author: JONES, O. B„ J.

text:
    INSURANCE.
    [Hamilton (1st) Court of Appeals,
    July 22, 1913.]
    Swing, Jones and Jones, JJ.
    Central Trust & Safe Deposit Co. v. Dubuque F. & M. Ins. Co.
    1. Failure to File Proofs of Loss within Stipulated Time does not Invalidate Policy in Absence of Condition Prescribing such Effect.
    The provision in a policy of fire insurance that proofs of loss must be presented to the company within sixty days after.the occurrence of a loss by fire in the premises insured does not render the policy void by reason of failure to file proofs within the prescribed time, where there is no provision in the policy which renders the policy void by reason of such failure.
    2. Mortgagee’s Rights in Proceeds of Insurance Policy not Affected by Conditions not made Applicable to Him.
    In the construction of a contract of insurance courts should give effect if possible, to every provision therein contained and if one construction of a doubtful condition written in a contract would make tkat condition meaningless, and it is possible to give it another construction that would give it meaning and purpose then the latter construction must obtain.
    [Syllabus approved by the court.]
    Error to common pleas court.

      DeCamp & Sutphin, for plaintiff in error.

      J. L. Kohl, for defendant in error.
   JONES, O. B„ J.

This was an action for the recovery of the amount of a fire insurance policy on certain premises upon which plaintiff held a mortgage. The policy sued upon was originally issued by the German National Insurance Company, and the defendant eomr pany was claimed to be liable under an agreement for re-insurance made by it with said German National Insurance Company whereby it agreed to adjust and pay all losses by fire occurring after November 19, 1906, on the buildings described in the policy sued upon herein. There is no dispute about the facts. The fire occurred "within the life of the policy, on September 2, 1907. The loss was practically total and far exceeded the amount of the insurance. The agents of defendant company were promptly notified of the loss the day following the fire, and the adjustment of same was turned over to an adjustment company who acted for the insurance company. The plaintiff as mortgagee took the matter up with said adjustment company but formal proof of loss was not filed with the insurance company until December 13, 1907. No final action was taken by the insurance company until January 23, 1908, when it notified the mortgagee by letter denying any liability under the insurance policy upon this property. Suit was filed by said mortgagee July 31, 1908, which resulted in a directed verdict in favor of the defendant.

The questions presented in the record are purely questions of law. The fifth defense relied upon by defendant in its answer averred that proofs of loss had not been rendered within sixty days after the fire, and that the insured did not extend in writing the time for the rendering of such proofs of loss, all as required by the terms of the policy, which are set out in the answer. The question raised by this defense is the same as that passed on in the ease of Eureka F. & M. Ins. Co. v. Gray, 24 O. C. C. 268 (2 N. S. 265). In the policy under consideration here,, just as in that case, there was no provision which made the policy void or provided that no action could be brought if proofs of loss, were not rendered within sixty days as provided for in the policy. That case was affirmed without report by the Supreme Court in Eureka F. & M. Ins. Co. v. Gray, 69 Ohio St. 542.

Three other defenses relied upon by the defendant and separately set up in the second, third and fourth defenses of the answer are respectively: (2) that the subject of insurance was a, manufacturing establishment and it ceased to be operated for more than ten consecutive days; (3) that with the knowledge-of the insured foreclosure proceedings had been commenced and notice given to sell all property covered by this policy by virtue of a mortgage; and (4) that the building described in the policy became vacant and unoccupied and so remained for ten days. Clauses rendering the policy void upon the happening of either of these conditions were quoted from the policy and urged as, complete defenses. Plaintiff denied that these conditions however applied as against it as mortgagee, by reason of the language found in the policy contained within lines 56 to 59 inclusive, as. follows:

‘ ‘ If, with the consent of this company, an interest under this, policy shall exist in favor of a mortgagee or of any person or corporation having an interest in the subject of insurance other than the interest of the insured as described herein, the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached, or appended hereto.”

