author: HAYNES, J.

text:
    RAILROADS.
    [Ottawa (6th) Circuit Court,
    February 2, 1902.]
    Haynes, Parker and Hull, JJ.
    Lake Shore & Michigan Southern Ry. Co. v. George Wahlers et al.
    Proof of Compliance with Sec. 3365-1 Rev. Stat., as To Spark-Arrester on I/Ocomotive, Sufficient Defense.
    Where the evidence offered by the plaintiff in an action against a'railway company, under Secs. 3365-5 and 3365-6 Rev. Stat., to recover for property destroyed by sparks from defendant’s locomotive, tends to show that the fire was caused by sparks from such locomotive, though there is no direct evidence to that effect, evidence on the part of the defendant that it has complied with all the requirements of Sec. 3365-1 Rev. Stat., that such locomotive was properly equipped with a spark-arrester that would most effectually guard against the emission of fire and sparks, was in the hands of an experienced engineer and fireman, and was being run in a proper manner and without emitting any sparks, constitutes a good defense to such action.
   HAYNES, J.

The original action was brought by Wahlers against the Lake Shore & Michigan Southern Railway Company to recover the value of a load of hay that was burned, as is alleged, by sparks from a locomotive belonging to the railway company, at the time it was passing the farm of the Wahlers. The wagon loaded with hay was standing on the premises of the Wahlers adjacent to the railroad company’s right of way. The suit was brought under Secs. 3865-5 and 3365-6 Rev. Stat., and also involves Sec. 3365-1 Rev. Stat. The plaintiffs below offered testimony tending to show that the fire caught from sparks from a locomotive, at least the facts were such that the jury might so infer, no other cause being apparent, although no one saw the sparks as they flew from the locomotive to the wagon.

The plaintiffs having shown this, the defendant moved the court to instruct the jury to return a verdict for the defendant, which the court properly overruled. The defendant then offered testimony tending to show that the locomotive which was in use on this occasion was fitted with a spark-arrester, and that it was in charge on the day in question of an engineer of very large experience, who had with him a fireman, who also had experience in firing locomotives. The testimony of these witnesses is that the engine was in good order on the day in question and that it was not emitting, so far as they could see, any sparks whatever, and that the train was running in the general manner, the fire having occurred in the day time, probably not far from twelve o’clock, noon.

The defendant also offered testimony showing that the locomotive had been inspected at the shops of the company very recently, more than once, and was inspected again immediately after the alleged burning of the wagon, and that on each of these occasions the locomotive was in good order and the spark-arrester was in perfect condition.

Counsel for the defendant, in examining his witnesses, usually put the question to them in regard to this spark-arrester, as to whether the locomotive was equipped with a spark-arrester, such as is usually or ordinarily used by railroad companies. We think in that respect he did not go far enough to comply with the requirements of Sec. 3365-1 Rev. Stat. The language of that statute is:

“ Every railroad company operating a railroad or any portion of a railroad wholly or partly within the state of Ohio, shall place, or cause to be placed, on every locomotive engine used in operating such railroads, or constructing or repairing the same, some device or contrivance that will most effectually guard against the emission of fire and sparks which would otherwise be thrown out by engines, and such railroad companies shall keep such device or contrivance in good repair: Provided, that, such railroad companies shall not be required to use such devices during the months of December, January and February.”

Now, notwithstanding other railroads used this device, it would not be complying with the statute unless he went further and showed, or offered evidence tending to show that it was the most effectual or would most effectually guard against the emission of sparks. The testimony, howevert, passed along until a witness as put upon the stand by the name of McKenzie, who showed himself to be a competent expert, and in the cross-examination of this witness he stated that this spark-arrester that was used on this engine was equally as good as any other. He further stated, “ I might explain that by saying there was some features in the extension front that we do not get in the diamond stack; we get a larger nozzle from our draft, bringing to the front end less sparks or cinders; the larger exhaust, the less energy we have on the fire. That was one of the features that was brought out in the experiment that was made.” He was further asked, “ The reason you adopted this was because that was the arrester that would do the business ? ” Answer, “Yes, sir.

We think that showed that the railroad company had complied with the statute in question.

No testimony was offered by the plaintiff in rebuttal, the plaintiff, re-. lying upon the statute, Secs. 3365-5 and 3365-6 Rev. Stat., that he had made out a prima facie case, when he showed, or offered evidence tending to show that the fire was caused by a spark from the locomotive.

The rule of law governing this class of cases will be found in Baltimore & O. Ry. Co. v. Kreager, 61 Ohio St. 312 [56 N. E. Rep. 203], I read from the second paragraph of the syllabus:

“ 2. A different rule of liability, and of evidence, is provided by the act, where the loss or damage is caused by fire originating on land adjacent to the land of the railroad company. In such cases the company is liable only when the fire was caused in whole, or in part, by sparks from an engine on or passing over the road; and the fact that the fire was so caused is made prima facie evidence of negligence on the part of the company or person operating the road. But this prima facie case of negligence may be overcome by proof, under a proper pleading, that the company exercised due care, the burden being on the company to show that it was free from negligence.”

Now, in this case it is shown by the evidence that this locomotive was properly equipped with a spark-arrester of the best character and the one that was most effectual in guarding against the emission of fire ; it is shown that the engine was in good order; that it was in the hands of an able and experienced engineer, and that his assistant was an experienced fireman; that the engine was being run in the usual and ordinary manner, and so far as the engineer in charge of the engine was concerned, without emitting any sparks or being in anywise out of order. The rule in regard to spark-arresters prescribed by the statute is more stringent than the rule that prevailed at common law; but when it is complied with, it is a good defense to an action as a rule of lesser force was at the common law. .

We think in this case that the defendant has made by the evidence a good defense in the case, and that the jury erred in returning a verdict in favor of the plaintiff, and that the court of common pleas erred in overruling the motion for a new trial, so far as it was placed upon the ground that the verdict was not sustained by sufficient evidence or was against the weight of the evidence and the judgment was contrary to law. A very instructive case may be found in Menominee River S. & O. Co. v. Railway Co., 65 N. W. Rep. 176 [91 Wis. 447] ; discussing the general law of the subject, and a further discussion of the question may be found, with an extensive citation of authorities, in 13 Am. & Eug. Enc. Law (2 ed.), 501-507.

For the errors alleged the judgment of the court of common pleas will be reversed, the verdict of the jury set aside and the case remanded for a new trial.


source: Caselaw Access Project

author: LAUBIE, J.

license: Public Domain

text:
    STOCKHOLDER’S LIABILITY.
    (Ashtabula (7th) Circuit Court,
    October 18, 1901.]
    Burrows, Laubie and Cook, JJ.
    J. D. Kreisser v. Ashtabula Gas Light Co. et al.
    1. A Valid Increase of Capital Stock.
    An increase in the capital stock of a corporation, made at a stockholders’ meeting under the provisions of Sec. 3262 Rev. Stat., and a mortgage and bonds to the amount of such increase of stock, issued by the directors pursuant to the order of the stockholders, are valid, and the stockholders and directors are estopped, in any suit to which they are parties, to deny the validity of such increase of stock and of such bonds and mortgage.
    2. Liability op Stockholders por Bonds and Mortgage to Secure Debts, and Increase of Stock.
    Section 3256 Rev. Stat., authorizing the execution of bonds and mortgages to the amount of capital stock of a corporation, is indefinite and does not, in express terms, provide that bonds and mortgages may only be executed to the extent of the paid up capital stock. StocKholders, having increased the amount of the capital stock of a corporation and issued bonds and mortgages in an amount exceeding the paid up stock, are estopped to deny the validity thereof to the extent, at least, that they received value therelor.
    A Intention op Stockholders may be Deduced from Acts.
    Where the stockholders of a corporation, in authorizing an increase in the capital stock of the company, made no provision ior the sale of such stock, and none ol the stock was ever sold or offered for sale, and none issued except in one instance to the heirs of a deceased stockholder, when an amount was issned proportionate to the amount of the original stock held by such stockholder, it will be presumed that it was the intention of the stockholders and directors to purchase the additional stock .in amounts proportionate to the amount of the original stock held by each, and having filed a ' certificate in the proper department, as required by Sec. 3262, Rev. Stat., certifying such fact, and having issued the mortgage and bonds aforesaid upon the faith of this increase, and having made no provision for the sale or disposal of such stock, they are estopped to deny that they are the owners of the additional stock.
    4. The Constitutional and Statutory Provisions as to Stockholder’s Liabilities are Matters oe Public Policy.
    The provision of Sec. 3, Art. 13 of the constitution, and of Sec. 3258 Rev. Stat., prescribing the liability of stockholders of corporations, cannot be waived. It is not merely a question of the private rights of creditors, but is a matter of public policy, and holders of bonds issued by a corporation are not bound by a provision contained therein that no recourse should be had to the individual liability of any stockholder.
    Heard on Appeal.
   LAUBIE, J.

