author: Wilson, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Shearer, Summers and Wilson, JJ. (Sitting in First Circuit.)
    DAVID J. HAUSS v. GEORGE KOEHLER.

      Verdict dual in form, for plaintiff and for defendant on counterclaim admissible—
    A verdict for both the plaintiff and' the defendant is not inconsistent, if dual in form, and the separate findings are on the causes of action severally pleaded by them respectively.
   Wilson, J.

The petition in this case states a cause of action against the defendant upon two counts, one upon contract, and the other upon a quantum meruit, for the same services.

The answer is a general denial, and a counter-claim for injuries to property by the attempt to perform the services to recover for which the plaintiff sues. The case was tried to a jury and resulted in a verdict dual in form, being a finding for the plaintiff on the cause of action stated in the petition in the sum of $53.00, and a finding for the defendant ■on the cause of action stated in the answer and cross-petition in the sum of $55.00.

Kelley & Hauck, for Plaintiff in Error.

Stephens & Lincoln, for Defendant in Error.

No exception was taken to the form of the verdict. A motion for new trial was filed by the plaintiff and overruled5 and thereupon the court subtracted the findings and entered judgment for the defendant in the sum of $2.00, to all of which the plaintiff excepted and prosecutes error to reverse the judgment.

It is argued that the court had no right to make the subtraction between the verdicts in order to arrive at the amount of the judgment, and that the two verdicts were inconsistent. The case of Baugham v. Baugham, 114 Indiana, 73, is relied upon as authority for this contention. In that case the verdict for the plaintiff was: “We the jury find for the plaintiff, and assess his damages in the sum of eight hundred dollars”, and then followed a verdict for the defendant on his counter-claim. Of course,these verdicts were inconsistent; The finding for the plaintiff generally without confining it to the cause of action stated in the petition, precluded any finding for the defendant. But in the case at bar the finding for the plaintiff is expressly confined to his cause of action; and so with the finding for the defendant'. They are not, therefore, inconsistent. The conclusion of the jury upon all the issues joined is perfectly apparent, and a mere irregularity in the form of the verdict is not prejudicial. That, no doubt, would have been corrected had the attention of the court been called to it before the jury had been discharged.

Under the circumstances the court was authorized to make the subtraction and enter judgment for the difference, for ■f he reason that the verdicts were not inconsistent. Brainard et al. v. Lane, 26 Ohio St., 632.

We find no error in the record. The judgment will be ■affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith, Cox and Gifflen, JJ
    W. C. BILES & COMPANY v. THE CHARLES S. LOOKER CO.

      Stockholder's statutory liability — Debts of corporation after contract for transfer of stock but before entry of transfer—

    The statutory liability of a stockholder may be enforced as to debts of the company contracted subsequent to the making of a written contract by the stockholder for the sale of his stock but prior to the actual transfer of the stock on the boobs of the company.

      L. G. Black, for Biles & Co. C. W. Baker, contra.
    Appeal from the Court of Common Pleas of Hamilton co.
   Smith, J.

On the evidence submitted in this case, we are of the opinion that Mrs.Lucille H.Turner should,as a stockholder in the Charles S. Looker Company, be assessed on the ten and one-half shares which were held by her in such corporation, notwithstanding the fact that prior to the incurring of the debts by said insolvent corporation, to pay which it is sought in this proceeding to assess the stockholders, she had by a contract in writing sold, or contracted to sell, a part of her shares to her husband. No record or mention of this attempted sale appeared on any book of this company-until after the debts in question had been incurred by said company. Then for the first time a stock book was procured by the company (October 31, 1892), and a certificate for the original ten shares subscribed by her was issued to her, and on November 4, 1892, she appears to have assigned nine of those shares to her husband, and on November 30, 1892; the original certificate was canceled, a^d a new certificate for nine of the shares issued to her husband as her assignee and a certificate for the other share was issued to herself.

Under the law as announced by the supreme court in 46 Ohio St., 379, and in 58 Ohio St., 294, we think that Mrs. Turner after the written assignment by her on April 1, 1892, of the nine shares of stock to her husband, remained liable as the owner thereof to an assessment under the statute for debts contracted prior to the entry of the transfer of the shares on the books of the company. If she desired to relieve herself from an assessment for the payment of debts thereafter incurred by the company, it was her duty to see that such transfer appeared on the .books of the company, The assessment now sought to be made, being for the payment of the debts of the company incurred prior to the entering of the transfer on the books of the company, there must be a decree against her accordingly.


author: Hale, J.

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Hale, Marvin and Caldwell, JJ.
    SIMPSON L. FORD, Receiver, etc., v. ISAAC P. LAMSON et al. L. PHILILLI v. THE AMMON-STEVENS CO.

      Conversion of insolvent partnership into a corporation — Assets of .corporation given for stock subscriptions, not payment—
    (1). 'Where the members of an insolvent partnership convert their business into a corporation, turning over to the corporation all the assets of the partnership in payment for their stock subscriptions, but the corporation also assuming all the liabilities of the partnership. Held, that nothing whatever should be counted as a payment of the stocK subscriptions, and the subscribers to such stock remain liable to the creditors of the corporation for their subscriptions to the stock.

      Corporation insolvent in fact, but going concern — Bight to pay creditors by way of preference—
    (2). Where a corporation which is actually insolvent, but still carrying on its business, transfers practically the whole of its assets to one of its creditors, who is not aware of the condition of the corporation and there being no collusion, such transfer will be upheld.

      Cognovit note to creditor by corporation insolvent in fact, but going concern—
    (3). A creditor of a corporation which is still carrying on its business, although insolvent in fact, of which such creditor is not aware, may take a cognovit note from such corporation, and take judgment thereon, and his levy of an execution upon such judgment, on the assets of the corporation will be upheld.

      Insolvent corporation can not pay claims of directors by way of preference—

      i). An insolvent corporation with no expectation of being able to continue its business, can not rightfully secure or pay debts owing to its directors.

      Insolvent corporation — Attachment by creditor—
    (5). An attachment and levy by a creditor on the assets of a corporation carrying on its business although in fact insolvent, will give a valid lien on the assets levied upon.
   Hale, J.

These cases are here on appeal, They have been tiled together, involving substantially the same transaction. I will endeavor to indicate sufficiently to enable counsel to-draw the decree.

The controversy arises between the unsecured creditors of the Ammon-Stevens Company, an insolvent corporation, and certain creditors who are claiming preference.

On the first of January, 1893, the Ammon-Stevens Company was incorporated with a capital stock of $40,000 to prosecute a wholesale millinery business in the city of Cleveland. Of this stock F. G. Ammon subscribed $20,000; A. J. Stevens $10,000; J. P. Lamson $9,800; N. S. Calhoun $100, and Mr. Jennings $100, the latter two being .given one share each in order to qualify as directors of the ■company.

The first issue made arises out of the claim made by creditors averring that the several subscriptions to the capital ■stock have not bean paid; that the same are still due and .should now be paid to the receiver to be distributed to the ■creditors of the corporation pro rata.

Prior to the organization of this corporation the first 'three subscribers had been prosecuting the business under a partnership agreement from the first of January, 1890, to the first of December, 1892, when, by its terms, the partnership agreement expired,

The subscription to the stock was attempted to be paid by the transfer of all the partnership assets to the corporation, the corporation assuming all the liabilities of the partnership, and the claim is that the partnership was insolvent at that time, and, in the transfer made, actually transferred nothing to the corporation;

. And we find and hold that the partnership at the time of this transfer was insolvent, even after the cancellation of 'an indebtedness of $26,000, due from the partnership to Mr, Lamson.

Soon after the formation of the partnership, $10,000 of the accounts was pharged off, and although the corporation did business for a period of nearly eighteen months, at the end of that time $33,000 of the accounts, transferred to make up the $40,000 of the assets that was claimed to exist and were transferred to the corporation in payment of the stock, were yet uncollected, and nothing has ever been realized from them. The partnership had been doing business for three years, and necessarily there must have been a considerable depreciation of the -tangible property then on hand by the partnership.

And we hold that nothing whatever that should be counted as a payment of the stock subscriptions, was transferred ,by the partnership to the corporation.

Some time in January or in February, 1894, Mr. Lamson sold to Mr. Ammon,who was at that time insolvent, $5,000 of his stock' — sold it as paid-up stock, and we do not think as against creditors that that sho.uld release him of his liability to pay his subscription; so that the. subscribers to, that stock are still liable to pay, for the benefit of the creditors, to the receiver, the subscriptions made to the stock.

The corporation continued to prosecute its business for which it was incorporated until the second of June, 1894, at which date its liabilities exceeded the value of its assets by more than $50,000,and at least $100,000 more than can be realized from the assets in the manner in which the concern is being closed out,

The acts of the board of directors on that date prior and subsequent thereto are made the basis of several actions by the plaintiffs and cross-petitioners.

