text:
    COURTS OF REVIEW AND VILLAGE ORDINANCES.
    [Circuit Court of Lorain County.]
    Carl Esch v. The City of Elyria.
    Decided, May 8, 1905.

      Ordinances — Higher Courts will not Take Judicial Notice of — Character of Offense Charged — Finding of Mayor — That the Offense was in Violation of an Ordinance — Presumption.
    1. Where an offense is. charged which the municipality had a right to forbid and there is a finding by the mayor that the defendant did violate an ordinance, a reviewing court -is bound- to presume that the mayor did not err in finding that an ordinance had been passed- covering the offense charged, and can n-ot reverse the judgment unless error is shown.
    2. To bring an ordinance before a reviewing court, it must be certified up by the mayor with the other evidence.
    Marvin, J.; Winch, J., and Henry, J., -concur.
   The ease of Carl Esch against the City -of Elyria., Esch was prosecuted before the mayor of the city -of Elyria, an affidavit having been filed with th-e mayor, charging him in these words:

“Before me, Thomas Folger, mayor of. said city in said county, personally came Mrs. Olive ITulf, who, being duly sworn according to law, deposet-h and saith, that -on or about the 12th day -of August, A. D. 1904, at the^.-county of Lorain and city of Elyria, one Carl Esch, late of said city and county, unlawfully -did conduct himself in a noisy, rude and insulting and disorderly manner by words and acts toward one Grover ITulf, by striking him -in the breast and by striking him in the face, with intent to abuse the said Grover ITulf, and so- as to annoy the citizens and disturb the good order and quiet of the city of Elyria, contrary to the form -of the ordinance in such cases made and provided.”

There are some things curious about this. What words were uttered? The affidavit says he -disturbed the peace by the use of boisterous: words, -to-wit, he struck somebody in the face. But council had a right, under Section 1536-100 to pass an ordinance which would make what is -charged in that affidavit an offense. Among the things that it is provided in the section referred to that the council of -a municipality may do, is “to prevent riot, gambling, noise and disturbance, indecent and disorderly conduct or assemblages, and to preserve the peace, and good order, and protect the property of the corporation and its inhabitants.”

Clearly the municipality had a right to pass an ordinance which would make it an offense to do the things which it is here charged were done. But it is said that it is not 'here charged that those things were done which are prohibited by the ordinance. The answer to that is, we do not know what the ordinance is. We know that the city had a right to pass an ordinance that would make the things- here -charged an offense. And I take -the occasion to say a little on that, because there has been a good deal of misunderstanding -about it. The mayor, -of course, was bound to-take judicial notice of the ordinances of the city, but the higher courts will not take judicial notice of the ordinances of a municipality; to require that would require the Supreme Court of Ohio to take judicial notice of every ordinance in every village in Ohio. It can not be done, and it is not done. This court has distinctly held in two cases, one of which has gone to. the Supreme Court and been affirmed, that we can not take judicial notice of an ordinance: and we can not reverse a case unless error is apparent.

The mayor found that an ordinance had been violated. We find the municipality had -a right to pass an ordinance which would be violated by the happening of the facts charged in this affidavit. We are bound to presume that the mayor did not err in finding that the municipality had passed such ordinance.

It. is asked, then, how is the reviewing court to know what the ordinance is? So far as I know,- the only way is for the bill of exceptions to show what the evidence was, and to show in addition what the ordinance was. It is true the ordinance would not be introduced on the trial in evidence before the mayor, but the only reason it would not be, is because he Is bound to know it, and therefore it is a fact before him, and so the bill of exceptions should show what the ordinance was; the mayor should certify with the other evidence in the case what the ordinance is, then the reviewing court will take notice of it,'not because it takes judicial notice of the ordinances of municipalities, but because it has before it, by the certificate of the mayor, in its bill of exceptions, what the ordinance under which the prosecution was had. In no other way can it properly be brought to a reviewing court.

Fritz Rudin, for plaintiff.

17. B. Johnston, for city.

This court has, in at least two cases, reversed the municipal court where the ordinance did not appear; but in both cases it was because we found -that the facts charged in the affidavit could not constitute an offense under any ordinance which the municipality had authority to pass, and that therefore no difference what the ordinance attempted to be passed was, that there could be no ordinance, authorized by law, which would make an offense of the facts charged in the affidavit.' The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    LIABILITY ARISING FROM ACCUMULATION OF ICE IN STREET.
    [Circuit Court of Hamilton County.]
    City of Cincinnati v. Fred. G. Grebner.
    Decided, January 19, 1904.

      Negligence — Municipal ■Corporations — Liability of, for Nuisance — Arising from Accumulation of Ice in Street — Knowledge Thereof Presumed.

    A municipality is liable for injury or loss resulting from an accumulation of ice in the street, where the nuisance thus created has existed for ten days and was caused by water escaping from a water pipe belonging to the city.
    Swing, J.; Jelke, J., and Giffen, J., concur.
    Error to Court o'f Common Pleas of Hamilton County.
   The evidence in this case shows that Grebner’s horse was injured by falling on the ice that had accumulated in Avery alley or street in said city; that ice did not exist generally in the streets and alleys of said city at this time and in fact did not exist in this street except at the point where the horse was injured. While the ice in this street was caused by the cold weather existing at the time, it was not produced by rain or snow, but was produced by water escaping from a water main of the city which ran upon the street and was-frozen and became -a dangerous obstruction in the street, being some eighteen inches thick at one side of the street where the water escaped and sloping down to two or three inches at the other side and being of such a nature as to be very dangerous for a horse to go upon. This condition, to a more or less extent, had existed for ten days or more, and was not caused in a night or by any sudden storm. Clearly the city had caused this obstruction by its negligence and ¡must have known of it, and it being a nuisance it was its duty to remove the obstruction. Certainly a reasonable care of its streets would require the city to remove this obstruction. We see no contributory negligence on the part of Grebner, and on the whole ease we think the judgment should be affirmed.

Charles J. Hunt, City Solicitor, and Albert H. Morrill, Assistant City Solicitor, for plaintiff in error.

II. J. Witle and H. J. Wernke, for defendant in error.


text:
    NEGLIGENCE IN THE ERECTION OF A PAINTER’S SCAFFOLD.
    [Circuit Court of Lucas County.]
    Henry J. Spieker Co. v. Fergus Ferguson.

    Decided, October 31, 1903.

      Master and Servant — Negligence of Foreman of Painters — In Providing Unsafe Scaffold on Which to Work.

    1. It is the duty of the master to provide a safe place for his servants to perform the work for which they are engaged, and where injury results on account of negligence of the master or his foreman in this regard, the master is liable therefor.
    2. Where a gang of painters are required by their foreman to work upon a scaffold which had been previously erected by a stranger, and while thus engaged the scaffold fell by reason of the inherent weakness of one of the timbers, and one of the men was hurt thereby, the master is liable on account of the injury sustained.
    Haynes, J. (orally); Parker, J., and Hull, J., concur.
    Error to the Court of Common Pleas of Lucas County.

       Affirmed by the Supreme Court, November 15, 1904 (71 Ohio State, 503).

   This action was brought by Fergus Ferguson against the Henry J. Spieker Company to recover for damages which were sustained by him by the fall of a scaffold at the Casino, he being engaged at that time by the Henry J. Spieker Company as a painter employed in working for them at that point. There were some four men who were working together at the time, and they were in that part of the building called the rotunda, and they found boards placed across certain beams or cross-beams of scantling, which had been placed there by some independent parties, to-wit, the employes of an electric company, who were putting in the electric lights and fixtures. The claim on the part of the defense is that the work was being done by these four men; that they were charged with the duty of erecting the scaffolding upon which they were to work and that if there was any neglect in the manner in which the work was performed, it was the neglect of the workmen themselves; that they stood in the relation of fellow-workmen, and that therefore the defendant company was not liable.

