text:
    INJURY FROM AN UNGUARDED BUZZ SAW.
    Circuit Court of Lucas County.
    Milburn Wagon Company v. Roy Gawronski.

    Decided, June 6, 1908.

      Safeguarding of Machinery — Pleading Statute Relating to, Not Necessary to Render Same Available — Evidence of Defective Gu&rd Sustains Allegation of Absence of Guard — Assumption of Risk Not a Defense — Knowledge of Absence Need Not be Pleaded — Remaining at Work Not Contributory Negligence, When — Master and Servant —Sections 1027 and 621¡2.

    1. Under the liberal practice of this state, an action for personal in-' juries based upon an alleged failure to guard a buzz saw as required by statute, although not specifically designating the particular statute, may be brought under Section 4364-89c, R. S. (Section 1027, General Code), providing for the boxing or guarding of certain machinery, including saws; or under Section 4238o, R. S. (Section 6243, General Code), relating to employer’s liability for defective machinery; or under both statutes, if either or both support the action.
    2. An allegation in a petition charging failure to guard a saw as required by statute is sustained by evidence that the guard supplied was ineffective — -in this instance a board eight inches wide, four feet long, on the end of which was attached a heavy piece of belting, more particularly designed to keep sawdust out of the operator’s eyes.
    3. Assumption of risk by an employe can not be interposed as a defense to an action for personal injuries based upon the failure of the employer to guard machinery as required by statute, notwithstanding the employe continued at his work with, knowledge that the machinery was not so guarded. Such statutes are enacted, not only for the protection of the individual working man, but for the protection and good of the whole community, and the benefits arising therefrom can not be frittered away by contracts between individuals.

      4. The provision of Section 4238o, R. S. (Section -6243, General Code), excluding the defense of assumed risk in actions for personal injuries resulting from failure to guard machinery, creates no new cause of action, hut simply operates to modify the requirements of pleading and evidence and amount of recovery. Hence, knowledge of absence of necessary guard and continuing at work notwithstanding such knowledge need not be pleaded in order to avail an employe of, its protection.
    5. An instruction to the jury “that the mere fact that the plaintiff knew that the top of the saw in question was not completely covered, and continued to work with it in such condition, is not evidence of contributory negligence on his part,” does not imply that the jury should disregard such facts, hut that standing alone they are not sufficient to justify a finding of contributory negligence; and in view of the fact that the question of contributory negligence is safeguarded in this ease in two special requests and the general charge, such instruction is not so far erroneous as to justify a reversal. (Kinkade, J., difesents.)

      W. H. McLean, for plaintiff in error.

      G. A. Thatcher, contra.
    Parker, J; Wildman, J., concurs; Kinkade, J., dissents.

       Affirmed without opinion, Milburn Wagon Co. v. Gawronski, 81 Ohio State, 565; former judgment adhered to on rehearing, 82 Ohio State, 421.

   The action' in the court of common pleas was by Gawronski, through his guardian, against the Milburn Wagon Company, to recover on account of injuries he received to his hand while working for the wagon company at a buzz saw, which injuries he alleged were due to the negligence of the wagon company, and especially in not guarding the saw as required by statute. The answer denied negligence, and alleged that the plaintiff's own negligence contributed to the injury. The cause was tried and submitted to a jury, which brought in a verdict for $2,000, in favor of the plaintiff, upon which judgment was entered.

It is contended by the Milburn Wagon Company that many prejudicial errors occurred during the progress of the cause through the court'of common pleas. We can not take up all the alleged errors in detail, but we will make some mention of, and comment upon, those which appear to us to be the most material and worthy of attention.

Section 1 of act 94 O. L., 42 (R. S., 4364-89c; General Code, 1027), contains provisions requiring the boxing or guarding of certain kinds of machinery when in use in workshops and in factories, and among the machines to be guarded .are saws. I read a portion of that section:

“Owners and operators of factories and workshops, which terms shall mean all manufacturing, mechanical, electrical and mercantile ■ establishments, and all places where machinery of any kind is used or operated, shall take ordinary care, and make such suitable provisions as to prevent injury to persons who may come in contact with any such machinery, or any part thereof; and such ordinary care and such suitable provisions shall include * * * the guarding of all saws and other woodcutting and wood-shaping machinery, ’ ’ etc.

Section 2 (R. S., 4364-89d; General Code, 1028) provides a penalty for the violation of any of the provisions of the foregoing section.

. Act 95 O. L., 114 (R. S. 4238o; General Code, 6242), provides that:

“An employer shall be responsible in damages for personal injury caused to an employe, who is himself in the exercise of due care and diligence at the time, by reason of any defect in the condition of the machinery or appliances connected with or used in the business of .the employer, which arose' from, or had not been discovered or remedied owing to the negligence of the employer, or of any person in the service of the employer, entrusted by him with the duty of inspection, repair, or of seeing that the machinery or appliances were in proper condition. ’ ’

The petition does not charge the violation of any specific statute, that is to say, it does not disclose, by mention thereof, the- particular statutes upon which the plaintiff relies. It is said by the plaintiff in error that the plaintiff in this case relied upon R. S., 4238o. We find nothing in the record, however, disclosing that his reliance was upon that statute, and in argument here, and in his brief, he seems to rely upon both the statutes that I have mentioned and from which I have quoted — and I may say in passing, that we can see no reason in .the circumstances of the case why he may not do so, why the judgment, if it is to be supported, may not receive support from the one statute as well from the other, or from both, if either or both lend support to it.

In the case of Krause v. Morgan, 53 Ohio St., 26, an action founded upon the alleged negligence of a mining company for injuries to a servant -arising, out of violation of a duty both at common law and under the statute, this was said, page 30:

“The defense was a denial of negligence and omission of duty, -and that the injury occurred by reason of the willful negligence of plaintiff after being warned not to enter the part of the mine where the explosion occurred. Plaintiff, by reply, denied the warning and the negligence.
“Under the construction given the petition, the plaintiff was permitted, against the objection of defendants, to introduce testimony tending to show what would be proper practice in operating mines in that vicinity independent of the statute. To rebut this, the defendants, against objection of plaintiff, were permitted to offer proof showing the ordinary and general practice in mines in the vicinity in the respects referred to. We need not take the trouble to determine whether or not the liberal construction given the pleading by .the trial court was correct. Clearly, it would have been proper practice to embrace both charges in the petition, and,'inasmuch as the' plaintiff sought to try his case -upon that 'theory, and could, if necessary, have amended the pleading to meet the facts, he ought not to be heard to object to testimony in contradiction of the case he had thus voluntarily made. We think the testimony offered by the defendants was competent. ’ ’

Of course the precise question as. to the form of objection raised by the pleading is not the question presented here, but this opinion illustrates the view of the court that under our liberal practice the case could be tried upon both theories. It seems to us from an examination of the statutes, however, that the section which is applicable here, is the one from which I first quoted, R. S., 4364-89c, and that the petition in charging the violation of duty adopts in a measure the language of this statute requiring the taking of ordinary care to “make such suitable provision as to prevent injury to persons who may come in contact with any such machinery, or any part thereof. ’ ’

The "petition charges that the saw was not guarded, so that the person attempting to operate the same would be in danger, etc. It is s-aid, however, that the evidence does not support this case as stated in the petition; that the evidence discloses a case, if any case at all is made against the plaintiff in error, of a defective machine or appliance provided against by R. S., 4238o. The alleged fault here was a failure to have a guard over the saw. It appears that hanging in front of the saw, that is, between the operator and the saw, was a board eight or ten inches wide and perhaps four feet high, that came down close to the table through which .the saw ran and upon which the lumber to be sawed was laid and moved,' and that from the end of this board there was a piece of heavy belting extending down quite to the table or nearly to it, and it is said that this was a guard within the meaning of the statute, and that, therefore, this is not a case where there w.as no guard, but a case where there was a guard, but perhaps a not entirely effective one. A reading of the record leaves some doubt as to whether this was ever designed as a guard to protect the operator, 'further than to keep the sawdust from the saw from flying in his face and eyes and bothering him about his work. But whether it may be regarded as a guard or not, we think that, nevertheless, the plaintiff contending that it was not a sufficient guard might therefore contend that it was not a guard that complied with the statute, was not a guard in the furnishing of which the obligation resting upon the employer under the statute was discharged; that he might well allege the absence of the guard required by law, and that the fact that it appeared that there was some pretense of a guard would not defeat his recovery, or would not make the cause as presented by the evidence so different from the cause presented by the pleadings as to amount to a material variance; and certainly, under the circumstances of this case, it can not be pretended that this could have been misleading or in any way prejudicial to the plaintiff in error.

A great deal of the controversy in this case centered about the question whether the employe remaining in the employment, remaining at his work with knowledge that the machine was not guarded as required by law, assumed the risk and hazard of continuing his work there, so that no cause of action could arise in his favor on account of injuries received in consequence of the saw being unguarded; or, to state it in another. way, so that the contention that he assumed the risk and hazard could- be in: terposed as a defense to his recovery.

The praj^er in the petition was for a judgment of $15,000 R. S., 4238o (General Code, 6242), was invoked on behalf of the plaintiff below in answer to this contention, and, besides, it was urged that independently of the provisions of this section of the statute, the doctrine of assumed risk did not apply to such a situation as was here presented.

The view of this court upon .a case of like character, Ziehr v. Paper Co., 28 O. C. C., 342 (7 C.C.[N.S.], 144), involving this statute in which this question was raised, was expressed by Judge Hull, and it was there held, as expressed in the fourth clause of the syllabus, which I read:

“At the common law, a servant continuing to use dangerous machinery without objection on his part or promise to repair on the part of the master, was held to have -assumed the risk thereof; under the statute, however, which requires certain machinery to be covered, and makes it negligence on the part of the master if it is not, a servant will not be held to have assumed the risk thereof so as'to bar a recovery, unless he be guilty of contributory negligence. ’ ’

The words “unless he be guilty of contributory .negligence” might well have been omitted, because the court was considering the question whether there was an assumption of the risk, and to mix up with the question of contributory negligence has a tendency to confuse. I want to say with respect to this report that it was published after the death of Judge Hull; that he never had an opportunity to revise it and it contains some clerical and some typographical errors that would have been corrected no doubt had he been .afforded an opportunity to examine the proof. But the substance of the decision can not be mistaken.

