text:
    CRIMINAL LAW — VENUE.
    [Cuyahoga (8th) Circuit Court,
    February 17, 1908.]
    Marvin, Winch and Henry, JJ.
    Joseph Noonan v. State of Ohio.
    Proper Venue Required Shown to Convict for Failure to Properly Provide for Child.
    In order to convict for failure to furnish necessary and proper food, clothing and shelter for a child, the state must show that the offense was committed within the county where the trial was had.
    [Syllabus by the court.]
    Error .

      Philip E. Hintz, for plaintiff in error.

      Frank E. Stevens, for defendant in error.
   WINCH, J.

Plaintiff in error was convicted in the police court of the city of Cleveland of an offense commonly known as neglecting children, the punishment for which is provided by Sec. 6984a R. S. (See. 12970 G. C.). His conviction was affirmed by the common pleas court.

The affidavit filed in the case alleges that the offense was committed “on or about August 17, A. D. 1906 (the date of the affidavit), and from January 14, A. D. 1905 (the date of the child’s birth), until said August 17, A. D. 1906, at said city and county.”

The statute requires the state to show that the accused “wilfully, unlawfully or negligently fails to furnish necessary and proper food, clothing, or shelter for such child.”

The bill of exceptions shows that the child was born in Cleveland, but later taken by its mother to her parents “on a farm” where it has since remained, cared for by them, with some little help from the mother. The child is well taken care of, but plaintiff in error has never contributed to its support.

Where the farm is, is not shown. It does not appear that it is even in the state of Ohio or the United States. It may be in Canada, for aught the record shows, and on that farm the child has been ever since its mother took it there, about February, 1906.

It was further developed upon cross-examination of the mother that when she first asked the accused to give her something for the support of the child, it, the child, was with her parents.

In this state of the record we are compelled to say that the state failed to show that the offense was committed within the jurisdiction of the police court of the city of Cleveland and for that reason, the judgment not being sustained by sufficient evidence, the judgments of the common pleas court and the said police court are reversed and the cause remanded for a new trial,

Marvin and Henry, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    INNKEEPERS.
    [Cuyahoga (8th) Circuit Court,
    April 1907.]
    Marvin, Winch and Henry, JJ.
    Edmund Hughes v. Leonard W. Crawford.
    Mutual Liability of Boardinghouse Keeper for Property of Boarder.
    A boarder, as well as his boardinghouse keeper, is required to exercise ordinary care of property left in his room which may attract thieves. ' •
    [Syllabus by the court.]
   WINCH, J.

Plaintiff was a boarder in the house of defendant, who kept a few boarders. One morning plaintiff left his watch in his room and his purse with some money in it in his clothes hanging up in his closet, and went to his work.

There was no lock on the door of plaintiff’s room.

Sometime that day another man applied for board and was assigned a room near plaintiff’s in which he remained several hours. A lady member of the family having occasion to use the new boarder’s room, asked him to.step into plaintiff’s room temporarily, which he did, afterwards leaving the house and never returning. "When plaintiff came home at night his watch and purse were gone. He brought his action against the boarding house keeper to recover their value. The trial judge directed a verdict for the defendant and the case is now here for review.

Conceding that boardinghouse keepers are bound to exercise ordinary care of the property of boarders left in their rooms of which the former have a certain supervision ahd control, and that the degree of ordinary care is not that degree of care as is demanded of an ordinarily prudent man under similar circumstances, there.was enough evidence in this case to go to the jury, unless the plaintiff himself was so careless and negligent regarding his own property, that a verdict was rightly directly against him.

On this point it appears that plaintiff knew that defendant was accustomed to admit strangers to his house as boarders without inquiry concerning them, for he had been so admitted himself. He knew there was no lock on his door; he knew the family and others in the house could and did make some use of his, room, or at least, had free access to his room. Knowing all this he deliberately left his watch in plain view in his room, and this, the evidence shows, he was accustomed to do. Leaving such small objects of value in plain sight, unprotected, we think was not such care of his own property as plaintiff should have taken of it. It created a temptation of theft.

As there was no evidence in the case tending to show that any member of,defendant’s family took the watch and purse, we think the judgment was properly against the plaintiff and it is affirmed.

Marvin and Henry, JJ., concur.


text:
    INSURANCE.
    [Cuyahoga (8th) Circuit Court,
    April, 1907.]
    Marvin, Winch and Henry, JJ.
    Continental Casualty Co. v. Vernie-Johnson.
    Waiver of Condition of Health Policy must be Pleaded.
    Where one of the conditions of a health policy was that premiums should be paid on the first day of each and every month in advance, to entitle the policp holder to prove a waiver of this condition he must plead it.
    [Syllabus by the court.]
   WINCH, J.

The judgment in this case seems to be warranted by the facts, if they were properly before the court, but a reversal is required because one of the technical rules of pleading was violated.

It is confessedly better that salutary general rules should be universally applied than that an occasional violation of them should be permitted in particular cases.

Vernie Johnson brought his action to recover on a policy oí health insurance. In his petition, among other things, he alleged that he “well and truly kept and performed all the conditions of said policy on his part to be performed.”

> The company’s answer traversed this allegation.

The policy provided that the insured should pay the company the required premium on or before the first day of each and every month, in .advance, during the life of the policy, that the insurance should continue in force only so long as the premiums should be paid as required on or before the first day of each month, in advance, without notice, and—

“That the acceptance of any past due or delinquent premium is optional with the company, and shall not in any case be a waiver'of the forfeiture of this policy, but shall be continuous and have the same effect as if a new application in the same terms as the last preceding one were then made and a new policy subject to the warranties and agreements of such new application, issued at 12 o ’clock noon, standard time, on the day following such acceptance of such past due premiums, and that for the payment and remittance of such past due premiums the insured constitutes the local treasurer his agent. ’ ’

At the hearing it was conceded that the insured did not pay the last premium due before he was taken sick, until six days after the first of the month.

The insured thereupon undertook to show that he was prevented from making said payment by the negligent acts of the company and that they received said premium without objection, though paid six days late. This evidence was admitted over the objection of the company. While we think the evidence thus admitted conclusively shows that the company waived the forfeiture and the printed conditions of its policy with reference thereto, still we are constrained to hold that the court erred in admitting such evidence. The issue thus raised was not raised by the pleadings.

For condoning the error here complained of this court was reversed in the case of Eureka Fire & Marine Ins. Co. v. Baldwin, 62 Ohio St. 368, [57 N. E. Rep. 57], so we feel disposed to apply the law of that case here, though the delicacy of counsel withheld its citation to us.

The syllabus of the case referred to reads as follows:

“Where a party avers that he has performed all the conditions of a contract to be by him performed, his proof upon the trial must show such performance in order to entitle him to a recovery. Under such an averment it is not competent to prove a waiver of such conditions. If the waiver of conditions is relied upon, such waiver must be averred in the pleadings. ’ ’

For error in the admission of evidence the judgment is reversed and the same is remanded for a new trial.

Marvin and Henry, JJ., concur.


text:
    DEATH — HUSBAND AND WIFE.
    [Cuyahoga (8th) Circuit Court,
    April, 1907.]
    Marvin, Winch and Henry, JJ.
    John W. Clawson, Admr. v. Samuel Briggs.
    Estate of Married Woman Liable for Her Funeral Expenses.
    The estate of a married woman, who dies leaving property, is primarily liable for her funeral expenses, and where the husband pays them he may recover them from her administrator.
    [Syllabus by the court.]
   WINCH, J.

In this ease we hold that in Ohio the estate of a married woman, who dies leaving property, is primarily liable for her funeral expenses, and, where the husband pays them, he may recover them from her administrator.

We follow the reasoning of the opinion, of Holmes, J., in Constantinides v. Walsh, 146 Mass. 281 [15 N. E. Rep. 631; 4 Am. St. Rep. 311].

The common pleas court being of the same opinion, its judgment is affirmed.

