author: HULL, J.

text:
    ARSON — BUILDINGS—INDICTMENT AND INFORMATION.
    [Williams (6th) Circuit Court,
    1905.]
    Hull, Haynes and Parker, JJ.
    Eli Van Immons v. State of Ohio.
    1. Indictment not Affected by a Self-evident Mistake.
    An indictment, one count of which charges accused with burning a building, as principal, in 1804, and the second count charging him with aiding and abetting another in the same crime in 1894, is not had for duplicity and indefiniteness, as the date in the first count was clearly a mistake; and no substantial right of accused being prejudiced, under Rev. Stat. 7215 (Lan. 10969), a motion to quash is properly overruled.
    [For other cases in point, see 5 Cye. Dig., “Indictments and Informations,” §§ 406-428. — Ed.]
    2. Burning of an Unfinished Building is Aeson.
    To constitute the crime of arson under Rev. Stat. 6831 (Lan. 10437), it is not necessary that the building burned he entirely completed. It is sufficient if it be a structure in the course of erection and intended for a dwelling; and, although unfit for the purposes for which it is ultimately intended,- it is so far completed that it could he used temporarily for shelter or occupation, or for the storage of personal property.
    3. Acquittal of Bubning a Dwelling House no Bab to Pbosecution fob Bubn-ing a Building.
    Acquittal of the charge of burning a dwelling house is not a bar to a subsequent prosecution, for the same offense, under an indictment charging the burning of a structure other than a dwelling house
    [For other cases in point, see 3 Cyc. Dig., “Criminal Law and Practice,” §§ 262-267. — Ed.]
    BrroR to Williams common pleas court.
    C. L. Newcomer, for plaintiff in error.
    Edward Gaudern, for defendant in error.
   HULL, J.

The defendant in this case was indicted by the grand jury of this county for the crime of arson. It is charged that he burned a certain building, the property of Martha Page, of the value of $50 or more, and he was convicted, judgment was entered upon the verdict and he was sentenced to imprisonment in the penitentiary. A motion for a new trial was overruled by the court and a petition in error filed in this court to reverse that judgment.

There are numerous errors complained of:

First', it is claimed that the court erred in overruling the motion to quash this indictment. The offense was set up in different forms in two counts in the indictment:

The first count charged that the' defendant then and there unlawfully, willfully and maliciously did attempt to burn, and then and there unlawfully, maliciously and wilfully did burn a certain building; to wit, a certain building then and there being, and then and there in the course of construction, then and there not completed, then and there designed to be used thereafter as a dwelling house, then and there unoccupied, then and there being of the value of $50 and more, etc., charging the time of the commission of this offense as set forth in the first count of the indictment as in the year 1804.

In the second count it is charged that the defendant wilfully and maliciously did attempt to bum, and then and there unlawfully, wil-fully and maliciously did burn a certain building; to wit, a certain building then and there being in the course of construction, then and there not completed, and then and there designed to be thereafter used as a dwelling house, then and there unoccupied, then and there being the property of one Martha Page, of the value of $50 and more. And the grand jurors aforesaid, upon their oaths aforesaid, do further find and present that one Eli Van Immons before said arson was committed as aforesaid by the said Homer Morrison, the said arson being the same unlawful, wilful and malicious burning mentioned in the first count of this indictment and before said unlawful, wilful and malicious burning was committed as aforesaid by the said Homer Morrison aforesaid; to wit, on October 8, a. d. 1894, at the county and state aforesaid unlawfully, wilfully and maliciously did, aid, abet, procure, counsel and incite him, the said Homer Morrison, to said arson in manner and form aforesaid to do and commit. This count charges the defendant with aiding fend abetting Homer Morrison in the commission _ of the crime of arson and the offense in this count is referred to as the same offense set forth in the first count in the indictment, but the date here is mentioned as October 8, 1894, while the date in the first count is mentioned as the eighth day of October, 1804. It is claimed that this shows that two. offenses are contained in. this indictment and further that it makes the indictment bad for duplicity and indefiniteness, inasmuch as these two dates are used — in the one count 1804 and the other 1894. The first count in the indictment, which made the crime in 1804, was quashed by the court and the defendant was tried upon the second count. "We are of the opinion that the court did not err in overruling the motion to quash the second count of the indictment upon the motion of the defendant. It is clear upon the face of the indictment on record that the date in the first count of the indictment, 1804, was a mistake. The'defendant himself, according to the record, was about thirty years of age at the time of the trial and it is very evident that there was no intention of charging him'with committing a crime fifty years or more before he was born. It is clear that this date in the first count of the indictment charging him with the commission of this offense as principal was a mistake and under the statute in this state was not to be re■garded as prejudicial to the defendant. Revised Statute 7215 (Lan. 10969), besides providing a large number of things which shall not be regarded, uses these words:

“No indictment shall be deemed invalid * * * for any * * * defect which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

Although the second count refers to the first, still it is charged clearly in the second count as October 8, 1894, and there can be no doubt that the defendant understood that that was the date upon which the crime was laid that he was to answer for, and clearly he. could not have been mislead in preparing his defense. After this motion was overruled, the defendant demurred to the indictment and this demurrer was overruled by the court of common pleas and this, it is claimed, was error.

If is claimed by plaintiff in error that the indictment does not charge any offense, under the law of this state, against the defendant, and by defendant I mean the defendant below, in that it does not charge the defendant with burning a completed and finished building, but does charge that he burned a certain building; to wit, a certain building, then and there being in the course of construction, and then and there designed to be thereafter used as a dwelling house, then and there not completed, then and there being the property of one Martha Page, of the value of $50 and more.

It is said that under the statute of this state, to 'constitute arson, the building destroyed must be a completed and finished building; that this indictment, showing upon its face that the building was not completed' or finished, did not constitute a violation and did not contain sufficient allegations to constitute a violation of the arson statute against the defendant. It is very clear to us, however, that the indictment was sufficient upon demurrer, at least. It does not state what the building lacked; it does not state wherein it was unfinished. It states that it was a building then and there intended thereafter to be used as a dwelling house, then unoccupied, unfinished and incompleted. For aught that appears upon the face of the indictment, it might simply have lacked one window, or the glass in one window or more, or the steps, or the paint, or one chimney, or many and many other things that might be mentioned. It is, of course, clear, if the' building only lacked one of these small things to make it absolutely complete, that it would still be called a building, and properly so, in an indictment.

After the evidence for the state was in, and during the entire trial, the defendant claimed that the structure, as shown upon the trial of the ease, was not a building within the meaning of the statute, and a motion was made to bring a ■ verdict in favor of the defendant, and, in connection with the ruling upon the demurrer, that may as well also be discussed.

As I say, the defendant claimed that the evidence did not show that the building destroyed was a building within the meaning of the statute. The arson statute, Rev. Stat. 6831 (Lan. 10437), provides that whoever shall maliciously bum or attempt to burn any dwelling house, kitchen, — and then follows a large number of other buildings — etc., of the value of $50 or more, shall be imprisoned in the penitentiary, etc.; and the question is whether the structure shown in this case comes within the definition of “any other building.” It is claimed by plaintiff in error that this means a completed building. There is no provision in the statute for an unfinished building, and until it is complete, ready for occupancy, or substantially so, it cannot be regarded as a building; that up to that time it is claimed that whatever of material there is in the structure can only be regarded as personal property, or as property which will come within the statute against the malicious destruction of property, which is another and distinct statute.

The evidence in the case shows that this structure was owned by Mrs. Martha Page; that she was constructing a dwelling house; that it had proceeded so far that the foundation was laid, the house was inclosed. It was constructed of building block as it was called. The house was inclosed; the roof was on; it was lathed; the floors were laid; the steps leading up to the house had not been constructed; the stairway' on the inside of the house had been partially constructed; the doors were not in; the windows were not in; the house had not been plastered; the chimneys had been built and the furnace set up, and the door frames and window frames put in. This was the condition of the structure at the time it was burned, for there is no question madre in the record but that the house was burned by some one.

Many authorities are cited by counsel for plaintiff in error to sustain his contention that the building or structure in this condition could not be regarded as a building. I shall not undertake to review any of the authorities that were cited. In some states, it appears, there are statutes providing for the burning of unfinished buildings, separate statutes, distinct from statutes making it a crime to burn a finished building. We have no such statute or statutes in this state and this indictment must stand, if it stands at all, upon Eev. Stat. 6831 (Lan. 10437), from which I have read, and if this structure comes within any part of the statute, and if this case comes within any part of the statute, it comes within the words “other buildings.” As I have said, in speaking of the demurrer, if the house only lacks some very small and insignificant thing from absolute completion, it would seem: to be clear that it would still be called a building, and we would not say that a structure intended for a house was not a building because it lacked one chimney, or a part of the doors, or a part of the windows as I have suggested. The question is, if there can be any question. When does a structure, if at all, cease to be mere building material and become, under the law, a building? Counsel for plaintiff in error claims that this does not occur at any time until the building has been substantially completed. Some of the cases cited seem to sustain this contention.

Arson, at common law, included only the burning of a dwelling-house, but to this has been added, from time to time, the other classes of buildings and structures until now, in our state, it is plain that the statute is intended to cover every kind of a building, and after describing a great number of buildings it adds these general words “any other building.” The question is one not entirely free from difficulty, and there are no decisions in this state directly in point, but it seems to us that when a building is in the condition that this building was in, and when it has assumed the character and proportions that this building had assumed at the time of the fire, that it -may be and should be, within the purview of this statute, called a building. It is true, as urged by counsel for plaintiff in error, that the mere pile of material lying upon the ground does not constitute a building and so not within any statute, but where a structure has been erected, designed and intended for a dwelling house, and has reached the stage that this one had with its foundation, with its inclosure, its side walls all up and the roof upon it, the lathing upon the inside, the stairway up, although it still lacks the doors and the windows, the plastering and the outside steps, it seems to us that such a structure, within the meaning of the statute, is a building.