The interest of plaintiff in the company is obtained by virtue of a provision contained on a slip of paper attached to and made part of the policy of insurance at the time it was written,, which reads as follows:

“At the request of the assured, loss under this policy, if any, is hereby made payable to the Central Trust & Safe Deposit. Company, as their interest may appear. ”

Whether these conditions, which as between the owner and the insurance company would clearly have invalidated the policy,. have such effect as to the mortgagee depends upon the construction placed upon the language above quoted found in lines 56 to 59 of the policy.

This language has been directly construed in the case of Farmers’ National Bank v. Insurance Co. 83 Ohio St. 309 [94. N. E. Rep. 834], in which it is held that such violation of the provisions of the policy by the insured will not release the insurance company from liability to the mortgagee. This case is directly in point and controls the case at bar.

Other courts have put the same construction upon this language: Insurance Co. v. Bank, 47 Neb. 717 [66 N. W. Rep. 646; 36 L. R. A. 673; 58 Am. St. Rep. 663]; East v. Insurance Co. 76 Miss. 697 [26 So. Rep. 691]; Boyd v. Insurance Co. 25 Wash. 447 [65 Pac. Rep. 785; 55 L. R. A. 165]; Welsh v. Insurance Co. 148 Cal. 223 [82 Pac. Rep. 964]; Senor v. Insurance Co. 181 Mo. 104 [79 S. W. Rep. 687]; Christenson v. Insurance Co. 117 Iowa 77 [90 N. W. Rep. 495; 94 Am. St. Rep. 286]; Queen Ins. Co. v. Building Assn. 175 Ill. 115 [51 N. E. Rep. 717]; Edge v. Insurance Co. 20 S. Dak. 190 [105 N. W. Rep. 281].

A different construction has been put upon this clause by the federal courts in Delaware Ins. Co. v. Greer, 120 Fed. Rep. 916 [57 C. C. A. 188; 61 L. R. A. 137]; Vancouver Bank v. Insurance Co. 153 Fed. Rep. 440, and the court below seems to have relied upon this construction instead of being controlled by our own Supreme Court.

The judgment below will be reversed and judgment entered here for plaintiff in error.

Swing and Jones, JJ„ concur.


source: Caselaw Access Project

author: SHIELDS, J.

license: Public Domain

text:
    CARRIERS — RAILROADS.
    [Coshocton (5th) Circuit Court,
    November Term, 1911.]
    Vioorhees, Shields and Powell, JJ.

      Curtis E. Smith v. Pittsburg, C. C. & St. L. Ry.
    Passenger Without Looking, Attempting to Cross Railroad Tracks on Platform to Take Train, Anticipating Approach, is Negligent Precluding Recovery, Notwithstanding no Warning Given and Train Ran on Different Track than he Expected.
    A passenger, injured by colliding with a train on which he intended taking passage, the approach of which he was anticipating and could have seen if he had looked before attempting to cross over a plank platform between the rails of one track to reach a platform between that and a parallel track on which he mistakenly believed the train would come, is guilty of contributory negligence precluding recovery, notwithstanding no whistle was sounded or bell rung to warn him of the train’s approach.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Anderson & Anderson, for plaintiff in error.

      Frank E. Pomerene, for defendant in error.

       Affirmed, no op., Smith v. Railway, 88 O. S. 586.

   SHIELDS, J.

This is a proceeding in error to reverse the judgment of the court of common pleas of this county in an action brought by Curtis E. Smith against the Pittsburg, Cincinnati, Chicago and St. Louis Railway Company to recover for personal injuries claimed to have been sustained by him. by reason of the negligence of the defendant company.