Marvin and Henry, JJ., concur.


text:
    STREET RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    February 5, 1912.]
    Marvin, Winch and Niman, JJ.
    Angela M. Harris v. Cleveland Electric Railway.
    1. Street Car no Greater Right on Street than Pedestrian or Vehicle which Motorman Must Observe.
    A street car company has only equal rights with the driver of a horse, or a pedestrian, at a street crossing, and therefore it is the duty of the motorman as he approaches a street crossing, to have his car under control and to keep a constant lookout, not only ahead, but also to the right and left, so as to discover persons upon the track or approaching it without noticing or heeding the approaching car, so that he may allow them to pass over in safety.

      2. Motorman Cannot Excuse Failure to See Person in Danger Unless Duty Calis His Attention Away.
    A motorman can excuse bimself for not seeing a person in danger at a crossing when in the exercise of proper care he ought to have seen him, only by showing that at the moment, his attention was attracted by some other matter in the line of his duty.
    3. Duty of Motorman Requires Effort to Save Driver of Horse Running Away.
    Although plaintiff’s horse was running away and she could not control it, yet if the motorman saw her and could have slowed up sufficiently to let her pass, it was his duty to do so, and if he failed in this duty, that failure was the proximate cause of the accident.
    [Syllabus by the court.]
    Error.

      A. Lawrence and H. F. Foyer, for plaintiff in error.

      Squire, Sanders & Dempsey, for defendant in error.
   WINCH, J.

This was a personal injury damage ease, verdict for the defendant being directed at the close of plaintiff’s evidence.

The accident happened at the junction of Biverside avenue with Detroit avenue, in the city of Lakewood, toward the close of the afternoon of October 12, 1906. The plaintiff was driving northerly on Biverside avenue, when her horse became unmanageable and ran away with her. As she approached Detroit avenue she saw a car of the defendant company approaching from the east at a high rate of speed and realized that she was apt to be struck by it, unless it slackened its speed. She held tightly onto the lines and managed to turn her horse toward the west at the corner and had got about fifteen or twenty feet from the corner when the car struck both the horse and buggy on their right side and she was thrown out and seriously injured.

There was evidence tending to show that there was a view across the corner from a point on Detroit avenue 250 feet east of Biverside avenue to a point on Biverside avenue 150 feet south of Detroit avenue, unobstructed except by a small office building directly at the corner.

The plaintiff testified:

“I could see the Detroit avenue car approaching, and I screamed to warn the motorman that I could not help myself, I first saw the Detroit avenue ear when I was about one hundred and fifty feet from the corner. The car was about two hundred and fifty feet .away, if not more. There was nothing by which my view was obstructed. I looked at the motorman in charge of the car, and he was looking at me. I could see across the corner there. He was facing towards me. I tried to hold my horse and I could not, so I tried to warn the motorman of my condition so that he would give me time to pass. I tried to stop the horse and when I could not, of course, the only place for me to turn was west. I turned the corner just as sharp as .[ could, say about fifteen or twenty feet, when the car struck me.”

Two passengers on the car testified that at a point 200 feet before the car reached Riverside avenue they saw the horse running away and unmanageable, when it was at a, point 150 feet south of Detroit avenue. One of them rang the bell when the car was 100 feet from Riverside avenue, but the motorman did not slacken the speed of the car, which was running at a rate of from twenty-five to thirty miles an hour.

There was no evidence introduced to show within what distance a car running at that rate of speed might be stopped.

The plaintiff claimed that the accident was due to the excessive rate of speed at which the car was running, the neglect of the motorman to have it under control as he approached the crossing and his negligence in not noticing her danger in time to save her.

It is said that the trial judge took the case from the jury because he thought the running away of the horse and not the high rate of speed and negligence of the motorman, was the proximate cause of the injury.

It is well settled law, in this state at least, that a street car company has only equal rights with the driver of a horse, or a pedestrian, at a street crossing, and therefore it is the duty of the motorman as he approaches a street crossing, to have his car under control and to keep a constant lookout, not only ahead but also to the right and left so as to discover persons upon the track or approaching it without noticing or heeding the approaching car, so that he may allow them to pass over in safety.

Thus, it was held in the case of Toledo Street Ry. v. Westenhuber, 12 Circ. Dec. 22 (22 R. 67), that:

“It is negligence in the motorman of an electric street car. when the car is from 150 to 200 feet from a street crossing and he sees a wagon about to cross the track, not to try to stop or slacken the speed of the car until almost at the crossing when, by so doing, the collision which ensued might have been avoided.”

This case was affirmed by the Supreme Court, no op., in Toledo Street Ry. v. Westenhuber, 65 Ohio St. 567.

In the same case it was said:

“If the driver could go upon and move more than half over the crossing before the arrival of the ear, when the car was going at full speed, obviously the car might have been controlled by the motorman, so that the driver could have passed entirely over without a collision.”

So here, though there was no evidence as to the distance within which a car going at the rate of twenty-five to thirty miles an hour could be stopped, yet, as the horse got fifteen to twenty feet to the west of the crossing before the car struck the front wheel of the buggy, obviously the collision would not have occurred if the motorman had slowed up his speed the least appreciable amount. It took no expert testimony to advise the jury of this fact. Any person of ordinary intelligence can figure it out.

While there was evidence introduced by the plaintiff showing that the motorman actually saw her and her danger in plenty of time to avert the collision, for she says she saw him looking at her, still it would be sufficient if her evidence merely tended to prove that, in the exercise of care commensurate to the occasion, he ought to have seen her, and the evidence of the two passengers, as well as her own tends to prove that.

The rule, as understood and several times applied by this court, is that the motorman can excuse himself for not seeing the person in danger at a crossing when, in the exercise of proper care he ought to have seen him, only by showing that at the moment, his attention was attracted by some other matter in the line of his duty.'

It would seem, therefore, that the plaintiff introduced evideuce tending to show negligence on the part of the motorman. Was that negligence the proximate cause of the accident?

Although the plaintiff’s horse was running away, and she could not control it, the collision was not inevitable if the motorman saw h,er and could have slowed up sufficiently to let her pass. It was then his duty to slow up, and if he failed in this duty, that failure of duty would be the proximate cause of the accident.'

The same is true though he did not see her, if, under the circumstances, in the performance of his duty to keep a lookout, he failed to see what he ought to have seen.

So, too, his negligence is .not less, but greater, if his car was running at an excessive rate of speed and was not under control.

As tending to show that a speed of from twenty-five to thirty miles an hour is excessive speed at this place, the ordinance of the city of Lakewood, limiting the speed of such cars to eighteen miles an hour, was introduced. This was some evidence to be considered in determining the defendant’s liability. “It served to give character to the act causing the injury.” Meek v. Pennsylvania Co. 38 Ohio St. 632.

There was sufficient evidence in this case to go to the jury and put the defendant upon its defense.

For error in directing a verdict for the defendant, the judgment is reversed and the cause remanded for further proceedings.

Marvin and Niman, JJ., eoncui\


author: POWELL, J.

text:
    DESCENT AND DISTRIBUTION.
    [Licking (5th) Court of Appeals,
    April Term, 1914.]
    Voorhees, Shields and Powell, JJ.
    Gilbert B. Goff v. James K. Moore.
    Term, Intestate, not Personal In Application, but Applies to Property Descended .and not by Will.
    The relict of a deceased husband or wife, who leaves a will bequeathing a life estate only, permitting the fee to go where the statute sends it, dies intestate as to real estate inherited from such deceased husband or wife, and in consequence the title to such real estate passes under the provisions of Sec. 8577 G. C., and not under Sec. 8574.
    [Syllabus by the court.]
    Appeal.

      A. A. Stasel, for plaintiff.

      Flory & Flory and Kibler & Kibler, for defendant.
   POWELL, J.

So mucli of the facts in this case as are necessary to understand the issue involved are as follows:

Abner Goff died in 1896, intestate and without issue, leaving Martha Goff, his widow, surviving him. She was his sole heir at law. At his death he was seized in fee simple of 162 acres of land in this county, which is the subject of this, controversy. Martha Goff, his widow, died in May, 1907, seized of the real estate which had descended to her from her said husband, Abner Goff. Martha Goff left a will, by the terms of which she gave a life estate in said lands to her brother, Ensley Finney Haas, but made no disposition of the remainder in said lands after the termination of said life estate. The item of the will of Martha Goff disposing of said real estate is as follows :

“First: I give and devise to my brother, Ensley Finney Haas, to have and to hold during his natural life, all of the farm with its appurtenances which was owned by my husband, Abner Goff, at the time of his death, and of which I became seized as his widow, consisting of 162 acres, more or less, and situated in Washington township, Licking county, Ohio.”