Now, in support of the contention that the doctrine of assumed risk applies, notwithstanding this penal statute, the alleged violation of which forms the basis of the claim for recovery, counsel for the plaintiff in error has cited the case of Krause v. Morgan, supra, and the case of Hesse v. Railway, 58 Ohio St., 167, and some other decisions by the Supreme Court, and, besides, the case of Johns v. Railway, 3 C.C.(N.S.), 545, which was affirmed by the Supreme Court, without report, Johns v. Railway, 69 Ohio St., 532.

A reading of the opinion .of Judge. Hull will show that this court considered most of those cases, and I think all of them. Most, if not all, are commented upon. The one especially relied upon before us, in the ease of Ziehr v. Paper Co., supra, was the ease of Krause v. Morgan, supra, and it was urged that it had been therein distinctly held by the Supreme Court that the doctrine of .assumed risk still obtains in Ohio, even where, statutes of this character are invoked; but Judge Hull undertook to point out, and we think he did it very successfully, that the real question involved in that ease was one, not of assumption of risks, but of contributory negligence, and in this attempt he had the assistance of a decision by Judge Taft of the United States Circuit Court of Appeals, Narramore v. Railway, 96 Fed. Rep., 298, from which he made certain quotations. I mean that he had this assistance, not only in distinguishing the case of Krause v. Morgan, supra, as not being a case founded upon the doctrine of assumption of risk, but he also had its support to the contrary doctrine; that is to say, that the doctrine of assumption of risk could not be invoked in the face of a violation of a statute of this character.

Quoting from Narramore v. Railway, supra, Judge Taft says, page 11:

“The doctrine of the assumption of risk rests really upon contract; the only question remaining is whether the courts will enforce or recognize as against a servant, an agreement express or implied on his part, to waive the performance of a statutory duty of the master, imposed for the protection of the servant, and in the interest of the public, and enforeible by criminal prosecution. We do not think they will. To do so would be to nullify the object of the statute. The only ground for passing such a statute is found in the inequality of terms upon which the railway company and its servants deal, in regard to the dangers of their employment. The manifest legislative purpose was to protect the servant by positive law, because he had not previously shown himself capable of protecting himself by contract, and it would entirely defeat this purpose thus to permit the servant to ‘contract the master out’ of the statute. It would certainly be novel for a court to recognize as valid an agreement between two persons that one should violate a criminal statute; and yet, if the assumption of risk is the term of a contract, then the application of it in the case at bar is to do just that. ’ ’

There is another consideration that I think is taken up in the decision by judge Taft. — I know it is in some of the eases— and that is that these statutes are passed, not only for the protection of the individual working man, but they are passed for the protection and the good of the whole community, and it need not be argued at length, nor enforced by illustrations, that the whole community is interested in the physical health and welfare of each individual, pecuniarily and selfishly interested therein, putting it upon no higher ground, and that it would not do for the benefits to the public sought to be secured by statutes of this character to be frittered away by contract between individuals.

But, as I have said, the views of this court upon this subject are expressed in that opinion, and the court as at present constituted feel disposed to adhere to that decision until a higher authority shall direct a different course.

This case of Johns v. Railway, supra, was decided at an earlier period. I do not remember whether Judge Hull tabes notice of it in his opinion, but I know that it was under consideration, and it seems that the court which announced that decision, the Circuit Court of the Eighth Circuit, felt impelled to do so by its understanding of the decision of Krause v. Morgan, supra, and not because it was quite satisfied with the doctrine of the case. Judge Marvin, in delivering the opinion, says, page 443:

‘ ‘ The opinion in this case, by Judge Spear, I will not stop to read. It sustains this proposition: That, although the railroad company is in violation of this statute, still one who is in the employ of the company, and knows all about such violation, must be held to have assumed the risk. However hard that doctrine may seem, it' seems to be the doctrine of the Supreme Court of Ohio.”

I read an earlier paragraph:

“In Valley Ry. v. Keegan, 40 Bull., 167, Judge Taft of the federal circuit court delivers an elaborate opinion, holding that one violating a statute in the prosecution of its business, can not avail himself of his employe assuming the risk that comes from the violation of that statute. Judge Taft makes an argument which, to me, is very satisfactory, but is not so to our Supreme Court, which holds directly opposite.”

Our view of the matter was that our Supreme Court had not held “directly opposite,” but that its decision had been misunderstood by the circuit court of the eighth circuit. The case of Ziehr v. Paper Co., supra, went to the Supreme Court, but it was settled out of court, so we never had the judgment of the Supreme Court upon it.

Now, holding this view, to discuss the possible effect of act 97 O. L., 547 (R. S., 4238o-1; General Code, 6243), seems somewhat like discussing a moot question, for if the doctrine of assumption of risks did not apply at all, it was not necessary to invoke R. S., 4238o-1. This section has no effect on the matter at all. It was a feort of work of supererogation upon the part of the Legislature. But assuming that this statute was necessary for the purpose of affecting this question of assumed risk as it applies to the case at bar, we come to consider the question whether it may be invoked and whether it may be applied in this case.

This statute was passed after the decision by the circuit court of the eighth circuit cited supra. It seems to have been in force when Ziehr v. Paper Co., supra, was before this court, but no heed was given to it, and it probably had no application to the case being presented to the court. It was not in force'when these decisions of the Supreme Court which are cited to us were decided, or at least when the causes of action in those eases arose. In other words, what the Supreme Court was considering was the question independent of this statute. But now it is said to us, on behalf of the defendant in error, that “even if we are not right about the doctrine independent of the statute, here is the statute for his protection, ’ ’ while, on the other hand, the plaintiff in error urges that he may not avail himself of this statute because he has said nothing about the statute in his pleading,' he has not invoked it, and he has practically abandoned it or rejected it by asking, for $15,000, whereas the statute applies only to eases where but $3,000 may be recovered on account of a personal injury, or $5,000 on account of a death. In other words, the statute steps in to modify or affect the doctrine of assumed risks only as to a limited amount of recovery. We think of this statute, as we remarked of the others, that it need not be specifically mentioned in the pleadings, in order that it may be invoked, or in order that the party may avail himself of its provisions. We do not regard it as a statute which creates a new cause of action in favor of the person injured. The cause of action is the ordinary one, sounding in tort, and the action to recover on account of an injury arising through negligence. The statute operates upon the case so as to, in effect, modify the requirements as to pleading and evidence, and to modify the rights as to amount of recovery.

Act 97 O. L., 547 (R. S., 4238o-1), reads:

“In any action brought by an employe, or his legal representative, against his employer, to recover for personal injuries, when it shall appear that the injury was caused in whole or in part by the negligent omission of such employer to guard or protect his machinery or appliances, or the premises or place where said employe was employed, in the manner required by any penal statute of the state or the United States in force at the date of the passage of this - act the fact that such employe continued in such employment with knowledge of such omission, shall not operate as a defense; and in such action, if the jury find for the plaintiff, it may award such damages not exceeding, for injuries resulting in death, the sum of five thousand dollars, and for injuries not so resulting, the sum of $3,000, as it may find proportioned to the pecuniary damages resulting from said injuries; but nothing herein shall affect the provisions of R. S., 6135 (General Code, 10772, 10773). Nothing herein contained shall be construed as affecting the defense of contributory negligenee, nor the admissibility of evidence competent to support such defense. ”

Had the recovery been for more than $3,000, then the question would be presented whether the plaintiff might not even then come in and enter a remitter for all in excess of $3,000, and so save the judgment under the statute.

Here the evidence disclosed that the employe, the plaintiff below, was well aware that the machine was not guarded, and that he continued at his work notwithstanding such knowledge. lie does not say in his petition that he had sneh knowledge, bnt it is open to that construction. We do not think he is required to state specifically in his pleading, that he was aware of the absence of a guard in order to bring himself within the provisions of this statute. We do think that the effect of the statute is to modify certain rules of pleading in cases coming within it, particularly the rule of pleading as laid down in Chicago & O. Coal & Car Co. v. Norman, 49 Ohio St., 598, and Hesse v. Railway, supra, requiring the servant to allege and show that he did not have knowledge of alleged defects. Such allegation and proof are not now necessary in cases coming within the purview of this statute.

There were a great many requests to charge on behalf of plaintiff below that were given, and that were objected to by the defendant below, plaintiff in error, and requests to charge on behalf of plaintiff in error, that were refused, of which matters the plaintiff in error complains. We can not take them up and discuss them one at a time, but we have to say generally that we find no error in the rulings of the court upon those matters or in the general charge, and that this conclusion naturally, follows, as to most of the questions presented, from what we have said in respect to the rights of the plaintiff under R. S., 4238o-l, 4364-89c.

There is one instruction, however, that was given on behalf of the plaintiff below that has bothered us a great deal, and we are not in entire harmony in our views upon it. One member of the court finds no difficulty in sustaining it, another has finally become reconciled to it, but not very heartily, and another thinks it radically wrong. It is the sixth request given on behalf of the plaintiff:

“The jury is instructed that the mere fact that the plaintiff knew that the top of the saw in question was not completely covered, and continued to work with it in such condition, is not evidence of contributory negligence on his part.”

The fourth request given on behalf of plaintiff below, we think correct, and we think it substantially covers the matter of the sixth request, and that it would have been better to have refused the sixth.