It may be added further that the partitions had all been constructed in th’is house, and lathed, and the rooms enclosed'and it was in such condition as. to offer shelter there- for human beings, for beasts, for animals or for property. It was not a dwelling house as it had never been occupied by a human being, but, in- common language, it would seem to us as though anyone speaking of such a structure would speak of it as a building, that it could not well be described in any other way. It -was not entirely finished, it was not completed, but the object •of the arson statute is to protect buildings, if they may be properly •called buildings, from being destroyed by fire. The burning of a building which has once been occupied by human beings lias always ■been regarded as a crime of a very strong character. The burning of a dwelling house in former times in England was a capital offense and to bum any kind of a building has always been regarded as a crime of a very serious nature and punished by heavy penalties, and we think that this statute should be so construed as to protect a structure of this kind, and we are of the opinion that this structure had reached that stage- where it could be called a building.

There is a ease cited by defendant in error for the state which sustains us in this view, and is clearly, it seems to us, in point with this case. In Clark v. State, 69 Wis. 203, the court say in the first paragraph of the syllabus:

“A structure in course of erection, and intended for a dwelling, which, though unfit for the purpose for which it is ultimately designed, and not occupied as a dwelling, is yet so far completed as to be used temporarily for the shelter'or occupation of man or beast, or for the storage of tools or other personal property for safekeeping, is a ‘building,’ within the meaning of Sec. 4409 Rev. Stat., and the felonious breaking and entering the same in' the nighttime is burglary.”

In this case the building intended for a dwelling house was in the course of construction and a room in it had been partitioned off and designed for the purpose of storing tools in that room, and it was held by the Supreme Court that this constituted burglary. The court say. on page 205:

“It appears that the building broken into in this case was erected upon a stone foundation, was intended for a dwelling house, and was in the process of construction. The walls or sides were up, and the roof was on. The windows and doors had not been- put in, though some of the windows were boarded up. A temporary room had been partitioned off in the basement; the basement walls forming two sides, the other sides being closed up with boards, with a door which was locked with a padlock. This room was intended for storing the tools of. the workmen while at work on the building. The outside window of the basement was covered with boards. A temporary floor had been laid, from which the basement was reached by means of a ladder. There was a chest of tools on this temporary floor.”

And further on, on page 206; the court say:

“Now, the contention of the learned counsel for the plaintiff: in error is, that breaking and entering a structure in the process of construction, as the building in question was described to be, is not included within the statute. It Mall be observed the provision quoted makes the breaking and entry in the nighttime of ‘any office, shop, warehouse, or other building not adjoining or occupied with any dwelling house,’ with intent, etc., one grade of burgláry. But it is said a structure which is unfinished, unfit for occupation for the purpose for which it was designed, is not a building, within the meaning of the statute. But, on considering the objects of the statute, we are fully satisfied that the word ‘building,’ as used therein, does not necessarily mean a structure so far completed as to be in all respects fit for the purpose for which it was intended. It doubtless' does mean an edifice or structure erected upon land, and so far completed that it may be used temporarily or permanently for the occupation or shelter of man or beast, or for the storage of tools or other personal property for safekeeping. "Webster defines the word ‘building’ as ‘a fabric or edifice constructed; a thing built.’ Worcester defines it, ‘a structure or edifice;’ the Imperial Dictionary, ‘a fabric or edifiice constructed for use or convenience, as a house, church, shop.’ In La Crosse & M. Ry. v. Vanderpool, 11 Wis. 121, Mr. Justice Paine says: ‘The well-understood meaning of the word is a structure which has a capacity to contain, and is designed for the habitation of man or animals, or the sheltering of property.’ In this case the structure was intended for use and occupation as a residence when completed. Now, to hold that it was not a building does not satisfy the definition of the statute, because it is unfinished, not perfect for the purpose for which it was designed eventually to be used — would be giving the statute a stricter construction than we are disposed to place upon it. We are rather inclined to hold that the legislature intended to include in the term ‘building’ a dwelling house not completed, but in the condition in which the one in question was, and in which tools and other articles of personal property were or might be temporarily stored or left for safekeeping. The language is broad enough to include such an edifice, and we think does include it.” ■

The court then review and discuss some of the authorities cited by counsel for plaintiff in error, and say, page 208:

“These cases furnish but little aid in the construction of our own statutes, for it is obvious, as Mr. Bishop remarks, that the word ‘building,’ in a statute, will almost always depend for its meaning, in some degree, on the particular subject, and its connection with other words. Statutory Crimes, Sec. 292. And while, as the assistant attorney general suggests, it may be difficult to say at what time a structure in process of construction presents such a degree or state of completion as that it may be described as a building in the sense of the statute, still we think the edifice in question may be properly denominated a building, within the meaning of Sec. 4409. In the connection in which the word is used it cannot import a finished structure ready for use, as a'residence, for the words are, ‘any other building not adjoining or occupied with a dwelling house.’ The other building was a. structure different from a dwelling house, as those words were used in this and the two preceding sections. We think the provision was intended to include any building not within the curtilage, in which property might be -stored, or men or animals sheltered. There are cases which show that the word is often used in statutes in that sense. In Rex v. Worrall, 7 Car. & P. 516, an unfinished building, intended as a cart shed, which was boarded up on all its sides, had a door with a lock to it, and the frame of a roof, with loose gorse thrown upon it, but not thatched, was held a building. In Queen v. Manning, L. R. 1 Cr. Cas. 338, an unfinished house of which the walls were built and finished, and the roof on and finished, considerable part of the flooring laid, and the internal walls and ceilings prepared ready for plastering, was held to be a building. This shows that a building, as the word is often used, does not necessarily imply a completed structure.” The house cited by the Wisconsin court was very much like the house in question in this case as to its condition. It seems to us that it would be putting too strict a construction upon this statute to hold that the structure, in the condition that this house was, was not within the provisions against arson in this statute. There being no case directly in point in this state, we are at liberty to follow the rulings in other states or lay down such a rule as seems to us proper, and we think that the reasoning of the court in this Wisconsin case is sound. Whether the structure had reached that stage where it might be called a building or not was a question of fact, and in this case it was left with the jury to decide whether it was a building or not. And it is complained that the court erred in its charge to the jury in saying that if the house was inclosed and the roof on it might be regarded as a building and should be so helcj. by them. It is possible that this definition of the court was a little too narrow. That may have been, but we would not reverse the judgment in this case if we were of the opinion that that was possibly a definition tod narrow, and what the court said to the jury, it seems to us, should be read in the light of the undisputed evidence in the case, and we, therefore, hold that there was no error prejudicial to the defendant in what the court said to the jury.

A plea of former acquittal was filed by the defendant and demurrer was filed, and that demurrer was sustained, and this is claimed to have been erroneous. It appears that the defendant had been in-dieted at a former term of the court of common pleas of this county for arson, and in that indictment he was charged with burning a dwelling-house the property of one Martha Page, the same structure as this structure here covered by this indictment. The record shows that a verdict of “not guilty” was returned in that case, it is said upon the instructions of the court, and the defendant was discharged. It is said that the former acquittal is a bar to this prosecution. We are of the opinion that the ruling of the court w,as correct. A former acquittal is not a bar unless he was acquitted of the same offense with which he is charged here. He was charged in the former indictment with burning- a dwelling-house, it never having been inhabited by human beings, and for that reason he was not guilty of that offense.

He is charged here not with burning a dwelling house but with burning a building, designed thereafter to be used as a dwelling house, which constitutes another and a different offense. I will cite a few authorities. 3 Cyc. 987; 2 Am. & Eng. Enc. Law (2 ed.) 928; Commonwealth v. Hayden, 150 Mass. 332 [23 N. E. Rep. 51]; People v. Handley, 93 Mich. 46 [52 N. W. Rep. 1032].

The court in the last case say in the syllabus:

“The acquittal of the charge of burning a dwelling house is not a bar for the trial of the same offense providing for the punishment of one who shall wilfully and maliciously bum any building other than a dwelling house.”

That case seems to determine the question here. I might add to what I have already said that if this indictment, upon which he was con-vieted, bad simply described the structure as a building, and had not described it as an unfinished and uncompleted building, that probably would have been sufficient to decide the question whether it had reached such a stage of construction that it could be called a building. A man cannot be convicted of arson unless he burns one of the structures named in the statute or some kind of a building.

It is urged that the conviction of the defendant was against the weight of the evidence and that the court erred in its charge to the .■jury. The record shows that the defendant was charged with aiding and abetting Morrison in the crime and he was convicted largely upon the testimony of Morrison. The record shows that this structure had been built at the village of West Unity, this éounty, and on the evening of October 8, about 9 or 10 o’clock, it was burned. The defendant was not arrested for some years afterwards. Morrison was the principal offender. lie was a witness in the case and, according to his testimony, he suggested the burning of this house.

The defendant, at that time, was a young man about twenty y^ars old. Tie and Morrison were and had been friends, quite intimate friends, for quite a long time, and, according to the testimony, Morrison, it seems, was not on friendly terms for some reason with Mrs. Page, the owner of this property, or her husband. He testified that on the evening that the fire occurred the defendant was at his place of business in West Unity, and that when they 'locked up this place he suggested to the defendant that it would be a good night to bum this building and the defendant agreed. He testified that after going to his own house, going in, getting a bottle of coal oil and a candle, they went to this house, going upstairs, setting the candle on the floor and sprinkling coal oil on the floor and shavings, then both went to Mo”-rison’s house and went to bed. Soon after the house took fire, the alarm of fire was given and the house was- practically consumed.

