author: Walters, J.

text:
    PROOF REQUIRED FROM A RAILWAY OF FOREIGN INCORPORATION SEEKING TO EXERCISE EMINENT DOMAIN.
    Court of Appeals for Pike County.
    Keziah D. Barger et al v. The Chesapeake & Ohio Northern Railway Company.
    Decided, May 31, 1917.

      Eminent Domain — ■Burden of Proving Authority to Exercise Bight of— 'Where Plaintiff Company is Incorporated Under the Laws of Another State — Necessity for Such Proof Not Abrogated by Section 8759.
    A railway company, incorporated under the laws of another state and seeking to exercise the right of eminent domain in this state, has at the preliminary hearing the burden of proving by a preponderance of the evidence—
    ' (1) Its incorporation in accordance with the laws of the state of its domicil.
    (2) That those whose names appear as stockholders are stockholders in good faith.
    (3) That it has organized a board of directors and said board has met and organized.
    (4) That it is a de jure corporation, vested with the power of eminent domain in the state of its creation.
    (5) That it is unable to agree with the owner of the land in question as to the compensation to be paid therefor.
    (6) That a necessity exists .for appropriation of the land for railway purposes, and that its board of directors has so declared.

      G. W. Rittenour, of Waverly, and C. E. Blanchard and Robert J. Odell, of Columbus, for plaintiffs in error.

      Henry Bannon, of Portsmouth, and Levi B. Moore, of Waverly, contra.
    Error to the Court of 'Common Pleas of Pike County, Ohio.
   Walters, J.

The railway company filed its petition in the Probate Court of Pike County, Ohio, to condemn certain lands of the defendants through, which it proposed to build its railroad. In its petition it alleged that it “is a corporation duly organized under the laws of the state of Kentucky,’’ and that “it is authorized as well by the laws of the state of Kentucky, and by its charter fully granted to it by the state of Ohio, as by the laws of the state of Ohio, to appropriate lands under the statutes of the state of Ohio.”

These allegations were denied by the defendants, and it was necessary for it to prove these facts by a preponderance of the evidence. The laws of a foreign state must be proven as , any other fact in the case. There is no evidence in this ease showing that it was authorized by the laws of the state of Kentucky, authorizing its incorporation and organization and that it has complied with these laws, and that the power of eminent domain has been conferred upon it by the laws of the state of Kentucky.

“The laws of another state, where they come in question in the courts of this state, must be pleaded and proven as matters of fact.” Williams v. Finley, 40 O. S., 342.

No attempt was made to prove these laws, and this was error. The ¡burden of proof is upon the railway company to prove that it has a cle jure organization, and that its stockholders and directors are tona fide stockholders and directors in their own right.

In Powers v. Hazelton & L. Ry. Co., 33 O. S., 429, the court held:

“It is essential to the exercise of the right of eminent domain for the company to prove that it has fully organized by the election of directors, and that they are unable to agree with the owner of the property upon the compensation to be paid therefor.”

In this case, at page 432, the court says:

“The condemnation of land for the construction of the road comes within the powers to be exercised by the corporation through its directors. It was therefore incumbent on the company to show, in addition to the fact of its incorporation, that it had brought itself into a condition to exercise its powers for the construction of the road, by a full organization in the election of directors.”

In Telephone Co. v. Cincinnati, 73 O. S., 64, at page 77, the court said:

“In Powers v. Ry. Co., 33 O. S., 429, it is held that it is essential to a judgment of condemnation in an appropriation proceeding that the company should prove its corporate existence, and among other things show that it has fully organized by the election of directors.
“Proof of the existence of the corporation and of its right to make the appropriation is also now required by Section 6420, Revised Statutes, and the determination by the court of those questions favorable to the company is made jurisdictional.”

It is contended that the filing of articles of incorporation was conclusive evidence of the existence and incorporation of the corporation, but the court,, at page 360 of the case last cited, following 49 O. S., 440, holds that: •

‘ ‘ The making and filing for the purpose of profit of articles of incorporation in the office of the Secretary of State do not make an incorporated company; such articles are simply authority to do so.”

In 2 N.P.(N.S.), 349, the court says:

“The organizing of "a corporation is the election of officers by the stockholders. All lawyers .use the word ‘organizing’ in this sense. * * * To obtain a ‘charter and to certify that ten per cent, of the stock is subscribed are only the first steps towards forming a corporation. At such a state of its existence a corporation can not be said to be organized, and .the term is not so used in the .reports. ”

This decision was affirmed by both the circuit and Supreme Courts, 5 C.C.(N.S.), 411, and 73 O. S., 641.

In American Ball Bearing Co. v. Adams, 222 Fed. Rep., 967, Mr. Justice Clarke delivering the opinion of the court held:

“Whether or not an organization is a valid corporation is to be determined by. the statutes and decisions of the state where it is organized.”

In State v. Insurance Co., 49 O. S., 440, it is said:

"The making and filing of articles of incorporation in the office of the Secretary of State do not make an incorporated company; such articles are simply authority to do so. No company exists within the meaning of the statute until the requisite stoclt has been subscribed and paid in, and the directors chosen.”

In the case at bar it was necessary for the railway company to prove by the statutes and decisions of the state where it was organized that it is organized as a valid corporation. All these preliminary steps must be strictly pursued and proven.

Cemetery Assn. v. Traction Co., 93 O. S., 161, syllabus 1, 2 and 3:

"1. The right of eminent domain belongs to the sovereign power, and statutes delegating authority to exercise it must be strictly construed. When it is sought to take the property of an individual under statutes granting such authority to corporations, subject to conditions specifically set forth, the protection of the constitutional guaranty of the right of private property requires that the powers granted by the Legislature be strictly pursued and all of the prescribed conditions be performed.
"2., In a proceeding by a railroad company to appropriate land for its use, it is incumbent on the company to prove its incorporation according to law, including the due and legal election of directors, its right to make the appropriation, its inability to agree with the owners and the necessity for the appropriation. By the provisions of Section 11046, General Code, the determination by the court of those questions favorably to the company is made jurisdictional.
"3. The statutory requirements provided by Section 8632 et seq., General Code, for the creation of a corporation are mandatory and must be complied with before the corporation can be in existence.”

Certain extracts from a book referred to as the "Plaintiff’s Corporate Minute Book” were offered in evidence. The book was not identified by any witness who made it, or who was the official secretary, or who had official possession of it. The extracts were incompetent evidence.

105-106 O. L., p. 347: This section, as amended, does not excuse the company from showing that it is a foreign corporation or from showing the preliminary steps which shall be taken.

The fact that a demand was made to produce certain books and papers containing evidence relating to the merits of the action and defense does not estop the Bergers from objecting to their introduction The object of the production of books and papers is that the party demanding them may have an opportunity of inspecting them.

The Bargers are not estopped by having given an option on the land because they never received any benefit thereunder .and the said contract was abrogated before any benefits were received by them, and therefore no injury was done the railway company.

The railway company must prove by a preponderance of the evidence, in order to acquire jurisdiction to exercise the right of eminent domain, before the probate court on the preliminary hearing:

1st. That it was duly incorporated under the laws of the state where such incorporation was had when the hearing is had in a state other than that of its incorporation, and it must be proven as any other fact in the case.

2d. It must prove that its stockholders are real stockholders in good faith.

3d. That it has organized a board of directors, and that said board has organized.

4th. That it is a de jure corporation.

5th. That it has attempted to agree with the owner of the land as to the compensation and damages, and has failed to do so.

6th. That it was necessary to appropriate the land for the uses and for railroad purposes.

7th. That the road’s directory has declared that it is necessary for the purposes of the road.

8th. That the power of eminent domain has been conferred upon it by the Kentucky laws.

For the errors indicated the judgment of the court below is* reversed, and the cause remanded to the probate court for further proceedings according to this opinion and according to law.

Allread, J. (of the second district, sitting in place of Middleton, J.), and Sayre, J., concur.


source: Caselaw Access Project

author: Houck, J.

license: Public Domain

text:
    BENEFITS AWARDED TO A DESERTED WIFE IN ITALY.
    Court of Appeals for Delaware County.
    Maria Placide Bellomo Musselli v. The Industrial Commission of Ohio.
    Decided, July 5, 1917.

      Workmen’s Compensation — Legal Wife Not Barred from Benefits Under the Ohio Aet — By a Bigamous Marriage by the Deceased Husband— Humane Purpose of the Compensation Act.

    The fact that one killed in the course of his employment had contracted a higamous marriage does not har his legal wife living in Italy from receiving benefits under the Ohio workmen’s compensation act, where there is no evidence that she had heen other than a faithful wife.

      Paxton, Warrington & Seasongood, for plaintiff in error.

      E. C. Turner and D. M. Cupp, contra.
   Houck, J.

Error to the Court of Common Pleas of Delaware County.

The error complained of in this case is to the sustaining of a general demurrer to the petition of the plaintiff below, the plaintiff in error here. The following are the material allegations of the petition:

Plaintiff is the lawful widow of one. Raphael Musselli, who on or about the first day of December, 1913, received an injury, while in the course of employment with the Delaware Blue Limestone quarry, and from such injury died; that the wages earned by the decedent at the time of the injury were three dollars per day, and that .application was made by the plaintiff for compensation to the Industrial Commission of Ohio; that plaintiff’s application for compensation was disallowed by the said commission for the reason that the plaintiff herein was not a dependent of the deceased at the time of the injury causing his death; that the decedent came to the United States of America about the year 1901, leaving plaintiff and a child in Italy; that after the decedent’s arrival in America correspondence was continued with the plaintiff from time to time, and that the decedent sent plaintiff money at various times; that two attempts were made by the decedent and plaintiff to have plaintiff come to the United States of America, but said plaintiff was refused the right of immigration, the last attempt being made in 1908.