The fourth reads:

“The jury is instructed that should you find from the evidence that the plaintiff knew that the top part of the saw was not covered, that fact, of itself, is not as a matter of law proof of contributory negligence on his part in working with said saw. ’ ’

Perhaps the same thing was meant in the sixth, that is to say, knowledge that the saw was uncovered, and continuing in the work with that knowledge, those facts of themselves would not be sufficient evidence of contributory negligence to defeat recovery by the plaintiff. If that had been given, because of the provisions of R. S. 4238o-1, we think it would have been correct.

While the title of this act, as found in 97 O. L., 547, “An act qualifying the risks to be deemed as assumed by employes, ’ ’ and while it has been discussed as if it were an act that dealt only with what is known as assumed risk, as distinguished from contributory negligence, yet upon looking into the statute, it will be observed that it provides distinctly that the fact that the employe continued in said employment with knowledge of such omission shall not operate as a defense; so the fact of continuing at work with such knowledge is not to operate as a defense whether it be regarded as giving rise (in the absence of the statute) to what is known as “assumed risk” technically and distinctively, or whether it be regarded as an act of contributory negligence.

It is conceived that one may enter an employment, or remain in an employment, under circumstances where the hazard is so apparent, where it is so clear, that a man of ordinary prudence would not undertake the risk of the character of the machinery, the character of the place, or defects in the machinery, or other hazard, and that therefore he would be guilty of contributory negligence in so doing, and that that defense might be asserted and maintained quite independently of the doctrine and defense of assumption of risks as distinguished from contributory negligence. But under this statute, no matter whether you should treat the act as coming within the scope of the doctrine of assumption of risk or of contributory negligence, “the fact,” the statute says, “shall not operate as a defense.” So that we think it would have been quite right for the court to charge that remaining in the employment with knowledge of the 'condition would not defeat a recovery even if, independent of the statute, so doing would have amounted to contributory negligence that would defeat a recovery. Under the statute such use might not be made of that fact alone. This charge seems to go beyond that. It seems to be open to the construction that when the jury came to consider the whole case upon the question of contributory negligence, which is an issue in the case, they may or should disregard the circumstance that the plaintiff remained in the employ and at work at this machine, with knowledge that it was not covered, and that if they find facts and circumstances from which they may impute to him contributory negligence, such facts must be sufficient in and of themselves and entirely independent of any consideration of this fact of remaining at work with knowledge of all conditions. If given such construction, we think the charge wrong; but we have concluded that that would perhaps be a strained construction and one which the jury probably did not give it; that it is not •meant by such instruction that when they come to the consideration of the question of contributory negligence they are to disregard those facts, but it is simply meant that these facts, standing alone, are not sufficient to justify a finding of contributory negligence. Because of this statute standing alone they are not evidence, certainly not effective evidence, certainly not evidence of any value in law, of contributory negligence. And giving the instruction that construction, and giving further consideration to the fact that in the requests on behalf of plaintiff in error the rights of the plaintiff in error are well safeguarded upon this question of contributory negligence, and that such view is strengthened also in the general charge, we think we should not hold that this instruction is so far erroneous as to justify a judgment of reversal

On the requests on behalf of the plaintiff in error these charges were given:

“If the jury shall find that the saw was’so guarded as to protect a person operating it in the usual and ordinary manner, and that the plaintiff’s injury resulted from his operating the saw in some other manner, your verdict should be for the de-' f endant. ’ ’
“If the jury find that the plaintiff was injured while reaching with his hand over the saw, and further find that in the exercise of ordinary care and in the ordinary course of operating the saw, the plaintiff would not have placed his hand over the saw and reached over the saw, then your verdict should be for the defendant.”
“The jury are instructed, as a matter of law, that it was not the duty of the Milburn Wagon Company to protect the plaintiff against injury which might result to him while operating the saw in a manner other than that usually adopted by ordinarily prudent operators of rip saws. ’ ’

And also in the general charge:

“You are instructed that it was the duty of the plaintiff, while operating the saw, to exercise ordinary care to avoid injury. Notwithstanding any negligence on the part of the defendant in failing to guard the saw, if you find that it failed to do so, the plaintiff can- not recover, if he himself was guilty of contributory negligence; that is, if by his own failure or omission to exercise ordinary and reasonable care while operating the saw, he contributed directly to the injury of which he complains. If you find that the defendant, the Milburn Wagon Company, did not exercise reasonable care in the maintenance and operation of the saw at which the plaintiff claims he was injured, in that it did not properly guard the saw, and if you further find from the evidence that the’ plaintiff in attempting to operate the saw was injured by reason of the failure of the defendant to guard the saw, and that the plaintiff was exercising reasonable care and caution at the time to avoid injury, then you will find that the defendant is liable and your verdict will be for the plaintiff, ’ ’ etc.

Under the circumstances a majority of the court hold that there is not in the record prejudicial error justifying a reversal.

The judgment will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    EXCEPTION TO ALLOWANCE TO WIDOW.
    Circuit Court of Ashland County.
    In re Estate of Wm. F. Hess, Deceased.
    Decided, March 22, 1911.

      Estates of Decedents — Sale of Property to Pay Debts — Allowance to Widow out of Proceeds — Exception thereto Does not Lie at the Piling of her Account.

    Allowances to a widow made in a proceeding to sell real estate belonging to her deceased husband to pay debts, to which no error was prosecuted or appeal taken, can not be collaterally attacked by exception to her account as administratrix of the said estate.

      McCray & McCray, for Nettie Kop,p, executrix.

      Chapman & Taggart, for administratrix.
    Voobhees, J.; Shields, J., and Powell, J., concur.
   On or about February 1, 1910, Lydian Hess, as administratrix of tbe estate of William F. Hess, deceased, commenced a proceeding in the probate court of this county to sell certain real estate for the payment of debts of said estate, in which proceeding Lydian Hess, James Hess, Roy Hess, Cora Switzer, Nettie Kopp and Christian Y. Kagey were made parties defendant.

In this proceeding the said Lydian Hess filed an answer and cross-petition as the widow of said decedent, claiming dower and allowance in lieu of homestead, and setting up her claim to be allowed a lien upon the real estate of said decedent, in the sum of $600 for moneys alleged to have been-loaned by her to her husband, William F. Hess, in his lifetime.

Christian Y. Kagey, one of the defendants, filed an answer and cross-petition, setting up his certain mortgage for $1,500 with interest from October 1, 1909, upon said real estate.

Such proceedings were had in said court, as that the said real estate was ordered to bé sold, by said court, and a finding was made by said court, in favor of Christian V. Kagey, for the amount of Ms said mortgage, and said sum of $600 was found to be due tbe said Lydian Hess from said estate, on account of moneys' loaned to her said husband, William F. Hess, during his lifetime, and the same was declared a lien on said decedent’s real estate; that the said Lydian Hess was entitled to be paid the sum of $500 for allowance in lieu of a homestead, and that the sale of said real estate was necessary to pay the debts of said estate.

Now, pending these findings, no error was prosecuted or appeal taken, but said findings remain unreversed, and in full force, but when said administratrix filed her account in said probate court, taking credit for said sums so allowed to her, as aforesaid, exceptions were filed to her account, which exceptions were overruled.

Thereupon an appeal was taken to the court of common pleas, and the court of common pleas affirmed the finding of the probate court, and error is prosecuted to this court to reverse the judgment of said courts.

We hold that said finding and judgment of the probate court upon said claims was final, and can not be collaterally attacked by exceptions to the account, after said allowance is made. Therefore, we are of the opinion that the judgments of the probate court and the common pleas court are affirmed with costs, and the said cause remanded to the probate court for execution.


text:
    LIABILITY OF MUNICIPALITY FOR CHANGE OF GRADE OF STREET.
    Circuit Court of Cuyahoga County.
    Irvin W. Metcalf v. City of Elyria.

    Decided, April 29, 1910.

      Grade of Street — Designation by City Engineer of Grade for Sidewalk —Entitled Abutting Owner to Damages — 'Where Grade of Street is Subsequently Fixed at a Substantially Different Level.

    Where a stone sidewalk has been laid by an abutting owner, pursuant to a resolution of the city council requiring that this be done, and the city engineer at that time designated a grade for the sidewalk as he was required and authorized to do both by the resolution ordering that the sidewalk be laid and also by an ordinance providing that he should determine the grades of city streets and sidewalks, the acts of the municipality amount to such a permanent fixing of the grade of the street as warrants an abutting owner in improving his property in accordance therewith and to recover damages in the event that the municipality subsequently establishes a grade for the street at a substantially different level.

      Webber & Metcalf, for plaintiff in error.

      H. A. Pounds, contra.
    Henry, J.; Marvin, J., and Winch, J., concur.
    Error to the court of common pleas.

       Affirmed without opinion,- City of Elyria v, Metcalf, 84 Ohio State, 501.

   The parties stand as they stood below. The action below was brought by the owner of property abutting upon West River street in the city of Elyria, for damages alleged to have been sustained by the plaintiff by reason of a change of grade of said street. A verdict for the city of Elyria was directed at the close of the plaintiff’s evidence.

Prior to plaintiff’s purchase of said premises a stone walk was laid along the street in front' of his lot, pursuant to a resolution of the city council requiring the same to be done. At that time the' city engineer designated the grade for the sidewalk, as required and authorized not only by the said resolution, but also by an ordinance providing that he should determine the grade of the city streets and sidewalks. The street grade had not, however, been established by any other action of the municipality until July, 1907, when a grade was fixed by the city substantially differing from and out of accord with the grade of the sidewalk as previously established. This action of the city is alleged by the plaintiff to have amounted to a change of grade of the street within the familiar rule, and he therefore-seeks to recover the damages which he has admittedly sustained in consequence of such change of grade, if, in .contemplation of law, it be a change.

