text:
    INSOLVENCY — PREFERENCES.
    [Lucas Circuit Court,
    November 1, 1901.]
    Haynes, Parker and Hull, JJ.
    Harris Gettinger v. National Bank of Commerce et al.
    1. Transaction Fraudulent and Void Under Sec. 6343, Rev. Stat.
    Where an insolvent debtor mortgages his whole property for its full value to secure a loan from a third person, and upon the same day turns over to certain creditors the entire proceeds thereof, leaving more than half of his indebtedness unpaid, the effect of the transaction is to turn over to these creditors his entire property, and he will be considered as having done so in contemplation of insolvency and with intent to prefer such creditors, within the meaning of Sec. 6343, Rev. Stat., as amended 93 O. L. 290, making such transactions void.
    2. Section 6343, Rev. Stat., Includes Payment of Money.
    Section 6343, Rev. Stat., as amended 93 O. L. 290, providing that every act or device done in contemplation of insolvency or with intent to prefer creditors, such as sales, conveyances, transfers, etc., shall be void is sufficiently broad to include “ payment of money,” made under the above circumstances, although the term “payment” is not specified in its inhibitions.
    3. Section 6343, Rev. Stat. — Exceptions.
    Section 6343, Rev Stat., providing that sales, conveyances, transfers, mortgages or assignments made in contemplation of insolvency shall inure to the benefit of all creditors, exempts mortgages given to secure a new loan and not a pre-existing debt if filed for record within three days.
    Heard on Error.
    Chittenden & Chittenden, for plaintiff in error.
    Harvey Scribner and Kohn & Northup, for defendants in error.
   HULL, J.

This action was brought by the plaintiff below, who is also plaintiff in error, under Sec. 6843, Rev. Stat., to set aside certain payments and transfers of moneys which it is claimed were made by the defendant, Grant Benson, on January 14, 1901, for the reason, as alleged, that Benson at that time was insolvent, and that he made the payments in contemplation of insolvency, and with the intent and design of preferring certain creditors. General demurrers were filed by the defendants in the court of common pleas to the amended petition, and those demurrers were sustained. Plaintiff not desiring to plead further, the petition and the action were dismissed at the costs of the plaintiff, and judgment entered against him in favor of the defendants. It is to reverse this judgment that the petition in error was filed in this court.

The contention of the defendants in error is, that the transaction set forth in the amended petition, is not within the purview of Sec. 6343, Rev. Stat., as amended April 26, 1898, 93 O. L. 290, 291. The claim of the plaintiff is that the facts set forth in the petition make a cause of action under this section, as amended, and if those facts are true, as admitted on demurrer, that he is entitled to have the payments and transfers of moneys mentioned in the petition set aside, a trustee appointed, and the moneys collected by the trustee, and administered and distributed for the benefit of all the creditors. The amended petition is as follows:

“ Plaintiff states that the defendant, The National Bank of Commerce, is a banking corporation organized under the laws of the United States, and doing and carrying on a general banking business at No. 324 Madison street, in the city of Toledo, Lucas county, Ohio.
“ Plaintiff further states that on January 14, 1901, he recovered a judgment against the defendant, Grant Benson, in the city and justice courts of the city of Toledo and Port Lawrence township, Lucas county, Ohio, in the sum of $123.50 and costs. That thereafter, to-wit, on January 17, 1901, transcript of said judgment was filed with the clerk of the court of common pleas of Lucas county, Ohio, and execution was issued thereon to the sheriff of Lucas county, Ohio. That said execution has been returned by said sheriff wholly unsatisfied.
“ Plaintiff further states that on or about January 8,1901, the defend- ■ ant, Grant Benson, was indebted to his co-defendants herein, and other •creditors, in a sum aggregating more than $27,000. That on said date the defendant, Grant Benson, had no property of any name or nature subject to-the payment of said indebtedness other than a stock of merchandise located at No. 310 Summit street in the city of Toledo, Lucas county, Ohio, of the value of not more than $15,000. That on or about said January 8, 1901, said defendant, Grant Benson, obtained a loan of $12,000, and to secure payment of same executed a chattel mortgage covering said stock of merchandise above referred to. That said stock of merchandise has now been sold, and did not sell for enough to satisfy said mortgage indebtedness, and that said Grant Benson now has no property of any nature to satisfy any portion of his indebtedness.
“Plaintiff further states that on or about January 8, 1901, the defendants, The National Bank of Commerce, Arthur Klauser, Charles B. Darling and Jay Benson, were creditors of the defendant, Grant Benson, and that on or about said January 8,1901, the said Grant Benson, in contemplation of insolvency, and with the intent and design to prefer said The National Bank of Commerce, Arthur Klauser, Charles B. Darling and Jay Benson, to the exclusion in whole or in part ot his other creditors, transferred and paid from said fund realized by execution of said chattel mortgage to said, The National Bank of Commerce, the sum of $5,000; to Arthur Klauser the sum of $5,000; to Charles B. Darling the sum of $1,500; and to Jay Benson the sum of $500. That said payments so made by the defendant, Grant Benson, to his co-defendants, The National Bank of Commerce, Arthur Klauser, Charles .B. Darling and Jay Benson, were made in contemplation of insolvency and with the design to prefer said creditors to the exclusion in whole or in part of the other creditors of the said Grant Benson, and with the further design to hinder and delay his other creditors in the collection of their demands, and to defraud the other creditors of the said Grant Benson.
“ Wherefore, your petitioner prays the court that said payments so made by the said Grant Benson to said The National Bank of Commerce, Arthur Klauser, Charles B. Darling and Jay Benson, be declared void as to the creditors of the said Grant Benson, and that said transfers and payments so made be declared to be an assignment of all the property of the said Grant Benson for the benefit of his creditors, and that said payments and transfers so made be declared to inure to the equal benefit of all the creditors of the said Grant Benson, in proportion to the amount of their respective demands. That a trustee may be appointed to recover possession of said property and moneys so transferred and paid, and that the estate of the said Grant Benson be administered for the equal benefit of all of his creditors.”

• It appears then from the petition that on January 8, 1901, Grant Benson was insolvent; that he had no property subject to the payment of his debts except this stock of goods; that he owed $27,000 ; that the stock of goods was not worth more than $15,000; that on that day he borrowed $12,000. and to secure the loan made a chattel mortgage; that the merchandise has since been sold, and did not sell for enough to satisfy the mortgage; that on this same day he turned over the proceeds of this loan to the four creditors named, $5,000 to the National Bank of Commerce ; $5,000 to Arthur Klauser; $1,500 to Charles B. Darling, and $500 to Jay Benson, leaving nothing for his other creditors, or to satisfy his remaining indebtedness, which, according to the petition, amounted to about $15,000.

The plaintiff in error claims that this transaction is within the terms of Sec. 6843, Rev. Stat. The defendants in error claim that the transaction as set forth amounts to no more than the borrowing of this money upon the chattel mortgage, and with the proceeds of the loan paying these creditors; and it is contended that such payment is not within the provisions of Sec. 6343, Rev. Stat.

The chattel mortgage itself upon which the money was realized is not attacked. The statute provides that a mortgage given to secure a new loan and not to secure a pre-existing debt shall not be affected by the statute, if filed for record within three days.

The amended Sec. 6348, Rev. Stat., is substantially a new statute. The legislature completely remodeled the statute. There were many decisions under the old act which upheld transfers of property by insolvent debtors when made to pay a debt absolutely, or when made to secure a bona fide indebtedness. The “diligent creditor” was encouraged to be diligent and to secure his claims from insolvent debtors, and although that resulted in the exclusion of all other creditors, it was sustained under the statute as it then stood. The question, as a matter of common knowledge, was for a long time a subject of discussion in the courts, in the legal bodies and bar associations, and attracted the attention of the legislature, until finally, in 1898, this amended statute was passed. The title of it is, “ Sales, conveyances, transfers, mortgages, assignments, etc., in contemplation of insolvency to inure to benefit of all creditors.” It provides as follows :

“ Every sale, conveyance, transfer, mortgage or assignment, whether made in trust or otherwise, by a debtor or debtors, and every judgment suffered by him or them, and every act or device done or resorted to by him or them, in contemplation of insolvency, or with a design to prefer one or more creditors to the exclusion in whole or in part of others, and every sale, conveyance, transfer, mortgage or assignment made, or judgment suffered by a debtor or debtors, or procured by him or them to be made, in any manner, with intent to hinder, delay or defraud creditors, shall be declared void as to creditors of such - debtor or debtors, at the suit of any creditor or creditors, as hereinafter provided, and shall operate as an assignment and transfer of all the property and effects of such debtor or debtors, and shall inure to the equal benefit of all creditors of such debtor or debtors in proportion to the amount of their respective demands, including those which are unmatured.
“And every such sale, conveyance, transfer, mortgage or assignment made, and every such judgment suffered, and every such act or device done or resorted to, by any debtor or debtors, in the event of a deed of assignment being filed within ninety days after the giving or doing of such thing or act, shall be conclusively deemed and held to be fraudulent, and shall be held to be void as to the assignee of such debtor or debtors, whereupon proof shown, such debtor or debtors was or were actually insolvent at the time of the giving or doing of such act or thing, whether he or they had knowledge of such insolvency or not.
“ Provided, that nothing in this section contained shall vitiate or affect any mortgage made in good faith to secure any debt or liability created simultaneously with such mortgage, if the same be filed for record in the county wherein the property is situated, or as otherwise provided by law, within three days after its execution, and where upon foreclosure or taking possession of such property the mortgagee fully accounts for the proceeds of such property.”