The petition further alleges that the last money received by plaintiff from her husband was in January, 1909; that shortly after this time Raphael Musselli married a woman in the state of West Virginia, with whom he lived for about one year and a half, after which time he left the woman he had married in West Virginia and came to' Piqua, Ohio, later locating in Delaware, Ohio; that the decedent often spoke affectionately of his family in Italy, and that he had given some money to a friend, which was placed in a letter, addressed to plaintiff, and mailed in New York city, and the reason given for this peculiar action is that the decedent did not desire to have it known where he was located; that the decedent while in this country had never made application to become a citizen of the United States, and that he always expected and looked forward to returning to the kingdom of Italy; that plaintiff is extremely poor, and that since the death of the decedent she has not remarried, and that she is dependent for her livelihood upon labor in the fields, when such employment can be obtained.

The petition further alleges that the plaintiff is the lawful wife of the decedent, and dependent upon him within the meaning of the workmen’s compensation law, and asks the court to determine her rights under said law, and for the compensation (to which she is entitled under the provisions of said law.

The rights of the parties hereto must be determined from the proper construction to be placed upon Section 35 of the workmen’s compensation .act of 1913, as found in volume 103, Ohio Laws, page 72, being the law in force at the time the alleged cause of action arose. The statute reads as follows:

“In case the injury causes death within the period of two years, the benefits shall be in the amounts and to the persons following:
“1. If there be no dependents, the disbursements from the state insurance fund shall be limited to the expenses provided for in section forty-two hereof.
“2. If there are wholly dependent persons at the time of the death, the payment shall be sixty-six and two-thirds per cent, of the average weekly wages, and to continue for the remainder of the period between the date of the death, and six years after the date of injury, and not to amount to more than a maximum of thirty-seven hundred and fifty dollars, nor less than a minimum of one thousand five hundred dollars.
“3. If there are partly dependent persons at the time of the death, the payment shall be sixty-six and two-thirds per cent, of the .average weekly wages, and to continue for all of such portion of the period of six years after the date of the injury, as the board in each case may determine, and not to amount to more than a maximum of thirty-seven hundred and fifty dollars.
“4. The following persons shall be presumed to be wholly dependent for support upon a deceased employee:
“(A) A wife upon a husband with whom she lives at the time of his death.
“(B) A child or children under the age of sixteen years (or over said .age if physically or mentally incapacitated from earning) upon the parent with whom he is living at the time of the death of such parent.
“In all other eases questions of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in the death of such employee; but no person shall be considered as dependent unless a member of the family of the deceased employee, or bears to him the relation of husband or widow, lineal descendant, ancestor, or brother or sister. The word ‘child’ as used in this act, shall include a posthumous child, and a child legally adopted prior to the injury.’’

It is contended by counsel who filed the demurrer that under the allegations of the petition and a proper construction of the word ‘ ‘ dependent, ’ ’ .as found in the statute under consideration, that the plaintiff is not entitled to compensation, because at the time of the injury and death of the decedent, who was the husband of plaintiff, they were not living together, actually or constructively, and that the husband must have contributed to the support of his wife at or near the time of his death in order in law to make plaintiff a dependent and entitled to participate beneficially under the workmen’s compensation act.

Let us first inquire what is meant by “dependent,” as the word is used in this statute. The commonly accepted meaning of the word is, one who looks to another for support, help or favor.

The crux of the case seems to center in the word ‘ ‘ dependent, ’ ’ as used in the statute heretofore referred to. A wife is a natural dependent — a fact that is universally conceded — and the dependency of the wife on the husband is continuous while the marital relation exists, unless by some act of herself or by operation of law such dependency ceases.

Then let us inquire as to whether or not the claim of defendant’s counsel is sound, that because the wife was several thousand miles away from her husband she is not entitled to benefits under the statute, although she had made two attempts to cross the Atlantic ocean, leaving her home in Italy to come to America and join her husband but for some reason not being permitted to do so, and although her husband had sent her money from time to time and .as a matter of fact and in law was his wife at the time of his death. In the face of these facts we can not agree with the claim of counsel for defendant.

Learned counsel for defendant in their brief say:

“In March, 1912, after living with wife number two in the state of "West Virginia for about three years and three months Musselli left her and came to the state of Ohio. He had contributed nothing to the. support of his wife and child in Italy since the month of January, 1909, and nothing toward the support of his West Virginia wife and child since March, 1912.
The question involved in this case, and the question which was submitted before the Industrial Commission of Ohio, is whether or not the wife and child residing in the kingdom of Italy, at the time of the death of Raphael Musselli, the husband and father, are dependents of said decedent under the Ohio Workmen’s Compensation Law, and whether they were dependent upon said decedent for their support at the time of the injury which caused his death.
# & # # #
- “The facts in this ease clearly indicate that there was neither a voluntary or mutual agreement to live separate and apart, but that there was an abandonment of the marital relations, both legal and moral, by the husband of this plaintiff, and that there existed no reasonable expectations that the relation of husband and wife would ever be resumed, and that under no circumstances under the facts in this case could the plaintiff and the decedent be considered to be either actually or constructively living together. We think that the fact that the decedent had. contracted a bigamous marriage is conclusive proof of abandonment of the wife and child living in Italy.”

We are unable to subscribe to this doctrine, and do not believe it to be sound from a legal standpoint, and most certainly has no foundation upon which to stand from a moral point of view.

It must be conceded that the provisions of the law under review are wise and humane, and were enacted for the purpose of furnishing the means of support for the widows, children and dependents of employees who might lose their lives while engaged in some labor or work in an endeavor to obtain the means of support for those near and dear to them. This law is for the benefit of the dependents of employees, and in view of this fact how can it be claimed with any force that the surviving widow in the present case should be barred of her rights under thé law because her husband contracted a bigamous marriage, or because for a period of time he failed and neglected to send her money ? What act has she done or failed to do that should prevent her from receiving the benefits of this law ? Are the wrongful, unkind, unfaithful acts and misconduct on the part of her husband to be charged against the dutiful wife and mother, thereby preventing her from reaping the benefits of the statute that was specially enacted to take care of just such unfortunate persons? Certainly not.

We find no allegation in the petition that could be construed as an admission on the part of the plaintiff that she knew of any misconduct of her husband.

Courts have no function of legislation, but simply seek to ascertain the will of the Legislature in its enactment of a law ,and to give the language used that plain meaning which the words and sentences upon their face imply.

If we are to determine the intent of the Legislature in its enactment of the workmen’s compensation act by the rulé herein laid down, and applying the law as thus interpreted to ascertain whether or not the petition in this case is sufficient in law, we must and do say that it is.

Having so found, the judgment of the common pleas court is reversed, and this cause is remanded to that court with instructions to overrule the demurrer to the petition.

Judgment reversed.

Powell, J,. and Shields, J., concur.


author: By the Court.

text:
    BINDING CHARACTER. OF FRANCHISE PROVISIONS.
    Court of Appeals for Franklin County.
    City of Columbus v. The Ohio State Telephone Co.
    Decided, July 2, 1917.

      Telephone Company — Bound by Provisions as to Rates Contained in Its Franchise Ordinance — Use of Streets a Sufficient Consideration— Public Utilities Commission Without Power to Change Rates so Fixed — Unforeseen Costs and Unprofitable Operation Rot Ground for Disregard of Rate Provisions — Section 614-2, et seq.

    1. The use of the streets of a municipality by a telephone company, including the use of the subsurface for a conduit system, constitutes a sufficient consideration to render binding a provision in the franchise ordinance which fixes telephone rates within the corporate limits, and such a provision -is enforcible both on behalf of the city and of private consumers located within its limits.
    2. The public utilities act has no application to the provision of a franchise ordinance which fixes rates for a definite period.
    3. Where the conduit system has been extended under orders from an authorized officer of the municipality, the company may equitably increase its rates within the limits permitted by the franchise ordinance in the event of conduit extensions.
    4. A company which has accepted a franchise, including a provision as to rates, will not be permitted to retain the favorable provisions and at the same time eliminate one which unanticipated cost and unprofitable operation has rendered burdensome.

      H. L. Scarlett, City Solicitor, and John R. King, Assistant, for plaintiff.

      Daugherty, Todd & Rarey and George H. Jones, contra.
   By the Court.

(Kunkle, Allread and Ferneding, JJ., concurring.)

The city of Columbus brought this action .against the Ohio State Telephone Company to enjoin the telephone company from putting into effect a proposed increase of its annual charge upon business phones from $40 to $54 per annum, less .a discount of $3 for payment in advance.

The petition alleges that the telephone company is operating under a franchise, ordinance and contract dated and taking effect in the year 1899 and continuing for a definite period of twenty-five years. The ordinance provides for the construction and maintenance of at least five miles of conduits and such extension of the conduit system as might be required by the city after five years from the completion of the exchange.

Under the ordinance and contract, the original telephone company, to whose rights the defendant succeeds, agreed that its charge for business phones should not exceed $42 per ¡annum, but provided that if the city at any time after five years from the installation of the exchange required the company to place additional wires underground that the charges for rentals above set forth might be equitably increased, but not exceeding one dollar per month per phone in excess of the charges above stipulated.