This case is in this court upon appeal, and there are substantially but two propositions submitted to the court for its determination.

The first question is as to the increase of stock — whether that was a valid increase, so as to bind the stockholders, and if it was, who was to pay for those shares of stock.

The capital, stock at that time, in 1888, was $25,000, and there were but eight stockholders. Whether all these stockholders were directors or not, I am not able to say. Who some of the directors were is shown, but who all of them were does not appear. But in 1888, the time of this increase, there were but eight stockholders, and they met to take such action as was authorized by statute (Sec. 3262 Rev. Stat.) for “the purpose of increasing the capital stock of said company and authorizing a loan.” They made a written waiver as provided by statute as to notice in such cases. Each stockholder voted in the affirmative that the stock should be increased from $25,000 to $60,000, to be divided into 1,200 shares of $50 each, as it had become and was necessary to improve,, enlarge, repair and reconstruct its works, plant and establishment, requiring an expenditure of about forty thousand dollars, as recited in the resolution. The resolution further provided that the directors should make, execute and issue eighty coupon bonds of the company, of $500 each, with a mortgage on all the property then owned or to be afterwards acquired by the company, to secure said bonds in such form and conditions “ as said directors shall deem advisable to properly effectuate and accomplish the object and purposes herein intended.” Thereupon the directors met and caused to be executed the bonds and mortgage as directed. The mortgage recited all the resolutions of the stockholders and directors in regard thereto ; and that the capital stock of said Gas Right Company is sixty thousand dollars ($60,-000), divided into 1,200 shares, and of the par value of fifty dollars ($50) each; and, whereas, under the provisions of said act of May 1, 1852, companies incorporated thereunder are authorized to borrow money, not exceeding the amount of their capital stock, and issuing their notes or coupon or registered bonds therefor.”

The bonds were placed upon the market, and a portion of them sold to parties to this case.

There was no provision made in any of the resolutions passed by the stockholders or the directors for the disposal of the additional shares of stock, and no attempt was ever made to sell them. So far as the increase of the capital stock was concerned, that was fully accomplished according to law, the directors having filed the certificate in regard thereto as required bv Sec. 3262 Rev. Stat. If there was any defect in the matter in any form, none of the parties to this suit can now take advantage of it. The parties here are those stockholders, and those of them who were directors, and they are each and all estopped to deny the increase of the capital stock, and they would be fully estopped to deny the validity of the bonds and mortgage.'

The provision of the statute (Sec. 3256 Rev. Stat.) authorizing the execution of mortgages to the amount of capital stock of the company, may perhaps be of doubtful construction. At all events, the statute is not definite and does not in express terms provide that bonds and mortgage may only be executed to the extent of the capital stock paid up.

The difficult question in connection with this is whether there were any subscribers to that increased stock — any one who would be responsible as stockholders for its par value, and with the liability for the debts of the company to the extent of the amount of stock subscribed. We have arrived at the conclusion that it was the intention of the stockholders and the directors that they themselves were to take that stock in proportion to the amount of stock each then held in the company. Having filed the certificate in the proper department, as required by statute (Sec. 3262 Rev. Stat.), in which they certified that the capital had been increased to $60,000; and having issued the mortgage and bonds aforesaid upon the faith of this increase, and having made no provision for the disposal of such stock, it must be assumed, and they should be estopped to deny, that they themselves intended to take this increased stock.

It seems there was none of this stock issued to any party but one. Henry H. Parsons, who was then one of the prominent stockholders owning fifty shares, and who voted for all the proceedings, and perhaps was a director, died. Some years thereafter his administrator and the heirs turned in his certificate of fifty shares of the original $25,000 capital stock with the request to issue shares therefor to his heirs, and the president and secretary of the company, who were the same, at least the president was, at the time when this action was taken in regard to increase of stock, issued two certificates for sixty shares each, there being two heirs, one to Mrs. Ford and one to Samuel H. Parsons, and this was their proportion, or would be Henry H. Parsons’ proportion of the increased capital stock; and this was. done without question on their part; they held the stock and acted upon it, and continue to hold it. Now when we take that into consideration, that this was done without anything being said about it — that the president and secretary of the company of their own motion issued stock in this proportion ; that it was accepted without question, and is still held by those parties, and the further fact that no means of any character were taken, adopted, resorted to or mentioned by any stockholder or director for the sale of that stock upon the market, or to put it .upon the market, it is fair to assume that it was the understanding and agreement between all of the eight stockholders that they were themselves to take this stock and be responsible for the payment of it. It seems almost impossible that men with the business ability of these stockholders and directors, who were thus engaged in such expensive business, would go through a matter like that without any understanding, agreement or arrangement for the disposition of the stock or its conversion into money ; and the only explanation that we can arrive at is, that it was understood among themselves that they were to take such increase, in proportion to the stock which they then held; and the act of the president and secretary in issuing to the heirs of Parsons stock in such proportion was an act from which with the other evidence such understanding may be inferred.

It was not necessary that certificates of stock should have been issued, as an equitable owner of stock is liable as such in all respects the same as if a certificate had been regularly issued to him, which is a mere evidence of his ownership. So the fact that certificates were not issued to any of the stockholders save to the heirs of Henry Parsons, is matter indifferent in the case, when we have arrived at the conclusion that the owners of that stock were on the record as then stockholders, and it was the understanding between them that they should take that stock in proportion to the stock they then held.

Substantially all the books- of the company are missing; otherwise this presumption might be turned into a certainty.

And this brings us to the second question in this case, whether or not the holders of these bonds were bound by the provision therein that no recourse should be had for their payment to any individual liability of any stockholder; and which provision was inserted by action of the directors. The stockholders had made no provision against their individual liability and made no declaration in that regard, and that provision was inserted by the directors without consulting the stockholders. It may be possible that such stockholders subsequently might take advantage of that provision, growing out of the rule that has been laid down by the Supreme Court of the state, that a contract made upon a valid consideration for the benefit of a third person may be enforced by such person, if nothing stood in the way of their doing so; but we have come to the conclusion, after careful consideration, that the constitutional and statutory provisions as to the liability of stockholders cannot be waived by agreement. That liability is absolute, and the shareholder cannot get rid of it by any waiver of, or agreement with his creditors.

We are cited by counsel to a case in the fifth circuit, Hull v. Coal & Iron Co., 11 Circ. Dec. 33L (20 R. 533), holding a contrary doctrine, where the same question was presented as we have here. The provisions of the bonds there were substantially in the same words as here : “No holder of this bond shall have recourse for its payment upon any stockholder of said company, under or in pursuance of any law imposing liability upon stockholders of incorporated companies, whether such law be now or shall hereafter be enacted.”

The question is: Does this stipulation in the bond operate as a defense to an action to enforce stockholders’ liability ? And in that case it was held that it did. The court in that case thought the question before them was entirely different from the one presented in Railway Co. v. Spangler, 44 Ohio St. 471 [8 N. E. Rep. 467], and Insurance Co. v. Leslie, 47 Ohio St. 409 [24 N. E. Rep. 1072]. Now if this was a question which involved only the private benefit of a creditor, a creditor might waive such liability, but if it was' intended to affect citizens of the state other than mere creditors, or was adopted to remedy an existing evil in the management and conduct of corporations, and as an incentive, to a more careful management thereof, then it is a question of public policy and becomes binding, and parties may not waive its operation. Evidently, such was the intent and purpose of the framers of the constitution, when they inserted the stockholders’ double liability clause in that instrument.

It was discussed fully in the constitutional convention by such jurists as Judge Ran'ney and others, and its force and effect stated and commented upon — that corporations were engrossing the business interests of the country and had become so numerous throughout the state that it was necessary for the protection and benefit of the public that such provision should be made. These eminent jurists saw in the future the increase, and they referred to it, of corporations, and their absorption of the business of the country and their influence; and they have increased in vast, proportions, both as to wealth and numbers. They hold a prominent place today in all the business interests of this state and nation. They are accumulating and have accumulated vast influence over those business interests, and over thousands, if not millions, of our people.

It was well, as these eminent jurists stated, that some restrictions' should be placed upon such corporations, to bring them somewhere near to the condition of a simple partnership, and in some way compel the stockholders to see to it that their agents and officers perform their duties and manage the affairs of such corporation with care and fidelity to all, not only with reference to their creditors, but with reference to the public and the laws of the state. And this individual liability is an incentive to compel shareholders to see that their agents and servants carry out and obey the laws of the state, and manage their business with care, honesty and fidelity so as to form a safeguard to the interests of the public as well as that of the shareholders.

That the public is interested in this may be illustrated by reference to the numerous cases in our courts where strangers recover large judgments against corporations for injuries suffered from the dangerous machinery used so largely by these corporations, and the negligence of their agents and servants; and, hence, the public is deeply interested in the careful management of such machinery, and in the carefulness and fidelity of such agents and servants, and in the solvency of such corporations, and in the individual liability of the stockholders for such wrongs in case of the insolvency of such corporations.

