text:
    LIABILITY FOR NEGLIGENCE OF A LESSOR TRACTION COMPANY.
    Circuit Court of Cuyahoga County.
    William H. Kirkbride v. The Cleveland Electric Railway Company.

    Decided, March 12, 1907.

      Street Railways — Negligence—Operating Company Liable for Injury from Defective Appliances.

    A company operating a street railway under a license agreement with another company, may be liable for injuries caused by a- horse becoming frightened by flashes of light from electric appliances, which are defective or improperly installed, even though they are installed by the lessor company.

      W. G. Ong, for plaintiff in error.

      Squire, Sanders & Dempsey, contra.

      Marvin, J.; Winch, J., and Henry, J., concur.

       Affirmed without opinion, Cleveland Electric Railway Co. v. Kirkbride, 79 Ohio State, 448.

   The parties here are as they were in the court below. Kirk-bride sued the Cleveland Electric Railway Company for injuries received to his person, as he says, by the negligent con duct of the Cleveland City Railway Company and his suit against the Cleveland Electric Railway Company is because upon a taking over of the Cleveland City Railway Company, the former assumed all the liabilities of’the latter company existing at the time the property was taken over, and he says that the liability to him existed at that time; and this is true if there was any liability to him.

On the 25th of April, 1903, the plaintiff was driving .to the west, crossing the central viaduct in the city of Cleveland. A part of this viaduct is a swinging bridge, for the purpose of allowing vessels which are too high to pass under the bridge, to pass up and down the river, when the bridge is swung open. The Cleveland City Railway Company was, at the time, operating its street cars upon the tracks crossing the viaduct above mentioned, and there was necessarily a division of those tracks at each end of the swinging bridge. The motive power of the cars was electricity, which was supplied from an overhead wire or cable along the middle line of the tracks, and this was conducted to the car by a trolley pole in the ordinary way. Necessarily there was a space at each end of the swinging bridge, between that which was upon the swinging bridge, and that which was upon the other part of the viaduct.

At the time referred to a car of the Cleveland City Railway Company was moving west in the same direction that the plaintiff was driving; the head of the plaintiff’s horse about even with the rear end of the car, but the horse and the vehicle to which it was attached, was at the right-hand side of the line of railroad. The sidewalk on the right-hand or north side of the bridge was somewhat elevated above the driveway and was so near to the northerly rail that there was but little more than room enough between this sidewalk and such rail for vehicles to be driven along that space. The plaintiff in his petition alleges that as the westerly end of the swinging bridge was reached, the trolley over the car which was going west, as it passed from the cable which was on the bridge to that which was on the viaduct west of the bridge, produced a very vivid flash of light, which frightened the plaintiff’s horse, causing him to run away and throw the plaintiff out of his wagon against an iron post, causing great injury to his person. He says that this extraordinary flash of light ivas caused by negligence in the construction of the overhead device for carrying the electric current and communicating it to the car, and further he charges that it was caused by the negligent operation of the car by those then in charge of it.

The defendant answered this petition with a general denial, except that it admitted that it was a corporation. Upon the trial, however, it Avas admitted that the defendant did take over the property of the Cleveland City Railway Company, at the time stated in the petition, and that it did assume all the obligations of the Cleveland City Railway Company. Evidence on the part of the plaintiff was introduced tending to show that there was an extraordinary flash of light, that at the instant of this flash the plaintiff’s horse became frightened and ran array and that he sustained the injuries alleged in his petition. Evidence was also introduced on the part of the plaintiff, tending to shoAV that the overhead construction was not as it should have been, and tending to shorv that there Avas negligence in the operation of the ear.

On the part of the defendant evidence was introduced tending to show that at the time of the accident, the overhead device and arrangement Avas constructed by the present defendant and was at the time of the accident owned by the present defendant, and that under some arrangement Avith this defendant they were permitted to use it in the operation -of their cars. Evidence Avas also introduced by the defendant, tending to show that the bridge Avould settle somewhat, perhaps four or five inches, as a car upon it neared the end of it, so that when a car was traveling from the bridge to the permanent portion of the viaduct, the track over AA'hich it was moving was several inches loAver than that upon Avhich it was to go; that there Avas, therefore, necessarily a jolt when the ear left the bridge for the permanent portion of the structure, Avhich Avas attended Avith considerable noise. And further, that the bridge trembled somewhat under the strain of the car as it neared the end of the bridge. The defendant contends that the frightening of the horse might be occasioned as well by the trembling of the bridge or the jolting noise of the car, as it left the bridge for the permanent portion of the viaduct, as by the extraordinary flash of light, if there was such flash.

The result of the trial in the court below was a verdict and judgment for the defendant, to reverse, which this proceeding is prosecuted here.

Complaint is made of the ruling of the court upon questions of evidence, all of which have been examined and no error to the prejudice of the plaintiff found in any of them.

Complaint is further made that the court erred in its charge. 10 the jury when it used these words:

“Bo that if you And it equally probable that plaintiff’s horse, took fright from the noise made by a car passing off the drawbridge or by the-swaying of the drawbridge, as that it was frightened by a flash of electricity, as claimed, you would not. be warranted in finding that such flash was the proximate cause of the injuries complained of.”

This language is justified both by reason and authority.

Complaint is also made -that the court erred in refusing to charge the several propositions requested by the plaintiff.

The first of these requests reads:

“If wires charged with currents of electricity were by the Cleveland Electric Railway Company placed in the public streets and highways or suspended above them as a motor power for operating its street cars the danger was great, and the care exercised in the construction, maintenance and operation of its cars by electricity must be proportionate to the dangers in the use of same. In the use of electricity in such public places reasonable or ordinary care is great care.”

Numerous authorities are cited in support of this proposition, b\it we think, in view .of what was said by the court in its charge to the jury, the defendant was not prejudiced by the refusal to give this charge.

The court said, as appears on page 207 of the bill of exceptions :

“I say to you that said company in operating its cars across the viaduct was bound to exercise that reasonable care and caution to prevent injuries to others which persons of ordinary prudence, engaged in that or a like business are accustomed to exercise under the same or similar circumstances, having under the same or similar circumstances regard to the instrumentalities employed and the dangers reasonably to be apprehended therefrom. ’ ’

We think this also covers properly what was asked for by the second and third and fourth requests of the plaintiff. The fifth request reads:

“A street ear company is not liable for accidents arising from fright to horses caused by the usual and careful operation of its road if its employees such as motormen and conductors are free from negligence, and that negligence must be determined by the jury from all the facts and circumstances in the case.”

Surely there was no prejudice to the plaintiff in refusing this. If anybody was prejudiced by it, it would be the defendant and not the plaintiff.

Complaint is further made of portions of the 'charge, which have the effect of relieving the defendant from liability because of any faulty construction of the overhead-appliances. A number of passages in the charge do give such instruction. Among other things the court said, as appears upon page 210 of the bill of exceptions:

“Tf, from consideration of all the facts and circumstances as you find them to be from the testimony, the jury deem it equally probable that the injuries complained of were caused by the negligence of the Cleveland City Railway Company through the motorman in charge of the car in question, as claimed, or that such injuries were caused in some other way, as for example, by the negligence of some other person or company, you would not be warranted in finding that it was proved by -the preponderance of the testimony that the Cleveland City Rail-' way Company was thus negligent.”

In another part of the charge the court said:

“You will observe that in the petition no negligence is charged against the defendant, the Cleveland Electric Railway directly, and consequently no recovery can be had by reason of any negligence of that company, even though you find it was negligent. ’ ’

Now the only negligence that could have been claimed against the Cleveland Electric Railway Company under the pleadings in this case was upon the ground that there was faulty construction in the overhead appliances.

The defendant says,- if there was such faulty construction that faulty construction was its own negligence, that is the negligence of the defendant, because it says it constructed these overhead appliances and that as recovery here is, only sought against the defendant- because it has been substituted on account of its contract with the Cleveland City Railway Company, for such last named company. That is to say, the court charged upon the assumption that though the Cleveland City Railway Company may have been operating at the time with defective appliances overhead, and though the cause of the injury complained of may have been through the use of such defective appliances still the plaintiff could have no recovery. In this we think there was error.

Suppose instead of the Cleveland Electric Railway Company having constructed these overhead devices which were being used by the Cleveland City Railway Company at the time of the accident, it had been some stranger to these proceedings. Suppose John‘Doe had constructed these devices and appliances and the Cleveland City Railway Company were the ones who had used them; suppose these appliances to have been entirely unsuitable, and to use them bad been negligence, it surely would not relieve the Cleveland City Railway Company from liability for an injury caused, because of these improper devices and appliances. See Jacobs v. Fuller et al, 67 Ohio St., 70; Bridge Company v. Steinbrock et al, 61 Ohio St. 215,

Surely the Cleveland Electric Railway Company because it assumed the liabilities of the Cleveland City Railway Company would be no less liable for the negligent acts of the last named company, because those negligent acts consisted in using a defective, device constructed by the Cleveland Electric Railway Company, than in using a defective device constructed by John Doe. Not only is this so, but the court assumed in its charge that it was established or conceded that the construction of the overhead devices, whether suitable or unsuitable, were put up, and at the time of the accident owned by the Cleveland Electric Railway Company. We find no such admission in the record.