The following section (6844) provides that any creditor or creditors as to whom any of the acts prohibited in the preceding section are void, may begin action, etc., and provides for the appointment of a trustee, and makes it the duty of the assignee to bring suit for the recovery of all property so mortgaged, transferred, or assigned; and provides that a creditor may bring suit on the failure of the assignee to do so, if an as-signee has been appointed.

There is no allegation in this petition that these creditors to whom these payments were made had knowledge of the insolvency of the debtor, Benson, and the transfer, so far as they are concerned, is set forth in the petition asa 11 payment ” to them : it is called a “ payment.” It is contended that this payment of money to a creditor without knowledge of the insolvency of the debtor is not within this section, and was not intended to be by the legislature. It is argued that it would lead to great confusion and uncertainty in business and ' mercantile transactions, if the payment of money by a detor to a creditor could be disturbed as is sought to be done in this case. The statutes of some other states are cited and quoted, in which payments of money by insolvents is provided for, by the express use of the word “ payment,” and the effect of the payment of money by an insolvent to a creditor who has knowledge of his insolvency is provided for in some of those states.

There has been no decision of the Supreme Court construing or interpreting this statute as amended. There has been one decision of the circuit court, a case decided at the May term, 1900, Seneca county, (unreported) Walding, Kinnan & Marvin Co. v. Myers, — the opinion is by Judge Day. This is the only case, so far as we know, where this amended statute has been considered.

The Supreme Court in a case decided in 1889, Rouse v. Bank, 46 Ohio St. 493 [22 N. E. Rep. 293 ; 5 L. R. A. 378; 15 Am. St. Rep. 644], long before this statute was amended, held with reference to corporations, that: “A corporation for profit, organized under the laws of this state, after it has become insolvent, and ceased to prosecute the objects for which it was created, cannot, by giving some of its creditors mortgages on the corporate property to secure antecedent debts without other consideration, create valid preferences in their behalf over the other creditors, or over a general assignment thereafter made for the benefit of creditors.”

The holding of that case was that after a corporation became insolvent, and ceased to prosecute the objects for which it was created, it held its property in trust for the benefit of all its creditors, and could not prefer one or more creditors to the exclusion of others. This amended statute was a long step in the direction of placing insolvent individuals in the same condition as that in which corporations had been placed by this decision of the Supreme Court. The language of the statute is—

“ Every sale, conveyance, transfer, mortgage or assignment whether made in trust or otherwise, by a debtor or debtors, and every judgment suffered by him or them, and every act or device done or resorted to by him or them, in contemplation of insolvency, or with a design to prefer one or more creditors to the exclusion in whole or in part of others, and every sale, conveyance, transfer, mortgage or assignment made, or judgment suffered by a debtor or debtors, or procured by him or them to be made, in any manner, with intent to hinder, delay, or defraud creditors, shall be declared void as to creditors of such debtor or debtors.”

The words used at the beginning of the section are: “ Every sale, conveyance, transfer, mortgage, or assignment, whether made in trust or otherwise.” The word “ payment ” is not used, but the word “transfer” is used, and the word “sale,” and the word“conveyance and if money could be the subject of transfer, that might be a broad enough word to cover the transfer or payment of money.

Although the word “ payment ” is not used, it is not disputed but that the statute would cover a case where it was undertaken to cancel the debt by a transfer of property other than money. A debt may be paid with property as well as with money, and under the old statute, as it stood before the amendment, we often had cases where an insolvent debtor undertook to pay his debt by an absolute transfer of property, and such transactions were upheld by the courts. The definition of pay,” as found in Anderson’s Law Dictionary, 759, is, “ To discharge an obligation by a performance according to its terms or requirements, whether the obligation be for money, merchandise, or services. To deliver to a creditor the value of a debt in either money or goods to his acceptance, by which the debt is discharged.” According to this definition, a delivery to a creditor of goods in payment of a debt, or to cancel a debt, is as much a payment, as to hand over to him money.

The purpose of this statute is plain; and that is, that when a man has become insolvent, unable to pay his debts, that he shall treat all of his creditors alike. The statute was amended to prevent such apparent evils as had grown up under the old statute, which seemed in morals, at least, to be often tantamount to fraud; as where a man went into business, purchased a stock of goods with borrowed money, became insolvent, or was insolvent at the time of the purchase, and turned over all the goods so purchased with borrowed money to some preferred creditor, leaving out all other creditors, including the very one from whom he had borrowed the money with which to purchase his goods. The purpose of this amendment was to prevent transactions of that kind, and to put the creditors of an insolvent debtor upon an even footing, and to take it out of the power of the insolvent debtor, to put his creditors in any other position than on an equal footing, so far as was practicable by legislation.

The language used by the legislature is broad and • sweeping. After the use of the various words referred to, the statute provides, “ And every act or device, done or resorted to by him or them in contemplation of insolvency, or with a design to prefer one or more creditors,” etc., shall be declared void. It is difficult to see how broader language could be used than such an expression as “ every act or device,” done in contemplation of insolvency, or with intent to prefer one or more creditors, etc., first reciting the various transactions, such as “ sales,!’ “ conveyances,” and “ transfers” that shall be held to be void, and then as if to cover any case that might arise that was not covered by the exact language employed, using the expression just quoted.

The decisions in other states are of but little help to us, as this is a statutory question, and we have not been referred to any statute that contains the same language as ours. An Illinois case has been cited: Illinois Paper Co. v. Bank, 87 N. E. Rep. 66 (149 Ill. 450), but the statute which was passed upon in that decision is very different from ours. It is this:

“ Every provision in any assignment hereafter made in this state providing for the payment of one debt or liability in preference to another, shall be void, and all debts and liabilities within the provisions of the assignment shall be paid pro rata from the assets thereof. 2 Starr & Curtis’ Illinois Statutes, 2190.”

It uses no such sweeping language as that in our statute; in fact, it is a very different piece of legislation.

If Mr. Benson had made this mortgage directly to these creditors to secure a pre-existing debt, on January 8, 1901, and in that way had preferred them, it probably would be admitted that it would have been within the statute; but instead of doing this, he made the mortgage to a third person, and on that mortgage raised the $12,000 which he owed these three creditors; and on the same day, perhaps as a part of the same transaction, the money is turned over to these four creditors, thereby turning over to them in fact all the property which he had.

It seems to us that this transaction as set forth in the amended petition is within this section as amended, and that to hold otherwise would result in the practical nullification of this statute. An insolvent debtor, instead of malting his agreement with or giving his security directly to the creditor, might give it to a third person, who would pay the money over directly to certain preferred creditors, and not be within the provisions of the statute. The fact that it is money that he turns over to his creditors does not seem to us to take the case out of the statute. There might be a case, as in the case of a bank, where practically all oí the property of the debtor was money. If it be true that money is not within the provisions of this section, then such individual or corporation might transfer all of his or its property directly to the creditor for the purpose of preferring him, and in contemplation of insolvency, and not be within the terms of this section.

The argument that this would lead to uncertainty in business affairs has some force, but that may be said of goods as well as money. When goods are transferred by an insolvent debtor to a creditor, they may be sold and are often sold, and go into the channels of commerce, and are reduced to money; but that does not prevent an assignee or a trustee, if appointed, holding the creditor who receives the goods under such circumstances to an accounting to the other creditors.

We think this transaction, as set forth in the petition, is not only within the spirit of this statute, but within its letter. It was not the payment of a debt in the ordinary course of business, as one going into a store to pay an account. When an insolvent debtor mortgages all the property that he has for its full value, and upon the same day the entire proceeds of the loan are turned over to four creditors, leaving $15,000 of his indebtedness unpaid, it differs from the payment of a store account in the ordinary course of business. The effect of such a transaction is to turn over to these creditors his entire property, not the goods themselves, but the money which he has secured by this loan, in the place of the goods. He was at the time insolvent, and it must be held, under the allegations of the petition, that he did this in contemplation of insolvency and with intent to prefer these creditors. We judge of a man’s intent by his acts, by what he does, by the effect of his acts; and the effect of this act was to prefer these creditors, to pay their claims, and to leave the others out. We think that a proper construction of this statute, and an interpretation of it in the spirit with which it was passed, requires such a holding as we make in this case, and that we are but carrying out the purpose of the legislature in holding that such a transaction as this is within the statute and should be declared void. Our opinion is in harmony with the decision of the circuit court of Seneca county to which reference has been made.