The petition alleges that the defendant entered upon and constructed its plant in the streets, alleys and avenues of the city and has constructed and now maintains more than twelve and one-half miles of underground conduits and that the city at no time required or demanded that the telephone company lay additional conduits over and above the five miles originally provided for in the ordinance. The city, therefore, contends 'that the telephone company has no authority to increase its telephone charges upon business phones .above the $42 per annum provided for in the ordinance.

An answer was filed in which the defendant, among other things, admits the terms and provisions of the ordinance and that it is operating under said ordinance. It admits that it has constructed approximately ten miles of additional conduits, which it is now maintaining as a part of its telephone system and that it proposes to raise the schedule of rates on -business phones to the sum of $54 per annum, less a discount of $3 for payment in advance and denies each and every other allegation.

The defendant sets out four additional defenses.

By the first defense it is claimed that the city of Columbus had no legal right to fix the telephone rates to subscribers and that such provision in the ordinance and contract were without consideration.

The second defense alleges, in substance, that the only authority to fix telephone rates is vested in the Public Utilities Commission, under Section 614-2 et seq. of the General Code; that the telephone company on the first day of January, 1917, filed this proposed schedule of rates with the Public Utilities Commission to become effective February 1, 1917, and that no objections, protest or complaint having been filed with the Public Utilities Commission to said rates, the same are now the only lawful rates which the defendant is authorized or permitted to charge.

The third defense alleges, in substance, that the city through its duly authorized officers and agents subsequent to the passage of the franchise ordinance, from time to time, notified this defendant to remove its poles and fixtures from certain streets, alleys and public ways and to place the same in conduits beneath the surface of said streets and that in obedience to said orders and notices, the defendant from time to time constructed more than ten trench miles of conduits in addition to the five miles originally provided for in the ordinance and has leased approximately three trench miles of conduits, in all of which it has placed and maintained its telephone wires in the operation of its plant. The defendant, therefore, claims thé right to increase the charges upon business phones up to the maximum of-$54 per annum, as provided in the ordinance.

The fourth defense, in substance, avers that the telephone plant in the city of Columbus has increased in cost and expense far beyond what was contemplated by the parties at the time the franchise ordinance and contract become effective, making the operation of the plant under the franchise rates unprofitable and causing a loss to the company of substantially $60,000 per annum and that by reason of such unanticipated situation, the telephone company is entitled to have the ordinance rates disregarded and equitable rates established in view of existing conditions.

The plaintiff demurred separately to the defense marked one, two, three and four of the answer and also to all of the answer, for the reason that the facts stated therein do not separately or jointly constitute a defense.

The demurrer was presented in the court of common pleas. The court of common pleas, in searching the record, found that the petition was defective and sustained the demurrer to the petition and dismissed the action. From this final judgment appeal was taken to this court.

The ease is submitted here upon the demurrer to the answer and also upon a motion for a temporary injunction.

In support of the claim that the petition is insufficient to constitute a cause of action, it is claimed that the council of the city of Columbus had no authority to fix the rates and that the acceptance of such franchise including the rates was not binding as a contract because there was no consideration.

It must be observed that as a controlling feature, the city of Columbus by the franchise ordinance in controversy granted not only the right to maintain an overhead -telephone system but to maintain conduits in the streets, alleys and public places.

The latter feature, we think, constitutes such a grant as would afford a consideration for the fixing of rates in the franchise ordinance.

In the case of Zanesville v. The Gas Light Company, 47 O. S., page 1, it was held that the fixing of rates by a gas company in the franchise ordinance was valid. That a right to the use of the streets furnished a valid consideration for the agreement of the company fixing prices at which a commodity was- to be furnished to the city and to its inhabitants.

This doctrine was followed in the case of City v. Gas Company, 76 O. S., page 309, and was extended so as to include a stipulated sum to be paid to the city as. compensation for the use of the streets.

In the recent case of Telephone Company v. City of Columbus, 88 O. S., 466, the principle of the gas company case was extended to the case of a telephone company which obtained in the franchise the right to the use of the streets for conduit purposes.

The case of Farmer v. Telephone Company, 72 O. S., 526, is limited to the case of a telephone company which obtains its franchise to operate merely an overhead telephone system and does not apply to the case of a telephone company obtaining the use of the streets and alleys for a conduit system.

The right of a municipality to require a telephone or other public utilities company to fix rates in consideration of a franchise to use the streets, especially the sub-surface, is amply sustained by the weight of authority in other jurisdictions. Dillon Municipal Corporations (5th Ed.), page 1952; Pond on Public Utilities, Section 431; McQuillan on Municipal Corporations, Section 1741, and cases cited.

We are therefore of the opinion that under the facts stated in the petition the provisions of the franchise ordinance fixing the telephone rates is valid and may be enforced by the city in its own behalf and in the behalf of the consumers located within its corporate limits.

We therefore proceed to consider the sufficiency of the defenses numbered one, two, three and four of the answer.

Defense number one challenges the consideration of a franchise provision fixing rates upon the ground that there is no consideration. This proposition has already been discussed. That defense, in our opinion, is insufficient.

Defense number two relates to the filing of the rates with the Public Utilities Commission. Upon consideration of this defense, we have reached the conclusion that the Public Utilities Act does not apply to the ordinance under consideration, for the reason that this ordinance grants a franchise fixing the rates for a definite period. See Section 614-19, G. C.; Village of Lexington v. Ohio Fuel Supply Co., 24 C.C.(N.S.), 537; Taylor v. Hiles, Receiver, 21 C.C.(N.S.), 391.

We think this is also in harmony with the opinion of the Supreme Court in the case of City of Cincinnati v. Public Utilities Commission, decided May 15, 1917.

We think the third defense alleging the extension of the conduit system under notices ,and orders from the superintendent of fire and police telegraph of the city of Columbus constitutes a good defense and, if true, would authorize the company to increase its rates equitably above the $42 per annum provided in the franchise ordinance and not exceeding $12 per year.

We think the fourth defense in relation to the unanticipated cost and extension of the service is not a good defense.

The company accepted the ordinance and its right to maintain this system including conduits, is based thereon. Whether the company might under the situation set forth in this defense surrender its entire franchise we are not called upon to consider, ■but having accepted the franchise including the provision as to the rates, we think that they are not now justified in disregarding the provision as to rates and retain the favorable provisions of the ordinance.

We are therefore of the opinion that the demurrer should be sustained to so much of the answer as is embraced under numbers one, two and four and overruled as to so much of the answer as is embraced under number three.

In respect to the motion for a temporary injunction, we have considered the affidavits filed by the city in connection with those filed by the defendant in the court below. We have reached the conclusion that the question as to whether all or a part of the extension of the conduit system over and above the five miles provided for in the ordinance was made by notice or request of the city is considerably involved, and we do not deem it advisable to pass upon this question of fact upon these affidavits, but feel that as matter of public convenience no interference should be made -by a temporary injunction at this time, but the case should be put at issue and finally tried and determined.

The motion for a temporary injunction is therefore overruled and the demurrer to the first, second and fourth defenses of the answer sustained and as to the third defense overruled.


author: Hamilton, J.

text:
    VALIDITY OF AN ALLOWANCE OF ALIMONY.
    Court of Appeals for Hamilton County.
    Virginia Lape v. Elmer Lape.
    Decided, January 28, 1918.

      Divorce and Alimony — Allowance to Wife — Not a Charge on Future Earnings of the Husband — Modification of Allowance — Presumption as to Regularity of Proceedings.

    1. An allowance of alimony to a wife can not be based on future personal earnings or wages of the husband, and where the allowance is made in connection with a decree for divorce to the wife on account of the aggression of her husband, it must be based on property owned by him at the time the decree is granted.
    2. But on application for a modification of an allowance of alimony payable in weekly installments, it will be presumed, in the absence of a showing to the contrary, that the court proceeded in accordance with law and found the husband to be possessed of property out of which the allowance could be legally decreed.
    3. Section 11991, General Code, authorizes a decree of alimony in weekly payments of specified sums.

      Bolsinger, Kuhn & Bolsinger, for plaintiff in error.

      Owen N. Kinney, contra.
   Hamilton, J.

On September 23, 1913, plaintiff in error was granted a divorce from defendant in error, together with permanent alimony in the sum of six dollars per week, by the Insolvency Court of Hamilton County, Ohio.

On June 9, 1916, defendant in error, defendant below, filed a motion in that court to modify the alimony decree, and upon the hearing of said motion the court sustained the same and modified the decree by terminating the alimony.

The plaintiff, plaintiff in error here, prosecutes error to this court.

The only question urged by counsel for defendant in error is: Can the trial court, upon the granting of a divorce, decree alimony by way of payment of a specified sum per week? It is not claimed that the decree should be modified on account of any changed conditions justifying same.

In the instant case a divorce was granted Virginia Lape with a decree for alimony as follows:

! The plaintiff is hereby allowed as reasonable permanent alimony the sum of six ($6) dollars per week beginning September 13, 1913, and payable on each Saturday thereafter.”

It will be noted that the decree did not provide that the payments should be made “Until the further.order of the court,” and it is therefore not subject to modification, if legally authorized under the statute, unless changed conditions on the part of either or both of the parties were shown to exist justifying such modification.

