with the knowledge and consent of the grantee; and after such settlement the grantor and grantee enter into a verbal agreement that they will cancel the contract of sale and reinvest the grantor with the title to the land by the grantor delivering up the notes executed for the consideration named in the deed and the grantee delivering up the deed which had not been recorded, both notes and deed to be destroyed; and the grantor duly delivers up the notes to the grantee, which are by him destroyed; and the grantee makes diligent effort to obtain the deed for the purpose of delivering it to the grantor to be destroyed, but is prevented from obtaining it by the act of one of his children who secretly abstracted the same from his father’s papers; and both grantor and grantee lived many years after-wards, believing that the deed had been destroyed, and died in that belief, the grantor all the time retaining possession of the land i Held, that in an action of ejectment by the heirs of the grantee, including the son who had fraudulently abstracted the deed, against the heirs of the grantor, that the petition of plaintiffs should be dismissed; the deed cancelled and the title of the heirs of the grantor in the premises quieted as prayed for in the!*cross-petition. ,
    Heard on Appeal.
    Dio Rogers, for plaintiffs.
    D. A. Hollingsworth and John A. Kithcart, for defendants, cited:
    No deed can take effect as having been delivered, until such act of delivery has been assented to by the grantee, and he shall have done something equivalent to an actual acceptance of it. If the deed is deposited with the grantee, but for a purpose other than delivers7, it would not take effect as a deed. 3 Washburn Real Property 292, Par. 29.
    Delivery is never completed or effective where some consideration or security is to be given, until such consideration or security be given. Rountree v. Smith, 38 N. E. Rep. b'80 [152 111. 493].
    The moral obligation of the grantee to restore property so held is not only clear, but is fully recognized in the decided cases. If he does restore, the law discharges him from liability as a trustee lor the creditors of his grantor, and undoubtedly any steps taken, or acts done by him subsequent to the conveyance toward the discharge of this moral duty should receive the favorable consideration of a court of equity. White v. Brocaw, 14 Ohio St. 339, 341.
    Wüere the grantee of property fraudulently conveyed had voluntarily reconveyed to the grantor in apparent execution of his trust, he could not thereafter make a valid claim to the property, or its proceeds on the ground of the original fraudulent conveyance. Fargo v. Dadd, 6 Wis. 106; Second National Bank v. Brady, 96 Ind. 498, 505.
    An agreement between grantor and grantee after deed made as to the disposition ot the land purges the original fraud, and is valid though not in writing. Parker v. Tiffany, 52 111. 286; Matthews v. Buck, 43 Me. 265.
    While the fraudulent grantee is under no legal obligation to reconvey, he is under a moral obligation to do so, and where, in fulfillment of his moral obligation, he actually makes a reconveyance, such act will be valid and binding on him, and if the rights oí no innocent third parties have intervened, the fraudulent grantor will become reinvested, both at law and in equity, with the title previously conveyed to his grantee. Such reconveyance is not within the condemnation of the statute of frauds, but vests in him. a title which the courts will recognize and protect, precisely as they would a title derived from any other source. Springfield Homestead Assn. v. Roll, 27 N. E. Rep. 184 [137 111. 205; 31 Am. St. Rep. 358] ; Bump Fradulent Conveyances, p. 460, n. 3.
    An honest man will not take a fraudulent conveyance. If a man holds property fraudulently conveyed, as soon as he comes to a sense of his moral duty, he will restore it to those to whom it belongs. He ought to give it back to him from whom he received it, that it may be applied to his debts if wanted, or to his benefit if not necessary for this purpose. The law, to discourage frauds, does not compel him to restore it to the fraudulent grantor; yet no man will retain it for a moment who desires the reputation for honesty, or possesses the sense of justice. Swift v. Holdridge, 10 Ohio 230, 231 [36 Am. Dec. 85].
   COOK, J.

John Parkinson and Joseph Parkinson were brothers; there was less than two years difference in their ages; John was a bachelor up to 1885, when he married, being then nearly fifty; he died in 1898 leaving a widow and a son fifteen years of age. Joseph was married early in life, and died in 1900, leaving a widow and six children, sons and daughters. They were both over seventy years oí age when they died.

