text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan’y. Term, 1897.)
    King-, Haynes and Parker, JJ.
    IN RE DETENTION OF MINNIE HUMPHREY BY CHARLES E. TUAL, SHERIFF OF LUCAS CO., O.

      Right to take depositions of the adverse party as on cross-examination under sec. 5423, Rev. Stat., and to compel him to answer or he imprisoned for refusal—
    It, is in the interest of fair dealing-, of good practice and of justice that neither party to a suit should have the right to compel the other party to disclose his evidence by means of taking- his depositions as in cross-examination, under sec. 5423, R. S., and send him to prison for his refusal to answer questions, where the object is only to get out what the other party might intend to testify to if called as a witness in his own behalf. Sec. 5423, R. S., construed.
   King, J.

This application is made to a judge of the circuit court, to release Minnie C. Humphrey from custody of imprisonment upon an order of a notary public, committing her to jail for refusal to answer certain questions. Minnie Humphrey was one of the parties defendant in the case of Nelson, Morris & Co. v. William H. Schurtz et al., which was at the time of the taking of this deposition, and is now, pending in the court of common pleas of this county, and awaiting trial. Notice was served upon the defendants’ attorneys that the deposition of Minnie C. Humphrey, a defendant, would be taken before James H. Emery, a notary public in this county, at the office of the attorneys; and on the day in question, J;be parties appeared, the witness was sworn, and the examination proceeded until she refused to answer questions that were propounded to her by the plaintiffs’ attorney. Her attorney in the action presented to the notary public an affidavit, which was received by him; and Miss Humphrey, in answer to one of the questions, stated that she declined to answer for the reasons stated in her affidavit thus presented. The transcript of the proceedings before the notary does not show that the notary ordered her to answer, but does show that he advised her to answer. The mittimus, directed to the sheriff of Lucas county, however, does state that the notary ordered the said Minnie C. Humphrey to answer the questions. I think the mittimus is in all respects sufficient to hold this person m charge of the sheriff, so far as its form is concerned.

The next objection to this detention is, that one party to a legal proceeding of this kind has no right to take the deposition of an opposite party, when that party is a resident of the county, in good health, and it appearing that the party intends to be present at the trial of the case and testify if called upon so to do; and the affidavit presented before the notary states all these things, that she is not absent from the county, does not expect to be when the case is reached for trial; also that the plaintiff's are not attempting to take her deposition in good faith and with the intention or belief of ever using the sams on the trial of said cause, but are attempting to compel her to testify in advance of the actual trial of said action,- and to fish out in advance what her testimony will be, and to annoy and oppress her, etc., and the question is raised here, whether, under these circumstances, a party ought to be imprisoned for refusing to answer questions?

There has been some conflict in the decisions of the courts when this question has been presented. The courts of common pleas of this state have in several cases considered the question, and their decisions have been reported. In the 22 Bulletin, 250, is a decision of the judge of the court of common pleas of Greene county, holding that “a party, though a resident of the county and not intending to depart therefrom, nor unable to attend court by reason of sickness or infirmity,and who expects and intends to be present at the trial, may be compelled by the adverse party to give her deposition, and, in case of refusal, may be imprisoned for contempt. ” That case was decided in 1889. In November, 1894, the judge of the court of common pleas of Stark county, under substantially the same facts — and under exactly the same facts as appear in this case by the affidavit — -held that a party could not be imprisoned for contempt for refusing to answer questions. There are other decisions by the common pleas judges -of Ohio. These two are the most directly in conflict. In the 15 Bulletin, 167, a judge of the court of common pleas of Knox county held, under facts similar to these, that a witness not a party could not be imprisoned for contempt for refusing to answer questions.

The decisions of the supreme court of Kansas are cited, and these hold, without conflict, that a party cannot be imprisoned for refusing to answer questions under such circumstances. I notice that the judge of the court of common pleas of Greene county intimates that there is a conflict in the decisions from Kansas, but he does not cite a case which appears in 40 Kansas Kep. 30, and the conflict which he mentions is the conflict between the case reported in 12 Kansas,and the decisions reported in 38 Kansas, 408, and 39 Kansas, 291; there is no conflict between those decisions; the case in 12 Kansas being a case of an ordinary witness, and those in 38 and 39 Kansas being cases of a party, while the case in 40 Kansas is that of an ordinary witness — holding that they must answer, and could be committed for contempt, and the court in delivering the opinion — on page 30 — distinguishes clearly between the rights of the parties and the rights of an ordinary witness, and draws distinctions which we think are founded on justice.

The statute in Ohio, under which is claimed the right to examine a party, is sec, 5243. At the time when the Greene county case was decided, that statute read as follows: “A party may compel the adverse party to testify orally, or by deposition, as any other witness may be thus compelled.” But in 1894, the statute was very materially changed, and it reads: “A party may be examined as if under cross-examination, at the instance of the adverse party, either orally or by deposition, as any other witness; but the party calling for such examination shall not be concluded thereby, but may rebut it by counter-testimony.” It does not say: “Compelled to testify” generally, but “as if under cross-examination.” So that a party is entitled to cross-examine an adverse party, either orally or by deposition, and we take it that he may cross-examine under such circumstances and in such a case as would authorize him to take the testimony of a witness that he deemed and believed in good faith would give testimony favorable to his cause. Whether he would be entitled under any and all circumstances to take the deposition, anticipating that contingencies might arise which would prevent the witness from being present, it is not necessary to decide upon this application. This application shows upon its face that the object and purpose of taking this testimony is. not to secure testimony to use in behalf of the party upon the trial, but to cross-examine the adverse party in order that the plaintiff here may get information which will enable him, perhaps, to prepare his case for trial and present it upon the trial, and with no idea of using the testimony itself, unless it, or some part of it, shall be found favorable to his notions of what the truth is.

Hamilton & Kirby, for Relator.

Bernard F. Brough and Ralph Emery, for Defendant.

That appearing, it occurs to us, in the interest of good practice, in the interest of fair dealing between the parties, and in the interest of justice, that neither party should have the right to cross-examine the other, and commit him to prison if he fails to answer, when the object and purpose is simply to get out what the other party may be intending to testify to when called as a witness in his or her own behalf. We do not think that the purpose of this statute authorizing a cross-examination and permitting a contradiction, goes any furthér than to give the privilege to a party to examine his adversary on the trial, if he be a witness and present, or if there be circumstances which will prevent him from being present,in good faith to take his deposition. The good faith which will authorize him to take his deposition, appears from the positive allegations of this affidavit and application, to be wanting. It was not contradicted before the notary; it is not contradicted here, but conceded; and therefore, under such a state of facts as is here presented, we are of the opinion that the relator should be discharged from custody, and that will be the order of the judge.


source: Caselaw Access Project

author: Price J.

license: Public Domain

text:
    (Third Circuit — Hancock Co., O., Circuit Court
    May Term, 1897.)
    Before Day, Price and .Norris, JJ.
    THE ST. MARYS’ WOOLEN MANUFACTURING CO. v. THE BRADFORD GLYCERINE CO.

      Storing dangerous explosives — Liability without proof of negligence—
    One who taxes and keeps upon his own premises, material or substance which in itself is dangerous and liable to explode and do injury to person or property on adjoining premises, or on premises in the neighborhood, or vicinity, and it does explode, such person is liable in damages for the injury directly caused theroon by such explosion, without proof of negligence in storing or caring fur such material or substance.
    Error to Court of Common Pleas of Hancock county.
   Price J.

This cause was heard and decided in the court below upon the following agreed statement of facts:

“The plaintiff, the St. Marys’ Woolen Manufacturing company, is a corporation, and the defendant, the Bradford Glycerine company, is a partnership, organized for doing business in the state of Ohio. The plaintiff, at the time of the injury, owned real estate in the village of St. Marys’, whereon buildings are erected, which buildings were there at the date of the explosion, on the 25th da-y of January 1896.
“At that time, the defendant was the owner of a magazine and contents containing about fifty quarts of nitro-glycerine, used by the defendant in its business of manufacturing, storing and vending nitro-glycerine, which magazine was situated on a tract of land belonging to one W. G. Kishler, and situated something over a mile west of the buildings so owned by the plaintiff in St. Marys’, Ohio, and situate about one-fourth of a mile distant from the corporation line of the' village of St. Marys’, Auglaize Co., Ohio.
“That on or about the said 25th day of January 1896, while one of the defendant’s servants was upon the premises upon which said magazine was located, engaged in transferring about 750 quarts of.nitro-glycerine from a wagon loaded with same to said magazine, the said nitro-glycerine stored therein, and also the same upon the wagon aforesaid, from some cause unknown to said defendant, exploded with great force and concussion, causing vibrations in the atmosphere sufficient in power and violence, to break, shatter and destroy three plate glass and three common glass in the buildings owned by plaintiff as aforesaid, of the value of $240.10 — ’by reason of which explosion and the breakage of said glass, the plaintiff has injured and damaged to the extent aforesaid.
“That nitro-glycerine is a dangerous substance,and likely to explode. That demand of payment of said sum has been made by the plaintiff to (of) the defendant, and payment thereof has been refused.”