It is further set forth by the custom in Toledo and of this company, the workmen were to put up the platforms or scaffolds themselves upon which they were to work in the carrying on of their work. It appears from the testimony that the plaintiff below came here seeking for work and went to the office of the company and saw Mr. Spieker, who was president of the company, and he told Ferguson he did not know whether they wanted men or not, but to go down to the Casino and see his partner, Mr. Berkenbile. Berkenbile was connected with the company and had charge of the working force and of the hiring of the men. Spieker managed the finances and Berkenbile was the manager in the field. He testifies that he went there and saw Berkenbile, who told him that he would go and see and then took him to see a man who was at work with their other men (a Mr. Minneker) and he introduced him to Minneker and told Minneker to set him to work, and thereupon he went to work with that gang or body of four men. They worked some that afternoon and the next morning they went to this part of the building to work, and finding this planking there and this scaffold, they went to work upon it. One of the cross-scant-lings was weak; there was a large knot in it and the grain of the timber ran cross-wise instead of length-wise of the timber, so that it was very weak and it fell.

After reading this testimony through we find that the statement made by the plaintiff in regard to the hiring is practically not denied. Berkenbile says he does not remember much about it; and Minneker is in about the same position; there is nowhere any statement made by the defendant denying it, and we are of opinion that where a man is employed, under the rules of law, the employer _is bound to furnish him a safe place to work; that at this time this man was under the control of Minneker; that Minneker stood in the relation of foreman to him; that he did so by the action of Berkenbile himself, and that in the work Mr. Minneker became to him a foreman over the men and that it was the duty of Minneker, representing the company, to have seen to it that the plaintiff had a safe platform or scaffold for the men to work upon.

Doyle, Lewis & Schaufelberger, for plaintiff in error.

Scribner c& Coldham, for defendant in error.

Other questions might arise, but we do not pass upon them— for instance, as to the effect to be given to this so-called custom in changing the obligation and duty of the owners of the property to furnish a safe place and thus relieve themselves from responsibility. We base the decision entirely upon the evidence that I have already stated; that under the circumstances of the case, Mr. Minneker properly stood in the relation of foreman to these men and represented the company and was bound to see that the scaffold was safe for the men to stand upon, and that in this respect the company, through him, was negligent; -and holding these views, the judgment of the court of common pleas will be affirmed and reasonable cause certified for the filing of the petition in error.


author: Per Curiam.

text:
    UNFAIR. CONTRACT MADE BY DIRECTORS WITH THEMSELVES.
    [Circuit Court of Hamilton County.]
    H. C. Yeiser, Administrator, et al, v. The United States Board & Paper Company.
    Decided, July 1, 1905.

      Corporations — Good Faith of Directors — In Making a Contract with Themselves — Contract May Be Disregarded by Corporation, When.

    Wliere it becomes evident to those in control of a corporation that the. ■ trust reposed in certain of the directors, in the matter of a contract which they entered into with themselves, has been violated, they may be regarded as unworthy of further confidence, and an agreement with them based upon confidence may be abrogated.
   Per Curiam.

This case is here on error to the judgment of the court of common pleas. We think the judgment should be affirmed.

C. B. Matthews and Pogue Pogue, for plaintiff in error.

TS. J. Dempsey and Roeilinger & Gorman, contra.

This court held (1 C. C. — N. S., 345) that the contract in question was not void on account of its having been made by the directors of the corporation with themselves, there being no allegation that it was an unfair contract. But after the making of the contract it was adjudged, in a suit brought for that purpose by a court of competent jurisdiction, that these directors had practiced a fraud on the members 'of the corporation in the purchase of the manufacturing plant. Good faith and perfectly fair dealing was required of them in that transaction, and they violated the confidence reposed in them by their associates. While this contract is an entirely different contract, still having been made by them with themselves while acting in a trust capacity for others, it could only stand if perfectly fair.

It having been found that Browne and Stuart had violated the tx-ust reposed in them, in the purchase of the manufacturing plant, they were not entitled to any further confidence and trust, and such being required in the present contract!, the corporation had a right to put an end to it. The facts being conceded, it became a matter ,of law for the' court and the court’s instruction was correct.

It follows from this, the verdict being a general one, that the judgment should be affirmed even though there is error in the record as to other matters; but we think there are no other errors in the record — the principal errors relied on arise on the charge of the court — and the court having followed the rulings of this court made at a former hearing, we do not, think that our former holding should be departed from unless it clearly appears that we were in error, and of this we are not satisfied.

The judgment will therefore be affirmed.


text:
    FIRE COMMUNICATED TO FARM LANDS BY LOCOMOTIVE.
    [Circuit Court of Huron County.]
    Lake Shore & M. S. Ry. v. C. W. Anderson.
    Decided, 1904.

      Negligence — Whereby Fire was Communicated by a Locomotive — Allegations of Petition Sufficient, When — Jury Warranted in Finding for Plaintiff, When — Lack of Negligence may be Shown as a Defense — But Lack of Negligence not made Out, When.

    1. In an action for recovery on account of loss by fire communicated by a locomotive, a petition is sufficient under Sections 3365-5 and 33oo-6, which avers that fire and sparks were emitted by one of the defendant company’s locomotives, thereby causing fire on the railroad right of way and the plaintiff’s land, the plaintiff being ignorant as to whether the fire started on his own land or that of the company; and such an averment is a sufficient averment that the fire was communicated directly from the locomotive, and not from some other source.
    2. A jury is warranted in finding that fire upon the land of the plaintiff lying adjacent to a steam railroad, originated from sparks emitted by a locomotive which had passed a short time before, where the evidence shows that the wind was blowing in the direction of the plaintiff’s land with sufficient force to carry sparks thereon, and that there were no other fires in the neighborhood at the time.
    \3. A railroad company, sued for damages on account of fire alleged to have originated from sparks from one of its locomotives, may , show by way of defense that it was not guilty of negligence in the premises.
    4. But such a defense is not made out by testimony as to the use of spark arresters, where the evidence as to the origin of the fire is to the effect that it was started by sparks from the locomotive.
    Haynes, J.; Parker, J., concurs.
    Error to Huron- Common Pleas Court.
   C. W. Anderson commenced suit in the court -of common pleas to recover damages against the railway company for a certain loss suffered by him to his- property by reason of the locomotives of the company emitting sparks and causing fire which resulted in -his damage.

The ease was tried to a jury and a verdict was rendered in favor of the plaintiff below, and the defendant below brings action in this court to reverse the judgment of the court of common pleas and gives a variety of reasons why the judgment should be reversed.

The action was brought below under Sections 3365-5, 3365-6. The first matter to which our attention is called is the matter in the pleadings and around that there has been quite a lively contention by the parties.

It is claimed on behalf of the railroad company that the amended petition fails to state facts sufficient to show that the fire originated from the company’s locomotives, or perhaps more accurately speaking, it has failed to show that the fire originated ■on the land of either the railroad company, or the land of the plaintiff below. The allegations are these:

In the first cause of action, plaintiff below says that one of defendant’s engines in charge of its engineer, pulling a train of ears, was, on March 21, 1902, running along and upon defendant’s railway adjacent to plaintiff’s land in Townsend township, Huron county, Ohio, and while passing plaintiff’s land and adjacent thereto, said engine emitted fire and sparks, thereby causing a fire on defendant’s right of way and land and on plaintiff’s land adjacent thereto,' burning over about six acres of plaintiff’s meadow land and burning and destroying between forty and fifty rods of plaintiff’s fence, to plaintiff’s damage in the sum of $50. The plaintiff does not know and has not the means of knowing whether said fire started on defendant’s right of way and land, or on plaintiff’s land. The second cause of action, so far as these allegations 'are concerned, are like the first.