In every case that has gone to the Supreme Court on the question of that liability the matter has been spoken of as a question of public policy. In the case of Brown v. Hitchcock, 36 Ohio St. 667, Judge White, pages 679, 680, says:

“ These provisions are intended to guard against improvidence in contracting debts on behalf of corporations, and to gh’e security to creditors. These objects are best accomplished by attaching the liabilities to those under whose control the corporation is operating, and who are known to those dealing with it as the persons interested.”

So that 'he considered and regarded it as something more than a mere provision for the creditors’ private benefit.

Judge Johnson in his dissenting opinion on another question, page 689, says:

“ Under the liberal policy of past state legislation, authorizing corporations for almost every kind of business, having its inception and a large development under the constitution of 1802 and a still larger one under that of 1851, a vast amount of the individual property of the state is represented by shares in such corporations.
‘ ‘ Any legislation or any decision which materially affects the character and value of this species of property, heretofore so liberally fostered and encouraged, is a matter of great public concern.
“The constitutional provision under consideration was intended to remedy an existing evil, and to provide an additional security to creditors.”

In Boice v. Hodge, 51 Ohio St. 236, 238 [37 N. E. Rep. 265; 46 Am. St. Rep. 569], this is stated by Bradbury, J., page 238:

“ The liability of stockholders is founded upon Sec. 3 of Art. 13 of the constitution of 1851, and Sec. 3258 Rev. Stat. The subject was of sufficient importance to have thus secured the attention of the convention that framed our present constitution, and, we think, that in view of this constitutional provision, and the legislation founded upon it, the principle of holding stockholders of corporations liable for corporate debts is within the public policy of the state, and that the statute should be construed so as to constitute it a substantial provision for the benefit of the corporate creditors.”

Insurance Co. v. Leslie, supra, came up for consideration under what was known as the Howland law (Secs. 3643, 3644 Rev. Stat.) That law provided that in all cases of insurance of a building, the agent of the company should make an examination of the property and its surroundings, and fix the value of the property, and in case of total loss, the value fixed in the policy should be the rule ot damages. That act was also passed to remedy an evil. Prior thereto when insurance was taken out on a building for an amount larger than its value, and a loss occurred, all that the company had to pay under the conditions of the policy was its actual value at the time of the loss, although it had been receiving premiums on a much larger value. In that case it was claimed that this examination was waived. This is part of the syllabus:

“ 1. The act of March 5, 1879, ‘ to regulate contracts of insurance of buildings and structures ’ (now Secs. 8643 and 3644 Rev. Stat.) applies to all policies issued since it went into effect, insuring any building or structure in this state, against loss or damage by fire. The neglect or omission of the company’s agent to make the examination of the property and fix its insurable value, as the statute requires, cannot prevent its application to a policy issued by the. company, or defeat or affect the operation of the statute.
“ 2. The statute is founded upon considerations of public policy ; its purpose being, to exact diligence and care on the part of insurance companies to avoid improper risks and overinsurance, by requiring them to cause their agents to make personal examination of the property, a full description thereof, and fix its insurable value, as well as to protect the insured against unreasonable forfeitures and defenses. The more effectually to accomplish these results, the statute holds the company liable on its policy, unless, after its issue, a change occurs, increasing the risk, without its consent, or the insured has been guilty of intentional fraud, and in case of the total loss of the property by fire, the measure of the liability is fixed at the amount mentioned in the policy, upon which the insurer received a premium. The statute cannot be regarded as conferring upon the assured a mere personal privilege which may be waived by agreement. It moulds the obligation of the contract into conformity with its provisions, and establishes the rule and measure of the insurer’s liability.”

Now if such a statute as that can be said to have been adopted as a matter of public policy, and embraces something more than mere personal benefit, and cannot be waived, how much more should it be in the case before us. If at the time a building is burned the insurer is paid all that it is then worth, he substantially gets back to himself all the loss that he actually suffers. In addition to that there is another matter. That statute may be said to be an incentive to arson, because it encourages a man who owns a building to have it insured at a good big .sum by the agent, and then when he finds out that that would be a good sale of it, accomplishes it by the use of a match. But such considerations could not be advanced here, as the very object of this statute was to increase the care in the management of these corporations, by extending the liability of the stockholders so as to compel them to see that their agents managed the business with care, honesty and fidelity, and thus subserve the interests of the public and the state.

Entertaining these views, we hold that the individual liability of the stockholders must be enforced in this case., Decree accordingly.


author: HULL, J.

text:
    RAILROADS.
    [Lucas (6th) Circuit Court,
    January 19, 1903.]
    Haynes, Parker and Hull, JJ.
    State ex rel. Sumner, Prosecuting Attorney v. Toledo Railway & Terminal Co.
    1. A Side Track Within Meaning of Sec. 3281 Rev. Stat. — Eminent Domain.
    Where the main line of a railway, built entirely around a city, and about 28 miles in length, running across and connecting with all the railways that enter the city, and whose main object is to carry freight from one railway to another and from various manufactories and other establishments to diferent points in and about the city, is connected with the plant of a furnace company and with other industries by a track about one mile long which is used by such railway company in the ordinary course of its business as a common carrier of persons and property, such track is for a public use, and is a side track within the meaning of Sec. 3281 Rev. Stat., and a right of way may be appropriated and condemned for such track by the exercise of the power of eminent domain.
    2. Expert Testimony as to What Constitutes a Side Track Admissible.
    Where the point in issue in an action in qtw warranto against a railway company, is whether a certain track is a side track or not, expert testimony as to what constitutes a side track is admissible.
    B. A. Hayes, for relator.
    King and Tracy, Gen. Hamilton and Clarence Brown, for defendant.
   HULL, J.

This is an action in quo warranto brought against the defendant to oust it from a certain right of way and test its right to appropriate land for a certain track. The question involved is whether the defendant company has authority to appropriate a right of way, upon which it proposes to construct a track to connect its main line with a certain industry or industries, adjacent to its line, "or in the neighborhood of its line, in order that the delendant may transport its cars and engines to and from such industries.' It appears from the pleadings and evidence in the case that the defendant is about to construct a track some 5,500 feet in length — a little ever a mile — running from the main track to the Toledo Furnace Company, so called, and as claimed by the defendant, with the intention of extending it a short distance beyond the Furnace Company to the Craig Shipyard and the wharves and docks along the river front in that neighborhood.

Tfce relator claims that the track about to be built is not a side track, but that it is to be used for a private purpose, and that, therefore, the railroad company has not the power to appropriate and condemn land for this purpose; that it can only acquire it by pinchase. It is well established that the right of eminent domain, the right to appropriate property does not extend to cases where it is to be taken íor a private purpose. The relator says in his petition:

“Paragraph 5. Relator is informed and believes and' so charges the fact to be that the strip of land across said north half of said east quarter of said northeast quarter of said section 82 in the city of Toledo, so sought to be appropriated in said action 2374, is designed by said defendant to be used as a part of a right of way for a track to connect the main track of defendant with the plant of the Toledo Furnace Company, which is a private corporation; that the use to which said strip of. land is to be appropriated is a private use and that defendant has no right of eminent domain to so appropriate said land for said use; that defendant seeks to appropriate said strip of land neither for side tracks, nor for depots, nor for workshops, nor for round-houses, nor for water stations, nor for material for construction, nor for right of way to enable it to construct or repair its road, nor for aqueducts, nor for drains, nor for the railroad described in its articles of incorporation.”
“Wherefore, said prosecuting attorney says that the defendant has no right to exercise the power of eminent domain to appropriate the strip of land, or any part thereof, described in paragraph four hereof, nor to prosecute said action 2374 in the probate court of Lucas county against Laura P. Mitchell, Emily P. Hastings and Rutherford H. Platt, or either of them.”

The defendant in its answer with reference to paragraph five of the relator’s petition, says:

“5. For answer to the allegations of paragraph number five of said petition, defendant says that the right of way sought to be acquired and appropriated in said action number 2374 in said probate court, is designed by defendant to be used, and is necessary as a part of the railroad of the defendant company, for a side or spur track, connecting the main track of the defendant with the plant of the Toledo Furnace Company and other industrial plants located, and to be located, upon the line of the track so proposed to be constructed; that the use to which said strip of land is to be appropriated is not a private use, but a public use in connection with defendant’s main line of railroad for the purpose of reaching said Toledo Furnace Company and other industries located and to be located on said side or spur tracks; and that the same is to be devoted to a public use by the defendant as a common carrier of persons and property for all who desire to and can use the same upon the same terms and conditions; and the construction, maintenance, and operation of said side or spur track to said Toledo Furnace Company and other industries is for the purpose of using the same in connection with, and as a part of, the railroad described in defendant’s articles of incorporation.”