A jury was waived, and the cause submitted to the court. The court found for the defendant, the Bradford Glycerine Go., and rendered judgment accordingly.

Upon the facts above stated and agreed upon by the parties, is the judgment of the lower court according to the law of the case? This is the question we are called upon to answer.

It must be observed that there is no complaint of negligence on the part of the defendant, or any of its servants, in the construction of the magazine, or in handling, storing or guarding the nitro-glycerine, except that character of negligence which the law imputes to one, who places and keeps upon his premises for storage and sale such substances as are in themselves “dangerous” and “likely to explode” and injure the person or property of another. One of the facts agreed upon is, that “nitro-glycerine is a dangerous substance, and likely to explode”. At the time of the explosion, there were fifty quarts of this substance stored in the magazine, and a servant of defendant was transferring seven hundred and fifty quarts of the same material from a wagon to the magazine, when for some unknown reason, all exploded. The facts further inform us that the explosion was “ with great force and concussion, .causing vibrations in the atmosphere sufficient in power and violence to break, shatter and destroy three plate glass and three common glass owned by the plaintiff”, etc. And this, too, at a distance of a mile or more from the magazine.

The question of defendant’s liability thus presented has been the source of much comment by elementary writers, as •well as controversy in the courts of this and other countries for many years,

■■ Some courts and authors adopt the .rule that one who •places and keeps upon his own premises, anything in itself dangerous and liable to explode or escape from such premises, and it does explode ar escape to. the premises of ‘another, the first party is liable in damages for the injury.

There is another line of authorities which regard such ,a doctrine as an abridgement of that dominion and free use 'ánd enjoyment which one is entitled to have and exercise over his own property.

The former position has been held with much uniformity in England — more so than in this country, and the case of Fletcher v. Rylands, (L. R.) 1 Exch. 265, seems to be the one around which most of the English, and very many of the American cases have been arrayed.

In that cáse the defendants had constructed a reservoir on their premises, and filled it with water. The water flowed by an underground communication, of which defendants were ignorant, into plaintiff’s mine. They were held liable without proof of negligence. The case was appealed to the House of Lords, where Lord Oran worth said:

“In considering whether a defendant is liable for damages which the plaintiff may have sustained, the question, in general, is not whether defendant has acted with due care, but whether his acts have occasioned the damage. For where one person, in managing his own affairs, causes, ..however innocently, damage to another, it is obviously only just that he should be the.party to suffer.”- * * *

: We will not take the time and space to note or discuss all or very many of the decided cases, but will refer to a few of our own country, which contain a careful review of the whole subject.

To this class belongs the case of Cahill v. Eastman 18 Minnesota, 324, (or 10 Am. Rep., 184.)

The first paragraph of the" syllabus reads:

■ ..“A person who so uses his property in such manner as necessarily tends to injure the property of another, is liable to that other, for any injury which may result from such use, without regard to considerations of care or skill therein,”

In the opinion of the court, on page 190, is the following language:

“What is called the natural right of support from neighboring soil is also am illustration of this. The distance intervening between an excavation and the place where the inpry is caused, is not material, so long as the excavation is clearly proved to have been the cause of the injury. Nor is the defendant excused because he was making a lawful or even an ordinary and usual use of his land, what has been called a natural use of it.”

In same case, the Minnesota court approves of the language of Justice Blackburn, in Williams v. Groucott, 4 B. & S., 195.

“Looking to the general rule of law that a man is’bound so to use his own property as not to injure his neighbor’s,it seems to me that where a party alters things from their normal condition so as to render them dangerous to already acquired rights, the law casts upon him the obligation of fencing the danger, in order that it shall not be injurious to those rights.”

We commend the Minnesota case quoted from, for a thorough discussion of the English and American authorities on the subject before us.

The same view of the law is taken by the Supreme Judicial court of Massachusetts, in Wilson v. City of Bedford, 108 Mass., 261, (or 11 Am. Rep. 352.) The court reviews several leading cases, and quotes approvingly the language of Lord Cranworth, in Rylands v. Fletcher, supra, when he said:

“If a person brings or accumulates on his land anything, which, if it should escape, may cause damage to his neighbor, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been,and whatever precautions he may have taken to prevent damage.”

The case of Hegg v. Licht, 80 N. Y., 579, lays down this rule:

“The keeping of gun-powder upon private premises, may be a nuisance, when in case of explosion, it would be liable to injure persons or property of those residing in the neighborhood, although it should be carefully stored or kept, ”

In the opinion the Court say:

“The defendant had erected a building and stored materials therein, which from their character, were liable to, and actually did explode causing injury to the plaintiff.
“The fact that the explosion took place, tends to establish that the magazine was dangerous and liable to cause damage to the property of peisons residing in the vicinity.”

We have quoted sufficiently from cases decided in other jurisdictions. Our own supreme court has had occasion to pass upon the principle we have been considering in the Defiance Water Co. v. Olinger, 54 Ohio St., 532. Without restating the nature of the case, we are content to say, that in support of the doctrine stated in the first branch of the syllabus, the court,on p. 538, say:

“In England it seems to be settled by Fletcher v. Rylands, 1 Law Report Excheq., that the duty rests upon one who collects and stores upon his premises inanimate substances, or animate things from the escape of which injury is likely to follow, to prevent such escape.
“While this duty may not extend to trespassers, or those who, for their own purposes, without express or implied invitation from the proprietor, chose to come upon the premises, yet that case (Fletcher v. Rylands) should be regarded as extending this duty to all persons who may be rightfully on adjoining premises. Blackburn, J. in the course of an able opinion,and speaking for the whole court, used the following language: ‘We think the true rule of law is, that the person who, for his own purposes, brings on his land and collects and keeps there, anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps, that the escape was the consequence of a vis major, or the act of God.’’ ’ # * # #t

On p. 540, our Supreme Court approves the doctrine stated in this language: “This doctrine would seem to be in exact accord with justice and sound reason.” * * *.

It will be observed that, in speaking of the subject of the injury, some of the authorities cited, use the expression— “adjoining premises;” others, “persons or property in the neighborhood,” or “vicinity. ”

In the case at bar, the injured property was situate about one mile from the magazine, and the question may be properly asked: is property so far off, in the “vicinity” or “neighborhood;” or are premises at that distance, “adjoining premises,” within the meaning of those terms in a legal sense ?

We think that where property is injured directly and without any intervening cause, by the force of an explosion, it is legally within the “neighborhood” or “vicinity” of the scene of the explosion; and the place where the injured property was situated sustained,the relation to the owner of the magazine of neighboring property, or premises within the vicinity. And “adjoining premises” — in contemplation of law,may be defined in the same way. The premises really adjoining the location of the magazine, may be large or small in extent. They may consist of lands a mile square belonging to the same owner. Such lands as to every acre might be called “adjoining premises. ’5 On the other hand, the next adjoining premises might be an ordinary town lot, where no injury is done, while property on lots more remote,' might be swept away or destroyed by the violence of the explosion. Hence, neighboring or adjoining premises and “premises within the vicinity,’’are such as are directly affected by and within the natural range of the powerful concussion or shock.

Goelce & Culleton, for Plaintiff in Error.

Geo. H. Phelps, for Defendant in Error.

‘ Again, it may be suggested that the defendant is not liable,- because, when it built the magazine and stored the' glycerine, it could not reasonably anticipate or contemplate,' that in case explosion should occur, it would injure or destroy property so far away. What ought to be anticipated or contemplated by one who handles and stores such dangerous substances, depends on their character, and what use and experience have shown to be their capacity for destruction. Nitro-glycerine is, perhaps, the most deadly explosive known to and used by man, and it is not restrained by immediate objects or boundary lines.

The facts of this case,show that this “substance is dangerous and likely to explode’’; that it “exploded with great force and concussion, causing vibrations in the atmosphere' sufficient in power and violence, to break, shatter and destroy * * * glass in the buildings owned by plaintiff” %

We think the defendant should respond in damages, and that the court below was wrong in finding in its favor.

The judgment is reversed, and findings set aside; and rendering the proper judgment,we find for the plaintiff,and enter judgment accordingly.


author: Smith, J. •

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1897.)
    Before Smith, Swing and Cox, JJ.
    L. P. HAZEN AND A. T. HAZEN v. JOHN O’CONNOR.