There is no other reference in her will to this real estate. Ensley; Finney Haas was the sole heir at law of Martha Goff, and he died shortly after the death of his sister, Martha Goff, leaving a will by the terms of which he gave the residuum of his estate to the defendant, Allen B. Gregg. This action is for partition of the lands described, and being the 162 acres mentioned above. An issue was made by the pleadings as to the descent of the title to this land from Martha Goff, and this is the question to be determined in this action.

Martha Goff took title to this land by virtue of Sec. 8574 G. C. At her death intestate and without issue, it would pass ,one-half to her brothers and sisters, and one-half to the brothers and sisters of her deceased husband, Abner Goff. If she should dispose of it by will or deed, of course, it would descend according to the terms of such deed or will. This, however, she did not do. The question peculiar to the case is whether or not Martha Goff died intestate, or testate, so as to control the descent of this land from her. It is conceded that in either event one-half of the land would descend to her brother, Ensley Finney Haas, he being her sole heir at law, and the same would pass under his will to the defendant, Allen B. Gregg. But w'hat of the other one-half? She died leaving a will, but she did not dispose of the fee of this land in her said will. If she died intestate, the second half of this land would pass to and vest in the brothers and sisters of Abner Goff, deceased, under See. 8577 G. C. If she died testate, the land would not pass under See. 8577 at all, but according to the terms of her said will. If she died testate, but without disposing of said lands in her said will, it is claimed that they would pass, not under See. 8577, but under Sec. 8574, to which it is held Sec. 8577 is supplementary. If said lands passed from Martha Goff under See. 8574, the whole of said lands would descend to her brother, Ensley Finney Haas, and no part thereof would pass to the brothers and sisters of her deceased husband, Abner Goff. But is this the true construction of said sections, or the true construction to be given to the words “die intestate,” as used in See. 8577? This court is of the opinion that such is not the true construction to be given to these words. The word “intestate,” as used in Sec. 8577, does not apply to the person alone, but to the property of which such person may die seized. Martha Goff died testate; that is, she died leaving a last will and testament, which was afterwards duly admitted to probate and record in the probate court of this county. She also died intestate as to the fee in this 162 acres of land, which had descended to her from her deceased husband. The word “intestate” not only applies to a person dying without a will, but applies also to any property which descends under and by virtue of the statutes and not by the terms of any last will and testament.

It is the opinion of the court that Martha Goff died intestate as to the real estate which she inherited from her husband, and that the title to such real estate would pass and descend in accordance with the terms and provisions of Sec. 8577, and not according to the terms and provisions of Sec. 8574. Or, in other words, the one-half of this land will pass and descend as intestate property to the brothers and sisters of said Abner Goff, deceased, or to their legal representatives and a partition of the same will be ordered as prayed for by them.

The cause will be remanded to the court of common pleas to carry this order of partition into effect.

Voorhees and Shields, JJ., concur.


author: JONES (E. H.), J.

text:
    DEATH — NEGLIGENCE.
    [Hamilton (1st) Court of Appeals,
    July 14, 1916.]
    Jones, Jones and Gorman, JJ.

      Neave Building Co. v. William A. Roudebush, Admr.
    1. Death Resulting Directly and Proximately from Violation of Municipal Ordinance is Negligence Per Se.
    In an action for damages on account of death by wrongful act, tbe trial court is warranted in charging that if the direct and proximate cause of the injury was the violation of a valid municipal ordinance the defendant would be guilty of negligence per se.
    2. Window Washer Ordered to Wash Windows Against Protest Because of Ice on Sills.
    A reviewing court will not reverse a judgment finding the defendant liable for the death of the intestate, when there is evidence tending to show, and which the jury evidently accepts as true, that the intestate, a window washer in an office building, protested against washing the windows while there was snow on the sills, but was told by the superintendent of the building that the windows must be washed.
    Error.

      C. D. Robertson and B, S. Oppenheimer, for plaintiff in error.

      Louis B. Sawyer, Wm. A. Roudebush and George W. Welch, for defendant in error.

      Affirmed Neave Bldg. Co. v. Roudebush, 96 Ohio St., 000; 62 Bull. Supp. 208.

   JONES (E. H.), J.

This is a proceeding in error brought to reverse the judgment of the common pleas court. It is the second time the case has been in this court. It was originally brought for damages on account of the death of Clarence Henson, who was a window cleaner, and who, it is alleged, met his death on January 6, 1911, by falling out of a third-story window in the Neave Building in Cincinnati, Ohio.

The petition alleges that while engaged in his employment as a window cleaner he fell to the ground, and that his fall was due to the negligence of the Neave Building Company in three particulars: first, in not providing some suitable safety device, as required by the following ordinance of the city of Cincinnati :

“In every fireproof or semi-fireproof building now in existence or hereafter erected, every window above the second story thereof shall be equipped with a suitable device which will permit the cleaning of the exterior of such windows without endangering life and limb. Provided, however, that such device need not be placed on any window that can be easily cleaned from within.”

Second, that the defendant was negligent in ordering plaintiff to proceed to wash the windows, after he had complained that there was snow on the window sills which made it dangerous for him to do so. And, third, that his employer did not provide sufficient help for him, so as to give him sufficient time to safely clean his windows.

At the trial now under review the chief controversy seems to have been over the question as to whether or not the ordinance above quoted had been complied with. In this connection we may say that we think that there was no error on the part of the trial court in charging that the violation of this ordinance on the part of the Neave Building Company would constitute negligence per so. This was the theory upon which the plaintiff evidently relied, and which the trial court adopted. If the special charge which the court gave at the request of plaintiff, to the effect that the violation of the ordinance was negligence, was in itself wrong, then of course the whole case falls.

After careful consideration we. are of the opinion that the charge given upon this point was in accord with the recent decision of our Supreme Court in the case of Schell v. Dubois, 94 Ohio St. 93 [— N. E. —], decided March 3, 1916. The second paragraph of the syllabus of the case just referred to is as follows:

“The violation of a municipal ordinance passed in the proper exercise of the police power in. the interest of public safety and not in conflict with general laws, is negligence ■ in itself, and where such act of negligence by a defendant is the direct and proximate cause of an injury not contributed to by want of due care on the part of the injured person, the defendant is liable. ”

The court having charged upon this breach of the case correctly as we think, it remained for the jury to decide whether or not the ordinance had been observed by the employer in this particular case. And this question in turn involved other questions of fact the determination of which was exclusively within the province of the jury. The jury having returned a verdict in favor of the plaintiff, it necessarily follows that they, found that the windows in the Neave Building were not easily cleaned from within, and that the device known as “Exhibit No. 3” in this record was not a suitable one.

These, together with the question of proximate cause, wero the main questions of fact to which the evidence adduced at the trial was addressed. The general verdict of the jury was, as we think, reinforced by the answers to certain interrogatories propounded by both sides. Upon these questions it can not be said with any degree of sincerity that there is no evidence in the record to support the verdict of the jury.

It is claimed that the superintendent of the Neave Building asked Mr. Henson, at the time he employed him, whether or not he wanted to nse a safety belt, or the safety device above referred to, and that Henson replied in the negative. If, however, the ordinance had not been observed by providing a suitable safety device, the answer of Mr. Henson thus given would in no wise excuse the violation of the ordinance, nor would it change the rule as announced by our Supreme Court, that its violation constituted negligence per se.

The evidence of the superintendent of the building, found on page 96 of the record, shows that Henson, when he fell, was engaged in washing the window in Room 203 of the third floor of the Neave Building, and his evidence together with that of Beimesch supply a want of evidence which this court found to exist when a judgment in favor of the administrator, in this case, was some time ago reversed.