A supplemental answer was filed on the day of the trial, shortly before the trial was commenced, setting up:

“That since the filing of its original answer herein, to-wit, on or about the twelfth day of November, 1902, the stockholders of the Toledo Railway & Terminal Company, at a meeting of said stockholders duly called for that purpose, determined to construct a branch track or line from the main line of said company’s track, commencing at a point on said main line on the easterly side of the Maumee river, in Toledo, Lucas county, Ohio, six hundred and thirty-seven (637) feet northeasterly of the center line of Consaul street, measured along the center of the right of way of said main line, and extending from said point in a northeasterly direction to a point of connection with the railroad of the Maumee Connecting Railroad Company, said point being westerly of Wheeling street and northerly of Front street in said city of Toledo, so as to connect said branch line with said railroad of the Maumee Connecting Railroad Company, and also with the railroad of the Wheeling & Lake Erie Railway Company near said point, and so as to connect said branch line with the place or places lying northerly ol Front street, westerly of the main tracks of the Wheeling & Lake Erie Railway Company, southerly ol the Maumee river, and easterly of the line between the property of the Toledo Riverside Railway Company and the property of the National Malleable Castings Co.
“That thereupon, and on the same date as last aforesaid, this defendant caused a copy of said resolution, duly acknowledged and certified by the directors and officers of defendant, according to law, to be filed in the office of the secretary of state of the state of Ohio.
“Defendant further says that the branch line aforesaid is identical in its location, and the property necessary to appropriate for said branch line is the same as the line and property described in its original answer herein, and that it is necessary in the construction of said branch line to appropriate and use the same property described in its original answer.”

This supplemental answer was filed by the defendant, and these steps taken apparently with the intention of meeting the case if the court should be ol the opinion that the track about to be constructed was not a side track, but a branch track.

The relator demurred to this supplemental answer, upon the ground that a railroad company has not the power to condemn and appropriate property under the right of eminent domain, for a branch track; but it was claimed if they desire the property for that purpose, they must purchase it. This demurrer was informally overruled at the time of the trial, with the reservation, however, that the court might consider it iurther and decide it in the final determination oi the case. Théreupon the relator filed a reply to the supplemental answer. Testimony was offered to sustain the claims oi the parties, and, upon the trial of the case, the defense, whether required to do so or not, assumed the burden in ottering testimony.

Leaving out of consideration for the present the supplemental answer, the two main questions are whether this track is a side track, and whether it is for a public use, as claimed by the defendant, ,or whether it is for a private use, as claimed by the relator. If it is a side track, the provisions of Sec. 3281 Rev. Stat. apply. This section provides as follows:

“A company or a municipal corporation which may own or operate a railroad may enter upon any land for the purpose of examining and surveying its railroad line, and appropriate so much thereoi as may be deemed necessary for its railroad including necessary side tracks, depots, Workshops, round-houses and water stations, material for construction, except timber, a right of way over adjácent lands sufficient to enable it to construct and repair its road and the right to conduct water by aqueducts and to make proper drains; but no appropriation of private property to the use of a company or a municipal corporation which owns or operates a railroad shall be made until full compensation there!or is made in money or secured by deposit of money to the owner irrespective of any benefit from any improvement proposed by the company or such municipal corporation as prescribed by law.”

If the track in question is not for a public use, but for a private use only, the railway company has not the right to appropriate or condemn, by whatever name the track or improvement may be known. Upon the trial, expert testimony was admitted on the issue as to whether this was a side track or not. . This was over ,the objection of the relator. The defendant called Mr. Whittlesey, its general manager, and Mr. Buxton, an experienced railroad man, who had had twenty or thirty years experience in that line of business, and they gave their testimony as experienced railroad men as to what a side track was. As I say, this testimony was objected to and was admitted subject to objection and exception ot the relator. It was urged that a definition of “side track” could be iound in the dictionaries, and that it was not necessary to resort to expert testimony, and that the question was one for the court sitting as a jury in this case, and that the witness should not be permitted to take the place of the court.

We are of the opinion, however, that the testimony was properly admitted. Expert testimony is admissible upon a question, regarding which there is not common knowledge, where the court or jury may be aided or educated by the expert’s views and opinions of men experienced in some particular line, as medical men, scientific men, or experienced railroad men. We think expert testimony was admissible, not for the purpose of determining the very question that was submitted to the court in this'case, whether this is a side track or not, but lor the purpose of giving us the benefit of the experience and knowledge of these men in these matters, in order that we might be aided as a court, in determining whether this particular track would be properly called a side track or not1. The Supreme Court of this state, in the case of Ohio & Ind. Torpedo Co. v. Fishburn, 61 Ohio St. 608 [56 N. E. Rep. 457], in the syllabus, say:

“1. Opinion evidence may not be given where an opinion is asked as to the precise, ultimate fact in issue which is to be tried bj' the jury, but such testimony is not necessarily incompetent if it calls for an opinion as to a matter which is evidentiary only and merely tends to establish a fact which may be involved in the issue.
“2. Such evidence is not competent where the matter inquired about is one within the common knowledge of men of ordinary information, and it is practicable to place before the jury all tüe primary facts upon which a conclusion is to be based, but where a witness is shown to be learned, skilled or experienced in a particular business, he may be asked to give an opinion as to pertinent matters which are not the subject of common knowledge, and as to which the jury is not so competent as is the witness to draw the proper conclusion from the general facts proven.”

It appeared that just what a side track is, what would be called a side track, or what would be called a branch or spur, or a switch, were matters that people of ordinary knowledge, not conversant with railroad affairs, would not know or. could not be familiar with. The court were not as familiar with these matters as these men who were called; and under this authority and other authorities that might be cited we think the testimony was competent. In a case to which I will refer later, 109 111. 237, expert testimony was admitted, as appears by the opinion in the case, upon this very question as to whether a, track was a side track or not. It does not appear that it was objected to, however, in that case.

' Now as to whether this piece of track that it is proposed to build can properly be called a side track or not. The railroad of the defendant surrounds the city of Toledo, or will, when it is finished, making a belt line of some twenty-eight or twenty-nine miles in length. Its purpose is to connect with all of the railroads entering the city of Toledo, said to be twenty or more in number, and to convey freight from one railroad to another in the city, and from the railroads to manufacturies and other establishments in the city, or from such establishments to the various railroads in the city. The track in question, as I have stated, is about, or will be, if finished, 5,500 feet long, and extends from the main line as now projected, to the Toledo Furnace Company, near the river. It does not run parallel with the main line of the road, but runs away from it and aside from it, its terminus being about 2,000 feet from the main line, and is to be used for the transportation of freight from and to the Toledo Furnace Company, and, as it is claimed by defendant, from and to other industries in that neighborhood. Such a track is known, as is said by some of the witnesses in railroad circles and railroad parlance, as an “industrial track,” and might be so called. Mr. Whittlesey and Mr. Buxton, the two witnesses called by the delendant, testified that in their judgment a side track is any track, aside from the main track, with the exception possibly oí a branch, which has more the character of an independent railroad; that while there were different kinds of side tracks, spurs and switches, in their judgment, they are all covered by the generic term side track.

Mr. Blair, a railroad man, called by the relator in rebuttal on this question, testified that in his judgment an industrial track might be included under the term side track, as one kind of side track; but in his judgment this particular track (he was permitted to answer a hypothetical question) was not a sidetrack. ' He, however, stated on cross-examination that an industrial track might be regarded as a kind of side track. The definition given in the Century Dictionary, which was quoted by counsel for the relator, is more restricted than the definition given by the experts who were called. That authority defines a side track as follows:

“A short line of rails branching off by a switch from the main line of a railroad, and either returning to it or not at the further end, lor use in turning oft, shifting rolling stock, etc. Siding— * *

Then follows a definition of a siding. This definition is short, it will be observed, and rather limited. We think we have a right to consider the opinions of such experienced railroad men as were called here, in determining what is commonly known as a side track in railroad circles. As was suggested by one member of the court upon the trial, the lexicographer in doing his work had recourse, not only to books, but to the knowledge and experience of such men. We are of the opinion that this may properly be called a side track, and that it is a side track, rather than a branch road, as comprehended and intended by Sec. 3280. It seems to us that it is to be used for the purposes that side tracks are often and ordinarily used, for running along the side ot the main road and for the purpose of gathering up freight and traffic for the main line and bringing it to the main line. It is not our purpose to give a general definition of the word side track, but we think this track is within that term as used in the statute.