For these reasons the judgment of the court of common pleas will be reversed.


source: Caselaw Access Project

author: MOONEY, J.

license: Public Domain

text:
    NEGLIGENCE — CHARGE TO JURY.
    [Huron (6th) Circuit Court,
    1901.]
    Haynes, Parker and Mooney, JJ.
    (Mooney, J., sitting in place of Hull, J.)
    Lake Shore and Michigan Southern Railway Co. v. Rose Whidden, Admx., etc.
    1 Rules oe Railway Company Need not be in Writing.
    . Orders to employes in railway shops are not required to be given by written rules; the rule in respect to such companies is not different from that applied to other industries. Hence, in an action for negligence for want of sufficient rules for the protection of employes, it is improper to exclude proof that an oral rule was made, was in existence and was actually communicated to an employe, and which, if followed, might have tended to his safety in the work in which he was engaged.
    2. Choosing Dangerous Method oe Work — Contributory Negligence.
    The fact that a person does not surround himself with all precautions and take the course that in all situations is absolutely free from danger, does not raise a presumption of negligence against him, but where there are two ways of accomplishing a certain work, with reasonable dispatch, one absolutely safe and the other attended with danger, the adoption of the latter raises a presumption of negligence; and to remove this presumption and to show the exercise of ordinary care, the burden is upon the person so choosing.
    8. Rule Applied.
    Where a man thirty-two years of age, of more than ordinary intelligence, employed about a railway company’s shops for more than three years, and for more than a year accustomed to assist in raising tanks from the floors of locomotive tenders, by the aid of lifting jacks, in attempting to reach certain blocking to support the tank, placed his head and arms under such a tank, one end of which he had raised and left supported by a jack only, which slipped and let the tank fall upon his head, causing his death, he was held to have been negligent, and especially where it appeared that by a few steps he could have procured the blocks without danger.
    4. Danger oe Defective Appliance or Condition.
    A person using an appliance, a lifting jack in this case, for several years and frequently, may, in the absence of evidence to the contrary, be fairly presumed to know its weakness, if it has any. The same rule applies to other conditions, such as a floor made slippery by fresh paint, where the person had worked thereon for several hours. In either case the person so employed should be held to have assumed the dangers suggested, particularly where it appears that he had already had instances of the weakness of the appliance and the slippery condition of the floor.
    6. Lack of Causal Connection Between Negligence and Injury.
    The fact that a railway company employed only two men, when it should have employed three (though it is not so held in this case), to accomplish certain work, furnishes no ground for recovery where, from the position in which an employe who is injured placed himself, he would not have escaped injury by reason of the employment of another man or any precaution or warning given at the time by such extra person, inasmuch as there is no causal connection between the alleged negligence and the happening of the injury.
    6. Assumption of Risk of Certain Methods.
    Where a person performed certain work many times with the assistance of one man, he should be held to know the dangers of so doing and by voluntarily attempting to perform the work another time without objection or demand for the assistance of a third person, he cannot recover for an injury caused thereby.
    7. Evidence Necessary"to Remove Such Presumption.
    Evidence to remove a presumption of contributory negligence in an action for personal injuries must be exculpatory; that is, it must show some reason or sustain some excuse therefor, and it must appear from other evidence, that notwithstanding the act done seems to be contributory negligence, or a risk assumed by the plaintiff, under the peculiar circumstances, such result does not follow.
    8. Rule as to Instructions Before Argument.
    Instructions to the jury before argument, under Sec. 6190, Rev. Stat, should embody general rules, not only correct in the abstract, but so covering the case in issue as not to give a one-sided view of any particular theory of counsel or attach undue importance to particular items of evidence.
    9. Rule Applied.
    Where plaintiff alleges the commission of several acts of negligence, as a result of which the injury complained of occurred, a charge, singling out each of these several acts and instructing the jury that any one of them alone would not, as a matter of law, entail liability, is unfair, misleading and improper.
    10. Duty oe Court To Instruct as To Presumption oe Negligence.
    The purpose of an instruction to a jury is not to state general abstract propositions, but to deliver instructions which will aid the jury in arriving at a proper verdict. Thus, where it appears that there were two ways in which a servant might have performed his work, with reasonable dispatch, one safe and' the other attended with danger, and the servant adopted the dangerous way, it is the duty of the court to instruct the jury that the burden rests upon the servant to remove such presumption and to show that he was exercising ordinary care before he can recover; and a failure to comply with a request to so charge constitutes prejudicial error.
    11. Rule as to General Charge.
    Where the general charge fairly covers a case, in the absence of any request to make more particular statement, or specific objection made at the time to particular language, it will- be considered to have given the jury proper instruction, in the light of which they should have arrived at a proper and just conclusion.
    12. Single Questions to Experts Need not Meet Case Fully.
    It is not necessary, in the examination of expert witnesses, to state an entire case in one question. It is sufficient, for example, to ask such a witness if a certain method of doing certain work, by two employes, is safe, and if the question is incomplete or it is necessary that the evidence should show as to which of such employes such method would or would not have been safe, the additional facts may be developed on cross-examination.
    Heard ON Error.
    Andrews Bros., for plaintiff in error.
    C. P. and L. W. Wickham, for defendant,
    cited:
    The plaintiff should allege that the decedent had not knowledge nor equal means of knowledge with the railroad company. Coal & Car Co. v. Norman, 49 Ohio St. 598, 607 [32 N. E. Rep. 857]; Wood Master & Serv., Sec. 414; Mad River & E. E. Ry. v. Barber, 5 Ohio St. 541 [67 Am. Dec. 312]..
    As to adoption of rules, see Elliott Railroads, Sec. 1280.

      When there is safe way and employe adopts unsafe way, he is guilty of contributory negligence. Elliott Railroads, Sec. 1318; Pennsylvania Co. v. O’Shaughnessy, 28 N. E. Rep. 675 [122 Ind. 588]; Spencer v. Railroad Co., 29 N. E. Rep. 915 [180 Ind. 181]; Bresnahan v. Railroad Co., 18 N. W. Rep. 797 [49 Mich. 410],
    Duty not to assume unnecessary risks. Elliott Railroads, Sec. 1313 note; St. Eouis Bolt & Iron Co. v. Brennan, 20 Ill. App. 555; St. Louis Bolt & Iron Co. v. Burke, 12 Ill. App. 369. See Elliott Railroads, Sec. 1314.
    Was bound to obey rules. Johnson v. Railway Co., 5 Circ. Dec. 290 (11 R. 553) ; Woolsey v. Railway Co., 33 Ohio St. 227. '
    When an employe with full knowledge of all regulations designed for his protection, and of the mode of business conformable thereto, acquiesces therein and continues in the service of the company, he will be held to have taken upon himself the risks incident to his employment. Pittsburg, C. & St. L- Ry. v. Eis, 1 Circ. Dec. 329 (2 R. 3).
    If an employe continues without objection or knowingly in opposition to direction, to use unsafe or unsuitable instrumentalities, he is deemed to have waived his right to damages from injurious results from such use. Ford v. Railway Co., 110 Mass. 240 [14 Am. Rep. 598].
    See pertinent language in Timmons v. Railway Co., 6 Ohio St. 105, pp. 109, 110, especially that at end of decision.
    If the plaintiff’s own testimony raises a presumption of negligence upon his part, contributing to his injury, and he offers no evidence tending to rebut such presumption, the court is warranted either in directing the jury to return a verdict for the defendant or in taking the case from the jury and entering a judgment of dismissal. Grant v. Railway Co., 6 Circ. Dec. 516 (10 R. 362). Affirmed by Sup. Ct., 54 Ohio St. 660; Baltimore & O. R. R. Co. v. McPeek, 8 Circ. Dec. 742 (16 R. 87).
    Employes assume the obvious risk of the business undertaken. Horton v. Vulcan Iron Works, 1 Am. Neg. Rep. 495. See Coal Co. v. Estievenard, 53 Ohio St. 48, 57 [40 N. E. Rep. 725].
    A person in the employment of a railroad company who discovers that the appliances with which he is working, are, or have become through use, unsafe, and continues without any special order of the company, and without making any complaint, to use the said appliances, that he will be held to have either run the risk of being injured, or to have been guilty of contributory negligence. Ballou v. Railway Co., 5 Am. & Eng. R. R. Cas.; 480, 506, note, and authorities cited ; Quironet v. A, G. S. R. Co. (Alabama), 18 Am. & Eng. R. R. Cas. 551; Fritz v. Salt Lake Gas & Elec. Co., 5 Am. Neg. Rep. 727-732. See also Cook v. Mining Co., 41 Pac. Rep. 557 [12 Utah 51]; Colorado Coal & Iron Co, v. Carpita, 40 Pac. Rep. 248 [6 Colo. App. 248]; Richardson v. Coal Co. 32 Pac. Rep. 1012 [6 Wash. 52; 20 R. R. A. 338] ; Rewis v. Simpson, 29 Pac. Rep. 207 [3 Wash. 641]; George-v. Railway Co., 19 So. Rep. 784 [109 Ala. 245].
    That company could not be expected to foresee the situation. See Enc. Raw (1 ed.) 403, note; Wabash Co. v. Rocke, 14 N. E. Rep. 391 [112 Ind. 404; 2 Am. St. Rep. 193]. See Wood’s Master & Serv., p. 740, good case. See also p. 743, note; also p. 745, and 9 Allen, p. 396. This is as to instructions to foreman to have a chip on jack.
    The rule of ordinary care in Ohio was laid down in Cleveland, C. & C. Ry. v. Terry, 8 Ohio St. 570, 581, and such has been Jhe rule ever since.
    Proximate cause : Handelun v. Railway Co., 32 N. W. Rep. 4 [72 la. 709]; 8 Am. Neg. Rep. 383; 8 Am. Neg. Rep. 352; 7 Am. Neg. Rep. 6 ; 7 Am. Neg. Rep. 353 ; 6 Am. Neg. Rep. 747; 6 Am. Neg. Rep. 376; 6 Am. Neg. Rep. 378; 6 Am. Neg. Rep. 197; 6 Am. Neg. Rep. 737; 4 Am. Neg. Rep. 490; McDonald w. Smelling, 14 Allen, 290, 299 [92 Am. Dec. 768] ; Hobbs v. Railway R. R., 10 Q. B. Ill, 122; 4 Am. Neg. Rep. 496 ; 4 Am. Neg. Rep. 404; 4 Am. Neg. Rep. 541; 3 Am. Neg. Rep. 545.
    Contributory Negligence: 4 Am. Neg. Rep. 361.
    Going into a place of danger: Frazer v. Railroad Co. (Ala.), 1 So. Rep. 85 [81 Ala. 185]; Coops v. Railway Co., 33 N. W. Rep. 541 [66 Mich. 448],
   MOONEY, J.