Evidence was introduced tending to show this, and no evidence tending to disprove it, but it was for the jury and not for the court to say whether the fact was so or not. Gannon v. Gas Company, 145 Missouri, 502.

From what has been said here the court erred in giving in charge to the jury the’ fourth, fifth, seventh, thirteenth, fourteenth and fifteenth requests of the defendant. As illustrative of these several requests the thirteenth is here quoted. It reads:

£‘13th. If the jury find it to be equally reasonable that the flash, if one occurred, was caused alone by the negligent construction or repair of the trolley wire, as by the negligent operation of the ear, there can be no recovery by the plaintiff in this ease.”

The fifth and sixth requests read as follows:

£ £ 5th. * * * The plaintiff is entitled to have the jury determine the credibility of the testimony offered, even though he offer nothing to contradict that presented by defendant. Nor can the court assume as a matter of law that the testimony is true, satisfactory or convincing to the jury, simply because no one by w'ords contradicted what has been uttered.
1 ‘ 6th. Before proof can be said to be made of any fact there must be both the testimony of a witness or wdtnesses, and the acceptance of that testimony as true by the jury. Uncontradicted testimony can not be treated as conceded facts.”

As to the application of the doctrine of res ipsa loquitor to this ease see March v. Railway Co., 7 C.C.(N.S.), 405.

For the errors pointed out the judgment is reversed and the cause remanded.


source: Caselaw Access Project

license: Public Domain

text:
    ENFORCEMENT OF LIABILITY OF STOCKHOLDERS IN FOREIGN CORPORATION.
    Circuit Court of Cuyahoga County.
    W. H. Roher et al v. The Peoples Savings Bank et al.
    Decided, March 7, 1904.

      Stockholders’ Liability — Jurisdiction-—When Liability of Stockholders in Foreign Corporation May be Enforced — Court Will Not Determine Solvency of Non-Resident Stockholders — Creditors Bound by Terms of Certificate Taken in Settlement.

    1. Ohio courts have jurisdiction in an action brought against resident stockholders to enforce stockholders’ statutory liability in a foreign corporation.
    2. A court can not pass upon the solvency of stockholders who are not before it, and the amount stockholders in court will be required to pay will be based upon the assumption that all stockholders are solvent.
    3. Creditors of an insolvent bank who, in order to allow it to resume business, agree to accept certificates of deposit calling for interest, but accept certificates which do not provide for interest, are bound by the terms of the certificates accepted.

      Brewer, Coolc c& McGowan and Bentley & VicKery, for plaintiffs.

      Squire, Sanders & Dempsey and Henderson & Quail, contra.
    Marvin, J.; Winch, J., and Hale, J., concur.
   The defendant, the Peoples Savings Bank, is an insolvent corporation, organized under the laws of the state of Colorado, and until its insolvency carried on a banking business in that state. The plaintiffs are creditors of said corporation and bring the suit in behalf of themselves and all other creditors of said corporation.

The capital stock of said corporation is $100,000, all of which was issued and paid for.

A large part of the stockholders of said corporation reside in the state of Colorado, some in other states, and the defendants, N. O. Stone, Prank S. Henry, P. A. Sterling, Joseph Pinkett and Anthony W. Gibbons, as administrator of the estate of Joseph Gibbons, deceased, are stockholders in said corporation and reside in the state of Ohio. The defendant corporation has not entered an appearance here and is not under the jurisdiction of the court. The defendant stockholders hereinbefore named are all before the court.

Under the laws of the state of Colorado, stockholders in corporations are liable to the creditors of such corporations in an amount equal to 200% of the stock held by each.

On the 17th day of July, 1893, this corporation being in financial difficulties, made a general assignment for the benefit of its creditors.

Thereafter the stockholders made an agreement among themselves' that they would pay into a common fund 100% of their holdings of stock, to' be used in the payment of the corporation’s debts, which should thereupon resume business, the balance of the indebtedness being provided for by certificates of deposit to be issued to the several creditors. To this the creditors consented, and $82,000 was paid in by the stockholders under this agreement. The assets were turned over by the assignee to the corporation, the money thus paid in was used toward the payment of the indebtedness, and the balance of the indebtedness was provided for by the issuing of the certificates of deposit hereinbefore mentioned, and the bank resumed the transaction of business on the 28th of May, 1894. Certificates of deposit were issued to the several creditors for the amount owing to each. These certificates were dated May 28, 1894, and each creditor received five of them, each being for one-fifth of the amount owing to the creditor to whom they were issued. These certificates were made payable at different dates. The two first falling due to each creditor were paid at maturity.

On the 29th day of June, 1895, the corporation, finding itself unable to carry on its business, again made a general assignment for the benefit of its creditors. At the time of this last assignment the indebtedness of the bank was $200,407.31 and was all represented by the remaining certificates of deposit, that is, three to each creditor. The first of the certificates so remaining unpaid was due July 1st. .1895; the second, January 1st, 1896, and the third, July 1st, 1896; an equal amount, $66,802.44, falling due at each of said dates. The several certificates were alike in form and each, except as to amount and name of the depositor, read:

“The Peoples Savings Bank,
“$10.84. Denver, Colo., May 28, 1894.
“Frank IT. Yogt has deposited in this Bank ten 84/100 dollars payable to the order of self, in current funds on return of this certificate properly endorsed.
“D. D. Muir,
“V.P.& Cashier.”

On the first one-third of these certificates was an endorsement reading:

‘ ‘ This certificate is hereby made payable July 1,' 1895, with interest at the rate of 5% per annum until maturity or until called in prior thereto. No interest after maturity.”

On the second one-third was the same endorsement except that the date of maturity was January 1, 1896; and on the remaining one-third was the same endorsement except that the maturity was fixed at July 1, 1896. Upon these certificates the assignee has made payments as follows: December 20, 1900, 40%; November 26, 1901, 10%; December 22, 1902, 8%; making in the aggregate a payment of 58% of the principal of the indebtedness. The assets of the corporation have been exhausted in making these payments, except that a suit is now pending in the Supreme Court of the United States on which something may be realized for this corporation. As to this suit it may be said that the creditors of the corporation are not required to wait until the determination of this suit before proceeding against the stockholders for their part.

The question of the jurisdiction of this court was raised by demurrer to the petition, and we held that we had jurisdiction over the defendants residing in Ohio. AYe adhere to our holding made on the demurrer without further discussion of the question.

From what has been said, it appears that if all the stockholders of the corporation are solvent there is a fund amounting to $118,000 available for the payment of the creditors, this being made up of $18,000 not paid in under the agreement by which the bank was to resume business and $100,000 being the amount for which the stockholders would have been liable if the original $100,000 provided for in the agreement to resume had all been paid in. The indebtedness of the corporation is the balance due upon these certificates after deducting therefrom the 58% paid by the assignee, as hereinbefore set out.

Under the resumption agreement it was provided that the certificates of deposit to be issued to the creditors should draw interest at the rate of five per cent, per annum payable semiannually from September 1, 1893, until paid. It will be noticed that the certificates issued did not conform to this agreement in that there is no provision for the semi-annual payment of interest, nor is interest to begin on the 1st of September, 1893, but at the date of the certificate as shown by the endorsement, and interest to cease at the maturity of the certificate, or at such earlier time as the certificate should be called in by the corporation. The creditors accepted the certificates as they were issued and to that extent waived the provisions made in the resumption agreement, so that whatever rights the creditors have is such as is shown by the certificates held by them.

• On the part of the plaintiffs it is urged that the provision endorsed on the several certificates in the words, “No interest after maturity,” can not be held to deprive the holders of these certificates of interest after such maturity because of the fact that at the time when these several unpaid certificates matured the assets of the corporation were in the hands of an assignee for the benefit of creditors and the certificates could not then be paid. It is said that it is clear that the purpose of this endorsement was to induce the holders of the certificates to present them promptly for payment and that if when they had been presented for payment the corporation had failed to pajr, that interest would be allowed to the certificate holder; that to now say that in order to entitle the holder of the certificate to draw interest, he should show that he did present a certificate at maturity and demand payment would be to recpiire of him a vain thing since it is certain that a presentation and demand would have availed nothing, as the corporation had no assets in its hands with which to pay. While this question of interest is not free from doubt, we hold that the creditors are bound by this endorsement, and are therefore entitled to be paid only the amount due upon their several certificates at maturity. .

It was sought on the hearing to show that a considerable number of stockholders residing outside of Ohio and who arc not parties to this proceeding are insolvent. We hold that we are without jurisdiction to determine the solvency or insolvency of stockholders not before the court; but even if we have the jurisdiction, the evidence is not such as to establish such insolvency as to any of such stockholders.