From their earliest manhood they lived on adjoining farms, which were valuable, and contained nearly three hundred acres each. In 1881 John was sued by a woman by the name of McKinney, a widow, for breach of contract of marriage, claiming $1,500 damages. The suit was compromised and settled just a year afterwards by his paying her $700. The suit was settled with the knowledge and approval of Joseph. Five days alter the commencement ot the action of Mrs. McKinney, John made to Joseph a deed for his farm and delivered the same to him; the consideration named in the deed was $16,000, about the actual value of the farm, and Joseph made and delivered to John a promissory note or notes for the consideration named in the deed. The deed was never placed on record by Joseph or any one for him. Junius Parkinson, a young lawyer, son of Joseph, and nephew of John, was the attorney who attended to the business; he lived with his father, and he died a short time after the settlement of the action for breach of promise. The evidence shows that the deed was made for the purpose of hindering, delaying and defeating Mrs. McKinney in the collection of her claim or pretended claim, and that both John and Joseph so understood it at the time the deed was executed.

Soon after the action of Mrs. McKinney against John was settled, John and Joseph verbally agreed that they would cancel the sale of the farm, by Joseph delivering back to John the deed and John surrendering the note or notes for the $16,000 to Joseph, the deed and note or notes to be destroyed; and thereupon, in pursuance of said agreement, John did surrender the note or notes to Joseph and he destroyed the same. Joseph for the purpose of carrying out his part of the agreement, looked diligently among his papers for the deed, but could not find it, and informed John he could not find it, and that it must have been in some manner destroyed. Some time after this statement to John by Joseph, possibly year, John again called Joseph’s attention to the fact that he «wanted the deed or that he must be assured of its destruction and seemed exercised about it. Joseph again looked for the deed and again told John that he could not find it, that Junius must have destroyed it before his death,' as he had told him to do so, or that he had inadvertently destroyed it with some old papers that he had burned, and that John should not be troubled about it, as he knew it was destroyed. Joseph spoke to other parties about the deed, stating that he had a valuable paper that belonged t.o John and he could not find it; that John should have it and that he would give a good deal if he could find it and deliver it over to John. The tact was that John J. Parkinson, son of Joseph and one of the plaintiffs, some time after the deed was executed and before his father had searched for it, had abstracted the same from the papers of his father or from the trunk of his brother, Junius, without the father’s knowledge, and that that was the reason the same could not be found.

John and Joseph both lived and died under the full belief that the' deed had been destroyed in accordance wiffh the agreement, and that such destruction was sufficient to reinvest John with the complete title to the farm. As we have seen, John married and a son was born to him after the agreement to cancel the sale, and John continued to reside upon the farm after the execution of the deed, the same as before and up to his death, paid the taxes, made ordinary improvements, Joseph never making any claim to the farm, or for any rent for the use of the same. After the death of Joseph, John J., his son, who had secretly abstracted the deed, placed the same on record, and he, with the other children of Joseph, brought this action in ejectment againsc the widow of John Ascenith Parkinson, and the son, John S. Parkinson. The defendants filed an answer and cross-petition, denying that the plaintiffs had any interest in the farm, and setting forth that the conveyance was without consideration, and that the plaintiffs held the legal title to the farm in trust for the defendants, and asking that the deed be canceled and their title to the farm be quieted. To this answer and cross-petition plaintiffs replied that the deed was executed for the purpose ot hindering, delaying and defeating Mrs. McKinney in the collection ol her claim ior damages for breach of contract ol marriage.

Under the pleadings and the facts as stated, what are the rights ot the parties? No principle is better settled in this state than that where two or more persons are engaged in a fraudulent transaction to injure another, neither law or equity will interfere to relieve either of those persons as against the other from the consequences of their own misconduct. The courts will leave them in precisely the condition in which they placed themselves by their fraudulent act. Therefore, under the averment ot the reply of the plaintifls and the facts of the case, the petition of plaintifls must necessarily be dismissed.