Is it then for a public rather than a private use ? For, in order to entitle the railroad company to appropriate, it must be for a public use, whether a side track or not. The doctrine of the various cases which we have examined seems to be that if a track of this character may be used by the public generally, it is to be regarded as for a public purpose, although it may, at the time of its construction, only be used by one company or one individual, aside from the railroad company; thát is to say, that the. criterion to determine the fact is not whether only one person used the track at the time it is constructed, but if it is open to the use of the public, and if it is for a common and public use by the railroad company in the management of its business, it may be said then to be for a public, rather than for a private use. In the case of Toledo & W. Ry. Co. v. Daniels, 16 Ohio St. 390, the Supreme Court makes some remarks, which perhaps have some pertinency here. The question in that case was, whether, under Sec. 3281 Rev. Stat., a railroad company might condemn and appropriate for side tracks, after k had condemned and appropriated for its main line, or whether it must all be done at the same time, the claim being made that the power existed to make only one appropriation. The court held there that it might be done afterwards, as needed. They say in the syllabus:

“Under the general corporation act of 1852 (S. & C. 275, Secs. 21, 27, 28), a railroad company has power to condemn land for new side tracks, leading from the main road to its depot buildings, whenever they become necessary in the proper management and operation of the road.”

The court say in the opinion on page 396:

“It is true that grants of this nature, being in derogation of private right, must be strictly construed. If, therefore, there is reasonable ground of doubt as to whether the legislature intended to grant the con" tinuing power claimed to be exercised here, the doubt should be resolved against the company, and it must go back to the law-making power ior a new grant — a grant of power to change, or add to its side tracks, depots, water tanks, etc., etc., as the necessities ot business require. Is there such reasonable ground of doubt ? We think there is not. Taking these provisions together, and construing them in the light of the historical fact that a railroad — that is, a useful and valuable railroad— is not a stationary thing, but grows with the growth of the country, it seems clear to us that the legislature must have meant to grant the power claimed.”
“The power to make‘necessary side tracks’ prima facie, is the power to make them when they are necessary. Otherwise it would be the power to make unnecessary side tracks. Prima facie power to do any act, is power to do it in such manner and at such time as is usual, convenient, and reasonable — in such way as prudent men manage their own concerns. Tried by this rule, there can be no serious doubt of the meaning of Secs. 21 and 27, by themselves considered. And we think that meaning is made plainer by Sec. 28, and the general provisions of the act.’’

I call attention to this for the purpose of showing the view the Supreme Court took in this case, and their discussion here of the necessity of building side tracts and making improvements of that kind as the road grows. As they say, a railroad is not a stationary thing, but with growth, side tracks become necessary, and then if they are necessary for the successful carrying on of the railroad, they may be built under this section and land appropriated therefor.

The case of Toledo, S. & M. Ry. Co. v. Railway Co., 40 N. W. Rep. 436 [72 Mich. 206], is in point. On page 445 of the opinion the court say:

“The object in constructing petitioner’s road is for the transportation of freight and passengers. A large and profitable portion of the freighting business, it appears from the record, cannot be reached in the ordinary way of moving the same, except by the extension ol their road to the points designated by the board of directors, and that the road cannot be operated unless it can secure the business of moving such freight; that for this purpose the construction of the branches designated is necessary. If that is true, it is difficult to see why the construction of the branches should not be regarded for public use,as well as the construction of the main line, which is not controverted. It would apnear that the object of the petitioner is to acquire important facilities for the transaction of the legitimate traffic and business of its road now being constructed, when completed. It is evident that the business to be reached by the use of the branches, while it may enhance the profit of some individuals, and is largely for the gain of the company, it is equally certain that the use of the road ior that purpose is of a public nature, and, like all the other business of the road, it is necessary to be reached in order to enable the company to operate its line of road. Indeed, the record shows that the construction of the'branches and spur tracks laid down upon the map is essential to any successful operation of petitioner’s road, and must be held ior the public use. This is not the case ol a company seeking the condemnation ot property to reach some private business, not essential to the successful operation of its road, and tor private use, as claimed by counsel for respondents. The public character and use of the branches are as well established ás are those ot any portion of petitioner’s road.'’

Also, the case of Chicago, B. & N. Ry. Co. v. Porter, 46 N. W. Rep. 75 [43 Minn. 527], I will read a few lines from the opinion on page 76:

“The assignment of error that the condemnation is sought for a private, and not for a public,’ use, is based on the fact that the switch track is to terminate at the Laird-Norton manufacturing establishments, and on defendant’s claim that it is intended for the sole accommodation of the business of those establishments. Though it seems lrom the evidence that, at present at least, those establishments may be benefited by the switch track more than any one else of the public, because they have more freights to ship upon it, the claim that it is intended for their sole accommodation is hardly sustained by the evidence. At any rate, so far as the question ol public or private use depends on facts to be found from the evidence, the court below found them against the detendants, and that finding, as also the findings included in the order made, that the public interests require the construction of the switch track, and that the lands proposed to be taken are required and necessary for the purpose, are conclusive, if fairly sustained by the evidence. The switch track, as the evidence shows, is to be part of a system of track, all belonging to the general enterprise of maintaining and operating a railroad for public use. The character of the use, in the case of a railroad or railroad track, does not depend on the amount of business, or the number of persons" who may have occasion to use it, but on the right of the public to the benefit of it. If all the people have a right to the use of it, it is a public use or interest, though the number who require its use may be small.”

The case of South Chicago Ry. Co. v. Dix, 109 Ill., 237 is in point. The court say in the syllabus, fourth paragraph:

“4. But it is no valid objection to the condemnation of a strip ot land for a switch or a side track of a railway corporation, that the proposed track may serve private use, if in addition to serving such use it is one also necessary ior the successful and convenient operation of the main line of the railroad.”
“6. To deny a petition of a railway company for the condemnation of land for a side track, it should appear that the object thereby sought is clearly an abuse ol power, and a taking ot private property for an object not required for the convenient operation of the road.”

And the question is discussed by Mr. Chief Justice Sheldon in delivering the opinion of the court. He says on page 244:

“All that appears in the record upon the subject of the character of the track is the petition, plat and the affidavits of Kerfoot and Jeffrey. As between .the opposing opinions of the two latter whether the proposed track is a branch road or a side track, that of the manager of the railroad is, we think, entitled to higher consideration than that of the real estate agent. To deny the petition, it should appear that what is sought is clearly an abuse of power, and a taking of private property for an object not required for the convenient operation of the road.” (Citing many cases.)

I cite also 3 Elliott Railroads, Sec. 960, and cases cited in the notes. The author says on page 1354:

“The question as to what are the legitimate uses which a railroad may make of property in its public character has given rise to much litigation.”

In a note the author cites a case, Getz’s Appeal, 3 Am. & Eng. Ry. Cas. 186, where the court held:

“The right to condemn land for the construction of sidings to private warehouses and manufacturing establishments is clearly within the constitutional power of the legislature to confer upon railroad com. -panies, because the public interest is thereby subserved by reason of the increased facilities afforded for developing the resources of the state and promoting the general wealth and prosperity of the community.”

So it seems that in determining whether the use is a public or a private one, we are to consider the use that the public may make of the track and the use that the track is to the main lines of the railroad itself. As it is said by the Supreme Court of Minnesota in Chicago, B. & N. Ry. Co. v. Porter, supra, p. 76:

“The switch track, as the evidence shows, is tobe a part of a system of track, all belonging to the general enterprise of maintaining and operating a railroad for public use. The character of the use, in the case of a railroad or railroad track, does not depend on the amount of business, or the number of persons who may have occasion to use it, but on the right of the public to the benefit of it. If all the people have a right to the use of it, it is a public use or interest, though the number who require its use may be small.”

Now it appars, as has been said, that this railroad is a belt linej encircling the- city of Toledo, for the purpose of carrying freight from one railroad to another and from the various establishments of the city to the different railroads, and from them to those establishments. The Terminal Company would be unable to carry on these enterprises or use the main line of the railroad to its fullest advantage, unless they were permitted to build side tracks from the main line for the purpose of reaching the various industries of the city, to bring them the traffic that might come to the city by the various railroads consigned to them, and take Irom these various establishments their products to the various railroads that enter the city, for the purpose of shipping it out of the city. These are the chief purposes of this railroad. While the right to condemn and appropriate is to be strictly construed, still the courts ought not to take such a narrow view of the question as to interiere with the fair and just operation of a railroad or to interfere with the reasonable construction of such tracks adjacent to it, as may be necessary for the carrying on in a proper manner for itself and for the public, the business of the railroad.

The evidence shows that this track, while perhaps it may not be used at first by any one except the Toledo Furnace Company, is open to the public to use and will be open; that no one will be restricted; that it will be open to any manufacturing establishment or industry that may be hereafter located alongside of it; that it is the intention of the company to extend the track by the use of other tracks beyond its present terminus to the Craig Shipyard and to the docks and wharves along the river. The evidence shows that the output, or rather the business of the Toledo Furnace Company will probably be some fifty carloads a day in and out, so it is a very extensive establishment; and its business will add much to the business ol, the railroad.

We are of the opinion that it cannot be said that this track, when constructed, will be for a private use; but we think that it may properly be said that it will be for a public use. It is not reasonable to suppose that the company will, and there is no reason shown why they should, exclude any one from the use of this track. The railroad company is building it for the purpose of adding to its business, the more it is used, the more freight is shipped over it to the main road; the more manufacturing industries or individuals use this track, the more the business of the railroad will be increased.