The authorities which the city relies on and on which the court below founded its decision, are: Neubert v. City of Toledo, 9 C. C., 462; Taber v. Bowling Green, 7 C.C.(N.S.), 385.

The syllabus of the former case as reported in 9 C. C., 462, and quoted in 7 C.C. (N.S.) 387, contains the following language :

“The fact that a city has left a street for many years with its natural grade, that the public has used the street at that grade for all that time, and that the city has even had sewers laid and sidewalks constructed in such street in that condition does not preclude the city from afterwards finally adopting a different grade for such street, and a property' owner has no right to assume that the city has adopted such original grade for the street.”

Upon examination of these cases however, we find that the facts are not as in the case at bar such as to compel the inference that the municipality in connection with the laying of a sidewalk had intended to fix or had fixed permanently the grade of the street where such sidewalk was laid. The rule laid down in the second paragraph of the syllabus of the case of City of Akron v. The Chamberlain Company, 34 Ohio State, 328, and followed in various cases since, is as follows:

“The liability of a municipality for injury to buildings on abutting lots exists only where such buildings were erected with reference to a grade actually established, either by ordinance or such improvement of the street as fairly indicated that the grade was permanently fixed, and the damage resulted from a change of such grade, or, where the buildings, if erected before a grade was so established, were injured by the subsequent establishment of an unreasonable grade.”

In the opinion by McIlvaine, J., at page 336, it is said:

“That the establishment of a grade whereby lot-owners are justified in assuming that no change will be made in the grade of a street, and may, therefore, improve their lots with reference to its present condition, so that the municipality will be-liable for injuries to their improvements, resulting from a subsequent change of the grade, does not necessarily require the passage of an ordinance or other legislative action; but .it may be shown, by the nature of the improvement on the surface of the street, under the direction or sanction of the proper authorities, whether in accordance with an ordained grade line or not; but' otherwise, if the surface improvement indicates a mere temporary use or condition of the street.”

Not without some hesitancy we are of opinion that the ordinances before referred to and the acts of the city engineer in pursuance thereof at the time the sidewalk in question was laid, amount to such a permanent fixing of the grade of the street as entitled the abutting lot owner to improve his premises in relation to such grade, as was done in this case.

It follows that the court below erred in directing a verdict in behalf of the city, upon the ground that no liability was indicated by the facts in evidence, and the judgment of the court of common pleas is therefore reversed and the cause remanded for further proceedings.


author: (Voorliees, Shields and Powell, JJ.)

text:
    OBJECTION OF ABUTTING OWNER TO TELEPHONE LINE.
    Circuit Court of Licking County.
    The Johnston & Croton Telephone Company v. William F. Hughes.
    Decided, September Term, 1911.

      Telephone Poles Gut Down by Abutting Owner — Injunction Made Perpetual■ Against Further Acts of that Character — Bights of the Public in Use of the Line — Abutter Relegated to His Legal Remedy.

    Where a telephone.line has been erected along a highway by virtue of an express agreement with the grantor of the present abutting owner, injunction will lie against destruction of the line years afterward by the present owner, because of failure of the company to accede to his demand for a large sum as compensation for the increased burden upon his lands .arising from the erection of the telephone line.

      Kibler Eibler, for plaintiff.

      Fitsgibbon & Montgomery, contra.
   By the Court

(Voorliees, Shields and Powell, JJ.)

This’ case comes into this court by appeal from the judgment of the court of common pleas and was heard upon the pleadings and evidence.

'Plaintiff in its petition alleges that it is a corporation and as such corporation in the year 1900, under franchises granted to said plaintiff by the village of Johnstown and the county commissioners of Licking county, the said-plaintiff constructed a telephone exchange in the village of Johnstown, Monroe township, said county, and also extended country or toll lines therefrom into the surrounding territory and in- so doing built a line on the north and south road, which is described as extending along on the east line of lots eight and nine, owned by the defendant, William F. Hughes; that at the time said telephone exchange was established and lines constructed, the said lots eight and nine were owned by one Martha Hughes and others. The said line was built, constructed and since maintained under and by virtue of an express agreement made between the said plaintiff and the said Martha Hughes and others, previous to the location and construction of said'line, by which the said defendant agreed and consented that the plaintiff might locate said line, which consisted of seven poles, cross-arms and wires along said road and maintained same for said purpose as part of said system of telephone communication; and in pursuance of such contract the plaintiff did construct said line as part of its system and extended the same to the north of said farm and beyond the limits of said Jersey township into Monroe township and southwardly below said farm and has since said year 1900 used and maintained the said pole line and appurtenances as a part of said telephone system without any objection, let or hindrance on the part of said Martha Hughes, or any other person, except as hereinafter stated. It then alleges the services furnished by said line and appurtenances to the patrons of said company; that in the year 1907, the defendant received a conveyance from the said Martha Hughes, mother of the defendant, for the said real estate, and at the. time mentioned the said pole line and its appurtenances was located upon said highway, and that the defendant had. full knowledge and notice thereof, and that the same had been located thereon for many years and was so located by virtue of the contract above mentioned. It then sets out that about the time last.mentioned the said defendant without objecting in any way to the presence or maintenance of said line of poles along said highway demanded of the plaintiff therefor compensation; that afterwards the said plaintiff failing to make compensation or conceding the said defendant’s right thereto, the defendant threatened and gave notice to the said plaintiff that unless the said plaintiff paid him a large sum of money for the privilege of having and maintaining said pole line along said highway he would destroy said pole line. And that in violation of the property rights of the said plaintiff, and without any right or authority the said defendant has since that time dug up six of said poles and thrown the same upon the ground upon said'highway and left the same there, with the cross7arms and wires attached thereto, and they remained thereon obstructing public travel and liable to produce serious damages and injury to travelers upon said highway; that the digging up of said poles and prostration of said lines has resulted in putting out of service all telephones on said line to the south of said premises, and cut out from service thereover all of the subscribers with whom the said plaintiff is under contract to furnish said service, and has resulted in the violation of said contract by the said plaintiff ex necessitate. It next alleges that there was consideration of money, and that the defendant had full knowledge of said pole lines.

It alleges that it has reset said poles in the same location and restored the line to its former use and efficiency, but the said defendant threatens to and, unless restrained by the court, will again remove said poles and attempt to destroy said line, and asks that an injunction be granted restraining and enjoining defendant from in any way removing or disturbing said poles, cross-arms, etc., along or on the highway through the farm of the said defendant in Jersey township, above mentioned, or in any way interfering with the use of said lines. And that, on the final hearing, such injunction be made perpetual, and for all proper relief.

To this petition of the plaintiff an answer was filed in which the defendant admits the corporate capacity of plaintiff and the fact that it is operating a telephone line in the village of John-town, county of Licking, furnishing telephone connections with the exchanges mentioned in the petition, and as part of its business located a line on the route described in the petition in the year 1900; he admits that he became the owner of the farm in the petition described after the death of said Martha- Hughes and that at said time the pole line was located on the highway adjacent to said land; he admits that he dug up the poles adjacent to his property and that since that time the plaintiff has reconstructed said line; and he denies each and every other allegation contained in said petition not -herein specifically admitted to be true, and prays that the injunction before that time allowed should be dissolved, and for such other relief as he may be entitled to in law or in equity.

A reply was filed to this answer and an amended and additional reply in which it was alleged that said telephone pole line was so constructed as not to incommode the public and in such a manner as not to discommode or interrupt the access of the said defendant to and from said highway and to his said property. It further alleges that the defendant did not within three months after the erection of said poles, wires and other equipment along said highway, make application to the county commissioners of said county of Licking, alleging any grievance or damage by reason of the construction of said pole line, wires, appurtenances, etc., nor for the appointment of three disinterested persons as appraisers, nor were any appraisers appointed, nor was any appraisement made of any loss or damage claimed to have been sustained by the said defendant by reason of the said line, poles and other equipment, nor were any steps or proceedings taken by the said defendant under the provisions of 3461-2 of the Revised Statutes of Ohio, or at all. And he asks that, the said defendant be barred by reason of the statute above quoted from making the said defense or objecting to the present existence, maintenance and operation of said pole line, wires and other equipment for the purposes mentioned in the said petition, and that by reason thereof has now no right to interfere with the location and construction of said pole line.

By its amended and additional reply filed in this court July 29, 1910, it alleges that the said defendant had full knowledge of the erection of said poles, wires and appurtenances along said highway and of the nature and character of the local and long distance business intended thereby to be transmitted and which was actually thereby transmitted over and across said lines, and that between the year 1900 and the time of the commencement of this action he made no objection to the construction, maintenance and use of said wires as aforesaid, and made no attempt to interfere with said construction, maintenance and use, but acquiesced in the same; and plaintiff says that the said defendant is estopped from now objecting to or from now interfering with the maintenance and use of said poles, wires and appurtenances as aforesaid, and this plaintiff asks judgment as prayed for in the petition.

A temporary restraining order was allowed upon the filing of the petition herein. Afterwards the defendant filed a demurrer to the reply, which demurrer was sustained in the court of common pleas and the petition was dismissed and the case was then appealed to this court, where, at the last term of this Court, to-wit, March, 1911, the demurrer to the reply was overruled and the case was heard upon the evidence and tried upon its merits at this term of court.

Upon all the evidence adduced this court is of the opinion that the equities are with the plaintiff, and that the defendant is without any legal right or authority to remove the poles of the plaintiff so placed upon his lands as set out in the petition; that the plaintiff is in the nature of a public service corporation, and that the- public have acquired certain rights in the services to be rendered by it which the defendant ought not to be allowed to infringe or trespass upon, and that he has a legal remedy without taking the law into his own hands, as alleged in the petition, and admitted by him in his answer to be true; and that the plaintiff is entitled to the relief prayed for in its petition and that the temporary restraining order heretofore allowed in favor of the plaintiff should be made perpetual, and plaintiff recover its costs against the defendant.