The defendant testified that he was at Morrison’s place of business with Morrison and after leaving there Morrison went away for about half an hour, leaving him, the defendant,‘outside of Morrison’s houseJ that he waited there until Morrison returned. He claimed that he hadl j no knowledge of what Morrison was doing or what he intended to do„ denies that he* had ever talked with Morrison about this matter, and says that he had nothing whatever to do with it.

Mrs. Morrison testifies that Morrison and the defendant came to their house about 10 o’clock that night, took off their shoes, and went up stairs to bed. She says that she detected a strong odor of coal oil soon after they came into the house, and she spoke to them that night and Morrison said that they had been in an alley where there were some barrels and that perhaps they contained coal oil. After they had both gone to bed, the alarm of fire was given and the defendant went to the fire; after the fire was over they came- back and he remained there that night and part of the next day. He testified that nothing was said about the fire between him and Morrison the next morning.

It went to the jury upon the testimony which I have just given and they found the defendant guilty.

The Supreme Court of this state has held that a man may be convicted upon the uncorroborated evidence of ah accomplice. The court charged the jury, we think, correctly under this decision of the Supreme Court, that if the jury believe the testimony of an accomplice, although it was uncorroborated, it was their duty to convict. That merely means to say to the jury that if they believe the testimony of an accomplice, when he says and swears that the defendant took part with him in the commission of the crime, it is their duty to find him guilty. It follows, of course, that it would be their duty to so find him, so we see no objection to the charge of the court.

There are states where it is provided by statute that a man shall not be convicted on the uncorroborated testimony of an accomplice. íhat is not true of this state. It was for the jury to say, under the circumstances whether the testimony of Morrison was true. He described in detail the commission of this crime.

It appears from the undisputed evidence in the case that Morrison and this young man were quite intimate friends — we think had often ridden about the country together in the daytime and I think sometimes in the evening, and that they were together a great deal. There is a hint in the testimony that Morrison was visiting a young person in the neighborhood some three miles away, a fact which he wished to conceal perhaps from his wife, and this 'young man would aid him in that he would wait around and then go into the house with Morrison, after he had returned from the visits, making it appear that he and Morrison had been away together. I only speak of this as showing the intimacy which existed between them. He was with Morrison the afternoon of thfe day the fire occurred. He was with him in the evening at his place of business. "We went from there with him to his house. He testifies that Morrison went into his house, as Morrison himself testifies, when be got tbe bottle of coal oil and the candle. He says Morrison asked him to wait for him, but Morrison went away remaining about half an hour. . Where Morrison went after going away and leaving him there does not appear from the testimony of the defendant.

There is no denial of the testimony of Mrs. Morrison, who was a witness in- the case, as to the shoes of Morrison and, she thinks, of the defendant’s smelling of coal oil when they came in that night.

The fact that nothing was said between Morrison and the defendant about this fire the next morning at breakfast, as the defendant testifies, is a significant fact. If the defendant was innocent of any connection with this crime, it is stfange that he should sleep in the house that night, eat breakfast there and perhaps dinner and nothing transpire between him and Morrison in regard to it. It seems to us that, under this testimony, the court would not be warranted in finding that the verdict was not sustained by the evidence.

. Arson is one of those crimes where there are usually but few, if any, eye witnesses, committed usually in the darkness of night and testimony which leads to conviction is usually circumstantial. While we have in this case these circumstances, we have also the testimony of Morrison, who swears positively to the defendant’s connection with the commission of the crime. Nothing appears in the record to show any feeling of hostility or enmity on the part of Morrison toward the defendant. No reason appears why he should swear this young man into the penitentiary unless what he tells is true. It is true that he had been indicted for this same offense, but he was also indicted and convicted for other offenses, and was serving a term of imprisonment in the penitentiary at the time he testified in this case. It may have been, it is urged by counsel for plaintiff in error, that to testify in this case against the defendant would aid him to secure a pardon or relief in some manner. But the circumstances in this case stands out strongly that the defendant in this case, against whom he testified, was his friend, against whom he had no enmity and with whom -he had been on the most intimate and friendly terms.

This whole question was submitted to the jury.' They were better able than we are to hear the testimony and determine where the truth lay as between the defendant and Morrison, who gave his testimony against him. It is one of these cases that, under the law of the state, was submitted to the jury, and they have determined, after hearing the evidence, that the defendant is guilty as he stood charged in tlie indictment. We have reviewed the record with care and find no errors in it to his prejudice. The judgment of the court of common pleas will therefore be affirmed.

Haynes and Parker, JJ., concur.


source: Caselaw Access Project

author: SWING, J.

license: Public Domain

text:
    ANIMALS — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    March 8, 1907.]
    Swing, Giffen and Smith, JJ.
    Seegmueller v. Pahner.
    1. Keeping Basking Dogs as Negligence.
    While a harking dog may he a nuisance, it is not negligence to keep such a dog.
    2. Liability fob Injuries Caused bt Dog’s Frightening Child.
    Where there is no testimony in support of allegations that the defendant harbored a large St. Bernard dog, which he permitted to run without restraint and without a muzzle, or the taking of any means to protect the public from injury which might result from, the vicious disposition of said dog, a verdict awarding damages on account of injuries to a child, who ran in fright from the dbg and fell from a second story porch, must be set aside where it appears that the dog was on the premises of the defendant owner, and did not bite the child, or touch him, or do anything except bark.
    [For other cases in point, see 1 Cyc. Dig., “Animals,” §§ 112-135. — Ed.]
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
    Renner & Renner and Eugene Heim, for plaintiff in error.
    Moulinier, Bettman & Hunt, for defendant in error.
   SWING, J.

This was an action in the common pleas court for damages by August Pahner, Jr., by his next friend, August Pahner, Sr., against Ludwig Seegmueller. It is alleged in the petition that Seegmueller was the owner of a large St. Bernard dog; that he negligently harbored said dog on his premises and permitted it to run at large without restraint and without a muzzle, and without taking any means to protect the public from injury which might result from the vicious disposition of said dog; and that said dog was known by him to be of a bad temper and of unruly, vicious and dangerous habits.

That on May 27, 1904, he, Pahner, Jr., was playing on the .porch on the second story of defendant’s premises, when said dog came from the yard of said premises and ran at this plaintiff and his companions, growling and barking in a menacing and terrifying manner, and that he became very much frightened, and in endeavoring to reach the roof of a shed nearby climbed over the railing of the porch in order to escape from the dog which was already upon him, but that in his confusion .and fear, owing to the near presence and vicious aspect of the dog, he slipped and fell to the ground, a distance of some twelve or fifteen feet, and was seriously injured. He claimed damages in the sum of $5,000. The jury awarded $1,000 damages and judgment was entered for the amount of its verdict. Numerous errors are assigned for a reversal of the judgment.

On the trial two witnesses were called by plaintiff, who testified to what occurred at the time of the injury; although four boys were playing together at the time, two of the boys were not produced as witnesses. The two who did testify were the plaintiff, who .at the time of the accident was nine years old, and at the time of the trial was eleven, and his brother, who was two years younger.

The plaintiff’s testimony was to the effect that he and the other boys opened the door on the defendant’s premises, and went in the yard to get a drink of water; that shortly after the dog of the defendant came in another door from the street nearby; that he ran up the stairs and the dog ran after him and barked;,that he tried to climb over the fence (railing on porch) when the dog jumped on him and bit him on the arm. He was trying to get in the water-closet, a building near the porch and lower, and on which the. evidence shows these boys had been jumping from the porch. The evidence clearly shows by all the witnesses that the boy fell off the porch, and 'had. his arm broken and skull fractured by the fall.

Arthur, his younger brother, testified that they went in the defendant’s yard to get a drink, and that the dog came in and they all ran up the steps to get out of the dog’s reach so he would not bite them. He and another were first and the plaintiff was last; that the plaintiff was going to jump on the roof (of the water closet) and was holding onto the rail, and the dog came up and bit him on the arm, and he fell down. On cross-examination Arthur said that they played “catchers” there; that they would run up the steps onto the porch and jump from the porch onto the roof of the water-closet, onto the ground. He said the dog at the time was on the third floor of Seegmueller’s house at the end of the hall, and that at the time Gustie (plaintiff) got hurt and that Freddie Wunderlicht (who was one of the boys playing there) was to “tag Gustie,” when he fell and got hurt. If what Arthur testified to on cross-examination is true it must be admitted plaintiff had no case; but it was said in argument by plaintiff’s counsel that Arthur would bave said anything that defendant’s counsel might have asked him to say; it cannot be said that this is correct from a perusal of tfye record; of course, it is in contradiction to what he said in chief, but what he said in cross-examination does not seem unreasonable, and if he was so easily led to say that which was untrue, little, if any, credence can be attached to his evidence in chief. If Arthur’s evidence is disregarded the only evidence left is that of the plaintiff. He said the dog bit him, but this is not alleged in the petition, and the dog “ran at him barking and in a menacing and terrifying manner;” and the evidence clearly shows that the dog did not bite him. Dr. Meyers, who was called to see the boy at the time of the accident, said he found no marks on him of having been bitten by a dog. It is evident, if plaintiff <told the truth, that when the dog came in the yard where the boys were, the dog had no intention at that time to bite or assault the boys, for he could have turned on them in a moment; they could never have gone up the stairs and all of them climb over the porch railing and jump off, except the plaintiff, before the dog could reach them; he could travel twice as fast as they could. All dogs bark, and it is not negligence for’a person to keep a dog that barks, and we know of no eases where one has recovered for injury caused by a dog barking. It might be a nuisance to keep a barking dog, but hardly a ground for an injury for keeping a vicious dog.

