text:
    RAISING A PUBLIC ROAD SUBJECT TO OVERFLOW:
    Circuit Court of Fairfield County.
    John C. Hoshor v. The County Commissioners of Fairfield County, Ohio.

    Decided, January Term, 1911.

      Levees — Authority of County Commissioners to Construct — Raising of the Grade of a Public Road to Prevent Overflow — -Resulting Injury to Adjacent Property — Injunction Agajnt Does Not Lie, When— Measure of Damages- — Sections 6778 and 7JS3.
    1. The raising of the grade of a public highway which is subject to overflow in times of flood, can not he enjoined by an adjacent property owner on the ground that the road was long ago improved to a definite and fixed grade and no steps have been taken by the county commissioners to appropriate the land which will be damaged thereby or to make compensation to the owner.
    2. In such a case the owner of the lands damaged by the improvement has an adequate remedy at law, the damage being complete at the time the improvement is complete and measured by the difference in the value of the lands before the improvement was made and afterward.

      M. A. Daugherty, for plaintiff:
    Voorhees, J.; Taggart, J., and Powell, J., concur.
    Appeal from Common Pleas Court of Fairfield County, Ohio.

       Affirmed by the Supreme Court on the reasoning of the opinion of the Circuit Court, 84 Ohio St., p. —.

   Tbis action is brought by the plaintiff against the county'commissioners of Fairfield county, Ohio, to enjoin them from making certain improvements upon a public roadwgy. The object of the suit is to enjoin the county commissioners from making the improvements mentioned and described in his amended petition.

To the amended petition a general demurrer was filed. The demurrer was sustained and the plaintiff not desiring to further plead, the petition was dismissed at the cost of plaintiff; an appeal was taken and the cause comes into this court on appeal, and is heard on the demurrer to the .amended petition.

It is contended by the plaintiff in support of his amended petition that the improvement contemplated by the commissioners, and which the plaintiff seeks to enjoin, is authorized by the Statute in Volume 101 of Ohio Laws, p. 139, Section 6778, which reads as follows:

‘ ‘ When found to be conducive to the public health, convenience or welfare, the county commisioners may cause to be located, established and constructed as hereinafter provided, a levee within the county, along or near a stream, water-course, lake or body of water, for the protection of land .from overflow. ’ ’

Section 7483 of the General Code provides when county commissioners shall build embankments, etc.:

“When a principal public road in a county, except a turnpike road over which tolls are collected, is subject to overflow or inundation, -so as to render it at any time, unfit for public travel, of hinder free and necessary transportation, the commissioners of such county may repair or reconstruct such road by changing the beds of small streams to avoid crossing, changing roads to avoid bridges, when the public travel would be better accommodated, or build an embankment or levee sufficiently elevated above all such overflows or inundations. The expenses of such embankment, changes or levee shall be paid out of the money in the county treasury raised by taxation for road or bridge purposes. ’ ’

It is under favor of this section of the General Code, Section 7483, that the proposed improvement by the county commissioners of Fairfield county was being made which plaintiff seeks to enjoin in this action. The improvement is upon'a public roadway which has been in existence many years; and the improvement proposed was to elevate the roadbed above the high water mark. That is the object and purpose of the proceeding the commissioners had in contemplation in making the improvement mentioned .and referred to in the plaintiff’s amended petition.

On. the other hand it is contended by the plaintiff that the improvement was such a one as is contemplated by Section 6778, 101 Ohio Laws, page 139.

The contention of the plaintiiff is that by making this change or embankment described in the amended petition, it will and does interfere with the flow of the waters of certain natural watercourses described in the petition and by interfering with the natural flow of said waters the lands of the plaintiff are and will be damaged, and to avoid such damage this action was brought to restrain and enjoin the commissioners from further proceeding to carry out their plans and purposes in making the improvement contemplated.

There is no question about the road referred to being a public highway. There is no question from the allegations of the petition that the road is subject to overflow at times of high waters in the streams described in the amended petition.

The contention of the plaintiff is that this public highway for sixty years at least has been improved on a level with the surface of the ground, that it was so laid out and improved; a grade was established .and when so laid out and graded, and ever since, it has been subject to overflow, the overflow perhaps ranging from five feet or more in times of freshet.

The claim of the plaintiff is that the road having been thus improved with a definite -and fixed grade, the county commissioners, under neither of the sections of the statute of the General Code referred to, would have the right to make this improvement, if by so doing it would do substantial damage to the plaintiff, the owner of the land, without first taking steps to appropriate the land or make provision for due compensation to the owner; and until this is done the plaintiff would have the right to proceed in a court of equity to enjoin the action of the county commissioners.

That seeims to be the real controversy- in this case, viz., whether this action can be maintained in a court of equity for the purpose of getting relief by injunction, the plaintiff having an adequate remedy at law.

If the action is one for injunction or equitable relief, then this demurrer should be overruled; but if the action is an action at law or one in which damages would afford the plaintiff a complete and adequate remedy then this action could not be maintained as an equitable action for injunction.

Taking the view of the case that the court does — and I wish that the'court may be clearly understood in the holding that it makes under the facts alleged in the amended petition, if true— we think the plaintiff would have a right of action - for damages, and there is nothing appearing in the petition indicating that such an action would not be an adequate remedy and afford the plaintiff complete relief.

This improvement is in the nature of a permanent improvement, just as much so as the building of an embankment for a railroad. The damage to the plaintiff’s lands is complete when the improvement is completed. It is not a case or such an action that the injury could be abated unless the road itself could be vacated and removed.

We recognize the rule that in certain actions where the damage is not complete when the improvement is made and finished, or where the injury can be abated by removing the cause, in such case the rule of damages is different from what it would be in this case; while we do not desire to lay down an inflexible rule now as to the damages, we think it is proper for us to say, that in our judgment the rule of damages in a case like this would be the difference between the value of these lands before the improvement is made and their value afterwards; therefore, we think the rule of damages is certain' and easily ascertained.

Then, the question is presented, is it such an-action that the plaintiff would have an adequate remedy -at law? If the flood waters of these natural water-courses are interfered with by making this improvement upon the road, thereby changing the grade — counsel for the defendants criticises the claim of plaintiff that there was or could be an established grade in this or any public highway. Perhaps it is not an established grade in the sense that an established grade is made in an incorporated village or city; but, when a public road is laid out, established, opened and used, we think that is an establishment of a grade of said road, and if it is afterwards changed, or it becomes necessary to change it by raising its bed or lowering it, or making substantial changes in the road, and by reason thereof damage results to án adjacent land owher, he would.have a right of action against the commissioners of the county. We do'not agree with the contention of counsel that the damages allowed in the establishment of the road originally by the viewers in laying it out contemplates or covers all changes that may be made after-wards in'that highway.

In this case when this road was laid out and established, it was on a level with the surface of the land and did not interfere with the flow of the waters of these streams in ordinary flood. There was nothing to interfere with the flow of the waters by reason of the road as established. Therefore, there was no damage resulting from that cause; but in the judgment of the commissioners they had decided that under Section 7483 of the General Code there should be a change-made by filling and raising the road bed, or, in other words, a change of the - grade of the road. It is a substantial change that has been made or is about to be made, raising of the roadbed from four to five feet so as to put it beyond the flood waters of these streams i-n ordinary flood.

Now, the claim of the plaintiff is that when this is done substantially a material injury will result to his land. First, it will destroy about three acres of land, and about one hundred acres of land will be affected seriously and materially by reason of this improvement the commissioners are contemplating. If that be true there would certainly be a right of action in the plaintiff for damages against the county if such change were made.

We think the commissioners have the right to make the improvement contemplated, and they can not be enjoined from making it; but if substantial damage result to the plaintiff and his lands by reason of that change, the county must answer to the plaintiff in damages therefor; and the fact that there were or may have been damages allowed in the original appropriation does not interfere with the plaintiff’s right to maintain this action for damages occasioned by this contemplated improvement.

The general principle, we think, is very .well settled in actions of this kind. — in 33 Ohio State, p. 271, where the court lays down the rule and remedy to be followed. There is nothing appearing in this ease showing that the remedy at law would be a complete and adequate one. There is no allegation here that the damages would be irreparable or an action at law inadequate.

We think this question is really settled in Ohio by the 50 Ohio State, p. 628; the allegations in the amended petition bring the case within the principle there recognized.

If it were necessary for the benefit of the public to have this embankment made, when' by so doing the right of the plaintiff to have the water of these streams flow in their natural course will be interfered with to his damage, the county will be liable and would be required to make him whole for whatever injury is done him by reason of the change in the grade of this road.

Reading simply from the syllabus of the case, 50 O. S., p. 628:

“Where the grade of a public road has been established and the owner of abutting land has improved the same, by erecting and maintaining buildings thereon with reference to such established grade and with reasonable reference to the prospective improvement of the road and its future enjojunent by the public,’ and where the board of county commissioners has improved the road by changing such established grade, an action for damages will lie in favor of the owner against the board of county óommissioners, where, by such change of grade, the .owner’s free and safe passage from the road to and from his land and buildings thereon has been obstructed or impaired.”