In the court of common pleas, Rose Whidden, administratrix, etc., as plaintiff, filed her petition and amended petition against the Rake Shore and Michigan Southern Railway Company, defendant, and therein alleged, in substance, that on June 17, 1897, her intestate, William Whidden, was in the employ of the Rake Shore and Michigan Southern Railway Company, in the shops of that company in this city and that on that day he was called from his tank upon the floor of a locomotive tender; that in the performance of that work but two men were engaged, and that the appliances used for lowering the tank was a lever jack; that at the time in question there was no rule requiring the presence of any one to superintend the doing'of the work, and that not enough men were employed in and about the doing of it to secure safety to the persons so engaged; that while so engaged, by reason of the want of a rule that should have been made by the railway company requiring three persons to be present, by reason of the absence of a superintendent, or one io oversee the work, by reason of the appliances used which were not suited to the work to be done and by reason of the fact that the bottom of the tank had been recently painted, which fact was known to the railway company and not known to William Whidden, and while so engaged, the jack slipped from under the tank and it fell upon the head of William Whidden and injured him so that he died, and the prayer is for a recovery of damages in this cause of action in the sum of ten thousand dollars.

To the petition and amended petition constituting this cause of action, there was filed by the defendant named, an answer in which it is first denied, in substance, that the defendant was guilty of any negligence as averred in the petition; and then as an affirmative defense, it is charged that whatever injury occurred to the plaintift’s intestate, was due or was contributed to by negligence of William Whidden himself; and next it is charged that at the time of his entering into the employ of the company, he signed a written contract by the terms of which he agreed to inspect all appliances that might be used in any of the duties, to the discharge of which he might be called, and that he would report any defect or insufficiency of such appliances to the company. He also further agreed that he would not permit an order or direction of any superior officer to prevent him from taking time to make such inspection, examination, or to make such report.

For a third defense, it is substantially averred that if the plaintiff was injured, as alleged, it was due to the risk assumed in the employment, or in the discharge of the duties about which he was engaged.

The plaintiff, by way of reply, denies all three of these substantive or affirmative defenses set out in the answer, and upon the issues thus joined, the case was tried to a jury, which resulted in a verdict for the plaintiff.

A motion for a new trial, one of the grounds of which was that the verdict was not sustained by sufficient evidence, was filed and was overruled. A bill of exceptions embodying all the evidence, requests to charge, the action of the court thereon, and the charge as given by the court, was filed and now error is prosecuted here by the defendant below to reverse this judgment

The errors assigned are: There was error in overruling the motion for a new trial; that the verdict and judgment are against the weight of the evidence, and not sustained by sufficient evidence; that there is error in the admission and rejection of evidence to the prejudice of plaintiff in error; that there is error in the refusal of the court to charge as requested by defendant below; and also error in the granting of the requests of the plaintiff below to charge before argument, as also in the general charge, as given.

The number of exceptions that have been called to the attention of the court are very great, and it will not be possible within any reasonable time to advert to each singly.

We may say, with reference to the objections to the evidence, that ■we find, except in a single instance, no valid ground of objection and exception by the plaintiff in error.

The question most made was, as to the completeness of the question that was put to several witnesses called as experts, where they were asked: “ Would it be safe for two persons to be assigned to do this work; would it be safe to use a lifting jack of the kind exhibited to the jury, in doing the work in the manner in which it was agreed.by witnesses on both sides that the work was done? ”

It is objected, to that question, that it was not stated: “ Would it be safe for a man whose head was under the tank at the time, or would it be safe for the man who was doing the work? ”

The plaintiff below was not bound to state his entire case in one question to the witnesses and ask whether it was safe, as ordinarily understood to be, was it safe for persons engaged in the work. To ask whether it would be safe for a person whose head was under the tank at the time it was being lowered, would not be necessary, the question being, generally, would it be generally safe for a person engaged in doing the work, being in a proper, position; and if it was believed by the defendant below that this question was incomplete and did not meet the case fully, as it would be finally met and finally given to the jury, it was quite proper and quite usual to develop any additional facts by cross-examination as was done in every instance. We find upon this line of questions and the ruling of the court permitting this question to be answered, no error to the prejudice of the plaintiff in error.

On pages 131 and 132 of the record, we find exception 70 :

Q. You may state to the jury whether or not there was any rule or instruction in this shop or in the tank shop or in the round house with reference to the use of wood — as a sort of washer between the foot of the jack and the metal, a heavy metal substance to be raised?
“ Á. Yes, sir.
“ Q. If so, how long had it been in force, or in existence ?
“ Mr. Andrews: I object to the question.
“Judge Wickham: I expect to show that the rule was communicated to Mr. Whidden; that it was not a written rule, but a verbal rule, I expect to show that he was instructed to lift.
“ Mr. Andrews: I object to that statement.
“ Court: I am inclined to think that upon this point, it would not be competent to show an oral rule communicated by Mr. Bradeen to the foreman.
“ Judge Wickham : We except to the ruling of the court.”

The effect of that action of the court was to deprive this defendant from showing that an oral rule was made, was in existence and was actually communicated to the plaintiff’s intestate in the court below. The plaintiff below grounded her right to recovery upon an oral order to do the work. Actions of this kind are most commonly grounded and are frequently sustained upon oral orders. There is no requirement of law that orders to employes in railroad shops, any more than in any other department of industry, should be directed by written rules, and we are quite clear that this question should have'been answered, .and that the exclusion of the answer under the statement was error.

After the close of the testimony, it may be said with reference to this particular question, afterwards, this .witness, in another form, was permitted to answer a question that to some extent met the offer of proof made by the defendant below, but not entirely so. While perhaps upon the record, as it stands with the other questions and answers, we would not feel that the error was such as to reverse this judgment, yet, in passing, for reasons that will appear further on, 'we desire to express the opinion that this question, in the form in which it was stated, should have been answered.

The second request of the plaintiff to charge, without reading it, because it is- lengthy, is perhaps a correct statement of an abstract principle of law, but inasmuch as it does not embody or state the necessity of any causal connection between the fact stated to be negligence and the injury here in question, it seems to be viewed as an abstract direction embodying the law of some case, but not applied by its language to this case. It could not aid the jury, and we think should not, in the form in which it was presented, have been given.

The same as to the third request; and the same as to the fourth, fifth and sixth requests of the plaintiff. Some of these are found to be incorrect statements of law. Others are found to single out particular items of evidence and to attach, as we think, undue importance to such particular items of evidence, for we do not conceive it to be the purpose of' the law to permit a charge before argument, to authorize parties to single out particular theories and particular parts of the evidence and hold them up to the jury and thus give them undue importance in the case, and certainly mislead the jury. We are all of the opinion that these requests, when piesented, should be the statement of general rules, not only correct in the abstract, but so covering the case as not to give a one-sided view of some particular theory of counsel, or to attach undue importance to some particular items of evidence.

What has been said with reference to the plaintiffs requests will apply to all but one of the requests of the defendant. The plaintiff, in her petition, had charged that several things were done and that as a result of this, or of these several negligent acts, injury happened. The defendant below, singling these out one by one, with the request to the court to charge the jury that any one of them standing alone would not, as a matter of law, entail liability. That was an unfair, misleading and improper charge to be given, as we think, to- the jury.

However, there was a request, number four, by the defendant below, which is in this language :

“ That if the jury find that the tank in question was resting at one end upon the foot of the jack, with no other support, at an elevation at that end, of from ten to fifteen inches, and that Mr. Whidden, for the purpose of reaching a piece of ‘ blocking ’ wholly within the coal pit, placed his arm and head under the tank, and that that piece of ‘ blocking > could have been procured by him with absolute safety to himself, by entering the coal-pit at its open end, a presumption of negligence on his part would arise; and that before the plaintiff can recover, the burden rests upon her to remove such presumption and show that he was exercising ordinary care by a preponderance of the evidence.”

It may be doubtful whether or not, as an abstract proposition of law, as a statement of law, applicable to all cases, this would be true; that is to say, whether the rule existed 'to the extent claimed by counsel for plaintiff in error in this case, that in all cases, when there are two ways of doing work, or of accomplishing a given result, one absolutely safe and another attended with danger, that the adoption of the plan that is attended with danger raises the presumption of the negligence of the plaintiff. But in this case, the evidence is not in dispute so far as applies to this instruction, and it amounts to a request; therefore, that if tlmre were two ways of accomplishing the work with reasonable dispatch, that is a proper qualification of the rule.