The law is well settled that jurisdiction to decree alimony is such, and such only, as is given by statute. This is true whether the action is one for divorce and alimony, or for alimony only. The power in the court to decree-alimony where a divorce is granted the wife for aggression of the husband, is provided for by Section 11990, General Code, which is as follows:

“When a divorce is granted because of the husband’s aggression, by force of the judgment the wife shall be restored to all her lands, tenements and hereditaments, not previously disposed of, and the husband barred of all right of dower therein. If she so desires the court shall restore to her any name she had before such marriage, and allow such alimony out of her husband’s property as it deems reasonable, having due regard to property which came to him by marriage and the value of his real and personal estate at the time of the divorce. ’ ’

The method of payment of “such alimony” is provided for by Section 11991, General Code, as follows: '

“Such alimony may be allowed in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or installments as the court deems equitable. If the wife survives her husband, she also shall be entitled to her right of dower in real estate not allowed to her as alimony, of which she was seized during the coverture, .and in which she has not reliquished her right of dower.”

It will be seen from a plain reading of Section 11990', that where a divorce is granted the wife on .account of the aggression of the husband alimony can be allowed only out of her husband’s property owned by him at the time of the granting of the divorce, and can not be based upon future personal earnings or future wages. Future personal earnings or future wages can not be considered as property, as was held in In re Home Discount Co., 147 Fed., 538-548. The fourth paragraph of the syllabus in this case contains the following language:

“A bankrupt’s right to earn wages in the future and dispose of the fruits of his labor is not ‘Property’ as that term is used in Bankr. act, July 1, 1898, Chapt. 541, paragraph 70, 30 Stat., 565, vesting all the bankrupt’s property not exempt in his trustee,” etc.

Bouvier’s Law Dictionary defines “property” ,as “The right and interest which a man has in lands and chattels fo the exclusion of others.”

Also, the same authority gives:

“Property is said to be real and personal property.”

It is therefore plain that by no stretch of the imagination, nor by any strained construction of the term “property,” could it be claimed that future personal earnings or future wages come wdthin the meaning of the term “property” as used in the statute.

It is urged that the case of Frickel v. Granger, 83 O. S., 101, supports the proposition that it is within the jurisdiction of the court to base a decree for alimony on future personal earnings and future wages. We do not so construe that case. The first paragraph of the syllabus is as follows:

“Alimony is not due and payable as debt, damages or penalty; but is an award by the court upon consideration of equity and public policy and is founded upon the obligation, which grows out of the marriage relation, that the husband must support his wife, which obligation continues after legal separation without her fault.”

This proposition is entirely reconcilable with the view that a decree for alimony must be based on property owned by the husband at the time of the granting of the divorce.

The court decided what alimony was, and why it was provided, and finds that under the marriage relation there remains .an obligation on the part of the husband after the dissolution of the marriage contract, which obligation is to the effect that the wife after divorce should not be turned out into the world penniless while the husband retained all of their joint accumulation, but that the obligation continued after legal separation, to the extent that the court could by a decree by w.ay of alimony permit the wife to take away with her such part of her husband’s property as the court might deem equitable and proper.

It follows that a decree for alimony to the wife, where a divorce is granted because of the aggression of the husband, must be based on property owned by the husband at the time of the granting of the divorce; and that a decree for alimony based on future personal earnings or future wages is not authorized under the statute.

We are of the opinion that, having granted to the wife a divorce on account of the aggression of the husband, and finding the husband to have property out of which alimony may be decreed, the court under Section 11991, General Code, has jurisdiction to order such alimony paid in weekly payments or other installments as it may deem proper. We hold that decreeing a specified sum to be paid each week is decreeing a sum of money within the meaning of the statutes. In such eases, the jurisdiction of the court is continuing and ambulatory in its nature, and a decree for weekly payments of a specified sum is as effectual as if a new decree for such specified sum was entered separately each week upon a weekly .application during the continuance of the decree.

In the instant case the trial court at the time of granting the divorce had power to decree alimony by way of payment of a specified sum each week, provided the court found the husband to be possessed of property out of which the sum was .allowed. The record discloses that at the hearing of the application to modify the decree, it was admitted that at the time of the original hearing of the case the husband was possessed of both real and personal property, but the record does not disclose what facts with reference to this property were shown to the trial court, and in the' absence of anything in the record to show the contrary it will be presumed that the court proceeded according to law and found the husband to be possessed of property out of which alimony could be legally decreed.

The judgment modifying the decree and discontinuing the alimony will be reversed and held for naught.

Jones, P. J., .and Gorman, J., concur.


author: Kunkle, J.

text:
    DISTRIBUTION OF STATE DEPOSIT DIRECT TO OHIO POLICY HOLDERS
    Court of Appeals for Franklin County.
    Edward C. Turner, Attorney-General of Ohio, on Behalf of Frank Taggart, Superintendent of Insurance of Ohio, v. The Union Casualty Insurance Company of Philadelphia.
    Decided, November 30, 1917.

      Insurance — Procedure Where a Foreign Insurance Company Has Become Insolvent — State Deposit Distributed Directly to Ohio Policy Holders — Status of Claims Not Filed Within the Time Fixed— Recommendations of Administrative Officials as to Statutory Amendments Not Conclusive in Determining Legislative Intention — Section 641.
    1. The deposit made by a foreign insurance company with the state superintendent of insurance as a prerequisite to doing business in Ohio should be administered, in the event of the insolvency of the insurance company, by said superintendent of insurance under the direction of the Ohio court to Ohio policy holders directly, instead of being turned over to the legal representatives of the insurance company in the state of its domicile.
    2. The statutory provision, fixing a time within which claims may be filed in such a case, is not a statute of limitations, but merely fixes a time when the court may proceed with their consideration and distribution of the fund; and it is within the discretion of the court in a .proper case to open up a default and permit a tardy claimant to file his claim for consideration on its merits.
    3. Recommendations made by state administrative officials as to statutory amendments proposed to the Legislature are ,not con- ' elusive in determining the legislative intention in the adoption of such amendments.

      Vorys, Safer, Seymour & Pease, for appellants.

      White, Johnson, Cannon & Neff, W. L. Parmenter, Gordon, Morrill & Ginter, Morton, Irvine, Turner & Blanchard, Halfhill, Quail & Kirk, Aaron A. Ferris and L. H. Shipman, contra.
   Kunkle, J.

The Attorney-General of the state of Ohio brings this action under Section 641, General Code, for the purpose of determining the rights of the policy holders of the Union Casualty Insurance Company of Philadelphia in and to a certain deposit of $50,000 made by said company with the superintendent of insurance of the state of Ohio, as required by Section 9510, General Code.

It is conceded that the said insurance company is insolvent, and the controversy arises between the receiver appointed in the state of Pennsylvania, the domicile of said company, and also a certain policy holder of Pennsylvania, upon the one hand, and upon the other hand by various policy holders of said insurance ■company, residents of the state of 'Ohio, who claim the said fund •by virtue of contracts made within the state of Ohio.

We have carefully considered the very helpful briefs which have been filed by counsel. We shall not undertake to discuss in detail the authorities and statutes cited therein, but will merely announce the conclusion at which we have arrived, (after an examination of such authorities.and statutes.

In brief, the questions which are presented for determination are:

(1) . Has the insurance commissioner of Pennsylvania, acting as receiver of said company in the state of its domicile, any right to the fund in question ?

(2) . Should the funds realized from said deposit of $50,000 be applied primarily to the payment of the liability in favor of the Ohio policy holders, or should it be applied to the payment of the liability of all policy holders, irrespective of where they may reside?

The deposit in question w,as required by Section 9510, General Code, and the provisions of said section, in so far as they ,are pertinent to the questions in issue, are as follows:

“A company may be organized or admitted under this chapter to * * * guarantee the performance of contracts other than insurance policies, and execute and guarantee bonds and undertakings required or permitted in all actions or proceedings, or ■by law allowed; make insurance to indemnify employers against loss or damage for personal injury or death resulting from accidents to employees or persons other than employees and to indemnify persons ¡and corporations other than employers against loss or damage for personal injury or death resulting from accidents to other persons or corporations. But a company of another state, territory, district or county admitted to transact the business of indemnifying employers and others, in addition to any other deposit required by other laws of this state, shall deposit with the superintendent of insurance for the benefit and security of all its policy holders, fifty thousand dollars in bonds of the United States or of the state of Ohio, or of a county, township, city or other municipality in this state, which shall not be received by the superintendent at a rate above their par value. The securities so deposited may be exchanged from time to time for other securities. So long as'such company continues solvent and complies with the laws of this state it shall be permitted by the superintendent to collect the interest on such deposits.”

Sections 641, 642 and 643, General Code, define the procedure which shall be had in ease of the insolvency of the company making the deposit. These sections are as follows:

“Section 641. If any company, corporation, or association required by law to make a deposit with the superintendent of insurance, or other state officer, to secure the contracts of such company, corporation Or association, or for any other purpose, fails to pay any of its liabilities upon such contracts, or other obligations, according to the terms thereof after the liability thereon has been determined, or if such company, corporation, or association, having ceased to do business within this state, leaves unpaid any such liability or has become insolvent, the attorney-general of the state, on behalf of the superintendent of insurance, or such other officer, and upon the application of any person entitled to participate in such deposit, or the proceeds arising therefrom, shall commence a civil action in the Court of Common Pleas of Franklin County, making the company,' corporation, or association, a party defendant, to determine the rights of all parties claiming any interest in such deposit, to subject the deposit to the payment or satisfaction of .all liabilities and to distribute such fund among'the persons entitled thereto.
‘ ‘ Section 642. Upon the filing of the petition in such case, the superintendent of insurance, or other officer, shall cause to be published for six consecutive weeks in three papers of general circulation within the state, one of which shall be published at the seat of government, a notice containing a succinct statement of the object .and prayer of the petition in such action, and the time within which persons claiming to have an interest in such fund shall be required to answer.
"Section 643. The clerk of such court shall forward a copy of such notice to the last known address of such company, corporation or association. The code of civil procedure shall govern such proceedings in so far as it is applicable, .and upon the hearing of the cause, such order, judgment or decree shall be entered by the court as is deemed just and equitable.”