The evidence establishes the following facts:

The business of the corporation was carried on at a loss from the start, of which the directors had knowledge; that-very large purchases were made for the spring trade of 1894; that prior to April 14, 1894, the business had been conducted under the chief management of Mr. Ammon. At that last named date the board of directors resolved that checks should be issued for the payment of bills owing by the corporation, only on the approval of Mr. Calhoun, one of the directors, after which a large proportion of the receipts were paid on claims upon which Mr. Lamson was surety or in some way responsible, On this date the corporation was indebted to The Bristol National Bank of Connecticut and the Hartford Bank, in the aggregate $31,000, upon which Mr. Lamson was surety.

The corporation was also indebted to the Union National Bank of this city in the sum of $32,000, for which Mr. Lamson was surety, and to Caskey & Calhoun in the sum of $13,000 upon which Mr. Lamson was not an indorser. On the second of June, 1894, the corporation, by its trustees, resolved to transfer accounts of the face value of $55,000 to Mr. Lamson for the sum of $45,000 for the express purpose of paying the Union National Bank and Caskey & Calhoun. Mr. Lamson had just returned from Connecticut where he had arranged with Mr. Sessions, his brother-in-law, to take up the claims of the Connecticut Banks and advance $1,000 for the corporation, for which he was to receive a cognovit note of the corporation due on demand. Whether the latter part of that agreement was definitely arranged between Sessions and Lamson does not definitely appear, but ultimately it took that form-. The debts to the Connecticut Banks were not due at the time payment was made to the banks. The note with power of attorney to confess judgment was authorized by the directors at this meeting, was executed, and forwarded to Mr. Sessions, The arrangements authorized by this resolution were carried out; the accounts were transferred to Lamson, $45,000 paid by him; $32,000 was paid to the Union National Bank, and $13,000 to Caskey & Calhoun, and these debts were cancelled.

The cognovit note was sent to Mr. Sessions who paid the two banks in Connecticut; he also sent to the corporation, the Ammon-Stevens Company, $1,000; this note was not endorsed by Mr. Lamson; it was made on the second of June, immediately forwarded to Mr. Sessions, received by him on the fourth of June, andón the same day sent to Mr. Bourne, cashier of the Union-National Bank of this city, for collection.

In this way Mr. Lamson was relieved from his endorsement or liability on $63,000 of the company’s paper, and substantially all the good accounts withdrawn from the assets of the corporation and from the reach of unsecured creditors. On the thirteenth of June, judgment was entered upon this note in the court of common pleas of Lake county, with the knowledge of at least one of the directors of the corporation; execution was issued upon that judgment, and' on the fourteenth day of June, levy was made upon all tangible property of the corporation, which ended any further prosecution of the business by the corporation.

' About the time the accounts were transferred to Lamson, the company, by its directors — -not we think, in the usual course of business, sold merchandise to O. D. Myers and Taylor Sons & Company, of this city, aggregating about $7,000, which was likewise used to pay debts secured by Mr. Lamson.

It is not disputed that at the time of the transaction above indicated, the liabilities of the company exceeded largely the value of the assets; that the corporation was, in fact, insolvent.

It seems equally olear to us that the directors, at the time these acts were done, knew or should have known that the corporation was grossly insolvent..

We are of the opinion also that the action taken by the directors of this insolvent corporation practically incapacitated it from further prosecution o,f its business with any reasonable prospect of success, and this, too, we think the directors ought to have known. We do not think or believe that the directors, who testified that they hoped to bring the company out of its trouble and yet make it a success, had any such expectation; but we can only say that there was no reasonable basis for such hope. The corporation had been kept afloat by the aid of Mr. Lamson in making advances to the company and in endorsing its paper, When this support was withdrawn, there was no alternative but failure. The adoption of the resolution of June 2nd, and the carrying out of the transactions therein provided for, put the affairs of the corporation in such condition, that there was practically no alternative but failure.

By these essential facts of the case the rights of the parties are to be determined. First, it is claimed by the receiver, that the money paid to the Union National Bank should be refunded to him, that it may be distributed to the general creditors of the corporation pro rata,

Upon this claim we hold with the bank.

The evidence shows no collusion between the bank and directors of the corporation. It is not shown that the bank had knowledge of the situation. The company, at the time this payment was made to the bank, was in the actual possession of its property and engaged, in a way, in the prosecution of its business; nor do we think the affairs of the corporation had reached a condition when the doctrine of the Rouse v. Bank case, 46 Ohio St., applies.

Again, it is sought to have declared void the levy of the execution issued on the Sessions’ judgment. The evidence in the case does not authorise the finding that Mr. Sessions knew of the condition of the corporation, or colluded with or aided the directors in defrauding the general creditors of the corporation, or in carrying out a purpose by the directors to prefer themselves.

If we are right in our holding as to the bank, Mr. Sessions can not be deprived of his advantage by the doctrine of. the Rouse case.

Sessions actually advanced to and for the corporation at the time he received the note, the full sum for which he took the company’s note. The transaction was not illegal, and he held his note by good title. While the company was in possession of its property, and apparently, so far as known to outsiders, was engaged in the prosecution of its business, we are of the opinion that a creditor might lawfully enforce his claim against the company by any remedy provided by law. We, therefore, decide this . issue in favor of Mr. Sessions, not without some doubts and misgivings. Much might be said against this holding' — the fact that the claim was not due; that Mr. Sessions was a brother-in-law of Mr. Lamson, and other circumstances connected with it' tend quite strongly to show that there might have been some collusion between Lamson and Sessions to bring about the result that was accomplished, but we hold as I have stated.

Again, what are the rights and liabilities of Mr. Lam-son ?

We have found that the corporation at the time of the transfer of the accounts to him — to Mr. Lamson — was insolvent, of which fact he (Lamson) had knowledge; that the board of directors could have had no reasonable expectation of continuing for any considerable time the business of the corporation; that after the acts of June 2nd, and those immediately following, the only alternative was failure which was then eminent.

We must find also under the evidence, that one of the objects of the board was to relieve Mr. Lamson from his liability, and, if we are to hold the board to have intended the natural legitimate results of the acts done, that it was the-intention of the directors to prefer him and relieve him from his liability as surety.

The authorities are not entirely uniform upon the subject of preference by an insolvent corporation of its directors.

In Connecticut and two or three other states, the courts have sustained preference to directors under circumstances similar to those found in this case; but the decided weight of the authority is against the proposition. As indicating the general tendency of the authorities,! read a sentence or two from the case of Alney v. The Connecticut Land Company, 16 R. I., 597.

“The directors of an insolvent corporation are by virtue of their position, debarred from preferring debts of the corporation due to themselves. The directors of a corporation are trustees for its stockholders. When the corporation becomes insolvent, the' directors become trustees for the corporation creditors.’’

In the discussion of the case the reasons are briefly given for this holding.

“The vital question is, whether a director of an insolvent corporation is to be regarded as a trustee for its creditor. If he is so, the duty of a trustee to a cestui que trust is plain. For a trustee to collect his own debts, to the detriment of that of his cestui, is a clear breach of fidelity. When, one accepts the trust of caring for . another’s interest, he accepts the attendant duty. It must be admitted that directors of a corporation are not technical trustees. They do not have in themselves the title to property which they hold for the benefit of others; and certainly, as to creditors, they are under no express trust. The corporation is a legal being, distinct from its officers and stockholders. It may deal with them as individuals and may owe them debts. It holds its own property, and has the capacity and responsibility of acting for itself. Nevertheless, the conduct of its affairs must, of necessity, be entrusted to officers in whom confidence is reposed, to whom large powers are given, and by whom its property is managed for the common benefit.

“As corporations have multiplied and have become so greatly concerned in business affairs in recent years, the obligations arising from such a relation have become correspondingly prominent.
“While the decisions in regard to this relation are not harmonious, it has been generally agreed that directors are trustees for stockholders. This being established, we think it follows naturally that, when the corporation becomes insolvent and the stockholders have no longer a substantial interest in the property of the corporation, directors should be regarded as trustees of the creditors to"whom the property of the corporation must go.”

Denying a preference that was made to the trustees.

Now, in this state, of course, the trust doctrine is carried to its furthest extent, and goes quite as far as it is carried in any other state.

' We hold, then, that an insolvent corporation with no expectation of continuing its business, can not rightfully secure or pay debts to its directors,nor debts upon which such directors are collaterally liable, and thus relieve such director from his collateral liability. These accounts were not sold to Mr, Lamson, in the usual course of business. He took the accounts under the stipulation that the money paid by him should be applied in payment, or a large proportion of it, upon debts upon which he was collaterally liable. He was under obligation before this transaction, to pay the debts which were actually paid, and the transaction is not different from what it would have been, had he paid the debts and withdrawn from the corporation assets, accounts sufficient to indemnify himself for the payment thus made. In this state at least, directors occupy a position of trust towards the creditors of an insolvent corporation, and can not, under the circumstances of this case, violate that trust by transferring the assets of the corporation to themselves, either in payments of debts due to themselves, or to relieve themselves from collateral liability. The relation which directors bear to the corporation as trustees of its assets, is such that they can not rightfully prefer debts due to themselves from the corporation, or prefer debts in the payment of which they have a personal interest. The rule forbids, not only preference by directors of their own debts, but also of all debts in which they are interested and from which they could reap a personal advantage by the preference. It follows, then, that the accounts were wrongfully transferred to Mr. Lamson, and that he must account to the receiver for the proceeds realized by them, and that the money now held by the bank should be paid over to the receiver to be distributed pro rata among the creditors.