We think, therefore, that the railroad company has the right to condemn and appropriate property for this track; that they have the right to exercise the power of eminent domain for this purpose; and being of this opinion, the question as to whether the railroad company would have the right to appropriate for a branch road becomes unimportant, as we hold that this is a side track and not a branch.

We are of the opinion, however, that the defendant had the right to set up this additional defense, which was set up in its supplemental answer, to-wit, that it had taken steps necessary under the statute to construct a branch road, so that if the court should be of the opinion that this was not a side track, but was a branch, that they would be able to show their authority under the law for constructing a branch road.

We will say, also, that it is .our judgment that a railroad company, if the proper steps are taken, as is shown in this case, may condemn and appropriate for a branch road. Section 3280 Rep. Stat. provides tüat: t

“A company may construct branches from the mainline to towns or places within the limits of any county through or into which its road passes, or to a connection with any railroad which is or may be built within this state, or to any coal or other mine, stone quarry, plastic clay, pottery clay and fire clay pits or banks, ore or shale banks, if, at a meeting of the stockholders called for that purpose, the holders of a majority of the capital stock of the company, by a vote, in person or by proxy so determine; and upon such determination the president and directors shall make and acknowledge a certificate setting forth the facts and file the same with the secretary of state. ”

In our judgment, after the steps required by the statute are taken and this power has been conferred upon the board of directors by the stockholders, the company then has the same power to construct a branch road that it had to construct its main line. By these proceedings it is given this additional power, and with it goes the right of eminent domain and the branch then becomes a part of its railroad within the provisions of this section and the following section 3281,' in which last section it is provided that they “may appropriate so much thereof as may be deemed necessary for its railroad, including the necessary side tracks,” etc. And the action of the court ’in overruling the demurrer to the supplemental answer will be adhered to.

We, however, are of the opinion that this track is not a branch track coming within the provisions of Sec. 3280 Rev. Stat., but that it is a side track within Sec. 3281 Rev. Stat. And being of the opinion that it is for a public purpose and not for a private use, the petition of the relator must be dismissed at his costs.


author: VOORHEES, J.

text:
    CONSOLIDATION uF ACTIONS — RES ADJUDICATA — GAMING.
    [Hancock (3d) Circuit Court,
    December Term, 1902.]
    (Before Douglass, Voorhees and Donahue, JJ., of the Fifth Circuit, sitting in the Third Circuit.)
    Belle B. Trout v. William Marvin.
    1, Consolidation of Actions Under Sec. 5120 Rev. Stat.
    Where two or more actions are pending in the same court, the defendant may, on motion, and notice to the adverse party, require him to show cause why the same shall not be consolidated; and if it appear that, at the time the motion is made, the actions could have been joined, and if the court, or a judge thereof, find that they ought to be joined, the several actions shall be consolida: ed under Sec. 5120 Rev. Stat.
    2. When Consolidation of Actions may be Made.
    The right to consolidate actions is to be determined by the court in which they are pending according to the issues as they appear at the time the motion is filed.
    8, Reversal of Judgment Against Property Owner as Winner, not Res Adjudicata as to Lien on Property for Winnings.
    Where a judgment recovered against three persons, under Sec. 4273 Rev. Stat., for money won by them at gaming, is afterwards reversed as to one, the owner of rhe property, and affirmed as to the other two, the lessees, in an action afterwards brought, under Sec. 4275 Rev. Stat., to make the judgment a lien on the property of the one as to whom it was reversed, the reversal of the judgment as to him cannot be pleaded as res adjudicata in the latter action, the latter not being for the recovery of money won by the defendant, but to make a judgment therefor against others a lien on his property where, with his knowledge, the gaming was conducted and the money won.
    4. Judgment or Decree as Evidence, Conclusive per se, When.
    Where a judgment or decree is relied on by way of evidence, as conclusive per se, between the parties in a subsequent suit, it must appear by the record of the former suit that the particular controversy sought to be precluded was tkereiu necessarily tried and determined.
    5. Statute of Limitation — When Action Under Sec. 4275 Rev. Stat. ® Accrues.
    The right of action under Sec. 4275 Rev. Stat., to make a judgment for the recovery of money won at gaming a lien on the property, where, with knowledge of the owner, the gaming was conducted and the money won, does not accrue until the rendition of the judgment for the recovery of the money so won.
    6. Effect of Judgment Against Winners, of What Conclusive.
    In an action, under Sec. 4275 Rev. Stat., against the owner of the premises wherein the gaming was carried on and the money won, to subject said premises to the payment of a judgment recovered against the winners, for damages caused by such gaming, such judgment, when not impeached for fraud or collusion, is conclusive as to the following facts:
    (1) That the money lost and winnings secured, which caused the plaintiff’s injury, was won by the defendant in the judgment.
    (2) That the same were lost and won in violation of law; and
    (3) That the plaintiff, in consequence thereof, sustained damage to the amount of the judgment

      7. Same — Op What not Conclusive.
    But such judgment does not tend to show, as against the defendant, either of the following facts:
    (1) That he was the owner of-the premises described in the petition.
    (2) That said premises were used and occupied for the purposes of gaming; and,
    (3) That said premises were leased by him to the lessees, for the purpose of gaming therein, or that he knowingly permitted the same to be used for that purpose.
    As to these facts the burden of proof is on the plaintiff.
    8. Evidence — General Reputation of Premises — Competent, When.
    For the purpose of proving the defendant’s knowledge that his premises were used for the purpose of gaming therein, it is competent for the plaintiff to show that the general reputation in the neighborhood where the premises are located and in which the defendant lives, is that said premises were kept and used by the lessees thereof as a place for gaming.
    Heard on Appear.
    Poe & Poe, for plaintiff.
    Phelps & David; J. A. & E. V. Dope; E. T. Dunn and Alfred Graber, for defendant.
   VOORHEES, J.

These cases are submitted together:

First. On motion of defendant to consolidate the two cases, to-wit, cause No. 965 with cause No. 966 in this court, under Sec. 5120 Rev. Stat. of Ohio.

Second. On the merits presented in the pleadings and evidence.

Considering the questions in this order, case No. 965 was commenced in the common pleas court of this county, being case No. 11,689, on March 7,1896; case No. 966 was commenced in said court March 9,1897, being case No. 12811.

The petitions are substantially alike, excepting as to the time and the amounts of the respective judgments set forth therein. The time of the recovery of the judgment in case No. 965 covered a period of time from March 20, 1893, to March 19, 1894, and is a judgment in favor of the plaintiff herein, and against James Clifford and Jacob Gossman for $3,473 damages, and $143.97 costs of suit. The judgment declared on in case No. 966 was recovered in case No. 12,311, in said court, against the same defendants, and covered a period of time from March 19, 1894, to June 19, 1894, and was rendered at the September term, 1896, of said court, and for the sum of $1,300 damages, and $11.23 costs of suit.

There are other material allegations common to both petitions, which may be summarized as follows: That the defendant, William Marvin, was, at the time the actions were commenced, and still is, the owner of the real es.tate described in the petitions; that during all the period of time from March 20, 1893, to March 19,1894, as well as from March 19, 1894, to June 19,1894, said Clifford and Jacob Gossman occupied certain rooms in said premises of said William Marvin; and during all of said times they were engaged in carrying on the business of gaming and gambling for money in violation of law; that during all of said periods of time, the defendant knowingly permitted said rooms and premises to be so occupied and used by said Clifford and Gossman for such gaming purposes.

That said original actions, to-wit, causes No. 11,689 and 12,311, were brought by said plaintiff, pursuant to Sec. 4273 Rev. Stat., against Clifford, Gossman and said William Marvin, for money staked and bet by one Frank H. Trout, husband of plaintiff, with said parties named, in certain gaming transactions; that such proceedings were duly and legally had in said actions, that the said judgments, hereinbefore mentioned, were rendered in favor of plaintiff and against said Clifford and Gossman, and which judgments are still in full force against said Clifford and Gossman, unreversed, and no part of either of said judgments has ever been paid.

That said games on which said moneys were staked, bet and lost, and for which said judgments were recovered, were played within the period of time hereinbefore mentioned, at and in the rooms and building of defendant, he knowingly permitting the same to be occupied and used by said Clifford and Gossman for such gaming purposes.

The prayer of plaintiff’s petition is for a decree declaring said judgments a lien on said premises, and for an order for the sale thereof to satisfy said judgments, interest and costs.

The defendant filed an answer in each case, setting up two defenses in the first case, and three in the second. In the first defense in each case he admits his ownership of the premises described in the petitions; that the same were occupied by Clifford ^nd Gossman during the period stated in the petition; that plaintiff recovered judgments against Clifford and Gossman at the times and for the amounts stated in the petition. All other and further allegations of the petitions are denied, and he specially denies that he knowingly permitted said rooms and property to be used by said Clifford and Gossman for gambling purposes, and if said premises were so occupied and used by them, he had no knowledge thereof, and in no manner consented thereto.