The defendants, the heirs of John Parkinson, claim further that under the facts of the case they are entitled to affirmative relief and have the right to have the deed canceled and their title to the premises quieted. It is the settled principle of the law of the state that, while a conveyance made to defraud creditors is utterly void, as to them, yet is good as between the parties, and that the courts will not relieve them from the consequences of their own fraudulent act, and that a conveyance for the purpose of defeating a party from the collection of a claim in litigation, in case the judgment is adverse to him, is such fraudulent conveyance. Pride v. Andrew, 51 Ohio St. 405 [38 N. E. Rep. 84], Do the tacts of this case bring it within the rule?

In a very early case, Swift v. Holdridge, 10 Ohio 230, 231, 232 [36 Am. Dec. 85], it is said by Eane, C. J.:

“An honest man will not take a fraudulent conveyance. If a man holds property fraudulently conveyed, as soon as he comes to a sense of his moral duty, he will restore it to those to whom it belongs; he ought to give it back to him from whom he received it, that it may be applied to his debt if wanted, or to his benefit if not necessary for this purpose. The law to discourage frauds does not compel him to restore it to the fraudulent grantor; yet no man will retain it for a moment who desires the reputation of honesty, or possesses the sense of justice.”

In the case of White v. Brocaw, 14 Ohio St. 339, 341, Ranney, J., says:

“In respect to the ground for relief stated in the bill, to which reference has been made, it is enough to say, that no principle is better settled than that a conveyance made to defraud creditors is good between the parties and no remedy is afforded the fraudulent grantor or his heirs to reclaim the property. But this rule has its foundation in the anxiety of the law to discourage frauds, and the moral obligation of the grantee to restore the property so held, is not only clear but is fully recognized in the decided cases. Swift v. Holdridge, supra. If he does restore, the law discharges him from liability as a trustee for the creditors ol his grantor, and undoubtedly any steps taken, or acts done by him, subsequent to the conveyance toward the discharge of his moral duty should receive the favorable consideration of a court of equity.”

In Pride v Andrew, 51 Ohio St. 405, 414 [38 N. R, Rep. 84], Dickman, C. J., says:

‘‘While such a conveyance with intent to defraud creditors is, as against creditors, thus made absolutely void, the principle is well settled that such a conveyance is good between the parties, and no remedy is afforded the fraudulent grantor or his heirs to reclaim the property. While the fraudulent grantee, from a sense of his moral duty, ought to give back the property ■'o him Irom whom he received it, yet, the law, to discourage frauds, will not compel him to restore it to the fraudulent grantor.”

See also Langsdale v. Woollen, 99 Ind. 575, 582; Parker v. Tiffany, 52 Ill. 286; Matthews v. Buck, 43 Me. 265; Fargo v. Ladd, 6 Wis. 106.

If Joseph Parkinson had retransferred the property to his brother by a deed, however defective, there could be no doubt but what a court of equity would uphold it. How, then, can it be claimed that what the brothers did, as shown by the facts of this case, should not be equally as effective. The action against John was compromised and settled with the knowledge of Joseph, and no doubt with his active approval. Soon aiterwards the agreement was made to rescind the contract by which the property was conveyed and the note or notes were delivered up and destroyed which were given as the consideration for the farm and which would have been valid in the hands of an innocent purchaser for value. Joseph did his utmost to deliver back the deed to his brother, as he had agreed to do, and was only thwarted in his just intention by the almost criminal fraud of one of the plaintiffs to this action. Both died in the full belief that the deed was destroyed and that that was equivalent to a redelivery of it to John to be destroyed. It is a rule of equity that ‘ ‘that is done which ought to have been done,” and it is certainly emphasized when the facts show not only what ought to have been done but what in good faith was supposed to have been done; therefore, in legal contemplation, the deed was redelivered by Joseph to John and by him destroyed. There could be no taking possession of the iarm by John, as Joseph was never in possession and had no possession, legal or otherwise, to deliver.