As to Caskey & Calhoun, the logic of what we have said would require either that they refund the $13,000 received, or require Mr. Lamson to account for the entire accounts transferred to him, And, as we hold, the withdrawal of these accounts from the assets of the corporation was wrongfully done, with the knowledge of Mr. Lamson and Mr. Calhoun. Those accounts — those assets may be, accounted for entirely by Mr. Lamson,and the controversy between him and Caskey & Calhoun settled between them. If the general creditors — the unsecured creditors, get advantage of all the assets which the corporation had, they get all they are entitled to, and they get that by having the benefit of all those accounts.

Now, disconnected with this transaction is the claim of Menke against this corporation. He commenced an attachment proceeding, and levied upon the book accounts of the corporation. The levy of this attachment was made on the 13th of June. On the 14th a receiver was appointed of this corporation, Mr. Ford, in the second case that I named. The question here arises between this attaching creditor and the general creditors. He claims a preference by virtue of his attachment, and it is insisted by the receiver that he gets no such preference.

The majority of-the Court hold that by the levy of the attachment on the 13th on the book adounts, the attaching creditor obtained a lien; that the provisions of the statute relating to the appointment of a receiver to collect those accounts and apply them to the debt of the attaching creditor, are provisions of the statute enacted for the purpose of enabling the attaching creditor to realize the benefits of the attachment; and, inasmuch as a receiver was appointed on the day following the levy of this attachment, who was ordered to take possession of all the books, accounts and property of the insolvent corporation, that it would have been a useless thing to appoint a receiver at the instance of the attaching creditor to work out his rights under a levy; that all of that could properly be done under the receiver who was appointed for the benefit of the general creditors.

One of my associates, Judge Caldwell, is very sure that we are wrong in this proposition, and very likely we are, but that is what we hold.

Mr. Caskey: You have not passed upon the major point — • upon the value of the property levied on the cognovit note, and the liability. You said Sessions was not chargeable, but you did not say anything as to Lamson.

Judge Hale: There, again, a majority of the court do not think that Mr. Lamson ought to beheld upon that levy; in other words, we allow Mr. Sessions the benefit of his, levy,and do not require Mr. Lamscn to make good to his creditors the amount of property withdrawn by that levy.

Gilbert & Hills, for Plaintiffs.

Caskey & Calhoun, A. A, Stearns, for Defendants.

Judge Marvin: I can not understand how Mr. Lamsom is to be excused from liability therein


author: BeNtley, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Nov. Term, 1894.)
    Before Bentley, Haynes and Scribner, JJ.
    EDWARD F. and ELIZABETH MEEKER v. OTIS and C. A. BROWNING.

      Evidence — Rules as to testimony in rebuttal—
    (1.) The same rules apply to testimony in rebuttal as to testimony in chief.

      Exception to court's ruling out testimony — How exception to be-saved—
    (2.) Where it is attempted to prove custom, and on objection the testimony is ruled out, to save the exception the party offering such testimony should state to the court what it is proposed and expected to prove by the witness.

      Gas and oil lease — Location money—
    (8.) Agreement set out construed as amounting to a release of location money.

      Error in charge — Exception—
    (4.) Where the charge of the court on a certain point is assigned as error, to bring the question before the reviewing court, the court should be requested to charge upon that point, and if considered erroneous, to formulate a charge such as the party excepting considers to be correct.
   BeNtley, J.

This is a petition in error brought by Edward F. Meeker and Elizabeth Meeker, who were plaintiffs below, to reverse a judgment of the court of common pleas in an action brought by them. The amount of the verdict below was $45.51 in favor of the plaintiffs, but that was very much less than what was claimed by them in their petition, and so they seek to reverse the judgment in order that a new trial may be had of the case. Several errors are assigned; some cf them in the admission of testimony; some as to the construction placed by the court upon certain written instruments which were offered in evidence, and objections and exceptions also taken to ■ the charge of the oourt, and exception to its failure to charge certain propositions. The action arises up•on a transaction had upon what is ordinarily called an “oil and gas lease”, which was granted by the plaintiff to all the ■defendants on the 21st day of April, 1890, by the terms of which the defendants Browning were tc drill' certain wells for oil or gas upon the premises of the plaintiffs, and in case •oil was obtained they were to give to the plaintiffs one-sixth -of all the oil or mineral produced and saved from said premises and to deliver the same in tanks or pipe lines to the order of the parties of the first part, viz.: the plaintiffs. The lease provides for the sinking of three wells within certain •times named in the lease,and contains this stipulation: “And to pay $100.00 each for the second and third well after commencing the same.” On the margin is the following “Should -any additional well be drilled on said premises other than here stated, said second party agrees tc pay $100.00 for each .additional location.” The party of the second part, the defendants in this case, drilled five wells upon these premises. .For the first, nc location money was provided; but it is claimed by the plaintiffs that for each of the other foar, -$100 location money was due and is due tc them, and has never been paid. The plaintiffs also claim that in the operations carried on by the defendants under this contract, they took and converted to their own use a large quantity of ■crude oil which belonged tc plaintiffs and which the defendants used for fuel purposes in their operations under the lease, as the plaintiffs claim to the amount and value of $400.00,and their action was for $400.00 location money and interest on these various sums from the time the wells were commenced,and also in a special action sounding in tort for $400.00 for the conversion of this oil.

The answer denies, in substance, that this location money was due or payable,and sets up that on the thirteenth of Feb-rury, 1891, there was a written contract entered inte between the parties by which this location money was all released. They deny the allegation regarding the conversion of the oil also, and claim ether defenses in this respect. They say they did use a small quantity of crude oil for fuel, not exceeding 800 barrels in all, but they say that plaintiffs expressly granted to them the use of it and agreed that no charge should be made for it; then they further set up a usage and oustom hy which those operating for oil are allowed sufficient gas and oil from the lease for fuel purposes while operating under the lease, and that without charge. They further set up that they had a -special agreement to pay plaintiffs for fuel oil used in operating wells on other leases, but that they settled with them for that and paid them $15.00, and that was received in full settlement and satisfaction for any oil used by defendants.

The defendants then set up this further matter, viz: “That at a certain time, when some of these wells were producing gas, the plaintiffs surreptitiously connected their house and premises with defendant’s pipe line, through which defendants had been receiving gas in sufficient quantities to supply fuel for operating said lease from a gas and oil well on said premises, which gas the defendants had a right to use for their own purposes for fuel, and deflected from the pipes of the defendants so much gas which otherwise would have been furnished them for fuel that it became necessary for them to provide other fuel; and they claim they were damaged for that reason in the sum of $2000.00, for which they ask judgment. In the reply to that answer plaintiffs say, that by agreement of February 13, 1893, it is provided that if defendants should drill the third well provided for in said lease, and three additional wells within one year from the time fixed for the completion of said third well,that said defendants should not be required to pay said location money. But plaintiffs say that said defendants did not drill said wells as required by said agreement of February 13, 1893. And plaintiffs deny each and every allegation of new matter in the answer contained that is not herein expressly admitted.

On those issues the case proceeded to trial before a jury, evidence being given by both parties.

In the course of the trial an exception was taken on page 70 of the record which has been called to our attention; an exception to the ruling of the court as to the admission of certain evidence offered by the plaintiffs in rebuttal. The plaintiffs in rebuttal called one Daniel Mercer, and the question was put to him: “You live in Bowling Green?” A. “Yes, sir.”

Q. “Are you acquainted with the custom in this county where a lease is operated, as to whether oil used for pumping purposes etc., — do you know what the custom is as to whether the fuel oil is paid for by the operators?” A. “I don’t know all the custom, I know a part of it.”

Q. Do you know what the custom is in this field among operators?’ A. I know what the custom is with those who work with us. ”

Q. What is that custom?’ Defendants objected to question; objection sustained and exception taken. Thereupon the plaintiffs rested their case. Now, whatever might be said as to the propriety of that question, considering the record as it was made prior to that time, it will be seen that the plaintiffs did not take the requisite steps to preserve the error which is there claimed. While this is in rebuttal, the same rules apply as in testimony in chief. There should ■have been a statement of what the parties expeoted and desired to prove by the witness, and in the absence of anything of that kind, the rule is that the court will not regard it as prejudicial what that custom offered to be shown was or was not. Of course, it may naturally be supposed that the plaintiffs would seek to rebut certain evidence that had been given by the defendants, but we think the rule as we have stated applies notwithstanding that the defendants had offered testimony as to such a custom as they claim.