To make my meaning clear, it is always possible with absolute safety to cross a railroad track. One might be attended by a messenger sent ahead to see that there is no danger; but if, instead of doing that, and lor the purpose of pursuing his journey and his business with reasonable dispatch, he does not do it, because he does not surround himself with all precautions, and because he does not take the course that is in all situations absolutely free from danger, does not raise the presumption. But here, there is no showing in evidence but that this work to be done cuold have been done with reasonable dispatch by procuring blocking in some other way than by reaching through under the tank; and so we think that whether this request states a rule which is correct in all cases or not, under the conceded facts, or undisputed testimony, unquestioned evidence in this case, it does state a fact, and that is the purpose of an instruction to a jury, not to state a general proposition of law that is correct, but to deliver instructions which will aid the jury in arriving at a proper verdict and such as the law requires. We think this request should have been given, and that its refusal was error.

We think that the criticisms of the general charge that were made in argument are not well taken; that the general charge fairly covered the case and that in the absence of any request to make more particular statement, or in the absence of any specific objection at the time to particular language, that the general charge or the general result of the charge to the jury must have been to have given them proper information and in the light of which they should have arrived at a proper and just conclusion.

This leaves undisposed of the question as to whether or not this verdict is sustained by sufficient evidence. Many of the facts, and we think, enough of the facts to dispose of this question, are not in serious dispute, although there may be slight matters of evidence against it. From the uniform trend of the testimony, and sustained, as we think by the clear weight of the evidence, these facts may be said to have- been presented to the jury and should have been determined by them to be the controlling facts in the case, that William Whidden, plaintiff’s intestate, a young man thirty-two years of age, of more than average intelligence, employed about these shops for three years or about that time, and for one year, or for one year and more, accustomed to be called from work in the round house, which he was required to perform ordinarily, to assist in the lowering of tanks and raising of tanks from the floor of tenders; that he had on more than two dozen times used jacks and been engaged in blocking up and lowering down tanks onto the floor of the tenders; that on this day a jack was used; that it was placed under the tank, the tank being at an angle of from two-thirds of an inch to an inch to the foot; that it was placed in position by Whidden himself; and after the tank had been raised slightly from the blocking, he left the jack and the pit of the tender, got down from the tender floor onto the floor of the shop for the purpose of blocking the tank, for the general purpose of the employment; that when he got down to the side on which he was to place the blocking in position, there was no blocking there on that side; that blocking was situated in abundance at the other side of the tender; that it would have required six or eight steps for him to procure it; that, so far as the evidence shows, at that time, the jack was securely in place and there was no apparent necessity of proceeding speedily to procure the blocking; that for the purpose of gaining possession of the blocking, he reached his arm under the tank thus raised, and between the tank and the floor of the tender, he placed his head under the tank; and while in that position, for some reason not explained here, the jack slipped and the tank fell down until its further progress was arrested by the goosenecks, and caused the injury which resulted in the death of Whidden.

We have said, in sustaining the requests of defendant for charge, that these facts raised a presumption of contributory negligence of William I#. Whidden; the burden of proof then, under the well known rules of law, was for the plaintiff in the court below to remove this presumption, and that evidence, from the very requirement of the rule, must be exculpatory; it must show some reason; it must sustain some excuse ; it must appear from other evidence that while this seems to be negligence, and that it seems William 1,. Whidden took the risk, that yet under the peculiar surrounding circumstances, that the result does not follow.

We look in vain in this record for such excusing circumstances. It is in evidence, or it is suggested that the jack slipped, but it is in evidence on the part of the plaintiff below and rather emphasized, that the jack frequently slipped, and if that is true, if Whidden used it for more than two dozen times, is it not fair to presume, in the absence of all testimony to the contrary, that he knew something of the weakness of the jack in that particular? If the jack did not slip, if it was stroug and did not slip, then the cause is unexplained in the evidence. If it frequently slipped, as the plaintiff’s own testimony below tends to prove, then Whid-den should have known it.

It is suggested that the paint caused it to slip, but for two hours on that morning, or about that time, Whidden was working around that tank; he had lowered it and raised it and had placed the tank in the position which it was at the time the injury happened. Now, if this paint was not dry, if it was soft, if it was said that the jack would slip when brought in contact with it, should not the fact that he had been engaged about the tank be some evidence of knowledge upon his part ? But then, the reason appears that the jack, if it slipped, should have slipped in the opposite direction from what it did. It slipped toward its bearing instead of away from it, but certainly that manner of falling could not tend to sustain the contention made by the defendant in error here, that the slipping was due to the presence of paint.

It is claimed that two men only were employed instead of three about this work. If that is true, Whidden knew it. He went there, and there is no evidence that at any time for those two dozen times, that any more than two men were employed, and the weight of the evidence in this record shows clearly that the only difference between employing three men and employing two, is that when three men are employed the work can be done more quickly than when only two men are employed.

However, if three men had been employed, it does not appear that this injury would not have happened. If three men had been employed and one of them had been standing at this jack, still, if Whidden had placed his arm and his bead under this tank, he would not have had time, by reason oi any precaution or by reason of any warning, given at the time, to have escaped. In other words, there is no causal connection between this negligence; if there was negligence in not employing three men, and the injury that happened. The same is true with reference to rules.

Upon the whole case, while, as in all cases of this kind, we view this injury and death as a calamity to this family, yet we must recognize that the defendant below and the plaintiff in error here, is not an insurer ; that the law does not exist for the purpose of distributing the burden upon persons who are guiltless. Under the rules of law, we must hold that-Whidden, when he placed his arm and his head under this tank and was killed while he was in that position, can not recover; he could not, if he had survived, recover, aud his administratrix cannot recover, unless from the evidence there is something shown to excuse, or what seems to us to be clear evidence raising the presumption of his negligence.

Upon the whole case, for the reasons indicated, for error in excluding the evidence that has been indicated, in charging the requests of the plaintiff below that have been pointed out, and in the refusal to charge the request by the defendant, because the verdict and judgment are not sustained by sufficient evidence, the judgment of the court below will be reversed and a motion for a new trial will be sustained and the cause remanded to the court of common pleas for further proceedings according to law.

       Section 5190, Rev. Stat. — Editor.


text:
    MUNICIPAL CORPORATIONS — CONTRACTS.
    [Defiance (5th.) Circuit Court].
    Norris, Day and Mooney, JJ.

      Defiance (City) v. Council of Defiance et al.
    1. Action by City Solicitor Under Sec. 1777, Rev. Stat.
    An action to restrain a municipal corporation from paying money to a water company in pursuance of a contract, claimed to be illegal, to pay hydrant rentals for fire purposes is properly brought under Sec. 1777, Rev. Stat., by the city solicitor, inasmuch as if the contract is illegal, the payment would be a “ misapplication of the funds of the corporation ” and also “ a performance of a contract made in behalf of the corporation in contravention of the law.”
    2. Contract not Requiring Certificate Under Sec. 2702, Rev. Stat.
    A contract entered into between a city and a water company, by which the city agrees to pay hydrant rentals for water for fire purposes for thirty years, is not void upon the ground that no certificate was made by the clerk, under Sec. 2702, Rev. Stat., that there are funds in the city treasury, sufficient to satisfy the amount falling due under the contract for the full period of thirty years.
    3. Contract Invalid Without Ratifying Vote.
    Under Secs. 2435-46, Rev. Stat., 83 O. U., 146, authorizing cities of the fourth grade of the second class to contract with a water company for a period not exceeding twenty years, and Sec. 2434, Rev. Stat., requiring such contracts to be ratified by a vote of the electors thereof, an affirmative or ratifying vote of the electors is required to validate any such contract for twenty years as well as for a greater period. Therefore a contract by the city of Defiance to pay money for the use of fire hydrants for a period of thirty years without being ratified by an affirmative vote of its electors, is void.
    4. Cannot be Scaled Down in Years.
    A contract entered into by a municipal corporation with a water company for a period of thirty years without a vote of electors ratifying the same, as required by Secs. 2435-46 and 2434, Rev. Stat., is absolutely void and cannot be scaled down in years to establish its validity.
    6. City not Estopped by Acts Under the Contract.
    The fact that a city council entered into a contract with a water company to furnish water for fire purposes, for a period greater than the statute permits without a vote of ratification by the electors thereof, made payments thereon and passed ordinances and resolutions to carry out such contract, does not estop the city, by its solicitor, from maintaining an action to enjoin the further performance of such contract.
    6. Company Charged With Knowledge of City’s Power.
    An individual company or corporation in making a contract with a city council to furnish water for fire purposes for a period beyond which the council had the power to contract, is bound to know the extent of the power of such body and cannot be said to have relied to its prejudice upon any action of the council therein ; and a water company having served a municipal corporation for ten years under an illegal contract, and having received full pay therefor, cannot be heard to complain of a termination of the contract; and if the bondholders of such a company stand upon a more favorable position on the question of estoppel than the company itself occupies, this fact cannot be urged, iu behalf of the company, in an action in which such bondholders are not parties.

      7. Contract Raised by Pleadings — Judgment.
    In an action under Sec. 1777, Rev. Stat., to restrain the officers of a municipal corporation from making payments to a water company, alleging that the claims are illegal, and the invalidity thereof arises from the invalidity of the contract with the city, which is denied by the water company, claiming as assignee under a contract with another person, and that the city, having induced such company to complete the contract, is estopped, a determination of the issue requires a consideration of the contract, which is sufficiently raised by the pleadings, and if its illegality appears iudgment on the pleadings should be granted.
    Appeal.
    Geo. T. Farrell, city solicitor, and H. B. Harris, for plaintiff.
    Henry & Robert Newbergin, for defendant water company.