      Action for labor brought in form, of common count — Short form under see. 5085, R. S.,not exclusive — Motion to make more definite—
    In a suit on an account, the cause of action may be sét out in the form of a common count, without attaching thereto a copy of the account, and the short form provided for suqh actions by sec. 5085, R. S., is not exclusive, although by far ' the better method. But where the action is brought in the form of a common count, a motion to make the petition •more definite and certain, by requiring a copy of the account with the credits thereon, to be filed, will be upheld.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J. •

It is sought in this proceeding to reverse the judgment of the court of common pleas, on the ground that it overruled a motion filed by the plaintiffs in error, the defendants below, to require the plaintiff below to make his petition more definite and certain by filing a copy of the account on which the suit was brought, with all credits thereon.

The petition of the plaintiff averred that there was due to him from the defendants, $259.44, with interest from April 1, 1893, “for work and labor performed and materials furnished for defendants at their instance- and request, during the months of January, February and March, 1893, at No. 98 John street, Cincinnati. That said labor and materials so furnished as aforesaid by plaintiff at defendants’ request amounted to $259.44.’’ He averred that no part thereof had been paid, and that he had demanded payment thereof, which was refused, and asks a judgment for ‘ said sum,, with interest as aforesaid.

Thereupon the.defendants filed a motion asking the court . ‘ to require the plaintiff to make his petition more definite and certain by filing a copy of the account upon which the suit is brought, with all credits thereon." This motion was overruled by the court, and exceptions taken by the defendants. Afterwards an answer was filed and a trial had, and a verdict rendered for the plaintiff for |200. A motion for a new trial was made and overruled, and judgment entered upon the verdict. No bill of exceptions containing the evidence offered at the trial was allowed, so that the only question for consideration is, whether there was error, prejudicial to the rights of the defendants in refusing to grant the motion first filed by the defendants.

It is manifest, we think, that it was not the purpose or intention of the pleader to bring this action under the provisions of section 5085, Revised Statutes, which provides that "when an action, counter-claim or set-off is founded upon an account, * * a copy thereof must be attached to and filed with the pleading; and if not so filed, the reason for the omission must be stated in the pleading," for no mention of there being an account between the parties is made in the petition. Apparently the pleader, for some reason,has not sought to avail himself of the right given by the statute referred to, to adopt the short form therein provided for. Clearly he might have done so, and filed a copy of his account with his petition, though he had not before that time have made on his books or elsewhere a statement of the items of services rendered or materials furnished, with the dates and amounts thereof (12 Ohio St., 621), for the claims asserted were proper subjects for such an account.

But the question is whether the mode of suing to recover for such items, as provided for in the section referred to, is exclusive; or may not a suit be brought thereon in another mode, as by an action on what was formerly known as the "common counts," and as was done in this particular case? As to this there seems to be a division of opinion in the states where the system of code pleading has been adopted. Judge Swan, in his work on “Pleadings and Precedents,” 177, says: “A cause of action stated in the form of a common) count in assumpsit is good under the code. Put the same latitude of proof is not allowed under such a statement as was authorized at common law” * * * “Now, the common counts, for goods sold and delivered, work and labor, money had and received to the plaintiff’s use, money lent, and for use and occupation, etc., when set forth in a pleading under the code, are beyond the reach of objection by motion or demurrer, and each in itself contains facts sufficient to constitute a cause of action. ” And the forms of the common-counts in “Bates on Pleading,” 564 and post, do not call for copies of accounts to be attached.

He says, on page 573:

“A pleading in the general form for money had and received was used in McNutt v. Kaufman, 26 Ohio St., 127; and the court said that, to say _the least, the pleadings in that-case should not be adopted as precedents, from which it may be inferred that if the common count is good on demurrer in Ohio, it is not good as against a motion to make more definite and certain. ”

__Mr. Pomeroy/in his - work on'Code Remedies, section' 543-4, while conceding that) the great weight of authority sanctions their use, is distinctly opposed thereto.

_My own view is that the short form given by the statute is by far the better method, particularly when the claim is not for a variety of items as for goods sold and delivered, work and labor, etc., and that fairness to the person against whom the claim is asserted requires that a copy of the account, or the statement of the items, dates, amounts, etc., should be furnished to the person sued therefor.

But in this case we are not prepared to. say that the action of the court (if erroneous, which is not decided) was prejudicial to the defendants. We suppose defendants were authorised, at or before the trial, to call for a copy of the account or bill of particulars of the claim. This ought to have been furnished to them, that they may have properly prepared for the trial of the case by knowing what the items were, and when furnished. For all that appears, this may have been done. There is nothing in the record to show that it was not. It is hardly probable that in this case, the trial of which lasted for several days, as the record shows this did, the defendants were not fully acquainted with the nature of the claim and the items of it. At all events, there is nothing to show that they were prejudiced, and the judgment will be affirmed.

William Litileford, for Plaintiff in Error.

W. L. Dickson, Contra.


author: Smith, J.

text:
    (First Circuit — Butler Co., O., Circuit Court
    April Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    ELIZABETH BRITTON v. HANNAH LESLIE & D. B. BUNDY, HER GUARDIAN.

      Nunc pro tunc entry of allowance of bill of exceptions after expiration of fifty days—
    The court has no authority, after the term, to order an entry that a hill of exceptions has been filed as of a previous term, long- after the fitfy days allowed by statute for the filing of a bill of exceptions have expired; and a bill of exceptions thus irregularly allowed should be stricken from the files.

      Submitting bill to counsel of opposite party—
    The provision of the statute requiring' the submission of the bill of exceptions to counsel of the adverse party within forty-five days from the overruling of the motion for a new trial,etc., is not complied with by submitting the bill,not to the counsel of the actual party in the case, but to the attorney of a third party having some interest in the suit, who only assisted in the trial of the case, to the knowledge of counsel of the other side.
    Error to the Court of Common Pleas of Butler county.
   Smith, J.

■ The plaintiff, Elizabeth Britton, filed her petition in the court of common pleas of that county, against Hannah Leslie, an imbecile, and her guardian, D. B. Bundy, seeking the recovery of a judgment for a large amount for services rendered to the former. .She did recover a judgment, but it was for a much less sum than was claimed by her. She therefore filed a motion for a new trial, based upon the grounds that the court erred in its rulings at the trial, and that the judgment (a jury having been waived) was against the weight of the evidence. This motion was overruled, October 21, 1895, and an exception duly entered, and it was ordered that the minutes of the court remain open fifty days, to allow the plaintiff to prepare, have allowed and made a part of the record a bill of exceptions. The transcript of the journal entries shows that such a bill of exceptions was filed November 1st., at the October Term of the court, and a petition in error was filed in this court, March 13, 1896, assigning as grounds of error the overruling of the motion for a new trial.

From a supplementary -transcript subsequently filed, it appears that on March 20, 1896, at the succeeding term of the court, the defendant, Bundy, had filed motions to strike the bill of exceptions from the files, and to strike out or correct the journal entry of November 1, 1895, Those motions were called for hearing March 30, and the counsel for Mrs. Britton moved the court to strike the motions from the files. This motion was overruled and exception taken, and the court then proceeded to hear testimony upon the motions, and granted,them, and ordered the bill of exceptions to be stricken from the files, and the entry of November 1,1895,allowing the bill of exceptions,to be vacated,set aside and annulled, to which counsel for Mrs. Britton excepted, and at their request, the court made a finding of facts and of law separately, and also, allowed a bill of exceptions containing all of the evidence heard on the motions.

We have not the motions before us, but we' understand that the motion to strike the bill of exceptions from the files, was for the reason as claimed that it had never been submitted to the counsel for defendants for examination, as required by law, and that it was not signed within the fifty days after the overruling of the motion for a new trial, and that the entry of November 1, was not true or properly made, but was entered long after the time fixed by the law for the allowance of the bill.

The first question which is presented, is this: whether the court,after the term at which the entry of November 1, was made, could,on the motion filed, properly entertain and make the order which was made. Sec. 5354 and post, points out the cases in which, and the proceedings necessary to be taken by a court at a subsequent term, to vacate or modify its own judgment or order. One of these grounds is in subdivision 3 of sec. 5354, viz., irregularity in obtaining a judgment or order. The proceedings under this section,may by the provisions of sec. 5357, be by motion upon reasonable notice to the adverse party. Here the adverse party was present and took part in the hearing, and if it was shown that there was irregularity in the obtaining of this order, we think the court was authorized in this proceeding to vacate it. It is conceded, we think, or if not, it is clearly shown by the finding of facts, that such order was not in fact made November 1, or until long after the court was authorized to allow the bill of exceptions,'or to place an entry of such allowance on the journal. It was therefore irregularly entered as of November 1. We think the court was authorized to strike the bill of exceptions from the files, if it had not been allowed in the time fixed by the statute.