After the close of the testimony, this action was taken by the court as appears by the record: “Now, the view that the court takes of this case, the only question that is to be submitted to you, is the value of certain oil that it is said waH used in drilling the wells. Under the evidence the plaintiffs will be entitled to recover for the fuel oil used by defendants in drilling these wells, so many as you find were drilled, and entitled to recover whatever you find is the fair value of the fuel oil, and it is for the plaintiffs to satisfy you by a fair preponderance of the evidence as tc how many wells were drilled, and as to how much oil has not been paid for, and the value of the oil”

At the close of the charge, this exception was noted:

“To said charge of the court, and -especially to the failure of the oourt to submit to the jury the question whether the plaintiffs were entitled to recover for the oil used for fuel in pumping oil; and failing to charge that plaintiffs were entitled to recovery for such fuel oil”

It is manifest from the record that the principal amount which the plaintiffs in this action would hope to recover, was for this location money. It is much the larger amount, and this action of the court in construing this subsequent paper of February 13, 1891, presents perhaps the most important question which has been argued before us.

I will read the alleged release of the location money:

“Mungen, Ohio, Feb. 13, 1891.
“Agreement between Elizabeth Meeker,Edward F. Meeker and 0. A. Browning and C. A. Browning. In consideration that Elizabeth Meeker and Edward F. Meeker have and do relinquish all location money stipulated in a certain lease made between the parties hereto on April 21, 1890. We, 0. A. Browning and C. A. Browning, agree to drill three additional wells within one year from the completion of the third well mentioned in said lease.
(Signed in duplicate,) “Elizabeth MebKER,
“Edward F. MeeKee,
“C. A. Browning.”

The court construed that as an absolute release of this location money. The plaintiffs here claim that in order to construe as a release the action here provided for to be taken on the part of the Brownings it must in fact have been taken, and that those three additional wells must have been drilled and drilled within the time provided for in this paper; that otherwise, it was in effect a mere offer to release, and never took effect as a release until such work was in fact done and the wells drilled. But we think it is clear and manifest that that was not the proper view to be taken cf his paper. The reply sets up that the paper was an agreement to release in case these additional wells were in fact drilled, but the paper provides that now, at the time of the execution and delivery of this paper, the plaintiffs have agreed and do relinquish all location money stipulated, and the Brownings agree to drill three additional wells within one year.

It would seem that an absolute release was made by the plaintiffs upon the agreement of these parties to drill these additional wells. This was a new contract, founded upon a sufficient consideration, and if it was not complied with or released in any way, any action of the injured party must be had upon this contract; and the construction placed upon that by the court we think is manifestly just and proper.

The other aspects of the case present a little more difficult question. It will be seen that the court allowed the jury to pass upon the evidence relating to the use of fuel oil for drilling these wells, and did not submit to tho jury the question as to fuel oil used in the pumping of the wells and steaming of the oil after it was produced.

It is said that the court construed the clause in the original lease providing for the delivery of one-sixth of the oil produced and saved, as excluding the idea of delivering any such oil except such as was,in fact, finally run into the pipe lines, or which ought to have been run into the tanks or pipe lines in the ordinary way of operating for oil. We think the construction given by the court in that particular is at least of doubtful propriety, but the parties, when the court took the position that it did, did not request any charge to be given in this respect; did not formulate any request cf their own, and did not in any way ask the court to charge .upon that subject; and besides that, in looking ever the proof, we find an unequivocal statement on the part of one of the witnesses as to the amount of oil which was used in all, which he says did not in any event exceed three hundred barrels.

Parker & Moore, for Plaintiff.

Baldwin & Harrington, for Defendant.

This inoludes not only all the oil that was used in drilling, but the oil that may have been used for other purposes. The testimony on the part of the plaintiffs as to how much oil was used for steaming or pumping -the oil is exceedingly vague and indefinite, no one seems tu know exactly how much there was of it. The plaintiffs say more or less of it was used all the time.

But taking the testimony as it was presented, and the verdict of the jury, and it seoms to us that it can hardly he figured from the record that the plaintiffs were prejudiced or injured by this action of the epurt and the verdict of $45.51. The price of oil at various times is given , but how much oil was used during the time oil was sold at fifteen cents per barrel, or how much when it sold for thirty cents, thirty-five cents, or thirty-seven and one-half cents, does not appear, and it seems to us that the plaintiffs can only recover as the court charged the jury: for one-sixth of the gross amount used, and that there has been no substantial injury or prejudice resulting from this action of the court. In view of the whole record upon this subject as to the oil used ■for operating the well and steaming the oil, we do not feel warranted in disturbing the verdict of the jury; and, finally, we think the judgment of the court below against the plaintiffs in error in what we regard as the main matter, should be affirmed.


author: Bentley, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    October Term, 1894.)
    Before Bentley, Haynes and Scribner, JJ.

      C. H. & D. R. R. CO. v. FRANK M. CURTIS.

      Railroad — Injury to oar coupler — Defect in drawbar of oar — Attempt to remedy defeat—
    (1.) In action by an employe of a railroad for damages for an injury, suffered while coupling cars, caused, it is alleged, in consequence of the company knowingly furnishing to him for coupling a defective car, the drawbar of which was seven inches lower than it ought to have been, and that in attempting to couple another car to this one, in the night, he was caught between .portions of the two cars and bis hand was crushed, it appeared that plaintiff in attempting to remedy this defect in the drawbar, placed a block under the strap, for the purpose of holding the drawbar up; but that the block fell out and allowed the drawbar so to act as to catch his hand in the link. ' Held, that the detect in the car coupling must be the proximate cause of the injury to entitle the plaintiff to recover. But the' jury might take into consideration, that the cars were pretty near together when he went in to make the coupling and when he first noticed the condition; that his action was very rapid; that it was in the night, and he thought, that he might block up the drawbar so he could couple the cars. That he attempted to do it and failed, there being but little'time, and all facts and circumstances under which the plaintiff below was acting in that regard, and that the jury was to judge whether under these circumstances the injury was to be attributed to the defect in the car, or to his own attempt to remedy the defect.

      Error for insufficiency of evidence to sustain judgment — Bill of exceptions must state all the evidence—
    (2). Where one of the errors assigned is that the verdict was not sustained by sufficient evidence, and it is recited in the bill of exceptions: “This was all the testimony offered in behalf of the plaintiff, which tended to show the manner in which said injury was received, and the cause for the same,” also: “All other testimony offered in behalf of plaintiff related solely to the character and extent of plaintiff's injury;” such bill of excep- ' tions is not sufficient to authorize a reviewing court to reverse the judgment below on the ground that it is not sustained by the evidence,
    Error to the Court of Common Pleas of Lucas county.
   Bentley, J.

In this case the defendant, Curtis, recovered a judgment in the common pleas, against the plaintiff in error, for the sum of two thousand dollars for injuries alleged to have occurred to him while in the employ cf said railroad company, as a switchman in the yards, having had his hand crushed and losing certain of his fingers. The accident is said to have cocurred in 1886, at four o’clock in the morning, while it was dark and while he was attempting to couple two freight cars. He alleges that the company, defendant below, wa negligent, and by reason of tbe negligence of the company, he received this injury, for that the company furnished tc him for coupling a defective car, a car the drawbar of which was seven inches lower than it ought to have been, and that in attempting to couple another car to this one, in ■ the nighr, he was caught between portions of the two cars and his hand was crushed in the manner stated. He says that this car was known to be defective — to the company — prior to the injury, and that they negligently still furnished it to him for use in coupling.

There are two things that are relied upon as exhibiting error of the court below, two principal things, and one is-, that the court erred in modifying a certain charge that had been requested by the railroad company; and the other, that the evidence did not sustain the verdict, and the court erred in overruling the motion of the railroad company for a new trial, for that reason.

In its charge ro the jury the court gave all of the requests which were preferred by the railroad company. They number nine, although the last two are each numbered “eight”. The exception to the act of the court in this record is: “The-defendant through its counsel here excepted to the court’s modification of defendant’s last request.”

The .last of that series of requests, as presented in the first instance, was this:

“8. That, if the plaintiff was chargeable with the omission of such duty he cannot recover in this action, if such omission of duty contributed to his injury.

The court says in its charge to the jury, after giving all the requests preceding, that: “If the plaintiff was chargeable with the omission of such duty, he oannot recover in this action if such omission of duty contributed to his injury. ” This is the exact language of the request, and the court does not in that place proceed to modify it, so far, at all.' It may, however, be that the exception related to the request preferred by the attorney of the railroad company after the court had delivered its charge for the most part.

The court says: “You may retire and select one of your-members foreman. ”

“Ycur Honor — One thing occurs to me; if Curtis, in attempting to remedy this supposed defect in the drawbar, placed a block under the strap, for the purpose of holding the drawbar up; and, if by reason of the improper manner,, in which that drawbar was placed there, it fell out and al~ lowed the drawbar so tc act as to cafcoh bis hand in the link, that that should be considered the proximate cause of the injury, and the cause, on account of which he would not be entitled to recover from the company.”

It would seem thus far,that that was the verbal statement of the counsel; but it was followed further by this state* ment: ‘‘And the defendant asks your Honor to further charge: ‘That, if the jury should find that the falling of the block from under the strap, or drawbar, was the cause of the injury, that that divests him of his remedy.”