If interest were allowed by us upon these certificates after maturity, even though all the stockholders are solvent, the result would be that the defendants who are before the court would each be required to pay 100% upon the stock held by him (each of such defendants having paid under the resumption agreement 100% of such stock), therefore if Ave were to hold all of the stockholders to be insolvent whose insolvency Avas sought to be shown in this proceeding, it is probable that each of the defendants now before the court would be required to pay 100% of the stock held by him and hence no further computation would be necessary, but holding as Ave do, that Ave must dispose of this case as though all of the stockholders were solvent, and that the indebtedness represented by these certificates draws no interest after the maturity of the several certificates, it follows that less than 100% will be required of these stockholders. A computation shows that the unpaid certificates with interest to maturity AA'ould be as follows:

The interest on those falling due on July 1, 1895, is $3,646.30; on those falling due on January 1, 1896, $5,316.36; and on those falling due July 1, 1896, $6,986.43, making the aggregate indebtedness Aipon these certificates, if nothing had been paid thereon, $216,356.41. The aggregate of payments made by the assignee is $116,236.23, leaving to be paid by the stockholders, $100,120.18. As already said, the amount available for this payment, treating all the stockholders as solvent, is $1.18,000, and would require from each about 84.8% of the amount of his stock.

The fact that some of the stockholders have already paid the amount of their liability and thereby reduced the actual indebtedness is not considered here because that would not affect the stockholders who have not paid. Upon the basis herein indicated, the defendants who are before the court are liable in this action, and judgment will be entered accordingly.


text:
    CONSTRUCTION OF A WRITTEN BUILDING CONTRACT.
    Circuit Court of Cuyahoga County.
    Frances H. Keiper v. Edwin Selfe.
    Decided, October 29, 1906.

      Trials — Parties Entitled to Instructions Before Argument — Clear and Convincing ■Evidence Required to Prove Waiver of Condition in Written Contract — Interpretation of Wmiten Contract is for Court.

    1. Either party has the right to have instructions given to the jury before argument, provided they are proper under the law applicable to the case, and giving substantially the instructions asked for after argument does not cure the error of refusing them before argument.
    2. Where a condition in a building contract provides that the owner shall not be liable for extras or for work not provided for in the contract unless the changes in the plans are indorsed upon the back of the contract, the plaintiff can not recover for such extras or for labor outside of the contract, without proving by clear and convincing evidence that the owner waived the condition.
    3. Interpretation of a written contract is for the court, and where an issue is made as to whether or not certain items are provided for in a written building contract or a certain notice required, it was error for the court to instruct the jury to determine those facts from an inspection of the contract.
    Marvin, J.; Winch, J., and Henry, J., concur.
   Suit was brought by Selfe against Frances H. Keiper and her husband, William Keiper, to recover for a balance claimed to be due to said Selfe, hereinafter spoken of as the plaintiff, upon a written contract entered into between said plaintiff and Frances II. Keiper, hereinafter spoken of as defendant, for furnishing materials and erecting a house by said plaintiff for defendant. The petition also claimed a judgment for certain labor and materials, which the plaintiff claimed as due for charges made in the contract involving additional expenses, and for certain labor and materials claimed as extras. Upon the trial the .jury found for the plaintiff against the defendant Frances, and judgment was rendered against her. No judgment was rendered against William Keiper, and nothing further need be said about him.

The defendant answered the petition of the plaintiff, quoting a provision of the contract as to charges and extras; setting up that she had paid $25 for hardware, which she says by fhe terms of the contract she was to be credited with, but for which she says no credit was given, and says plaintiff is not entitled to recover for extras because he has not brought himself within the provisions of the contract.

She then sets up by way of cross-petition and as a counterclaim a failure on the part of the plaintiff to perform fully his contract in certain specified particulars, an! she prays judgment against the plaintiff in the sum of $200 by reason of such counter-claim.

Mrs. Keiper prosecutes error to the judgment against her.

A bill of exceptions is filed here with all the evidence given or offered at the trial, together with the other proceedings in the case.

The verdict of the jury is against the defendant in the sum of $149.59, and then these words follow: “And we do find that there is due the defendant upon the cross-petition the sum of no dollars. We therefore find for plaintiff and assess his damages at $149.59.”

In its instructions to the jury, at the close of the charge as to the manner of preparing the verdict, the court said:

“Taking into consideration all of the evidence, you will find out what in your judgment he is entitled to, if he is entitled to anything at all, and you will compute interest upon the same thus found from September 1st up to the first day of April of this year. You will then ascertain what sum, if any, is due the defendant on her cross-petition and your verdict will state what it may be. The form of verdict is this: ‘We the jury in this case being duly empaneled and sworn, do find for the plaintiff against the defendant, Frances II. Keiper, and assess his damages by reason of the promises at blank dollars, and we find that there is due the defendant upon her cross-petition the sum of blank dollars. We therefore find for blank and assess blank damages at blank dollars.’ ”

Assuming as we must that the jury understood this instruction, it would seem from the verdict that the amount found for the plaintiff was without any deduction on account of failure to perform the contract, because such failure was set up as a counter-claim, and the jury found that on account thereof the defendant is entitled to “No dollars.”

Since the amount found for the plaintiff is not above the balance claimed by him on the contract and is almost exactly what he claimed thereon with interest to the first day of the term at which the case Avas tried, it. is urged by the plaintiff that we should assume that nothing Avas alloAA'ed him for extras or charges and that, therefore, Avhether there were errors or not in the charge or any refusal to charge on the matter of such extras and changes, no prejudice could have resulted to the defendant, and therefore the judgment should be permitted to stand. Were it not for the dispute of $25 for hardware this would have Aveight, but with this dispute Ave can not say but that the jury alloAved plaintiff something for extras, and charged him with not having credited the $25 and so reached the verdict rendered. If this was done, it becomes necessary to determine Avhether the charge of the court was right on such extras and charges, and Avhether the court erred in refusing to charge as requested by the defendant.

The court Avas requested in writing by the defendant to give certain propositions to the jury before argument. The court declined to give such instructions before. argument, saying:

“I do not deem it necessary to read these requests at the present time, for the reason that in my judgment they will be substantially taken care of in my charge to the jury when the time comes.”

By Section 5190, either party has the right to have instnreuons given before argument, provided they be proper under the law and applicable to the case. See R. R. Co. v. Hawkins, 64 O. S., 523; Village of Monroeville v. Root, 54 O. S., 523.

We must then consider the requests made. The bill reads:

“Whereupon counsel for defendant presented to the eourt the following written requests, and asked the eourt to give them before argument:
“1st. The jury is instructed to return a verdict for the defendant, William F. Keiper, for the reason that there has been no evidence offered by the plaintiff tending to show that the contract or claim sired upon was the contract of said William F. Keiper. ’ ’

An examination of the evidence will show that that proposition was clearly true, but as the jury found no verdict against Keiper he is making no complaint, and the case would not be reversed because of failure -to give that' proposition, to the jury.

“2d. The specifications which were a paid of the contract under which the work was performed, forming the subject-matter of this action, contains the clause: ‘should any extra" work or changes of the plan be required whereby any cost may be increased or diminished, all such changes must be determined and agreed upon before the change is made, and the amount, whether an increase or a decrease in cost, must be endorsed upon the back of the contract. ’5

That is the quotation from the contract itself, and then follows the following .-

“No recovery can be had by the plaintiff for any extra work unless the jury finds that the above written provision has been waived by the defendant, Frances Keiper. The burden of establishing the proof of such waiver is upon the plaintiff, and such proof in order to entitle the plaintiff to recover, must be clear and convincing. Clear and convincing proof is more than the mere preponderance of the evidence, and such preponderance must be of such character as to make the proof clear and convincing.”

It seems that with the grounds as well established as they are in Ohio, that in order to establish a change in a written contract proof must be clear and convincing, and that the contract under consideration, having; the provisions which have been read, that there can be no doubt that that proposition should have been given to the jury. In the consideration of the case on the question as to extra work the proof must be such as is required in the change of the contract; but upon a careful examination of the language of the contract the parties agreed that the extras should come, under the same provision as change in the contract. "Should any extra work or changes of the plan be required,” etc., "the same must be endorsed upon the back of the contract.”

That proposition is a clear statement of the law applicable to the case and should have been given, and to refuse to give it, if it stood alone, would have been error for which the defendant below would be entitled to have;, the judgment reversed. But it is said that it is one of a series of propositions, and unless the entire series had been given that there was no error in refusing to charge. However that may be, we think the next proposition is equally a clear statement of the law applicable to the case, and therefore the several propositions, and each of them, should have been given, and that therefore no reversal could be had on the first if it stood on that alone.