There is evidence, also, to show that Mr. Henson com-' plained that the snow on the window sills at that time made it dangerous for him to attempt to clean the windows and that he was told by the superintendent that the windows had to be cleaned anyway. We fail to find anything in the charge of the court touching upon these allegations of'the petition or the evidence in support thereof. There was no complaint from either side about this omission, which was not prejudicial to plaintiff in error.

It having been proven to the satisfaction of the jury that Henson met his death as alleged in the petition, by falling out of the window while engaged in his work, we are of the opinion that this evidence is entitled to weight, and to be considered as additional support for the verdict of the jury and the judgment rendered thereon.

There is a conflict in the evidence with reference to the devices, Exhibits Nos. 3, 3a and 4, which were shown to have been owned by the Neave Building Company and somewhere in the building at the time of the death of Henson, although not in use. The jury heard and passed upon this evidence, and, from their verdict, must have found that the platforms Were not suitable devices, taking into consideration the building upon which they -were to be used and the manner of occupancy thereof.

Without further commenting upon the evidence in this case, it is sufficient to say that there is evidence to support at least two of the grounds of negligence set up in the petition, viz., the violation of the ordinance, and the order from the superintendent to proceed to wash the windows notwithstanding the complaint of Henson with reference to snow on the sills.

We find no errors in the admission or rejection of evidence prejudicial to the party herein complaining, and that the special charges given, taken in connection with the general charge, constitute a fair and substantially correct pronouncement of the law applicable to the issues in the case.

Finding no errors, and that substantial justice has been done, the judgment will be affirmed'.

Jones (O. B.) and Gorman, JJ., concur.


author: MARVIN, J.

text:
    REPLEVIN — WAREHOUSEMAN.
    [Cuyahoga (8th) Circuit Court,
    May 24, 1909.]
    Marvin and Henry, JJ.
    Judge Winch not sitting.
    William P. Herig et al. v. William Amos.
    Failure of Warehouseman to Notify Owner of Goods in Storage Replevined not Cause for Damages.
    An action against a warehouseman for the value of goods belonging to plaintiff, stored with the defendant and replevined by third parties, can not. be maintained on the ground that the warehouseman was negligent in his failure to notify the plaintiff promptly of the bringing of the replevin proceedings and became a party thereto in time to have his title to the goods adjudicated.
    [Syllabus by the court.]
    Error.

      J. J. McCormick, for plaintiff in error.

      Tanney & Barber and O. W. Broadwdl, for defendant in error.
   MARVIN, J.

The relation of the parties here is the reverse of the relation in which they stood in the court below. The terms plaintiff and defendant, as used in this opinion, speak of them as they were in the original case. The defendants were copartners doing business as the Eagle Storage & Moving Co. and as a part of their business they received into their warehouse and stored for hire, goods for such customers as applied for that purpose to them. The plaintiff brought suit alleging that on duly 3, 1902, he delivered to 'the defendants for storage on his account a large quantity of goods, describing them, of the value of $1,086. And that he undertook and agreed to pay for such storage $4 per month, and that on December 4, 1906, the plaintiff demanded said goods from the defendants, tendering the amount of the charges for storing the same, as agreed under the contract, and including cartage of the goods; that upon such demand, the defendants informed the plaintiff that the goods had passed beyond their possession and control, and that they did not know where they were. The plaintiff further alleges that he was notified on November 17, 1906, by the attorney of the defendants that the goods had been taken from them in an action in replevin, and that this was the first notice he had of such replevin action; whereas, he says, such replevin action was begun and the goods taken on the 29th of August, 1905. And so, he charges, that by the gross negligence of the defendants in failing to give him early notice of such action in replevin he was deprived of an opportunity to defend himself and his title to the goods in that action by reason of which the goods have been lost to him and he prays for their value in damages with interest.

The defendants admit that they received the.goods under a contract as alleged in the petition; that they did give notice to the plaintiff of the bringing of the action in replevin on November 17, 1906, as alleged in the petition and they further aver that they made all reasonable effort to ascertain the whereabouts of the plaintiff and give him notice of such action, but they had no knowledge of his place of residence, and they were unable to get notice to him earlier than the date already spoken of. And they further aver that the plaintiff had notice of such action in replevin while it was pending and that he neglected to protect his rights in that action, but abandoned it, and thereby by his own negligence failed to protect himself if he was entitled to any protection in the action in replevin. And then by way of cross-petition the defendants aver that a considerable amount of money is owing to them by the plaintiff for storage and cartage of the goods. The result of the trial was that the plaintiff obtained a judgment against the defendants, apparently for the value of the goods, less the amount claimed and shown as due to the defendants for storage and cartage. To reverse such judgment this proceeding is prosecuted.

The facts as shown by the evidence are, that the plaintiff did deliver a considerable quantity of merchandise, as is set out in his petition, to the defendants on July 3, 1902; that he did not keep the storage charges paid up; that on August 29, 1905, these goods were taken in replevin from the defendants in an action brought by one A. J. Cole; that the defendants answered in that action, claiming to be entitled to the possession of the goods; that on August 27, 1907, while said action was still pending, the plaintiff was made a party defendant thereto, and that after having obtained consent of the court on several different days he finally filed an answer and cross-petition in the replevin action on November 12, 1907, and that thereafter on his own motion the plaintiff was dismissed out of that action. It appears by the record of the court in the replevin action before the goods were delivered to the plaintiff in that action they were appraised and a bond given, as required by law. This bond must have been in double the appraised value of the goods, because it was, as shown by the records of the court, given in accordance with the law, and such is the requirement of the law, See. 5819 K. S. (See. 12056 G-. C.), which reads:

"The sheriff shall deliver the property so taken to the plaintiff, his agent or attorney, after the expiration of five days from the time the property is taken, when there is executed by-sufficient surety of the plaintiff, a written undertaking to the defendant in at least double the value of the property taken,” etc.

This, however, whether the defendant in the replevin action claimed the ownership to the goods or the right to possession only. The situation then is this: that whether the defendants w'ere negligent or not in getting notice to the plaintiff of the pendency of the action in replevin, he received notice in some way in time so that he filed his answer and cross-petition and might there have maintained his rights and recovered his damages secured by the replevin bond, had he not, on his own motion, been dismissed from that action.

"What wrong did the plaintiff suffer by reason of any failure of the defendants to give an earlier notice of the pendency of the replevin action? It is said in argument, that he was deprived of his right to give a re-delivery bond and thereby recover the goods themselves. It does not appear from any pleading that the plaintiff would have given any such re-delivery bond, nor that the bond given in the replevin action was not adequate and the sureties not sufficient to give him entire protection. Had he remained in the replevin case he could have had all his rights there adjudicated and have recovered whatever damages he sustained by reason of losing this property. We think there was a misconception on the part of those engaged in the trial of this case on the question of when the plaintiff was entitled to notice in the replevin case. Doubtless it was the duty of the defendants to exercise reasonable diligence to get notice to him of the bringing of the replevin action, and in a proper case it would be. for the jury to determine whether such promptness and care had been exercised by the defendant to give such notice. But if every substantial right of the plaintiff could have been protected in the replevin action after he had notice and after he became a party to the action, then he lost nothing by not receiving an earlier notice. He could have recovered in that action exactly what he could recover in this action, to-wit, the damages he sustained by reason of his goods being taken from him. Under these facts the court should not have submitted to the jury the question of whether the defendants gave notice to the plaintiff at the time the replevin action was brought, and the charge in so far as it submits that question to the jury is erroneous, because it was a matter of indifference when that notice reached the plaintiff provided it reached him, as it certainly did, in time for him to protect all his rights in the replevin action, and the result is the judgment is reversed and the cause remanded to the court of common pleas.