Section 656, General Code, reads as follows:

"Section 656. When any insurance company or corporation other than life, which has made a deposit with the superintendent of insurance, intends to discontinue its business in this state, the superintendent, upon application of such company or corporation, shall give notice at its expense of such intention at least once a week for six weeks in three newspapers of general circulation in the state. After such publication, the superintendent shall deliver to such company or association its securities held by him, if he is satisfied by the affidavits of the principal officers of the company and on an examination made by him or by some competent, disinterested person or persons appointed by him, if he deems it necessary that all debts and liabilities which are due, or may become due, upon any contract or agreement made with any citizen or resident of the state of Ohio, are paid and extinguished.”

From a consideration of the said statutes and the authorities, we think the law of this state is, that the said fund so deposited should be administered by the superintendent of insurance of this state, under the direction of the court and should be distributed directly to the policy holders entitled to 'share therein.

■ The fact that the fund is claimed by an assignee or other representative of an insolvent corporation does not supersede the jurisdiction of the court to order the distribution made by the superintendent of insurance directly to the policy holders.

In the case of State, ex rel, v. Matthews, 64 O. S., p. 419, the syllabus is as follows:

"1. Where securities have been deposited with the superintendent of insurance, by an insurance company, to be held by such superintendent in trust for the benefit and protection of, and as security for, the policy holders of such company, the assignee of such company, under our insolvent laws, can not recover such securities from such superintendent without first showing that such company is no longer liable to any of its policy holders.
“2. It is the official duty of such superintendent, in the event that such company becomes insolvent, to act, and perform his trust, by distributing the funds so deposited with him, pro rata among the several policy .holders, and when their just claims shall all be satisfied, to pay the balance, if any, to the company, or its assignee or other successor.” See also 43 O. S., 359.

In view of the above decisions, we are clearly of the opinion that, as previously stated, the fund in question should be administered in the present proceedings,, and should be distributed directly to the policy holders entitled thereto, and that the same should not be paid to the representative of the insurance company appointed in the state of Pennsylvania.

In regard to the claim of James L. Stewart, the policy holder residing in the state of Pennsylvania, we are of opinion that his failure to file his claim within the time fixed by the public notice of the superintendent of insurance does not bar a consideration of the merits of his claim.

"We think the provision fixing the time for filing claims, merely fixes a “rule day” and that the same was subject to be opened up, in a proper case, at the discretion of the court having jurisdiction in the case, and under the rules of civil procedure. We do not think this provision was intended as a statute of limitation, but that it merely fixed a time when the court might proceed to the consideration of the claims and the distribution of the fund.

This brings us to the question as to whether the foreign policy holder is entitled to participate in the distribution of the said fund so deposited.

This court formerly had before it for consideration, in the case of Hogan, Attorney-General, v. Empire State Surety Company, the question now presented. In that case this court stated:

“ It is evident, however, that the deposit provided for in Section 9510 was intended to be held for the benefit of the policy holders whose rights grow out of contracts made and business transacted in the state of Ohio.”

We have carefully considered Sections 9510, 641, 642, 643 and 656, General Code, as they existed at the time the rights of the Ohio claimants to this fund accrued, and have also examined other sections of the statutes in pari materia with the sections above quoted, and after such consideration, we can not escape the conclusion that the said sections of our code, when read together, reflect in intention upon the part of the Legislature to require said deposit to be held for the primary benefit of Ohio policy holders. Where the Legislature provides for a deposit as a condition precedent to the right of a foreign corporation to do business within the state, we think the primary inference is that such deposit was required for the purpose of protecting the policy holders whose policies were issued within the state, and in order to extend the benefit of such deposit to the general policy holders of the company, we think the statute should clearly express such intention.

It is urged that the amendment to Section 9510, General Code, of date April 25, 1904, striking out the provisions as to the policy holders residing in this state ,and inserting the provision “for the benefit of all its policy holders,” clearly shows an intention upon the part of the Legislature to extend the protection of the deposit to all the policy holders of the company irrespective of the state wherein such policies may have been issued.

If Section 9510, General Code, was the only section to be considered, then there would be much force in this contention, but when all the statutes relating to such deposit, and the distribution or discontinuance of business are considered, then we think it does not appear that the Legislature intended to extend the benefit of such deposit to policy holders generally.

Counsel for appellants call attention to the recommendations of certain administrative officers of the state, in favor of the amendments in question, to the various statutes under consideration. We are of opinion that such recommendations are not conclusive, but that the real intention of the Legislature must be deduced from tbe various acts of the Legislature relating to the deposit under consideration.

Entertaining these views, the demurrers should be sustained.

Allread, J., and Ferneding, J., concur.


author: Chittenden, J.

text:
    SECONDARY EVIDENCE MADE COMPETENT ONLY BY EXIGENCY OF PROOF.
    Court of Appeals' for Lucas County.
    Josiah B. Hartman v. The Toledo Railways & Light Company.
    Decided, 1917.

      Evidence — Circumstantial Character of Evidence of Halit — Competency of Secondary Evidence.

    Evidence of the habit of a person being circumstantial and secondary in character, its admission is largely within the discretion of the court, and when there is primary evidence of a fact desired to be proven, there is ordinarily no necessity for resort to secondary evidence to establish the fact, and in the absence of some necessity for the introduction of such evidence .to meet some exigency of proof, it will be rejected.

      Charles E. Masters and Kohn, Northup & McMahon, for plaintiff in error.

      Tracy, Chapman & Welles, contra.
   Chittenden, J.

Error to the court of common pleas.

The plaintiff brought an action to recover damages because of personal injuries claimed to 'have been sustained through the negligence of the defendant. The jury returned a verdict in favor of the defendant and judgment was entered thereon. A reversal of this judgment is asked in this court on the ground that certain material evidence offered on behalf of the plaintiff was excluded by the trial court.

On November 8, 1913, the plaintiff was a passenger upon one of the cars of the defendant company. The plaintiff claims that when he was within about a block from the place where he desired to alight he stepped into the front vestibule of the car preparatory to leaving the ear when it should make a stop at the street where he desired to get off. He alleges that when he entered the vestibule of the car the motorman operating the ear, “intentionally, negligently and carelessly struck and pushed him with great force so that he was violently thrown from said car upon the brick pavement and while the car was still in motion,” and as a result thereof he received the injuries for which he seeks to recover. It is shown by the evidence that the plaintiff was formerly an employee of the defendant and a friend of the motorman operating the car.

The plaintiff testifies, in substance, that when he went into the vestibule he was struck on the neck by the motorman and was thereby thrown from the ear. The testimony of one other witness was to the effect that thereafter she heard the motorman say that he didn’t mean to push that man off and it was only an accident if he did push him off. Another witness testifies that he heard the motorman say, “I didn’t mean to hit him.” The defendant offered the evidence of the motorman who denied that he struck, slapped or pushed the plaintiff, and denied making the statements attributed to him, and said that he saw a shadow which caused him to believe that the plaintiff was falling, and that he attempted to reach him to prevent the fall but was unable to do so. The defendant also offered the evidence of several eye-witnesses who testified that the motorman did not slap, strike or push the plaintiff, but that the plaintiff evidently lost his balance as the car was passing through a curve of a switch, and that .as he began to fall the motorman reached out with the evident intention of attempting to prevent him from falling.

The plaintiff when putting in his evidence in chief undertook to prove that the motorman had a general habit of slapping or striking Ms friends and acquaintances when speaking to them. One witness who had known the motorman for several years was asked this question: “You may state what you have observed Humphries (the motorman) do while he was running the car and you were conductor on it, in slapping persons upon the back or other parts of their person when speaking to them.” The objection to this question was sustained. Counsel for the plaintiff stated to the court that he claimed the evidence was competent in ■ corroboration of the act of the motorman complained of, and offered to prove by the witness and other witnesses that this motorman’s general habit and custom, both while operating his car and at other times while off duty, was to slap or strike a man at times very hard when speaking to him. It is claimed that the exclusion of this evidence was erroneous and prejudicial to the rights of the plaintiff.

In support of this contention counsel for plaintiff cite some language of the Supreme Court of Ohio in the case of Rumbaugh v. McCormick, 80 O. S., 211, found upon page 217. The language quoted and said to be applicable to this ease consists of a quotation from Section 68, Wigmore on Evidence, and is as follows:

“The character or disposition of an animal is no less relevant than that of a human being,, .as indicating his probable conduct on a particular occasion, and it is open to none of the objections of auxiliary policy which affect the use of a party’s character. It is therefore commonly conceded to be admissible. The hesitation sometimes observed in the rulings has been due to the time .at which the disposition is predicated in the offer; but here, as with human character, the existence of a trait at a given time is evidence that it existed also for a reasonable time before and afterwards, and 'within liberal limits should therefore be received.”