The third proposition requested to be charged reads:

"If the jury finds that the plaintiff has fairly endeavored to perform his contract, and has in fact substantially performed it, and if the jury further find that the defendant Frances Keiper has sustained any damages by reason of the failure of said plaintiff to strictly comply with his building contract, then in that event the plaintiff may recover the contract price for the work, less the amount of damages the OAvner may have sustained by reason of the failure of the plaintiff to strictly comply with said agreement.”

As already said, it seems clear that that proposition was a proper statement of the law applicable to the case. It can hardly be doubted that each proposition here requested to be given was an accurate statement of the Irav and that it aaus applicable to the case on trial.

As to the first.question, since it affected only the differences between the plaintiff and William Keiper, and no verdict was returned against the latter, it is obvious that no prejudice was to Frances on account of its refusal, but as to the others, they had a direct bearing upon the question af issue betAveen the parties in this error proceeding, and fhe defendant was entitled to have them given before argument.

Indeed, the court seems to have understood them to contain a true statement of propositions of law applicable to the case, from what was said in the general charge, but seemed to have acted upon the idea that if they were given, and correctly stated in the general charge, it relieved him from giving them before argument. The statute already referred to says otherwise. And the cases already cited show that the Supreme Court has held that where the propositions are requested in writing to be given before argument, they must be given before argument; and the error committed in refusing to give before argument will not be correctly so by giving the propositions in the general charge. It was, therefore, error in refusing to give these propositions, and for that error judgment must be reversed.

Again complaint is made of the charge given. It is said it is misleading; and the clause is referred to in which the court said, “It is also the policy of the law that the parties shall be held to as strict an execution of their contracts as possible.” This clause taken alone might mislead, because one may not be excused from liability on his contract for want of ability on his part to comply with it. One must perform his contract in order to recover upon it. True, there may be some matter of so little consequence omitted that it would not affect anything of substance, and the contract be held to have beejr performed. However, the court said later in the charge on the subject of substantial performance, what would probably take away the misleading character of the clause quoted, and the ease would not be reversed for this language in the charge alone.

On page 221 in its general charge, the court used this language :

“What do you say, gentlemen? Did the written contract include the superintendency by the plaintiff of the plumbing for which he asks judgment for $25.50 or was that plumbing for which he asks judgment á separate and distinct contract between the parties on that subject, and is the evidence upon that subject clear and convincing?”

Clear and convincing in what way ? In order to change the contract it must be clear and convincing; but to have it fall within the contract it is not required that the evidence be clear and convincing. Still the court in its language did not explain to the jury as to which way the evidence was to be clear and convincing. That language might mislead the jury.

But there is another infirmity in this charge, and that is that it asks the jury to look at a written contract covering many pages, a large part of it in print, and from that determine for themselves whether the contract required the superintending of this plumbing. The court should have examined that contract and in explaining the meaning of it should have said to the jury what is or is not a part of the things which plaintiff undertook to do.

There is the same infirmity with reference to other charges made. “What do you say, gentlemen, as to the mantel and the bridge work in the attic and for all those things for which compensation is asked for by the plaintiff?

The court should have construed that contract and not asked the jury to.

Again the court said to the jury “that under the terms of the written contract he was entitled to three days notice in writing of any dissatisfaction on the part of the defendant with the work or material used in the construction of said house and that said notice in writing was not given him. I say to you now, that if you find from the evidence such to have been the ease, then the defendant could not recover damages as claimed by her unless you also find that such provision in said contract and specifications was waived by both parties, and on this subject the proof must likewise be clear and convincing.”

Clear and convincing how? Clear and convincing that there was a contract or clear and convincing that the contract required three days’ notice? The court should have examined the contract and determined whether or not three days’ notice was a part, that plaintiff was entitled to three days’ notice, and upon reading it the court should have said to the jury, that for the defects claimed here by this evidence of things discovered long after the plaintiff had turned the job over to the defendant, he was not entitled to three days’ notice. That should have not been left to the jury.

Again in another part of the charge as to the claim for extras, the court said to the jury, “You will look to the evidence and find what work and material the written contract and specifications called for.” The court should have looked to the contract and told the jury what was called for.

The court is asked to take certain evidence from the jury; and that was evidence in relation to conversations had prior to the execution of the written contract, and referred to superintending plumbing. That evidence should have been taken from the jury, for the claim is made on the part of the plaintiff that this was for a change made after the contract was made. The contract did embody what the parties agreed to.

The charge then in various particulars is misleading; the refusal to charge as requested was erroneous, and the failure to take the evidence from the jury as to conversations about this plumbing before the contract was made was erroneous to the prejudice of plaintiff in error, and although it is with regret that we reverse this we are inclined to think that perhaps the true result was reached, but it is not clear that that is so, and it may be that the jury made a mistake.

The ease will be reversed and remanded to the court of common pleas for trial.


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    INCONSISTENT VERDICTS.
    Circuit Court of Cuyahoga County.
    B. Schatzinger v. Nellie W. Boyd.
    Decided, February 11, 1907.

      Trials — New Trial Granted where Verdict of Jury Inconsistent.

    Where, in an action upon a building contract plaintiff asks judgment for money spent in completing a building after defendant had abandoned his contract, and defendant in a cross-petition asks for judgment for money spent by him under a contract which he alleges was made but which was entirely different from that alleged by the plaintiff to have been made between the parties, the jury having returned a verdict in favor of plaintiff for an amount in excess of that claimed by him, and for the defendant for the amount he claimed, the verdicts of the jury are so inconsistent as to indicate that they did not comprehend the issues and a new trial will be granted.

      Henry, J.; Winch, J.; and Marvin, J., concur.
   The defendant in error was plaintiff below, where she recovered a verdict and judgment for $1,167.23 on a building contract.

The facts as claimed by the plaintiff below are, that she and her husband negotiated with the plaintiff in error, B. Sehatzinger, for the erection of a house on a lot previously purchased by her in Schatzinger’s- Superior Park allotment; same to be erected’ by Schatzinger. On the day when the final payment toward the purchase price of the lot was made, the plaintiff below, Mrs. Boyd, paid $550 additional to Schatzinger to apply upon the construction of said house. At the same time, Mrs. Boyd’s husband claims to have dictated to Schatzinger’s stenographer a contract which, though it was never written out, he reproduces from memory in his testimony as follows:

“This agreement made this 1st day of November, A. D. 1902, by and between Nell W. Boyd a party of the first part and Bernard Schatzinger party of the second part, witnesseth, that for and in consideration of a sum not to exceed $4,000 the receipt of $675 of which is hereby acknowledged, the said party of the second part agrees to build and erect a residence on lots 37 and 36, Superior Park Allotment, as per plans and specifications prepared by the Kauffman Architectural Company, which are hereby made a part of this contract. The balance of the payments to be secured by a first mortgage to said Bernard Schatzinger. The building to be completed as per plans and specifications on or before January 1st, 1903.
“That on the faithful completion of the work as above specified the said party of the first part is to execute to the party of the second part a mortgage in a sum not to exceed $3,325, with interest at the rate of five per cent, per annum for a term- of five years. In witness whereof we have hereunto put our hands and seals this first day of November, 1902.”

On cross-examination he repeats the same contract, with some verbal variations, and says, “there is another thing in that contract that was not spoken of this moi;ning that was particularly spoken of at the time.” This omission he supplies, as follows:

“The'-grading and pavements are included in the above sum.”

After dictating this contract in the presence of his wife and Schatzinger, he left Schatzinger’s office. His wife remained to sign the contract when it should be typewritten, and. she did stay there until a document was produced for her to sign, which she supposed to be the contract in question. She accordingly signed it and left. Afterwards it proved that what she signed was an application for a loan. Such at least, is the version of this transaction as given by Mr. and Mrs. Boyd. Schatzinger and his stenographer deny all knowledge of any such contract having been made on that date. Schatzinger claims that he made a contract, which some two months later was reduced to writing, but dated back at Mr. Boyd’s request.

This contract was as follows:

“Building Contract..
“This agreement is made and entered into this nineteenth day of November, A. I). 1902, by and between Nellie W. Boyd and B. Schatzinger.
“Whereas, said Nellie W. Boyd owns Lot No. 37 and the northerly half of Lot No. 36, in Superior Park, and is desirous of having a dwelling house built on same and. B. Schatzinger being a builder and engaged in.putting up buildings,
“Now Therefore, it is agreed by and between the above parties that, said B. Schatzinger shall have a dwelling house erected on said premises but said Nellie W. Boyd is to furnish the plans for same.
“Said B. Schatzinger is hereby authorized and instructed to contract for labor and material for said dwelling house to the extent of four thousand dollars ($4,000) and said Nellie W. Boyd agrees to pay for said labor and material as bills therefor mature.
“It is further mutually agreed that no profit will be charged on any labor or material contracted for on said dwelling house by said B. Schatzinger, but that the same is a matter of accommodation.
“It is further mutually agreed that said B. Schatzinger will procure a first mortgage loan on said property upon the completion of the building and the improvements upon the lot for not more thatn thirty-five hundred dollars ($3,500) and at a rate of interest noi more than six per cent, per annum.
“Nellie 'W.- Boyd,
“By Court Boyd,
“B. Schatzinger..”