■.The finding of the facts by the court, which seem to be fully supported by the evidence, is to this effect: that but one attorney, Mr. Harwitz, represented the defendant and her guardian, but that on the trial of the case, Judge Hume, who had been retained by persons interested in Mrs. Leslie, or her estate, assisted Mr. Harwitz in the trial; and .that counsel for the plaintiff was advised that he was not the counsel for the defendant. After the trial, counsel for plaintiff presented the bill, as prepared, to Judge Hume for examination, who, in good faith,supposing himself authorized to do so, kept it for some time, and not having time to attend to it, agreed with counsel for plaintiff,and so indorsed on the bill, that he would waive the required time for the allowance and filing of the bill, and that it should be allowed by the judge and filed within fifty days after the trial of the case. All this was without the knowledge or consent of Harwitz or the defendant, who had no knowledge of the bill or its allowance, or the entry of November 1, until long after the time within which the court could legally sign it.

On this state of fact, we think the court properly held that the bill of exceptions was not submitted to adverse counsel as required by law, and that Judge Hume was not authorized to waive any of their rights. But in addition to this, the bill was not signed within the fifty days after the trial, or for more than fifty days after the overruling of the motion for a new trial. And under the ruling of the Supreme Court in the case of Newman v. Becker, 35 Law Bul., 147, it would seem that unless the bill is properly submitted to counsel so required by law, and the judge, at least forty-five days after the overruling of the .motion, he has no authority to sign the bill at all. And if he lets the time go by in which he is authorized to sign it, his act in subsequently signing it is void. The court, therefore, properly struck the bill of exceptions from the files, and now cannot consider it. If therefore all of the questions arise on this bill of exceptions, the judgment of the common pleas must be affirmed.

Morey, Andrews & Morey, for Plaintiff in Error.

B. Harwitz, for Defendant in Error.


author: King, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Oct. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    THE LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO. v. LAURA L. TERRY, ADM’X. OF THE ESTATE OF JAY M. TERRY, DECEASED.

      Evidence — Expert testimony, when admissible—
    The question whether expert testimony is competent, is not always clear. If in the opinion of the court the opinion of one experienced in the particular calling, would aid the jury in dealing with the facts of the case, it is proper to admit expert testimony. To a certain extent the calling of such testimony is discretionary with the court, and if a reviewing court can not say that the expert testimony would have had a biasing effect on the jury, against the rights of the party excepting, the judgment will not be reversed.

      Injury to R. R. employe in other state for which under law of that state R.R. Co. liable — Statute and decisions of other state admissible in evidence — Court to construe them—
    Where an injury was suffered by the employe of a railroad in Indiana, of such nature and under such circumstances that the R. R. Co. would be liable in damages to such employe under the statute of Indiana, an action may be brought for such damages against such R., R. Co. in Ohio, under the act of May 21,1894, it appearing that by the statute of Indiana ' in cases of a similar kind arising in Ohio actions may be prosecuted in Indiana; and in such case it is competent to introduce and prove the statute of Indiana and the decisions of the courts of that state construing the same, and it is for the trial court in instructing the jury to construe such decisions.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

The defendant in error brought her action in this court to recover damages under secs. 6134' and 6135 R. S., for the loss which she and her children had sustained by reason of the death of her husband, occasioned by the negligence of the defendant below. The decedent was a brakeman in the employ of the railroad company. At the time of his injury he was on a freight train, acting as a rear brakeman. The train was proceeding west, in the state of Indiana, and . Terry and the conductor were located upon the caboose of the train. There was a head brakeman upon, or near, the forward end of the train, and there was an engineer and fireman in the cab of the locomotive. They reached a. point on the line of the railroad where there came a down grade of a few feet to the mile, and as they entered upon that down grade, or while they were proceeding down - it, the freight train broke apart, and the forward part of the train, consisting of the locomotive and some nineteen cars, separated from the rear portion of the train, consisting of nearly as many cars, from two to seven or eight car lengths. I should say that the weight of the evidence indicates that the farthest they were apart at any one time was about seven car lengths. There is some evidence that they were not at any one time as far apart as that, but when first noticed by the witnesses of the railroad company they were apart two car lengths. Soon after it was discovered that they were separated, the rear portion overtook the front. part of the train, and collided with it with considerable violence, so that the cars that came together were somewhat injured, the evidence showing that the roofs were bulged . up. At the time of the collision the decedent was in the discharge of his. duty, or had gone, in the discharge of his duty, under the orders of the conductor, to set the brakes upon the caboose and upon a passenger coach next to the . caboose, which was being carried in this freight train. To do that he stood upon the inside platform of the caboose or the platform of the passenger car next to the caboose, and in some manner, following the collision of the two sections of the train, he was thrown to the ground, and received the injuries from which he died. After the injury, and as soon as the train was stopped, it was found that the brakes on the caboose and passenger coach were set, indicating that the decedent had set them before the shock of the collision came. He was not seen by any witness immediately at the time of the collision.

Among the charges of negligence in the petition, there is an allegation that the engineer was negligent, and the petition sought to enable the plaintiff to avail herself of that allegation by alleging that in the state of Indiana there is a statute which made the defendant responsible for the acts of the person in charge of the locomotive.

During the time of the trial, counsel for the railroad company filed (and as the answer states, by leave of court) an amendment and a supplemental answer, alleging that some time during the pendency of the action and since the filing of the original answer, they had learned that the plaintiff had transferred to Messrs. Brumback & Thatcher, her attorneys, a part of the whole of her cause of action, or her right of action. To this was filed a reply denying that allegation, and setting forth the execution of a contract by which she agreed that a portion of the amount of money recovered from the defendant after trial and judgment, or by reason of a settlement of the case by her with the company, should be paid to her attorneys for their services rendered in her behalf. A motion was made at the time of the filing of this amended and supplemental answer that Brumback & Thatcher be made parties defendant, the answer alleging that they were necessary parties. There is no ruling in the record, either allowing that amended and supplemental answer to be filed, or overruling the motion to make Brumback & Thatcher parties, or disposing of the question in any way, The record shows they were not made parties defendant. The amended and supplemental answer and reply simply raised a question of fact to be tried, like any other issue of fact. There is no evidence sustaining the amended and supplemental answer, which was denied in general by the reply, For that reason, there was no error in not bringing any of these alleged parties into court.

It is claimed in the second place that the court erred in the admission of testimony. There are a number of objections throughout the record, none of which it is important to notice, except objections which appear on pages 32 and 33 of the record. As to the other objections to the testimony, we do not find any error in the ruling of the court in those respects,

As I have said, this action was based in part upon the statute of the state of Indiana, making the company responsible to any brakeman or other person in its employ for the acts, among others, of an engineer, and the fact that they were fellow servants would not defeat the right of action, and the case proceeded to trial with the idea on the-part of the plaintiff and her attorneys of showing that this collision which resulted in the death of the decedent was the fault of the engineer, in that after he knew or ought to have known that the train had separated, he had slowed up by either turning off the steam or putting on the air brakes, (for this was a train several of the front cars of which were controlled by brakes operated by steam pressure), and had thereby slacked up the forward portion of the train, enabling the rear portion on this downward grade, by the force of gravitation, to run up and overtake it, and cause the collision. A rule of the company was introduced in evidence to the effect that if a train should part while in motion, great care must be used to prevent the detached parts from coming into collision. The plaintiff below called as a witness Patrick Carney, who had been an engineer for over twenty years upon the Lake Shore railroad and upon the Chicago & Grand Trunk. No objection was made to his testifying on the ground that he had not sufficient experience and knowledge . After some objection and talk between counsel and the court, counsel read the following rule: “If a train should part while in motion,trainmen must use great care to prevent the detached parts from coming into collision.’'' Then he asked the following questions:

“Q. Suppose a train of thirty-five cars is running over a railroad, at the rate of twelve or fifteen miles an hour, and separates near the middle, and there is a rule of the company requiring that ‘if a train should part while in motion, trainmen must use great care to prevent the detached parts from coming into collision,’ what in your opinion would the engineer do in the exercise of reasonable care, to comply with the rule?’’

That was objected to by defendant’s counsel; overruled, and excepted to.

“A. Why,[he shouldCkeep^out" of the way. He should keep running right along and keep out of the way until he found out that the hind end was stopped, and until he got a signal from somebody on the rear end. It has always been customary when a train breaks in two and you find out it is broken in two, you don’t stop but keep running to keep out of the way until you find out that the rear end is stopped; and that is the rule, and most all rules. “'|||
“Q. Supposing a ' train of thirty-five cars is running twelve to fifteen^,[miles an hour before the engineer cuts off his steam or applies his brakes, what would he do in order to exercise due care in the operation of the train ? .(Objected to;-overruled; defendant excepted.) A. Well, he should generally look back to see if every thing is all right — to see if_he[has got thej' whole of his train — before he shuts off.’’