Possibly that may have been presented to the court in writing. It was stated by the plaintiff below, that, finding this drawbar too low, he had attempted to put this block in there, and it fell out in some, way, and the injury happened to him notwithstanding. The court being requested m that 'way to give that to the jury, replied as follows: ‘‘We say to the jury that the injury must have arisen from the defect ‘proven, if any was proven to have existed in the car that Was coming down the track; and it must not arise from 'anything else. The proximate cause of the injury must be 'the defect in the car-coupling.” Then the court proceeded to illustrate, and says, at the close of his illustration, “Is 'that as I understand you?” — speaking apparently to eounsel.

“I don’t think you do. Suppose the drawbar was low, and 'that it would not have been a prudent thing for him to attempt to make the coupling with it in that condition; if he attempted to make it mere safe by putting this block under there, and, in consequence of its not having been put there in a sufficiently proper manner, it fell out, and, because it fell out, he was injured — that that would all be at his risk, and not at the risk of the company.”

Then the court said: “Well, we say to the jury that the injury must have been caused by the defect. If it was not caused by the defect alleged in the petition and attempted to be set out in the evidence — why, the plaintiff has * no cause of action. If it was caused by the peculiar and careless manner in which the plaintiff handled it, and the injury was the result of an accident independent of tfiis defect, then there would be no nogligence imputable to the railroad company for an injury arising from a defect.

Treating this exception as aimed at this action of the court, we are inclined to think that the proper proposition which arises in the case and upon thp testimony, was given by the court, although perhaps not in the language presented to the court by the counsel. We think that “If the jury should find that the falling of the block from under the strap, or drawbar, was the cause of the injury, that that divests him of his remedy, ’ ’ would be a severe statement, standing alone. The proof shows that the cars were pretty near together when he went in to make the coupling and when he-first noticed the condition ; that his action was very rapid — - it was in the night — and he thought, perhaps, incidentally, that he might block up the drawbar so he could couple the-cars. He attempted to do it and failed to do it, there being but little time; we are inclined to think that the iury might have taken into consideration the facts and circumstances under which the plaintiff below was acting in that regard, and that they were to judge after all whether these caused the injury, cr whether it was caused by the defect. In general, we find against the plaintiff in error upon that assignment of error.

The principal question in the case, however, arises upon this other claim: That the verdict was not sustained by sufficient evidence, and it brings that into view for discussion.

At the close of the testimony for the plaintiff below, it is recited in the bill of exceptions: “This was all the testimony cffefed in behalf of the plaintiff, which tended to show the manner in which said injury was received, and the cause for the same.” (Record, p. 25.) Also: “All other testimony offered in behalf of plaintiff related solely to the character and extent cf plaintiff’s injury. ” lb. Thereupon the attorney for the railroad company moved the court to arrest the testimony in the case from the jury and instruct them to return a verdict for the defendant. That motion was overruled and excepted tc; and thereupon, without hearing any testimony at all upon the part of the defendant, there being nmie offered, as is shown by the bill of exceptions, the case proceeded tc the jury upon the testimony offered by the plaintiff. It will be seen by the bill of exceptions that all of the testimony given to the jury is not preserved in the bill of exceptions, but the statement of the judge is, in the bill, that all other testimony offered in behalf of the plaintiff — that is, except that set out in the bill of exceptions — related solely to the character and extent of plaintiff’s injuries. ' So, the question presented to us is — ■ whether,in a case where it thus appears that all of the testimony in the case is not before us, we will still consider the question of the court’s having erred in overruling a mution for a new trial, on the ground that the verdict was not sustained by the evidence, and whether the court erred-in overruling the motion to arrest the testimony from the jury, These two questions are presented,

The only case that was cited to us by defendant in error upon this point was Reid v. Sycks, 27 Ohio St., 285, 287. The-statement of the judge who delivered the opinion in that regard, is not found in the syllabus of the case, but in the first paragraph of the decision, which is this:

“'Johnson, J.: The bill of exceptions does not purport tc contain all the evidence. John P. Reed’s evidence on certain points only is set out, and it is stated that ‘this was •all the evidence on those points.’ ‘And thereupon, after ■other testimony was given on other points not mentioned herein,’ the jury brought in a verdict, etc. In this state of case it is well settled we cannot review the findings upon the evidence.”

We are not inclined to think, however, that this authority necessarily settles the question arising in this case. In this case the bill simply preserves the evidence of certain witnesses on certain points, but it does not appear but that other points material to the case below — the evidence upon other points — was not preserved, so that we are unable to say whether those points spoken of here were the only material points which the jury might consider in deciding this case That hardly meets the case in all points here.

There are many decisions which bear, in general terms, upon this point; cr instance in Wagers v. Dickey, 17 Ohio, 439, is the general statement, being as follows:

“The bill of exceptions does net profess to give all the evidence covered by the plaintiffs in support of the action prior to the motion for a non-suit. We are left altogether in the dark upon that subject, and if any supposable state of proof connected with what is shown by the first bill of exceptions would have sustained a right of action, we ought to presume such proof to have been given, until the contrary appears.” And that was a motion to non-suit.

And again, following that, in Wilson v. State, 2 Ohio St., 319, 321: “We are asked to reverse the judgment, upon the ground that the court of common pleas erred in overruling the motion for a new trial; and it is claimed that the verdict is ‘contrary to the evidence’,and ‘against the weight of evidence.’ Whatever the fact may be, the record does not sustain this preposition. The bill of exceptions does not purport to set out all that was proved. In fact, it informs us that other things than those set out were preved, and, as it cannot be presumed that the court below committed error, we are left to infer that the evidence sustained the verdict. The oases of Wagers v. Dickey, 17 Ohio, 439, and Hicks v. Person, 19 Ohio, 447, are regarded as decisive on this point. ”

But while that bears in general terms upon the main proposition, it is not perhaps necessarily directly applicable to the question here. Neither is the case in Cantwell v. State, 18 Ohio St., 477, 480. The court, however, say, in that case: “As to the third ground upon which a new trial was sought, so far as it relates to the insufficiency of the evidence to sustain the verdict, it is only necéssary to say that we cannot review the action of the court below, for the record does not affirmatively show that all the evidence given to the jury was embodied in the bill of exceptions.

“The rule on this subject has been so often stated in the reported decisions of this court that it need not be again repeated here.”

But it does not appear that the precise question which arises in this case was really before the court in that case.

In the case of Ide v. Churchill, 14 Ohio St., 372, 378, we find this statement: “From the very nature of this exception, the bill of expoptions must bring before the reviewing court all the evidence acted upon in the court below, and upon which its ruling was founded; and as nothing but the record can be regarded, it is a matter of course that the bill cf exceptions must show upon its face, either expressly or by necessary implication, that it contains the whole.”

In Hicks v. Person, 19 Ohio, 426, the court use this language on page 446: “Before this court can determine whether a verdict in the court of common pleas is ‘against evidence,’ we must have, not a part only, but the whole evidence which was before the jury, on the trial, and this must be brought before us by a hill of exceptions, made part of the record.” And, in tne syllabus, it says: “It must be embodied in the bill of exceptions, or in some manner so made a part of it, that there can be no doubt that the supreme court has precisely the same evidence before it that was before the jury.” But, in this case it appeared that there was a great portion of it omitted from the bill of exceptions which might well appear to have been exceedingly valuable as bearing upon the main features of the case.

But in Eastman v. Wight, 4 Ohio St., 157, is a case which we think more nearly applies to the matter in hand. In this case it is said: “The bill cf exceptions does not state that all the evidence given at the trial is set forth, the language of the bill being that the witnesses ‘testified in substance’ as therein set forth — and in one instance, that a witness, being recalled, ‘made some explanations and testified in Bubstanoe as follows.’ ” It appeared that the testimony was preserved except that infirmity — a statement of the judge who signed the bill of exceptions that the testimony of the witnesses was preserved “in substance” in the bill, and the court in a case of that kind, with that sort of a statement in the bill, says this — the opinion being pronounced by Judge Rauney: “To enable this court to review the judgment of the court below, overruling a motion for a new trial, because the verdict is claimed to be against the evidence, it must appear, either expressly or by necessary implication, that the bill of exceptions contains all the evidence given to the jury upon the trial. This has been the constant course of decision, and is affirmed in several reported cases. Kepner, Adm’r. v. Sniveley, Adm’r., 19 Ohio, 296; Walker v. Lessee of Devlin, 2 Ohio St., 593.

“Indeed, the very nature of the inquiry demonstrates the absolute necessity of the rule. No question of law is involved, but it is simply an appeal from the jury on the facts; and without having the evidence given to the jury, it is impossible for us to say whether it justified their finding or not.”

There was a statement analogous in some respects, we will say, to the statements in this bill of exceptions.