An examination of the case cited discloses that the Supreme Court did not have under consideration and was not discussing the admissibility of evidence of the kind and character sought to be introduced by the plaintiff in this case. In the ease under consideration by the Supreme Court the plaintiff sought to recover damages inflicted upon a flock of sheep, alleged to have been caused by a dog owned and harbored by the defendant who lived upon an adjoining farm. It was there held competent to prove that the dog had acquired the habit of attacking sheep, in support of the disputed allegation that he attacked and injured sheep on the particular occasion.

It has -become quite well settled that in certain actions evi- - dence of character and disposition is competent, and this is especially true when applied to animals. It is not claimed in this case that the motorman was of a violent or dangerous disposition or -character, and the evidence sought to be introduced was not for the purpose of making any such' proof. The distinction between character and disposition of individuals, and of a habit, is apparent and is made by text-writers treating of the subject of evidence. The quotation from Wigmore on Evidence, above mentioned, is from a paragraph treating of the character of animals, and in the course of the paragraph quoted Mr. Wigmore refers to Section 60 of the same work which also treats of character. That author’s treatment of the subject of habit is found in Section 92. He recognizes that under certain circumstances a person’s ha-bit is of some probative value. Two of the casess cited by him have more to do with the subject of custom than of habit. The other case cited by him, State v. Railroad, 52 N. H., 528, 532, more definitely deals with the question of habit. The New Hampshire case has sometimes been taken as the basis for a statement that habit is competent evidence. We call attention, however, to the case of Parkinson, Adm’r, v. The Nashua & Lowell R. R. Co., 61 N. H., 416. The opinion in that ease begins with this statement:

“Although-it is quite generally held elsewhere in actions for negligence, that evidence of other specific instances of negligence on the part of either party is not competent, because raising a collateral issue, yet in this state a different rule prevails and has become established in cases where the evidence is conflicting; and it is here held to -be competent to show that the party charged with negligence had performed or omitted the same act in the same way before, as tending to show that he did or omitted- the ,aet at the time in question, on the ground that a person is more likely to do a thing in a particular way, as he is in the habit of doing or not doing it.”

The court then cites the' 52 New Hampshire, from which' Mir. "Wigmore quotes, together with other New Hampshire cases. It will be observed that the Supreme Court of New Hampshire recognizes that the rule laid down in that state is not in accord with the current of authority in this country. Mr. Wig-more further states in Section 92 that:

“There is, however, much room for difference of opinion in concrete cases owing chiefly to the indefiniteness of the notion of habit or custom. If we conceive it as involving an invariable regularity of action, there can be no doubt that this fixed sequence of acts tends strongly to show the occurrence of a given instance. But in the ordinary affairs of life a habit or custom seldom has such an invariable regularity. Hence it is easy to see why in a given instance something that may be loosely called habit or custom should be rejected because it may not in fact have sufficient regularity to make it probable that it would be carried out in every instance or in most cases. Whether or not such sufficient regularity exists must depend largely on the circumstances of each case.”

He then calls attention to the difficulties that arise in connection with such evidence because of its close relation to that of character, and of its becoming obnoxious to the rule against the use of a party’s character in civil cases.

The entire subject now under consideration is learnedly discussed by Mr. Chamberlayne in the Modern Low of Evidence, Volume 4, Chapter 46, beginning with Section 3150.

It is obvious that evidence of habit is circumstantial and secondary in character, and is within the rule that its admission is largely within the discretion of the presiding judge. When there is primary evidence of a fact desired to be shown, there is ordinarily no necessity for resort to secondary evidence to establish that fact. Under such circumstances the introduction of secondary evidence involves the danger of misleading or confusing the jury by the raising of collateral issues. The trial court will consider this danger, together with any other circumstances affecting his discretion, in passing upon the admissibility of such evidence. Chamberlayne, Modern Law of Evidence, Volume 4, Sections 3154 and 3159; 6 Thompson’s Commentaries on the Law of Negligence, Section 7883. The introduction of evidence that involves collateral issues always involves the danger of trying out not what happened on the particular occasion that furnishes the basis for the suit, but what happened on other occasions. Therefore, in the absence of some necessity for the introduction of such evidence, it will be rejected.. As said by Mr. Chamberlayne, Section 3198:

“In other words, where there is direct evidence to the same effect, or in general when evidence of habit is not required to meet some exigency of proof, the propriety of rejecting the evidence seems an administrative common-place in most cases.”

After further discussion of this subject in the section last cited, quotation is made from the decision of the Court of Appeals of New York in the case of Zucker v. Whitridge, 205 N. Y., 50. In that case evidence of the habit of the injured person was sought to be introduced; but we are unable to see any proper distinction to be made in the principle governing the admission of habit of the injured person and of the habit of the defendant or its employees. The court of Appeals, after an exhaustive review of the cases upon the subject and of several text books, reached the conclusion that the “weight of authority seems to be against admitting evidence of general conduct under proven circumstances to show conduct of the same kind under similar circumstances on a particular occasion, when there were eye-witnesses of the occurrence, including the person injured if he survived the accident.” They expressly declined to express an opinion as to the competency of such evidence when there are no eye-witnesses of the event. We think proper to quote at some length from the concluding statements in that opinion:

“A question of evidence, to some extent, is a question of sound policy in the administration of the law. Sometimes it is necessary to weigh the probative force of evidence offered, compare it with the practical inconvenience of enforcing a rule to admit it, and decide whether, as matter of good policy it should be admitted. Uniform conduct under the same circumstances on many prior occasions may be relevant as tending somewhat to show like conduct under like circumstances on the occasion in question. All relevant evidence, however, is not competent. Hearsay, although relevant, is held incompetent from public policy, because there is safer and -better evidence to establish the fact. Parol evidence to vary .a written agreement is relevant but incompetent, because sound policy requires that the writing should be presumed to express the final agreement of the parties. So, assuming the evidence in question to be relevant, I think it should be held incompetent under the circumstances, because its probative force does not outweigh the inconvenience of a multitude of collateral issues not suggested by the pleadings, the trial of which would take much time, tend to create confusion and do little good. As was said by Chief Justice Peters in Chase v. Maine Central R. R. Co. (supra): ‘In many litigations, under such a test, there would arise a wager of character which would as unfairly settle the dispute as did formerly the wager of battle. The rule of the average life is care, or else it would not long continue, yet the average man is conscious that he is not always careful, and, hence, habit on general occasions is uncertain evidence of care on a particular occasion. It is not enough of itself to establish the fact sought to be proved and at the most simply bears upon the probability. Habit is an inference from many acts each of which presents an issue to be tried and necessarily involves direct and naturally invites cross-examination. The circumstances surrounding each act present another issue, and thus many collateral issues would be involved which would not only consume much time, but would tend to distract the jury and lead them away from the main issue to be decided. From the want of previous notice the other party would not be prepared to meet such evidence, and after all the testimony of this character was in the fact would remain that, as no one is always careful, the subject of inquiry, although careful on many occasions, might have been careless on the occasion in question.”

The circuit court of this district reached a similar conclusion in the case of W. & L. E. R. R. Co. v. Parker, Adm’r, 9 C.C.(N. S.), 28, and a like result was .arrived at by the Circuit Court of the Seventh Circuit in Pennsylvania Co. v. Trainer, Adm’r, 12 C. C., 66. See, also, Baltimore & Ohio R. R. Co. v. Van Horn, Adm’x, 21 C. C., 337.

The bill of exceptions discloses the evidence of several eyewitnesses of the accident to the plaintiff. We are unable to say that the trial court was guilty of any .abuse of discretion in ex-eluding the evidence tendered, even were it conceded that such evidence of habit might under some circumstances be admissible. We are furthermore of opinion that in view of the direct evidence,'the probative effect of such circumstantial evidence of habit would not have been sufficient to have justified the jury-in returning a verdict in favor of the plaintiff.

After a careful review 'of the record, and a somewhat extensive examination of authorities, we are unable to find any prejudicial error in the record, and the judgment will therefore be affirmed.


author: Richards, J.

text:
    VIOLATION OP A PARTNERSHIP AGREEMENT — WHEN NOT ENJOINED.
    Court of Appeals for Franklin County.
    M. Lichtenstein v. Max Silverman.
    Decided, April 25, 1914.

      Window Gleaning — Partnership Agreement for Carrying on the Business of — Partnership Dissolved and Defendant, Contrary to Agreement, Does Some WorJc on His Own Account — Injunction Denied.

    Injunction will not lie against one who has provided himself with a bucket and ladder and is engaging, without the assistance of employees, in the work of cleaning windows, contrary to a partnership agreement theretofore entered into, where it does not appear that he has solicited or proposes to solicit the work of any of the customers of the plaintiff, his former partner, the work being common labor and in no sense special, unique or extraordinary.

      Schanfarber & Schanfarber, for plaintiff.

      Harry Kohn, contra.
   Richards, J.

Appeal from the court of common pleas.

This action is brought for the purpose of enjoining the defendant from engaging in the window cleaning business in the city of Columbus, and from soliciting said business, and from doing- any work or getting any work done, in connection with the window cleaning or general cleaning business in the city of Columbus.

The parties hereto entered into a contract of partnership on September 18, 1913, for the purpose of engaging in the cleaning business in Columbus. The defendant had no property, but had been theretofore engaged in the work of cleaning windows in that city, while the plaintiff had capital and was engaged, on a large scale, in the same business and in the same city. The partnership seems not to have been very successful, for it was only in effect a few weeks, and resulted in the bringing of this action in the common pleas court on October 31, 1913. 'The written contract between the parties provided that in the event of a discontinuance of the agreement or of the business, Silverman would not engage in the cleaning business or in any competing business to any cleaning concern in which Lichtenstein was interested, for a period of three years from the date of such discontinuance, in the city of Columbus, directly or indirectly, either as owner, employer, employee, agent or partner.