Turning now to the statute, Section, 3365-5, 3365-6, in order to see how the question is raised, I cite the statute (91 O. L., 187), being the same act:

“Every railroad company operating a railroad or any portion of a railroad wholly or partially within the state of Ohio, shall be liable for all loss or damage by fire originating upon the land belonging to such railroad company caused by operating such railroad. Such railroad company shall be further liable for all loss or damage by fires originating on lands adjacent to such railroad company’s land caused in whole or in part by sparks from an engine passing over the line of such railroad,” etc.

Then in Section 2 it provides:

“In all actions against any person or incorporated company for the recovery of damages on account of any injury to any property, ¡whether real or personal, occasioned by fire communicated by any locomotive engine, while upon or passing along any railroad in this state, the fact that such fire was so communicated, shall be taken as prima facie evidence to- charge with negligence the corporation, or person or persons who shall, at the time of such injury by fire, be in the use and occupation of such railroad,” etc.

Now, the pleader, instead of using the language of the statute, saying that the fire originated upon the lands of the railroad company, says ¡that the fire and sparks were emitted.from an engine belonging to the defendant, thereby causing a fire on defendant’s right of way. The pleader then proceeds to say that he does not know, nor has he the means ¡of knowing, whether the fire started -on the defendant’s right of way and land, or on the plaintiff’s land.

After reading the statute, we are inclined to think that that petition is good against demurrer, as against objection to the admission of evidence. It says that sparks were emitted, causing a fire on the plaintiff’s land, and on the land of the railway company. If i-t caused the fire there it seems to us that the ordinary understanding of this phrase would be, that the fire originated there. The pleader says he doesn’t know whether it originated or was caused first upon the land of the railway company, or upon the land of the plaintiff below. Section 2 of the statute reads, ‘ ‘ If the fire was communicated. ’ ’

Now, pleadings are not to be subject to every intent. The code says the facts constituting the cause of action shall be stated in ordinary -and concise language and that is all that is required. It does not appear that there were any other lands that were on fire, or any other fire in that particular neighborhood; but the pleading does allege that the sparks caused the fire on this plaintiff’s land, and that seems to' us, as I have said, quite sufficient averment of the fact. He further says that he does not know Whether the fire started upon the railroad company’s land or upon the land of the plaintiff below, but he does aver that it started upon the land of either the plaintiff below or of the railway company. I should add, too, that we are of the opinion that the 'allegation of the petition is a sufficient allegation that the fire communicated directly from the engine and not from any other source, or any other land.

As I have said, there was no fire in the vicinity — no other fields on fire. There is no claim of that bind made. Of course, counsel for the railway company say very properly, that in passing upon the pleadings themselves and what the evidence may afterwards show, does not help out the original objection to the introduction of any evidence that the company made. They claim, and very properly claim, that if the fire originated in any way except as provided in the statute, the plaintiff below, in order to recover, would have to make a case of negligence against the railway company and prove it.

Now, having passed that point, witnesses were called to testify in regard to the fire. It appears here sufficient that the fire originated soon after two locomotives of the company had passed along the road. It seems from the evidence that the fixe originated from the locomotive attached to>'a particular train called a local train, and that the fire originated very quickly after the train passed. The day was a windy day in March and the wind was from tbe northeast and the effect of that would be to carry sparks toward the land of the plaintiff which was on the south side of the railroad, and of course it would carry it with force a considerable distance if there were sparks. The testimony of the witnesses in regard to the appearance of the fire when they first got there, would seem to indicate that the fire originated upon the land of the railroad company — the first fire — and passed from that on to- the land of the plaintiff: However, there was the testimony of other witnesses that was offered in rebuttal of that propostion; so that we take it that in the diseussion of the proof — in discussing the fire, under these pleadings — we should treat the case as a case within the second class of cases, to-wit, as a case in which the fire originated up on the land of the plaintiff. We think that the testimony is clear and have no doubt in our own minds that the fire was communicated from this locomotive, by sparks emitted from this locomotive, flying over upon the land of the plaintiff. There seems to be no other reasonable cause for the fire, and that is a reasonable cause for the fire.

The defendant has a right — 'because the statute only makes a fire prima facie evidence of negligence — to show that it was not guilty of any negligence. That is the defense that is open to it, consequently it has set up and was permitted to offer evidence tending to prove that the locomotive was fully equipped with spark arresters, that they were in good condition at the time of the fire, that the engine was carefully managed and that the fire did not or could not originate from the locomotive of the defendant below, or that if by -any possibility sparks were emitted so as to create a fire, that the defendant below was not guilty of any negligence in regard to that.

Now, the evidence on the part of the defendant’s witnesses'— the version of the experts appearing here, and several .of them testified in this ease — was, that if these spark arresters, or if this spark arrester was a good one, in good order, in good condition, the sparks would not fly, could not fly so as to ignite amd cause a fire on the premises of the plaintiff below, and that is repeated by several of the witnesses.

Now, if that proposition is true, and the fire did originate by sparks from the locomotive of the defendant below, it is pretty conclusive proof that the spark arresters were not in perfect condition. The testimony of the witnesses in regard to -the inspection of this engine and the spark arrester is not very satisfactory —not such as to require the court to reverse the judgment of •the court below in this case.

The testimony is different upon these points. We therefore conclude, after a careful perusal of this evidence, that the defendant has not made out by sufficient proof, a case which requires us to disturb this judgment; in other words, we think the jury was authorized in coming to the conclusion that the fire originated from the engine of the defendant below and that the engine was not in good repair at the time; that the burden of proof as to negligence being upon the defendant below, it has not fully sustained -that defense, and the judgment of - the court of common pleas will therefore be affirmed, but without any penalty.

G. P. & L. W. Wickham, for plaintiff in error.

McKnight <& Thomas, for defendant in error.


text:
    WAIVER. OF TORT BY FORM OF PLEADING.
    [Circuit Court of Scioto County.]
    William Kirchner v. Lloyd E. Smith.
    Decided, June, 1905.

      Pleading — Amended Petition States New Cause of Action, When— Waiver of Tort — By .Suit on Implied Contract — Election—Statute of. Limitations.

    1. An amended petition does not state a new and independent cause of action from that in the original petition, (a) when the same evidence would prove either cause of action; (6) when the measure of recovery is the same on each cause of action; and.(c) when a recovery upon the cause of action in the amended petition would bar a recovery on the original petition.
    2. When a plaintiff, in his pleading, waives a tort, committed by the defendant, which consisted of the conversion of money that belonged to the plaintiff, and he sues upon an implied contract, his action is barred in six years from the time the defendant received the money, and not in four.years from that time.
    3. Notwithstanding the plaintiff used language in his pleading which would be appropriate to describe a tort, if he sues, not for . damages but for money actually received by the defendant and belonging to the plaintiff and for no more, it is a waiver of the tort and an election to sue upon the implied contract.
    Walters, J.; Cherrington, J., and Jones, J., concur.
   In the common pleas court, the plaintiff in error, William E. Kirchner, filed against Lloyd E. Smith, the defendant in error, a petition; to which a demurrer was sustained by that court; subsequently he filed an amended petition, to which a demurrer was interposed by the defendant, and in determining this demurrer in favor of the defendant, it was held that the action, both on the original and amended petition, was barred by the four years’ statute of limitations; and thereupon the plaintiff filed a petition in error in this court.

Was there error in this decision of the common pleas court? If the four years’ statute (Section 4982, Revised Statutes) applies, then the action was not brought in time; but if the six years’ statute (Section 4981) applies, then it was brought in time.

The original petition below was upon an account for one-half of the purchase price of the undivided one-twelfth interest, in an oil and gas lease on a tract of 105 acres of land, situated in Tyler county, West Virginia, and belonging to Elisha P. Snyder; which said one-twelfth interest was owned by the said Smith and Kirchner, each owning one-half thereof, and was on the 10th day of October, 1897, sold by said Smith for $1,-151.04; and said Smith then received and converted to his own use the whole of said purchase money, including $575.52, which belonged to plaintiff in error; the interest on said $575.52 from October 18th, 1897, till September 15th, 1902, is $177.95, and the total is $753.99. There are no credits on said account.