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    AS TO THE BAR OF A FORMER JUDGMENT.
    Circuit Court of Hamilton County.
    Addison Y. Reid et al v. George Mathers et al.
    Decided, February 3, 1912.

      Adjudicata — Claim Not Heard on Its Merits Not Affected ly a Former Judgment — Identity of Claims Set Up in Former Suit.

    1. A claim is not barred on tbe ground of res judicata unless sucb claim bas been adjudicated on its merits in tbe former case.
    2. -In the trial of an action for money where tbe defense of res judicata ■is interposed it is proper for tbe court to admit as evidence so much of tbe record of tbe former trial as will aid in tbe determination of such issue.
    3. It appearing from sucb evidence that, in the former action between tbe same parties for damages for breach by tbe lessee of tbe covenants for tbe payment of taxes and assessments, judgment was rendered for an amount which included certain items not then due and paid by plaintiff (lessor); and that upon deciding a motion for a new trial, tbe court, for that reason reduced th§ judgment to tbe extent of sucb unpaid items finding that they were included “by inadvertence” in tbe judgment entry; and it also appearing that tbe plaintiff consented to a remittitur of said excess: Held, that tbe judgment is not a bar to an action for recovery of tbe amount of said assessments thereafter paid.

      Horace L. Smith and H. E. Engelharrdt, for the plaintiffs in error. ^ ■

      Chas. B. Wilby and Oliver S. Bryant, contra.
    Jones, J.; Smith, P. J., and Swing, J., concur.
   Wé think it was proper to admit all evidence in the court' below which tended to prove what the entry of April 21, 1903 in ease No. 121794 in common pleas court really meant. The former judgment could only be a bar to recovery in ease the court in that case decided the claim here sued upon on its merits. It is claimed that this was done; that the court regularly rendered judgment for a sum including the items upon which the petition in this ease is based.

The record bears out this claim.

But, after the ease had been heard and decided by the court without the intervention of a' jury, a motion for a new trial was filed in which there was no mention of mistake or excess in the amount of the judgment. The motion was overruled and in the entry the court, apparently on its own motion, corrected the former judgment entry in the amount thereof, expressly stating that by inadvertence it included certain items or sums of money not yet paid by plaintiffs.

The action was one for damages and the trial court evidently acted upon the theory (correctly, as we think) that where the assessments had not been paid the right of action had not accrued.

But, it is not material whether or not this view was correct. The entry shows clearly that the reduction was made solely for the reason, as before stated, that the assessments had not yet been paid and that the right of action had not accrued. There was, therefore, in the action of the court, no adjudication of these separate items of the account upon their merits.

The use.of the word “remit” in the final entry can not change the rights of plaintiffs as the manifest intention was to consent to the reduction only, and this, for the reasons given by the trial judge. There is no waiver, express or by implication, of the items of the account which the court found have been erroneously included in the judgment. There is no remittitur of the claim, but simply, “from said judgment.” There is no language in the entry that could be construed into a voluntary' relinquishment of the claim.

The verdict below and judgment thereon are sustained by the evidence and we find in the record no prejudicial error.

Judgment affirmed.


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    LIABILITY FOR COST OF ELECTION BOOTHS.
    Circuit Court of Lucas County.
    Henry Conrad v. David T. Davies, Jr., Auditor of Lucas County.
    Decided, October 5, 1907.

      Election Booths — Where Constructed for .Municipal TJse Must Be Paid for W Municipality — Submission of Question which Might Become the Subject of a Civil Action — Sections. 2966-27 and 5207, Revised Statutes.

    A county is not liable for the cost of election booths constructed for use within a municipality located in that county.

      G. S. Northup and C. E. Masters, for plaintiff.

      L. W. Wachenheimer, Prosecuting Attorney, and Ben. W. Johnson, Assistant Prosecuting Attorney, contra.
    Wildman, J.; Haynes, J., and Parker, J., concur.
   This is a proceeding brought under Section 5207 of the Revised Statutes, as to the submission of a controversy to .a court without pleadings and upon an agreed statement of facts. • The section reads:

“Parties to a question which might be the subject of a civil action may, without action, agree upon a ease containing the facts upon which the controversy depends, and present a submission of the same to any court which would have'jurisdiction if an action were brought; but it must appear by affidavit that the controversy is real, and the proceedings in good faith, to determine the rights of the parties; and the court shall, thereupon, hear and determine the ease, and render judgment, as if an action were pending.”

The preliminary proceedings under this section have been followed and the court is satisfied that the submission is in good faith and'by parties between whom a controversy has arisen which might be the subject of a civil action. The situation is, briefly, this: This plaintiff, Conrad, is a contractor who entered into an arrangement with the board of deputy state supervisors and inspectors of elections for the city of Toledo, Lucas county. Ohio, to build certain election booths for an aggregate price, as shown by the agreed statement, of $7,245. He has so far carried out the arrangement as to have constructed booths amounting under the agreed price to $6,800, and has received his pay for a part of this amount — $3,000—leaving still his due $3,800. The board of supervisors and inspectors, on or about September 3d, 1907, approved this claim, finding that there was then due and payable to him upon the contract said sum of $3,800, and they directed the defendant, the county auditor, Davies, to issue an order upon the treasurer of said Lucas county to pay the sum out of the moneys of said county in his custody, under his control as such treasurer. The claim was then presented to the auditor with the demand that he issue his warrant upon the treasurer for the .amount, and this the auditor refused and still refuses to do. The agreed statement shows that the city of Toledo, located in said county, at the last federal census, had a population of more than 11,800; which allegation is material as to certain sections of the statutes supposed- to be applicable to the present claims. The plaintiff asserts and the defendant denies that by reason of the facts agreed upon, the plaintiff would be entitled in an action in mandamus, if one were in this court, properly commenced and prosecuted, to have a peremptory'writ issued in his favor commanding the defendant to issue his warrant upon the treasurer as aforesaid. Both parties pray the court to hear and determine the case and render judgment as if an action in mandamus upon the relation of plaintiff as relator, against defendant as defendant, were heard and now pending upon said controversy.

The sections of the Revised Statutes which have direct or indirect bearing upon the question submitted to the court here, are 2966-27; 2926'f and 2926d: There are some other sections which should be read in connection with these, perhaps, but they are so closely associated with them in the statutes that I will not stop to make more specific reference to them; nor do I cafe to make any detailed analysis of these three sections. We are disposed to adopt the view contended-for by the assistant'prosecuting attorney, representing the defendant, of Section 2966-27, enacted thirteen years ago, as being practically, by virtue of later legislation, although not specifically, repealed. It is, we think, repealed, or at least modified, by implication, by virtue of the repealing clause in 97 O. L., page 241, applicable to acts and .parts of acts inconsistent with this later legislation. The contention of the contractor, through his attorneys, is, that Lucas county is liable under the existing statutes for the costs of these election booths constructed for use within the city of Toledo. The language of the sections to which I have referred is somewhat ambiguous and difficult of construction. A literal and technical interpretation of their phraseology may justify the claims of the relator. We are not, however, disposed to adopt such construction, or any construction which would result in throwing the burden of the costs of constructing election booths to be used entirely within the municipality of Toledo, upon the county of Lucas and requiring payment therefor from the county treasury while the expenses incident to the taking of the votes in township precincts or in the precincts in non-registration towns is borne entirely by the taxpayers outside of the city of Toledo; we think that the construction of the statutes contended for by the assistant prosecuting attorney, while it may not meet the technical phraseology of these sections, is such as must have been contemplated by the Legislature in the enactments. The courts should not adopt a construction of the statutes which will be an unreasonable construction, and one which can not be presumed to have entered into the minds of the Legislature in their enactment. And this view as to our duty in the rule of construction, is the governing principle with us in the present case. I might tarry to discuss the precise meaning of words and phrases used by the Legislature in the sections to which I have made reference, but it would not be profitable and it suffices that it is the judgment of the court that the contention of the plaintiff here — Conrad— should not prevail; that the county of Lucas is not liable for the. cost of these booths, and the writ prayed for is refused; and the petition dismissed. The costs will be upon the plaintiff.


text:
    STREET RAILWAY CONSENTS.
    Circuit Court of Cuyahoga County.
    Taylor Emerson v. The Forest City Railway Company.

    Decided, October 29, 1906.

      Municipalities — Action By, in Dual Capacities — Jurisdiction so to Do in the Matter of Street Railway Consents — Not in Derogation of the Rights of Minority Owners Who Oppose Building of the Line— Sections 1536-185 and 31/39, Revised Statutes.

    It is not against public policy for a municipality to act in the dual capacity of grantor - of a street railway franchise and as consenting in the capacity of an abutting land owner to the building of the line, notwithstanding the city’s frontage is necessary to make up the requisite one-half of the frontage from which “consents” must be secured.

      Squire, Sanders & Dempsey, for plaintiff in error.

      Garfield, Howe-é Westenhaver and Gilbert H. Stewart, contra.
    Henry, J.; Marvin, J., and Winch, J., concur.

       Affirmed without opinion, Emerson v. Forest City Railway Co. et al, 77 Ohio State, 596.

   This is an appeal from the judgment of the common pleas court denying a permanent injunction against the exercise by the defendant of' its alleged street railway franchise On East Fourteenth street for want of the necessary majority of abutting owners’ consents. It is admitted that the .production of sufficient consents is jurisdictional and that without them the council is without power to grant a franchise. If the Fourteenth street frontage of the Erie street cemetery property' owned by the city is to be included in estimating the total frontage, and if the city’s consent given pursuant to ordinance of its council can be counted to make a majority, then the injunction should be denied.

The sole issue is thus one of law depending upon the construction of Sections 1536-185 and 3439, Revised Statutes, the latter of which reads in part as follows -.