As against the plaintiff’s evidence the defendant introduced four witnesses who testified that they saw the accident; two of them,-Flora Schnell and Hilda Brossard, testified that they saw the boy fall, saw him hanging on the porch and that he fell right at their feet. They said the dog was not there; was not biting the boy. They heard the dog bark, but it sounded as though he was some distance away. Clara Strible testified to the same effect. Ben Radefield also testified that he saw the boy fall and the dog was not there. These witnesses seem to be disinterested. There is no conflict in their testimony, and it seems reasonable when taken in connection with the admitted‘facts. And still further, it seems unreasonable that these boys should run upstairs and jump off a porch twelve feet high in order to get away from a dog which was approaching them when it was much easier for them to go out of the door through which they had just entered; and while children of their age should not be held to exercise the judgment of persons of mature age, yet in this ease even a child it would seem could hardly act in this way.

The judgment we think is manifestly against the evidence.

Giffen and Smith, JJ., concur.


author: GIFFEN, J.

text:
    ERROR — FINAL JUDGMENT.
    [Hamilton (1st) Circuit Court,
    March, 1907.]
    Swing, Giffen and Smith, JJ.
    Cincinnati (City) v. Florence Reimer et al.
    ■ Overruling Motion for Judgment not Pinal Order.
    The overruling of a motion by the defendant for judgment, accompanied by the withdrawal of a juror and continuance of the cause with leave to the plaintiff to amend his petition if 'he so desires, d-oes not in effect determine the action and prevent a judgment, and is not a final order which may be vacated or modified by a proceeding in error.
    [For other cases in point, see 4 Cyc. Dig., “Error,” §§ 107-127. — Ed.]
    Error to Hamilton common pleas court.
    Jesse Lowman, city solicitor, for plaintiff in error:
    G. W. Harding, for defendants in error ¡
   GIFFEN, J.

This original action was commenced by Florence Reimer against Briggs Cunningham and the city of. Cincinnati to recover damages for a personal injury sustained by reason of the slippery condition of the sidewalk in front of Cunningham’s premises, which the defendants had, as averred, negligently suffered to become, and continue to be, covered with ice. At the conclusion of plaintiff’s testimony each defendant moved the court for judgment, which motion by Cunningham was granted and judgment rendered in his favor. The motion of the city was overruled; but the court of its own motion decided that the petition did not constitute a good cause of action against the city, and after withdrawing a juror continued the cause to enable the plaintiff to prepare an amended petition if she so desired.

Held: No judgment against the city, nor final order within the meaning of Rev. Stat. 6707 (Lan. 10297), was renderéd by the court. It does not appear that any of the orders made “in effect determined the action and prevents a judgment.” The city may upon the final hearing of the cause succeed in its defense. The record therefore discloses no ground for a proceeding in error by the city, and its petition in error will be stricken from the files.. Holbrook v. Connelly, 6 Ohio St. 199; King v. Bell, 36 Ohio St. 460.

Swing and Smith, JJ., concur.


author: WINCH, J.

text:
    MUNICIPAL CORPORATIONS — ORDINANCES—WATER RENTS.
    [Cuyahoga (8th) Circuit Court,
    February 11, 1907.]
    Winch, Henry and Marvin, JJ.
    Margueritte L. Hutchins v. Cleveland (City) et al.
    Control of Municipal Waterworks Vested in Board of Public Service.
    Under Rev. Stat. 1536-100, 1536-618, 1536-674 et seq. (Lan. 3102, 3093, 3126 et seq.), the placing of water meters on the service pipes connecting a private residence is within the administrative discretion oí the board of public service of a municipality, and that part of an ordinance that affects that power is illegal and void. Hence, an intention or threat by such a board to attach a meter to a residence will not be restrained by injunction, by reason of an ordinance that provides that such meters shall be attached to residences only on request of the owner.
    [For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§ VÍ4-627, 752-759. — Ed.]
    Appeau from Cuyahoga common pleas court.
    H. A. Beckerman, for plaintiff.
    N. D. Baker, city solicitor, for defendant.
   WINCH, J.

This case is in this court on appeal, and was argued upon a demurrer to the petition, in which the plaintiff seeks'to enjoin the placing of a water" meter upon the service pipe supplying her residence with water. The amended petition, after setting forth that the plaintiff is the owner in fee simple of certain premises in the city of Cleveland, proceeds as follows:

“Plaintiff states that on or about the twenty-first day of August, a. d. 1901, and on the fourteenth day-of February, A. d. 1903, 'Section 999 of the revised ordinances of the city of Cleveland was amended as follows: Ordinance 44559-A, section No. 1:
“ 'Breweries, colleges, county buildings, distilleries, gas works, hotels, malt houses, packing houses, soap factories, livery stables, steam engines, tanneries, theatres, railroad depots, railroad shops, and standpipes, manufactories, and other establishments other than residences, not herein enumerated, if deemed advisable by the board of public service, .shall be metered by the waterworks department. Residences shall be metered only on request of the consumer at the expense of the water department, provided that in case of waste or other improper or unauthorized use of water, of which satisfactory proof has been furnished to the water department, a meter may be set without the consent of the consumer. ’
“Plaintiff: further states that said defendant through the board of public service for the city of Cleveland, has threatened and is about to place, and will place, unless restrained therefrom by order of the court, a water meter upon, premises of said plaintiff, without her consent and without proof of waste, improper or unauthorized use of water upon the part of said plaintiff. That said action contemplated by said defendant is illegal, and in contravention of plaintiff’s personal rights as a citizen and taxpayer of this county and state, and in direct violation of the city ordinance herein set forth.”

Then follows an allegation that said water meter is so constructed as to render the water unfit for household consumption and a menace to health, but upon the hearing- it was agreed that this allegation of the petition should be abandoned and not considered by the court.

The sole question raised by the demurrer is whether the placing of water meters upon service pipes to private residences is within the administrative discretion of the board of public service, or is controlled by the legislative enactment of the city council, above, referred to.

A consideration of the nature of the act sought to be enjoined will assist in determining the controversy thus arising, for the provisions of the municipal code upon the subject are not explicit.

Meters are used for the purpose of measuring the quantity of water furnished or consumed. The price charged for water furnished is based upon the quantity used, as shown by the ' meter. There are other methods of fixing water rates, but the meter system is conceded to be a reasonable and proper method. A meter is of use also in determining whether there has been a waste or other improper or unauthorized use of water.

Is the choice of the means by which water rates shall be fixed' or the use of water by consumers limited, a legislative or administrative function ?

It would seem to be a detail of administrative management, and so we should hold, if there is no provision of the municipal code which clearly makes it the duty of the city council to legislate upon the subject.

Laning Rev. Stat. 3102 (B. 1536-100) provides:

“All municipal corporations shall have the following general powers and council may provide by ordinance or resolution for the exercise and enforcement of the same. * * *
“15. To provide for a supply of water, by the construction of wells, pumps, cisterns, aqueducts, waterpipes, reservoirs and waterworks, and for the protection thereof, and to prevent unnecessary waste of wafer, and the pollution thereof, and to apply moneys received as charges for water to the maintenance, construction, enlargement and extension of the works,” etc.

Revised Statutes 1678 (Lan. 3091; B. 1536-615). “The council shall have the management and control of the finances and property of the corporation, except as may be otherwise provided, and have such other powers and perform such other duties as may be conferred by law.”

Laning Rev, Stat. 3093 (B. 1536-618). “The powers of council shall be legislative only, and it shall perform no administrative duties whatever, etc.

Laning Rev. Stat. 3126 (B. 1536-674). “In every city there shall be a department of public service which shall be administered by three •or five directors and the number of said directors shall be fixed by ordinance or resolution of council. * * * They shall make their own rules and all regulations for the administration of affairs under their supervision. ’ ’

Laning Rev.' Stat. 3127 (B. 1536-675). “The directors of public service shall be the chief administrative authority of the city, and shall manage and supervise all public works and all public institutions, except where otherwise provided in this act.”

Laning Rev. Stat. 3129 (B. 1536-677). “The directors of public service shall have the management of all municipal water, lighting and heating plants,” etc.

The above provisions are quoted from the municipal code now in force, adopted in October, 1902. By the former general municipal code, adopted in 1869 (66 O. L. 149), the control of the waterworks of all cities and villages was vested in a board of three trustees, known as the trustees of waterworks, elected by the qualified electors of the corporation, and their powers and duties, as well as the council’s powers and duties respecting the waterworks _ of ^ cities and villages were set out in Chap. 25 of said act, comprising Secs. 334 to 360 inclusive. By the revision of 1880, these sections became Rev. Stat. 2407 to 2433 (see Lan. 3682 to 3709) inclusive and, with the exception of Rev. Stat. 2408, which provided for the election of trustees of the waterworks, have never been repealed. They are yet in full force, though, of course some sections have been-modified by amendment.

Even the special laws for certain cities did not repeal these sections. They sought to create in certain cities other boards with, additional functions, which should be governed also by, the waterworks statutes referred to, but the general statutes remained in full force all the time and were applicable to all cities and villages having waterworks. We therefore disregard all the special codes for Cincinnati, Cleveland, Columbus and other cities.

The code of 1902 repealed Rev. Stat. 2408, providing for the election of trustees of the waterworks and cast their functions upon the directors of public service in cities, by the sections heretofore referred to, and upon a board of trustees of public affairs in villages, specially providing that said board in villages should have all the powers and perform all the duties that are provided to be performed by the trustees of waterworks in the sections of the code of 1869, already mentioned. Revised Statutes 1808 (Lan. 3340; B. 1536-839). That the legislature understood and intended that said sections should apply to the waterworks of cities,- as well as villages, is made clear by an amendment to Rev. Stat. 2433 (Lan. 3709), adopted April 20, 1904 (97 O. L. 135), in which the following occurs:

“It shall be the duty of the board of public service or board of trustees, of public affairs of any municipal corporation to enforce the provisions of this section ’ ’ (referring to the prevention of -pollution of water supply).