In the case in the 50 O. S., supra, the injuries arose from interference with the plaintiff’s ingress and egress to his premises. We do not thnk there would be any difference in principle from that ease than the one at bar. By changing the grade of this road the result is or will be that the flood waters of these streams before the improvement was made did no damage to the plaintiiff’s land, but since the change the plaintiff’s land has been and will continue to be materially injured by the interference of the natural flow of the flood waters of these natural water-courses.

We think there is no question but the commissioners have the right to make the change or make the improvement, but they can not do it to the injury of plaintiff withodt answering in damages.

When they make the change for the benefit of the public, the public or county must answer in damages to the land owner whatever that may be. This case in the 50 O. S., supra, we think is useful and really determines the whole question as to the law of the case here involved.

There is a further principle recognized in this case that is useful, found in the concluding portion of the opinion at page 635, and is as follows:

“But it is urged in behalf of the defendant that the petition in the case sets forth a tort and that, therefore, the action .is not maintainable against the board of county commissioners in their quasi corporate capacity. County commissioners have power to improve any state, county or township road or any part thereof, by grading, paving, graveling, planking or macadamizing the same. Rev. Stat., Section 4829. Having exercised the power granted by statute of changing the grade of the road or highway, for the purpose of improving the same, there is no claim that the work was -done in a careless manner, and no question, consequently, arises of negligence in the discharge by the defendants of their official function. In their official capacity, as the representatives of the county having improved the road for the public beenfit by changing its grade, the sole question involved, viz., that of compensation by the county to the owner of the adjacent lands, gives rise to the inquiry as to any personal wrong, neglect or default on the part of the commissioners. ’ ’

The suit in the 50 O. S., supra, was a suit for damages, and the principle of law there recognized is in harmony with the case in 76 O. S., p. 529, and 82 O. S., 414, and as is held in 82 O. S.:

“A road supervisor and those working upon the road under his directions are, without regard to the motive which prompts them, liable in compensatory damages for the diversion of water from ’ its natural course casting it upon the lands of another, no right to make such diversion having been acquired by th’e public. ’ ’

Taking the view of the law we do in this case, we think the county commissioners in making this improvement, which is, or is supposed to be, for the benefit of the public, if they have changed the established grade of this highway whereby the flood waters are thrown in a different way and manner upon the plaintiff’s lands, and thereby have substantially injured the plaintiff, he has a right of action at law for damages, and we think his right of action would be an adequate one, that he would be entitled to recover the full damage that he has. sustained by reason of this act of the county commissioners; although it may be necessary in the interest of the public that it should be done, yet it can not be done to the injury .of the plaintiff without answering to him in damages.

Therefore, believing there is an adequate remedy at law, the demurrer to the amended petition will be sustained, and if the plaintiff does no't desire further to plead, the petition will be dismissed at the cost of plaintiff. Exceptions.


source: Caselaw Access Project

license: Public Domain

text:
    PROSECUTION FOR VIOLATION OF LOCAL OPTION.
    Circuit Court of Licking County.
    Robert Folliard v. State of Ohio.
    Decided, 1910.

      Evidence — As to Payment of Special Tax to D. S. Government as a Retail Liquor Dealer — Competent in a Prosecution for Violation of Local Option Law — Bill of Rights — Competency of Exemplified Records.

    1. The provision in the Bill of Rights that an accused person shall he entitled to meet the witnesses face to face, applies to parol testimony only, and does not har the introduction of public records or other instruments in writing which may become competent in the trial of a criminal case.
    2. Inasmuch as the rules of the Internal Revenue Department do not permit the removal of records from the offices of the collectors, and the state is without authority to compel the production of such records, an exemplified copy of so much of said records as will show that the defendant, on trial for alleged violation of the county local option law, had paid to the United States the special tax assessed against retail liquor dealers, of necessity becomes the best evidence that can he produced of that fact, and it is not error to permit its introduction.
   By the Court

(Taggart, J., Donahue, J., and Voorhees, J.).

The motion of plaintiff in error to file a petition in error in this court was for good cause allowed, and the petition in error was filed, and the cause submitted to the court upon the questions raised by said petition in error and the bill of exceptions taken in .the trial of the ease.

The first contention of the plaintiff in error is: that the court erred in permitting the state to introduce a, certified copy of the record in the internal revenue department of the United States, showing that said defendant below had paid to the United States, the special tax as a retail dealer in intoxicating liquors.

It is insisted that this- is in volation of Section 10 of the Bill of Rights, and particularly that part of the section which provides that the accused shall be entitled to meet the witnesses face to face. But, in the opinion of the court, this section has no application whatever. That applies to the parol testimony of a witness only, and not to the introduction of public records, or other instruments of writing, which may become competent evidence in the trial of a criminal case.

Section 4364-30v, Revised' Statutes (Section 6100, General Code), provides that the payment of such special tax shall be held to be prima facie evidence that the person or persons paying the same are violating the law prohibiting the sale of intoxicating liquors as a beverage.

This same question is raised in other cases submitted to this court at this term, and what we have to say upon the subject will be stated in this opinion, and not repeated in the opinions of the other eases.

In some of the cases it is insisted that -this is made competent evidence in civil cases only. Those are the terms of Section 4364-15, Revised Statutes (Section 6092, General Code), but Section 4364-30j/ also- expressly provides that the payment of such tax is competent evidence in a prosecution for the violation of the liquor laws.

It is insisted, however, that the original record itself must be introduced in evidence and that a certified copy thereof is not competent evidence. In answer to that contention it is sufficient to say that the best evidence of which a case in its nature is susceptible must be introduced This rule applies to criminal as well as civil cases. In fact the general rule as to competent evidence in criminal cases is not different from that in civil cases, except as to the constitutional provision contained in Section 10 of the Bill of Rights.and such other differences as are expressly provided for by statute. Otherwise evidence that is competent in civil cases is equally competent in criminal cases.

Under the rules and regulations of the internal revenue department of the United States these records are not permitted to be taken from the office of the collector, and the state has no authority to control the policy of the general government in that respect. Therefore the best evidence that can be obtained touching the matters and things contained in this record is, of necessity, an exemplification of that record.

By Section 5245 of the Revised Statutes (Section 11500,'Gen-eral Code), it is specially provided that copies of any books, maps, records, papers or documents on file or deposited in any of the executive departments of the United States Government, authenticated under the seal of such department, shall be competent-evidence and have the same force and effect as the originals would if produced.

To the same effect is Section 906 of the United States Statutes.

Therefore in view of this provision of the law ,and in view of the fact that this is not the parol evidence of a witness, the introduction of this certified copy of the record was and is authorized by the statute and 'is not in violation of the Constitution of the state, and the court was not in error in admitting it in evidence.

The next contention of the plaintiff in error is, that the evidence offered by the state does not sustain the conviction, or that the finding of the court is against the manifest weight of the evidence.

It is true that there is a serious conflict of evidence in this case, but under the statute to which we have just called attention the proof of the payment of this special tax makes a prima facie case, and coupled with that is the positive evidence of a witness who testifies that he bought intoxicating liquors from the accused at the time and place mentioned in the affidavit. True this witness is a detective and there are some things in connection with his cross-examination which affect his credibility, but from the whole record this court can not say that the finding of the trial court is so manifestly against the weight of the evidence as to require a reversal for that reason.

Therefore the judgment óf the common pleas court 'is affirmed and the cause is remanded for execution.


text:
    CARE AT A PUBLIC CROSSING.
    Circuit Court of Morrow County.
    The Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. James Cornwall.
    Decided, July 10, 1911.

      Negligence — Wagon and Team of Horses Injured at a Railroad Grossing — Crossing and Adjacent Tracks Obscured by Smoke of Passing Train Which Was Immediately Followed by Another Train Booking Over Grossing — Contributory Negligence — Burden of Proof —Error of Court in Refusing to Direct Verdict for Railway Company.

    1. Where a person, in a wagon drawn by a team of horses, approaching a railroad crossing on a public highway, stops upon hearing the ‘ whistle of an approaching train, and, after such train passes over said crossing, which leaves said crossing and the adjacent tracks of the railroad obscured by smoke, immediately drives upon said crossing, without waiting for such smoke to disappear that he might have an unobstructed vision; and without taking other precautionary steps in the exercise of ordinary care to avoid danger, and his wagon and team of horses are injured in a collision with another * train passing over said crossing, immediately after said first train, has passed over said crossing, is negligence, and- will defeat a recovery for such injury to which such negligence contributed.
    2. Where the danger at a railroad crossing is increased by a volume of smoke upon such crossing, or other conditions - obstructing the ' vision, greater care and caution are imposed upon one about to pass over such crossing.
    3. It is error upon the part of the trial court to refuse to sustain a mo- - tibn, at the conclusion of plaintiff’s evidence, .to direct a verdict for the defendant, in a collision case at a railroad crossing on a public highway, where the testimony of the plaintiff raises a clear presumption ' of negligence on his part which directly contributed to the injury of his property, in the absence of any tangible proof given tending to rebut such presumption.