But Railway Co. v. Probst, 80 Ohio St., 104, is yet more in point,perhaps. The only difficulty with the bill of exceptions in that case, as not embodying all of the testimony, was this, reading from page 107:

“The record shows that the whole of A. Harris’deposition was offered in evidence to the jury, and that the substance only of that deposition is carried into the bill of exceptions. The jury had the whole of Harris’ deposition to consider and weigh in making up the verdict. We are asked tc declare the verdict not supported by the evidence in the case, when we are furnished with but the substance of a portion of the testimony. This is not enough. The reviewing court,, in such case, must have all the testimony that was produced and used on the trial before the jury set cut in the bill of exceptions. The substance only of any part of the testimony used in the trial will not meet the requirement of the rule.
“This doctrine, on the question of reviewing the action of the lower courts ou overruling motions for new trials, early found favor in Ohio. In the case of Hicks v. Person, 19 Ohio St., 426, it was held: “It must be embodied in the bill of' exceptions, or in some manner so made part of it, that there' can be no doubt that the supreme court has precisely the' same evidence before it which was before the jury.”
“This ruie is supported by such a solid rank of the authorities in this state that we are not authorized to depart in any respect from it. ”

Now, the statement of his bill is: “As other testimony offered in behalf of plaintiff related solely to the character and extent of plaintiff’s injury. ” That was the opinion of the judge who signed the bill of exceptions and those who-prepared the bill for his signature; the statement as to the character of the other testimony, but it indicates that there was other testimony which was not preserved, and from the authority of Eastman v. Wight, 4 Ohio St., 157, and Railway Co. v. Prcbst, 30 Ohio St., 104, where the judge had made the statement,- it would seem to us, from that alone, that' the proposition is strong and analogous to the present case, and decisive of it. Peradventure the reviewing court may have had the same opinion in regard t-o the balance of the testimony that the jury may have had. The jury may have thought that that testimony omitted by the bill, which the court say bore upon other points, in fact bore upon the principal question, and this court if it were before us, might come to the same .conclusion. We think that the rule under the authorities is so absolute, in Ohio, that we are not permitted in this state of the record to reverse the judgment for this reason, although it is of no moment what the court think of the strength of the plaintiff’s case, if we had all the testimony before us.

There is one authority, in 28 Ohio St., which was cited to-the court.

Whelan’s Ex’r. v. Kinsley’s Adm’r., 26 Ohio St., 131, was cited as indicating that the rule here furnished is not necessarily a guide.

We think that the court was not considering the question that is raised in this case. There, the court feund that the pleadings entitled the plaintiff to recover,and having certain testimony before it and not finding in that testimony any-, thing conflicting with the plaintiff’s position, but so far as it went, tending to support it-, the court found that there was no error in the aotion of the court below. We consider that that does not make an invasion of the rule.

Woolley v. Staley. Treas., 39 Ohio St., 354, was also cited. The last clause of the syllabus is: “3. Where a bill cf exceptions discloses all of the evidence offered on the trial, and this court, upon examination thereof, finds that all the facts which such evidence in any degree ttmds to- prove will not sustain the judgment, it must be reversed. ”

The supreme court in this case was considering whether cr ■not,in view of the law that did not require them to judge of the weight of the testimony, they could reverse a case where there was no testimony to support the. verdict, absolutely no testimony, and it was a case where all the testimony was preserved by the bill of exceptions; so we are unable to say that that would dispose of the question here, and we think the judgment must be affirmed, for the reasons stated. No penalty will be adjudged.


author: HayNES, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Oct. Term, 1894.)
    Before Bentley, Haynes and Scribner, JJ.
    THE TOLEDO CONSOLIDATED STREET RAILWAY COMPANY v. FULLER et al.

      Street Railroad — Passenger riding beyond his destination—
    (1). Where a passenger on a street railroad car is carried beyond her destination in consequence of the failure of the conductor to notice her signal to stop, she still remains a passenger, and entitled to the care owing by the street railroad company to its passengers.

      Collision of street car with locomotive at crossing — Presumption of negligence—
    (2). Under the rule laid down by the supreme court in Iron R. R. Co. v. Mowery, 36 Ohio St., 418, a charge ay the court in an action for damages received by passenger of a street railroad car in consequence of a collision of the car with a locomotive at a railroad crossing, that the fact of the injury under thecircum-stances stated put the railroad company prima facie in the wrong and devolved upon it the burden to show that the injury was the result of an accident, and that it could not have been prevented by the exercise of that reasonable care and skill which prudent men are accustomed to employ under similar circumstances is correct.

      Act of May 4, 1888 — Car and horses considered as one—
    • (3). Under the act of May 4, 1894, 88 O. L., 581, requiring street cars to stop at railroad crossings and send a man ahead to see that the tracks are clear, the car and the horses attached to it are to be considered as one in calculating the distance from the railroad track at which the street car is required to stop by the statute.

      Injury by negligence of Street car employes and Railroad employes —Both liable— ■ '

    -(4). Where the employes on a street car fail to stop the car at a railroad crossing as required and within the distance from the railroad tracks provided by the act of May 4, 1891, and the gatekeeper of the gates provided at such crossing also fails to lower the gates to prevent the car from crossing, and a collision occurs in consequence thereof in which a passenger is injured, both the street R. R. Co. and the Railroad Co. are liable for damage s
    Error tc the Court of Common Pleas of Lucas county.
   HayNES, J.

This is a petition in error filed for the purpose of reversing the judgment cf the court of common pleas, in a case wherein Mrs. Fuller was plaintiff and the plaintiffs in error were defendants. The grounds of error are the usual ones, and they are set; out in various forms, and need not be here stated.

It will be necessary to state this case very briefly, and I will endeavor to do it. Suffice it to say that Mrs. Fuller sets out in her petition that on January 9, 1892, she took passage upon the street railroad cars on Monroe street, to ride along the line of said street railway on Monroe street, to a point near Smead avenue, near which she resided. She sets out that as she arrived near that point she signaled to the conductor to stop the car to allow her to get out, but for some reason the car was not stopped, hut proceeded on down to where the street railroad crosses the line of the Lake Shore road, which a that point is used by the Michigan Central Company also, under some arrangement with the Lake Shore Company. She claims that at this point there should have been lowered a gate, which was placed by the railroad company in position to be lowered across the street on the approach of a train; that at that time there was approaching this crossing a train along the tracks of the Lake Shore road, which train was owne'd and controlled and operated by the Michigan Central Railway Co.; that owing to the negligence of the gateman at the ciossing, who was in the employ of the Lake Shore & Michigan Southern Railway “Company, the gates were- not dropped at the time they ■should have been. She claims further that as the oar approached the railroad crossing, which car was drawn by horses, that the car was net stopped as by the statute of the state it was required to he, and, as she claims, by common law it was required to be stopped, at a distance of at least ten feet from the railroad track; but that the driver continued right forward, and was passing upon the track without heeding the fact that his conductor had gone forward to give him the necessary rignal as to whether he should go forward cr not. That as the car approached the braok of the railroad and came to the point where this gate is, the gateman at that time suddenly saw the approaching train which had already come near the crossing; that right at that time he dropped the gate, and as it fell, it hit one, or perhaps both of the horses upon at or near their beads — hit them at any rate — and thereupon the horses sprang suddenly forward, carrying the car upon the track of the railway just at the time that the locomotive approached the point of the-crossing, and that at that point the locomotive struck the-railway car, moving it somewhat — -a distance of perhaps two- or three feet. The m'ovement was thus light, because it was. the custom of the railway train to stop at that point, and* while it usually;! ran across the crossing, it was m fact stopped just at the point where the locomotive hit the car. Plaintiff olaims that she was sitting in the car yet, as a passenger, and that she heard an alarm, and immediately started to go-out of the car, and passed out on the platform, and was on the platform of the street car just as it was hit by the locomotive; that she was thrown to the ground, and in consequence of that that she received severe injuries, of which-she complains; that she was bruised upon her body, had a broken rib, and injuries that have disabled her ever since to-some extent from'working as she had formerly done, and has-caused her to suffer pain and perhaps sickness.

Defendants, by proper averments in their answers, take-issue with the plaintiff and deny any aets of negligence.

Upon the trial of the case the testimony of the witnesses-tended to prove in substance the allegations of plaintiff’s-petition. It is claimed, however, by the railway companies, in addition to the matters that I have stated, that as the street car approached the crossing, an employe of the railroad company, to-wit, the station agent, or some person connected with the station, who had charge of the delivery off the mail bag to the postoffice clerk upon the train, had passed out to the place where it usually stopped, and that brought him near the line of the crossing, and he saw this-car coming onto the track just as he saw the locomotive approaching near the depot. Thereupon he commenced giving-some very vigorous signals, both by calling at the top of his voice and by moving his arm, and otherwise attempting to-attract the attention of the driver of the street car, but failed to-do so. T.he testimony of the gateman tends to show th'at the train was perhaps fifteen or twenty minutes late;: that it came upon the track of the Lake Shore road at a. point I think five or six hundred feet north of this crossing, and perhaps more than that; and that his custom was to-keep watch, and at the time when it came upon the track off the Lake Shore road, passing off the tracks of the Michigan-Central road proper, to lower the gate. He says upon this day he failed to lower it as usual, for the reason that inasmuch as the train was late, and the time was getting to be between three and four o’clock in the afternoon of a winter’s day in January, it became necessary for him to attend to •his lamps, which he was in the habit of cleaning, repairing, /perhaps, and lighting, and setting out at some points along ■the line of the track there for the purpose of giving light to the employes, and for that reason he did not see the tram -until it got within a limited distance; that then he started out to drop the gates, and he saw that the one gate had hit the horse nearest to him, somewhere about the ear, and fearing that if he kept the gate in that position it might injure the driver who was on the car, he immediately raised it, and the car passed along the track and the collision occurred.