Henry, J., concurs.


author: JONES (O. B.), J.

text:
    MUNICIPAL CORPORATIONS — RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    July 6, 1916.]
    Jones, Jones and Gorman, JJ.
    Cincinnati, by Alfred Bettman, Sol. v. Cincinnati Trac. Co. et al.
    1. Power for Elimination of Grade Crossings Continuing Without Limitation of Traction Company Franchise.
    The authority vested in municipalities for the elimination of grade crossings is a police power which is continuing in its nature and is in no way limited by the franchise of a traction company whose tracks occupy the street.
    2. Municipality Contracting With Steam Railway for Elimination of Grade Crossing need not Consider Street Railway.
    A municipality in contracting with a steam railway company for the elimination of a grade crossing is not bound to make the traction company occupying the street a party thereto, but may proceed with the improvement without notice to such company.
    3. Street Railway Franchise no Limitation on Power to Change Grade.
    A street railway franchise in the street in no way limits the right of the municipality to change either the grade or' the location of the street as the public necessity or convenience may require, particularly where the reasonableness of the change is not questioned, and the traction company must adapt its tracks to the changes so made.
    4. Reasonableness of Assessing Street Railway One-Half Municipal Expense of Grade Crossing Elimination.
    The grade crossing in the instant case was eliminated by the building of a viaduct. Sixty-five per cent, of the cost was paid by the steam road and thirty-five per cent, by the city. The city then obtained a judgment, based upon a verdict, against the traction company occupying the street for its share of the cost of the improvement, which was fixed at $61,220.09, which was something less than one-half of the share paid by the city. Held:
    That in view of the evidence and all the circumstances surrounding the improvement and the benefit to and the saving which it will effect for the traction company, the proportion of the cost which it is asked to pay is reasonable, and a judgment is awarded similar to that entered in the lower court.
    Appeal.

      Walter M. Schoenle, Solicitor, and Constant Southworth, Assistant Solicitor, for plaintiff.

      Joseph Wilby and Ellis Gr. Kinkead, for defendant.
   JONES (O. B.), J.

This action was brought by the city of Cincinnati to compel the Cincinnati Traction Co. and the Cincinnati Street Ry. to pay to the city their share of the expense incurred in the elimination of the grade crossing of Ludlow avenue and the Baltimore & O. S. W. Ry., and to have the judgment for such share cf said expense declared to be a lien on the property of said companies.

Under the provisions of Secs. 8874 to 8894 G. C., inclusive, the city of Cincinnati in conjunction with the Baltimore & 0. S. W. Ry. provided for the elimination of the grade crossing of Ludlow avenue over the tracks of the steam railroad company. In so doing a bridge or viaduct was constructed from a point on Ludlow avenue southeast of the Miami canal, running in a direct line to Spring Grove avenue at the same place that the former line of Ludlow avenue intersected it, and that part of the old line of Ludlow avenue included between the north and south lines of the right-of-way of the Baltimore & 0. S. W. Ry. was vacated and the grade crossing entirely eliminated, all of the through travel over Ludlow avenue going above said roadroad tracks on the new Ludlow avenue viaduct, including the street railway travel of the defendant company.

The Cincinnati St. Ry. is the owner of the street railway tracks and franchise, and has leased same to the Cincinnati Trac. Co. which is operating them. Previous to the elimination of said grade crossing, a double track road was operated over that part of Ludlow avenue lying west of the point where the east end of the Ludlow avenue viaduct was constructed and across the Baltimore & 0. S. W. Ry. track on grade. After the vacation of said grade crossing such operation did not continue, but instead the line was operated over the new viaduct.

The total cost of the viaduct so constructed was $354,023.63. Sixty-five per cent, of the cost was paid by the Baltimore & O. S. W. Ry. as provided by statute. The city paid 35 per cent., amounting to $126,692.13, and by ordinance required said street railway and traction companies to bear one-half of the portion payable by it as their reasonable proportion of the cost assumed by said city. Bach of the defendants denies the right of the city to collect any part of said cost, and in the event that any part should be so chargeable to either of said companies insists that the amount sought to be recovered in this case is excessive and above the amount properly chargeable against them.

The case was tried to a jury in the court of common pleas, and resulted in a judgment against the Cincinnati Trac. Co. in the sum of $61,220.09, with interest at six per cent, from April 5, 1915; which judgment was declared to be a lien on all the property, real and personal, of the defendant the Cincinnati St. By.

The Cincinnati St. By. took an appeal from said judgment ; and error proceedings were also prosecuted by both companies, to secure a reversal of said judgment. The cause was heard in this court on the appeal of the Cincinnati St. By.

Numerous questions were raised in the oral arguments and briefs of both parties. The main questions were all considered and disposed of in the case of Northern Ohio Trac. & L. Co. v. Akron, 36 O. C. C. 644 (23 N. S. 497), where Sees. 8892, 8893 and 8894 G. C. were held to be constitutional. This decision was affirmed by the Supreme Court in a journal entry found in Northern O. Trac. & L. Co. v. Akron, 91 Ohio St. 382. In that ease it was held that the amount fixed by an ordinance of a city, as the proper amount to be paid by a street railway existing in a street where a grade has been eliminated, was a proper basis upon which to institute an action in court, but that the recovery to be had by the city against said street railway for such share of expense should be for such amount as the jury should determine to be a reasonable portion of the cost of the improvement. And in tliat ease the amount fixed by the jury in its verdict, for which judgment was rendered and upheld by the Supreme Court, was less than the amount claimed by the city and fixed by its ordinance.

The proceedings in this case have been had along the same lines as those in the Akron case, the only difference being that in the instant case two companies are interested in the street railway, one as lessor and the other as lessee, the lessee being bound by the terms of its lease to pay all obligations arising similar to the claim here under consideration; and the lessor company being interested only to the extent of the lien upon its property in the event of the failure of the lessee company to pay any judgment obtained for such expense.

The power authorized to be exercised by a municipality in the elimination of a street grade crossing over a steam railroad, under the sections above referred to, is an exercise of the police power, which is a power continuing in its nature and not in any way limited by the extent of the grant or franchise. Columbus Gas Light & Coke Co. v. Columbus, 50 Ohio St. 65 [36 N. E. 292; 19 L. R. A. 510; 40 Am. St. 648]; Wabash Ry. v. Defiance, 52 Ohio St. 262 [40 N. E. 89].

In Missouri Pacific Ry. v. Omaha, 235 U. S. 121, it was held by the Supreme Court:

“1. A railway company may be required by the state, or by a municipality acting under the authority of the state, to construct overhead crossings or viaducts over its tracks at its own expense; the consequent expense is damnum absque injuria or compensated by the public benefit in which the company shares and is not & taking of property without due process of law.
“2. In the exercise of the police power the means to be employed to promote the public safety are primarily in the judgment of the Legislature, and the courts will not interfere with duly enacted legislation which has a substantial relation to the purpose to be accomplished, and does not arbitrarily interfere with private rights.”

And in this ease the court in its opinion at page 129 said, in regard to the matter of charging part of the expense to the street railway occupying such street:

“It may be that it would be more fair and equitable to require the street railway to share in the expense of the viaduct, and if the municipality had been authorized so to do by competent authority, it would have been a constitutional exercise of the police power to have such division of expenses. ’ ’

And in the ease of Chicago & A. Ry. v. Transbarger, 238 U. S. 67, the court upheld a statute requiring the owners of a railroad to provide means for passing water under their railway embankment long after it had been constructed, as a matter of police regulation.

Nor was it necessary in arranging for this improvement that the street railway company or the traction company should be notified of the proceedings or that either should become a party to the contract between the city and the s'team railroad company.

In Chicago, B. & Q. Ry. v. Nebraska, 170 U. S. 57, the court says, page 76:

“In State v. Railway, 33 Kan. 176, the power of the city of Atchison to compel the respondent to construct viaducts was sustained under legislation similar to that herein involved and, referring to the subject of notice, the court, per Judge Valentine, said: ‘We do not think it is necessary that the city should have given the railroad companies notice before passing the ordinance requiring them to construct the viaduct. Notice afterward, with the opportunity on the part of the railroad companies to contest the validity of the ordinance and the right of the city to compel them to construct the viaduct is sufficient.”

And on page 77:

“So, in the present case, while no notice may have been given'to the railroad company of the pendency of the ordinance, and while they may not have been invited to participate in the proposed legislation, yet they had an opportunity to, and did in fact, put in issue, by the answer, both the validity of the ordinance and the reasonableness of the amount apportioned to them respectively for the repair of the viaduct in question.”