      4. In an action for damages for alleged negligence, where the defense of contributory negligence is interposed, it is error upon the part of the trial court to instruct the jury that “the burden of proof is upon the plaintiff of proving the negligence of the defendant as • charged in the petition, and the burden is upon the defendant to ■ make out the evidence of contributory negligence by the plaintiff’s servant or agent,” without the further instruction that if plaintiff’é own testimony in support ot Ms cause of action raises a presumption of such, contributory negligence, the burden rests upon him to remove that presumption.

      Cummings, McBride & Wolfe, G. H. Wood and Benjamin Olds, for plaintiff in error.

      T. B. Maleer, contra.
    Shields, J.; Yoorhees, J., and Crow, J., concur.
   This proceeding in error is prosecuted in this court to reverse the judgment of the Court of Common Pleas of Morrow County, Ohio, wherein the plaintiff in error, defendant below, recovered a judgment against the defendant in error, plaintiff below.

The defendant in error brought suit in the court below to recover damages against the plaintiff in error for its alleged negligence and carelessness in destroying a certain vehicle and harness, and so crippling his team of mules that it became necessary to kill one of said mules belonging to the defendant in error. The amended petition, in substance, recites that said railway company is an Ohio corporation, that at the time hereinafter named it operated a line of railway between Cleveland, Ohio, and Cincinnati, Ohio, running through said Morrow county, Ohio, and that said railway crossed a public road in said Morrow county, in Gilead township, known as the Brocklesby crossing, which was used by the public in traveling on foot and in vehicles.

“That on the 20th day of January, A. D. 1909, -between the hours of nine o ’clock and ten o ’clock a. m., one Ray Cornwall was traveling in a westerly direction along said public road in a covered vehicle drawn by a team of mules, and while in the act of crossing the defendant’s railroad tracks the defendant caused one of its locomotives and train of cars to approach said crossing, and pass over the tracks of said railroad, and negligently and carelessly omitted while so approaching said crossing to give any signal by bell, whistle, or otherwise, and by reason thereof the said Ray Cornwall was unaware of its approach.
“Plaintiff further says that said locomotive and train, consisting of four, cars and one caboose, as run by .said defendant, was not properly equipped with power brakes, used and operated by the engineer of said train, as-required by statute, all of which was unknown to the said. Ray Cornwall and this, plaintiff.
“Plaintiff further says that by reason of the negligence of the said defendant in not sounding .the whistle -or ringing the bell in approaching said crossing, and in running said train without properly equipping the same with power brakes and without any fault or negligence of the said Ray Cornwall, the said locomotive struck said vehicle and team of mules and utterly destroyed said vehicle and harness and crippled said mules to such an extent that it was necessary for the humane officer of Morrow county, acting upon the request of the defendant, to kill one of said mules, and all without fault or negligence whatever on the part of the plaintiff, his agent, or servant. That said vehicle, harness and team were the property of the plaintiff, and said mule which was killed, together with the harness and wagon which were injured, were of the value of $200.00.
11 That the said Ray Cornwall before driving upon said crossing had waited for a freight train to pass said crossing and immediately drove upon said tracks before the smoke of said freight train had cleared away, when the train causing the damage to this plaintiff, consisting of a locomotive, running backward and pulling four cars and a caboose, and known as the ‘ water train, ’ and in close proximity to said freight train, approached said crossing with great speed, and the 'said defendant negligently and carelessly neglected- to either ring the bell or blow the whistle in order to warn the said Ray Cornwall of the approach of said water train, and that by reason thereof the said Rajr Cornwall was unaware of the approach of said train, whereby this plaintiff sustained a loss of his vehicle, harness and one mule, all of the value of $200.00.”

Then follows an allegation that the plaintiff lost the use of his mule and vehicle for a period of three months and was out of employment for said period of time and that by reason thereof he sustained the further loss of $120.00, for which sum, with the injury to the vehicle and harness and the loss of his mule, he asks a judgment for the sum of $320.00 against said railway company, with interest thereon from the date of said accident.

To this amended petition the defendant railway company answers, admitting its corporate character, that it operated a line of railway from Cleveland, Ohio, through said Morrow county to Cincinnati, Ohio, and that said railway crossed a road in said county, known as the Brocklesby crossing. It further alleges that it is ignorant as to any injury to plaintiff’s vehicle, harness and mule, and denies the same, and denies the loss of employment by reason of said alleged injury, and denies that said property and loss' of employment are of the value alleged. It denies that it carelessly and negligently run and operated its said train as alleged, and it denies, that it was guilty of any fault, carelessness and negligence whatever that in any way contributed to any injury to the plaintiff or to his property.

For a further defense the defendant alleges that the injury to the plaintiff or to his property, if there was any, was caused by the fault, carelessness and negligence of the plaintiff himself, his agents • or servants. In short, the answer is a general denial of the negligence charged, and charges contributory negligence upon the part of the plaintiff.

To this answer the plaintiff filed a reply denying that the injury complained of was caused by the fault, carelessness and negligence of the plaintiff, his agent or servant. In short, he denies all contributory negligence.

With the issues thus made up between the parties, trial was had, and at the close of the plaintiff’s testimony, the defendant, through his counsel, made a motion that the court instruct the jury to return a verdict for the defendant, which motion was overruled by the court, to which ruling of the court the defendant excepted. Thereupon said cause was further submitted to the jury and a verdict was returned by the jury in favor of the plaintiff. A motion was duly filed for a new trial which was overruled by the court and judgment entered upon said verdict.

Thereupon a bill of exceptions was prepared and signed, and a petition in error filed in this court to reverse the judgment of said court of common pleas. While several grounds of error are assigned in said petition in error for said reversal, counsel for plaintiff in error in their argument to this court rely mainly on two of said grounds of error, namely, that the court erred'in refusing to sustain the motion of the plaintiff in error, defendant below, to direct a verdict in its favor upon the conclusion of the testimony of the defendant in error, plaintiff below, and that the court erred in its instructions to the jury as to the burden of proof in the case.

The testimony in the case tends to show that the plaintiff at the date named in the petition was the owner of the property injured. That between nine and ten o’clock a. m., on'said date, Ray Cornwall, a son of the plaintiy, then agéd fifteen years, was driving a team .of mules attached to a wagon, covered with canvas in front, over a milk route for his father, and in making said route drove over the Broeklesby crossing, going eastwardly, just before the accident, to a farmer’s house near to said crossing to get a can of milk, and after getting the milk, he started westwardly, driving back on the same road, until he says he heard the whistle of a locomotive attached to a freight train on the defendant’s railway, going southwardly, when he stopped his team and wagon within a hundred feet of the track, and after the freight train went over the crossing it left a volume of smoke on the track, at and near the crossing and up as far as the whistling post some eighty rods north of the crossing, which smoke owing to the foggy condition of the weather “held close to the ground near the track. ’ ’ After the freight train passed over the crossing said witness testifies that he immediately started to go over and was on the crossing with the team and wagon when they were struck by what is known as the “water train,” which backed down from the direction of said whistling post, without giving any signal, resulting in the injury complained of.

On direct examination (page 4 of the record) he testifies as follows:

1 ‘ Q. Now tell the jury what happened when you come to the railway crossing there, what you done as to driving upon the railroad of the Big Four at the Brocklesby crossing ? A. When I came to the railroad crossing I saw a freight coming and I stopped and waited until it went across and then I started right up just as soon as it got across, and I could not see the other train for smoke of the first one, and I pulled right on the track and when I got on the track why Mrs. Fields hollered and I raised up and looked and there was the other train right onto me.”

On page 5 of the record:

‘ ‘ Q. State if there was anything obscured your view from the north? A. The smoke of the freight train for one thing.
“Q. Anything else? A. There wasn’t much of anything else except the smoke of this first train.
‘ ‘ Q. How long had you been driving on the milk route ? A. Abourt a year, put it all together. ’ ’

On cross-examination (page 8 of the record) :

“Q. You passed over that track very frequently? A. Yes, sir.
‘ ‘ Q. Now what do you say the condition of the weather was that morning? A. It was kind of foggy that morning.
“ Q. And after the train went by did the smoke clear immediately away? A. Well, kind of rolled back of the train.
“Q. It was a foggy morning you say, and the smoke held close to the ground near the track? A. Yes, sir.
“Q. And how far back of the train did that condition occur, this smoke ? A. Oh, just quite a ways.
“Q. And was the smoke on the crossing there yet when you drove up on it ? Had it cleared away, or was it yet smoky there 1 A. A little smoky, but not so much when I drove up on the track, it kept rolling back.
‘1Q- After you drove on the track it began to get a little smoky and still the smoke came on as'you got on the track, is that the way I understand you ? A. I seen the smoke when-1 drove on the track, yes.”