It was contended, or suggested, perhaps, in the argument by plaintiff in error; that, strictly speaking, under the allegations of the petition, the plaintiff was not a passenger upon the street car at the time that accident occurred. There was some suggestion that she had passed off the car, and if I understood the matter correctly, some suggestion that she passed beyond the point for which she had taken passage; •and for that reason, under the allegations, her passage had terminated. We think, however, under the evidence, that there can be no question but what she was at the time that they arrived at or near the crossing, lawfully a passenger upon the street car, and entitled to all the privileges and immunities of a passenger; and we think, in the light of the 'testimony, that the jury may well have found that she had not alighted from the car at the time that the collision commenced, and that she wras till a passenger, or if she had alighted, she had done it so recently and so immediately in ■connection with the whole transaction that she was still entitled to the rights of a passenger. There was a lady seated in the car who was reading, and when the horses started ■she didn’t notice them, and she did not look at them until the locomotive got very near the car- She then happened .to look around, and the locomotive was immediately upon them. She was sitting at the forward and, and she cast her eyes to the rear end of the car, and noticed that all but one man had get out cf the car, and she herself started to arise and do the same thing, but before she had scarcely made a movement towards it the locomotive had struck the car.

There was no argument submitted to us that the verdict was not sustained by sufficient evidence, but the attention of counsel was confined more to the charge of the court. It was very earnestly contended that the charge of the court was erroneous, especially in giving what was known as the second request of the plaintiff. The plaintiff; fell into the habit, which is sometimes fallen into by attorneys, of requesting propositions that may be found in the syllabi of some case decided by the supreme court, without properly adjusting them to the condition of the case, so that they come before us in somewhat cf an awkward manner. The court gave to the jury among others, plaintiff’s second request, modified to read as follows:

“It being admitted that the defendant, The Toledo Consolidated Street Railway Company, is a carrier of passengers, if the jury find that on the occasion mentioned in the petition the plaintiff was a passenger of defendant’s car, having paid her fare as stated, it was the duty of the defendant, The Toledo Consolidated Street Railway Company, to carry her safely to her point of destination. The failure thus to do put the defendant, The Toledo Consolidated Street Railway Company, prima facie in the wrong, and the burden of proof devolves upon it to show that the injury was the result of an accident, and that it could not have been prevented by the exercise of that reasonable care and skill which prudent men are accustomed to employ under similar circumstances.”

It was claimed among other things that in giving this charge, especially in giving the charge that the company was under the obligation tc carry her safely to that point, it violated the general rules that govern the conduct and liability of railway companies or common carriers, and really made them the insular of the safety of the passenger, w.hile they were only bound to use a certain degree of care for the purpose of carrying the passenger safely, or for the protection and care of the passenger, and in that respect it had increased the duty and obligations of the railway company beyond that which the law ordinarily imposes upon them; and, taken in connection with another charge that I shall read later on, it is claimed that it was virtually a charge to the jury to return a verdict for the plaintiff as against the defendants. We were very much impressed with the arguments of counsel made at the time of the hearing in this court, but our duty has been very much abridged by the decision that'was referred to by counsel for plaintiffs in error as well as counsel for defendant in error. Iron R. R. Co. v. Mcwery, 86 Ohio.St., 418. In this case, upon an examination of it, we find that the oourt of common pleas upon the trial in that court, had given to the jury a proposition substantially in the language of the proposition that was given by the court in this case at bar. We have compared them, and they seem to be substantially the same. In that case he plaintiff below had taken passage upon the railroad of the defendant company, and ridden from the city cf Ironton to a place called Etna station, and the train, it seems, was stopped on the road on account of some cattle-that had strayed upon the track, and as the locomctive .again started a coupling broke or gave way, leaving the car in which the plaintiff was riding, standing on the track. In the course of from eight to ten minutes a coal train, belonging to defendant, came up behind and ran into the rear car of the standing cars, causing an injury to the plaintiff. Judge Boynton, in delivering the opinion of the court, says, on page 421:

“This is a petition in error by the plaintiff, to reverse the-judgment cf the district court for wrongfully affirming the judgment of t'he court of common pleas for alleged error in the charge of the court to the jury; and a cross-petiticn in-error by the defendant in error to reverse the finding of the district court that the judgment rendered on the verdict was excessive, and that, consequently, the judgment ought to be reversed, unless he, the defendant iri error, would remit the amount of the judgment in excess of $1,500.
“Whether a presumption of negligence arises, in all casos, against a railroad company, from the mere fact that an accident has occurred from which a passenger receives an injury while being carried over the roa’d of the company, is a question not arising in -the present case, and therefore is not determined; but where an injury results to a passenger from-a collision of the trains cf the company, we have no doubt that a prima facie presumption cf negligence arises against the company, and that unless the company relieves itself from liability by showing that the injury did not result from its carelessness, or by showing contributory negligence upon the part of the passenger, judgment should be rendered against it. To this effect the authorities- seem uniform.
“We therefore think the court did not err in charging the-jury that the burden of proof was on the defendant below, to establish the fact that the injury did not result from its negligence. ”

And the judgment was affirmed. It will be perceived that while the court laid down the doctrine that where the injury results from a oollisicn between the trains of the company, the burden thus is thrown upon the defendant company to-show that it had not been guilty of any acts of contributory negligence, or any acts showing negligence on its part; yet while it makes that statement, the charge of the court as-given was an universal charge as it was in the case at bar:

“It being admitted that the defendant is a carrier of passengers,and that, on the occasion mentioned in the petition, the plaintiff was a passenger on defendant’s train, having paid his fare as stated,it was the duty of defendant to carry him safely to the point of his destination without injury.”

For one, I should be very much inclined to reverse a case where a charge of that kind was given, even although the facts were such as are set forth in Iron R. R. Co. v. Morey, supra, for this’reason: that it states an universal proposition,and the jury might not properly apply it, if it were not charged in regard to the nature of the rule of law, or the exceptions to it, or the limit put upon it by the supreme court in this case. But the supreme court, with that charge before it, without anything further, so far as I can see to modify or to qualify that charge in any way, did affirm the judgment of the court of common pleas, because upon the facts of the case, if the rule of law had been stated just in accordance with the facts of the case, the burden of proof would have been shifted upon the defendant. In R. R. Co. v. Walrath, 38 Ohio St., 462, that case is referred to, but it does not throw a great deal of light upon the first part of the proposition, as to whether that is the universal ruis. This is a case where a party had taken a berth in a sleeping car and during the evening, while he was sitting in his proper seat — that upon which his berth was to be prepared for the night — the upper portion of the car fell upon, his head and injured him seriously. On the trial of that case in the court below, the court had charged the jury that, “A mere statement that a person was injured while riding on a railway, without any statement of the character, manner or circum-tances of the injury, does not raise a presumption of negligence on the part of the railway company. But if the character, manner, or circumstances of the injury are also stated, such statement may raise, on the one hand a presumption of such negligence, or, upon the other, a presumption that there was no such negligence. If the plaintiff was in fact injured while sitting in his proper place, by the falling on his head of the upper berth, while said upper berth ought to have remained in place above, such fact raises a presumption, in this case of negligence, for which the defendant is liable.” That case was affirmed, and the charge of the court was approved. They refer to the Mowery case, stating that the general question was carefully considered in Iron R. R. Co. v. Mowery, supra, and we think the principle of that case sustains the court below in the charge given and in refusing the charge requested.

In Huff v. Austin, 46 Ohio St., 386, reference is made to the Mowery ease by the judge who delivered the opinion, and the broad statement is made there that, “The fact of injury having been suffered by any one while upon a railroad ccm-panys’ train as a passenger should be regarded as prima facie evidence of the liability. ” That I think is not supported by the case of Iron R. R. Co. v. Mowery, supra. In this case the question that was before the r,ourt was, whether the proof offered in a case where a party was sued for injuries which resulted from the explosion of a boiler, that the boiler had exploded, made prima facie a presumption of negligence on the part of the defendant, the owners of the building in which the boiler was situate, who were operating the boiler. The supreme court held that it did not, the statement in the syllabus in Huff v. Austin, supra, being as follows: “That in an action for damages, the mere fact cf the explosion did hot raise a prima facie presumption of negligence on the part uf defendants. ” The judge, in delivering the opinion of the supreme court, says, on page 390:

“By reason of reliance for personal safety, of passengers upon the carrier, and of the high degree of care and diligence which the law requires towards those with whom there is a relation of trust and confidence, courts have held that, the fact of injury having been suffered by any one while upon a railroad company’s train as a passenger should be regarded as prima facie evidence of the liability.”