' I speak[abouHhose[two questions for the reason that the questions themselves asR for án opinion as to what the engineer would do to exercise due care. That is one of the objections. Another is, that the subject matter sought to be proved was not a matter for an expert to testify about. The question whether expert testimony is competent is not always clear. If, in the opinion of the court, the opinion of one experienced in the particular calling would aid the jury in dealing with the facts of the case, it is proper to admit expert testimony. It has always been held that to a certain extent the calling of expert testimony is discretionary with the court; and if a reviewing court could not say that the expert testimony would have had a biasing effect bn the mind of the jury against the rights of the party excepting, the judgment will not be reversed, although the expert testimony was immaterial. In this case it is somewhat doubtful whether it was a case calling for expert testimony at all. It seems that any juror on that panel knew just about as well how to answer that question as the best expert that could be called. The problem which the plaintiff was solving was, what should be done to avoid a collision. She was seeking to show in case a train broke apart near the center, on a down grade, what should be done by the engineer in charge of the forward part of it to avoid a collision. It would seem to be very obvious, what should be done. The answer, if the .expert answers properly, would certainly not prejudice the defendant, in our judgment; but here in the record, instead of asking that question what, in tbe exercise of due cpre, ought or could have been done to keep these two sections of the train apart— they ask, what should the engineer do in order to obey this rule? and then, what, in your opinion should the engineer do in the exercise of due care, in order to comply with the rule?- The rule required great care. The rule was not of any importance in this connection as determining the obligation resting upon the engineer. It was proper to put it in evidence to show that defendant had prescribed a duty and a rule, but we think it was of no consequence whatever, nor do we think it was proper, to put a witness upon the stand and ask what this engineer ought to have done, or any other engineer ought to have done, in order to obey the rule of care prescribed in this rule, or to obey the rule of care prescribed by the law, to-wit: reasonable care.

They are a class of questions that ought not to be put to witnesses: the jury are to determine those questions. But that does not dispose of this objection. When we come to read the testimony, we are disposed to say that it could not by any possibility prejudice the defendant. The answer to these questions is that he should keep out of the way. Every mémber of the jury knew that this was the thing for him to do. It is for that reason that it is doubtful that expert testimony was required. What should the engineer do to avoid a collision with the following train ? Why, keep out of the way. It is not only a philosophic fact, but everybody familiar with the ordinary laws of nature knows it. That is the answer of the witness in substance: that he was simply to keep out of the way.

In the second question he is asked what he should do to exercise due care before he shuts off steam in going down the grade. Counsel seek to show that it was customary, when they were running on a down grade (and that he should have done so) to look back and see that his train is all together, before he checks,and he puts into the question some objectionable matter; but the answer we do not think is objectionable: “The engineer should generally look back to see if everything is all right to see that he has got the whole of his train, before he shuts off.”

Under these circumstances, we cannot say, in the light of this record, that this evidence was so prejudicial to the defendant that this judgment should be reversed for it.

The next objection is that the court permitted decisions of the state of Indiana to be admitted in evidence. The plaintiff had brought her action, first, under this statute, which established a different rule of liability — a liability under different circumstances than the law of Ohio as declared by it courts; and in the second place, she had brought her action as administratrix for a death occasioned in the state of Indiana, and it is contended that states will not enforce statutes which create rights of action as this statute does, by mere comity. But, however, there is. in the state of Ohio a statute passed in 1894, before this cause of action arose, providing that “whenever death has been or may be caused by wrongful act, neglect or default in any other state, territory, or foreign country, for which a right to maintain an action and recover damages in respect thereof is given by a statute of such- other state, territory, or foreign country, such right of action may be enforced in this state in all cases where such other state, territory, or foreign country allows the enforcement in its courts of the statute of this state of a like character.” There is in Indiana, in the first place, a statute which the court-below held to be of like character with this statute in Ohio, which creates this right of action. And we do not disagree with the court below in its instruction on that point, although there is an objection to it by plaintiff in error. There being such a statute in the state of Indiana authorizing this action by this administratrix against this company, it was incumbent upon the plaintiff to allege, which she did, and to prove by the law of Indiana, that they would enforce similar statutes of other states. And to make that proof, counsel introduced a decision of the supreme court of that state — 113 Ind., 169. I shall not stop to read it. In connection with the objection to that evidence, the court charged the jury upon that point, and that is excepted to. The court said that this evidence having been offered, it then-became the duty of the court to construe the decision.' It is urged that the court ought not to have given a construction to the decision; also that the construction which the court placed upon it was not correct. And it is claimed that the jury ought to have been allowed to construe it. We think the decision was properly admitted, and we think the construction which the court placed upon it was correct. It follows that if the construction which the court placed upon it was a true construction, the defendant could not have been prejudiced by the court so stating to the jury. It was the duty of the court to construe the decision. It was a document with which they were not familiar, which abounded in technical terms and phrases with which they could not be familiar. Therefore it was peculiarly the province of the court to construe it, and we think the court correctly gave it a construction.

The decision offered by the plaintiff below is that in Indiana, irrespective of any statute, the courts themselves will enforce these statutes in other states. The case was based upon an injury happening in Michigan and the objection is strenuously urged that because the case did not arise in Ohio, it did not come within the provisions of our statute. But the supreme court of Indiana has declared that they will enforce actions of a like character arising in other states, regardless of the question whether they em force like actions for accident arising in Indiana. This statute provides that such actions may be maintained in Ohio, where the state wherein the right of action arose, allows the enforcement of the statutes of this state of a like character. We say the decision in Indiana holds the doctrine, that if a case were to arise coming from Ohio, that if would be enforceable in Indiana. No lawyer for a moment' would doubt, having read that decision, if he had such á case and brought it in Indiana, but that it would be enforced in Indiana. So the court having said that to the jury, it is clearly no error to the prejudice of the defendant, either to have admitted the decision or to have construed it as the court did to the jury.

It is not urged particularly that this verdict is against the weight of evidence, but that claim is made in the petition in error. The evidence offered on the part of the plaintiff, principally by people who were about there at the time of the accident, taken in connection with the testimony of the defendant’s own witnesses — its engineer and the rear brakeman — would clearly authorize the jury to find that when the break in this train was first discovered by any of the employes, the parts were not more than two car lengths apart, and that that distance increased some four or five cars’ length, and that after it bad increased to six or seven, the engineer having knowledge that the train had separated, shut off his steam and put on the' brakes. And witnesses testify, that the forward part of the train came to a full stop before the rear part came upon it, and all the witnesses agree that the shock was very severe. Now then, if a following train had overtaken a head train, both running in the same direction, between twelve and fifteen miles an hour, or possibly eighteen miles an hour, when they had not separated more than seven car lengths, and they were substantially running at about the same speed,if that speed had been kept up, and the forward part of the train had slackened only a little, it is clear to any person of ordinary judgment that a collision could not have resulted in the damage that resulted here, If the forward part of the train, going in the same direction, was moving at almost the same speed, no damage at all would have resulted. Interesting speculations might be made on this proposition. It is nevertheless true that these two parts of the train came together with great force as though the forward part of the train had been at a stand-still; and it must be remembered that the evidence is clear' and undisputed that before this shock came, the brakes on the three cars of this latter section were set tight, because the testimony is that the conductor had set the brakes on one freight car, and the brakeman who was killed had set the brakes on the passenger car and on the caboose. That would have tended to delay the following portion of the train, and upon an incline of only a few feet to the mile its velocity could not have been increasing very rapidly at that time. So we are satisfied that the evidence supports the theory of the plaintiff that this forward part of the train was slacked up by the engineer after he become rware, or ought to have become aware, that the (rain had parted. He says he was notified that the train was apart by the forward brakeman, and he looked back and saw it was apart, and grabbed hold of the lever and started the engine ahead, give it more steam. He had shut off the steam before that, and he gave it more steam when the shock came. It is conceded that the front brakeman, the rear brakeman, and the conductor had all ascertained that the train had separated, so that the statement of the engineer could not be quite true. Considerable time elapsed. The conductor saw the front brakeman running, warning the engineer with the wave of his arm. That attracted his attention. That was after the front brakeman had discovered that the train was broken. He then looked out of the caboose cupola, and saw by the sun shining on the train that the train had separated. He told the brakeman what had happened, and said to him “we must give.j-irdo her,” and went out of the cupola window on thp^foof of the caboose, and went across the roof of the passenger coach to the next freight car, and set the brakes on that car before the collision came. The brakeman went down from his perch and set the brakes on both cars, the caboose and the passenger car, before the collision came. That must have occupied quite a little time — a much longer time than the engineer indicates by his testimony. So that we are satisfied. that the defendant is liable for the acts of negligence of the engineer, and that the evidence sustains the verdict. As to the amount of the verdict, we cannot say it is so large as, to make it excessive,

Hurd, Brumbaclc & Thatcher, for Defendant in Error.