This document was actually signed December 27, 1902, but apparently without any express authority having been given by Mrs. Boyd to her husband thus to sign her name.

Mir. Boyd explains this transaction, as follows: He says he went to Sehatzinger’s office December 26, 1902, and asked him for a copy of the contract. Sehatzinger said there was no contract written. I asked him what had become of the contract I dictated that day, the contract that my wife signed. He said my wife had never signed a contract in his office. I asked him what she had signed, and he said she had signed an application for a loan. I said that I thought he was playing a very mean game to try to take advantage of us and back out of the contract, on which he had received the money.

He said he would rectify that and he would go ahead and complete the house and he would get the money to do it.

I said that is all we want, we simply want the contract carried out. He said that he ivas sorry he could not get the money and that he would make other arrangements to get it. That is what he said. I asked him why the contract had not been signed; the one that I dictated and the one that we paid him the money on, and he said he did not think it was a proper contract to sign.

On the following day Sehatzinger brought to Boyd the document last above quoted, and said he would like to. have that signed so that they could take it up with Mr. Creer to get the money and go ahead with the building. That was what he said. He brought in that statement; he brought in this contract; my wife ivas not at home, and had not been in the city since the 1st of December. He asked me to sign that contract and Ave would go up to see Mr. Creer at the Cleveland Loan Company. I signed the contract Avith him and we went up to see Mr. Creer to get the money to complete the house.

They failed to negotiate a loan at that time on terms satisfactory to Mr. Boyd, whereupon he said to Mr. Sehatzinger that “I thought he Avas trying to beat me and I did not want anything further to do with,him; that he Avould either carry out the original contract that Avas made, or that I Avould go ahead and complete the building, which I did. ’ ’

Prior to this time the building had been for two months in the course of erecting with money supplied by Schatzinger, from the $550 advanced by Mrs. Boyd, and when that was exhausted,. oitt of his own pocket to the extent of $554.78 additional.

Mr. Boyd having failed or declined to provide further money as bills matured, Schatzinger declined and dropped the matter, and the Boyds went ahead and completed the building substantially in accordance with specifications made by the Kauffman Architectural Company. This company was closely connected with Schatzinger in business, and had its office on Schatzinger’s allotment. Schatzinger introduced the Boyds to the architect who prepared the plans and specifications and who had more or less to do thereafter with overseeing the construction of the house.

After the completion of the house Mrs. Boyd filed her petition alleging that she had paid out altogether $5,406.78 and for the excess over $4,000 named in the first contract she asked judgment. Attached to her petition is an itemized list of expenditures, which is not, however, so itemized as to cheek up with the vouchers which were afterwards introduced in evidence. The answer filed by Schatzinger denied that he had entered into the contract set forth in the petition, but admitted that he had entered into a verbal contract prior thereto, which was after-wards embodied in the document which Boyd signed on behalf of his wife. Schatzinger admits that under this verbal contract he began the construction of the house and continued the same until the refusal and failure of the plaintiff to furnish him any more money. In the second and third causes of action he sets up the $554.78 advanced by him and a mechanic’s lien which he perfected to secure the same, and asks a judgment and decree thereon.

In Mrs. Boyd’s reply she admits her husband was looking after the erection of the house mentioned in the answer; denies defendant’s version of the verbal contract and denies that the said paper writing purporting to be a contract, which the said defendant sets up in his answer and cross-petition, was ever signed or agreed to by her, and that the same ever became a contract between said parties. She says that after the said verbal contract was entered into as set up in lier petition, this plaintiff urged the said defendant to put the original contract in writirig, which' he agreed to do and thereupon wrote the paper which he claims to be a contract and which he has set up in his answer and sent it to her, at which time her husband, James Court Boyd, in order to submit it to his counsel signed in pencil the name of this plaintiff in order to show counsel a completed contract and to ask his opinion about it before agreeing to it.

Upon the advice of said counsel the said proposed draft of a contract was rejected, and that the said Boyd carried said contract into the office of said defendant and told him that that was not the contract that was made with the defendant, and that he would not agree to the terms as specified in said proposed draft of a contract as it did not conform to the original agreement. After some further conversation with the defendant, who told the said Boyd to draw a contract to suit himself, the said Boyd left the office of the defendant and inadvertently left the said proposed draft of contract on the desk of said defendant and that he afterward carried a proposed contract in writing to the defendant which conformed to the agreement as originally made which the defendant never signed or returned to this plaintiff.

This plaintiff therefore denies that she or anybody for her ever made a contract as set up in the answer and cross-petition of the defendant, and she denies that any part of the work done on said house was done under said contract, and she denies that any payments were ever made upon said contract.

It will be observed that this version of the transaction of December 27th, 1902, between Schatzinger and Boyd is quite different from the version given by Mr. Boyd on the witness stand, and we think it extremely improbable that any business man of experience would have entered into so loose a contract as the Boyds claim was assented to by Sehatzinger verbally November 1, 1902.

The jury having found otherwise upon this issue, we would not, however, disturb the verdict on that ground. But it is perfectly evident that the jury had no proper conception of what their verdict should be in the premises.

The petition prayed judgment for $1,406.78, which, with interest to the first day of the term at which the verdict was returned, could have amounted at the most to but $1,652.96. The verdict for plaintiff, is, however, including interest, $1,820.86. They also returned a verdict for the defendant, on his counterclaim for $652.58, which is substantially the amount of the $554.78 paid by Sehatzinger out of his own pocket, together with interest.

Upon the issues joined, a verdict for one party was utterly inconsistent with a-verdict for the other. If the plaintiff was entitled to recover at all it was for the amount paid by her in excess of the contract price of $4,000 and no more. In that event the defendant would be entitled to nothing, because whatever he had paid out of his own pocket over and above the contract price of $4,000 should have been paid by him anyhow.

On the other hand, if the defendant was entitled to any verdict, it could only be upon the theory that it was for moneys advanced by him and for which he was entitled to be reimbursed by Mrs. Boyd. It may be said, however, that the net result of these erroneous verdicts is to give the plaintiff, including interest, the sum of $1,167.28, or exclusive of $992.43, which is $413.35 less than the amount claimed in her petition. If we could reconcile this result with the conclusions which are reached as to the rights of the parties, from our examination of the contract claimed by the plaintiff below, the plans and specifications referred to therein and the proof as to payments made, we should not allow the mere informality of the verdict to invalidate it. But our examination shows that gas fixtures, decorating, electric light writing, mantels, extra painting, extra coal, interest on loan, cost of abstract of title, parquetry flooring, commission on loan, finishing of the attic, lighting fixtures and other items not mentioned in the contract or specifications nor depicted in the plans of the house, should have been deducfed from the expenses. These deductions exceed by considerable the deduction which seems actually to have been made by the jury.

This perhaps might be rectified by a remittitur if it were possible from the bill of exceptions to arrive definitely at the amount to be remitted.

We are unable, after a good deal of effort in this direction, to unravel the mazes of the accounts submitted in the pleadings, evidence and briefs, so as to arrive at a satisfactory result along this line. It would require the combined services of a builder or architect and an expert accountant to solve the question. We doubt if the jury could have found from the evidence just how much the plaintiff was entitled to, although we are certain that they found more than the plaintiff was entitled to.

Because of the jury’s seeming ]aek of comprehension of the manner in which they should return their verdict and the manifest irregularities in the verdict as returned, we incline to the opinion that the jury did not give this ease proper consideration, and we, therefore, reverse the judgment below and remand the ease for a new trial.


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    EFFORT TO ENGRAFT A PAROL AGREEMENT UPON A WRITTEN CONTRACT.
    Circuit Court of Cuyahoga County.
    The Western Mineral Wool & Insulating Fibre Company v. The Illinois Steel Company.

    Decided, February 23, 1903.

      Evidence — When Parol Evidence, Not Received to Show Collateral Contract.

    Where a settlement of claims for rent and other matters growing out of the terms of a lease, containing a provision for the removal by the lessee of buildings and machinery especially adapted for the manufacture of mineral wool by a patented process owned by the lessee, was made by the lessee giving the lessor a promissory note and a conveyance of said buildings and machinery and the terms and conditions of said settlement were evidenced by a contract in writing; in an action on the note between the original parties evidence will not be received that at the time said written contract was entered into, a parol agreement was made between the parties that the lessor should not use said buildings and machinery for the manufacture of mineral wool by said patented pi’oeess.

      IIessenmveller & Bomis and J. J. Hogan, for plaintiff in error.

      M. B. & II. TI. Johnson, contra.
    Winch, J.; Hams, J., and Marvin, J., concur.
    The Illinois Steel Company brought suit in the common pleas court against the Western Mineral Wool & Insulating Fibre Company to recover on a promissory note for $500 executed by the latter and payable to the former. After the bringing of the action the wool company made an assignment for the benefit of its creditors to A. A. Bemis, who qualified as such and filed an answer and cross-petition in which he pleaded a failure of consideration for the note and charged that the true consideration for said note was the promise upon the part of the steel company not to engage in the manufacture of mineral wool by what was known as the “Rockwell Process” which process was patented and used, owned and controlled by the wool company, which promise on the part of the steel company has been broken.