      For decision of the circuit court of the United States involving this contract, holding the contract valid for twenty years, see Defiance Water Co. v. Defiance, 12 O. F. D., 299.

   MOONEY, J.

This action comes into this court on appeal from the court of common pleas. The action is brought under Sec. 1777, Rev. Stat.

The petition avers as follows, in substance, that it is a petition by the city solicitor in behalf of the city, under Sec. 1777, Rev. Stat., to restrain the city council from paying to the Defiance Water Company the sum of $3,142.50, claimed by the water company to be due it from the city for the six months prior to January 1, 1898, for hydrant rentals for fire purposes. The ground of the complaint is that the rental of such hydrants by the city was under a contract named in the petition and that the contract is illegal, for the reason that the term of the contract is for thirty years, and that it was not ratified by vote of the people, and also for the reason that it does not appear that at the time the contract was entered into in August, 1887, funds were certified by the city clerk to be in the city treasury sufficient to satisfy the amount falling due for hydrant rentals for the full period of thirty years thereafter, the term of the contract.

To the petition stating these facts there was filed in this court by the defendant water company, an answer which denies the specifications contained in the petition as illegal, and for a further defense it avers, substantially, that there was a contract entered into between the council of the city of Defiance and one Bullock, and that the water company has succeeded to all the rights of Bullock under this contract, and that this succession resulted from a financial embarrassment, resulting ip those creditors becoming stockholders in proportion to the indebtedness due from said Bullock; that Bullock assigned the contract to the corporation ; that the city induced the corporation to continue and complete the construction of the plant; that the corporation completed the plant and that the plant was duly tested in accordance with the terms of the contract, and satisfactorily stood the test on March 5, 1889; the works were then accepted by the city council. That the . actual cost of the construction of the plant, together with the extension made from time to time, and existing at the time of the commencement of this action was $196,000. That bonds were issued to the creditors of said Bullock and were received by them relying upon the revenues to be derived from the city under this contract topay'interest and principal on said bonds, and without said income the bonds cannot be paid by the company. That the city, for some time prior to the commencement of this.action, was using, from the time of the test to the beginning of this action, the water being plied from one hundred and thirty hydrants at forty dollars per year, and thirty-one additional hydrants at thirty-five dollars per year. That said city now has possession and control of said hydrants, and refuses to surrender such possession. That at all times since the test and acceptance of said work, the water company has fully complied with its duties under said contract, so far as the city is concerned, and has rendered bills semiannually, all of which, with the exception of one bill, have been paid in full; and as to this one bill all has been paid thereof excepting five hundred dollars, which amount is in dispute between the parties, but the dispute is not on the ground of the invalidity of the contract. That this action has been brought by the city solicitor at the instance of the city council, and by collusion of that body for the sole purpose of evading the payment of the claim. For all these and many other matters not set out it is averred that the city should not now be heard to assert the invalidity of the contract, in question, if there is in fact any invalidity.

It is further averred that there is another action between the water company and the city in the circuit court of the United States for the northern district of Ohio, in which it is by the company sought to collect the rentals from the city, and that an adverse ruling here as to the contract would prevent a recovery by the company in that suit.

Plaintiff replies at great length and takes issue with defendant anew as to the validity of the contract, the sufficiency of the test and performance by the company as claimed in the answer.

The first question is whether this action is properly brought by the solicitor under Sec. 1777, Rev. Stat. That section reads as follows: “ He shall apply in the name of the corporation, to a court of competent jurisdiction for an order of injunction to restrain the misapplication of funds of the corporation, or the abuse of its corporate powers, or the execution or performance of any contract made in behalf of the corporation Jin .contravention of the laws or ordinance governing the same, or which was procured by, fraud or corruption. And he shall likewise whenever an obligation or contract made on behalf of a corporation granting a right or easement or creating a public duty, is being evaded or violated, apply for the forfeiture or the specific performance of the same as the nature of the case may require. And in case any officer or board fails to perform any duty expressly enjoined by law or ordinance, he shall apply to a court of competent jurisdiction for a writ of mandamus to compel the performance of such duty.”

Without discussion or extended comment, we are of the opinion that if the cause of action stated in the petition, exists, this action is maintainable by the solicitor under this section ; for if the contract is invalid, and is illegal and the city council is about to pay money under that contract to the water company, we think that such payment is both a “ misapplication of the funds of the corporation,” and also a performance of any contract made in behalf of the corporation in contravention of the law.” For, under this contract as averred, the performance of the city consists in the making of the payments from time to time.

It is averred in the petition and claimed in argument, that the alleged contract here is void for the reason that no certificate was made by the city clerk, under the provisions of Sec. 2702, Rev. Stat. It was held by this court in the case of Lima Gas Works v. Lima, 2 Circ. Dec., 396 (4 R. 22), and also in the Tiffin Water Works case, decided by this court in December, 1900, and not reported, and in other cases, that Sec. 2702, Rev. Stat., does not apply to contracts of the kind here in question. Any other construction of that section, or any other holding here, would be fraught with such absurd consequences as, it mu t be believed, the legislature, even in the haste and whirl of its closing hours, never could have intended.

It is claimed that the contract is invalid because not ratified by the vote of the electors of the city, and because the term of the contract as expressed in it is thirty years.

At the time the contract was entered into the act of May 12, 1886, 83 O. L., 146, Bates’ Rev. Stat., Sec. 2435-46, et seq., was in force, and that act is as follows : “ Be it enacted by the general assembly of the state of Ohio, that all cities of the fourth grade of the second class in which water works are now erected, constructed and existing, or in which they may hereafter be erected, whether such water works are owned by an incorporated company or by an individual or individuals, shall have power to contract with such company, owner, or owners of such water works for supply of water for fire purposes, streets, squares and other public places within the corporate limits, and for supplying the citizens of such municipal corporation with water, or any or either of them for a term not exceeding twenty years.”

At the same time the act of January 29, 1885, 82 O. L., 11, Sec. 2434, Rev. Stat., was in force and is as follows : “Any municipal corporation, except cities of the first grade of the first class, shall have power to contract with any individual or individuals, or any other incorporated company, for supplying water for fire purposes, or for cisterns, reservoirs, streets, squares and other public places within the corporate limits, or for the purpose of supplying the citizens of such municipal corporation with water for such time, and upon such terms as may be agreed upon. Provided, that no such contract shall be executed or binding upon any such municipal corporation until the same shall have been ratified by a vote of the electors thereof, at a special or general election, and such municipal corporation shall have the same power to protect any such water supply and prevent the pollution thereof as though such water works were owned by said municipal corporation.’'

Assuming that both these sections may exist and be in full force side by side, then the rendering would be that Defiance, on August 7, 1887, could make a contract of this nature with the owners of the water works plant, for a term not exceeding twenty years thereafter, through its council and without ratification by the electors, but that if a longer term was agreed upon, then the contract would not be binding until ratified by vote, as provided in Sec. 2434, Rev. Stat., which is the act set out in Sec. 2435, Rev. Stat., 82 O. L., 11. A longer term was agreed upon, and the contract in our opinion did therefore require the ratifying vote of the electors, unless the contract can be scaled down to twenty, years. It remains to be said, however, that in the opinion of the majority of the court under the two sections heretofore referred to, it would require an affirmative or ratifying vote on the part of the electors in order to validate the contract for twenty years, as well as for any greater period.

We are of the opinion that this last question as to scaling down to twenty years is settled by the decision of our Supreme Court in Wellston v. Morgan, 59 Ohio St., 147 [52 N. E. Rep., 127]. We can see no valid ground to distinguish the Wellston v. Morgan case, from the case at bar. It is true that in Wellston v. Morgan, the gas company was the plaintiff and sought affirmative relief. This relief was denied upon the ground that the contract for ninety-nine years when one for ten years only was authorized to be made, was absolutely void. If to the company as plaintiff the contract is void, we are not able to see why the same result should attend the assertion of the contract as defendant, or the same results not attend the pleading of the same fácts by the solicitor (representing the taxpayers), and against both the council and the company. Placing upon the statute cited the construction most favorable to the water company (here), we find that the contract before us was invalid because not ratified by a vote of the electors as required by Sec. 2434, Rev. Stat.

Is the solicitor suing in tlie name of the city estopped to set up these facts ? We think not, for the reason set out in the opinion of Bradbury, J., in Lancaster v. Miller, 58 Ohio St., 558, 575 [51 N. E. Rep., 52]: “The evils against which these restrictive statutes are directed are municipal extravagance and the negligence and indifference of municipal officers. They were designed for the protection of municipal taxpayers generally, as well as to guard against excessive special assessments against property to pay for local improvements. The mischief arising from municipal prodigality and the growth of municipal debts that attended thereon, called loudly for an efficient remedy. These restrictive statutes are the answer to that call. They embody that principle of sound public policy which seeks to enforce economy in the administration of public affairs. The judicial tribunals of the state should administer these laws so as to advance the purpose thus sought to be accomplished. Contracts made in violation of these statutes should be held to impose no corporate liability. Persons who deal with municipal bodies for their own profit should be required at their peril to take notice of limitations upon the powers of these bodies which these statutes impose.