Potter and Em&ry, for Plaintiff in Error,


text:
    (First Circuit — Butler Co., O., Circuit Court
    April Term, 1896.)
    Before Smith, Swing and Cox, JJ.
    EMORY SKILLMAN v. JOHN M. SYMMES, et al.

      Devise to be paid over to devisee personally, cannot be reached by devisee's creditors in hands of executor—

    A testator may provide in his will, that no part of his estate given to any of his children, should by any process of law be seized or appropriated by a creditor before payment to such child, but should only be paid to such child personally; and a creditor of any of such children can not, by any process, obtain the application of money so devised,in the hands of the administrator, in satisfaction of his claim.
   Smith, J.

We are of the opinion that under the claim of the will of Caladon Symmes relied on by the defendant, the plaintiff is not entitled, in this proceeding, to applicate to the payment of his claim against John M. Symmes, any part of the amount given to the latter by the will of his father, now in the hands of the administrator with the will annexed, of the estate of Caladon Symmes. That the said testator had the right to provide as he did, that no part of any of his estate given to any of his children, should by any process of law be seized or appropriated by a creditor before payment to such child, but that the same should only bo paid to such child personally.

This view is sustained by the following cases cited by counsel for defendant:

Demar for Defendant.

Stephen Crane, for Plaintiff.

Millikin, Shotts & Millikin, for Def exudan I.

22 Redfield on Wills, 290, sec. 19. 19 Atlantic, Rep., 383. 23 Atlantic Rep., 383.


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    October Term, 1897.)
    Before King, Haynes and Parker, JJ.
    JOHN PARKER v. ROBERT G. HAIGHT.

      Appeal from. J. P. —Power of Common Pleas to extend time for filing petition on appeal—

    In actions coining into the common pleas court on appeal from a J. P., the power given by sec. 5098, R. S., to courts of common pleas, to extend the time for filing petition on appeal beyond the time fixed by statute, may be exercised by the court at any time and in any manner it sees fit, unless exception is taken to that order of the court at the time or subsequently; and the court may take up and consider the case when the petition is filed out of rule, without making any order on that subject.
   King, J.

Robert G. Haight commenced an action to recover a small sum of about $40, before a justice of the peace, on the 2d day of October, 1895, Such proceedings were had before the justice, that a trial ensued on November 11th, 1895, resulting in a verdict for the defendant, from which the plaintiff appealed to the court of common pleas, and filed his transcript xn that court on the 5th day of December, 1895, as appears by the file mark upon the back of the transcript. On the 10th day of December, 1896, the plaintiff below filed his petition in the court of common pleas, alleging in the petition, that the action came into the court by an appeal from the docket of the justice, naming him. On the 1st day of March, 1897, the following entry was made upon the journal of the court, and is the only entry that there appears:

“At the term of court beginning on the 4th day of January, 1897, and on the 1st day of March, being the forty-eighth day of said term, as appears by its journal of that day, were the following, viz:
“Robert G. Haight v. John Parker. 38,806.
“Nowcomes the plaintiff,by his attorney,and the defendant being in default for answer and demurrer, the court find that the allegations of the petition are confessed by him to be true, and find that the defendant, John Parker, is indebted to the plaintiff, in the sum of $53.48. It is therefore considered by the court, that the said plaintiff have, and recover from the said defendant, the said sum of $53.48 and his costs herein expended, taxed at $ — . ”

To that a petition in error is filed in this court, asking the circuit court to reverse that judgment.

No motion for a new trial or proceedings to open up the judgment were taken in the court of common pleas. It is claimed that the court of common pleas had no jurisdiction to render a judgment; that the case was not only in default as to the defendant, but was in default as to the plaintiff, and the plaintiff could not file a petition at the time he did. The statute fixes the rule days for pleadings in appeal cases as well as in other cases, and provides as to an appeal case, that the petition shall be filed on or before the third Saturday after the expiration of the thirty days from the rendition of judgment before the justice of the peace,and the answer on or before the fifth Saturday. However that may be, sec. 5098 provides, that “the court, or a judge thereof in vacation, may, for good cause shown, extend the time for filing any pleading, upon such terms asare just.” But in this case, no application was made to the court to extend the time, but the case remained upon the docket of the court. The appeal has been perfected, and the court had acquired jurisdiction of the parties. Either party had a right to appear in court and file his pleading. The defendant might either move to dismiss the appeal, or file bis answer, asking for a judgment upon the answer, for failure of the plaintiff to file his petition. But we think the power which rests in the court, given by the statute granting it the power to extend the time for filing any pleading, or to give leave at any time to file a pleading, is a power given to the court which may be exercised at any time and in any manner it pleases, unless objection be made at the time or subsequently, and exception taken to that order • or rule. The court having power to grant leave to file a petition out of rule, it has power to take up and consider it when it is filed out of rule, without making any order on that subject, and when it shall have done so, to render judgment; and that judgment will be conclusive, unless some method is taken in the court to set it aside. The statutes are ample on that subject, and we think that method should have been pursued by the defendant below. Sec. 5309 and chap. 6, commencing with sec. 5354, confer an ample and complete remedy to the defendant, if he had good cause, to have had this judgment set aside, and an opportunity to answer to this petition; and we think, from a reading of the statutes, that he still has that remedy — that it is not too late to exercise it.

P. H. Dowling, for Plaintiff in Error.

Karl A. Fliolcinger, for Defendant in Error.

This judgment will therefore be affirmed, at the costs of the plaintiff in error.


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    October Term, 1897.)
    Before King, Haynes and Parker JJ.
    BENJAMIN F. DWELLE, ET AL., v. B. W. WILSON, ASSIGNEE ET AL.

      Bill of exceptions to action of judge in granting a bill of excep« ions; or in a matter considered by judge himself only—
    There is no provision in the satutes for taking a bill of exception to the consideration by the judge of the question whether he shall sign another bill of exceptions, consisting of .facts occurring in a trial in court; or for taking a bill of exceptions in a matter considered alone by the judge.

      Injunction bond — Attorney’s fees recoverable—
    Where plaintiff obtains a preliminary injunction, but on the trial of the case on the merits it is found that the injunction was improperly granted, the defendant in such case may, in a suit for damages on the injunction bond, recover reasonable attorney’s fees paid by him in defending thq injunction suit.

      Bight of owner of land on Lake Erie to fish in front of his land as against rights of public—
    The waters of Lake Erie are subject to the right of fishery by the public, and the owner of land abutting on Lake Erie has no greater rights to fish in the waters on the shore in front of his land than anybody else.

      Injunction to restrain fishing at particular spot in Lake Erie— Damages on injunction bond—
    Where the owner of land abutting on Lake Erie brings a suit for an injunction and for damages against a party for fishing in the waters in front of his land, and obtains a preliminary injunction restraining such party from fishing in such waters, which injunction on the hearing of the case on the merits is dissolved as improperly granted, the defendant in such suit, in an action on the injunction bond,can not recover more than nominal damages for being prevented from fishing on that particular spot m Lake Erie,during that season, by the injunction.
   King, J.

The action was brought in the court of common pleas of Ottawa county, by R. W. Wilson, as the assignee of Wm. Bertsch and Wm. H. Moore, partners as Bertsch & Moore, against B. F. Dwelle, George Moore, Henry Lay, and the German Amexican Bank of Port Olinton. The cause of action as set forth in the petition was founded on a bond given in an injunction proceeding.