The object and purpose of the cross-petition is not to require the heirs of Joseph to reconvey the farm, but it is to make effective the agreement made between the two brothers and to estop the plaintiffs from claiming under a deed of conveyance to which they are not entitled; to place the plaintiffs in such position as they would have been if the deed had been actually returned by their lather to his brother and by him destroyed, or had been destroyed by Joseph at his brother’s request, for the purpose of reinvesting the title to 'the farm in his brother, as he iully thought he had done and which, as said in White v. Brocaw, supra, was his moral obligation to do. In Washburn on Real Property, Sec. 1907, under the heading of “Destruction and redelivery oi deeds,” the author says:

“It sometimes happens that parties to an executed conveyance wish to- place themselves in statu quo and to effect this the deed is returned to the grantor and destroyed. Although the redelivery of the deed was ineffectual to pass the title back, the transaction contains all the elements of an estoppel and the grantee will not be allowed to claim under the deed which was destroyed with his consent with the intent to deprive him of his estate.”

The doctrine is more fully discussed by the same author in Sec. 2182 of his work. In Dukes v. Spangler, 35 Ohio St. 119, the principle enunciated by Mr. Washburn is recognized as applicable in certain cases, and on page 126, Okey, J., says:

“The general rule undoubtedly is that when the instrument conveying an estate has taken effect, its destruction by the parties will be ineffectual, even if they intended thereby to revest the estate in the grantor. * * * But it has been held, in a large number of cases, that a grantee who has thus voluntarily consented to the destruction of his deed, shall not have affirmative relief under it. * * * The ground of these decisions, at least the only tenable ground, is not that the estate revests, but that the grantee is estopped. Farrar v. Farrar, 4 N. H. 191; Trull v. Skinner, 17 Pick. 213. Under some circumstances, no doubt, we would feel called upon to give effect to such estoppel.”

In this case the plaintiffs are asking for affirmative relief, they are seeking to obtain possession of the premises under the deed which their ancestor had surrendered to be destroyed, or done that which was equivalent to its surrender and destruction for the purpose of canceling it and reinvesting the title to the property in its rightful owner. This is certainly one of the cases wbere the circumstances demand that the general rule requiring an actual reconveyance by deed should not apply, and that the doctrine of estoppel should be given effect. In the case of Langsdale v. Woollen, 99 Ind. 575, pages 582 and 583, it is held:

‘ ‘An agreement between grantor and grantee alter deed made as to the disposition of the land purges the original fraud and is valid though not in writing.”

From principle and authority, under the circumstances of this case, we think the plaintifls are estopped from claiming any interest in the premises under the deed of John Parkinson to Joseph, his brother. No creditors are complaining; there are none to complain. It would be shocking to the conscience of the court, to be required to hold that the laudable acts of these two brothers, by which, in good faith, they "supposed they had fully reinvested the title to the land in John, are of no avail.

It is therelore ordered and decreed that the petition of the plaintifls be dismissed; that the deed iromjohu Parkinson to Joseph Parkinson be canceled; that the title of defendants in the premises be quieted, and that plaintifls pay the cost ot this action.


author: MARVIN, J.

text:
    CRIMINAL LAW — STATUTES.
    [Lorain (8th) Circuit Court,
    November, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Roswell Derby, Jr., v. State of Ohio.
    1. Identical Acts Prescribing Same Offense, Differing in Punishment Imposed, the Last Passed is in Force — How Determined.
    Where the authorized printed volume of the statutes contains two amendatory acts, in substance identical, providing for the punishment of the same offenses and bearing the same date, but differing as to the amount of the penalty imposed by them, the act last passed, is the one in force, and a court will resort to the journals of the two houses of the general assembly to determine which act actually was so passed.
    2. Same — 94 O. L. 321 Superseded by 94 O. L. 349.
    The act amending Sec. 6998 Rev. Stat, 94 O. L. 349, prescribing certain violations of the fish and game laws, though bearing the same date as another act amending the same section, 94 O. L. 321, is and has been since its passage the-law of this state, it appearing from the journals of the two houses of the general assembly that the former act was passed after the latter.
    3. When Defendant May be Discharged.
    Where a justice, in sentencing a person convicted of a misdemeanor, imposes a fine under a law repealed before the commission of the act, in excess of the amount authorized by the laws in force, the sentence will be reversed; and if the time during which the justice may sentence has passed, the defendant must be discharged.
    Error to the court of common pleas.
   MARVIN, J.