      Affirmed without opinion, Western Mineral Wool Co. v. Illinois Steel Co., 71 Ohio State, 498.

   By way of counter-claim the assignee- also alleged breach of said contract and averred that the steel company did engage in the manufacture of mineral wool by said- “Rockwell Process” and placed the same upon the market at one-half the price theretofore obtained for it, thus ruining its business, to its damage in the sum of $50,000. General denials to the answer and counter-claim were filed.

The steel company maintained that the note was given pursuant to a written agreement between the parties, which recited that the wool-company ivas the owner of certain buildings and machinery located on certain premises belonging to the steel company, but leased to the wool company under a lease providing for the removal of said buildings and machinery by the lessee; that certain differences had arisen between the parties and that it was claimed that the wool company was indebted to the steel company for certain rents and other matters growing out of the provisions of said lease, which claims were disputed by the wool company; that for the purpose of the settlement of all differences in consideration of the acceptance by the steel company of a transfer and conveyance of said buildings and machinery and of the note of the wool company for $500 in full of all claims and demands to date against the wool company, the latter sold and conveyed said buildings and machinery to the steel company, “it being understood and agreed that by the transfer of the buildings and machinery named in this instrument, the Illinois Steel Company acquires no rights of any kind or value under the patents of Charles II. Rockwell and by him assigned to the Western Mineral Wool & Insulating Company.'”

The wool company claimed and offered to prove at the trial at the time of said written contract was entered into a parol agreement between the parties was made that the steel company would not use said buildings and machinery for the manufacture of mineral wool by the “Rockwell Process” that said parol agreement was collateral to and distinct from the written contract between the parties and was part of the consideration for said note and the transfer of said property; that the note would not have been given or the property conveyed, but for this parol agreement on the part of the steel company; that the steel company had violated this parol agreement and thereby not only had the the consideration of the note failed, but the wool company had been greatly damaged.

It is conceded that if the steel company used the “Rockwell Process” and manufactured mineral wool by it and the process was protected by patents owned by the wool company the latter would have its remedy for such infringements in the federal courts, but to bring the matter within the jurisdiction of the state courts a contract between the parties that one would not use the other’s patented process must be proved.

Most of the testimony offered to prove the parol agreement, its breach and the damages arising therefrom was ruled out by the trial court, and this ruling, as wrell as the charge of the court with reference to this parol contract are assigned as errors by the wool company.

To the general rule that parol evidence will not be received to add to, take from or vary the terms of a written agreement there is the exception that parol agreements may be proved when they are collateral to and distinct from the written agreement, although made, in consideration of the execution of the' written document.

The eases illustrating this exception show that it is very difficult to determine with precision any satisfactory and definite line of demarcation between the classes of eases in which parol evidence is admissible and those in which it is not, where the parties have made a written contract in reference to the general subject of agreement between them.

By the written contract in this case it appears that the general subject of agreement between the parties was the settlement of claims made by the steel company against the wool company. That to settle .these claims the wool company gave its note and conveyed certain property to the steel company. The statement-in the written contract that by said instrument the steel company acquired no rights in the Rockwell patents was clearly intended only to rebut the presumption that having conveyed machinery especially adapted to use in a patented process, the right to use the process went with it.

If the parties at the time were also contracting about another matter distinct from the settlement of their accounts, certainly no other consideration was moving to the wool company than the settlement of their accounts. To engraft this parol agreement upon the written contract would limit the use to which the property conveyed could be put to by the steel company. It would add to and vary its terms.

It was an unnecessary thing to do, as by its patents the wool company was sufficiently protected against the use of the property by the steel company, to manufacture mineral wool under the Rockwell Process. It can not be apprehended that at that time the wool company desired to make a deliberate choice of the state courts in which to litigate any future controversy as to the future use of the property conveyed when it had its protection and remedy in the federal courts.

The parol agreement has some of the features of an agreement not to engage in a certain business. The following authorities are in point, as to such agreements:

“Where the consideration of a promissory note consisted in part of the price of a fish stand, which had been paid and endorsed, and in part of an agreement on the part of the payee not to engage in the fish business for a year in competition with the promisor and the terms and conditions of the sale were evidenced by a contract in writing, which contained nothing relative to the good will of the business, it was held, in an action on the note between the original parties that the promisor could not prove, in his defense, that at the time of the sale a verbal contract was made between the parties, that the payee would not engage in the fish business for a year, and that this agreement had been violated.” Wilson v. Sherburne, 6 Cush., 68.
“ In an action upon a written lease to recover the rent reserved parol evidence is not admissible to show that at the time, and as one of the considerations to induce the defendants to execute ihe lease, the plaintiff promised and agreed not to engage in the butcher business in the same block during the term of the lease, and had failed to keep that promise. Schollz v. Dankert, 69 Wis., 416.
“If a written contract is entered into by which one person promises to give another ‘ a lease and full possession of his stock and store for the term of five years at a yearly rent as understood by both’ for which a certain sum as bonus and also a market price for the stock are agreed to be paid, parol evidence is incompetent to show that this was executed only as a memorandum and partial statement of the agreement, for special purpose, and that another independent oral agreement was made at the same time and upon the same consideration that the seller should not engage in similar business within five years.” Doyle v. Dixon, 12 Allen, 576.

Plaintiffs in error cite and rely upon the case of Welx v. Rhodius, 87 Ind., 1, which case is similar to the cases above referred to, but contrary to them in its conclusions. The Indiana case appears to have followed the doctrine laid down in English authorities, which authorities have been much criticized in American cases as carrying the doctrine of the admissibility of parol evidence where there is a written, agreement between the parties, to an extreme length. Laumberg v. Young, 43 American Rep., 380.

Judgment affirmed.


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    REMOVAL OF ASHES BY THE MUNICIPALITY A GOVERMENTAL FUNCTION.
    Court of Appeals for Hamilton County.
    George E. Shilling v. City of Cincinnati.
    Decided, March 29, 1915.

      Municipal Corporations — Capacity in Which As7i.es are Removed — City ■ Employee Injured While so Engaged — Doctrine of Respondeat Superior Not Applicable — Obvious Risks.

    1. The removal of ashes by a municipality from business houses and , the residences of- private citizens is an exercise of a governmental function, and'not. of a private or. proprietary duty.
    2. But were a contrary holding to .bo made, no cause of action would . arise in the ease of one employed on an ash cart and with experience in that class of work, who complains that he injured himself lifting receptacles containing ashes because not enough help was provided for the work.

      Alcorn & Alcorn, for plaintiff in error.

      Walter M. Schoenle, City Solicitor, and Constant Southwórili, Assistant City Solicitor, contra.
    Gorman, J.; Jones (E. II.'), P. J., and Jones (Oliver B.), J., concur.
   This was an action brought by the plaintiff in error to. recover damages for personal injuries sustained by him- while in the service of the defendant as an ash-cart man, in attempting to lift into one of the city’s carts a receptacle containing ashes, and which by reason of its great weight and the insufficient strength of plaintiff and another. employee of the city, caused the plaintiff to strain himself and become permanently injured. The negligence charged is the failure of the city tó furnish a sufficient number of men to collect and carry away the receptacles containing ashes, and although plaintiff complained of the want of sufficient help he was ordered to do the work with another man or leave the service.

A demurrer to the petition was sustained by the court below, and the petition was dismissed. It is claimed that the court below erred in not overruling the demurrer.

"While there is a conflict of authority as to whether or not the removal of ashes from the residences of the citizens is am act of the municipality in its governmental capacity, we are -of the opinion that the weight of authority supports the contention that such an activity on the part of the municipality is an exercise of a governmental function and not an exercise of its private or proprietary duties.

The authority to remove ashes is found in Section 3649, General Code, under the enumerated powers granted for the preservation of the health of the inhabitants of the municipality.

"The power or even duty on the part of the municipality to make provision for the public health, and for the care of the sick and destitute, appertains to it in its public and not corporate, or as it is sometimes called, private capacity.” Dillon on Municipal Corporations, 4th Ed., Section 977; Condict v. Jersey City, 46 N. J. L., 157; Haley v. Boston. 191 Mass. 291; Johnson v. Somerville, 195 Mass., 370.

There are, it is true, authorities which hold that the removal of ashes and garbage is am exercise of the proprietary or private, functions of a municipality, among which may be cited the following cases: Quill v. The Mayor, 36 App. Div. (N. Y.), 476; Missano v. The Mayor, 160 N. Y., 123; City of Denver v. Porter, 126 Fed., 288.