“ The corporation should not be estopped by the acts ot the officers to set up these statutes in defense to contracts made in disregard of them. It would be idle to enact those statutes, and afterward permit their practical abrogation by neglect or other misconduct of the officers of the municipality. If such effect should be given to such acts of municipal officers it would defeat the operation of the statutes. The strict enforcement of these provisions may occasionally cause instances of injustice; it is possible that municipal bodies may secure benefits under a contract thus declared void and refuse to make satisfaction. In the nature of things, however, these instances will be rare. Those who deal with public agencies entrusted with the management of municipal affairs, usually experience liberal treatment. Such agencies are not stimulated to acts of injustice by cupidity. Self-interest, that great motive to over-reaching, is absent. If, however, cases of hardship occur, they should be attributed to the folly of him who entered into the invalid contract. The gateways of municipal prodigality should not be left wide open, because an attempt to narrow them may cause an occasional instance of seeming hardship.”

If we are right in our conclusion that a vote of ratification is required, then the contract is invalid, not because the council was unwilling, but because the council however willing has not the power to contract to bind the city. Would it not be singular to say that the council cannot by its direct action bind the city by this contract, but by indirection, by passing other ordinances and resolutions, and by making payments from time to time, that which it could not do by one ordinance, what it is forbidden from doing directly by one ordinance, it may indirectly accomplish by passing two or three or any greater number of ordinances. This legislation may require concurrence of a majority of the council with a majority of the voting electors, where the question is submitted, and inasmuch as the council had not the power to make this contract directly we hold it did not have the power by indirection to estop the city.'

The water company could not have relied to its prejudice upon any action by the council in this behalf. It was dealing with a public board, and was bound to know the extent of the power of the board. The service of the city for ten years was no detriment to the company. It was paid from time to time and full payment is not detriment.

If the bondholders as such occupy any more favorable position upon the question of estoppel than the company does, it remains only to be said that the bondholders are not now before the court, and the water company has no standing here to urge any matter peculiar to and affecting only the bondholders.

It is urge.d by counsel that the pleadings are not sufficient to raise any question as to this contract. We do not so read the pleadings. The invalidity of the water company’s claims is said to arise from the invalidity of the contract, under which the claim is made. This issue absolutely requires a consideration of the contract. Whether the defendant water company may recover for water furnished at its fair value is not now before the court, and it is therefore both unnecessary and improper to express any opinion as to that question. Sufficient unto each lawsuit are the issues thereof.

Upon the whole case we are satisfied and therefore hold that the alleged contract between the city of Defiance and the water company referred to was never of any legal force or any validity, and the city in this action is not estopped to assert its invalidity as against the defendants here.

It follows, therefore, that when the defendants closed their case and when the plaintiff moved for judgment, the motion should have been made and is now sustained.

The ruling of the motion for judgment renders it unnecessary to pass upon defendant’s objections to the testimony offered by plaintiffs in rebuttal.

The motion of plaintiff for judgment is sustained.

Finding and judgment for plaintiff as prayed. A. perpetual injunction is granted; costs to the defendant water company; judgment for costs and case remanded for execution.


author: HAYNES, J.

text:
    POLICE COURT — NEW TRIAL — JURY TRIAL — WAIVER.
    [Lucas (6th) Circuit Court,
    October 19, 1901.]
    Haynes, Parker and Hull, JJ.
    Georgie Evans v. State of Ohio.
    1. Motion eor New Trials in Police Court.
    Under Sec. 1793, Rev. Stat., dividing police courts into monthly terms, and Sec. 5307, Rev, Stat., requiring motions for new trials to be filed during the term, etc., a motion for a new trial therein, not filed for nearly six months after rendition of judgment, is not in time to give the police court jurisdiction to hear and determine it.
    2. Police Judge — Credibility oe Witnesses.
    In trials in the police court, the judge of that tribunal, having an opportunity to see the witnesses, is best qualified to judge of the credibility, and his findings, where the evidence is conflicting, should not be disturbed by a reviewing court, as against the weight of the evidence, unless manifestly wrong.
    3. Presumption that Jury Trial was Waived.
    A police court is a court of record and as such under Sec. 1788, Rev. Stat., has jurisdiction of a prosecution for assault and battery under Sec. 6823, Rev. Stat., defining the offense and prescribing the penalty therefor. Hence, the circuit court will presume, trial by jury being necessary unless waived, that the jury was waived, unless;.by a proper bill of exceptions, it appears that the accused either demanded such a trial or refused to waive the right thereof, and was not so tried.
    4. Waiver Should Appear oe Record.
    In case of a trial in the police court, such as for assault and battery, in which the accused has the right of trial by jury and waives it, the only safe and proper rule for such court is to have the fact noted upon the record.
    Heard on Error.
    D. H. Commager and King & Tracy, for plaintiff in error.
    Wm. H. Ulery, Assistant Prosecuting Attorney, for the state.
   HAYNES, J.

There are two petitions in error filed in this court, one in cause 2504 and the other in 1582. Upon the filing of the first petition in error, a suspension of the execution of sentence was had in the case. As appears by the second record, the defendant appeared in the police court and filed a motion for a new trial on the ground of newly discovered evidence, and submitted a number of affidavits to the court in support of that motion. The court overruled that motion, as the record shows, and that action of the police court was affirmed by the court of common pleas. It is not stated in the journal entries the grounds upon which the police court overruled the motion or upon which the court of common pleas affirmed the action of the lower court, though it said in argument that in both cases it was done because the motion was not filed in time.

The police court is divided into monthly terms, or twelve terms a year. Section 1793, Rev. Stat. This case was tried in January last, and final judgment was rendered on the twenty-fourth day of that month. The petition in error was filed in June, a suspension of judgment being had on June 17, 1901. It will be observed, therefore, that about six months had elapsed between the time of final judgment in the police court and the filing of the motion for a new trial. The statute (Sec. 5307, Rev. Stat.) governing the course of procedure in the police court provides that all motions must be filed during the term, and, except upon the ground of newly discovered evidence, within three days after the trial. The point is made by the attorney for the state that this motion was not filed in time, and the court had no jurisdiction to hear and determine or to allow it. We hold the position taken is correct, and therefore affirm the action of the court of common pleas in sustaining the police court in that regard, and decline to enter into an examination of the affidavits that were filed.

In the first case it appears that an affidavit was filed in the police court, charging the defendant, Georgie Evans, with assault and battery, the prosecution being in the name of the State of Ohio, under the statutes of the state, and the person filing the affidavit being one Gypsy Eonsdale. Thereupon the defendant was arrested, an information was . filed in the police court by the prosecutor, and the record discloses this course of proceeding:

“Affidavit filed January 24. Information filed January 25. Defendant in court ready for trial. Plead not guilty. Trial had. Defendant found guilty. Defendant excepts. Continued to January 29 to file motion for a new trial. January 29, defendant in court. Motion for a new trial filed January 28; same submitted this 29th day of January, and motion overruled. Defendant excepts. Defendant is sentenced to sixty days in the work-house and pay the costs, taxed at $6.35, stand committed to work-house until paid. Defendant excepts.”

■ Thereupon the defendant was given thirty days in which to prepare a bill of exceptions, which was presented, signed, and filed in the court. The motion for a new trial was as follows: .

“Now comes the defendant, Georgie Evans, and moves"the court to set aside the verdict heretofore rendered herein, and for a new trial, for the reason that the verdict is not sustained by sufficient evidence, and is contrary to law.”

The bill of exceptions sets out very briefly in narrative form the evidence said to have been taken before the police court. We have examined this evidence very carefully, and have listened to the arguments of counsel upon that question. The testimony shows in brief and in general, that the defendant was residing on Cafayette street, and the complaining witness was a resident of her house. About midnight of the day in question the complaining witness was dressing to go down to the parlor, and while doing so, the defendant asked her to do an indecent act. What that act was is not set forth; presumably it was of such a nature that in the opinion of the court it ought not to be carried into the record. This she refused to do, and upon that some words followed, and the complaining witness started to leave the house. The defendant, claiming that she was indebted to her, proceeded to seize her clothing, and when she did so, the complaining witness, proceeding to protect herself, seized the clothing herself, and upon that an affray ensued. There seemed to have been a considerable noise and talking. There were two other females residing in the house, who seemed to be up and about the house, and they came into the room and joined in, and the re. suit was that the complaining witness left the house minus the clothing that she did not have on her person, as we understand. During the affray she was struck in the eye, and was bruised in several parts of the body, as she claimed.

The question before the court was whether or not the defendant had struck her or committed the assault upon her. The defendant claimed that she did not do it, but that one of the other girls did it, and I think one of the other girls testified that she did strike her. However, upon an examination of the evidence, hearing the witnesses, at the conclusion of the testimony, the court found her guilty, and sentenced her as appears by the record.

It is said here that it does not appear that this was a house of ill-fame. It may be remarked, however, that it does not appear by the record that it was a house of good fame. But whatever it may have been in that respect, the witnesses were before the court. The judge of the police court saw them. It may be remarked that in the administration of justice in that court they are very frequently called upon to deal with these various characters whose reputations may be said to be— not good. The judge had the opportunity to see these parties, and to decide the case from their appearance in court, and from their manner of testifying. In everything of that kind we think he woul 1 be better able to judge whether the witnesses were telling the truth, or who was telling the truth, than we would be, by simply reading this limited record, and we think we ought not to disturb his conclusions and finding of fact.