The rights of the street railway company are to the use of the street, and the fact that they enjoy such a franchise in no way limits the rights of a municipality to either change the grade of that street or to alter its course or location as public necessity may require, and it becomes the duty of the street railway company to adapt its tracks and location to such requirement of the city. And so far as the amount to be paid by it is considered, that is to be fixed not as a matter of determination by the city by ordinance, but as a matter of adjudication by the court subject to the legislative restrictions that have been provided.

There is no question as to the right of the city to change the location of Ludlow avenue in making this improvement. Such power is expressly conferred by the terms of See. 8875 Gr. C. The only portion of Ludlow avenue which has been entirely vacated is the part lying between the north and the south lines of the right-of-way of the Baltimore & O. S. W. Ry. — that is, the crossing itself, within the lines of the railroad right-of-way. The other two parts of Ludlow avenue as it previously existed still remain public streets being each a cul-de-sac running from either terminus mf the new viaduct to the line of the railroad. But because of the vacated portion at the crossing it becomes an impossibility to cross the railroad on Ludlow avenue at grade. The street railway, therefore, being unable to continue the use of its franchise over that crossing, was compelled by reason of the change in the lines of Ludlow avenue by the construction of the viaduct, to transfer its track and operation from the old to the new line of Ludlow avenue between the termini of the viaduct. In other words, the effect is the same as though the entire old portion of the avenue between those termini had been vacated, so far as continuous passage is concerned.

There is no question but that if a street is straightened, as was done by the construction of this viaduct, or if- its location is changed by a detour or shifting of its lines to either side of its old lines, that the street railway could claim a right under its franchise to occupy and use the new lines of the street; and such would be the ease in this instance regardless of the stipulation made between the parties that the use and occupation of the viaduct should in no way prejudice their rights in this case And while upon this subject, it might be said that the admission of evidence as to the amount of travel over the viaduct is not regarded as an infraction of this stipulation.

Defendants however have undertaken to argue that this case does not come within the strict literal terms of Sec. 8892 G. C., for the reason that Sec. 12 of the ordinance recites “that the company operating ■ the street railroad over the present intersection shall pay a portion of the city’s expense to be hereinafter fixed by ordinance,” and that the ordinance which fixes that portion, in the third paragraph of its preamble, states that “Whereas the tracks of the Cincinnati Trac. Co., a corporation under the laws of Ohio, cross the right-of-way of said railroad compamy at a point where under the plans and specifications it has been determined to construct such improvementThey argue that because the old crossing at grade is some two hundred and fifty feet further east than the location of the viaduct where the new crossing passes above grade, the “point” of crossing can not be identical in the new and in the old, and therefore that Sec. 8892 does not apply. Such argument is clearly without merit. The same argument might be made as to any sub-grade or overhead crossing because the place of crossing, even though the lines o£ the street or the lines of the viaduct or subway were identical now with those of the old', the actual tracks would be either many feet above or below the point of the old crossing.

No question is raised in this case as to the reasonableness of the change in location. In fact it is shown by the record that the change is a great benefit both to the traveling public and to the defendants, and that the expense is greatly reduced by the straightening in the line of Ludlow avenue by means of the new yiaduct, which forms practically the hypotenuse of a triangle of which the old lines of Ludlow avenue form the other two sides.

The power to so change a highway in separating grades in the crossing of a railway and a highway is well illustrated in the case of Davis v. Hampshire, 153 Mass. 218; and an interesting nisi prius decision upon this proposition is found in the case of Stoner v. Railway, 20 Dec. 448 (9 N. S. 337), in which a railroad subway crossing was substituted for two railway crossings, being 990 .feet away from one and 772 feet from the other.

Defendants, however, insist that the charge as fixed by the judgment below is excessive and far beyond any reasonable charge that should be asserted against them, for the reason that the life of the franchise under which they operate- is a matter of only thirty-one years’ duration, while the viaduct is supposed to be practically indestructible. The proportionate amount of the respective contributions that should be made by the steam railroad company, by the public, represented by the city or county, and by the street railway company operating over the crossing so changed, is primarily a matter for legislative action. The general assembly has laid down the rule fixing the proportion of the steam railroad at sixty-five per cent., and that of the city or county at thirty-five per cent.; and the power is 'given under Sec. 8892 G-. C., for the municipality to charge a proper amount of its share against a street railway using the street at such crossing. This amount has been fixed by the general assembly at not to exceed one-half of the thirty-five per cent, charged against the city. Considering the situation of the old grade crossing and the conditions surrounding it, the necessity for its elimination and the benefits accruing from the construction of the new viaduct, we are of the opinion that no case could be found where the propriety of charging the maximum amount allowed by the legislature would be greater than the one under consideration here, and we therefore feel in a measure bound by the legislative expression of the proper portion to be charged against the street railway company; and while it is argued that the balance of the life of the present franchise under which the street railway is operating is only thirty-one years, it must be remembered that the policy of the law of Ohio, outside possibly of this particular franchise, has never been to permit the granting of a franchise beyond the term of twenty-five years; so it can not be considered that such an argument would prevail as against the expressed policy of the legislature. But aside from this policy of the legislature, we think the amount of the judgment in the lower court was fully sustained by the evidence submitted.

The evidence shows that in the opinion of experts the same travel, other than that by street railway, could be accommodated by a viaduct ten feet narrower than the one actually constructed. In other words, not considering the travel in the street cars, a viaduct fifty feet in width without a street railway would accommodate the same travel as does one sixty feet in width where a railway has been placed upon it. And the cost of the additional ten feet of the viaduct was shown to be from about $64,000 to $66,000.

It is also shown that a considerable saving would be made to the defendants in the expense of watchmen and maintenance of tracks, frogs and repairs, each year, which if capitalized for the thirty-one years of the franchise still to run would represent a capital of from more than twenty-five to twenty-eight thousand dollars, depending upon the rate of interest at which it was figured; that the rental value for the balance of the term of the franchise figured upon only the amount of the judgment would be from $47,000 to $51,000; that in addition to these figures a great advantage is obtained by the defendant companies by the removal of probability of damage that may be caused by possible accidents at a grade crossing, the amount of which is not subject to accurate calculation.

It was further shown that new double tracks to the value of $15,200 had been included in the construction of the viaduct, as well as trolley poles to the value of $980.

The defendant companies have not indicated accurately what they regard as the proper charge to be placed upon them for their share of the expense of this improvement. The amount of the judgment below being considerably less than the maximum as fixed by the general assembly in Sec. 8892 G. C., and the amount having been fixed in the trial below by the verdict of a jury upon a full and fair presentation, this court upon a full consideration of all the evidence is not inclined to fix a different amount, but is of the opinion that the amount found by the jury and fixed by the judgment of the court of common pleas from which this appeal is taken, is a proper finding and amount, and a reasonable charge to be made against the defendants for their share in this improvement.

A judgment may be taken in this court similar to that in the court below.

Jones (E. H.) and Gorman, JJ., concur.


author: RICHARDS, Jl

text:
    ASSESSMENTS — SEWERS.
    [Lucas (6th) Court of Appeals,
    February 2, 1914.]
    Richards, Chittenden and Donnelly, JJ.
    Judge Donnelly of the Third District sitting in place of Judge Kinkade.
    Thatcher v. Toledo (City) et al.
    1. Injunction Will Not Lie Against Collection of Assessment Because Sewer Empties into Creek.
    Where city authorities, acting under favor of the statutes providing for the construction of main or trunk sewers, have established the outlet of such sewer in a river or creek, injunction will not lie to prevent the collection of an assessment therefor on the ground that the sewer has no legal outlet, nor that it constitutes a nuisance, in the absence of a showing of fraud or gross abuse of discretion in establishing such outlet.
    2. Assessment for Sewer not Set Aside Because State Board of Health Requires Abatement of Nuisance.
    An assessment for the construction of a sewer will not be set aside on the ground that the state board of health has determined after the sewer is built, to require the city to submit plans for the abatement of the pollution of the stream into which the sewer empties; nor would the fact that the stream into which the sewer empties proves, ultimately, to be so polluted s.p to constitute a violation of the statutes prohibiting the pollution of streams by sewage justify setting aside such assessment.
    3. Notice Prerequisite to Sewer Assessment Sufficient if Published In Newspaper.
    Section 3834 G. C., does not violate any constitutional provision by dispensing with the requirement for personal notice to resident owners as a prerequisite to making an assessment on their property for the cost of constructing a main or district sewer, . as no personal liability for the assessment attaches to the owners, and in such case a notice given by publication is sufficient.
    [Syllabus by the court.]
    Appeal.