Some of these eases arose where the municipality was removing ashes and refuse from its streets and under a statutory duty to keep its streets clean and free from nuisance, and not under the duties to be performed by the health department; and we believe that in such cases, street cleaning and repairing, the municipality may be under the statute liable for negligence. This is true at least in Ohio.

But we do not believe that this rule of respondeat superior should apply where the municipality is exercising its- police powers through the authority granted it to provide for the public health. It is not ordinarily liable for negligence while engaged in the performance of its functions under the police powers. But if it he conceder! for the purposes of the case that the rlefendant in removing ashes from the residences was exercising its authority and powers in its private or proprietary capacity, nevertheless, we hold that this case is ruled by the case of The Cincinnati G. & E. Co. v. Johnston, 76 O. S., 119.

In that case Johnston, an employee of the defendant company, ruptured himself while lifting a heavy spar, in conjunction with other employees of the defendant company, and it was held that he being an experienced man in the work and knowing the number of men necessary to do the work safely and prudently, could not recover by reason of the failure of the master to furnish a sufficient number of men to safely perform the work.

In the case at bar the plaintiff was an experienced man at removing ashes and lifting receptacles. He knew better than any one the limits of his strength and his lifting powers. He was not obliged to tax his strength beyond his capacity. He was not ordered by any superior to do so. He did what he did voluntarily. Nor does it appear that he was ordered to lift any receptacle into the ash wagon. His orders were generally to collect and remove ashes. We think that his liability to over-exert himself was one of the ordinary risks incident to his employment which he assumed when he remained at work on the ash-cart. As was said in the Johnston ease, supra, we do not think the case of VanDuzen Gas Co. v. Schelies, 61 O. S., 298, applies to the facts of the case at bar.

The lifting of the ash receptacle, as the lifting of the spar in the Johnston case, supra, required no special skill and involved no risk or peril except such as was perfectly obvious to every one. Plaintiff knew its weight, or at least' that it was heavy, and he knew the number of men ordinarily required to handle the receptacle, and if more than two men were required to lift it he knew it. Indeed, he knew every fact and circumstance that was within the knowledge of the foreman of his department, •his superior officer, with reference to the work he Avas performing. Under such circumstances his petition fails to state a cause of action and the demurrer was properly sustained.

Judgment of the court of common pleas affirmed.


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    RIGHTS OF A NATIONAL BANK WITH REFERENCE TO THE REISSUE OF A LOST CERTIFICATE OF STOCK IN A PRIVATE CORPORATION.
    Court of Appeals for Champaign County.
    Acquidneck National Bank v. Urbana Water Works Co.
    Decided, June 8, 1915.

      Corporations — Action for Restoration of a Lost Certificate of Stock— Defense of Ultra Vires in the Acquisition of the Stock by Plaintiff ■ Does Not Lie, When — Construction of the Prohibition Against the Molding by National Banks of the Stock of Private Corporations.

    In an action by a national bank for reissue of a lost certificate of stock in a private corporation, acquired by the bank in exchange for dishonored bonds and presumably for its protection, the defendant company, being a stranger to the executed contract whereby the bank became possessed of the stock, can not interpose the defense that the holding of the stock by the bank was ultra vires under the federal law and a reissue of the -certificate can not be required for that reason.

      L. D. Johnson and Burokcr & Zimmer, for plaintiff in error.

      J. 15. Bowman, contra.
    Ferneding, J.; Kunkle, J., and Allread, J., concur.
   This action originated in the Probate Court of Champaign County upon the application of the Acquidneck National Bank to require the Water Works Co., of Urbana, Ohio, a corporation, to issue to it under authority of Section 8677, General Code, a new certificate of stock for 100 shares in said company in lieu of a certificate for a similar amount alleged to have been lost.

Section 8677 provides:

“In case a certificate of stock in a corporation's lost or destroyed, the owner thereof may file his petition in the probate court of the county where the principle business office of such corporation is located in this state, setting forth a pertinent description of the certificate, and a full statement of the facts relating to its destruction or loss; that he is the owner of such certificate, and was at the time of its loss or destruction; that he had not assigned, transferred or disposed of it; and that it was not pledged to any one, or if so, stating to whom, with the facts relating thereto. ’ ’

Counsel for the water works company contend the original aeqiiisition of this stock by the bank was contrary to and in violation of the national banking laws and void; therefore a new certificate to substitute for the one lost could not legally issue.

The facts are not in controversy. The Acquidneck National-Bank originally owned in the legitimate conduct of its business $5,000 AYabash Railway Company bonds and $5,000 Seattle Railway Company bonds. These bonds by reason of the non-payment of their coupon interest became dishonored. The bank in an effort to safeguard and protect its stockholders sold and exchanged these bonds for $5,000 of bonds of the Alton Illinois AVater AVorks Company and $10,000 taken at par of the common stock of the Urbana AVater AVorks Company evidenced by certificate number 25-A for .100 shares of the par value of $100 and paid in addition for the same the sum of $1,680 in cash. The water works company stock was issued to Charles T. Hopkins, as cashier of the Acquidneck National Bank, and accepted by the bank as its property. Hopkins subsequently died and the certificate of stock could not be found. His financial interest in the stock was official only and not'personal.

The bank avers in its petition this stock was never subsequently assigned, transferred, hypothecated or sold after it was acquired, but was lost. The answer and the amended answer filed by the defendant enumerates several defenses.

First. A general denial.

Second. That the inhibition of the national banking laws as to a national bank owning stock in a private corporation was such as to make the action of the Acquidneck Bank in acquiring this stock ultra vires and void, and,

Third. 'That- one Charles T. Robinson claimed to have some interest in said stock and -was, and is. iherefore a necessary party to the action,

The plaintiff’s reply to these answers was a general denial. Upon these issues and the evidence the probate court, after a hearing, made an order as prayed for. •

The court of common pleas upon proceedings in error reversed said order and rendered a final judgment in favor of the water works company and against the bank upon the theory the acquisition of this stock by the bank was ultra vires and utterly void. Error is now prosecuted to this court to reverse said judgment of the court of common pleas. We are favored and indebted to counsel in the consideration of this case for able and exhaustive briefs in which many of the leading authorities both of the federal and state courts are reviewed and analyzed. After eliminating the less important issues the point on which the entire ease revolves, is, was the acquisition of the water works company stock by the National Bank under the peculiar circumstances of ownership absolutely void, and is such lost certificate by the bank capable of being restored to it by an order of the probate court under authority of the Ohio statute above quoted?

The Supreme Court of the United States, in the case of First National Bank of Charlotte v. National Exchange Bank of Baltimore, 92 U. S., 122, decided 1876, held a national bank.

“May accept stock in satisfaction of a doubtful debt, with a view to their subsequent sale or conversion into money in order to make good or reduce an anticipated loss.
“(2) Such transactions would not amount to dealing in stocks, and they come within the general scope of the powers committed to the board of directors and the officers and agents of a national bank. Subject to such restraints as its charter and by-laws impose, they may do in this behalf whatever natural persons can lawfully do.”

Thirty years later, November, 1910, Mr. Justice Hughes in delivering the opinion of the United States Supreme Court in the ease of Kerfoot v. Farmers & Merchants Bank, 218 U. S., 281. held:

“In the absence of clear expression of legislative intention to the contrary, a conveyance of real estate to a corporation for a purpose not authorized by its charter is not void, but voidable. The sovereign alone can object; the conveyance can not be impugned by the grantor, his heirs or third parties.”

The conveyance of real, estate to the bank in this case was challenged upon the ground that under the Revised Statutes of the United States, Section 5137, the bank was without power to take the property and no title in consequence passed by the deed.

Counsel for the water works company chiefly rely on the case of California Bank v. Kennedy, 167 U. S., 362:

_ “The statutes of the United States relating to the organization and powers of. national banks prohibit such banks from purchasing or subscribing to the stock of another corporation, although they may, as incidental to the power to loan money on personal security, accept stock of another corporation as collateral, and thus become subject to liability as other stockholders.
“The want of such authority may be set up by a bank to defeat an attempt to enforce against it the liability of a stockholder.”

Also Pullman’s Palace Car Company v. Central Transportation Company, 139 U. S., 62.

We think the California bank ease and the Central Transportation Co. case can be readily distinguished from the case at bar.

First. Because ■ in these eases the aets were claimed to be ultra vires, whereas in the case at bar the stock was taken as a substitute for the dishonored bonds which the bank had legally acquired and therefore presumably for the bank’s protection.

Second. Because the actions in these two cases were based upon the illegal contracts and between the parties thereto; while in the case at bar the action is not upon the contract claimed to be illegal wherein the stock was acquired, nor as between the parties to such contract, but the defense is made by a stranger to the contract. The case of Franklin Bank v. Commercial Bank, 36 O. S., 350, also relied upon by' defendant in error, is distinguishable upon the same grounds. We think the Acquiclneck National Bank ease here under consideration follows squarely within the rule laid down in the ease of Ehrman v. Union Central Life Insurance Company, 35 O. S., 324. The syllabus is as follows:

‘‘Where property which a corporation, trader certain circumstances is authorized by its charter to acquire is purchased in a mode or for a purpose not authorized, the title of the corporation to the property can not be defeated by a party who is a stranger to the agreement by which the property was acquired, and who is rot injured by the transfer.’’