On pages 11 and 12 of the record:

‘1Q. Now when you come right up close to the track, Ray, how far can you see up the track? A. You can see quite a ways up the track.
“Q. See to St. James? A. Yery nearly, see the smoke of St. James when you get right on the track.
“ Q. Is the track straight or otherwise ? A. It is straight.
“Q. It is a straight track from the crossing up to St. James, isn’t it? A. I think so.
‘ ‘ Q. AVhen you get up to the track, you can see just as far as your eye will carry you, isn’t that á fact? A. Yes.
“Q. How soon after this first train had passed did you drive on the track? A. Just as soon as it had passed I started up and drove right on the track:
“Q. You didn’t think another train was coming? A. No; I had no idea of another train coming.
”Q. You thought when that train had gone by, that’s all there was of it, you could drive right across, and that’s what you attempted to do? A. Yes.
“Q. Just as soon as that train went by you just started your mules and went right across the track? A. Yes.
“Q. Without attempting to see if there was another train coming ? A. I looked up the track but I didn’t suppose another train was coming though.
“Q. .Why did you look up the track? A. I don’t know what drawed my attention up th-at way.
‘ ‘ Q. You just happened to look up there ? A. Yes.
“Q. You didn’t look up to see if a train was coming? A. Not particular.
“Q. Did you listen to hear if there was another train coming? A. No, sir; just as soon as the other train passed I pulled up.
”Q. You just took it for granted that another train wasn’t coming and drove right up on the railroad? A. Yes.”

Testimony was given upon the trial below, tending to support the allegations in the amended petition that no statutory signals were given by the locomotive attached to the water train as it approached the crossing-, and that it was not properly equipped with power brakes, although it does appear in testimony that two or more “short blasts” were given by said locomotive when said train was within a few feet from said crossing, not at such distance from the crossing, however, as the statute requires, the necessity of which, for the protection of the traveling public, becomes apparent in a case of a backing train upon and over a public crossing, but the omission to give such signals would not relieve the witness from the necessity of exercising ordinary care, for the protection of himself and his property, when about to go over this crossing, nor would the omission of the railway company to properly equip its cars with air-brakes, excuse such care, unless it be made to appear that such omission produced the injury complained of. But aside from the alleged negligence of the railway company in the respects complained of, does the evidence introduced upon the trial show such contributory negligence upon the part of the witness, Ray Cornwall, who was in charge of the property of the defendant in error at the crossing on the day mentioned, as to have warranted the court in sustaining the motion of the plaintiff in error, made at the close of the evidence of the defendant in error, to direct a verdict for the plaintiff in error! It appears by the evidence that said witness was familiar with said crossing, that the track of the said railway was unobstructed and could be seen for a long distance north of said crossing, perhaps twenty-five hundred feet, and except for the smoke emitted by the locomotive attached to the passing freight train, the approach of the water train could easily have been seen for a long distance north of said crossing. A person approaching a steam railroad crossing, which is a known place of danger, is presumed to exercise his or her faculties of sight and hearing — to look for the purpose and with the intent of seeing, and to listen for the purpose and with the intent of hearing'the approach of trains. True, the witness says that he stopped his mules and vehicle on hearing the whistle of the locomotive attached to the freight train until it passed over the crossing, but did the duty of exercising ordinary care then cease? Was he then relieved of further watchfulness ? The railway company had the right-of-way over its tracks and bad the right to run as many trains as its business called for, hence the duty of stopping, looking and listening was a continuing duty of the witness, not only until he approached, but until he passed over the crossing, and failing to do this, and the property of the defendant in error having thereby been injured, it was negligence on his part by which his right of recovery would be defeated. Among other things, the witness testified on cross-examination, that after the freight train had passed he didn’t look to see if a train was coming, nor did he listen to hear if there was another train coming, but proceeded to go over the crossing as soon as the' freight train passed. Under this testimony, the conclusion is clear that the witness failed in exercising the precaution necessary to authorize a recovery. He testifies that he could not see the water train approach because of the smoke left on the track by the passing freight train. If this is true, it only imposed upon him greater care and caution' before attempting to drive upon the crossing. Railroad Co. v. Kistler, 66 O. S., 326-344; The Penna. Co. v. Morel, 40 O. S., 388.

Again, in the case of The Baltimore & Ohio Railroad Company v. McClellan, Admrx., reported in the 69 Ohio State, at page 142, it is held by our Supreme Court that:

“1. The rule that a person in full possession of his senses of sight and hearing should exercise them to protect himself from danger when about to cross a known track of a steam railroad at a street crossing, applies to a condition where the atmosphere is more or less clouded by steam and smoke, and it is negligence on his part which will defeat a recovery for injuries received from a passing train, to undertake to cross without waiting for the atmosphere to clear so that his vision may be unobstructed, or taking other adequate means to ascertain the presence of danger.
“2. Where the testimony of the plaintiff raises a clear presumption of negligence on his part which directly contributed to his injury, but no testimony is offered by him tending to rebut that presumption, it is the duty of. the trial court to sustain a motion by the defendant made at the conclusion of plaintiff’s evidence to direct a verdict, and a refusal to sustain such motion is error. ’ ’

In the case at bar the undisputed facts are that the witness drove upon the crossing without looking or listening for a train, and it is held in the ease of The Cleveland, Columbus, Cincinnati & Indianapolis Ry. Co. v. Edgar H. Elliott, reported in the 28 Ohio State, at page 340 that:

‘ ‘ 1. The omission to ring the bell or sound the whistle at public crossings is not of itself sufficient ground to authorize a recovery, if the party, notwithstanding such omission, might, by the exercise of ordinary care, have avoided the accident.
“2. What is such contributory negligence as will defeat a recovery is usually a question of mixed law and fact, to be determined by the jury from all the'circumstances of the case and' under proper instructions from the court, but where the undisputed facts show that by the exercise of ordinary care a party might have avoided injury, he can not recover.”

The evidence submitted upon the part of the defendant in error, plaintiff below, being undisputed and without conflict on the main and vital issues involved, we are of the opinion that the motion to direct a verdict for the plaintiff in error, defendant below, should have been sustained.

Exceptions are taken to the charge of the court to the jury in respect to the burden of proof. On page 65 of the record the court instructed the jury as follows:

“The burden of proof is upon the plaintiff, as I charged you, of proving the négligence of the defendant as charged in the petition, and the burden is upon the defendant to make out the evidence of contributory negligence by the plaintiff’s servant or agent. ’ ’

The charge in' this respect, in our judgment, was not a full and correct statement of the law in this case. True, the burden of proving the negligence of the defendant was upon the plaintiff, but where the plaintiff’s own testimony raises -a presumption of contributory negligence, the burden rests upon him to prove it. In the case of The Baltimore & Ohio Railroad Co. v. Thomas Whitacre, reported in the 35 Ohio State, at page 627, it is held by our Supreme Court that:

“If plaintiff’s own testimony in support of his cause of action raises a presumption of such contributory negligence, the burden rests upon him to remove that presumption.”

Other authorities might likewise, be cited to the same effect, so that we think the jury was entitled to the further instruction that if the plaintiff’s own testimony raised a presumption of contributory negligence the burden was on him to remove it, and failing to give such instruction we think there was prejudicial error to the legal rights of the plaintiff in error..

Further exceptions are taken to the charge of the court in respect to the burden of proof, as the same appears on page 67 of the record, where the court instructed the jury “that if it appears in your judgment that the probabilities are in favor of the truth of such fact or circumstance, then such fact or circumstance is said to be proved by a preponderance of the evidence, and you should so find, although you are not satisfied or convinced of the truth of such fact or circumstance.” This instruction we think is open to objection as not containing a correct statement of the law, and we, therefore, hold it to be prejudicial to the rights of the plaintiff in error.

Other questions are made upon the record, but counsel were content to argue and rely upon the foregoing grounds of error, and we, therefore, do not deem it necessary to pass upon them in view of our conclusions reached in respect .to the motion to direct a verdict and as to the burden of proof.

The judgment of the court of common pleas will be reversed and said cause remanded to that court for further proceedings according to law. Exceptions noted.


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    IMPROPER VERIFICATION.
    Circuit Court of Hamilton County.
    Bantz, Guardian, v. Rover et al.
    Decided, January, 1911.

      Verification of Pleadings — Proper Procedure upon Discovery of — Construction of Will in Action for Partition and an Accounting.

    Failure to properly verify an answer and cross-petition should he cured by amendment, and the dismissal of such a pleading: because not properly verified constitutes reversible error.
    W. M. Tugman, for plaintiff in error.

      Chas. M. Cist, contra.
    Swing, J.; Gieeen, P. J., and Smith, J., concur.
   We think it was error in the court to dismiss the answer and cross-petition of Adam Bantz on the ground that the .“answer and cross-petition is not verified by the signature -of the attorney and does not show the name or seal of the notary public before whom it .purports to have been signed by Adam Bantz.” Under Section 5114, Revised Statutes, the court should have permitted the pleading to have been amended. 70 O. S., 88.