We are of the opinion that his conclusions were right. This defendant, Georgie Evans, is the one who commenced the attack; She proceeded without any right whatever to levy upon the property of this complaining witness, and the complaining witness endeavored to retain possession of it. It is admitted by all that the complaining witness was injured. She came into court having all the appearances of having suffered from the effects of this attack; it appearing that she had been injured, that much going to sustain her position that she had been injured in an affray, an assault and battery. It would seem that the defendant did not go into that room with any very peaceful intentions, or with any very pleasant feelings, towards the complaining witness. It is true that the defendant denies that there was any request that she should do an indecent act. It was said by the other witnesses that the defendant states the truth in that respect. We shall not disturb the verdict on the ground that it was not sustained by sufficient evidence.

Upon the hearing in this court a question was raised that is of more importance. It is said it was not raised in the courts below. Whether it was or not does not appear from the record. It has been very fully argued, and realizing the importance of it, we asked counsel for full briefs upon the subject.

It will be noted that this offense is now and has been, perhaps, ever since the passage of the criminal statutes of the state, an offense punishable by imprisonment, the statute (Sec. 6823, Rev. Stat.), being that the convicted person may be fined $200 or imprisoned in the county jail for a period not exceeding six months. It was an offense at common law punishable by fine and imprisonment. It appears by the record, as I have already read, that the defendant pleaded not guilty, and that a trial was had, and that the defendant was found guilty; but beyond that the record is silent.

We have spent a great deal of time upon this question, and have examined all the statutes that seem to have any bearing on the point raised or upon the decisions that were cited by counsel. I shall not attempt to go through all of them, but confine myself briefly to so much as we think is necessary to decide the question before us.

Section 1788, Rev. Stat., provides that—

“ The police court shall have jurisdiction of any offense under any ordinance of the city, and of any misdemeanor committed within the limits of the city or within four miles thereof, to hear and finally determine the same, and impose the prescribed penalty; and in cities of. the first grade of the second class the court shall have jurisdiction of any offense under any ordinance of the city and misdemeanor committed within the limits of the county in which such city is situated, to hear and finally determine the same and impose the prescribed penalty; but cases in which the accused is entitled to a trial by jury, shall be so tried ■unless a jury be waived."

The constitution provides that in the trial of crimes and misdemean. ors the accused shall have the right to be tried by a jury and meet his witnesses face to face. That provision of the constitution is applicable to cases of this kind. The statute, I may say in passing, makes a slight difference between the powers of the police court and a magistrate. Magistrates have the right to examine and bind over parties to the court. In cases of felony the police court has the same power ; but, so far as I can find, the only power the magistrate has is to bind the party over, except in cases where the party waives a trial by jury, in minor offenses and submits to be tried by the court. In the constitution of the police court, however, where the defendant pleads not guilty, if the accused, does not waive a trial by jury, the court has the right to summon a jury, and proceed to try the case to the jury. The only power the magistrate has, where the accused party has the right of trial by jury and does not waive a jury, is to bind the party over to a higher court.

The question is, whether or not this record should not have shown that, before the 'court proceeded to the trial of the case, the accused waived a trial by jury. Most certainly, in the proper course of the proceedings, it should be put in the record. The clerk in this particular. case has omitted it or overlooked it.

I had thought upon the opening of the examination of the case, that it being a jurisdictional question, it would be the duty of the police court, unless trial by jury was waived, to bind the accused over to a higher court, but that court had the right to call a jury to try the case and render final judgment, where a jury was not waived. The statute I have read shows that the police court had full jurisdiction of the case; the Supreme court has held' that that court is a court of record. So we have a case where the court had jurisdiction of the crime and of the person, and a court that is a court of record; and, therefore, the general rule may be invoked, that in a court of record where jurisdiction is shown, it will be presumed that all the necessary proof was made or things done in order to enable the court to arrive at the judgment at which it did arrive, unless the contrary is shown ; that is to say, it may be said that that principle should be invoked in favor of the waiver of a jury. The courts will presume that a jury was waived unless by a proper bill of exceptions it is shown that the party demanded his right to a trial by jury, or unless it is shown that he refused to waive his right, which amounts to the same thing.

I thought at first that the rules in regard to civil cases would have a bearing upon this question, but I find upon an examination of the decisions of the Supreme Court and the statutes this state of facts:

Section 5130, Rev. Stat., provides: “ Issues of law must be tried by the court, unless referred as hereinafter provided; and issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial be waived, or a reference be ordered as hereinafter provided.”
Section 5204, Rev. Stat., provides that: “In actions arising on contract the trial by jury may be waived by the parties, and in other actions with the assent of the court, in the following manner :
“ 1. By the consent of the party appearing, when the other party fails to appear at the trial, by himself or attorney.
“2. By written consent, in person, or by attorney, filed with the clerk.
“ 3. By oral consent in open court, entered on the journal

The case of Bonewitz v. Bonewitz, 50 Ohio St., 373 [34 N. E. Rep. 332; 40 Am. St. Rep. 671], went to the Supreme Court upon a journal entry reading as follows:

“That the cause coming on for trial came thereupon the parties and their attorneys, and neither party demanded or waived the interposition . of a jury, but without objection submitted the cause to the court upon the pleadings, evidence and argument of counsel.”

It was an action upon a written obligation. The judge delivering the opinion of the court says :

“ To sustain the judgment of the common pleas, it must appear, either that a jury was waived, or that the issues were such that the cause could of right be tried by the court without a jury.”

He then cites the statutes which I have read, Secs. 5130 and 5204, Rev. Stat., and held that inasmuch as it appeared that the parties appeared in court and submitted the case without a jury, that was in substance an entry upon the journal of the waiver of a jury, because if the party submitted the case to the court, he consented that the court should try it. In many other states the statutes provide that the court may try the case if a jury is not demanded, making it obligatory upon the party, if he desires a jury, to demand it; in others, as appears in the case, Bonewitz v. Bonewitz, supra, the court may hear the case only upon consent being entered in writing.

After a very full consultation upon the question, and examination of it, whatever our own views of it may have been in the first instance, we think the case is decided by the Supreme court in Billigheimer v. State, 32 Ohio St. 435. In that case, Billigheimer had been prosecuted under a statute of the state in the name of the state for performing common labor upon the Sabbath. His defense was that he was an Israelite, and that the Sabbath to him was on Saturday, and he had a right to work on Stmday. According to the provision of the statute at that time the penalty was the imposition of a fine not to exceed <§5.00. The statute, however, has been changed, and it is now a matter of imprisonment. The statute, however, with regard to the police court of the city of Cincinnati was the same then as it is now, and the accused was required to be tried by a jury unless he waived the jury. In that case the record was silent as to whether the accused waived a jury and showed that the party refused to plead, and thereupon the court entered a plea of not guilty for him, and proceeded to hear the case and to the imposition of a fine. The question was raised whether or not the party could waive a jury at all. It was claimed that under the provisions of the constitution he must be tried by a jury, and the decision, which is quite a lengthy one, enters very fully into a discussion of that question, holding, after a citation of many authorities, that in cases of misdemeanors a jury might be waived. It is well known that in cases of felony the Supreme Court of this state have held that the accused cannot waive a jury; that he must be tried by a jury. The Supreme Court say at page 441 in this case:

“We think, therefore,.that as to minor offenses there can be no doubt but that defendant can waive a jury and submit to a trial by the court. The police judge has the power to hear the cause if a jury has been waived. * * * The only question, therefore, is, did the defendant waive his right. As has been said, the record indicates nothing on the subject. It merely shows that, when the court ordered the plea of not guilty filed, the cause proceeded and evidence was heard. It does not show that defendant demanded a jury, nor that he excepted to proceeding without one. This failure to avail himself of his rights must be held to be a giving of consent.”

It has been said that that was a minor offense, but that makes no difference in this particular case, because the court had no right to try this party, under the statute, unless he waived a jury. But the decision is a decision upon the point that if the record does not show that he demanded a jury, it must be held to be a waiver of that right; and that I take to be true, whether it be a statutory right or a constitutional right.

There is an early case, decided in 1854, which went up from this county, Dailey v. State, 4 Ohio St. 57, in which there was a prosecution that went up from this county, being a prosecution before the probate judge; and the question there discussed was as to whether the accused might waive a jury trial. The decision was by Judge Kennon, a very able and very conservative lawyer:

“ Is the statute, authorizing the probate judge to try the issue upon a plea of not guilty, constitutional ? By section 5 of the bill of rights, in our present constitution, it is provided that the right of trial by jury shall be inviolate. By section 10 it is provided that in any trial, in any court, the party accused shall be allowed to have a speedy public trial by an impartial jury.
“ The probate act confers certain criminal jurisdiction on the probate court, and then provides that, upon a plea other than a plea of guilty, if the defendant does not demand a trial by jury, the probate judge shall proceed to try the issue.”

Then he goes quite fully into the question, and holds that the accused was not deprived of the right of trial by jury, because he had not demanded it, which it was his duty to do if he desired a jury trial.

We are of the opinion, as stated before, that Billigheimer v. State, supra, settles the question, and that the judgment of the court of common pleas should be so affirmed, and it is so ordered.

We have said already as to the second case, that we have not looked into the record because it was not filed in time. It appears, however, that if we had looked into it, we would have found among the affidavits filed one made by the defendant herself, wherein she states that she waived a trial by jury before the police judge. It seems, therefore, that the error that has arisen here has been the omission of the clerk of that court to note that fact. We are clearly of opinion that the only safe and proper rule is for the police court to have that fact noted upon the record, because by the statute the court has no power whatever to try the defendant except he waives a trial by j ury.