If, then, we are correct in our conclusion, that Rev. Stat. 2407 to 2433 (see Lan. 3682 to 3709), above referred to, found as Secs. 1536-519 to 1536-544 in the sixth edition of Bates Annotated Ohio Statutes, apply to waterworks in cities as well as in villages, then we may look to said sections in considering the case made by the demurrer.

Revised Statutes 2410 (Lan. 3684; B. 1536-521) reads as follows.-

“The trustees shall be authorized to make such by-laws and regulations as they may deem necessary for the safe, economical, and efficient management and protection of the waterworks, and such by-laws and regulations shall have the same validity as ordinances, when not repugnant thereto, or to the constitution and laws of the state.”

Revised Statutes 2411 (Lan. 3685; B. 1536-522) reads:

“For the purpose of paying the expenses of conducting and managing the waterworks * # * the trustees or board shall have the power to assess and collect from time to time a water rent of sufficient amount, in such manner as they may deem most equitable, upon all tenements and premises supplied with water,” etc.

Section 2411 underwent séveral amendments after its original adoption in 1869 (66 O. L. 249, See. 338; 71 O. L. 109; Rev. Stat. 1880, Sec. 2411; 84 O. L. 10; 86 O. L. 364; 90 O. L. 198; 94 O. L. 57).' By comparison of the amendment in 71 O. L. 109 with See. 2411 of the revision of 1880, it is apparent that the codifying commission used the words “trustees or board,” inserting the words “or board” as referring solely to the board of trustees of waterworks, and not to any other board under any special government act.

We hold that in Rev. Stat. 2410 and 2411 (Lan. 3684, 3685; B. 1536-521, 1536-522) the words “trustees” and “trustees or board” now include under the present municipal code, the directors of public service in cities, and the board of trustees of public affairs in villages.

We have also concluded that water meters serve a twofold purpose, of providing a method of determining water rents and preventing waste or other improper or unauthorized use of water.

The “manner” or’ method in which water rents shall be assessed seems to be under the exclusive control of the directors of public service, by Rev. Stat. 2411 (Lan. 3685; B. 1536-522).

The matter of waste or other improper or unauthorized use of water, as well as the pollution thereof, seems to be within the concurrent jurisdiction of the city .council by Rev. Stat. 1.536-100 (Lan. 3102), clause 15, above quoted.

Was the ordinance relied upon within this jurisdiction of the city council ?

It appears upon the face of the ordinance that it was not passed for the purpose of preventing pollution of water, or protecting the public health, for it provides that hotels shall have meters, but that private residences shall not.

It is also apparent that, so far as it regards residences, the ordinance was not passed for the purpose of preventing unnecessary waste of water, for it says that residences shall not be metered, without the consent of the consumer, except in case of waste or other improper or unauthorized use of water.

Manifestly the only purpose of the council in passing that part of the ordinance which refers to residences and forbids metering them, was to regulate the manner of assessing water rents', for ■ residences.

That function is specifically conferred upon the directors of public service and with it the council cannot interfere; it has no concurrent jurisdiction over that matter conferred upon it by statute.

We therefore hold that so much of said ordinance as refers to residences is illegal and void. It follows that the directors of public service have a right to make a rule or regulation requiring residences to be metered and that such rule is not repugnant to any valid ordinance of the council.

So much of the said ordinance as requires the directors of public service to install meters is valid, and they are bound to follow such legislation, because it is within the .scope of the council’s authority to prevent waste of water, and their discretion as to the means to be used for that purpose, honestly exercised, could not be questioned by the directors or the courts.

"But here we have a plain attempt on the part of the city council to regulate the manner of assessing water rents, a thing beyond the powers of the council, and specifically imposed by law upon the directors of public service.

We think the demurrer to the petition is well taken and sustain it.

Judgment for the defendant.

Henry and Marvin, JJ., concur.


text:
    DAMAGES—EVIDENCE—MASTER AND SERVANT.
    [Lucas (6th) Circuit Court,
    January 30, 1905.]
    Parker, Hull and Haynes, JJ.

      Cincinnati, H & D. Ry. v. John B. Klute.
    1. Liability or Mastee fob Sebvant's Tobt.
    Where a policeman, while preventing a railway company from laying its tracks upon a Mty street, is injured by being struck by ties thrown upon him by employes of the company, whose foreman told the men under him to throw the ties upon said policeman if he did not get out of their way, the railroad company is liable for the injuries thereof.
    2. Injuries Inflicted by Employes while within Scope of Employment.
    Workmen employed by such railroad company, are acting within the scope of their employment, when, while unloading ties, they throw the same upon a policeman who is officially protesting against the laying of the tracks across a public street, and the railroad is liable for injuries thereby inflicted upon the policeman.
    [For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 833-855. — Ed.]
    3. Evidence Admissible as Res Gestae.
    Evidence of acts of such employes of the railroad company immediately after the throwing of the ties upon the policeman, including the pushing of a car over the end of the rails and into the street for the apparent purpose of blocking the street, is properly admissible as a part of the res gestae.

    [For other cases in point, see 4 Cyc. Dig., "Evidence,” §§ 1681-1743. — Ed.]

      4. Exemplabt Damages Recoverable, when.
    Exemplary damages are recoverable from such railroad company for injuries inflicted maliciously and wantonly upon such a policeman while trying to prevent the wrongful laying of a railroad track across a city street.
    [For other cases in point, see 3 Cyc. Dig., “Damages,” §§ 649-707. — Ed.]
    ERROR to Lucas common pleas court.
    Swayne, Hayes & Tyler, for plaintiff in error.
    Ralph Emery and C. A. Seiders, for defendant in error.

       Affirmed, without report, Cincinnati, H. & D. Ry. v. Klute, 73 Ohio St. 380.

   HULL, J.

This action was brought by Klute, a policeman, to recover damages which he sustained at the hands of employes of the railroad company. His claim is, that at the time he was injured the employes of the company referred to were acting under the authority and directions of the company within the scope of their employment, and that they maliciously and wilfully injured him, while so acting, and'he therefore brought this action for damages.

The injury occurred on July 5, 1903. On that day, and for some time prior thereto, there had been a controversy going on between the city of Toledo and the railroad company in regard to a certain street, or alleged street, in Toledo, on the east side of the river, called Wilmot street, the city claiming that the street had been projected through the territory at that point, and the railroad company denying that such was the fact. For some time prior to July 5, 1903, the railroad company had been threatening to lay a track across this street, and policemen had been stationed there from time to time to prevent this, and on the morning of the fifth, which was Sunday, Klute, under orders from his superior officer, took his station under a bridge near this point, where, it was thought that the railroad company contemplated laying a track across the street. At about 2:30 or 3 o’clock in the afternoon the work of laying the track commenced, out of which the trouble arose.

At the close of the testimony for the plaintiff a motion was made to direct a verdict for the defendant. This was overruled; and thereupon the railroad company announced that it did not desire to offer any evidence. The case then went to the jury on the testimony offered by the plaintiff, and a verdict was returned in favor of Klute for damages.

The case involves the question as to whether what the men did in the- way of injuring the plaintiff was within the scope of their employment, and, in the first place, whether they -had any .authority to do the work they were doing. It is claimed by the plaintiff in error that the court erred in not directing a verdict for the defendant upon the motion, and there are some other points in the case.

There is no positive evidence — no witnesses testified that the men who were at work doing this work were ordered by the railroad company to do it, or that they were in fact in the employ of the railroad company; but while Klute was at his station under the bridge, a car with some fifteen or twenty men came out of the railroad company’s warehouse, which was near, apparently railroad men, and started with the car, pushing it, and the car was loaded with rails and ties and plates and spike mauls.. With the car so loaded, they started down the track toward this street, fully equipped to.lay the track, and apparently in the employ of the railroad company. They came out of the warehouse as railroad men would, and there was every indication that they were emplo3ms of the company, and when they reached the street, they begun the work of laying the track across it.

We think that, in the absence of any evidence to the contrary, the facts were sufficient to warrant the jury in finding that the men were employes of the railroad company, and had been ordered to do this particular work. This was on Sunday, and the work was being done with railroad tools and equipment in the ordinary way, and they were permitted to continue without any interference on the part of the railroad company or its officers. They went to the street and there began to unload rails and ties and to build the frack, and before they stopped they got half-way across the street. We think the evidence was ample to raise a presumption that would need to be overcome by evidence that these men were doing what they did under the direction and authority of the railroad company. It is hardly to be ’supposed that a gang of men of the number of fifteen or twenty would go to the railroad warehouse and start out on Sunday afternoon to perform this work unless they had been hired to do it and had authority.

But it is said the injury to Klute was not, in any event, within the scope of their authority, or of their employment; that if they injured him they stepped outside of their employment entirely, and that, therefore, the railroad company is not liable. It is well settled in this state that an employer may be liable for the wilful and malicious acts of an employe, if he is within the scope of his employment. In Nelson Business College Co. v. Lloyd, 60 Ohio St. 448 [54 N. E. Rep. 471; 46 L. R. A. 314; 71 Am. St. Rep. 729], the first paragraph of the syllabus is:

“An employer is liable for the wilful or malicious acts of his servant done in the course of the servant’s employment.”

In the opinion many authorities are cited as to the growth of this doctrine and of its establishment, and the whole question is discussed by the judge delivering the opinion. I will come back to this case later, on some other points in the case.