It is clear from the evidence in this ease that after the parties ceased to continue in business as partners, the defendant engaged in the cleaning of windows himself in a small way in the city of Columbus. It appears that his only outfit was a ladder and a pail and a chamois skin. This elaborate equipment he carried from place to place in the city by hand, and the motive power in performing his labor was his own muscle. He had no other person in his employment, but it does appear from the evidence that on one occasion he employed a man for a brief period of time to wash certain windows; that occasion, however, was the day that this ease was tried in the common pleas court, such trial necessitating the appearance of the defendant in court for the purpose of making his defense ágainst the action brought by this plaintiff. The evidence shows that he has not solicited, and does not intend to solicit, the customers of the plaintiff.

The brief of counsel for plaintiff contains the following statements :

“It is not the purpose of this proceeding to enjoin the defendant from cleaning windows. It is not the purpose of this proceeding to enjoin the defendant- from working as a common laborer. This can not be done. But it is the purpose of this proceeding to enjoin the defendant from carrying on the window cleaning business in a general way, and to enjoin the defendant from soliciting customers and engaging as an independent contractor.”

The evidence in this case would not justify the court in granting an injunction against soliciting business from customers of the plaintiff, because it does not show that he has solicited, or contemplates soliciting, such persons. Neither does it show within any fair interpretation of the language of the contract between the parties, that he has engaged, or is about to engage, in the prohibited business other than as simply a common laborer. It is not an occupation which requires any special skill or ability, and the services are not of a unique character. A court of equity will not enjoin, under such circumstances, the performance of such common labor as the cleaning of windows.

I call attention to Columbia College of Music and School of Dramatic Art v. Tunberg, 116 Pac., 280, where the rule is concisely announced. See Eureka Laundry Co. v. Long, 146 Wis., 205, 131 N. W., 412; same case 35 L. R. A. (N.S.), 119. In the last citation the case may be found fully annotated. See also Jewel Tea Co. v. Novak, 146 Wis., 224, 131 N. W., 415.

We hold, therefore, that the petition of the plaintiff should be dismissed at his costs.

Kinkade, J., and Chittenden, J., concur.


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    AUTHORITY OF TOWNSHIP TRUSTEES IN THE MATTER. OF PROVIDING DRAINAGE DITCHES.
    Court of Appeals for Williams County.
    John Raymond et al v. the Township Trustees of Millcreek Township, Williams County, et al.
    Decided, October 26, 1916.

      Ditches — Purpose of Enactment of Ditch Laws — Provision for Drainage and Assessment of Cost in Hands of Township Trustees — Maif Employ an Engineer — Tribunals Designated by the Legislature Will Not be Interfered With by the Courts, Unless.

    1. The ditch laws were enacted for the purpose of securing a systematic and proper drainage of the country, and it was the evident intention of the Legislature that the work should be conducted by the township trustees, with such engineering aid as is necessary to carry into practical and successful effect the project of drainage in a given territory and to equitably assess the cost thereof, and such trustees are authorized to employ an engineer to supervise and inspect the construction of a township ditch, and to report on the same to such trustees.
    2. The courts will not interfere with the action of tribunals selected by the Legislature to perform certain duties, unless it is made apparent to the court that the action of such board or tribunal is such as to amount to fraud, bad faith, or a gross abuse of the judicial discretion reposed in such board or tribunal.

      Edward Gaudern, for plaintiff.

      Newcomer & Gebhard, contra.
   Chittenden, J.

Appeal from the court of common pleas. ■

This is an action to restrain the certifying of certain ditch assessments to the county auditor on the ground that certain items included in the assessments are excessive and illegal.

The trustees of Millcreek township located a township ditch, with certain branches, aggregating in length approximately three miles. John Mattoon was employed by the trustees as the engineer to locate, level and measure the course of the ditch, to prepare plans and specifications therefor, to supervise and inspect the construction of the ditch and accept the same for the trustees. The bill of' Mr. Mattoon approved by the township trustees contained an item of forty and one-half days at four dollars per day for surveying and leveling and making a report to the trustees, amounting to $162. It is conceded that this total is not correct for the reason that the statute limits the amount of compensation that may be made by township trustees to engineers engaged in township ditch work to four dollars a day for field work and three dollars per day for inside work. The evidence in the case shows that eleven days were spent in the field and twenty-nine and one-hálf days in the office. Therefore, the bill should be corrected in this respect by computing the office work at three dollars per day instead of four dollars per day. The bill also contains an item of expense while engaged in the field work, of four dollars and fifty cents. We find no statutory authority for the allowance of this item and it will, therefore, be excluded.

The principal item in controversy is one of $128 being the amount charged by the engineer for the su|>ervision of the construction of thirty-two working sections of the ditch, allowing one day to each section. It is earnestly argued that there is no authority whatever for the allowance of pay for such services. The question ,as to the validity of the item must largely hinge upon a proper construction of Section 6612, General Code, which defines the duties of the trustees and empowers them to employ an engineer. So far as the section relates to the question here involved, it reads as follows:

“The trustees may employ an engineer to locate, level and measure the course of such ditch, and such other assistance as they need.”

Some light is thrown upon the section from which the above quotation is taken by Section 6619 of the General Code which provides the fees to be paid officers and others in the locating and establishing of township ditches. This section provides that engineers may be paid four dollars per day for locating and three dollars per day for making plat, profile and specifications. It is to be observed that the latter section provides pay for the making of a plat, profile and specifications, although Section 6612 does not specifically authorize the trustees to employ an engineer for that purpose.

The ditch laws were enacted for the purpose of securing a systematic and proper drainage of the country and it is evident that it was intended by the Legislature that the work should be conducted by the trustees with such engineering aid as should be necessary to carry into practical and successful effect the project of drainage in a given territory and equitably assessing the cost thereof. The drainage of a locality is essentially an engineering problem .and is so recognized by the legislative enactments. Section 6612 as quoted indicates the legislative recognition of this statement by making provision for the employment of an engineer. In that section they specify the principal things to be done by the engineer, to-wit, level and measure the course of such ditch, and it being a matter of common knowledge that other engineering assistance may be needed it is by that section wisely left to the discretion of the trustees to employ such engineer to render “such other assistance as they need.” The object to be attained by this legislation makes it manifest that this section should be read as though it contained the word “render” immediately preceding the word “such,” so that the section would read:

“The trustees may employ and engineer to locate, level and measure the course of such ditch and render such other assistance as they need. ”

We can see no other construction of this section consistent with the purpose for which the section was enacted. When' so construed it furnishes ample authority for the board of trustees of the township upon whom the duty of providing for proper drainage is imposed, to efficiently and in a business like manner discharge the duties thus cast upon them. This construction in no way deprives the township trustees of the power to employ axemen and ehainmen to assist the engineer. The power to employ such assistants is clearly implied from Section 6619, General Code, which fixes the compensation of such employees, and furthermore such assistants to the engineer are but necessary incidents to the work that he is employed to do.

Certainly it would be inexcusable upon the part of the trustees to apportion the construction of a ditch and branches having a length of three miles, and permit its construction without giving it any supervision or inspection to know that the plans and specifications had been complied with. It would involve the independent labor of many different people on the various sections and supervision and inspection of such work are quite necessary in order that the completed ditch shall answer the purpose for which it is designed. If such inspection had been made by the trustees they would, under the statute, be allowed one dollar and fifty cents each per day, or a total of four dollars and fifty cents per day, for making this necessary inspection, and it is self-evident, therefore, that by employing the engineer in question, who is conceded to be expert in this line of work, not only was scientific and expert inspection and supervision secured, -but it was secured at a less expense to the land owners than would be an inspection by the trustees themselves.

The record further discloses that all that was done in respect to the hiring of the engineer was in the presence of and with the knowledge of the plaintiffs in this case, and that it was done without any protest upon their part. The bill for services was presented to the township trustees and was approved by them at a meeting at which the evidence shows the plaintiffs were present, and they interposed no objection thereto. In view of these facts, it is difficult to see how the plaintiffs have the right to appear in a court of equity and ask the extraordinary writ of injunction to restrain the certifying of the bill, at least in so far as the work has been performed.

It is further claimed that even if the services were such that the trustees might legally pay for them, they are excessive; that the work should have been performed in much less time than that for which the charge is made. The duty of determining the correctness of the bill is by law devolved upon the trustees of the township.

The courts of this state are not authorized to, .and ought not, interfere with the action of tribunals selected by the Legislature to perform certain duties, unless it is made apparent to the court that the action of such board or tribunal is such as to amount to fraud or bad faith or a gross abuse of the judicial discretion reposed in such board or tribunal. This principle of law is so thoroughly established that it is unnecessary to cite authorities.

The petition does not allege any bad faith upon the part of the trustees but only that they have been guilty of gross negligence in allowing the bill of the engineer for the amount stated therein. The burden of proof is upon the plaintiffs to show such an abuse of discretion as would justify the interference of a court of equity. We find that the evidence of the plaintiffs falls very far short of establishing any such state of facts as would justify an interference on the part of this court with the action of the trustees.