“No such grant shall be made until there is produced to council, or the commissioners, as the case may be, the written consent of the owners of more than one-half of the feet front of the lots and lands abutting on the street or public way, along which it is proposed to construct such railway or extension thereof, ’ ’ etc.

And in part of the other section referred to is substantially the same provision.

The literal reading of these sections is against plaintiff’s contention. But it is urged that since the privilege of abutters to give or withhold their consents is a personal right given to them for their protection against the granting' of the right to operate a street railway in front of their premises contrary to their desire and interest, it is against public policy for the city, in its adversary and dual capacity as both land owner and grantor of the franchise, to confer upon itself jurisdiction to act in derogation of their rights.

There is of course a suggestion of anomaly in this situation. Various .analogies of action by public officers in dual capacities have been instanced, but we have found none which precisely meets this situation. It is not easy to see why the city as land owner should be deprived of the privilege enjoyed by land owners generally .of favoring the establishment of a street railway by giving consent, where a street railway is deemed to be beneficial to the abutting property. And it is apparent that the denial of that privilege might hinder or prevent the establishment of a street railway along a street bordered largely or wholly by property belonging to the city, and that, too, when ease of access to such property by the public is peculiarly desirable, as in the case of city parks.

It is, indeed, conceivably true that the interest of the city as a whole may be favorable to the construction of a street railway along a street where its own and other abutting lands would be depreciated thereby, and that it may thus force the establishment of a street railway against the interests of the owners of abutting private property. But the same, argument, in some degree, Would lie against the right of any other public corporation, owning abutting city lands, to give or withhold consent to the construction of a city street railway in front of its property. Yet the right of the federal, or state, government, or of a county, or school district, in this behalf is, we believe, unchallenged. This privilege being personal to the owners of abutting lands, may be exercised even to the manifest detriment of the land itself, if they so please. Can it be doubted that a street railway company may, as owner of abutting lands, yield the decisive consent to the grant of a franchise to itself ? It having been decided that consents may be purchased, can it be seriously claimed that any abutting owner who refuses to yield his consent can invoke high considerations of public policy against the contrary exercise of the same privilege by any owner, though it be the city itself, upon the ground of biased judgment, impure motive, conflicting duties, or cross interests ? Can supposed public policy of so doubtful a nature operate to vary the plain letter of the law? We think not.

Viewing the question from another standpoint and considering the history of this legislation, the rule of majority consents was formerly founded on assessed valuations of abutting property, so that owners of property exempt from taxation had no power to further a street railway project by their consents. When the Legislature changed this basis to that of foot frontage, it obviously had this fact in view. It could hardly have escaped attention that the change thus made would affect property owned by the city. Yet the Legislature made no exception of city property. If it had expressly conferred upon municipalities the privilege of giving consent in respect of their property abutting on proposed street railway routes, it can hardly be claimed that considerations of public policy would defeat such provision. And the same conclusion results from the reasonable presumption that the Legislature must have had in contemplation the plain application and natural meaning in this behalf of the language it did employ.

If abuses arise from the literal interpretation of the law, it is much better that the Legislature should amend the law than that the courts by judicial legislation should attempt to do so.

The injunction will be denied, as upon final hearing, and the petition dismissed at the plaintiff’s costs.


text:
    UNAUTHORIZED CHANGES IN TAX DUPLICATE.
    Circuit Court of Cuyahoga County.
    H. M. Brooks et al v. M. A. Lander, Treasurer of Cuyahoga County, et al.

    Decided, March 28, 1905.

      Taxation — County Auditor May Restore Deductions Made in the Tax Duplicate — By a Board Acting Under an Unconstitutional Law— Fundamental Errors' — De Facto Officers — Identity of Powers.

    The decision of the Supreme Court which ousted the board of equalization and assessment in the city of Cleveland, authorized the county auditor to thenceforth treat as clerical errors the changes which had been made in the tax duplibate pursuant to the order of said board arid to correct them in accordance with the current duplicate.
    W. W. Boynton and Smith & Taft, for plaintiffs.

      C. W. Stage and Z.-T. Armstrong, contra.
    Henry, J.; Marvin, J.j and Winch, J., concur.

       Afflriried, without opinion, 74 Ohio State, 428,

   This cause is here on appeal, having been commenced in the Cuyahoga common pleas court to enjoin the .collection of certain taxes. After the board of equilazation and assessment in the city of Cleveland was held, in State, ex rel, v. Molyneanx, 58 O. S., 736, and Gaylord v. Hubbard, 56 O. S., 25, to have been acting under an unconstitutional law, the county auditor expunged from the duplicate certain deductions from the taxable valúes of real estate made pursuant to the orders of said board. The persons affected now seek to have those deductions restored.

If the deductions, which the auditor thus corrected or expunged, can.be regarded as .mistakes, in the sense of being erroneous and void, they were in our opinion such mistakes as under Section 1038, Revised Statutes, as construed in State, ex rel, v. Raine, 47 O. S., 448, he was entitled so to correct. It is, however, contended by the plaintiff that those deductions were not erroneous, but valid, as having been regularly made by de facto officers in the exercise of powers which they were presumed to possess under color of then unchallenged law. It is pointed out that this court has refused to undo the acts of that board so far as their operation and effect are concerned prior to the decision in State, ex rel, v. Molyneaux, supra. And the present case proceeds upon the theory that a like rule may be invoked with respect to the prospective operation of the same acts.

No case has been cited to us, and we know of none which thus applies the doctrine of de facto officers to the prospective operation of acts performed by incumbents of merely de facto offices. It is claimed, however, that this was not merely a de facto office, but that it falls rather within the principle of Kirker v. Cincinnati, 48 O. S., 507. That was a case where one board was- supplanted by another having the same powers. The decision turned on this identity of powers. In the ease at bar the board was attempted to be clothed with powers substantially different from those conferred by the general statute. It was expressly so held in Gaylord v. Hubbard, supra.

It is claimed, however, that the powers here exercised were not those which differentiated this act' from the general statute, but were in fact those authorized by general law. This claim does not, in our opinion, serve to bring this or any other action of'this board within the rule of Kirker v. Cincinnati, supra. The fact remains that this board can not. be so identified with any pre-existing board as to validate the prospective operation of its acts. Whatever vitalizing power the law which created the board may have given it with respect to the operation of its acts within its lifetime, it is-certain that such power ceased when the board was ousted. Thenceforward it was void so far, at least, as any prospective effects thereof are concerned.

In the unreported case of the State of Ohio, ex rel Arma M. Marshall et al, v. A. E. Akins, etc., decided May 12, 1899, this court did indeed determine that taxes paid without protest on additions made by this board while its status was yet unchallenged could not be recovered back, and that it was not a mere clerical error for the auditor to omit to declare this statute unconstitutional and void and to disregard the orders of the board under it. The error was a fundamental'one and not to be reached by mandamus against the auditor. With that decision we are still content. But we now hold that the decision of the Supreme Court, ousting the board, authorized the auditor thenceforward to treat as clerical errors the changes which had been made in the tax duplicate pursuant to the board’s orders, and to correct them accordingly in the current duplicate. The petition is therefore dismissed.


text:
    REMARKS OF A PREJUDICIAL CHARACTER BY JUDGE IN HEARING OF. JURY.
    Circuit Court of Hamilton County.
    Levi P. Hazen et al v. The Morrison & Snodgrass Company.

    Decided, December 23, 1911.

      Reversible Error — Results from. Prejudicial Remarles by Trial Judge — ■ Influence on Jury of Display of Bias or Prejudice by the Court.

    Statements made by a trial judge during the progress of the trial and within hearing of the jury, are of the same effect as though embodied in the charge to the jury, and where such remarks exhibit a bias against either party to the case, or an opinion on the part of the judge as to the credibility of witnesses or an opinion on his part as to the facts of the case, prejudicial error results and a reversal becomes necessary of the judgment obtained under such conditions.

      Littteford, James, Frost & Foster, for. plaintiff in error.

      Robertson $ BucTuualter and John G. Eealy, contra.
    Smith, P. J.; Swing, J., and Jones, J., concur.

      For opinion below, see 10 N.P.(N.S.), 353.

   ' ' The action below was one to recover $26,961.62 from plaintiffs in error on.account of an alleged fraudulent contract entered into between Levi P. Hazen, Alexander T. Hazen and Silas L, Snodgrass.

There are thirty-four similar counts in the petition of which the first may be taken as a sample.

This cause of action alleges that the plaintiff, the Morrison & Snodgrass Company, is a corporation organized under the laws of Ohio, and complains of the defendants, Levi P. Hazen and Alexander • T. Hazen, partners doing business under the firm name of'L. P. Hazen & Company, and Silas L. Snodgrass, and says that at the times hereinafter named said Silas L. Snodgrass was its duly elected secretary and treasurer, authorized and empowered by it to make estimates on the value of mill-work in the building trade and to make contracts in its name and behalf therefor.

That his co-defendants, Levi P. Hazen and Alexander T. Hazen, were building contractors, and well knowing the employment and the trust reposed by the plaintiff in said Snodgrass, did on or about the 19th day of June, 1903, wrongfully, corruptly and fraudulently agree with the said Snodgrass, and he 'with them, to make and did make a contract by and between the plaintiffs and the said.L. P. Hazen & Company to furnish said firm the mill-work for a certain building in the city of Cincinnati of the true value of $4,765, or more, for the nominal contract price of $3,000, to be paid to the plaintiff; said plaintiff delivered said mill-work to said L, P. Hazen & Company; said defendants wrongfully, corruptly and fraudulently intending and agreeing to divide between themselves all value thereof in excess of $3,000, to-wit, the sum of $1,765, or more, the exact portion thereof to be given to said Snodgrass and said Hazens the plaintiff can not definitely state, but that the said Hazens did distribute and pay to said Snodgrass individually on or about November 25, 1903, in pursuance of their said wrongful, corrupt and fraudulent agreement the sum of $500, and did retain to themselves about the sum of $1,265 of the said value of said mill-work in excess of said nominal contract price of $3,000, which sum of $3,000 was accepted by the plaintiff, without any knowledge of said corrupt and fraudulent agreement between the said defendants.