. We are further of the- opinion that the court should have sustained the demurrer to the original petition. But as no error is prosecuted to this judgment, this court can take no action i-n regard to it.

The original action was evidently brought under Section 6202, Revised Statutes, and asked for the construction of the will of Herman Rudolph Rover and for an accounting. Adam Bantz, as guardian of Iledwig Bantz, was not entitled to bring such an action. He had no trust to administer under said will and therefore could not maintain such an action (19 O. S., 468; 29 O. S., 147). -But in an action for partition and for an accounting between the parties the will could be construed and the rights of all the parties could be adjusted. 19 O. S., 51; 33 O. S., 128; 39 O. S., 590.

Judgment reversed and cause remanded for further proceedings.


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    BASIS OF ADDITIONAL COMPENSATION TO COMMON PLEAS JUDGES.
    Circuit Court of Morrow County.
    The State of Ohio, ex rel Edwin Mansfield, v. Clifton Sipes, Auditor of Morrow County.
    Decided, June, 1911.

      Salaries of Common Pleas Judges — Statutory Regulation Based Upon Population Because Litigation is in Proportion to Population — Regard May Be Had for Consideration of Injustice in Construing a Statute which is Ambiguous — Sections 128J¡a, Revised Statutes, and 2252, Q-eneral Code.

    A judge of the court of common pleas in a judicial subdivision containing more than one county, whose term of office began before the adoption of the present code, is entitled under Section 1284a,-Re-vised Statutes, to extra compensation calculated on the basis of the population of the subdivision, rather than on the basis of the population of the county where he happens to reside.

      Edwin Mansfield, for relator.

      J. G. Williamson, Prosecuting Attorney, contra.
    Voorhees, J.; Shields, J., concurs; Crow, J., dissents.
   The relator, Edwin Mansfield, represents to this court that on the 6th of November, 1906, he was elected judge of the court of common pleas in and for the second subdivision of the sixth judicial district of the state of Ohio, for the term of six years from the 9th day of February, 1907; and that he duly qualified and entered upon his duties as such judge and. has ever since said date and now is one of the judges of the court of common pleas of said subdivision and district.

That the defendant, Clifton Sipes, is now and at the time of the grievance hereinafter recited was the- duly elected, qualified and acting auditor of the county of Morrow and state of Ohio.

That said second subdivision of said judicial district at the time of relator’s election and qualification as such judge, as aforesaid, was and now is composed of the following counties in said state of Ohio, to-wit: Ashland, Richland and Morrow.

That said counties by the iast federal census preceding the election and qualification of relator, to-wit, the census of 1900, had the following population, to-wit: Ashland county, 21,184; Richland county, 44,289"; Morrow county, 17,879; total, 83,352.

That said relator at the time of his election and qualification as. aforesaid, was and now is a resident of said Richland county. At the time of relator’s election and qualification as such judge the statutes of Ohio then in force, Section 1284, Revised Statutes, fixed the salary of common pleas judges each at three thousand dollars. Section 1284a provided that each judge of the court of common pleas shall receive in addition to the salary allowed by Section 1284, Revised Statutes, as annual salary, equal to sixteen dollars per thousand for each one thousand population of the county in which he resided at the time of his election or appointment, as ascertained by the federal census next preceding his assuming the duties of his office, payable quarterly out of the treasury of the county of which he is a resident as aforesaid, if said county is a separate judicial subdivision, upon the warrant of the county auditor of said county, or if he resides in a judicial subdivision comprising more than one county, out of the treasuries of the several counties comprising said judicial subdivision, in proportion to the population of the several counties of said judicial subdivision, ascertained as aforesaid upon the warrant of the county auditor of said counties.

That on the 9th day of November, 1910, there was due to your relator, as judge of said court of common pleas in and for said subdivision from the county of Morrow the sum of sixty-eight dollars, for the quarter ending on said 9th day of November, 1910; that your relator has made a demand upon said defendant for said sum of sixty-eight dollars for the payment of the same, but the defendant has neglected and refused to issue his warrant to your relator in payment of the same. •

Whereupon your relator prays that a writ of mandamus commanding the said auditor of Morrow county to issue a voucher to relator for said sum of sixty-eight dollars and interest from November 9th, 1910, and commanding said Clifton Sipes, the auditor aforesaid, to deliver his warrant on the treasurer of Morrow county in favor of relator for said amount.

The prosecuting attorney of said Morrow county demurred to said petition on the ground that the petition does not state facts sufficient to constitute a cause of action.

The- cause was submitted to this court at its May term, 1911, upon the petition and the demurrer theréto.

A solution of this question involves a construction and interpretation of the sections of the statutes referred to, being Sections 1284 and 1284a, the terms of which are substantially set forth in the petition. Although the section of Revised Statutes, 1284a, has been changed somewhat in its language, form and punctuation by the General Code, Section 2252, it does not materially affect the question we have here, as the relator’s term of office began before the adoption of the code, but it may be useful, as reflecting the legislative intent, to notice Section 2252 of the General Code. It will be observed that the section last named is logically divisible into'two parts, the first making provision for the additional salary of common pleas judges where the county of his residence comprises an entire subdivision of a district; the second, where the county of his residence is one of two or more counties comprising a subdivision.

The statute provides that each judge shall receive an annual salary'equal to sixteen dollars for each one thousand population of the county in which he resided when elected or appointed, if in a separate judicial subdivision.

In the latter clause it provides that if he resides in a judicial subdivision comprising more than one county such salary shall be paid from the treasuries of the several counties of the subdivision in proportion to such popidation thereof.

Where the subdivision comprises but a single county the statute has specifically fixed the basis of the judge’s salary at sixteen dollars per thousand inhabitants. Where the subdivision comprises more than one county the statute is silent as to the basis of. the salary, providing only for division of the same proportionately among the counties; hence the basis for fixing the salary is left to the intendment of the statute.

In fixing the salary in the former case, the Legislature has chosen the population of the county as the equitable basis, on the theory that the more people in the subdivision the more labor would be required. Hence, in fixing the salary for the latter class, the rational deduction would be that the population of the subdivision would be the proper basis.

This basis of fixing salaries in the second class of subdivisions gives to all the judges in a subdivision (who are supposed to apportion the work eqiiitably between them), the same salary and follows the distinction made by the Legislature between populous and sparsely settled subdivisions.

There are certain facts, circumstances and conditions concerning the work and compensation of the common pleas judges in the state, and the various judicial subdivisions that courts should and can of right take judicial notice of in considering a question of construction such as we have here. It ma.y be assumed that:

The amount of labor of common pleas judges is in-proportion to the population of the counties or Subdivisions of the district over which the judges have jurisdiction, .and that the amount of litigation bears a reasonable proportion to .the population of the county or subdivision in which the judge resides. This fact furnished a reason for the statute creating the difference in the amount of compensation of common pleas judges.

It is also judicially known that the population of the counties composing a judicial subdivision are not always equal, and the judge of the common pleas court is not exclusively a judge in the county where he may reside. He is a judge for the whole district, for that matter, and by Section 648, Revised Statutes, the work of the district shall be divided and apportioned among the judges as nearly equal as practicable. As heretofore observed, judicial districts of the state and the subdivisions therein are not all equal in population or in the volume of business to be transacted, or that is expected to come before.the court. A judge of a district or subdivision is subject to be assigned, or may be required to hold court in any county in the subdivision or district.

Now, that being so, is it, or would it be fair, just or reasonable that a judge residing in a small county should be required to serve in a county in his district or subdivision where the volume of business is'much larger and requires more time in the discharge thereof, than in his own county ? Yet when the state comes to pay him, his' compensation is to be measured by the population of his county, while his more fortunate associates who reside in the more populous county, who are not required or expected to do any more work than he does, receives several hundred dollars more compensation.

It may be urged in answer to this unjust interpretation of the law that it is an .argument that should be addressed to the Legislature and not to the court. That is doubtless true as an abstract legal proposition, as it is the province of courts to simply construe and enforce, but not to make a statute. Considerations of injustice, inconvenience and absurdity must be addressed to the Legislature, and if the legislative intent is clear it must prevail ; but where it is ambiguous and susceptible of two constructions the courts will give that construction which best comports with principles of reason, justice .and convenience.

Now, we know from experience and from the history of the practice in the state, under this statute, that in many subdivisions and districts the practice is to compute the extra compensation <o£ the common pleas judges on the basis of the population of the subdivision and not the county where the judge may reside. This being true, it shows that' this statute is not clear in its terms and the legislative intent is subject to two constructions; therefore the courts should give the statute that construction which best comports with the principles of reason and justice. It is presumed that the Legislature intended the law to operate justly.