The plaint,C in error was arrested and brought before a justice of the peace upon the charge oí having, on June 8, 1901, in the county of Lorain and state ol Ohio, ‘‘unlawlully, knowingly and purposely and wilfully caught certain fish by means of and with a certain device called a seine.”

This is in violation of the statutes of Ohio. The affidavit making the charge has all the negative averments and all other averments sufficient to describe the offense under the statute.

Thereafter, on December 26, 1901, the case came on for trial before the justice and a jury. The trial was not completed until December 27. The result was a verdict of guilty against the defendant. Motion for a new trial was filed and overruled, and judgment entered upon the verdict, and on January 4, 1902, the court pronounced sentence that “R. Derby, Jr., the defendant, pay a fine of $1U0, and in case of neglect or refusal to pay said fine, be imprisoned in the workhouse tor the full period of thirty ■ days, or until the amount of said fine be paid or secured to be paid, or he be otherwise legally discharged, and .that he pay the costs of the prosecution.” To which sentence the defendant excepted.

To reverse this judgment and sentence of the justice there was filed in the court of common pleas a petition in error, together with a transcript of the docket entries made by the justice, the original papers, and what purports to be a bill of exceptions. This bill of exceptions does not set out all the evidence adduced before the justice, so that there was presented to the court of common pleas no question as to whether the facts warranted the conviction. Upon hearing in the last-named court the judgment of the.justice was affirmed.

The proceeding in this court is brought for the purpose of reversing this judgment of affirmance and the judgment of the justice.

Among the errors complained of is the sentence which was pronounced by the justice, which was, that the plaintifi in error pay a fine of $100. It is urged on behalf of the plaintiff in error that this sentence was not authorized by any statute of the state in iorce at the time the sentence was pronounced. This necessitates an examination of the statutes. In 94 O. L. 821 appears a statute passed as an amendment to Sec. 6968 Rev. Stat. This statute is attested by the signatures of the speaker of the house of representatives and the president of the senate, and alter such signature there appears in the printed volume th»r words ‘‘Passed April 16, 1900,” and also the figures and letter following, ‘‘206 G.” On page 349 of the same volume appears» statute passed as an amendment to the same section. This is also attested by the signatures of the speaker of the house of representative» and the president of the senate, and alter such signatures appear the words “Passed. April 16, 1900,” and the figures and letter “226 G.” By the statute first mentioned the fine for the offense, of which the plaintiff in error was convicted, is fixed at not less than $25 nor more than $100. The other statute fixes the fine for the same oflense at not less than $25 not more than $50.

It is manifest that both these statutes cannot be in force at one and the same lime; for the maximum fine for an offense cannot be at the same time fifty dollars and one hundred dollars. Under the rule that statutes take effect from the date at which they are signed by the presiding officers of the two houses of the legislature, it would appear from what has already been quoted that each of these two statutes took effect on April lb, 1900, and though it is admitted on the part of the defendant in error that both cannot have been operative at the same time, yet it is said that the justice might have ascertained by evidence which one of the statutes was as a matter of fact last passed by the legislature, because it is said that the one last passed must be the one in force.

It is further urged that since the evidence upon which the justice acted in determining which of these statutes was last passed, is not before this court, we must presume that he did take evidence, and that the evidence was such as to justify the finding that the statute fixing the maximum fine at $100 was last passed. This is urged strenuously, and our attention is called to a written communication from the attorney general of the state, in which this argument is used. However plausible the argument, it is manifestly unsound. It overlooks the proposition that courts must take judicial notice of the statutes of their own state in force at the time. It must be conceded that the reading of the two statutes does not disclose which was last passed, and that, therefore, some evidence outside of the reading must be had; and it is said that a reviewing court is not to take evidence to determine a fact which the lower court must have determined, but must presume that the evidence adduced in the lower court was such as to justify the conclusion at which it arrived. If this is so, it follows that whenever by reason of the bungling manner in which the legislature has done its work, or the bungling manner in which the printer of the volume of the statutes has done his work, leaves it uncertain what statute was last passed, a reviewing court is left without power to determine that question, if it has been determined by the court which is being reviewed, and the evidence upon which the lower court acted is not before the reviewing court. Is it possible that the reviewing court is not bound to determine what the statute is on a given subject because, on account of some blunder, the printed volume of the statutes does not distinctly show what statute is in force ?