Finding, therefore, as we do, that there is statutory authority' for employing an engineer to supervise and inspect the work, the allowance made by the trustees should be corrected by eliminating therefrom the item of four dollars and fifty cents for expense of the engineer, and the twenty-nine dollars and fifty cents, the amount of the excess charge for making plans and specifications, as hereinbefore stated. The apportionment should be modified as above indicated, and the defendants will be enjoined from certifying anything in excess of that amount.

Richards, J., and Kinkade, J., concur.


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    ACTION AGAINST AN ADMINISTRATOR FOR SERVICES.
    Court of Appeals for Coshocton County.
    R. D. Keesey v. John E. Glass, as Administrator of the Estate of Carrie L. Lahm.
    Decided, July 2, 1917.

      Charge of Court — Confusion in Instructions to the Jury as to the Nature of the Contract Sued on Action for Services Under a Contract Assumed to Have Been Implied,.

    In an action for recovery on a contract for services, it is prejudicial error in charging the jury to speak of the contract as implied, without any explanation as to what proof is required to establish an implied contract, but leaving the jury to infer that an implied ■contract could be established by the same evidence as an express contract, which evidence offered showed to be the character of the contract in suit.

      Joseph L. McDowell and W. S. Merrell, for plaintiff in error.

      F. E. Pomerene and T. H. Wheeler, contra.
   Houck, J.

Error to the Court of Common Pleas of Coshocton County.

Error is here prosecuted to reverse the judgment of the common pleas court in this case.

The plaintiff brought suit to recover from the estate of Carrie L. Lahm, deceased, the sum of $4,255, which he claimed to be the reasonable value of certain work and services done and performed by him for the said Carrie L. Lahm prior to her death. The services for which he seeks to recover were performed between the first day of March, 1911, and the 21st day of January, 1915, the answer filed being in substance a general denial. The cause was submitted to a jury upon the pleadings and the evidence, and the jury returned a verdict for the defendant, and a judgment being entered on the verdict, error is here prosecuted praying for ,a reversal of said judgment.

We have given this case careful consideration, and have read the bill of exceptions, and were materially aided in our examination of the record and the bill of exceptions by the very able oral arguments of counsel, as well as the written briefs in the ease filed by them.

Plaintiff in error insists that the trial judge erred prejudicially to his rights in the premises in giving to the jury certain written charges before argument, as requested by the defendant. We think it necessary to discuss but two of these requests, namely, Nos. 2 and 3, which are as follows:

“No. 2. I charge you that this is a suit to recover from the estate of defendant’s decedent compensation for his services alleged to have been rendered under an implied contract. Whether the contract is express or implied, the meeting of the minds of the parties upon its terms is necessary to the making of the contract. If the minds of the parties did not meet on any terms of agreement, there is no contract.
“No. 3. If you find from the evidence that at the time plaintiff went to live in decedent’s home he did so under an agreement to render the services shown by the evidence to have been performed by him for decedent, and that he was to receive as compensation therefor his room and board, .and with no provision for further or other compensation, then plaintiff can not recover in this action, and your verdict should be for the defendant. ’ ’

When written requests of propositions of law are asked to be given to a jury before argument the trial judge must give the same if they are sound propositions of law pertaining to the issue or issues raised by the pleadings .and applicable to the proven facts in the ease; although a request may be sound, as an abstract proposition of law, yet the trial court would not commit error by refusing to submit it to the jury, unless such be clearly applicable to the issues to be determined and the facts in the case as established by the evidence.

The question then for our consideration and judgment is: Did or did not the trial judge err prejudicially to the rights of plaintiff in error in submitting to the jury such requests? We must answer this inquiry in the affirmative, and having done so it is our duty to assign our reasons for so doing, which briefly stated are as follows:

We think request No. 2 is clearly misleading and prejudicial to the rights of plaintiff in error. In clear language it states that the services alleged to have been rendered by the plaintiff for the defendant were by reason of an implied contract, and then states, “whether the contract is express or implied, the meeting of the minds of the parties upon its terms is necessary to the making of the contract. If the minds of the parties did not meet on any terms of agreement, there is no contract. ’ ’

If the contract was an implied one then it had no connection with an express contract. Then why should any reference be made to an express contract, if the plaintiff did not rely upon such to recover? The evidence necessary to establish an implied contract is very different from that required to prove an express contract. In an express contract all the terms and conditions are expressed between the parties, and they arrive at their agreemnt by words either oral or written, while in an implied contract some of the terms and conditions are implied by law by the conduct of the parties. Thus, where one performs for another, with his knowledge, consent and acquiescence, some useful or valuable service, however small it may be, that is commonly charged for, and the same is accepted, a promise to pay what the same is reasonably worth is implied. It will be observed that in the request now under consideration there is no explanation as to what proof is necessary to establish an implied contract, but in effect, at least, the language used would imply that the same proof would be necessary to establish an implied contract as is required in an express contract.

As to request No. 3, we will say as to the real force and effect „ of the language used — if we are able to properly analyze and interpret same — that the contract was an express one. Both of these requests are vague, uncertain and indefinite, and we tbink are very misleading and highly prejudicial to the substantial rights of the plaintiff in error.

If we apply the rule of law as herein laid down as a test to the above requests, we can reach but one conclusion, and that is that the common pleas court was in error in submitting them to the jury.

Finding error in the record prejudicial to the rights of the plaintiff in error, the judgment of the common pleas court is reversed and the cause remanded to that court for a new trial.

Judgment reversed.

Powell, J., and Shields, J., concur.


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    DEFENSE OF JUDGMENT IN A FORMER. ACTION.
    Court of Appeals for Hamilton County.
    Frank L. McCord v. James W. McCord et al.
    Decided, January, 1916.

      Action to Establish a Trust in Real Estate by Parol Evidence — Defense of Former Adjudication — Matters of Action and Defense Which Must be Deemed to Have Been Determined in Former Litigation.

    Where a party is called upon to make good his cause of action or establish his defense, he mus| do so by all proper means within his control, and all matters of action and defense coming properly within the scope of the suit or action will be put at rest by the final determination of the action or suit, unless excepted by some provision of law or by the judgment or decree itself.

      Frank F. Wood, W. A. Hicks and S. A. Headley, for plaintiff.

      Robertson & Buchwalter, contra.
   Chittenden, J.

Appeal from the court of common pleas.

The plaintiff in this action seeks to establish by parol evidence a trust in certain real estate that had been deeded by his mother to his father, one of the defendants herein, by a deed absolute. It i? claimed that this deed was made upon consideration that the property was to be held by the defendant, James W. McCord, during his lifetime, and to be by him willed to his children and grandchildren, in certain proportions.

One of the defenses interposed is that this action is barred by a former adjudication between the parties. This former suit between the parties is admitted, but it is claimed that it does not amount to a bar to the prosecution of this action. In the former action the plaintiff herein sought to have the same deed that is in question in this action set aside, on the ground that at the time of its execution his mother was mentally incompetent to execute the same, and that its execution was obtained through the undue influence and coercion of the grantee, his father. The result of the former trial was an adjudication by the court that the grantor was of sound mind, that no imposition was practiced upon her, and that the execution of the deed was her free and voluntary act and conveyed to the grantee an estate in fee simple. This judgment was affirmed by the Supreme Court.

Among other averments, the petition contained the allegation that the mother died intestate and seized in fee simple of the property. This was denied by the answer, and the court found, upon all the issues joined, in favor of the defendant. This was a finding in favor of the defendant upon the issue thus raised as to the title of the mother. Manifestly, if the mother was not the owner of the property and the real estate was in fact the property of the defendant, then the conveyance from the wife to her husband was only transferring to him the property that belonged to him. 'The petition in the former case contained a prayer for all relief that the plaintiff might be entitled to in the premises, and in the journal entry in that case appears the following language; 1 -j i. ;

“It is therefore considered, adjudged and decreed that the petition of the plaintiff be 'and the same is hereby dismissed at the costs of the plaintiff, and that the plaintiff be, and the same is hereby denied any and all relief, and that the defendants recover from the plaintiff their costs, ’ ’ etc.

The only evidence presented by the plaintiff in this case is certain admissions made by the defendant in a deposition taken in the former action and certain admissions made by him while testifying as a witness in the former action. There is, therefore, no evidence presented in this case that was not before the court at the former trial.

It is well settled in this state that where a party is called upon to make good his cause of action or establish his defense, he must do so by all proper means within his control, and that all matters of action and defense coming properly within the scope of the suit or action will be put at rest by the final determination of the action or suit, unless excepted by some provision of law. Strangward v. American Brass Bedstead Company, 82 O. S., 121; Peterstine v. Thomas, 28 O. S., 596; Covington & Cincinnati Bridge Company v. Sargent, 27 O. S., 233; Roby v. Ransberger, 27 O. S., 674; Werner v. Cincinnati, 3 C.C.(N.S.), 276, affirmed by the Supreme Court without report.

The cases just cited are to the effect that when ,a matter is finally determined in an action between the same parties, by a competent tribunal, it is to be considered at an end, not only as to what was determined, but also as to every other question which the parties might have litigated in the case. The title to this property was the subject of inquiry in the former action, and it was the duty of the plaintiff to set up in that case every claim he had that in any wise affected the defendant’s title, and if he failed to do so he could not thereafter have the question litigated in a subsequent action. We find that-the former adjudication is a bar to the prosecution of this action.

'This conclusion makes it unnecessary for us to pass upon the other questions presented in argument.

The decree will be in favor of the defendant, dismissing the petition at plaintiff’s costs.

Richards, J., and Kinkade, J., concur.