Wherefore, plaintiff prayed for judgment against the defendant in the said sum of $753.99, with interest thereon from the 15th day of September, 1902.

The amended petition sets up the same transaction: the ownership of the lease by the plaintiff and the defendant, each owning one-half of the undivided one-twelfth of the oil and gas lease and described the land more particularly by metes and bounds, but as being situated in the same county, and the same number of acres; and it avers that in October, 1897, the defendant-wrongfully sold and converted to his own use the proceeds of the sale, $1,151.04, and it asks judgment for the one-half of the proceeds of the sale so received by the defendant.

(1). The first contention is, that the amended petition states a different cause of action than that in the original petition; that the identity of the cause of action stated in the original petition is not the same as that described in the amended petition. The original petition, in form, was upon the account so stated. The consideration of the account is the one-half of the one-twelfth of the oil and gas lease in Tyler county, West Virginia, upon a tract of 105 acres of land, which one-twelfth the defendant sold on a certain day, and that he received $1,151.04, and that he has refused to turn over the one-half; and he asks judgment in money for the one-half of that.

The amended petition states the same facts in a little more elaborate manner, describing particularly by metes and bounds the 105 acres as being situated in Tyler county, West Virginia, and that each of them (plaintiff and defendant) was the owner of the one-half of the one-twelfth of this oil and gas lease, and that the defendant on a certain date, 1897, the 10th of October, sold, with his own, this interest of plaintiff, and that defendant had, and received $1,151.04; and the plaintiff asks judgment for the one-half of the proceeds so received by Smith.

There is a complete identity of the causes of action. There is no departure — if departure it can be called — which is usually a term applied to where the reply of the plaintiff departs from the cause of action stated in the petition.

But it is alleged that there is a different cause of action. And whether or not there is a different cause of action is to be determined by certain tests.

First. The same evidence would support both pleadings. The same evidence that would support the original pleading in this case would support the cause of action in the amended petition. The petitioner owned the one-half of the one-twelfth of the oil and gas lease in Tyler county, West Virginia, upon 105 acres of land; the defendant sold the whole twelfth, the 10th of October, 1897, and converted one-half of the proceeds — money—to his own use; and the plaintiff demands the one-half of that certain sum so received — the proceeds of the sale. Now, -would not the same evidence support the amended petition that would support the original petition ? Is not the identity of the cause of action the same in regard to the one-half of the one-twelfth of the oil and gas lease on 105 acres, in Tyler county, West Virginia? The amended petition says that same thing. The same evidence that would be introduced to support a cause of action upon the account in the petition would be, and could be, the only evidence that could be introduced upon the amended petition. This makes an identity of the causes of action.

Second. The same measure of damages applies to each of them. The same amount was asked in the amended as in the original petition, viz., one-half of the $1,151.04. The identity is therefore complete; and the recovery would be the same on each pleading.

Third. A recovery upon the amended petition would bar a recovery upon the other pleading. Would not a recovery on the amended petition of the one-half of the one-twelfth of an oil and gas lease of the proceeds of that sale — bar the right to recovery upon the original petition which counts upon the same thing? Therefore, the identity of the causes of action is the same. It is the same subeet matter, and the same interest in the gas and oil lease, owned by the same parties; the same proprietors, in the same tract of land, in the same county, are averred, and the same amount is asked in both. Therefore, we must necessarily conclude that the identity of the causes of action is the same. The form of action is perhaps changed from that on the account in the original petition of that of money had and received in the amended petition; but this is an immaterial difference.

(2). Is the cause of action barred by the statute of limitation? Is the cause of action stated in the petition and also the one stated in the amended petition a cause of action in ex delicto, and not on implied contract? If it is upon an implied contract, the statute of limitation is six years, and therefore the action is not barred. If the action is for a tort, then the statute of limitation of four years bars this action.

We hold that the amended petition, being for the same identical cause of action as the original petition, that the statute of limitation ceased to run at the filing of the petition in this case, and not at the filing of the amended petition. But does the statute, four years’ statute, or the six years’ statute, apply?

When one person receives the property of another, if he illegally and unlawfully or wrongfully obtains the property of another, the law implies an obligation upon his part that he will refund to the owner that property so unlawfully coming into his possession-. Therefore, there arose an implied contract on the part of the defendant when he sold this oil and gas lease for $1,151.04, and received the whole of it, if the half of it belonged to the plaintiff in this case — there was an implied obligation upon the part of the defendant — to pay over to the plaintiff one-half of the sum so received by him.

(3) . Now, it is true, that the plaintiff might have sued as in tort, and the question is, whether the petition and amended petition is one in tort, or whether it is upon an implied contract? And that is to be determined from the language of the amended petition. The amended petition does allege the fact of the sale of the oil and gas léase by the defendant; that he wrongfully and unlawfully converted the one-half of the proceeds belonging to the- plaintiff to his own use; but the plaintiff does not seek damages by reason of the unlawful conversion of his property, lie seeks in this case to recover one-half of the proceeds of the sale made by the defendant, and not to recover damages— whether those damages be the amount of the proceeds received by him, or more or less; but he seeks to recover the actual money that the defendant received. This is money that the defendant owes upon 'this implied obligation, which the law raises in this case.

(4) . It is true there is language used in this petition that would apply to a tort. Now, where a party has a right of action which he may bring either in tort, or in ex contractu. he may waive tort and bring an action upon contract, and the -only question is, whether the plaintiff has done so. We are clearly of the opinion that he has.

In Mount v. Lakeman, 21 O. S., 643, the action was brought against the treasurer of a certain township to recover funds which he had converted to his own use. The petition alleged that he received the money sued for, and that it became his official duty to- distribute and pay over the money according to law; that he failed to do so, but converted the same to his own use, and that was held to be an action ex contractu, and not one ex delicio.

Judge Ranney, in State v. Newman, 2 O. S., 568, while not deciding the exact question — it not being necessary to do so in passing upon the question that arose in that case, for it was an action upon a bond of the treasurer — held:

“A refusal to pay over money received in his official capacity, when demanded, is a failure to perform his official duty, and a non-feasance in office; and it is certain that an action upon the case, founded upon the tort, could not be sustained after one year. But it is -equally certain, that the plaintiff! might, if he saw fit, waive the tort and sue in assumpsit, for money had and received, at any time within six years.”

Now, we think it clearly appears from this petition and the amended petition that the action is not in tort. It is not for damages for the unlawful conversion of this property. The plaintiff seeks not more or less than the amount received by the defendant. Tie seeks to recover the money actually received by the defendant; the money which the law raises an implied promise that he should pay, to him. And it is distinguishable in that feature from -an action for a tort. While the language used in the pleading is that he “wrongfully converted,” “unlawfully converted” (and it is an actual fact, that he did unlawfully and wrongfully convert the same, if the petition is true), and while the plaintiff sets out that, by reason of this, he is entitled to the actual money received, still he does not sue for damages for the conversion; he sues for the money which he says belongs to him and which the defendant received and converted to his own use, and no more. This is the distinction in all the books which determines whether it is a tort, or whether it is one upon contract; and the plaintiff’s pleadings show that his action is of the latter kind.

We, therefore, are clearly of the opinion that the six years’ statute of limitation applies, because it is a petition upon an implied contract for the proceeds of the sale, and we adjudge, therefore, that the common pleas court -erred in sustaining the demurrer to the amended petition.

Holcomb & Miller, and Pugh & Pugh, for plaintiff in error.

G. M. Osborne, for defendant in error.

The judgment will be reversed and instruction given to the court of common pleas to overrule the demurrer to the amended petition.


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    A CHICKEN COOP NOTfA “BUILDING.”
    [Circuit Court of Pickaway County.]
    Edward Bailey v. State of Ohio.
    Decided, November, 1902.

      Criminal Law — ■Definition of “Building” — As Used in the Burglary Statute — Movable Chicleen Coop not a “Building.”