Some time before the commencement of this action, Benjamin F. Dwelle began a suit in the court of common pleas, against Wm. H. Moore and Wm. Bertsch, individually, and as partners, in which he alleged tt at they were about to set their pound stakes and nets for fishing in Lake Erie, in such a position as to. prevent him from fishing at a place where he had acquired a right to fish by having fished there for many years, and he asked an injunction against them. The probate judge of the county, allowed a temporary injunction, enjoining Bertsch & Moore, from fishing at the place designated in the petition. Upon the filing of the petition in that case and the allowance of the injunction, the condition was made, that a bond be given in the sum of $500. This petition alleges, that that bond was given and the injunction allowed. Within a few days afterwards, a motion was made that an additional bond be given, and the matter was brought tó the attention of the court, and he ordered an additional bond in the sum of $1,500. This petition alleges, that that bond was given, with George Moore and Henry Lay, as the sureties thereon. The petition further alleges, that thereafter, it was finally decided that the injunction ought not to have been granted. It then sets forth the particular items of damage, that it claims the plaintiffs, Bertsch & Moore, sustained; first, that they were compelled to, and did, expend $275.75, in attorney’s fees, and that they had expended money in looking after the lawsuit and attending to it, to the amount of $100 or more; that they had employed a large number of men, anticipating the fishing season, and had provided nets, and pound poles, and other things necessary for fishing, in the vicinity of this particular place, .and had expended for these things and for the wages of the men that they had employed, $1,000; and if they had been allowed to go on and set and fish, as they calculated to the string of nets, they would have caught fish that would have been worth,- ard made a profit to them, of $2,500; that they were after that, obliged, in order to use these nets, to put their nets in a place very much further out in the lake, and further away, and it took a great deal longer to go to the place, and had to employ additional tugs, and it took a longer time, and damages are claimed for that. There are other items of damage which I need •not go over.

There was an answer filed, denying all these allegations, substantially.

The case went to trial. A verdict was rendered by the jury in behalf of the plaintiff, who had become assignee of Bertsch & Moore, after the injunction and before the commencement of this suit, in the sum of $1,200; and it is claimed there are errors in that. It is urged by the- defendant in error, the assignee of Bertsch & Moore, that any errors that are set forth in the bill of exceptions cannot be considered, because the bill of exceptions has not been allowed properly, I notice that briefly.

The bill of exceptions in this case, shows that it was signed by the judge of the court of common pleas who presided at the trial, on the 5th day of June, 1897, on the fiftieth day after the overruling of the motion for a new trial. He recites above his signature, that “Plaintiff objects and excepts to the allowance and signing of said bill at this date, upon the ground and claim that jurisdiction to allow and sign the same, has been lost by lapse of time.” But he signed on the fiftieth day. Below his signature, appears this statement:

“The foregoing bill of exceptions submitted to us for- examination by defendant’s attorneys, this 27th day of May, A. D. 1897.
Scott Stahl,
E. G. Love,
Plaintiffs’ Attorneys.”

Then, also, a receipt of defendant’s attorney, that he received the bill of exceptions back again. This endorsement is made on the bill:

‘Received this bill of exceptions from defendant’s attorney, W. B. Starbird, June 1, 1897, and time extended for examination by me, to June 10, 1897.
June 1, 1897. S. A. Wildman, Judge.”

It is conceded that the 27th day of May, when this receipt recites that the attorneys of the plaintiff received the bill, was the forty-first day after the overruling of the motion for a new trial, and that the time stated in the endorsement of the judge when he received the bill, is on the forty-sixth day after the overruling of the motion for a new trial.

It is contended that the statute requires bills of exception to be in the hands of opposite counsel, on or before the fortieth day after the overruling of the motion for a new trial, and in the hands of the judge for his allowance, on or before the forty-fifth day after the overruling of the motion for a new trial. Such is the statute, and the holding of the supreme court; but the law does not indicate how these facts are to be ascertained. And we are of opinion, that it does not appear from this bill of exceptions by anything that we may regard, that this bill of exceptions either came into the hands of plaintiffs’ counsel, or into the hands of the court at a time later than that fixed in the statute. There is no provision of the statute by which the evidence of the time when the bill of exceptions is presented to opposite counsel may be preserved, nor is there as to the time when it goes into the hands of the judge. The provision of the statute as to the extension of time is, that the judge may endorse upon the bill of exceptions, an extension of time for his examination, not exceeding ten days beyond the expiration of fifty days, previously provided for, but it does not authorize him to endorse upon the bill when he received it. There is no provision of the statute for that purpose, nor, "as I have^said, is tbere^any^provision^of law by which evidence of that may|be"preserved^and’presented to a reviewing court. We do not say, that]ievidence of it may not be preserved in a proper method, but that method has not been pursued here,

I should say in that connection, that on the 22d day of July, 1897, there was presented to”the judge of the court of common pleas who signed and allowed the bill of exceptions, another bill of exceptions to the signing and allowing of the original bill of exceptions.

This proceeding, as appears from the reading of this bill of exceptions, was a proceeding before the judge. Nobody but a judge can allow and sign a bill of exceptions; it is not a matter for the court. So on the 5th of June, as appears by this paper, there was objection made to signing and allowing the first bill of exceptions by the judge, and it was there conceded that the facts stated before the judge were true, yet the judge allowed and signed that, notwithstanding those objections; and now they have presented this bill of exceptions. There is no provision for taking a bill of exceptions in a matter considered alone by the judge, so that this bill of exceptions has no place upon the record whatever. It is impossible to take a bill of exceptions to the consideration by the judge of the question, whether he shall sign another bill of exceptions, consisting of facts occurring in a trial court. So that the facts stated in the second bill, do not aid the objectors to this bill of exceptions in presenting properly to this court, the question which they seek to make. Therefore, we hold that the first bill of exceptions is to be considered with the balance of the record.

There have been, by counsel for plaintiff in error, a great many objections urged to this judgment. — First: That the petition does not set forth sufficiently the items of damages. In our judgment, that objection is hardly tenable. It sets forth a great many items of damages that probably the plaintiff was not entitled to recover upon. If it has any objection, it is in too great particularity, rather than in too little.

Second: It is claimed that the petition shows upon its face, that there was an original bond for $500 given, and that it must be sued, either before or at the same time, with the additional bond of $1,500, which was alone sued upon in this case. But the answer does not set that up as a defense. The answer admits the allegations of the petition in that respect, and says nothing further about it. There is nothing in the record to show that the original bond was signed by different or other individuals, than the additional bond. Had there been an}' defense made in the case, showing a liability of others not made parties, our present opinion is, that it would have been necessary to at least join the makers of the original bond with those in the additional bond. But that defense is not made; and nothing appears to show that the makers of the one are not the makers of the other, the two bonds being simply different in amount. So we think that objection is not good.

There are other objections urged in the case, all of which we conilude are not well taken, except one which we shall notice. On the trial of the case, it became a question how much damages the plaintiffs below had sustained by reason of their being enjoined from fishing at the place which they alleged they were enjoined from fishing, and considerable evidence was offered upon that subject. Among other questions asked to prove that damage were these, which appears on page 6:

Q. Mr. Moore, considered in connection with the fishing plant with which these nine nets were used, you may state whether or not, their use for the spring season of 1893, had any general market value for fishing at the point where you were enjoined from fishing them? (Objected to; objection overruled; defendant excepts.) A. No, sir; I don’t think there was any market .value.

Q. Considered in connection with the fishing plant with which these nine nets were used, and the hazards and chances of the business to which they were devoted, you may state what, if anything, was the fair value of their use for the balance of the spring fishing season, after you were enjoined. (Objected to; overruled; defendant excepts.) A. It would be pretty hard work to tell to a dollar. I should say at least, it would be $1,500.

Another witness, Mr. Hanlon, testified that it would be $100 a net, or about $900 for the season. That testimony was admitted, and went to the jury. One testified that those damages, based on the use of the nets at the points in question, would be $1,500; the other testified that they would be $900. The court submitted the question of damages to the jury, by saying, substantially, that the question was one for them to determine. The other items were all ruled out, and the plaintiffs were not permitted to show anything on that subject, except the questions and answers which I have read. In addition to that, I should say, it was shown that the plaintiffs had expended in attorney’s fees, substantially $200, and for their own expenses in procuring the injunction to be dissolved, $100, making $300 in all, and that testimony was not disputed by any of the witnesses.

The question upon which we think -the correctness of this verdict turns, is whether this evidence as to these damages was correctly admitted. The matter has occasioned us considerable trouble, and we have given to it careful study. We have attempted to look up the authorities, but we find a great scarcity of them in the books. There are many cases brought for damages for depriving one of his right to fish in water where the plaintiffs had some interest in the land or in the water,either owning the land under the water, or had a right given him by the government, or acquired by prescription'; but no case that we have been able to find, directly passing-upon the question of damages, where one owned neither a right in the land, nor in the water, having no property either in the land, the water, or the fish. The right to fish in Lake Erie, is settled in Sloan v. Beimiller, 34 Ohio St., 492, where it is held, that no right can be acquired by purchase, and I take it as well none can be acquired by prescription, and holding such right to be free and common to the public.