The statute found in 94 O. L. 321 is designated, “House Bill 96,” and that found on page 349 is designated,. “Senate Bill 216,” and hereafter in this opinion the lormer will be spoken of as “Bill 96’’ and the latter as “Bill 216.”

Suppose that by reason oi the carelessness of the printer the date at which each ot these bills was passed was so indistinctly printed that one could not by looking at the bills as printed, determine the date, and the lower court determines upon some evidence, no matter what, that the date appearing on Bill 96 is April 18, and that the date appearing on Bill 216 is April 15, and so holds that Bill 96 was the one last passed. The evidence upon which this decision was made is not brought before the reviewing court, but the plaintiff in error offers to show that the date of Bill 96 is April 15, and the date of Bill 216 is April 18, is it possible that the reviewing court would decline to examine such evidence ? Although the courts are bound to take judicial notice of the statutes of the state in force, they do not instinctively know what statutes are in force, but must ascertain by evidence; ordinarily the evidence is the printed volumes of the statutes, but where such printed volumes leave the question in doubt, it is clear some other evidence must be resorted to. If this proposition is not sound, then if the penalty provided in Bill 96 were imprisonment in the county jail for not less than ten nor more than thirty da3's without any fine whatever, and a conviction was had before a justice of the peace, and sentence ol imprisonment pronounced against the prisoner, and the case came by proper proceedings in error before a reviewing court, the court would be bound to presume that the lower court had acted upon sufficient evidence, and the judgment and sentence would be affirmed.

Suppose that the penalty provided in Bill 216 was a fine of not less than $25 nor more than $100, without any imprisonment, and a conviction was had before a justice, and the sentence pronounced that the prisoner pay a fine of $50, the reviewing court would be bound to hold that the lower court had acted upon sufficient evidence as to what statute was in force, and so both sentences would be affirmed by the reviewing court. These two cases might both happen in the same county and on the same day, and we should have the absurd position of a reviewing court affirming a sentence of imprisonment in the one case, where, if one statute were in force, there could be no imprisonment, and affirming another judgment where a fine was imposed, and where, if the other statute were in force, there could be no fine.

In the case of Iowa v. Clare, 5 Ia. 509, it was held that the appellate court will inform itself and take cognizance of the true reading of a statute by referring to the original act on file in the office ot the secretary ot state.

An examination of this case shows a distinct holding by the Supreme Court that the reviewing court will examine for itself the question of what statute is to govern the particular case, and that without reference to what examination was made or evidence relied upon by the trial court. This case is cited with approval in Koehler v. Hill, 14 N. W Rep. 738; 15 N. W. Rep. 609 [60 Ia. 543, 585],

It seems clear that the reviewing court cannot escape the responsibility of determining what statute was in force at the time the sentence was pronounced, and the question follows: How shall that be ascertained in a case, where, by reason of the blundering of the legislature, the statutes appear to have both been passed at the same time ?

No case has been found in Ohio where this question has been raised in a proceeding in error; but it is setttled that where it becomes necessary by some means other than by the authorized printed volume of the statutes to ascertain at what date a statute takes effect, resort may be had to the journals of the two houses of the general assembly.

In the case of State v. Perrysburgh (Mayor), 14 Ohio St. 472, the Supreme Court holds that resort may be had to the journals of the two houses of the general assembly to determine at what date statutes passed the two houses. In that case it became material because a statute provided in these words:

“This act shall take effect from and alter the fifteenth day of May next.”