    The word “building” as used in Section 6835, Revised Statutes, defining the crime of burglary, has reference to a structure of some permanence, and the entering of a movable chicken coop, thirty-eight inches square, with intent to steal, does not constitute the crime of burglary.
    Cheerington, J.; Sibley, J., 'and Jones, J., concur.
    Error to Pickaway Common Pleas Court.
   This is a proceeding in error. Bailey was tried on the charge of burglary and found guilty, .and the ease -is now here to reverse the judgment of the common pleas court in entering up sentence and judgment on the verdict of guilty rendered by the jury.

The burglary with which he was charged- was in burglariously entering a building, viz., a chicken house, the- property of one Jefferson Blacker, in this county, and taking therefrom seven chickens of the value of two dollars.

The evidence is all in the bill of exceptions, together with the charge of the court, and the plaintiff claims there was error in the trial of the ease in two particulars:

First, that the verdict was against the weight of the evidence, in this, to-wit, that the evidence did not show that the house he is charged with entering was such a one as is contemplated by Section 6835, Revised Statutes, which, defines the erime of burglary; and, second, that the court erred in its charge to- the jury in that particular as to the house, assuming that if they should find the house to be of certain dimensions as described by witnesses beyond a reasonable doubt, that they should find the defendant guilty, because that was such a building us came within the purview of the section I have referred to.

So if the first assignment of error is correct, that the verdict is against the weight of the evidence, the cha-rgie of the court in that particular was wrong. If, however, the evidence shows that this building, -as it was called, was such a one as is i?rcluded in Section 6835, Revised Statutes, then the charge of the court was correct.

Prior to 1885 Section 6835, Revised Statutes, was as follows:

“Whoever, in the night season, maliciously and forcibly breaks and -enters any dwelling house, kitchen', smokehouse, shop, office, storehouse, warehouse, malthou-se, stillhouse, mill, pottery, factory, watercraft, scho-olhouse, church or -meeting house, barn or stable, or railroad car, car factory, or station house, ’ ’ should be guilty of the crime of burglary.

But in 1885 it was amended so- as to include, “or any other building. ’ ’

Now of course it will be readily seen that this chicken house is not specifically named in this- statute; but the claim of the state is that it comes under “or any -other building”- — that it is a building, and specifically comes within the purview -of that statute.

The testimony is brief -as to the kind of a house it is, as stated by the witness who made the measurements:

“The width of the co-op in- front is 37% inches. Sides 38 inches. Three feet high in front and- the back is 2 feet high. The d-oor is two feet high, and 13% inches wide. The piece of lath which fastens the door 2 feet and 6 inches1. The length of the roof is 5 feet and 6 inches. The width of the roof 4 feet and 2 inches.
‘£ Q. Do you' know the length of the building ? A. I measured it; it ought to be on there. It is almost square, the sides are 38 inches by 37% inches.”

The following questions were ’asked of the owner of the property :

“Q. These chicken coops are usually called brooders? A. No, sir; I had them to put the hen and chickens in after they were hatched, to rear the young chickens, that is what I had them built for.
“Q. You would very likely take them with you if you moved from that place? A. I think I would. They are very nice, and if I should move some place else I would certainly move my coops if I intended to follow chicken raising.
“Q. They are not attached to anything? A. They are built right on the ground. They are so they can set on the ground, but are not built flat on the ground, they have a two by four under them and set up on bricks; on account of the rats. ’ ’

On page 16 of the bill of exceptions is a. further description:

“Q. It was a coop that could be moved from one place to ■another? A. Yes, sir; but one man could not move it, it is very heavy. ’ ’

Now is that a building? The indictment describes it as a certain building, viz., a chicken house. Now it is true, as claimed by the state that the phrase “or any other building” was intended by the legislators to cover almost every building that could be imagined; but is this a building ? A small chicken coop, larger somewhat than a martin box, and which the prosecuting attorney and Mr. Weldon, counsel for defendant, could have carried, if they stuck a pole through the top, all over town without any serious inconvenience to themselves; it could be put on an ox cart and carried away, and it would still be a buikling I suppose according to the claim of the prosecuting attorney; it could be stuck on a stiff pole, as we have frequently seen martin boxes, and it would still be a building according to that notion. ,

Such a building as is contemplated by the statute we think means a building that has some permanency of structure. It need not be absolutely permanent, it need not be such a structure as that the removal of it, or in detaching it from the real estate it would damage the real estate at all, but it must have some permanency about it, such we think as this does not have, and we feel quite well satisfied that it does not come within the purview of Section 6835, Revised Statutes, so that we think the two assignments of error are well taken, and the judgment will be reversed.

Chris. A. Weldon, for plaintiff in error.

Irvin F. Snyder, for defendant in error.

      Affirmed by tbe Supreme Court without report, 69 Ohio State, 551.


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    . NOTICE OF STREET IMPROVEMENT SERVED UPON LESSEE.
    [Circuit Court of Hamilton County.]
    Jacob H. Clemmer v. City of Cincinnati.
    Decided, May 19, 1905.

      Street Improvement — Notice to Lessee- — -Binding on All Interests, When — Taxation, and Contracts Pertaining to Real Estate — Application of the Twenty-five per cent. Limitation.

    Notice of a proposed street improvement is binding upon all parties interested1 in the property, when served on a lessee for ten years with privilege of purchase to whom the care and control of the property is entrusted as completely as in this case.
    Gieebn, J.; Jelke, J., and Swing, J., concur.
   We 'are of opinion that by the terms of the lease for ten years, with the privilege of purchase given by Mr. Clemmer to Mr. Miller, Mr. Miller was constituted the agent of Mr. Clemmer, and the representative of the corpus of the property sufficiently to bind ail interests therein of both Miller and Clemmer, by the service of notice upon Miller and the signing of the petition by him.

This interpretation of this lease is borne out and sustained by Mr. Clemmer upon the witness stand; after he had surrendered the possession of his property to Mr. Miller, and the same had been transferred on the tax duplicate of the county to Mr. Miller, Mr. Clemmer says that he paid no attention to1 the property, but considered the same sold so far as he was concerned, and looked to Mr. Miller to provide for and pay all taxes and assessments.

Although the lease herein involved is not of the same permanent nature as that involved in the case of The Village of St. Bernard v. Kemper, 60 O. S., 253, and we do not undertake to lay down any general rule in regard to all leases, we feel that the real estate itself in this ease was so (handled and disposed of by the lessor to the lessee as to make the language of the opinion of Judge Burket on page 253. particularly applicable:

F. C. Ampt, for the plaintiff.

Chas, J, Hunt, City Solicitor, for the city,

The rules of taxation «re prescribed by the statutes, and the persons must make their contracts with reference thereto; and if the power is given to ¡a lessee to deal with property as owner and to have it stand in his name for taxation, the lessor becomes bound by the acts of his lessee, and has no cause for complaint. ’ ’

We further think that Revised Statutes, 2304 (Bates’ Ohio Statutes, 1900 Edition), which obtained at the time this improvement was undertaken', is applicable on this point. We think the same reasoning applies to the signing of the petition for the improvement of F.airview avenue, and the improvement of Straight street.

In regard to the second Straight street improvement, we ‘are of opinion that the lien for this 'assessment sbonld not extend beyond the average depth of lots in this vicinity, which is about one hundred and twenty-five feet, and, limited to this depth, tbe property will not stand a sewerage assessment to' exceed one dollar per front foot, land be within the twenty-five (25) per cent, limitation.

In regard to the third Straight street assessment we are of opinion that the original grading and the recent bowldering should be taken as one improvement and confined within the twenty-five (25) per cent, limitation, and having held that the first assessment on Straight street was binding by reason of the signing of the petition, and as the amount there held to be binding upon the property is in excess of twenty-five (25) per cent, of what we find the value to be, wie are of opinion that the assessment for bowldering is 'am unlawful burden upon the property and is invalid.