, Here was a case where there was no right to fish at a particular place owned by either party, but one of them goes into court and enjoins the other from fishing. He might have included in his injunction, the whole of the shore from Toledo to Sandusky; he did include in it only a small part of that shore, substantially that part of the shore of which the plaintiff in that case, said he owned the land abutting upon it, that is, the land abutting upon the water at that place, and trying to prevent anybody from fishing in front-of his land. He might as well have enjoined them from-fishing on any other part of the shore. But what would be the damage from that kind of an injunction, when it has been repeatedly held by the courts, and was so held in this case, that the right of fishing at that place, is public and common to all, and no man could' acquire a right superior to any other, except he had gone into the common water, and set and established his pounds and stakes, and taken possession of the line which those pounds and stakes included, whereby a stranger would then have no right to interfere with those pounds and stakes. But, suppose one of these gentlemen who was engaged in fishing, had set another line of pounds and stakes parallel with Dwelle’s, and extended it around the end of his line, cutting him off entirely, would he have an action for damages? As is claimed in the Dwelle petition, that is about what Bertsch & Moore were about to do. They were running their line out and into the water in that direction, and when beyond where, Dwelle had his pound, they were going around the end and cut him off. Suppose they had gone clear around, would Mr. Dwelle in that case, have had an action for damages, irrespective of the right of injunction? Certainly he would not. This being so, if Dwelle had secured a court to give a temporary injunction enjoining defendant from doing that very act, would the bond for injunction be liable for that class of damages, which Mr. Dwelle, himself, could not have recovered? We think there is no question about it, We think that class of damages cannot be included in the damages to be recovered on that bond, any more than it could in a direct action for damages. If the injury which he anticipated actually occurred, the authorities say, damages can be recovered by one who has a right or interest in the land, or in the water.

Referring to the Encyclopaedia of Law, vol. 8, p. 23, we find a definition of what is a common fishery, or a fishery common to all, and they say:

“It is settled that a right of fishery in navigable or tide waters, below high-water mark, is a common right; and if one or more individuals, set up an exclusive fight to a free or several fishery, it must be clearly established by prescription or positive grant. ■ ’

Again, in 1 Enc. of L., p. 571-2, is a discussion of the right of property in wild animals, we find this reference,. but have not been able to find the case:

■ “Where the plaintiff, while fishing, cast a seine around a shoal of mackerel, with the exception of a - small opening which the seine did not quite fill up, and where the defendant entered and took the fish, it was held that the plaintiff’s possession was not-complete so as to enable him to maintain an action for trespass. Young v. Hichens, 6 Cad. & El., N. S., 606.’’

In 48 Hun., 396, is a discussion of the right of damages for taking ice; but in that case,fasjappears from the statement of it, the plaintiff, who claimed to have been damaged by having her ice taken away, owned the land under the water of the Hudson river. The court say this in the syllabus:

“That, as the action was brought to recoverd amages against the defendant for a wrongful entry upon the lands of the testatrix, and the cutting and removing of ice, the right of action depended upon, whether the cutting and removing of the ice could be regarded as an injury to the real estate, and that the amount of the recovery must be such as to compensate for such injury only. ’’

The case was tried to a referee, and he allowed witnesses to state the market value of ice which had been cut and stored for sale, but the court adopted a different rule of damages, and judgment was reversed, because they held it must be only such damages as cculd be shown to the real estate.

But it is clear in Ohio, in case of land bounding on Lake Erie, no right of action can be maintained for taking ice out of the latter, even although it was in front of one’s premises, running down to the line of the water. Nor can' any right of action be maintained for fish taken out of the water.

These questions in the case at bar, called for the value of the use of the nine nets. It is claimed that Bertsch & Moore had nine pound nets, or nets for nine pounds, which they intended to put in this string, which . they did not get a chance to put out because of this injunction. They had eighteen nets, and they succeeded in planting nine of them, when they were enjoined, and the other nine they did not put out. They say there were nine; they might just as well have had nine hundred as nine. It comes to this: that if one shall lay in stakes, nets, and poles, and hire men, secure boats and tugs, for the purpose of carrying on a fishing business in water that is common to all the public, and somebody interferes with his fishing, he may recover as damages the value of the use of his property, so provided. We do not think that he was entitled to recover damages for that; we do not think that a case could be made that would enable him to recover more than nominal damages for an injunction that would prevent him from fishing at a particular spot in Lake Brie; and that all that part of the evidence in the case that went to the jury, under the charge of the court directing them to determine how much the damages would be, was erroneous — not only the admission of the testimony, but the charge of the court was prejudicial to the defendant below.

Stahl & Love, for Plaintiffs in Error.

Seney, Wickham, Starbird & True, for Defendants in Error.

That is the only controverted issue in the case. As to the plaintiffs’ actual expenses there is no controversy. We think the testimony shows that they expended in attorneys’ fees and other expenses, $300. For the admission of this improper evidence and the charge of the court upon that evidence, the case must be reversed, unless the plantiff below elects to remit all over $300 of the judgment,


author: Swing, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    IN THE MATTER OF CHARLES L. LUNDY, EX PARTE.

      Disbarment of attorney — What act will amount to moral turpitude under statute — Erasing Judges marks on paper to deceive other Judge—
   Swing, J.

The Hon. Judge D. T. Wright, of the common pleas court of Hamilton county, directed Judges Worthington and Harmon, and Mr. Oldham, of the Hamilton county Bar, to prefer charges against Charles. L. Lundy, of said Bar, for unprofessional conduct involving moral turpitude. In accordance with this direction, charges were filed against said Lundy, and trial was had upon the same before said judge, and said Lundy was found guilty, and sentence of disbarment was pronounced against him. An appeal was taken to this court, and trial had on the same.

The charges against Lundy, were two:

“First, that in October, 1894, the said Lundy, acting as attorney in a certain divorce proceeding then pending before the Hon. Charles Evans, judge of the court of common pleas of Hamilton county, submitted said cause to said judge, and that the said judge dismissed the same, and that notwithstanding said action of said court, the said Lundy, intending to deceive the Hon. Judge Wright of said court, submitted said cause to said Judge Wright, in May, 1897.
“2nd. That said Judge Evans having dismissed the said action, endorsed on the wrapper of said original papers in said cause, according to his usual custom, ‘Dismissed, E. that said Lundy, well knowing the premises, fraudulently intending to destroy the evidence of said judgment, and to conceal the fact from said judge, did,on May 4, 1897, erase said words, ‘Dismissed, E.,’ from said wrapper, and return the same to the files of the court.”

As to the first charge. We are not satisfied beyond a reasonable doubt, that Lundy knew that Judge Evans had dismissed the case after the hearing before him. The evidence of Judge Evans was not clear and certain as to whether he had informed Lundy that the case was dismissed ■ — although there is good reason to believe that Lundy knew that the case was dismissed — but it is not sufficient to find him guilty of the charge.

As to the second charge. We think that this charge was clearly proven. The erasure was admitted. The purpose for which it was done, is clear. Lundy had just been told by Judge Wright, that Judge Evans had told Judge Wright, that he (Evans), had tried the case once and dismissed it. This Lundy denied or evaded. Upon seeing the evidence of the truth of what Judge Wright had said to him, written in lead pencil on the wrapper of the papers, he erased it. We can see but one reason for his conduct. He must have intended to have destroyed the record that Judge Evans had made, and thereby deceive and mislead Judge Wright.

For such conduct, what would.be a just judgment? The object of punishment is not to destroy the-person punished, unless he be so bad that he is not a fit person to live, or has committed a crime so atrocious that his life or liberty should be forfeited. Generally, the object of punishment is to correct and make better the person punished, and at the same time, by the act,deter others from committing a like offense.

That the offense committed by Lundy calls for punishment, we have no doubt.

Nothing in our society or government concerns the people so much as a just and righteous administration of the laws. The very existence of our government depends upon it. In order that judges may justly administer the laws, there must exist between the judges and the members of the Bar, the utmost good faith-. The professional statement of a lawyer to a judge, should always be the exact truth, and should always be given with the same regard to its being true as the same statement given under oath. If this were not so, it would be hard to conceive how judges would administer the laws justly. If the members of the Bar were corrupt, it would be almost as bad as a corrupt judge. For however upright a judge might be, under such circumstances, justice would miscarry.

In this case, Lundy^endeavored, by erasing the words “Dismissed, E.,”^to conceal the truth¿from Judge Wright when he was called upon to reveal it.

Ex-Attorney-General Harmon, Ex-Judge Wm. Worthington, and F. D. Oldham, for the prosecution,

Ex-Judge M. F. Wilson and John O. Healy, contra.

For a lawyer to do an act of this kind, is to do an act involving moral turpitude within the meaning of the statute— the statute having reference to his professional conduct,

We think the ends of justice will be subserved by suspending Lundy from practicing his profession for the term of one year from this date. The act was not done after mature deliberation — was done hastily; and we don’t want to be unjustly severe in our punishment, and we trust that the sentence of this court may ultimately be for his good.