As a second defense in case No. 966, the judgment in cause No. 11,689 is plead as a bar to said action, or cause of action, set forth in case No. 966, wherein this plaintiff was plaintiff, and this defendant and others were defendants, being the same cause of action mentioned in the petition in case No. 11,689, wherein (in said cause number 11,689) the plaintiff undertook to recover from this defendant, William Marvin, the same sum of money which she seeks to recover, in said action No. 966; that the plaintiff failed in said action to recover against this defendant for the reason she neglected or intentionally omitted in her petition in said action to allege against this defendant any facts showing his liability under the provisions of the statute; so that said action No. 11,689 is a bar to the maintenance of this action, to-wit, said action No. 966.

As further defense to the petition, and by way of amendment to the original answer, and as a second defense to the first suit, and as a third defense to the second, the defendant avers that plaintiff’s causes of action were barred by the statute of limitations at the time she commenced her actions herein.

By reply plaintiff puts in issue the matters set forth in the second and third defenses of the answers.

Upon the issues thus joined the causes were tried in the common pleas court of this, Hancock county, March 14,1902, resulting in a decree and judgment in favor of the plaintiff in each case; from which judgments and decrees appeals were taken to this court, and the causes have been submitted to this court:

First. On a motion to consolidate said actions, namely,'cause No. 965 with cause No. 966, under Sec. 5120 Rev. Stat. »

This section provides that:

“ When two or more actions are pending in the same court, the defendant may, on motion, and notice to the adverse party, require him to show cause why the same shall not be consolidated; and if it appear that, at the time the motion is made, the actions could have been joined, and if the court, or a judge thereof, find that they ought to be joined, the several actions shall be consolidated.”

It is important to know at what time the actions should or could be joined. Does it refer to the time the actions are commenced, or to the time the motion for consolidation is made? In the case at bar the motion was made after the causes came into this court and were pending herein on appeal.

From the language of the statute (Sec. 5120) it would seem the question as to consolidation of these cases is ',to be tested by the status of the causes in this court. “ If it appear that, at the time the motion is made, the actions could have been joined, * * * the several actions shall be consolidated.” We assume for the present that the test is to be made from the status of the cases in the circuit court, and not where the actions were originally brought in the common pleas.

The object of consolidation is to save costs, and prevent multiplicity of suits; it is regarded' always with favor, and never denied, when it is clear the parties are the same, and the causes of action are identical.

Whether the causes of action are identical or not must not be confounded with the object of the suits. The object or- the relief sought in these suits is the same, namely, to subject the same real estate of defendant to sale to satisfy different judgments against the same parties but rendered at different times.

The causes of action in the two suits are clearly not identical as to the time of their accruing. When case No. 965 was commenced the judgment in cause No. 966 had not yet been recovered, and could not have been joined with the cause of action, to-wit, the judgment set forth in cause No. 965.

It is very clear, therefore, if the right to consolidate is fixed and to be determined at the time the first action was commenced, these actions could not have been consolidated, as the cause in No. 966 had not accrued at the time the first action was brought. Hence the two actions, or causes of action, could not have been joined when the first suit was commenced. This perhaps will furnish a sufficient reason why‘the tests of consolidation are to be made, not when the suits are commenced, but at any time thereafter, in any court, where +he causes are pending for trial, and a motion is made for their consolidation.

We are inclined to this view, namely, that the right to consolidate actions is to be determined by the court in which they are pending according to the issues as they appear at the time the motion is filed. Keeping in view that the purpose of Sec. 5120 Rev. Stat. is the saving of costs to the party, it would follow, that if any evidence were made competent as a defense by the consolidation, which would be incompetent on the trial of the cases, or either of them separately, the consolidation in such case might be prejudicial. To illustrate, in cause No. 965 there is no plea in bar to the plaintiff’s right of action, by reason of the alleged former adjudication ¿gainst her, in favor of the defendant, while in case No. 966 such a defense is plead. In the last case,'No. 966, the record in case No. 11,689 would be competent evidence for the defendant, but not so in case No. 965, as no defense of a former adjudication has been plead.

Without pursuing the discussion further, we are of opinion that the motion to consolidate should be and is overruled.

Second. We will consider the cases together, not as identical or consolidated, but for convenience, as the main questions in each, both as to law and fact, are substantially the same.

The first question to which attention will be directed is the plea In bar, set up in case No. 966, of thé alleged former adjudication, in cause No. 11,689, wherein it is averred, that the plaintiff’s cause of action, in case No. 966, was decided against her, and in favor of the defendant, William Marvin. A like defense is not plead in cause No. 965.

To determine the merits of this defense, it will be necessary tp look into the pleadings in case No. 11,689, in the common pleas.

The object of the suit, case No. 11,689, was to hold the defendants, Clifford, Gossman and William Marvin, liable as winners of money lost at gaming under Sec. 4270 Rev. Stat. It is alleged that Marvin was the owner of the property where the gaming was carried on, and where the money was lost. Such proceedings were had in the action, that the judgment recovered against Clifford, Gossman and Marvin, was reversed as to Marvin. The judgment recovered against Clifford and Gossman, and reversed as to Marvin, was recovered under Sec. 4273 Rev. Stat, which section gives to a person, other than the loser, the right to recover money lost at gaming, when the loser fails, within the time allowed him, to do so under Sec. 4270 Rev. Stat.

The object of the suit is to make the judgment recovered against Clifford and Gossman, in case No. 11,689, for money won by them at gaming, and which remains in lull force and unreversed, a lien on the property of the defendant Marvin, wherein the gaming was carried on with his knowledge.

The defendant, by his second defense, raises the question as to whether or not said judgment in his favor is a bar to this action. We think this is settled against the defendant by the Supreme Court, in the case of Trout v. Marvin, 62 Ohio St. 132 [56 N. E. Rep. 655]. It is perhaps unnecessary to cite any other authority.

The issues tried in the former suit, as to Marvin being a winner of the money lost, did not necessarily involve the question now in dispute, namely, that the gaming in which ,the money was lost was carried on in defendant’s property with his knowledge.

“ Where a judgment or decree is relied on by way of evidence as conclusive yter ye, between the parties in a subsequent suit, it must appear by the record of the former suit that the particular controversy sought to be precluded was therein necessarily tried and determined.” Lessee of Lore v. Truman, 10 Ohio St. 45.

In Betts v. Starr, 5 Conn. 550, 553 [13 Am. Dec. 94], Bristol, J., laid down the rule as follows:

‘‘ Where the cause or object of two actions is different^ though the matter or point in dispute is the same in both, a prior judgment is no bar to a subsequent action.”

The difference between the effect of a judgment as a bar to a second action on the same demand, and its effect as an estoppel between the same parties upon a different cause of action, is clearly stated in the syllabus in the case of Cromwell v. County of Sac, 94 U. S. 351, as follows :

“ The judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.”

The object of this action is to charge the defendant and his property with the lien of the judgment rendered against Clifford and Gossman, for gaming carried on and for money lost therein, with defendant’s knowledge. This being the purpose and object of the action, it is not affected by the-judgment rendered in his favor in the former action, wherein he was only charged with his co-defendants, as a winner in the game.

This conclusion does not necessarily determine the question as to the competency of the record in the former suit as matter of evidence as to what was expressly and necessarily adjudicated in the first action. Betts v. Starr, supra. Therefore, we think the record in the former suit is competent for either party in case No. 966, but not competent for defendant for the same purpose in cause No. 965, as no such defense is set up or plead in that action.

Third. Are the plaintiff’s causes of action barred by the statute of limitations ?

The actions are instituted, not for the purpose of creating a lien upon the property of the defendant described in the petition, but for the purpose of identifying the property upon which liens were created or secured by the judgments in favor of the plaintiff, in the actions against Clifford and Gossman, under Secs. 4270, 4273 and 4275 Rev. Stat., and for the further purpose of ascertaining judicially, as against tffe defendant, Marvin, as owner of the property, the existence of facts upon which the statute declares such judgments to be a lien. This being the nature ánd object of the action, it is important to ascertain when these causes of action accrued to the plaintiff. Did they accrue to her when the causes of action accrued against Clifford and Gossman, in which the judgments were rendered, or after the judgments were obtained?

We are of the opinion and hold, that these actions against the defendant, Marvin, did not accrue until the judgments were rendered against Clifford and Gossman, whose unlawful acts caused the plaintiff’s injury.