That is a broader statement than that in Iron R. R. Co. v. Mowery, supra, warranted.

Another charge that was given was this:

“By the words of the statute, ‘from the crossing’, means that the car and the horses are to be treated as one; and that the cars and the horses as a whole must be brought to a full stop not less than fifty feet from the railroad track.”

The court approved of this request, and that is alleged as a ground of error; and the contention on the part, of the plaintiffs in error here is that under the statute only the car is required to be stopped within the distance named by the statute, tó-wit: ten feet from the railroad; and that it does not cover the horses in case of a street railway company which operates its cars by means of horses. The statute that is referred to is the aot of May 4, 1891, and it is entitled: “ An act to provide for the safety of street cars, crossing one another’s tracks, and the tracks of steam railways.” The first seotion provides in regard to street railway crossings where the tracks are at a common grade. The second section provides:

“That whenever the tracks of any street railroad in this state cross the tracks of any steam railway at grade, the street railway company operating said line of cars shall cause their street oars to come to a full stop not nearer than ten feet nor further than fifty feet from the crossing, and before proceeding to cross said steam railway tracks, shall cause some person in their employ to go ahead of said car or cars and ascertain if the way is clear and free from danger for the passage of said street cars, and said street railroad cars shall not proceed to cross until signaled so to do by such person so employd as aforesaid, or said way is clear for their passage over said tracks.”

In the third section it provides for penalties against employes who shall violate the provisions of the statute; also provides fcr a personal liability on the part of 3aid employes; also provides that “The company in whose employ such person having charge of said car or cars is, as well as the person himself, shall be liable in damages to any person or persons injured in person or property.” Then there is a clause here in brackets “Having charge of such car or cars,” and then the words “As aforesaid.” I think I will leave out the brackets and say “person cr property as aforesaid. ” I don’t quite understand what the balance of that means. We have given consideration to this charge and to the arguments of counsel, and I don’t know that we have any decisions to guide us in regard to the decision of the question; but after deliberating upon it and discussing it, and giving it our best judgment, we have come to the conclusion that a fair construction of that statute, taking into consideration the objects and purposes for which it is passed and the consequences .that are liable to follow from a disobedience of it, will be that the horses attached should be taken as a part of the carriage, if I may use that word; that is to say, when it speaks of the car, it speaks not only of the car proper, but of the whole arrangement by which the car is carried forward —by which the passenger is carried, and by which the results are attained fcr which the car is intended, to-wit: the carriage of passengers from point to point, and for the protection of passengers. The evil is quite as actual, it seems to us, from driving horses within ten feet of the line cf the road as from driving the car itself. It is said,of course,that the horses might be turned to the right or to the left, and then the car go that distance; but it seems to us that a broad and fair view of it is to take the whole carriage into consideration — the horses that draw it and the car that carries the passengers — -and that the intention of the legislature was that that instrumentality should not be brought within a certain distance of a railroad until the observer was sent ahead from the car and signaled back that, the track was clear for the passage of the car; and that for the purpose of preventing any injury hy a person carelessly orneg-ligently driving upon a railway track.

This charge having ^een given, it brings us back to the resolution of the other charge, and to the question whether within the principle of the decision in Iron R. R. Co. v. Mowery, supra, error intervened of which the plaintiffs in error can avail themselves upon this position in error. By some regulation either of the council of the city or the state authorities, possibly by both, it would seem that a gate is required to be kept by the railroad companies at this crossing, or at any rate it is kept. It is kept for the purpose of preventing persons from driving upon the tracks when trains are approaching, and as a matter of course, for the protection of persons who are passing along the street. The supreme court were called upon to pass upon an injury which resulted tq a party, and the rights of a person who was driving, and the rights of the railroad company and the liabilities of the railroad company, a short time since in Railway Co. v. Schneider, 45 Ohio St., 678; and it says in the third syllabus in the case:

“8. When gatemen a,re maintained at such crossings, it is their duty to observe the traoks and know when, on account of trains cr engines thereon, it becomes dangerous for persons to cross, and when it is so, to close the gates and k.eep them closed to prevent persons from going upen the tracks so long as the danger continues; and when the traoks are clear, cr persons may cross without danger from passing cars and locomotives, then to open the gates and keep them open to enable persons to cross, so long as it is safe for them to do so, but no longer. Persons approaching the crossing or about to cross have the right to presume, in the absence of knowledge to the contrary, that the gatemen are properly discharging their duties, and it is not negligence on their part to act on the presumption that they are not. exposed to dangers which can rise cnly from disregard by the gatemen of their duties. Hence an open gate with the gateman in charge is notice of a clear track and safe crossing, and in the absence of other circumstances, when the gates are open and the gatemen present, it is not negligence in persons approaching the crossing with teams to drive ata trot, or pass ■on to the tracks through the open gates without stopping to listen, though the view of the tracks on either side of the crossing is obstructed; nor in such case is their failure, when at a distance of twenty-five feet from the track, to look for locomotives one hundred and fifty feet or mere from the crossing, negligence, though they could have been seen.”

As I have stated, as this oar approached the'crossing the ■gates were not lowered as soon as they should have been, and there was unquestionably a dereliction on the part cf the gateman in watching for that train. ' It was late, and liable to approach at any moment. He was negligent in not seeing it and dropping the gates so as to prevent any person crossing. He says that as he went out there was a car crossed, called ‘‘salt car;” that is to say, a car that was ■used by the employes of the road in spreading salt upon the track of the railroad. He says that he commenced to drop the gate as soon as he could after this salt car passed. There -is contradictory testimony in relation to the position of that car. So far as the street car is concerned and the driver of it, as the car approached the track the conductor got off the car and started around to the south of the car, as I understand it, that he had got off of. The salt car had come up to the double track. He proceeded in that direction in the performance of a duty, and had got up somewhere on the line of the heads of the horses at the ■ time the gates had commenced to fall, but had not yet reached the railroad track. The driver was on the front of the car, and it was •said by one of the witnesses that he jumped off the car as he saw the gates falling. His own testimony is that he did not jump off until the horses had jumped past the track, about the time the injury occurred. There is testimony tending to show that the brakes were set upon the car as they were found after the accident, and that they were perhaps set before the car got upon the track. But the testimony all shows that the horses were proceeding and the driver was not stopping them — that is, he did not bring them to a dead stop. There was one thing occurred that was cut of the usual and ordinary course, to-wit: this employe of the railway company, who had charge cf the mail bags, was making diligent effort's to stop this driver from driving his car upon the railroad track. If I remember right,there was a person from the other side. There was also this statute that prohibited the passing of a car beyond a point within ten feet of the track until the conductor should signal for it to come erward. This statute is passed without any regard to the fact that gates are to be kept at crossings by railway companies. It is a regulation that is quite general, and I believe, by the statutes cf the state, is to some extent under the control of the commissioner of railroads. Now then, what is the situation in regard to the charge of the court? We are cf opinion that under the situation and the facts of the case as here stated, the driver of the street car driving the car upon the track, as he did, there was negligence on the part of the street railway company such as, under this rule, would cist the burden upon it tc show that there was no negligence on its part, or that it had used ordinary care. We have taken into consideration the argument of counsel, the decisions of the supreme court and the rules laid down there by them; we have read the case that was cited by counsel from the Washington Reports; but we think that the rule that should govern in this oase falls within that latter clause of the decision of the supreme court in Iron R. R. Co. v. Mowery, supra, and in the cases that are there referred to; and the rule is substantially this: that where the negligence occurs by the collision of the cars, by the breaking of machinery, or by any act that is done by the railway company, or by the employes, which has contributed to the injury which is'complained of, the burden of proof should be upon the defendant railway company.

Under this view of the case, and under that decision, and the prominence of that decision, and considering the manner in which it was affirmed by the supreme court, we do not feel at liberty to reverse this case. We think that if counsel for the railway company seek to challenge that decision, or the results of it, it should be before the tribunal itself which made the decision, and allow them to change or modify it, if they see fit to do so.

Some question was made with regard to the liability of the steam railway company; but under the decision that I have already read, in Railway Co. v. Schneider, supra, we do not see how the two companies can escape liability; at least we think the jury was right in holding that they were liable for negligence contributing to this accident.

We therefore, on the whole view of the case, affirm the judgment of the court of common pleas, but will certify reasonable grounds for taking the case to this court, and the case will be remanded in the usual form.

Plaintiffs in error except.


text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    March Term, 1890)
    Before Scribner, Bentley and Haynes, JJ.
    TOLEDO BOARD OF EDUCATION v. THE CITY OF TOLEDO FOR USE OF COGHLIN.

      Assessment of school property for sidewalks and sewers in front of it—

    School property in a city school district is chargeable for an ass ss-menfc by the front foot under our statutes for a sidewalk in front thereof, or for a sewer, and the board of education has to pay the same.
   FJ(This case was reversed by supreme court, holding that the school property cannot be assessed for the expense of constructing a sidewalk or sewer in the street in front thereof, but that the amount has to be paid out of the general fund of the city, 48 Ohio St., 84, 87.)