That all of said money paid to Silas L. Snodgrass and retained by said Hazens, to-wit, the difference- between said sum of $3,-000 and the true value of said mill-work, was justly due to the plaintiff, which the defendants fraudulently converted to their own use, and it was thereby damaged in the sum of $1,765 with interest from November 25, 1903. ■

Each of the defendants filed answers denying these allegations.

The ease was tried to a jury, who returned a verdict of $13,-200, upon which judgment was subsequently entered by the trial court; and to reverse which judgment this suit in error is brought.

The first error complained of is, that competent proof was not offered by defendant in error to establish the true value of the mill-work that was fraudulently sold. In this regard we think the evidence offered was competent and that no error was committed by its admission.

The second ground of error urged upon the court consists in statements made by the trial judge during the progress of the trial, which it is claimed were prejudicial to plaintiff in error. Without setting forth in detail the matters complained of in this regard, it seems to us that they are sufficient to justify the reversal of the judgment of the court. It is well understood that juries are influenced by the language of the presiding judge, and in fact the law recognizes this. In his charge to a jury the court can readily sway it in its judgment; if he expresses an opinion on any disputed fact or upon the character of a witness which in any way tends to prejudice the jury, he commits an error of law, for which the verdict and judgment should be set aside. The facts of a ease and the credibility of witnesses are solely for the determination of the jury, and statements of the court during the trial practically have the same effect as though they were embodied in its charge.

In the case at bar it is evident from the record that the suit was a very bitterly contested one. Many disputed facts arose. We are mindful of the fact, that a verdict of the jury in any case should not be set aside, unless the error claimed is such that it affects the substantial rights of an adverse party to the suit, or is prejudicial, but we believe from the record that such is this case.

Undoubtedly, any remarks of the presiding judge made in the presence of the jury, which have a tendency to prejudice .their minds against the unsuccessful party, will afford grounds for a reversal of the judgment. 1 Thompson on Trials, Section 218.

During the trial the judge should refrain from making any unnecessary comments which might tend to a result prejudicial to a litigant, and when calculated to influence the minds of the jury, such remarks constitute grounds for reversal. 38 Cyc., p. 1315.

The question of the credibility of witnesses is solely for the determination of the jury, and it is improper for the court to comment on or express an opinion directly, or by implication, on the credibility of the witnesses. The reason is that words or conduct of the trial judge may on one hand support the. character or testimony of a witness or on the other may destroy the same in the estimation of the jury, and thus his personal and official influence is exercised to the unfair advantage of one of the parties with a corresponding detriment to the cause of the other. 8 Cyc., p. 1320.

Remarks of a trial judge showing bias in favor of one of the parties constitute prejudicial error. So it is ordinarily held to be reversible error for him to make remarks which will tend to incite prejudice or hostility in the minds of the jury towards one of the parties, and sympathy for the other and it has been held in a number of cases that the error is not cured by directing the jury to disregarded the remarks. 38 Cyc., p. 1321; State v. Tuttle, 67 O. S., 440; Insurance Co. v. Howle, 68 O. S., 614; McDuff v. Detroit Evening Journal Co., 84 Mich., 1.

We think there is error also in the charge of the court as disclosed on pages 772, 790 and 791 of the record and also in that portion of the charge in which the court speaks of the Latin maxim “falsus in unim, falsus in omnibus”; also on page 783.

Counsel for defendant in error practically admit the existence of the above errors, but insist, that they are not prejudicial and did not influence the jury.

In this respect we can not agree with counsel, as the questions in dispute in the case at bar were such as that the minds of the jury should have been left free to determine the truth or falsity of the charge.

For these errors in the record the judgment of the court will be reversed and a new trial ordered.


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    ACTION FOR WRONGFUL DEATH FROM BURSTING OF AN EMERY WHEEL.
    Circuit Court of Huron County.
    Eva Hazelbach, Administratrix, v. Ohio Cultivator Co.
    Decided, 1910.

      Negligence — Emery Wheel Bursts — Workman Struck and, Killed— Necessary Allegations in Action for Damages — Knowledge of Speed at Which Wheel Was Running — Assumption of Risk— Circumstantial Evidence as to Cause for Wheel Bursting — Master and Servant — Trial.
    1. A petition alleging that an emery wheel was operated on a certain day at an unusual, excessive and dangerous rate of speed, which caused it to burst and kill plaintiff’s decedent, is good as against the claim that in addition to showing a defective condition or a danger-bus place to work, the petition must also allege a lack of knowledge of the defect or the danger on the part of the deceased.
    2. Where an emery wheel, operated at a high and dangerous rate of speed, bursts and kills an operative, and the allegations and proof show that the deceased was a skilled operative and had worked for a period of five or six years at this occupation, it can not be said as a matter of law that he assumed the risk of the danger attending revolution of the wheel at such a dangerous and excessive rate of speed, in the absence of proof showing that he both knew the rate of speed of the wheel and the danger attending the operation of such a wheel at that rate. The mere knowledge of the rate of speed itself would not be sufficient to charge him with assuming the risk, unless he also knew, the danger attending that particular rate of revolution. Pennsylvania Co. v. McCurdy, 66 Ohio St., 118, distinguished.
    3. Where there is no direct evidence of the cause of the bursting of an emery wheel and it is claimed that excessive speed caused it to hurst, and the proof shows that the wheel was being operated at a rate of speed likely to cause it to burst, and a piece of the broken wheel shows a gouge in its face which might have been caused by the material being ground between the wheel and rest attached to the machine, and the proof further shows that such catching is also likely to causé the bursting of a wheel, unless there is proof that the latter cause was more probable thkn the other the case should be left to the jury to decide as to the cause of the bursting.

      Ben. B. Wickham, L. W. Wickham, for plaintiff in error.

      A. "V. Andrews, contra.
    Kinkade, J.; Parker, J., and Widdman, J., concur.
    Error to Huron Common Pleas Court.
   This was an action brought to recover for the negligent hilling of John Hazelbach, upon the bursting of an emery wheel he was working upon in the factory of the defendant.

The petition alleges three grounds of negligence:

First, that the wheel was run at a high, unusual, excessive and dangerous rate of speed that caused it to burst; second, that the wheel was one different from what had usually been used in the factory and was of a character likely to burst;.third, that no guard was used in the use of the wheel as it should have been.

No proof was offered on the last two grounds of negligence mentioned, but the case was tried on the ground of excessive and unusual speed causing the wheel to burst by that alone.

At the close of the plaintiff’s case, the court directed a verdict for the defendant on the motion of the defendant, and as appears by the file mark of the. amended petition, but nowhere else, an amended petition was filed in which the plaintiff alleged that John Hazelbach did not know the dangerous rate of speed, or did not know that the speed was dangerous. The amended petition does not mention any journal entries that were furnished, but we find by reference to the file mark, on the back of it, that it was filed in the case.

It is said that the petition, with the last two grounds of negligence out of it upon which no proof was offered, does not state a cause of action because it does not contain this matter that was in -the amendment to the petition; and that the amendment to the petition should not have been allowed to make it good, after the court had.decided to take the case from the jury, and put into it that which was essential it should have; and, consequently, the court was wrong in allowing this amendment to the petition, although the court was right in withdrawing the case from the jury.

- We are cited to Chicago & Ohio Coal & Car Co. v. Norman, 49 Ohio St., 598; Coal Co. v. Estievenard, 53 Ohio St., 43, and Hessee v. Railway, 58 Ohio St., 167, as supporting this proposition. 'We think the authorities cited do not go to the length contended for by counsel. It is not the case of defective machinery ór a dangerous place in the sense contemplated in’ this ease. The allegation in the petition is that at this time, not for a long time prior to this, but at this particular time, on the day mentioned, the wheel was caused to be revolved by the negligence of the defendant at a high, unusual, excessive and dangerous rate of speed, and it is said that because the petition does not contain the statement that plaintiff did not know the rate of speed, and that if he did know, he did not know it was dangerous, that the petition is so defective as that the case should have been taken from the jury. We can not concur in that proposition; we think the petition was good in that regard. Proof was put in without objection, as counsel for plaintiff in error contend, because he could not object and have it sustained to any proof coming i-n, there being the other two allegations of negligence in the petition.

It is said now, that the court was correct in taking this case from the jury because John Hazelbach, as shown by the record, to have been an experienced employe and -therefore under the authorities, Pennsylvania Co. v. McCurdy, 66 Ohio St., 118, he must be held to have known, and knowing, to have assumed the dangers arising from the matter of which the plaintiff in error now complains; he must be held not only to know the speed, but he must be held to know the probable result of that speed. We think this is carrying it further than the doctrine in any case has carried it; we think it is not true that because a man knows the speed at which a machine is moving, or a wheel is moving, that it necessarily follows that he knows the result of that speed and that the centrifugal force generated is sufficient to burst that wheel with the same result as obtained in this case. In -fact, the court declined to hold that a man with far more experience, as we view it, not in operating the wheel, but generally in this factory,' could tell what his judgment was as to whether 1400 revolutions were dangerous or not; but when we come to tbe testimony of tbe experts in this case, we think this record very fairly shows that a speed of 1400 revolutions was a highly dangerous rate of speed for a wheel of this dimension, 18 inches.

The testimony of one of the witnesses we think was sufficient to take the case to the jury upon the question of negligence in employing that rate of speed at that particular time. The petition does not state or allege that it was the usual rate of speed, but alleges it was an unusual rate of speed.