Was this in the scope of their employment — this injury of Kulte? The testimony shows that Klute came out into the street as soon as he saw this demonstration and ordered the men to stop. He was in the full uniform of an officer, including his helmet and badge. He ordered them to stop, and told them he was there to prevent them from doing this work; that if they did not desist he would be required to arrest them. They paid no attention to him. Assuming, as I do, that they were acting under the authority of the railroad company in laying this track, they continued with the work they had been directed to do, and Klute undertook to stop them, but without success. Finally he took hold of one, and pushed him a little beyond the car. There were some men on one side of the ear and some on the other side pulling the car,' others were pushing it, and, after the car stopped, they commenced pulling the ties off. One of the men on the other side of the car, apparently in authority — there were two men there who appeared to be in authority, O’Brien, who was section foreman, apparently, and Tomkins, who was called a yardmaster — called out “Why don’t you get these ties off?” and they answered “We cannot, the policeman is in the way.” The same man replied “To hell with the policeman; if he doesn’t get out of the way,' throw the ties on him.” About that time Klute was in a struggle with one of the men; he had his back turned to the car, and just then a tie struck him in the back, injuring him quite severely.

These men apparently had been directed to go out and lay that track across that street. The railroad company understood very well that the city objected to their laying the track. The controversy had been going on for some time. Sunday had been selected as the day for doing this work, other than on a week day, perhaps on account of the difficulty of securing injunctions, etc. These men were in charge of two men, and obeyed their orders; they paid no attention to the policeman when he told them to desist and threatened them with arrest; he was at the time interfering with the unloading of the ties and the building of this track; and the men were ordered if he got in the way to throw the ties on him; and they did throw a tie on him; at least, that is the claim of the plaintiff.

We think there is sufficient evidence to show, in the absence of anything to the contrary, that in throwing this tie on Klute under these circumstances, they were acting within the scope of their employment and authority; and it is a fair presumption, from all these demonstrations, that they were acting under instructions from the railroad company in attempting to put the track across the street, and paying no attention to the policeman when he got in their way and interfered with the work.

It is said that in the throwing of the tie, it does not appear but that one or more of the men picked up the tie from the ground and struck him in the back, or took it off the car, not for the purpose of carrying on the work, or in furtherance of the work they were doing there, but to strike Klute, and that under such circumstances the act would be beyond the scope of their authority. And it is undoubtedly true, under the authorities, that, if the employe commits an act of violence while doing his work, and goes outside of his work and employment to do it, and it is not necessary in the performance of his work, in such case the employer is not liable. Although Klute did not see just how this happened, we think the jury were warranted in finding that he was struck in the back by a tie that had just been taken off the car and let fall on his back purposely to get him out of the way. His back was turned at the time, but he was only about a foot away from the end of the car, and about the same distance from the side; he had just had this controversy with the men; he had just heard the order given, if the policeman did not get out of the way, to hit him with the tie, and immediately after that he was struck. All the circumstances and things that were said and done there at the time, we think, indicate that this tie was thrown upon Klute for the purpose of preventing him from interfering with the work; and the evidence Avas sufficient to sustain the claim that it Avas done within the scope of the authority -of the men.

In the case before referred to, Nelson Business College Co. v. Lloyd, supra, this question is discussed at some length. In this case the plaintiff was in the employ of the business cpllege and,was repairing an .electric light in a room; the janitor came in to do his work, and the plaintiff, who was repairing an electric light, had a ladder and was standing on it doing his work; the janitor-could not complete his duties without the ladder’s being moved; he requested the eieetrician to step down from the ladder until he could do his work; the electrician declined to do so and the janitor got' angry and shoved the ladder so the man on the ladder fell off and was injured. The court of common pleas took the case from the jury and directed a verdict in favor of the defendant; this was reversed by the circuit court and the Supreme Court affirmed the circuit court, holding that the case should have gone to the jury. In the second paragraph of the syllabus, the court say:

“2. When the act complained of may or may not be, from its nature, in the course of the servant’s employment, and this depends upon the real motive or purpose of the servant in doing the act, it is a question for the jury to determine upon a consideration of all the circumstances adduced in evidence.
“3. In a suit against an employer for an injury caused by the wrongful act of his servant, and the evidence is such, that different minds may draw different conclusions from it as to real motive and purpose of the servant in doing an act, apparently within the course of his employment, it should be left to the jury to determine the question, under proper instructions as to the law; and it is error for the court, in such case, to direct a verdict for the defendant. ’ ’ s

It seems to us that the case at bar is a stronger case to submit to the jury than the Nelson Business College Co. v. Lloyd, supra, and the' Supreme Court held that should have gone to the jury. The whole question is discussed very fully in the opinion. There are other cases in Ohio bearing upon the question, as to when the malicious or wilful act of the employe should be regarded as within the scope of the employment, and therefore the master liable for such malicious and wilful acts.

The case of Stranahan Bros. Catering Co. v. Coit, 55 Ohio St. 398 [45 N. E. Rep. 634], is a strong case. Here the employe was selling milk under contract to the Stranahan Brothers Catering Company, among others, and his employe, while driving the milk wagon, adulterated the milk with water, and delivered it in that condition; he did this because he had an unfriendly feeling towards his master, a malicious feeling, and wanted to injure him. The master had no knowledge of his doing anything of the kind. But the Supreme Court held that this was done in the course of his employment and within its scope, and that the master was liable in damages for such act of his servant, although done to injure his master.

The case of Passenger Ry. v. Young, 21 Ohio St. 518 [8 Am. Rep. 78], is an authority on this general subject and may also be cited.

We think in the case at bar the jury might well find from this evidence that what was done there was within the scope of the employment. These men were apparently determined to build the track across the street in the face of opposition, and, in fact, Tompkins, I think it was, or O’Brien, said to Klute immediately after the injury (and as part of the transaction), that he told his men before they went out that there was a policeman down there, but that as long as he did not interfere with them to do nothing to him; but if he interfered, to hit him with the spike maul; this was just before they came out of the warehouse; and we think it is fair to conclude that it was the intention to lay this track against the protests of the policeman, and against his forcible opposition, if necessary.

That portion of the charge of the court to the jury that they might include punitive or exemplary damages was excepted to. But it seems to be settled that in this kind of a case punitive damages may be included. In Atlantic & G. W. Ry. v. Dunn, 19 Ohio St. 162 [2 Am. Rep. 382], the syllabus is:

“A corporation may be subjected to exemplary or punitive damages for tortious acts of its agents or servants done within the scope of their employment, in all cases where natural persons, acting for themselves, if guilty of like tortious acts, would be liable to such damages. ’ ’

And this seems to have stood as the law on this subject ever since.

There was evidence that the plaintiff was also struck with a spike maul on his back after he had been struck with the tie. One of the men, as the plaintiff was walking away, struck him on the back with a spike maul; but any claim for damages on that account was Avithdrawn by the court from the jury, on the ground that what he did on that occasion was not within the scope of his employment, but that it was purely an assault and battery on Klute, for which the defendant was not liable.

Evidence was admitted as to what occurred after the injury by the tie. It is claimed that this should not have been done. The controversy continued for some time. Khrte went to the central police station for help, the chief of police finally came with other officers, and piany things were said and done by the men who were there; some of it was admitted in evidence as part of the transaction, of the res gestae, and we think properly so; it was one continuous transaction, and we think this evidence was properly admitted. After other policemen had come and the laying of the track was stopped, some of the men were taken to the police station and soon after that a locomotive drawing a C., H. & D. car came out of the railroad yards — or rather pushed a car out of the yards and across the street so far as the track had been laid until the rails spread, and then shoved the cars over as far as possible on the ground. Evidence of this was objected to, and its admission is claimed to be error, but we think the evidence was admissible. It related to and was connected with the transaction and tended to show that the railroad company authorized the construction of this track across the street, showing that as soon as it was partially constructed they occupied it with a locomotive and a ear, and undertook thereby to take possession of the street, and throw a car across it. The locomotive used was a C., H. & D. engine, and we think, as tending to show that this whole matter was authorized and annroved by the company, this was competent evidence.

A plat of a portion of the city, showing where this street was located, was admitted in evidence; it is claimed that this was error; but we think it was not. There was a controversy here about the street. It is immaterial for the purpose of this case whether the city had the right to open this street or not. It claimed to have the right and had sent an officer to this point to guard the street; and, although this question Avas not very material, there was no error in admitting the plat.

I think I have covered all the points I need mention. In our opinion, the action of the court in refusing to take the case from the jury was correct; the evidence fully warranted the jury in finding that the men Avere authorized to build the track across this street; that they were expected to use force, if necessary; that when the plaintiff was struck in the back with the tie, they were acting within the scope of their employment. We find no error in the record. The judgment of the court of common pleas will therefore be affirmed.

Parker and Haynes, JJ-, concur.


author: SULLIVAN, J.

text:
    INJUNCTION — OFFICE AND OFFICERS.
    [Franklin (2nd) Circuit Court,
    November 15, 1905.]
    Wilson, Sullivan and Dustin, JJ.
    State ex rel. Seymour, Pros. Atty. v. Gilfillan et al.
    1. Cbeation op. Tax Inquisitor.
    Employment of a tax inquisitor, for Franklin county, is authorized only by Rev. Stat. 1343a and 1343b (Lan. 2744/2745).
    2. Constitutionality op Act Providing for Tax Inquisitor.
    The above provisions are unconstitutional as contravening Art. 2, Sec. 26 of the constitution of the state of Ohio.
    3. Right of Tax Inquisitor to Compensation.
    Compensation earned by tax inquisitor by virtue of said act, while similar acts were held constitutional by the Supreme. Court, may be ■ recovered from the taxes placed on the duplicate by means of his services.
    [For other cases in point, see 7 Cyc. Dig.. “Taxation,” §§ 598, 890-892. — Ed.]
    4. When Compensation not Allowed.
    But where the evidence collected by him is of a public nature he cannot collect his compensation for taxes placed on the duplicate by reason thereof, and the county treasurer will be.enjoined from paying such claims from taxes.
    A. T. Seymour, E. N. Huggins, F. C. Rector and M. E. Thrailkill, for plaintiff.
    J. T. Holmes, J. H. Dyer and H. A. Williams, for defendants’.
   SULLIVAN, J.