It may be urged that the construction that has been given in some of the subdivisions as to the interpretation of the statute as to the population of a subdivision being the basis of the extra compensation rather than the county where the judge resides, is not binding on this court, yet it is strongly persuasive, especially when it seems so manifestly just that such construction should be considered as the legislative intent.

Therefore, we hold that the relator is entitled to have a writ of mandamus issued in this case as- prayed for in his petition.

The principle and rule of construction contended for in this opinion finds support in many decisions of the Supreme Court of the United States, as shown by Enc. of U. S. Sup. C. Rep., Vol. 11, p. 151, subdivision 11, and authorities cited in notes 97, 98 and 99; as well as the Supreme Court of our own state. Among the, latter maji" be cited, Moore v. Given, 39 O. S., 661; 1 O. S., p. 365; 31 O. S., p. 285, and cases outside of our state cited in the opinion of 39 O. S., supra,, at page 658.

The demurrer to the petition in this case is overruled and the writ of mandamus ordered to be issued as aforesaid. Exceptions.


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    DAMAGES ON ACCOUNT OF THE FREEZING OF APPLES IN TRANSIT.
    Circuit Court of Hamilton County.
    The Louisville & Cincinnati Packet Company v. J. W. Long.
    Decided, August 5, 1911.

      Carriers — Negligence in Permitting Apples to Freeze While in Transit-Acts of God Can Not he Interposed as a Defense When Not Pleaded.

    1. The introduction into a charge to the jury of acts of God as a matter • of defense, when no such defense had been pleaded, constitutes error, hut in the case of a carrier' sued for the value of a shipment of apples frozen in transit the error was prejudicial to the plaintiff rather than the defendant and therefore not ground • for reversing the judgment on the application of the defendant.
    2. The freezing of a shipment of apples while in transit is not due to any inherent nature of the fruit which could not be guarded against, hut to the negligence of the carrier.

      Stephens, Lincoln & Stephens, for plaintiff in error.

      ChfM'les Broadwell, contra.
    Jones, J.; Smith, P. J., and Swing, J.,'concur.
   The petition filed in the common pleas court by defendant in error, alleges that, ‘ ‘ on the 12th day of December, 1904, at Louisville, Kentucky, plaintiff delivered to the defendant, in good order, certain goods, the property of the plaintiff, to-wit: 102 barrels of apples of the value of.$230, and in consideration of $31.15 paid by plaintiff to the defendant, the defendant agreed to carry said goods from Louisville to Cincinnati and there deliver said goods to plaintiff in good condition. The plaintiff did not safely carry and deliver said goods in accordance with said agreement, but so negligently and carelessly conducted itself in that behalf that said goods were wholly lost to plaintiff to his damage in the sum of $230.”

The damage as disclosed by the evidence consisted in the freezing of the apples while in transit.

To this petition defendant below (plaintiff in error here) filed its answer, admiting that it received certain goods on the 12th day. of December, 1904, at Louisville, Kentucky, to-jyit, 102 barrels of apples, and agreed to. carry the said goods to Cincinnati, Ohio, and denied each and every other allegation of the petition. For further answer, defendant says:-

‘ ‘ That said shipment of apples was made at New Amsterdam, Indiana, December 1, 1904, under a bill of lading, which provided that the said 102 barrels of apples would be delivered at Cincinnati, Ohio, without unnecessary delay, the danger of navigation, fire,-explosions, mobs, riots, insurrection, bridges and all ' other known and unknown restrictions or accidents excepted, .unto the consignee, with privilege of lightering, storing, towing, ..re.-shipping and changing carrier. * * * That said apples were carried in an open barge from New Amsterdam to Louisville . for.-a.period of about twelve days, and were not delivered to or . .re-shipped upon the defendant’s boat under said bill of lading unfil the 12th day of December, 1904, and defendant believes and , alleges -that if said apples were frozen they were frozen upon v.gaid open barge and before delivery to this defendant. ’.’

For further defense,’this defendant says, “that if said apples were frozen, while in its possession, which it denies, said freezing was caused by the inherent nature of the goods carried and the unusual condition of the weather ’and without any negligence on the part of this defendant whatsoever.” The defendant also says for further- defense ‘ ‘ that immediately upon the arrival of said goods at Cincinnati December 13, 1904, it notified the plaintiff, but that the plaintiff failed to remove said goods within a reasonable time under the circumstances, and that if said goods were frozen while on the wharf boat of the defendant, which this defendant denies, said accident was caused by the negligence of the plaintiff in failing to remove said goods promptly. ”

The.case went to trial before a jury upon these issues. It will be seen that the plaintiff charged the loss of the .goods wholly on account of the negligence of the defendant. The defendant .on -the other hand denied that the goods were damaged, and further answering, said that if frozen, they were not frozen through any negligence on- its-part;, that said freezing occurred either .on the open barge between New Amsterdam and Louisville and before delivery to it, or thejr were frozen after being unloaded and placed upon the wharfboat in Cincinnati, owing to the negligence of the plaintiff in not removing them within a reasonable time.'

' The other defense is as.to the nature of the goods and the unusual condition of the weather at that time and needs no further re-statement. The case went to the trial upon these issues which were clearly set out in the pleadings and upon the issues as made in the pleadings and the law applicable thereto.

We find no error except in the charge of the court. Plaintiff in error complains of the following language in the general charge of the cotirt, which is also contained in substance in a special .charge given “nothing would excuse the carrier for failure to . safely deliver the goods committed to its charge for transportation, except the acts of God and the public enemy. ’ ’

We are of the opinion that it was error in the trial cotirt to inject into the charge a defense not made in the. pleadings. - .It will be seen, that -nowhere in the answer does the defendant below seek to defend on the ground that the freezing of this cargo of apples was the act of God. This being the case it must be conceded that it was error for the court to refer to such a defense, but after careful consideration, we fail to see how this could have been prejudicial to the defendant. If it had any influence upon the minds of the jury, it certainly must have been such as would lead them to believe that the court took the view that the freezing of the apples may have been occasioned by the act of God for which the defendant would not be liable,-and thus a great burden was placed upon plaintiff.

In all other respects we find that this case was tried upon the issues and that the charge of the court upon the doctrine of negligence was correct. It'may be that the reference to the act of God in the charge was caused by something said during the arguments of the counsel to the jury; but however that may be, the doctrine had no place in this case. The freezing of fruit in this latitude in the month of December must be attributable' to the negligence of man, rather than to the act of the Almighty.

The plaintiff in error also contends that this judgment should be reversed because the evidence shows conclusively -that the freezing of the a-pples was due to their inherent mature and could not be guarded against. The question as to whether the carrier exercised the proper degree of care to protect the fruit after arriving in Cincinnati was fully presented to the jury; also as to whether the consignee had exercised due care in removing the apples from the wharfboat within a reasonable time. ' These questions were fully presented by the evidence and the charge of the court and the jury found in favor of the plaintiff. We can not disturb this verdict. It is an inherent quality of apples, and indeed all kinds of fruit after it has been gathered, to decay, but we doubt that it can be truthfully said that it is an inherent quality of apples to freeze any more than it is an inherent quality of man to freeze. The freezing of either is usually, if not always, caused .by man’s negligence, rather than by any inherent nature or any act of God.

Finding no error therefore prejudicial to the plaintiff in erro the judgment of the court of common pleas will be affirmed.


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    CONSTRUCTION OF A LAND SYNDICATE CONTRACT.
    Circuit Court of Hamilton County.
    James E. Mooney, Trustee, v. C. W. Nagel, Assignee, et al.

    Decided, July 29, 1911.

      Agreement to Unite Together in the Purchase and Sale of Lands — Status of One of the Parties Thereto Who Rendered Services in Lieu of Advancing Money for Carrying Out the Enterprise.

    The agreement involved in this action and set forth in the opinion js construed to have made B a partner in the contemplated purchase and sale of lands; and having performed all the conditions by him to be performed, B is entitled to receive his share of the proceeds of the enterprise after repayment to the other shareholders of the amounts advanced by them without interest.

      Rufus B. Smith, for the trustee.

      Edward Colston, Lawrence Maxwell, Jr., and Simeon M. Johnson, for Wallace Burch.

      Smith, P. J.; Swing, J., and Jones, J., concur.

       Affirming Mooney, Trustee, v. Nagel et al, 9 N.P.(N.S.), 385.