The defendant, Marvin, as owner of the property, was not a neces sa.ry party to the actions against Clifford and Gossman. The statute, however, declares, that a judgment, rendered as these judgments were, shall be a lien upon the property of the owner until paid. But as the owner was not a party, and is not a necessary party, to the suits in which the judgments were obtained, such liens cannot be enforced by execution, but by an independent action; and such independent action accrues against the owner when the judgments are rendered, and not before. Therefore, the statute of limitations commence to run in favor of the defendant from the rendition of these respective judgments.1

Granting that Sec. 4983 Rev. Stat. controls in such case, these actions are not barred. Cause No. 965 was commenced March 7, 1896, and is predicated on a judgment rendered at the March term, 1895, of the common pleas court, to-wit, March 21, 1895; and cause No. 966 was commenced March 9, 1897, and is predicated on a judgment rendered at the September term of said court 1896. We find as a fact that said actions, to-wit, causes No. 965 and 966, were each duly commenced within one year from the rendition of the judgments upon which said actions are respectively predicated, a.nd are not barred by the statute of limitations.

In support of the conclusion of law, as to the statute of limitations plead in the third defense, the following authorities are cited: Sec. 4983 Rev. Stat.; Cooper v. Rowley, 29 Ohio St. 547; Binder v. Finkbone, 25 Ohio St. 103; Mullen v. Peck, 49 Ohio St. 447, 460 [31 N. E. Rep. 1077]; Trout v. Marvin, 62 Ohio St. 132 [56 N. E. Rep. 665].

Fourth. The object of these suits, as we have seen, is to make the judgments, recovered against Clifford and Gossman for money won by them at gaming, a lien on the property of defendant, where the gaming was carried on with his knowledge. What is the legal effect of the judgments' as against the defendant ?

In an action under Sec. 4275 Rev. Stat., to subject the premises where the gaming was carried on and the money lost to the payment of a judgment recovered against the winner for damages caused by such gaming, such judgment, when not impeached for fraud or collusion, is conclusive as to the facts: (1) That the moneys lost and winnings secured, which caused the plaintiff’s injury, were lost in gaming, and were won by the defendant in the judgment; (2) that the same were lost and won in violation of law; and (3) that the plaintiff, in consequence thereof, sustained .damage to the amount of the judgment. And such judgments as to these facts are not open to dispute, by the owner of the premises, in an action brought against him under said section.

But allegations that the premises were leased by the owner to the lessees or proprietors of the business for the purpose of gambling or gaming therein, or that the same were, with his knowledge used or permitted to be used by them for that purpose, and that the money lost and won, which caused the plaintiff’s injury, was lost and won in the premises, may be put in issue by the owner; and when that is done, as to these facts, the burden of proof is on the plaintiff. Goodman v. Hailes, 59 Ohio St. 342 [52 N. E. Rep. 829] ; Binder v. Finkbone, 25 Ohio St. 103; Mullen v. Peck, 49 Ohio St. 447 [31 N. E. Rep. 1077].

Fifth. Under the issues joined in these cases, the plaintiff must prove, in addition, to the judgments against (¡Clifford and Gossman, to subject the premises of the defendant, described in the petitions, to the payment of rhe lien and judgments under Sec. 4275 Rev. Stat.: (1) That the premises were leased by the defendant, as owner thereof, to Clifford and Gossman, to be used by them for the purpose of gambling and gaming ; or (2) that with his knowledge he permitted them to use the premises for that purpose; and (3) that the money sought to be recovered was lost in said premises.

Considering the questions in this order, we do not think the evidence sustains the contention of plaintiff, that the premises were leased by the defendant to Clifford and Gossman, for the purpose of being used by them for gambling or gaming. We do find as admitted facts, admitted by defendant’s counsel, in open court, and for the purposes of these trials: “That between the nineteenth day of March, 1893, and the twentieth day of June, 1894, the premises described in the petitions were used for ganrng purposes by Clifford and, Gossman, and that they are the same premises in which the money, represented by the judgments set up in the petitions, is claimed to have been lost. It is also conceded that the judgments were rendered against Clifford and Gossman.”

“ It is further conceded, that Clifford and Gossman occupied no other premises and conducted no gambling, during the period specified in the petitions, except in the defendant’s premises, referred to in the petitions as lot 86; and without admitting that plaintiff’s husband in fact did gamble with Clifford and’ Gossman, between March 19, 1883, and June 20, 1894, it is admitted by counsel for defendant, for the purpose of this trial, that if plaintiff’s husband did do so, such gambling was done in the building, and upon the premises of the defendant, described in her petition.”

With these admissions the material facts in dispute are reduced to substantially two questions:

First. Did the plaintiff’s husband gamble at Clifford and Gossman’s between March 19, 1893, and June 20, 1894?

Second. Did the defendant with knowledge permit Clifford and Gossman to use said premises for the purpose oí gambling ?

1. On the first issue we find, as a fact, that the plaintiff’s husband, between the dates set forth in her petitions, did gamble with Clifford and Gossman, as alleged in her petitions, and that the moneys, sought to be recovered' in these actions, were lost by her said husband and won by said Clifford and Gossman, and in the premises owned by the defendant, which are particularly described in her petition.

2. Did the defendant have knowledge, or could he have had knowledge, by the exercise of reasonable care and diligence, that his said premises were so used, and had been so used during all the time between March 19, 1893, and June 20, 1894, by.Clifford and Gossman for the purpose of gambling contrary to law ?

Mere want of, caution on the part of defendant will not be sufficient to charge him with knowledge of the unlawful use of his premises. But if he knew enough, as to the purpose for which, they were being used by his tenants, to put a prudent man on inquiry, it became his duty to make reasonable inquiry, and if he failed to do so, he is chargeable with notice of the unlawful use. • If a party obtains knowledge or information of facts sufficient to put a reasonably prudent man upon inquiry, then the necessary inference is, that he acquired the information which constitutes actual notice. 2 Pomeroy Equity, Sec. 597.

The principal contention on the facts is upon the last proposition, and this contention arises mainly as to the competency of evidence offered by the plaintiff to sustain the issue on her part as to knowledge of the defendant. It being admitted that, between March 19, 1893, and June 20, 1894, that the premises described were used for gaming purposes by Clifford and Gossman, and that they are the same premises in which the money, represented by the judgments against Clifford and Gossman, was lost, for the purpose of proving the defendant’s knowledge, that his premises were so used, evidence is offered to show the general reputation in the neighborhood, or in the city of Findlay, where the premises are located and the defendant lives, that said premises were kept and used by Clifford and Gossman as a gambling place.

The! rule as to such evidence is, that to prove knowledge of a particular fact, it is competent to show that such fact was at the time generally known and talked about in the neighborhood where the party to be charged with knowledge resided, or was a matter of common reputation in the business community where the party to be charged with knowledge lives. 1 Wharton Law of Evidence, Sec. 252; Adams v. State, 25 Ohio St. 584; Lee v. Kilburn, 69 Mass. (3 Gray) 594; Heywood v. Reed, 70 Mass. (4 Gray) 574; Cobleigh v. McBride, 45 Ia. 116.

The objective fact, namely, that Clifford and Gossman kept a gambling place in the premises of defendant, being admitted, then to charge defendant with the knowledge thereof, the reputation of the place may be shown to prove such knowledge.

We therefore hold, that the evidence offered by plaintiff as to reputation of the place kept by Clifford and Gossman, so far as it related to the reputation in Findlay, or in the vicinity, is competenr, and defendant’s objection thereto is overruled; and the motion to rule out the same is overruled ; exceptions noted. The evidence on the same subject, that tended to prove reputation elsewhere than at Findlay and in the vicinity, is ruled out, and the motion for that purpose is sustained.

All other objections of defendant to the evidence of plaintiff, not specially ruled on by the court at the trial, are overruled with exceptions noted.

The record evidence, namely, the records in original cases, in which the judgments against Clifford and Gossman were recovered, and offered by defendant to support his contention, that said plaintiff’s actions herein are barred by the judgment in his favor in said original actions, and that such judgment is res adjudicta here, are not competent for such purpose, in behalf of defendant in cause No. 965, for the reason no such defense is made by plea in said action.

The records are competent evidence under the second defense, and the reply thereto, in cause No. 966 ; and the court hold that said record does not sustain defendant’s plea, and said action No. 966 is not barred or affected by the judgment rendered in favor of defendant in said former action.

From the direct evidence offered by the plaintiff, being conversations had by her with defendant, in reference to her husband losing money at gambling at Clifford and Gossman’s prior to bringing these original actions ; circumstances of defendant being sued by others prior to these actions for money lost at the same place and in the same way, he taking part in the settlement of actions, where Clifford and Gossman with himself had been sued to recover money lost at gaming in these premises; and from the general reputation of the place, as being a gamling place, kept by Clifford and Gossman, we hold that the evidence is sufficient to charge defendant with actual knowledge of the purpose and use made of said premises, by his lessees, Clifford and Gossman. "

The court having sufficiently indicated its finding of fact upon the issues joined in said actions, and also its conclusions of law arising in the cases, we hold that the plaintiff is entitled to the relief prayed for in her petitions, and a decree will be entered accordingly with costs.

To which findings of fact and conclusions of law the defendant excepts.

Motion for new trial filed and overruled; twenty days allowed for finding of facts; statutory time for bill of exceptions.