      Mr. Charles A. Thatcher, in propria persona.

      Mr. Wesley 8. Thurstin, Jr., city solicitor, and Mr. Thomas L. Gifford, for the City of Toledo.
   RICHARDS, Jl

This action is brought for the purpose of enjoining the collection of an assessment against certain property in the city of Toledo owned by the plaintiff, Charles Á. Thatcher, levied for the construction of a main or trunk sewer. The sewer extends on Monroe street in a westerly direction from Bancroft street, emptying into Ottawa river or Ten Mile creek. The expenses of constructing this sewer amounted to slightly under $36,000 and the cost has been paid by the city to the contractor. The property belonging to the plaintiff is in the sewer district, but not abutting upon the street in which the sewer runs, and was assessed for the construction of the sewer in the siim of $467.82, which amount was payable in five annual installments.

, The plaintiff, in his petition, sets forth numerous grounds on which he contends that the assessment made against his property is invalid, but on the trial of the case the serious claims made by him were limited to two, first, that the sewer in effect has no legal outlet and, emptying the sewage where it is emptied from this sewer, constitutes a nuisance; second, that no notice of the passage of the resolution and ordinance by the city council was served on him, although he was during all of the time a resident of the city of Toledo.

At the point where this sewer empties into Ottawa river or Ten Mile creek the distance to Maumee Bay is three miles or more, and the condition of the stream from the point where the sewer empties into it is described by witnesses who testified in the ease. From that testimony it appears that during midsummer the stream has little current, is sluggish or stagnant, and is described by one witness as being dark or black in color and by another as being at times of a green color and having on the surface more or less scum. One witness states that he discovered no odor arising from the stream, but another witness, who lives in its immediate vicinity, states that “We once in a while get a whiff of bad smell, call it anything you want to. The number of mosquitoes is what we notice the most.” This offensive condition apparently exists only during a protracted dry season, when the water is very low, for it is evident that during a considerable portion of the year much water passes through the river or creek to the bay, although the fall is not great.

It is disclosed by the evidence that on October 29, 1903, the state board of health, by written, communication, advised the chief engineer of the city of Toledo that the plans for the sewer districts, embracing the one now in question, were approved upon the condition that if, in the opinion of the state board of health, the outlet should become a nuisance and a menace to the health of the community, a purification plant should be installed, and it was only after this communication was received by the city that legislation was adopted for the construction of this main sewer. . This action was commenced in the common pleas court in 1910. On March 20, 1913, being several years after the completion of the sewer and the payment of the expenses therefor, the state board of health determined to require the city to submit definite general plans for the abatement of the pollution of Ten Mile creek.

It is provided in See. 3872 G-. C. that main sewers shall have their outlet in a “river or other proper place.” It is apparent from all the evidence in this ease that Ottawa river or Ten Mile creek is not an ideal outlet into which to empty a sewer, but the matter of determining where a sewer shall empty is one which is within the control and discretion of' the city authorities, and the rule has long been settled that in the absence of fraud or a gross abuse of discretion the action of those authorities will not be interfered with by the courts.

Plaintiff cites 1 Page and Jones on Taxation by Assessment, Secs. 329, 401, 417, 418 and 447. An examination of these sections tends to elucidate the questions involved in the case at bar although the principles there discussed by the authors may not be decisive as to this case. It is stated in the first section cited that a sewer without an outlet which can be used as of right, is as useless a thing as can be imagined. The statement, of course, is a truism, but the evidence in this case fails to show that this sewer is without an outlet. The outlet, such as it is, has met the approval of the city authorities, and in the absence of a showing of either fraud or a gross abuse of discretion, we are not called upon to interfere with the conclusion thus reached. See Johnson v. Avondale, 1 Circ. Dec. 124 (1 R. 229), and Chamberlain v. Cleveland, 34 Ohio St. 551, proposition 9 of the syllabus.

In this connection we may call attention to the claim urged by plaintiff that the sewage flows through this stream over private property, and that the city has acquired no right from the abutting property owners to thus use the stream. It appears that when the sewer was first constructed it emptied into the Ottawa river at a point on the land owned by Alice M. Whitney and others, and that the circuit court, at the suit of the owners of the property, enjoined the use of the sewer for any purposes, except storm-water drainage, until the right to so empty the sewer should be acquired from the owners of the property at the outlet. Whitney v. Toledo, 29 O. C. C. 74 (8 N. S. 577). That right was subsequently acquired by appropriation proceedings, but no proceedings were taken against the riparian owners farther down the stream, and it does not appear that any contentions are being made by such owners in the courts that the sewer can not have its outlet in this stream.

As bearing very closely upon the matter now under consideration, we quote from Johnson v. Avondale, supra, page 125, where the. court, speaking of a sewer outlet, say: “Whether it is a proper one, is, in my judgment, a matter as to which the law confers a discretion on the village authorities, and unless it has been grossly abused, the courts can not properly interfere. And I see no good reason as yet to think that such discretion has been abused. The evidence on this point is, to say the least, very conflicting. Nor do I think the fact that the right of the village to have the outlet at this point, is denied' by the owner of the ground, is a good reason why the court should interfere as prayed for at the instance of the plaintiffs. They are not called upon to defend the rights of the owner. If the village infringes on them, he has his remedy; but if the fact that some person might have a claim against the village for flowing sewage upon, or near his lands, is to stop this work, it is probable that the sewer can never be built anywhere. The same claim might be made by the plaintiffs if it was continued and actually emptied into Mill Creek, or some other stream, for it might then be an invasion of the rights of some one as much as it is now.”

A case nearly identical in some of its aspects with the ease at bar is that of Cleneay v. Norwood, 137 Fed. 962, a case which arose under the statutes of Ohio providing for the eonstruction of sewers. It is urged by plaintiff that the position taken by the state board 'of health is such that the city is without authority to enforce the collection of an assessment because of the claimed unlawful pollution of this stream. In the seventh paragraph of the syllabus of the ease just cited the court say: “That a village, its officers and agents, had violated certain statutes prohibiting the pollution of streams by sewage, and were liable for the penalties prescribed therefor, constituted no ground for setting aside an .assessment for the construction of the sewers.”

It is insisted, however, that the assessment is invalid because no notice was served upon the plaintiff of the passage of the preliminary resolution and of the ordinance to improve, 'and in this connection it is contended that such notice is required by the statutes, and if not so required, that the statutes authorizing the assessment are unconstitutional. The resolution and ordinance were duly published and no controversy exists on that point, but only that personal notice was not served on the plaintiff. A solution of the controversy necessitates an examination of the sections of the General Code providing for the making of improvements of this character and assessing the cost therefor. The sewer is a main or trunk sewer and it is provided in See. 3878 G. C., in substance, that the resolution providing for the construction of such sewer shall be published once a week for not less than two nor more than four consecutive weeks in a newspaper of general circulation. Section 3834 G. C. especially excepts main or district sewers from the class as to which notice of the passage of the resolution shall be personally given, as provided in See. 3818 G. C. We hóld, therefore, that under the statutes as they read no personal notice was required to be served upon the plaintiff, notwithstanding he was a resident of the city of Toledo. See Kohler Brick Co. v. Toledo, 29 O. C. C. 599 (10 N. S. 137).

The inquiry then arises as to the validity of statutes authorizing an assessment upon the property of a resident without the service of notice on him personally. Plaintiff in his brief cites and relies on Anderson v. Messenger, 158 Fed. 250 [85 C. C. A. 468], and Chicago & Erie Ry. v. Keith, 67 Ohio St. 279 [65 N. E. 1020; 60 L. R. A. 525]. A careful examination of these authorities does not lead us to the belief that they are controlling upon the question now under consideration. The case last cited arose under a statute requiring railroad companies to construct ditches of sufficient capacity to conduct to a proper outlet water which accumulated along the sides of the roadbed. The statute failed to provide for notice, either actual or constructive, to the railroad company so sought to be charged, and for that reason, among others, was held unconstitutional. The court, speaking through Burket, C. J., say on page 291: ‘ ‘ The railroad company is notified by the owner or tenant to open the ditch, and is also notified by the probate judge to open it, but no notice is given to it of any hearing, and no provision whatever is made for a hearing at any stage of the proceeding.”