1. Franklin county, containing a city of the first grade of the second class, the employment of a tax inquisitor for said county is authorized only by Rev. Stat. 1343a and 1343b (Lan-. 2744, 2745), passed April 23, 1885 (82 O. L. 152).

2. Said act is unconstitutional as in contravention of Art. 2, Sec. 26 of the constitution of the state of Ohio.

3. The rights acquired and moneys earned for services, under and by virtue of contracts entered into, according to the provisions of said act, while similar acts were held by the highest court of the state to be constitutional, are valid and subsisting rights, and may be enforced.

4. The inquisitor is entitled to compensation out of the taxes placed on the duplicate by means of his services under said act upon real estate as well as personal property. In neither case he is entitled to compensation upon any penalties added by the county auditor.

5. The inquisitor in this case is not entitled under said act to compensation for placing upon the duplicate by the county auditor the securities belonging - to foreign insurance companies, as the facts and evidence claimed to have been furnished by him were not such disclosures as to entitle him to compensation therefor, because the same'were of a public nature and known or should have been known to the county auditor.

6. It is not necessary to the validity of contracts with the inquisitor that they should be entered upon the records of the county commissioners.

7. The county auditor will therefore be enjoined' from issuing his warrant upon the county treasury to the defendant, Gilfillan, upon any claim made by said Gilfillan, for any service claimed by him as inquisitor, under the contract of December 26, 1902, for any claim made by him for compensation as inquisitor for placing upon the duplicate for taxation by the county auditor the securities belonging to insurance companies of other countries and states, doing business in this state, and for any claim made by said Gilfillan as inquisitor as compensation upon penalties added to any taxes by said auditor, and the county treasurer will be enjoined from paying to said Gilfillan any money out of the county treasury, upon any of the foregoing claims, and the said Gilfillan will be enjoined from demanding or receiving the warrant of the county auditor upon the county treasury and from demanding or receiving from the county treasurer any money for and upon either of the above claims. Costs to be taxed to defendants.

Wilson and Dustin, JJ., concur.


text:
    JUDGMENTS AND DECREES-LANDLORD AND TENANT.
    [Hamilton (1st) Circuit Court,
    February 10, 1905.]
    Jelke, Swing and Giifen, JJ.
    Baker v. Connor.
    Judgment fob Rent is no Bab to Action fob Subsequent Installment.
    Where in an action for rent an issue is tendered as to whether the premises had been surrendered prior to the time for which rent is claimed, and this issue is decided adversely to the lessee, that judgment is conclusive against the lessee on that issue, and is not a bar to another action for subsequent installments of rent.
    [For other eases in point, see 5 Cyc. Dig., “Judgments and Decrees,” §§ 967-972, 1008. — Ed.]
    Error to Hamilton common pleas court.
    Shay & Cogan, for plaintiff in error. .
    CIoss & Luebbert, for defendant in error.
   SWING, J.

This was an action for rent founded on a lease given by Mrs. Connor to Mrs. Baker on certain real estate in the city of Cincinnati for a term of two years commencing February 1, 1901, at the rate of $35 per month. The action was for six months ’ rent. The action was commenced before a justice of the peace and was appealed to the court of common pleas, where upon trial at the conclusion of the evidence the court directed the jury to return a verdict for the plaintiff. The case is here on error to the judgment of said court.

The defendant, for defense to plaintiff’s action, set up two defenses:, The first, that she had surrendered the premises to the plaintiff after July, 1901; and second, that the plaintiff had a recovery in an action _ for rent on this lease, and that the same is a bar to any further recovery.

The record discloses the fact that Baker went into possession of the premises under said lease and paid rent for a certain number of months, probably up to and including' the month of July, 1901; that after that her brother went into possession of the premises and paid rent,up to October, 1901; that no rent was paid for the months of October, November and December, 1901, and that thereupon Connor prosecuted an action against Baker for the amount of the rent for said three months, and in said action Baker set up the same defense that she does here; that is, that she had surrendered the premises to the plaintiff and therefore was not liable for rent after the surrender. The case was tried on this issue and the finding was against Baker.

The present action being on the same contract, although for different installments of rent, and the same issue being tendered, the court was bound to bold that the former judgment as to this issue was conclusive between the same parties. Belt v. McColloch, 31 Ohio St. 397; 24 Am. & Eng. Enc. Law (2 ed.) 710.

As to the second defense, that the former recovery between the same parties is a bar to a recovery in this action: This defense is not well taken. In the former action the recovery was for the months of rent then due. This does not preclude a recovery for rent for months subsequently falling due, for which this action is brought. 18 Am. & Eng. Enc. Law (2 ed.) 293.'

Judgment affirmed.

Jelke and Giffen, JJ., concur.


author: PER CURIAM.

text:
    EVIDENCE—INTERROGATORIES—TRIAL.
    [Hamilton (1st) Circuit Court,
    January 20, 1906.]
    Jelke, Swing and Giffen, JJ.
    Arabella Spillman, Exrx. v. Baltimore & O. S. W. Ry.
    Judgment on Special Finding Notwithstanding Verdict.
    Where an answer to a special interrogatory shows the plaintiff in an action to recover for injuries sustained at a railway crossing, was guilty of contributory negligence in not looking for an approaching train, a verdict for such plaintiff should be set aside and judgment rendered1 for the defendant.
    [For other cases in point, see 7 Cyc. Dig., “Trial,” §§ 825-835. — Ed.]
    Error to Hamilton common pleas court.
    Theodore Horstman and W. H. Whittaker, for plaintiff in error.
    Harmon, Colston, Goldsmith & Hoadiy, for defendant in error.
   PER CURIAM.

In this case the court rendered a judgment for the defendant upon certain special interrogatories and answers thereto, notwithstanding the general verdict in favor of the plaintiff. The only interrogatory and answer, if any, that would authorize the court to render judgment in fávor cf the defendant is as follows:

“ Q. Do you find from the evidence that when the decedent, Spill-man, was within five feet of the south rail of the east main track, if he had looked to the west for the purpose of ascertaining whether or not a train was approaching the crossing in question, he could have seen the same in time to have avoided the collision? A. Yes.”

This interrogatory leaves out of consideration all question of any reasonable excuse for not looking in the direction from which the, train was coming. But the evidence, all of which is contained in the bill of exceptions, discloses no such excuse; hence the court was authorized to render judgment upon the answers to the special interrogatories when considered with the undisputed facts. Cleveland & E. Elec. Ry. v. Hawkins, 64 Ohio St. 391 [60 N. E. Rep. 558].

Judgment affirmed.


text:
    ASSESSMENTS—LIENS.
    [Hamilton (1st) Circuit Court,
    December 29, 1906.]
    Jelke, Swing and Giffen, JJ.
    William Scully v. Cincinnati (City) et al.
    Liability of Former Owner of Appropriated Property foe Assessment.
    The lien of a street assessment against property appropriated by the city for park purposes is merged in the higher title of the fee thereby acquired, and the city is entitled to retain the present value of assessments remaining unpaid from the amount assessed as compensation to the land owners.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 723-736. — Ed.]
    ERROR to Hamilton common pleas court.
    Nine annual installments of a lien for a street assessment remained unpaid at the time of the appropriation by the city for park purposes of the property so assessed. In making its order of distribution of the amount assessed by the jury as compensation to the land owners, the court [Below retained a sufficient sum to satisfy the claim of the city for the unpaid assessments. From this order an appeal was taken.
    J. C. Healy, for plaintiff in error.
    J. R. Schindel, for defendants in error.'
   GIFFEN, J.

While it does not appear from the cross petition of the city auditor when the work of improving the street was commenced ñor when the assessing ordinances were passed, enough appears m the record, as against a demurrer, to show that the assessments were made ánd were liens upon the real estate in question at the time the same was appropriated for a public park. Makley v. Whitmore, 61 Ohio St. 587-592 [56 N. E. Rep. 461].

Laning 3594 (B. 1536-110), provides that, “The jury shall be sworn to make the whole inquiry and assessment, ’ ’ and the record shows that they assessed the compensation to be paid for the several lots to the owner or owners of each particular lot.

Whether or not the city was an owner by reason of its lien upon the real estate for unpaid assessments is immaterial, as its claims were adverse to the lot owners, and the adjustment of such claims is provided for by Lan. 3595 (B. 1536-111).

If no such adjustment were had in this proceeding, the lien would be merged in the higher title of the fee thereby acquired. The city was entitled to only the present value of the annual assessments; but the lot owners having declined to plead further, after demurrer overruled, will be deemed to have waived such defense.

Judgment affirmed. Same entry in the case of Scully, Administrator, v. Cincinnati (City) et al. and Burnet v. Cincinnati (City) et al. (4289 and 4290).

JeJke and Swing, JJ., concur.


text:
    ERROR.
    [Hamilton (1st) Circuit Court,
    June 29, 1907.]
    Swing, Giffen and Smith, JJ.
    Julia A. Snyder v. August Schardt.
    Ruling on Demurreb Sustained by Subsequent Verdict.
    It is immaterial on review whether or not the court helow erred In oveV' ruling the demurrer to the second cause of action, where a special find, ing hy the jury, supported by the evidence, sustains the verdict returned ‘ for the plaintiff on the first cause of action.
    ERROR to Hamilton common pleas court.
    E. B. Or egg, for plaintiff in error.
    Closs & Luebbert, for defendant in error.
   GIFFEN, J.