.. While this is only a state ease, yet it has been followed with approval in the ease of Armstrong v. American Exchange National Bank, 133 U. S., 469, and is therefore applicable in a case involving a national bank. We are accordingly of the opinion this doctrine is directly applicable to the case' at bar. ■ •

The most that can be claimed is that the Aequidneek National Bank in acquiring this water works stock acted irregularly, and that its actiou might be questioned by the Federal .Government. The transaction, however,.as between the interested parties has been fully executed. The water works company which now seeks to take advantage of such irregularity, being an entire stranger to the contract claimed to be illegal, can not with propriety be heard to complain as being injured thereby. To hold otherwise would in effect permit a confiscation of the bank’s property and not subserve any beneficial or justifiable end.

Judgment of the court of coimhon plea’s reversed and that of the probate court affirmed.


text:
    DEGREE OF RESPONSIBILITY AS BETWEEN A PASSENGER. AND THE DRIVER OF AN AUTOMOBILE IN COLLISION.
    Court of Appeals for Lucas County.
    George E. Mayers v. The Toledo Railways & Light Company.
    Decided, January 18, 1915.

      Collision Between Automobile and Street Car — Passenger in Automobile Injured — Driver's Negligence Imputable to the Passenger — Charge of Court.

    In an action against a street railway company by one injured in a collision between a car and an automobile in which, plaintiff was riding as a guest, it is error to intimate in the charge to the jury that if the automobile was recklessly handled the plaintiff was at fault in not controlling its operation, or that it was as much the plaintiff’s duty as it was the driver’s to exercise such care as reasonably prudent men would exercise under similar circumstances, or to exercise particular care in approaching a crossing to ascertain whether a ear was approaching, or to say that if the accident was proximately caused by the negligence of the driver the plaintiff can not recover.

      Eohn, Northup, Bitter & McMahon and Charles II. Masters, for plaintiff in error.

      Tracy, Chapman & Welles, contra.
    Kinkade, J.; Chittenden, J., concurs; Richards, J., not sitting.
    Error to the court of common pleas.
    Mayers brought an' action in the court of common pleas to recover damages sustained by him through the alleged negligent conduct of the defendant companjL A collision occurred between an automobile belonging to and driven by Henry E. Reik, in which Mayers was riding as a passenger, and a street car owned and operated by the railway company, at the intersection of Door street and the City Boulevard. In the collision Mayers received the injuries for which he claims damages in this action. The jury returned a verdict in behalf of the defendant. Numerous errors are assigned as justifying a reversal of the judgment which was rendered on this verdict.
   Among others, our attention is called to the giving by the court before argument, of certain requests presented by counsel for the defendant company. Of the requests to which our attention is called, we find that numbers two, four and six, which were given in behalf of the defendant, are open to criticism and should have been modified or omitted, but that the giving of these requests does not constitute prejudicial error justifying a reversal.

We find that requests seven, eight and thirteen, given in behalf of the defendant, which are as follows:

"7. If you find that the plaintiff was himself negligent in riding in the automobile driven by Reik, and permitting same to be operated, as you may find same was operated by Reik, and in remaining in same after observing Reik’s manner of operation, and if you find that such negligence on the part of plaintiff proximately contributed to his injuries, your verdict must be for the defendant.
"8. You are instructed that plaintiff could not ride in the automobile operated by Reik and sit in the front seat beside Reik and close his eyes and ears to all possible dangers and rely entirely upon Reik for plaintiff’s safety, but that on the contrary it was plaintiff’s duty, as much as it was Reik’s, to exercise such care as reasonably prudent men would exercise in such circumstances to observe and avoid such pending dangers as could be observed and avoided by the use of the senses of sight and hearing, and if you find that plaintiff failed to exercise such degree of care, and that such failure on his part proximately contributed to his injuries, your verdict must be for the defendant.
"13. The fact, if you find it to be a fact, that the view of the plaintiff and the other occupant of the automobile up the street car tracks to the west was obscured wholly or partially as the automobile approached the tracks, would not relieve the plaintiff from the duty of exercising his senses of sight and hearing, to ascertain whether or not a ear was approaching, but would, on the contrary, require him to exercise greater care in that respect, before proceeding to cross the car tracks,”

are not correct statements of the law applicable to this ease. We think number seven states the law too severely against the plaintiff, in that it carries a strong intimation that he was permitting the automobile to be operated in an improper manner when he might -have controlled its operation, and that he remained in the automobile when thus improperly operated, after being afforded opportunity to leave the car. We see nothing in the eiddence, manifest in the record in this case, to justify this request in the form given. It will be noted that in request number eight the plaintiff’s duty as a passenger in the machine is stated to be practically the same as that of Reik, who was the owner and driver of the automobile, and to this extent we think this charge was erroneous and prejudicial. Request number thirteen placed upon plaintiff as a passenger in the automobile, the duty of exercising as high a degree of care with respect to his safety as rested upon the driver of the automobile, and in this respect we think the request was erroneous and prejudicial.

An exception was saved to the general charge and it appears upon examination of the charge that the same is consistent with the statements in requests seven, eight, and thirteen above, quoted, and we think the charge goes much farther than did these requests. On page 108 we find this language:

‘ ‘ If the afccident was proximately caused by the negligence of the Avitnéss Reik, who drove the automobile, the plaintiff can not recover. If the negligence of Reik and the street car company concurred and acted together as you find from the evidence, then the negligence of the witness, Reik, would not be imputed to the plaintiff as contributory negligence of his own, but as you have alfeády been instructed, .the plaintiff was not exonerated from any duty at all by reason of the fact' that, he himself, was not driving the machiné.”

It is plainly manifest from the portions of the charge quoted and particularly when taken in connection with requests seven, eight' and thirteen, given in behalf of the defendant, that the court intended to convey to the jury the impression that the passenger.was charged with exercising as high a degree of care for the safety of the situation as was the owner and driver of the vehicle. It is true that the court did say to the jury that the plaintiff was required to exercise ordinary car.e for his own safety, but we think the language quoted very misleading in'tbis respect; while required to exercise ordinary care for his own safety, it is not correct to say that the measure of that ordinary care is the same care that was required of the driver and owner of the machine. The plaintiff was neither the driver nor the owner. ' He was a passenger, a guest of the driver, and the care that he was required to exercise was only such care as men of ordinary.care and prudence are accustomed to exercise under the same or similar circumstances; that is to say, when .they are riding as passengers or guests of another under like circumstances. It.is a fact known to everybody that persons who are simply passengers' or guests in a conveyance are often' engaged in conversation on a journey and are not giving much heed to the immediate surrounding. They are conducting themselves just as people of ordinary care and prudence are accustomed to conduct themselves under such circumstances, and it is not the law that every passenger or guest in a conveyance is charged with the duty of supervising the action of the driver and warning him of dangers that he may possibly encounter at street crossings,.etc. Tu other words, they are not charged with the duty of exercising all of the care that it is necessary to exercise to properly operate the car, and if they attempted to meddle with the business of the driver to this extent, it might well be said that their conduct would in no sense be conductive to' safety. If the passenger has no reason to believe that the driver is incqmpetent or reckless, about the best thing that the passenger can do for his own safety and that of his associates is to permit the driver of the vehicle to manage it without any intermeddling on the part of passengers. It is true that in 'the charge of the court it was stated that the negligence of the driver could not be imputed to the passenger as contributory negligence on the part of the passenger. While this is a correct statement of the law, it is not a sufficient statement of the law when it immediately follows the statement, “If the accident was proximately caused by the negligence of the witness, Reik, who drove the automobile, the plaintiff cam not recover.” It has been stated by the Supreme Court, that when a charge is contradictory in itself it is impossible for a reviewing court to say which statement in the charge the jury followed — whether the correct or the incorrect statement of the law. It is contended on behalf of the defendant in error that the railway company was entitled to a directed verdict in its favor at the conclusion of the evidence in this ease, and that consequently, any errors that may be found in that record are of no moment and should be disregarded because the verdict of the jury and the judgment thereon are in accord with substantial justice. The evidence is very much in conflict on the essentials of this ease and, after examining it, we are unable to say that the state of the evidence was such that the defendant below was entitled to a directed verdict in its favor. The evidence being in conflict, as to the main issues, we think it of the highest importance that the rules of law governing should be correctly stated. In view of the fact that the case must be remanded for a new trial, we purposely avoid any comment on the evidence.

We find no other error in the record prejudicial to the plaintiff in error justifying a reversal, but for the errors mentioned, to-wit, the giving of defendant’s requests seven, eight and thirteen, and the portions of the charge to which attention has been called, the judgment must be reversed and the cause remanded for á new trial.