A decree .disposing of these four assessments may be had in accordance with! the above views.


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    COAL VAULTS UNDER. SIDEWALKS.
    [Circuit Court of Trumbull County.]
    First National Bank on Warren v. Barney J. Gillen.
    Decided, February Term, 1905.

      Negligence — In llie Matter of a Covering — Over a Coal Vault under the Sidewalk — Duty of Abutting Owner — To Keep Sidewalk Unobstrucled and Safe — Original and Intervening Negligence — Proximate Cause.

    Where a person, who owns and occupies a building, permits a perforated covering over a coal vault, constructed under a sidewalk in a municipality, and maintained for his own benefit, to remain unfastened below, and it can be easily displaced by lifting it from the rim in which it is -placed either by inadvertence or design, and it is so displaced, and a footman lawfully walking upon the sidewalk after dark, steps upon the covering after it is displaced, which tilts and throws him into the coal hole, thereby seriously injuring him. Held: That such owner is guilty of negligence, although such covering would not be displaced by ordinary travel over it, and that such negligence is the proximate cause of the injury.
    E. B. Taylor and Gillmer & Gillmer cited for tbe- defendant in error:
    69 O. S., 414-436; 45 O. S., 118; 53 O. S.; 605; 49 O. S., 82; 2d Handy, 167; 8 O. S., 358; 47 O. S., 207; 38 O. S., 462; 36 O. S., 318; Revised Statutes, 6710; 66 Iowa, 219-222; 18 N. Y., 79-84; 51 N. Y., 224-225-228; 81 N. Y., 52-56; 87 N. Y., 128; 92 id., 588; 97 id., 569; 101 id., 149; 57 O. S., 330; 58 O. S., 63; 41 O. S., 378; 125 Pa. S. R., 429; 10 A. S., 534.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Error to Circuit Court of Trumbull County.
   Plaintiff in error is tbe owner of a bank building situated on South Park avenue running along tbe public square and one of tbe most public streets in the city of Warren. The bank had a coal vault five feet deep under the sidewalk, but it had not used it for at least ten years. The entrance to this vault from the outside was by means of an opening in the middle of the sidewalk. The opening was covered by a circular iron covering known as a grate covering twenty inches in diameter and one inch thick. This grate covering rested on an iron rim and had an iron rod with a hook attached, running down through the center for the purpose of fastening it below in the vault, but had never been so fastened. It fitted loosely in the rim and could be easily displaced so it would tilt, either by the catching of an umbrella in it or the catching of a pedestrian’s cane in it. There were a large number of openings to coal vaults in the city covered in the same manner at the time of the accident and had been for years previously as well as in cities of the same size in different parts of the country; while many grate coverings were fastened below, and some openings were covered with large solid covers that fit closely into the rims. The proper authorities of the city had full knowledge of the existence of the vault and the cover, but no permit or license was obtained to construct and maintain it by the owner of the property.

About eight o’clock in the evening of April 28, 1900, after dark, defendant in error, Barney J. Gillen, was lawfully walking along Park avenue; he stepped upon the covering; it tilted and he fell into the opening to the vault and was very seriously injured. About ten minutes before the accident the cashier of the bank in coming from the building passed over the covering and stepped upon it, without any signs of it being displaced, and after the accident the rim and covering were in good condition, showing almost conclusively that the covering had been slightly displaced by some means immediately previous to the accident, but by what means the evidence wholly fails to show.

The only error relied upon in argument for the reversal of the judgment is that the verdict is clearly against the weight of the evidence and the only question therefore is, was the jury justified in drawing the inference of negligence on the part of the bank from the facts-stated, as there is no claim of negligence on the part of Gillen.

The question is a very important one, as in almost all cities of the size of Warren there are scores of coal vaults similarly covered.

Conceding that in this state an abutting owner of a lot has authority to excavate under a sidewalk and construct .and maintain a coal vault for his own benefit alone, about which there may be some question, yet what is his duty to the public when he does so? The sidewalk is primarily for the benefit of the public. It is especially for the use of the resident of the city when walking, and he has a right to assume that no stumbling block dr trap has been placed in the center of the walk. By day and by night he is justified in assuming that the center of the sidewalk is clear of all obstructions or pit-falls. If the owner of abutting property makes use of it for his own convenience by excavating under it, he must see to it that the sidewalk is in as substantially safe condition as if no excavation had been made. Such, no doubt, is the law upon principle, and as we understand it such is the tenor of .the best authorities!.

In Dillon on Municipal Corporations, Sections 1032 and 1033, it is said:

“Section 1032. No person, not even the adjoining owner, whether the fee of the street be in himself or in the public, has the right to do any act which, renders the use of the street hazardous or less secure than it was left by the municipal authorities. Whoever does so, whether by excavations made in the sidewalk by the abutter, or by unsafe hatchways left therein, or by opening, or leaving open, an area-way in the pavement, or -by undermining the street or sidewalk, or by placing unauthorized obstructions thereon, which make the use of the street unsafe or less secure, is guilty of a nuisance, and is liable to any person who, using due care, sustains any special injury therefrom; and in any such eases, the person who created or continues the nuisance is thus liable, irrespective of the question of negligence on his part.
“Section 1033. In accordance with the principles stated in the preceding sections, the owner of a building and lot is liable for personal injuries sustained by the breaking of a flagstone, or defective grating formed part of the sidewalk adjoining the building and covering an excavation made in the sidewalk, and used by the owner for private purposes. It follows that it is no answer to such an action, that the work, including the defective covering, was done for the owner at a fixed price by contractors, who agreed to do it properly. The doctrine of respondeat superior has no application to such a ease. And because the owner is bound, at his peril, to keep the excavation covered so as to be as safe as if it -had not been made, he is not discharged from liability by the fact that, having provided a sufficient covering, it was, without his knowledge, fractured or rendered unsafe by the wrongful acts of others. ’ ’
The doctrine of the text is supported by many authorities and the author well says, in commenting upon the case of Fisher v. Thirhell, 21 Mich., 1, which dissents from these authorities:
‘ ‘ Since such excavations are made for the exclusive benefit of the owner of the building the author sees nothing unreasonable in the doctrine that he is bound to see that they are kept in repair, and do not become nuisances by becoming dangerous. See also Section 700.”

It is however not necessary in this case to go the extent of holding that the bank should be held responsible for maintaining a nuisance and therefore guilty of a wrong, it having no right whatever, implied or otherwise, to make or maintain the vault, and the trial court instructed the jury that the defendant would only be liable for the want of ordinary care in constructing and maintaining the covering over the hole, and that if ordinary care was used in the construction and maintenance of the covering, they should find for the defendant. The jury found that the bank did not exercise such care as it should have done, and certainly that was a question of fact to be determined by the jury, if an inference of negligence could be drawn from the facts. Dickson v. Hollister, 123 Pa., 421.

Ordinary care in a case of this character would be great care. This coal hole was in the center of the pavement. The owner is bound to know that persons will pass and repass and step upon the cover,- not only in the day time but the night time, without apprehending danger.

“If an excavation under a sidewalk is by license of competent authority, the one making it is bound to do it in a careful manner, and to see that it is properly and carefully covered, so as to make the street as safe for passage as before.” Irvine v. Wood et al, 51 N. Y., 224.
“The public are entitled to an unobstructed passage upon the streets, including the sidewalks of a city. A coal hole covered with a movable disc is an obstruction. When permission is given by a municipal authority to interfere with a street solely for private use, the person obtaining such permission must see to it that the street is restored to its original safety and usefulness. ’ ’ Clifford v. Dam et al, 81 N. Y., page 52.

Many other authorities could be cited but it is unnecessary to do so as in our own state substantially the same doctrine was declared in the case of Morris v. Woodburn, 57 O. S., 330, in which it is held:

“If the owner of a lot abutting upon a street of a municipality, for the use of his property, constructs a vault under the sidewalk over which he negligently places and maintains a defective covering, he is liable directly to a footman injury thereby, notwithstanding the omission by the municipality of the duty imposed upon it by statute to keep the street in repair.”