   • The court is of the opinion in the above ease that the appeal of James E. Mooney, trustee, brings before this court the whole case from the court of common pleas and that the case stands for trial here as it did originally in the court below. This being so upon the claim between the plaintiff and the defendant, Wallace Burch, the court is called upon to construe the following contract :

“We, James E. Mooney, T. B. Youtsey, A. S. Berry, Charles H. Kilgour, John Kilgour, John Zumstein and Wallace Burch, severally agree to and with each other, each in consideration of the agreements of the other, as follows:
“1. To form a syndicate to purchase such real estate as maj be determined upon by two-thirds of the shareholders herein.
“2. The number of shares shall be limited to six, five whole shares and two one-half shares, distributed as follows: to James E. Mooney, one share; to T. B. Youtsey, one share; to A. S. Berry, one share; to Charles IT. Kilgour, one share; to John Kilgour, one share; to John Zumstein, one-half share; to Wallace Burch, one-half share.
“3. The shareholders other than Wallace Burch shall each pay their proportional part of the money to be advanced for said one-half share held by him. The said Wallace Burch shall not be paid any of the proceeds of the sale of said real estate until the sums advanced for the purchase thereof, together with all interest and other costs shall'first have been repaid to the said shareholders, advancing the same out of the sales of the lands purchased under this agreement. The said Wallace Burch, in consideration of the profits in-sa.id one-twelfth interest, is to devote such time and attention as may be necessary to purchase the real estate hereunder; and by the direction of the officers of said syndicate, is to attend generally to all matters that may' be necessary to carry out this agreement.
“4. The title of all real estate purchased shall be conveyed to James E. Mooney, trustee, who shall hold the same in trust for the shareholders hereof in accordance with this agreement, and mahe such disposition of the same as he may be directed from time to time by two-thirds of the said shareholders herein. Said trustee shall receive one ($1.00) dollar for his services.
“5. The said shareholders shall elect from their number’ the President, Treasurer and such other officers as they may deem necessary. The compensation of said officers, for each shall be one ($1.00) dollar per year.
“6. Promptly upon (being notified so to do, each shareholder shall pay to the treasurer his proportional share of such sums of money as may be required to make the purchases of the real estate as aforesaid.
“7. It is agreed that the death of any of the shareholders herein, shall not determine this agreement; and each of the said shareholders agree that in the event of his death, prior to the termination of this agreement, his said share shall pass to his executors or other legal representatives, who shall carry out in his stead the purpose of this agreement to all intents and purposes the same as if he had not deceased.
“8. This agreement to date from the 30th day of June, 1887, and to cover the purchases of all real estate made since said date.
“James E. Mooney,
“T. B. Youtsey,
“A. S. Berry,
“Charles H. Kilgour,
“John Kilgour,.
“John Zumstein,
“Wallace Burch.”

The evidence clearly shows, and indeed it is not disputed, that the defendant, Wallace Burch, performed all the conditions of the above contract on his part to be performed and rendered all services required of him thereunder, and that for his services, for which he was given a one-half share in the syndicate, he has received nothing.

The trustee claims that Wallace Burch was not a partner with the other shareholders under the contract, and that the said Burch was not to receive anything from the sale of the real estate until the sums advanced by the parties thereto should be repaid to those advancing the money for the same with interest thereon.

As to the first contention, the court is of the opinion that the defendant Burch is a partner with the other shareholders in the syndicate; while the contract relates back to 1887, it was executed in 1889, before which time the defendant Burch was not a member of the syndicate, but had performed labor in relation thereto for which he had not been paid. He is mentioned and carried through the entire agreement; being given a one-half share, and in consideration of the profits in said one-half share he is to devote such time and.attention as may be necessary to purchase the real estate, and is to attend generally to all matters that may be necessary to carry out the agreement. He also had a vote in the election of the officers in said syndicate and seems in nowise to have differed from the other members except in the manner in which his one-twelfth share was to be paid for, to-wit, by services, which in this ease was equivalent to money. We think, therefore, that he was in all respects a full partner-under the terms of the agreement with the other members of the syndicate. , . •

As to the second claim of plaintiff, the court is of the opinion that the plaintiff and the remaining shareholders, other than Burch, are not entitled to receive the sums advanced by them with interest thereon before Burch shall receive any of the proceeds of the sale of said real estate.

The agreement does not so declare. Before he is to paid any of the procéeds of the sale of said real estate, the sum advanced for the purchase thereof, together with all interest and other costs shall first be repaid to the shareholders advancing the same. Nothing can be repaid unless it has been theretofore paid out. Interest -on the sums advanced would not be a payment by the shareholders which could be repaid to them, but would be a charge upon such sums; besides, the phrase “together with all interest and other costs” would seem to indicate that the “interest” here referred to was an expense to which the shareholders might be put as a part of the expense or cost in purchasing, organizing and maintaining the syndicate. What is to be repaid to the shareholders before Burch is to receive any of the proceeds of sale is such monies as have been advanced; but interest charged against the syndicate upon such sums would not be money advanced. . It seems therefore clear, that the “interest”' referred to in the agreement means such interest as might be paid by the shareholders that was necessary to place the real estate in proper shape upon the market, whether on deferred payments, loans, discounts, etc.

The court "is of the opinion, therefore, that the prayer of the cross-petition of Wallace Burch should be' granted and a décree may be taken similar to that in the court below.


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    THE AMENDED ACT RELATING TO THE RENEWAL OF CHATTEL MORTGAGES.
    Circuit Court of Franklin County.
    Arlington C. Harvey v. Antonio Ciocco et al.
    Decided, January 17, 1911.

      Constitutional Law — Validity of the Act Relating to the Refiling of Chattel Mortgages — Lengthening the Life of a Mortgage Not an Impairment of the Contract.
    Section 8565, General Code, as amended (99 O. L., 230), is not unconstitutional because an impairment of tbie obligation of contracts, nor retroactive as affecting the rights 'of. creditors, but applies to chattel mortgages then on file, and the lien created thereby will be continued if the mortgage is refiled within - thirty days next preceding the expiration of three years from the time the mortgage was originally filed.

      Raymond & Gibson, for plaintiff in error.

      P. M. Glish, contra.
    Rociibl, J.; Dustin, J., .and Allread, J., concur.
    Error to Common Pleas Court.
   The question involved in this case is whether under the act (99 O. L., 230) extending the time of refiling chattel mortgages from one to three years, a mortgage that was filed before the passage of the amended act was void as to creditors if not refiled within thirty days from one year from the time-of its original filing.

The amended act is word for word similar to the original law with the exception that the phrase “one year” is changed to “three years,” and it is clear to our mind that the amended act only related to the time of refiling, and had no other effect or purpose.

It did not change the original contract; it merely extended the life of the lien from one to three years without the necessity of refiling within thirty days from the expiration of one year from its date.

At common law, a lien did not exist on personal property unless it was also accompanied by possession. This rule was. no doubt, founded on public policy. To have permitted such a lien without possession would have opened wide the door for fraud not only upon creditors but upon others.

So, when it was decided to permit a lien to exist upon personal property without possession, in order that the same might not be .used to work a fraud, two things were required:

(1) That the mortgage be filed, for inspection by the public, with some public official.

(2) That such mortgage lien would only be valid, as against bona fide creditors for one year unless within thirty days before

. the expiration of such one year, it was refiled with a statement under oath of the amount still due.

This was required as stated by the Supreme Court in Seaman v. Eager, 16 Ohio St., 209:

“In order to prevent fraud or deception against the same classes of persons, by means of leaving mortgages on file in the proper office long after they have been wholly satisfied by payments or other discharges of which the public would have no means of knowledge.”

And the court went so far as to hold that the mortgage was absolutely dead as to creditors under this act if not refiled within the required time. Cooper v. Koppes, 45 Ohio St., 625.

The Legislature, however, evidently became convinced that public policy did not demand that the life of a chattel mortgage should only exist for one year unless it was refiled within thirty days from the expiration of one year from its original filing, and, therefore, the law was amended in its present form. In so acting the Legislature was within the province of its constitutional powers. It was for it to decide, if it saw fit so to do. what conditions should attach to a chattel mortgage after it was given as to its continued life and efficiency just' as much as it was within its power to pass a law, permitting a lien to be acquired by means of a chattel mortgage in the first instance.

. The Legislature was the sole judge whether the life of a chattel mortgage should be one’or three or more years, and the manner in which it could thereafter be continued as a valid mortgage.

In the ease at bar, when the mortgage was filed, it was a valid lien upon the chattels covered by its terms for at least one year. If the owner wished to continue it for a longer period.' he must refile it within thirty days from the expiration of one year from its original filing. But before the time had arrived at which it must be refiled, the Legislature concludes that the public will be best subserved by a requirement that a chattel mortgage shall be a valid lien for three years from its original filing without a refiling, in the intermediate time.

It is not questioned but what the Legislature may pass such an act as to mortgages thereafter filed, but if the Legislature deemed it wise to pass the law as affecting after filed or executed mortgages, why should it not apply to those already on file? For necessarily, those on file, a part of the time having already expired, will have to be refiled in a less period of time than the mortgages filed after the passage of the act. , The greater necessarily includes the less. There can be no good reason why, so far as the policy of the law is concerned, that it should not apply to a mortgage already on file.

The plaintiff, however, contends that the Legislature had no power to so lengthen the life of a mortgage then executed and on file, because so to do would work an impairment of the obligation contracts. And he argues that as- the law is a part of all contracts, that the creditors were parties to the original contract in relation to this mortgage.