It is perfectly manifest that the constitution is invaded by a statute of that character. The statutes under which main sewers are constructed have provisions in them for the giving of notice by publication, as hereinbefore indicated, and they further have provisions whereby the owner of property assessed is notified by publication of the amount of the assessment upon his property, and has an opportunity to be heard as to the validity and justice thereof. See Secs. 3847, 3895 and 3848 G-. C.

A proceeding for the establishment of a main sewer is in effect a proceeding in rem, and it is not necessary to its validity that a person whose property is sought to be charged with a portion of the cost of the improvement and on whom no personal liability is fixed, should receive actual notice personally of the proceedings. So far as the question under consideration is concerned, the case is similar to Cupp v. Seneca Co. (Comrs.) 19 Ohio St. 173, which involved the construction of a county ditch. In that case it is said, on page 182, that the statute made 'no provision for the service of personal .notice upon the landowners. The court then proceeds:

“Nothing is better established as law, than that such rights may be affected, and lost to the owner, by a proceeding in rem, and upon merely constructive notice. The law of all such proceedings rests in the necessity of the ease, and in no instance, perhaps, is that necessity more plainly apparent than in the construction of public roads, and other improvements of like nature. Without the aid of some such proceeding, the construction of roads and ditches would be next to impracticable.”

The case has become a leading one in this state and has been many times cited with approval. One of the latest citations of that case is Portage Co. (Comrs.) v. Gates, 83 Ohio St. 19 [93 N. E. 255], in which it is held that personal notice to the landowner of the proceeding is not indispensable to its legality.

The law on this subject is well stated in 1 Page and Jones on Taxation by Assessment, section 121, as follows: “The legislature has a wide discretion in determining the nature and kind of notice to be given, though it has no power to dispense with all notice. If such notice is given as will fairly and reasonably apprise the property owner of the pendency of the assessment proceedings so as to give him an opportunity for a. hearing upon the merits he is not entitled as a matter of constitutional right to personal service. Notice by publication may therefore be provided for by the legislature without violating the constitutional provision forbidding the taking of property without due process of law.”

It is said further by the authors, in section 127, that “Outside of the question of personal liability, personal notice is unnecessary and a reasonable notice given by. publication is sufficient.”

Finding that the statutes violate no constitutional provision, and that they have been followed in the proceedings leading up to the construction of the sewer in question and the assessment of plaintiff’s land therefor, the petition will be dismissed and the injunction dissolved.

Petition dismissed and injunction dissolved.

Chittenden and Donnelly, JJ„ concur.


text:
    DIVORCE AND ALIMONY.
    [Cuyahoga (8th) Circuit Court,
    May 24, 1909.]
    Marvin and Henry, JJ.
    Judge Winch not sitting.
    Gilbert H. Benton v. Sarah Benton.
    1. Aggressions Prior to Insanity Cause for Divorce of Insane Husband.
    A decree of divorce may be entered against an insane defendant for aggressions prior to the insanity.
    2. Concealing Congenital Insanity Invalidates Marriage.
    A divorce granted for fraud in the marriage contract in concealing defendant’s congenital insanity from the plaintiff!, is not void because the act was committed while insane, for if the defendant was insane when he committed the fraud, the marriage is void.
    [Syllabus by the court.]
    Error.

      Fred F. Truhlar, for plaintiff in error.

      Eerruish & Eerruish and -Fr&iberger, for defendant in error.
   MARVIN, J.

The parties here are as they were in the court below. The plaintiff brought suit for a divorce from the defendant in the court of common pleas, alleging as ground therefor that at the time that the marriage between the plaintiff and the defendant was contracted, the said defendant was the wife of another man. The defendant answered, denying that she was the wife of another man, from whom she obtained, a divorce in the common pleas court of this county at the April term, 1897. To that the plaintiff replied, admitting that a decree was entered (in said last named court at the time stated in the answer) by the terms of which, if valid, the defendant was divorced from her former husband, John C. Butt, but alleges that the court, at the time of entering such decree, was wholly without jurisdiction to make the same, wherefore the decree was absolutely void and left the defendant still the wife of said Butt. On the trial, the record in the divorce proceedings against Butt was introduced in evidence, from which it appears that the petition, filed against Butt contains the following allegations as cause for divorce:

“The plaintiff says that at the time of said marriage but unknown to her, said defendant, though entirely sane upon some subjects, was nevertheless at that time a victim to congenital insanity, lapsing occasionally into that condition of mental .disturbance known as congenital imbecility. And she says that said difficulty was of that character which escaped observation except to those having expert knowledge; and that the same was accompanied with cunning and a disposition to secrecy and concealment, sometimes characteristic of the mental condition aforesaid. And she says that said congenital condition, though well known to defendant and understood by him to exist, was by him carefully concealed from said plaintiff -and that the marriage ceremony aforesaid Was enacted between them ás aforesaid in complete ignorance upon her part by reason of her youth and inexperience,”- etc.

And so, she says, that Butt procured the marriage contract between them by fraud.

At the time the suit was brought by the present defendant against Butt he was insane, and confined as such in a state hospital for the insane in this state. That fact being made to appear to the court a guardian ad litem was appointed for him, and answer filed denying the allegation in the petition in respect to the mental condition of Butt at the time of his marriage, and denying all fraud on his part in the contract of marriage entered into between the two parties.

Upon the hearing the court entered its decree finding that “the allegations of said petition so far as respects the averments of fraudulent contract are true, and further finds that by reason of said facts the plaintiff is entitled to the relief by her prayed for. Wherefore, it is ordered, adjudged and decreed that the marriage contract heretofore existing between her and said defendant be, and the same is hereby set aside, annulled and held for naught, and she be and is hereby wholly divorced from said defendant, and restored to all her rights as an unmarried woman.”

It is the law in this state that a' divorce may be decreed against the party who, at the time of entering the decree and of bringing the suit, is insane; service being had upon him as in other eases against insane persons, provided the aggressions for which the decree is sought were committed prior to such insanity.

It is urged in this case that the aggressions, to-wit, the fraud perpetrated upon the present defendant by her former husband, upon which she obtained her divorce, is shown by the petition in that case to have been committed while he was insane. This contention is not borne out, as we think, by the petition. A fair construction of the language used, in that Butt was intermittently insane and that the fact that such intermittent insanity was concealed from the woman to whom he was married and that the concealment of such intermittent insanity was a fraud upon her, and the court finding that to be true, certainly had the jurisdiction to grant the divorce.- We must assume that the court found that the mental derangement from which Butt was suffering at the time of his marriage was not. such as to prevent him from being capable of contracting the marriage relation, but was of such a nature that it was a fraud upon her to whom he was about to be married, and that he concealed the fact that he was subject to this intermittent insanity; otherwise there was never any valid marriage between the defendant in this ease and Butt; for if he was insane to the extent that he was incapable of perpetrating a fraud, then he was insane to the extent that he could not have contracted a marriage at all, so that after the decree in the former case, the defendant in this case was not the wife of Butt. Either she was released from such marriage by the decree, or she never was Butt’s wife. We find that she was released by the decree, but if we are wrong in this, still, as has already been said, it must be that if she was not so released, she never was Butt’s wife.

In the suit brought by the plaintiff here against the defendant, she not only answered setting up the facts as herein-before set out, but she set up by way of cross-petition acts of cruelty on the part of the plaintiff, which, if established by the evidence, entitle her to alimony for which she prayed, and which was decreed to her.

The purpose of the present proceedings is to reverse this judgment for alimony, for the reasons already stated, that is, that the defendant was never the plaintiff’s wife. Having found as we have, that she was the plaintiff’s wife, the court was justified in allowing her 'alimony, and that judgment is affirmed.

Henry, J., concurs.