In the opinion it is said:

“The liability-of the owner of the abutting property for an injury resulting from torts of this character, notwithstanding the omission of duty by the municipality is necessarily implied in Clark v. Fry, 8 O. S., 538, and Railroad Company v. Mosey, 47 O. S., 203, although the precise question may not have been raised. ’ ’

But it is claimed that the act of the bank in having such character of covering and its not being fastened below was not the proximate cause of the injury to Gillen. Indeed that is the principal contention of counsel. It is said that the covering was sufficient to protect foot travelers; that by walking over it the covering would not be disturbed, and that it must have been interfered with by some means immediately prior to Gillen stepping upon it, and that this intervening act of some one, either by inadvertance or intentionally, was the direct cause of the injury.

It must be borne in mind that it is not every intervening cause that relieves the defendant from 'his negligence. If the negligence of the defendant is the primary cause of the injury and the intervening eausle w.as one that in the natural and ordinary course of things should be contemplated as not entirely improbable, then the defendant is not relieved. The rule is plainly and well stated in Shearman & Redfield on The Law of Negligence, commencing .at Section 32.

“Section 32. The connection -between the defendant’s negligence and the plaintiff’s injury may be broken by an intervening cause. In order to excuse the defendant, however, this intervening cause must be either a superseding or a responsible cause. It is a superseding cause, whether intelligent or not, if it so entirely supersedes the operation of the defendant’s negligence that it alone, without his negligence contributing thereto in the slightest degree, produces the injury. It is a responsible one, if it is the culpable act of -a human being, who is legally responsible for such act. The defendant’s negligence is not deemed the proximate cause of the injury, when the connection is thus actually broken by a responsible intervening cause. But the connection is not actually broken, if the intervening event is one which might, in the natural and ordinary course of things, be -anticipated as n-ot entirely improbable, and the d-efendnt’s negligence is an essential link in the chain of causation. Of course, the very definition of a superseding cause implies that the defendant’s negligence can not be the cause of the injury.
“Section 33. The first alternative needs little comment. It is simply the cause of inevitable accident, which has already been considered, with only this difference, that such accident occurs after the defendant has been negligent, and when, perhaps, but for the intervention of that accident, he might have been liable. But it must be carefully noted that inevitable accident, in order to furnish a complete defense in such a ease, must be the sole cause of the injury, -and therefore that it is no- defense, if, but for the defendant’s negligence, the plaintiff w-ouild not have been ex-posed to injury from such accident; while if it contributed to any part of the resulting damage, it is only -a defense, in case that part of the damage can be accurately distinguished- from the rest.
‘ ‘ Section 34. The second alternative, of a responsible but not superseding cause, needs further statement. If the negligent acts of two or more persons, all being culpable and responsible in law for their acts, do not concur in point of time, and the negligence of one only exposes- the injured person to risk of injury in case 'the other should also be negligent, the liability of the person first in fault will depend upon the question whether the negligent .act of the -other was one which a man of ordinary experience and sagacity, acquainted with all the circumstances, could reasonably anticipate or not. If such a person could have anticipated that the intervening act of negligence might, in a natural and ordinary sequence, follow the original act of negligence, the person first in fault is not released from liability by reason of the intervening negligence of another. If it could not have been thus anticipated, then the intervening negligent person alone is responsible. ’ ’

This rule is adopted and approved in Pennsylvania Railway Co. v. Snyder, 55 O. S., 342, and was previously approved in many eases in this state.

Can it be said that the intervening event or cause in this case was not one which might in the natural and ordinary course of thipgs have been anticipated as entirely probable? Should not the bank have anticipated that this covering, which could so easily be displaced so as to make it absolutely dangerous, would be so displaced by the ordinary use of a walking-stick or umbrella, by a wholly irresponsible child or by a burglar seeking an entrance into the bank. —

Assuming that the covering was displaced by a responsible person maliciously, of which there was no proof, and certainly the burden was on the bank to show that to> be the fact (Clifford v. Dam et al, supra), yet we do not think the bank could claim anything from that fact, for as said by Shearman & Redfield in Section 34 -already referred to:

“If the negligent acts of two or more persons all being culpable and responsible in law for their acts, do not concur in point of time, and the negligence of one only exposes the injured person to risk of injury in ease the other should also be negligent, the liability of the person first in fault will depend upon the question whether the negligent act of the other was one which a man of ordinary experience and sagacity, acquainted with all the circumstances, could reasonably anticipate or not.”

Should not the bank have reasonably anticipated that some person might remove the covering either from curiosity or maliciously for the express purpose of causing injury or for the purpose of committing a burglary j we think it should have so anticipated.

This rule is fully illustrated in the cases referred to in Harriman v. Railway Company, 45 O. S., 11, where in the opinion it is said:

“And, indeed, since the leading ease of Lynch v. Nurdin, 1 Q. B., 29, there is an almost unbroken line of authorities to the effect that such intervening cause can not affect the liability of the negligent party.
“In Illidge v. Goodtuin, 5 C. & P., 192, the defendant’s horse and cart were left standing in the street, without any one attending them. A person came along 'and whipped the horse, which caused it to back the cart against the plaintiff’s window. It was urged that the man who whipped the horse, and not the defendant, was liable. It was also contended that the bad management of the plaintiff’s shop man had contributed to the injury. But Tindal, C. J., ruled that even if this were believed, it would not avail .as a defense.' ‘ If, ’ he says, 1 a man chooses to leave a cart standing on the street, he will take the risk of any mischief that may be done. ’.
‘ ‘ One who leaves a horse loose and unattended in a city street is responsible for injuries done by the horse running away, although that might not have happened but for the wrongful act of a stranger in frightening it, and though after the horse began to run, the owner did his best to stop it. So also the owner of any machine, or other thing capable in its nature of doing injury is liable for injury which ensues to a person, not himself careless, in consequence of the owner negligently leaving it exposed and unguarded in a public place, and its being there set in motion by a negligent person.” Shearman & Redfield on the Law of Negligence, Section 35, and eases cited in the notes.

What difference is there between leaving a horse unhitched in the street and leaving this covering in the middle of the sidewalk unanehored? None whatever.

In the opinion in Harriman v. Railway Company, it is said:

“In the latter case (Lane v. Atlantic Works) the defendant carelessly left a truck loaded with iron on a public street in Boston. The iron was so negligently placed on the truck that .it would easily fall off. The plaintiff, a boy seven years old, was walking along the street, when he was called by another boy twelve years old to come over and see him move the truck. The plaintiff went over and stood near the truck while the other boy was attempting to move it. In consequence of the motion thus given, the truck by the other boy, the iron rolled off and injured the plaintiff’s legs. Colt, J., in the opinion of the court, disposes of the question now under consideration -as follows: ‘ In- actions of this description the defendant is liable for the natural and probable consequence of his negligent act or omission. The injury must be the direct result of the misconduct charged. But it will not be considered too remote, if according to the usual experience of mankind the result ought to have been apprehended. The act of a third party intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrong-doer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise. ’ In that case it was held immaterial whether the act of the boy in moving the truck and thus1 causing the iron to fall upon the plaintiff, was mere negligence or voluntary wrong-doing. ’ ’

T. H. Gillmer and Charles M. Wilkins, for plaintiff in error.

E. B. Taylor and T. J. Gillmer, for defendant in error.

Judgment of common pleas court affirmed.


text:
    MUNICIPAL BONDS — LIMITATION OF BONDING POWER.
    [Circuit Court of Seneca County.]
    Wellington J. Griffith et al v. The City of Tiffin et al.
    Decided, April Term, 1905.

      Municipal Corporations — Statutes Construed Relating to Bonding Power — Limit of Bonding Capacity, How Ascertained — Exemption of Bonds to be Paid by Special Assessments.