But we search in vain to find in what manner creditors sustain a contractual relation to this mortgage.. For their benefit, and by grace of 'legislative enactment they may have an interest-in the property, if the mortgage holder does not comply with the conditions attached by the law permitting the existence of such mortgage. The law in existence at the time the required condition is to be ' exercised certainly is the law that should govern.

It is also contended that the amended act if applied to mortgages .that had already been filed would be retroactive, and. therefore, it could not be so applied.

But this law has nothing to do with the execution of the mortgage or its filing. These matters are provided for by other sections. It only applies to the time of refiling. In this case the time for refiling, had not yet occurred. It was an event to occur in the future upon which the law was to or could act. It did not give life to something that was long since dead or place new conditions or restrictions upon a past transaction. It was prospective and not retroactive in its effect and operation.

It is also claimed that if allowed to apply to the mortgage it would be an impairment of vested rights.

As indicated before, we do not see how it could so act. These creditors had no vested right in or to the property covered by this mortgage. They did not even have a judgment until long after the mortgage was given.' At most,-their interest was remote and speculative, and until the mortgage was satisfied they had nothing or could claim nothing.

It is clear from the act itself that it was intended to supplant the act which it repealed, and that every chattel mortgage then on file, or thereafter filed, must be refiled within thirty days from the expiration of three years from the time of its original filing, or it would thereafter be void as to bona -fide creditors. <

We find no error in the judgment of the court below and the same will therefore be affirmed.


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    REPLEVIN UNDER A CONDITIONAL SALES CONTRACT:
    Circuit Court of Richland County.
    Tischler v. Seeley.

      Replevin — Not Defeated t>y Transfer of Property, When — Conditional Sales — Tender of Money Paid Not Necessary, When — As to Time for Filing the Contract.

    1. An action in replevin, or an action for damages where the property is not taken, is not defeated by the fact that the defendant did not have actual possession of the property at the commencement of the action, where it appears that the defendant sold the property just previous to the commencement of the action and that the plaintiff was ignorant of that fact.
    2. Where an action in replevin is brought by the vendor under a conditional sale contract against a subsequent mortgagee of the property, a tender under Section 4155-3', Revised Statutes, requiring refunder of money paid, is unnecessary.
    3! A conditional sale contract, withheld from record for six months, but filed a few minutes before the filing of a chattel mortgage on the same property, is sufficient to preserve the lien, in the absence of any statutory provision as to when such contracts shall be filed.
    Adams, J.; Douglass, J., and Voorhees, J., concur.

       Affirmed without opinion, Tischler v. Seeley, 60 Ohio State, 629.

   This was a replevin suit brought .by Seeley against Tischler to recover possession of a dental chair, table and bracket alleged to be worth $160. The prayer is for judgment for that amount with interest, for possession can not be obtained. The property was not taken in replevin. The answer of Tischler is a general denial.

It seems from this record that Se.eley did give the possession of this property to Searle, under a conditional contract whereby the property was to become Searle’s after the payment of an agreed price, the price to be paid in installments. That conditional contract was in writing, properly executed and verified and was filed in the proper place six minntes before the chattel mortgage which Tischler had taken on the same property was filed, Tisehler’s chattel mortgage being filed in Crestline and the conditional sale contract being filed here in Mansfield. Searle had made some payments. There was evidence tending to show that Tisehler knew of this conditional sale of the rights of Seeley under the conditional contract. The bill of exceptions contains all the evidence and the charge of the court, but there are some eight requests to charge the jury which are in no way identified as a part of the bill of exceptions and they are not attached to the bill as exhibits.

Now, counsel for plaintiff in error claims that this judgment is erroneous because it appeared from the evidence that, at the time this action was commenced, Tisehler did not have possession of the property; but it nowhere appears in the record, as we think, that Seeley knew of that disposition of the property. The claim is further made that there was no tender made to Tisehler of any part of the amount that had been paid by Searle.

Counsel argues at length that an action in replevin, or an action in damages where the property is not taken in replevin, can not be maintained where, at the commencement of the action, the defendant did not have the actual possession of the property.

Now, Section 5827, Revised Statutes, provides that, if the property is not taken or is returned for want of the undertaking, the action may proceed as one for damages. The statute does not specify any particular reasons or instances in which the property is not taken, but it is general and unqualified that, if the property is not taken, the action may proceed as one for damages.

Some authorities have been cited in support of the claim of counsel for plaintiff in error, but, in Cobbey on Replevin, Section 66, we find this exception to the general rule:

“Whe|re the property was in defendant’s possession and wrongfully transferred by him shortly before the commencement of the action, or where the statute allows a replevin action to proceed as one for damages if the property is not taken, the rule is different. . In Michigan the action has been allowed to 'proceed, under their statute, even where the defendant pointed out part of the property named in the writ and plaintiff refused to take possession of it. ”

The plaintiff, under such circumstances, was not bound to give a new bond. Of course, the only result of a suit under such circumstances would be a money judgment. The property has passed beyond the process of the court.

We think that McBrian v. Morrison, 21 N. W. Rep., 368 (55 Mich., 351), has a case cited in the foot-note of the Michigan statute very similar to our statute on that subject, and we follow the principle laid down in that section.

Now, so far as Section 4155-3, Revised Statutes, and under that Section -2 is concerned, which provides that the vendor of property conditionally sold can not retake possession without repaying part of the price paid, that is, he must tender or refund the sum or sums of money so paid after deducting therefrom a reasonable compensation for the use of such property, which shall in no ease exceed fifty per cent, of the amount so paid, Tischler was not the purchaser of the property, but, assuming that he stood in the shoes of Searle, so far as the repaying of these sums is concerned, the Supreme Court in Weil v. State, 46 Ohio St., 450, 455, expressly hold that the requisites of this section of the statute as to the refunder of the money paid do not apply where the property is taken by legal process; it only applies where the party takes possession of the property without resorting to the courts. Where it is by legal process, by replevin suit, foreclosure of chattel mortgage, or by suit on contract or conditional sale contract, where the rights of the parties can be adjudicated by the court, that tender is not necessary.

Another question is made, that this conditional sale- contract was not filed immediately after its execution and delivery. The statute does not provide when these conditional sale contracts faVia.11 be filed. The provision is that until filed they are void as against purchasers and mortgages in good faith, etc.

We think that this disposes of all the assignments of error, and, after reviewing the evidence and the charge of the court in the light of the statutes and decisions of the Supreme Court, we find no error in the record and the judgment is affirmed.


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    EXTENT TO WHICH IRREGULAR. SEWER. ASSESSMENTS ARE ENFORCIBLE.
    Circuit Court of Montgomery County.
    Cyrus V. Osborne et al v. Frank T. Huffman, Treasurer, et al.

      Municipal Corporations — Assessment for Sewers — Extent to Which Collections Irregularly Levied May Be Enforced.

    Under the curative provisions of the statute sewer assessments, which are illegal for irregularity in the proceedings, are enforcible to the extent to which expense has been incurred which is properly chargeable against the property assessed and is not in excess of benefits.
    Wilson, J.; Summers, J., and Sullivan, J., concur.

       Affirmed without opinion, Osborn et al v. Huffman, Treasurer, 58 Ohio State, 697.

   This is an action to enjoin the collection of certain sewer assessments on account of irregularities in the proceedings.

It appears that after the authorities had divided the city into sewer districts, as provided by law, and let the contract for building the sewers in district number one according to law, they attached certain additional territory, embracing the real estate of the plaintiffs, to said district, extended the sewer system into the added territory, and let the extended work to the same contractor, upon the same terms as in the contract for the original district, without advertising the same, and without competition. No other irregularity is complained of.

At the time this action was commenced no work had been done under the contract so irregularly entered into, affecting the property of the plaintiffs, but pending the action the work has been completed and a number of the plaintiffs have connected their property with the sewer so constructed. It is alleged in the answer filed by the city, that it had accepted and paid for the work; that there are no defects in the construction; that it has been completed at a reasonable cost; that strict regard has been paid to the limitations of assessments, and that the real estate of the plaintiffs has been greatly benefitted. These allegations are admitted to be true, no reply having been filed in the ease.

It was also conceded on the trial, that the contract price paid for the work was the reasonable cost price.

The question to be determined here is: What are the rights of the parties under the existing circumstances ?

Upon the facts stated, under the authority of Uptington v. Oviatt, 24 Ohio St., 232, and Becker v. McCloud, 2 Circ. Dec., 561, we conclude that the assessments in this casé, though not conclusive, are enforeible to the extent expense has been incurred which is properly chargeable against the property assessed, and that within the meaning of the statute the expense so chargeable to the added territory is the whole of the contract price for the additional work, together with a proportionate share of the cost of the main in sewer district number one, not in excess of benefits.

It is therefore ordered that the temporary restraining order herein be dissolved; that the plaintiffs be adjudged to pay the assessments respectively as entered upon the tax duplicate, and that the parties hereto pay the costs made by them respectively.