, This statute was passed in 1852, and was signed by the presiding officers of the two houses on May 8 of that year, and the question was, did it take effect on May 15, 1852, or May 15, 1853? If it was passed on May 3, 1852, and was to take effect on the fifteenth day of the next May, then the date of taking effect would clearly be May 15, 1853. Bu’t it was urged that it was actually passed in April, 1852, in which case the fifteenth day of May next would be the fifteenth day of May, 1852. For the purpose of determining this question the Supreme Court looked to the journals of the two houses and found that the statute was actually passed on April 28, 1852, and so held that it took effect on May 15, 1852.

An examination of the journals oi the two houses of the seventy-fourth general assembly of Ohio discloses this state ot facts: Bill 96 was introduced in'the house and passed its first reading on January 15, 1900 (House journal, page 54); it passed its second reading and was referred to the committee on fish culture and game on January 16, 1900 (House journal, page 58); this committee reported the bill back to the house and recommended its passage on March 8, 1900 (House journal, page 417); it passed its third reading; was referred to a special committee of one for amendment; the amendment at once reported, and the bill passed the house on March 27, 1900 (House journal, page 614), and on April 12 it was passed by the senate without amendment (Senate journal 681).

Bill 216 was introduced and read the first time in the senate March 1, 1900 (Senate journal, page 252); it passed its second reading and was referred to the committee on fish culture and game on March 2, 1900 (Senate journal, page 258); it was reported back by the committee, with several amendments, which were at once agreed to, on March 16, 1900 (Senate journal, 354); it was read the third time; amended and passed the senate on March 21, 1900 (Senate journal, page 388). The bil'l then went to the house, and on April 14, 1900, the bill with certain amendments introduced in the house was passed by the house (House journal, page 984). On the same day the senate received a message irom the house as to its action, and the senate concurred in the amendments made in the house, and finally passed the bill as amended (Senate journal, page 772).-

It will be seen that the last action of the house on Bill 96 was March 27, and that the last action ot- the senate on the same bill was April 12; that the last action ot the house on Bill 216 was April 14, and the last action ot the senate on this bill was on the same date. It follows that Bill 216 was the last expression of the legislature on the matter under consideration, and was, therefore, at the time the sentence complained of in this action was pronounced, the law of the state on that subject.

So far as the signing of these bills is concerned, house journal 1021 shows that Bill 96 was signed by the speaker in the presence of the house on April 16, and that later on, on the same day, Bill 216 was so signed by the speaker (House journal, 1031). On the same day the president ot the senate signed Bill 216 in the presence of the senate (Senate journal, 819), and later on, on the same day, signed Bill 96 (Senate journal, 823). So that we get no aid from the actual time of the signing of the bills, for as to one of the presiding officers Bill 96 was signed last, and as to the other, Bill 216 was signed last.

That whoever prepared these bills for publication understood that they took effect in the order in which it is found by this opinion they did take effect, is made probable both irom the fact that Bill 96 is printed earlier in the volume, to-wit: 94 O. L. at page 321, the other being printed at page 349, and also by the figures and letters printed with each bill as hereinbelore quoted, Bill 96 being designated as “General Law 206,'’.and Bill 216 being designated as “General Law 226.” From what has been said it follows that the sentence pronounced against the plaintiff in error was not authorized by the statutes of the state at the time it was pronounced, and that the judgment of the court of common pleas, affirming such sentence, and the judgment of the justice in pronouncing such sentence should be reversed, and as the time has long since passed ior the pronouncing of sentence by the justice, and his jurisdiction to pronounce sentence is lost, it follows that the plaintiff in error must be discharged.

If it be said that this results in permitting one who has violated a criminal statute ol the state to go scott free, and that this ought not to be, the answer is that it is better that one so violating the law shall go unpunished than that the courts pronounce and carry into eftect a sentence wholly unauthorized by law. Respect lor the law will not be encouraged or strengthened by undertaking to administer as law that which is in violation of law. Fortunately the present legislature, probably having discovered the difficulty which has arisen in this case, or in any event, having discovered the inconsistency of the two statutes, has repealed them both and substituted another in their stead.

       See also State v. O’Brien, 47 Ohio St. 464.