      1. The bonding power of a municipal corporation under Sections 2835, 28356 and 2837, Revised Statutes of Ohio, is fixed at the extreme limit of eight per cent, of all the taxable property listed for taxation, in such corporations. This, however, does not include bonds to be paid by special assessments upon abutting property.-
    2. In determining whether a municipal corporation has reached or exceeded the limit of its bonding capacity, the statute contemplates the aggregate bonded indebtedness whether issued before or since said enactments, and if such'aggregate equals or exceeds the extreme eight per cent, limit above noted, then no further bonds may be issued until said aggregate has been reduced below said limit.
    Vollrath, J.; Norris, J., and Hurin, J., concur.
   The plaintiff in error filed Ms petition in the lower court setting forth twelve separate causes of action and seeking to restrain the payment of bonds of the city of Tiffin heretofore issued and to restrain the issuing of bonds known and designated as the Greenfield Street Paving Bonds — the latter being the subject of the twelfth cause of action.

The first eleven causes of action described and set forth successive bond issues of said city, indicating the purpose for which issued, as well as their respective amounts, and contain averments with reference to the manner of issuing the same tending to support the charge that said issues of bonds so described were illegally made. The aggregate sum' of the bonds so issued as described in these- eleven canses of action is $625,000. The amount of bonds sought to be issued as set forth in the twelfth cause of action and known as the Greenfield Street Paving Bonds is $13,000. It further appears from the petition and in the first eleven causes of action, as well as in said twelfth cause of action, that the total taxable value of all property listed for taxation in said city of Tiffin is $4,000,690 and no more.

The facts thus set forth indicate that the city of Tiffin has at present a total bonded indebtedness 'amounting to a fraction more than 15 per cent, of the taxable value of all property in said city listed for taxation.

A general demurrer was interposed by the city to this petition and this demurrer was sustained by the lower court. Error is prosecuted here to reverse this action of the common pleas court.

The demurrer in question was general in its terms.

After said demurrer was sustained- as aforesaid by the court of common pleas, upon application to the judges of this court at chambers, a temporary restraining -order was granted restraining the sale of the Greenfield Street Paving Bonds until the issues raised herein by the petition in error are finally determined,

The purposes for which municipal corporations may issue bonds are recited in Section 2835 of the Revised Statutes and include the object contemplated by the issue under consideration.

Said Section 2835 further provides that such bonds shall not exceed one per cent, of the total taxable property of the corporation in any one year unless authorized by an affirmative vote of at least two-thirds of all the members of council elected or appointed thereto, and then the aggregate amount of all such bonds hereafter issued under the authority of said act shall never exceed four per cent, of such taxable property — unless a greater amount be authorized by a vote of the electors of the corporation in accordance with the provisions of Section 2837, Revised Statutes.

Section 28356, as enacted April 25, 1904 (97. Ohio Laws, 520), qualifies the above as follows—

“Provided, further, that the limitations of one per cent, and four per cent, prescribed in Section 2835, Revised Statutes, shall not be construed as affecting bonds issued under authority of said Section 2835. upon the approval of the electors of the corporation; nor shall bonds which are to be paid for by assessments specially levied upon abutting property, be deemed as subject to the provisions of said section.”

Upon a comparison with the original Section 2835, this supplementary section seems to' do nothing more than eliminate the required two-thirds vote of the council in eases where an issue is actually authorized by a vote of the people, but it applies merely to 2835 and the limitations of one per cent, and four per cent, therein contained, and in no wise affects the provisions of Sections 2837.

Section 2837 as amended April 25, 1904 (97 Ohio Laws, 190), provides that the ‘¡aggregate issue of four per cent, bonds authorized in Section 2835, may be exceeded when authorized by the affirmative action of two-thirds of the council, supported by the affirmative vote of two-thirds of the voters voting at an election duly called for that purpose.

It will be noted that the excess over four per cent, requires a two-thirds vote of the electors voting at such, election, while for the lesser aggregate .authorized ;by Section 2835 a bare majority seems sufficient.

Section 2837 further provides as follow®—

“Provided, however, that no * * * municipal corporation shall hereafter create or assume .an aggregate indebtedness of outstanding and unpaid bonds under the authority of this act, in excess of eight per cent, of the total value of all property in such * * * municipal corporations as listed and assessed for taxation.”

The word “assume” 'a® used above is peculiar to Section 2837. It is not found in Section 2835. It is evidently inserted there for a purpose. What does it mean ? It can not mean to create a new debt, for it is used in the alternative with the word ‘ ‘ create ’ ’, to-wit, ‘ ‘ create or assume. ’ ’ It may not mean to adopt or take up the debt of some other person or corporation, for that does not come within the scope of the powers conferred upon municipalities by law. It must, therefore, if it means anything, have reference only to the indebtedness of the corporation itself existing prior to the enactment of the eight per cent, limitation.

The proviso at the close of said Section 2837, “that in cases where * * * council of any # * municipal corporation, has heretofore passed a resolution or ordinance declaring it necessary to issue and sell bonds, etc., for any of the purposes authorized by law, the provisions of this act limiting the aggregate amount of bonds to be issued, shall not be construed to apply to bonds provided for in such resolution or ordinance,” does not apply to the case at bar. That proviso seems to have reference to contemplated issues of bonds not yet issued at the date of said act, but provided for by resolutions prior to said enactment of April 25, 1904, .and seeks to prevent such contemplated issues from becoming illegal even though excessive in amount, and invites the suspicion that it11 was enacted to meet a special case. While, however, such previous contemplated issues do not become illegal by reason of their antagonism to existing law, yet there is nothing in the act, properly construed, to prevent their being included in a computation to determine whether a corporation has not reached, or exceeded, the extreme limit of its bonded power.

In view of the conclusions .above noted, we hold that the bonding .power of a municipal corporation in the state of Ohio is, by the above acts, fixed at the extreme limit of eight per cent, of all the taxable property listed for taxation in such corporation; that in .determining whether a municipal corporation has reached or exceeded the extreme limit of its bonding capacity as above noted, all issues of bonds made by such corporation, previous to said enactment, as well -as those subsequently made, and remaining unpaid, must be considered; in other words, the statute contemplates the aggregate bonded indebtedness of a municipal corporation whether issued before -or since said enactment, and if such aggregate bonded indebtedness equals the extreme eight per cent, limit above noted, then- no further bonds may be issued by said municipal corporation until said aggregate has been so far reduced as to place the contemplated issue within -the limit prescribed, and it is only proper to add that within said limitation all the requirements of the statutes must be strictly followed.

It is evident from the averments of the twelfth cause of action that the present aggregate bonded indebtedness of the city of Tiffin is far in excess of the extreme eight per cent, limit permitted by law; -that the contemplated issue of $13,000' of Greenfield Street Paving Bonds as therein set forth would be far in excess' of said extreme limit of eight per cent, above described and, upon the averments of the petition, the same would, therefore, be improper and illegal.

With reference to the first eleven causes of action described in the petition, it seems that the petitioner seeks therein to invalidate or declare void numerous issues of bonds of said city, together aggregating $625,000, and issued for various purposes.

It is not stated where the bonds are held, nor are the bondholders themselves made parties to the action. The purpose of the issue of these bonds is also faultily set forth. Upon the whole, therefore, we are of the opinion that so far as the first eleven causes of action are concerned, the averments are not sufficient to stand against a demurrer 'and, the action of the court below in sustaining said demurrer to said eleven- causes of action is, therefore, approved and affirmed.

With reference to the twelfth cause of action, however, in view of the premises above noted, we hold that the court of common pleas erred in sustaining said demurrer to said cause of action and said order of the court of common pleas sustaining said demurrer to said twelfth cause -of action is therefore reversed. . .

Judgment reversed accordingly at the costs of the defendant, the city of Tiffin. Judgment for costs, execution awarded, and cause remanded to the court of common pleas for execution and further proceedings.