It is an open question under the evidence as to whether it was the speed at which that wheel was run.

We 'think upon an examination of the record that it can not be successfully claimed that this man, with the experience that he had, must be held to know either the speed accurately, or the result of the speed and there being evidence in the case that the speed is dangerous at 1400 revolutions per minute, evidence for the jury to consider, in that regard at least, and reaching the conclusion that we do, we think this man is not bound, although a man of some years’ experience, to know the effect of a wheel revolving at that rate of speed.

We think those two facts standing alone in this regard are sufficient to take this case to the jury and that therefore the action of the court below in withdrawing it from the jury was erroneous and that the judgment of the court of common pleas must be reversed accordingly.

I might add here that it is contended on the part of the defendant in error that the gouge shown upon the face of the wheel taken in connection with the evidence in the case, clearly showed that this accident was just as probably due to some other agency as it was to the bursting of the wheel by an excessive and dangerous rate of speed at which it was revolved. This on the authority of Lake Shore & M. S. Ry. v. Andrews, 58 Ohio St., 426.

We have carefully considered that phase of the- case in connection with the evidence, and we think it is not of such a character as would at all justify the court in saying, with that evidence in and with the other evidence in the case relating to the exploding of' the wheel by virtue of its dangerous rate of revolution, that one was just as probable as the other and for that reason that he might withdraw the case from the jury. We think that was to be considered with such weight as it has, and that it certainly should have passed to the jury.


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    WAGON STRUCK AT A RAILWAY CROSSING.
    Circuit Court of Hamilton County.
    The Norfolk & Western Railway Company v. Stella Beck, Doing Business as the Anchor Box Company.
    Decided, January 20, 1912.

      Negligence — Want of Oare on Part of Driver — Forbidding Recovery ■ for Accident cut Railway Crossing — Judgment Given on Review for the Railway Company.

    Where suit has been brought for damages on account of the striking of a horse and wagon by a railway train at a crossing, and the railway employes are shown to have exercised the degree of care exhibited in this case, and lack of care on the part of the plaintiff’s driver is shown to the degree testified to in this case, a • judgment in favor of the plaintiff in the court below will be reversed and judgment entered for the plaintiff in error.

      Hollister & Hollister, for the railway company.

      Thorndyke & Gapelle, contra.'
    . The defendant in error recovered a verdict below of $229.64, on account of injury to a horse and wagon and its load from being struck by one of the N. & W. trains at Langdon and Floral avenues, Evanston.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   In. this case it is urged by plaintiff in error that no negligence is alleged in the petition; that no case of negligence is made out by the evidence on the part of plaintiff in error; and that the agent of defendant in error who was driving the wagon at the time of the accident was guilty of contributory negligence.

The acts of negligence alleged in the petition are, “that at the time of the accident, plaintiff’s wagon was being driven along the public highway leading through Evanston, and that the defendant, by its agent, in approaching said crossing ran said train with great speed and omitted to give any signal by bell or whistle or otherwise of its approach.”

Assuming that these facts would constitute negligence on the part of the plaintiff in error, the question presented is, whether or not these acts of negligence are proven.

In this respect we think the plaintiff has failed. The overwhelming evidence is," that at 1200 feet from the crossing, at the whistling post for the crossing, the engineer sounded the whistle, the fireman began to ring the bell and continued to do so up to the time of the accident, and the train was only running at from eighteen to twenty miles per hour. That as soon as the engineer and the fireman saw the horse upon the track, which was at a distance of 200 feet therefrom, being upon a curve, the engineer did all that he could to stop the train and did stop it within the train’s length, at which time the wagon was right at the back of the baggage car. No witness testifies that the bell was not rung or that the whistle was not sounded, and according to another witness who was at the point of the accident at the time thereof, and first saw the driver walking away from the railroad track leaving his wagon stuck on the roadway.

The court is of the opinion, therefore, that the evidence clearly shows negligence on the part of the driver of the wagon, and that none is disclosed on the part of the railway company.

In this view of the case it is not necessary to consider other errors alleged.

The judgment of the court below will be reversed and judgment entered in this court for plaintiff in error.


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    STATUS OF A GENERAL JUDGMENT WHERE TWO ISSUES ARE PLEADED.
    Circuit Court of Cuyahoga County.
    George F. Gund v. The Cleveland Store Fixture Company.

    Decided, March 11, 1907.

      Judgment — Error Relating to. One Issue Only — Rot Ground.for Setting Aside a General Judgment — Action against Guarantor of a Vendee.

    Where there are two aspects under which the claim of plaintiff might he. established, and the jury found in his favor, the judgment will not be reversed for error relating to one issue exclusively, but will be affirmed unless the errors complained of are of such a • character as tó vitiate the vérdict as ,to both issues.

      Meyer & Moo.ney, for plaintiff in error.

      Carr, Stearns & Chamberlain, contra.
    Henry, J.; Wiñch, J., and Marvin, J., concur.
    Error to court of common pleas.

       Affirmed without opinion, Gund v. Cleveland Store Fixture Co., 79 Ohio State, 446. -

   The Cleveland Store Fixture Company recovered a judgment below against George F. Gund, as guarantor of payment by the vendee in a contract for bar furniture to be furnished by said company.

• In the view wé take of this case, it is unnecessary to consider the question whether there is a defect of parties. Gund’s guarantee was endorsed on the written contract of sale. By a separate written instrument the company promised Gund that the bar furniture should be accompanied with a union label, and this promise, he alleges in his answer, was not complied with. The plaintiff company in its reply alleges in substance:

1st. That the written promise in regard to the union label was executed and delivered subsquently to the endorsement by Gund of his guarantee upon the contract of sale, and that it was without consideration and'void.

Second. That even if valid, the promise was fully performed, not indeed by furnishing bar fixtures that were wholly union made, but by tendering to the vendee a union label that had been in the company’s possession from a former time when it carried on a union shop.

This label, it was claimed, was specifically contemplated by the terms of the written promise.

Upon the issues thus joined the jury found generally for the plaintiff company .and against Gund.

It is obvious that this result may have been reached through either of the claims set forth in the reply. If the promise in regard to the union label was made after the guarantee, and was thus without consideration and void, it is unimportant whether plaintiff fulfilled it or not. If, on the other hand, the promise means what plaintiff claims, and was fulfilled according to its meaning, it is immaterial whether it was valid or invalid. The verdict as returned implies that the union label promise was an after consideration, and therefore, unforceable; also that it was performed according to the meaning and intent of the parties. It follows that unless the errors complained of here are such .as to- vitiate both aspects of the verdict, the judgment must be affirmed, inasmuch as the verdict and judgment can rest indifferently upon either ground. McAllister v. Hartzell, 60 O. S., 69, 95; Smith v. Gardner, 57 O. S., 666; National Union v. Rothner, 57 O. S., 679; Beecher v. Dunlap, 52 O. S., 64; Tod v. Wick Bros. & Co., 36 O. S,, 370, 389; Union Cent. Life Ins. Co. v. Sutphen, 35 O. S., 360.

(See, however, The Pennsylvania Company v. Miller & Co., 35 O. S., 541, overruled, though not indeed on this point by Railroad Company v. The Bowler & Burdick Company, 63 O. S., 274, 287.) Butler v. Kneeland, 23 O. S., 196, and Sites v. Haverstick, 23 O. S., 626.

The errors complained of relate chiefly, if not wholly, to the latter issue, and we think one or two of the points made by plaintiff in error as to the admission and exclusion of evidence, are well taken. On the other issue the evidence is in sharp conflict. Mr. Gund testifying that the written promise in regard to the union label was executed and delivered before his guarantee was endorsed on the contract of sale. On the other hand the Cleveland Store Fixture Company’s agent testifies just as distinctly that it was executed afterwards. The jury is the tribunal appointed by law to solve contradictions of this sort, and we can not disturb its finding in this case as being- unsupported by the evidence; nor do we find any error in the record affecting the proper submission of this issue to the- jury.

It follows, therefore, that the judgment below must be affirmed.


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    LIABILITY OF ASSIGNEE FOR RENT.
    Circuit Court of Hamilton County.
    Assignment of Frank W. Hopkins.
    Decided, January 6, 1912.

      Assignments for the Benefit of Creditors — Liability for Rent of Premises Occupied in Continuing the Business.

    Ttie fact that the lessor of premises occupied by an assignee for the benefit of creditors signed, together with the general creditors, an application for an order continuing the business, does not bar payment of rent by the assignee as part of the -expense of administering the trust, where the lessor signed the application for a continuance of the business with the understanding that his claim for rent should not be affected thereby.

      B. P. Hargitt, for plaintiff in error.

      Worthington <& Strong, contra.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   Under the evidence in the above ease with the law applicable thereto, it is apparent that the assignee of Frank W. Hopkins, by reason of the order of the court of insolvency to carry on the business of the assignor and the acceptance of the lease of the real estate, as well as the estate, became liable for the rent agreed upon in the lease. This being so, to relieve himself from personal liability, he and the general creditors in two papers ask the court of insolvency to order the continuance of the business and at the same time relieve him from all personal liability, by reason of his conducting the same; and they agreed that so far as they were concerned he should be so released. He continued in the possession of the leased premises as assignee for a certain period, and there is no doubt that the rent for-the use of the same was an expense attendant upon the continuation of the business, and should be paid as such by the assignee in administering the trust estate, unless the’ lessors' have waived, such order or claim.

In this regard we find nothing in the paper signed by the agent of the lessors of the real estate, that in any way indicates such a waiver or agreement. The testimony on this point, and' which we think was competent, distinctly shows that the application of the creditors -to continue the business was signed by the agent óf the lessors upon the understanding that their claim for rent should not be affected thereby, and that the object of the application was solely to relieve the assignee from personal liability for debts incurred by him in the running of-the hotel.

For the above reasons the judgment below is affirmed.