.The special finding of the jury, which is sustained by tin- evidence, supports the general verdict in favor of the plaintiff upon the first cause of action, and hence it is immaterial whether the court erred in overruling the demurrer to the second cause of action,

■ If, however, the plaintiff before the request was made by the defendant, had already agreed with the adjoining lot jwner to do and perform the same work for a valuable consideration, the promise of the defendant to pay therefor, whether expressed or implied, would be without consideration.

It would be no detriment to plaintiff to do that which he was before bound to do, nor would it be any benefit to the defendant to receive that which was already assumed. Kansas City, St. J. & C. B. Ry. v. Morley, 45 Mo. App. 304; Putman v. Woodbury, 68 Me. 58.

The contract of plaintiff with the adjacent lot owner required him to shore and brace the building of the defendant, and construct a new Avail under the old wall to the depth of the footings of the new building-, but it did not require him to tear doAvn and rebuild the old wall condemned by the building inspector, although the plaintiff included all expenses incurred in building the wall up from a depth of nine feet below the curb, amounting in all to $450. The jury seems to have carefully distinguished betAA-een that required by his contract with the adjacent lot owner and that required by his contract with defendant, allowing him only $200, Avitliout interest, and we think the judgment should be affirmed.

Swing and Smith, JJ., concur.


text:
    EVIDENCE — PARTNERSHIP.
    [Hamilton (1st) Circuit Court,
    December 18, 1905.]
    Jelke, Saving and Giffen, JJ.
    August Schardt v. Michael Stopper.
    Evidence Establishing Existence of Partnership.
    Where a plaintiff, who denies the existence of a partnership with the defendant, is met by several witnesses who testify as to admissions by him of a partnership, and his name does not appear on the weekly pay roll except in one instance, and he is unable to show any contract with the defendant whereby he was to furnish the material and money which he did furnish for the prosecution of the work, a verdict in his favor is clearly against the Aveight of the evidence, and should be reversed on that ground.
    [For other eases in point, see G Cyc. Dig., “Partnership,” §§ 553-579. — Ed.]
    .ERROR to Hamilton common pleas court.
    Closs & Luefobert, for plaintiff in error.
    F. E. Niederhelman, for defendant in error.
   GIFFEN, J.

The second amended petition contains three causes of action: the first, for Avork and labor; the second, for materials furnished; and the third, for money advanced.

The ansAA’-er contains a general denial to the second and third causes of action, and as a defense to the first cause of action avers that on June 8, 1902, the defendant was indebted to the plaintiff for Avork and labor in the sum of $62; that at that time plaintiff agreed with defendant to contribute that amount and his labor and become a partner in the execution of a contract for laying up stone for the Cincinnati Gas & Electric Company; that the defendant was to contribute a like sum.

The reply is a general denial of the partnership. The jury returned a verdict for $324, which wras more than plaintiff proved, under the first cause of action, and while he 'offered testimony to prove that he had furnished materials- set forth in the second cause of action, and the money advanced in the third cause of action, he wholly failed to prove a contract, either express or implied, upon the part of the defendant to pay therefor.

The court thereupon reduced the amount of the verdict by thé sum of $75, and with the consent of plaintiff rendered judgment on the verdict.

The principal question involved was whether a partnership in the particular contract existed. The only testimony concerning the making of the contract and its terms was that of the plaintiff and the defendant, but the defendant called six witnesses, all of whom are apparently credible and each of them testified that during the progress of the work the plaintiff admitted that he and the defendant were partners. Plaintiff denied making any such admission except to one witness, and that for the purpose of deceiving the labor union, which would not permit him to work upon the job as an employe, not being a member of the union.

There is nothing'in the record other than the plaintiff’s testimony, to show that the' other five witnesses werp testifying falsely, but, on the other hand, the circumstances related by them, under which the admissions were made were such as would naturally arise during the progress of the work and call forth such admissions. Moreover, although the plaintiff prepared or caused to be prepared a weekly pay roll, his name was not included nor did he receive any money during the progress of the work, except at one time he received the sum of $40.

He also alleges and proves that he furnished material and money for the prosecution of the work without showing a contract, either express or implied, that the defendant would pay for the same.

Both of these circumstances, together with the admissions of plaintiff, impel us to the conclusion that the jury either misunderstood the issue upon which the ease was tried and the evidence in support of it or were influenced by prejudice. We do not hesitate to say, therefore, that the verdict was manifestly against the weight of the evidence, and will be reversed upon that ground, and cause remanded for a new trial.

Jelke and Swing, JJ., concur.


author: HENRY, J.

text:
    CONTRACTS—OFFICE AND OFFICERS—SCHOOLS AND SCHOOL DISTRICTS.
    [Cuyahoga (8th) Circuit Court,
    November 10, 1905.]
    Marvin, Winch and Henry, JJ.
    J. Sherman Beck v. Rocky River Sch. Dist. (Bd. of Ed.)
    1. Statute Regulating the Hiking of Teachers must be Strictly Followed.
    Where the original minutes of the meeting of a hoard of education do not show that the resolution appointing and engaging a teacher was_ lawfully adopted, because there was no entry of “the names of those voting ‘aye/ and the names of those voting ‘no/ ” as required by the 'provisions of Rev. Stat. 3982 (Lan. 6460), a contract entered into thereunder is illegal.
    [For other cases in point, see 2 Cye. Dig. “Contracts,” §§ 3009-3017; 7 Cyc. Dig., “Schools and School Districts,” §§ 358-362, 374, 376. — Ed.]
    2. Ex-officer cannot Correct Official Entries in Records after Expiration of Term.
    An ex-clerk of a school board cannot, after the expiration of his term, by his own act correct his official entries in public records, so that they will conform literally to the provisions of the statute.
    Error to Cuyahoga common pleas court.
    P. H. Kaiser, for plaintiff in error:
    D. T. Miller, for defendant in error.
   HENRY, J.

This proceeding in error is prosecuted by the plaintiff below to reverse a judgment rendered against him upon demurrer sustained to his amended petition, wherein he prayed damages for breach of an alleged contract, of May 4, 1903, to re-employ him as superintendent of schools for the following school year.

The petition avers that the minutes of the meeting of the board of education held on said date showed that all the members were present, when the meeting was convened, and that the resolution, upon roll call, was passed, ‘ ‘ all voting aye. ’ ’ The minutes did not, however, originally recite the names of those voting “aye;” but after the reorganization of the board, by the passage of the school code, had deprived the clerk of his office, he undertook to amend the minutes to conform literally to the provisions of Rev. Stat. 3982 (Lan. 6460), requiring that, upon a motion to adopt a resolution of this kind, “the clerk of the board shall call, publicly, the roll of all the members composing the board, and enter on the record required to be kept the names of those voting ‘aye’ and the names of those voting ‘no.’ ”

Plaintiff in error claims that he was lawfully employed notwithstanding these irregularities, because, first, the minutes, as originally recorded, showed substantially, who voted “aye,” to wit, all the members of the board, and that none voted “no;” secondly, the ex-clerk could lawfully, and did in fact, correct the minutes, to conform with the truth, by supplying the names of those that actually so voted.

On the latter point it is contended that the ex-clerlc could, by mandamus, have been compelled to do what in the discharge of his official duty he ought to have done; and that he might, therefore, lawfully perform the same duty without such compulsion. Whatever may be true in reference to the continuing official duty of an ex-officer to surrender public property still retained by him after the expiration of his term, we cannot agree that he can thereafter, by his own act, correct his official entries in public records. Hartwell v. Littleton (Inhab.), 30 Mass. 229; Boston Turnpike Co. v. Pomfret (Town), 20 Conn. 590; Vaughn v. School Dist. No. 31, 27 Ore. 57 [39 Pac. Rep. 393].

Upon the remaining point, we are of opinion, based upon Board of Education v. Best, 52 Ohio St. 138, 139, and especially upon the view of Judge Cooley, therein indorsed, as reported in Steckert v. East Saginaw, 22 Mich. 104, that the original minutes of the board’s meeting do not show that the resolution, here relied on, was lawfully adopted, because there is no entry of “the names of those voting ‘aye,’ and the names of those voting ‘no,’ ” as required by the section before mentioned. The syllabus of the Michigan ease is in part as follows:

“A statute — charter of Bast Saginaw,. laws of 1859, p. 971— which requires that the vote of a city council, in certain cases, shall be entered at large on their minutes, is designed to accomplish an important public purpose; it cannot be regarded as immaterial, nor its observance dispensed with. The record of a vote that it ‘was adopted unanimously on call’- — the names of those voting not otherwise appearing than by the statement of those present at the opening of the session — -is not a compliance with the statute. Neither the spirit nor the purpose of the act can be satisfied without entries on the minutes showing who voted on each resolution embraced within the terms of the act, and how the vote of each was cast; in other words, the ayes and noes on each resolution must be entered at large 'on the minutes. ’ ’ ■

The.reasons demanding so rigid a construction of this and similar enactments, and compelling the conclusion that alleged contracts thus imperfectly evidenced are void, appear further in McCloud v. Columbus (City), 54 Ohio St. 439, 453 [44 N. E. Rep. 95] ; Lancaster (City) v. Miller, 58 Ohio St. 558, 575 [51 N. E. Rep. 52]; Buchanan Bridge Co. v. Campbell, 60 Ohio St. 406, 425 [54 N. E. Rep. 372].

The judgment below is affirmed.

Marvin and Winch, JJ., concur.