The plaintiff in error complains of the action of the court below in several respects, as appears in his petition in error filed herein for the reversal of said judgment, but the principal error complained of, and which alone was argued to this court, is that said court erred in directing the jury to return a verdict for the defendant company, at the close of the plaintiff’s testimony, upon the motion of the defendant company, because the plaintiff’s testimony failed to show negligence upon the part of the defendant company, and because said testimony clearly showed negligence on the part of the plaintiff which directly coffin tributed to his injuries.

From the record in this case it appears that railroad tracks were located on either side of the defendant company’s passenger station at Carnegie, Pennsylvania, where the accident resulting in the plaintiff’s injuries occurred. That the tracks on the north side of said station were used by the trains of the defendant company running to and from Pittsburg, Pennsylvania, from Carnegie and to points beyond. That two platforms were constructed, about said station, on the north side thereof, for the convenience and accommodation of passengers taking passage on said trains— one immediately up to and along the side of said station, running several feet eastwardly, and extending in width close to the inner rail of the first of said tracks nearest to said station, and the other between the second and third rails of said tracks running parallel with said first described platform, and for about the same distance. That a plank walk was also constructed between said named platforms, running north and south.

That the plaintiff below was at said company’s station out the day of said accident and procured transportation from Carnegie to Pittsburg. That at said time and place there was present on and about said platforms and in and about said station a large number of people. That about the time said train which said plaintiff intended taking for Pittsburg was due at Carnegie, and was approaching said station, he hastily made his way through the throng of people assembled on said first named platform, for the purpose of crossing over said plank walk to said second platform, to enable him to go aboard said train from that place, supposing and believing, as he testified, that said train would enter and stop upon the tracks immediately north of said second described platform, at said station, and in so doing the pilot on the engine attached to said approaching and moving train struck him, causing the injuries complained of.

An examination of the record in this case shows that the plaintiff below was not a total stranger to the surroundings about said station, and while, perhaps, it cannot be said he was familiar with them, he testified that he had before that time taken passage on the defendant company’s trains several times from said station to Pittsburg, so that he had some knowledge of the location of the tracks and property conditions in and about said station.

Counsel for plaintiff in error contend that the testimony shows that the plaintiff in error in attempting to cross over said plank walk between the said platforms was because he believed it was necessary for him to do so that he might enter a car of said train from the second named platform. If such was his belief it was a mistaken belief, for the testimony shows that the defendant company’s trains running to Pittsburg, ordinarily at least, approached said train upon the tracks south of said platform, and not north of it, and the plaintiff’s own testimony leaves the matter in no little doubt as to what he himself thought in this respect, for he testified that he entered said company’s cars in going to Pittsburg sometimes from one platform, and at other times another.

But aside from this phase of the case, connected as it is with the implied invitation of the company for its passengers to cross over on said plank walk to the second platform to take passage on the trains, it is contended by the plaintiff in error that said company was guilty of negligence in not signaling its approach to said station by ringing the bell and sounding the whistle on the engine attached to said train. While we recognize that the failure to do this might be such negligence as to subject the said company to liability, under certain conditions, in case of an accident, and if in the exercise of ordinary care it was necessary to do so, even as a precautionary measure for the safety of the people gathered in and about said station, and assuming that said company, through its employes, in charge of said train, was negligent in this respect, the inquiry arises as to whether the plaintiff in error was free from fault? While said company, in the exercise of ordinary care, was required to provide and maintain such accommodations at said station as were reasonably safe and adequate to protect him against accident and danger, it was likewise incumbent upon the plaintiff in error to use like care for Ms own safety. What does the record disclose in this respect?

By referring fo pages 65 and 66 of the'record, the plaintiff in error, on cross-examination, when interrogated upon the incidents immediately preceding the accident, testified as follows:

Q. Do you still say that you couldn’t have stood at the outer edge of the platform where others were standing at the platform and look down the track a piece ?

A. I could if I was on the track.

Q. I mean before you stepped down on the track.

A. I might if I had walked up and peeked out around.

Q. Any difficulty in seeing a part of the way down the track ?

A. It isn’t customary for people to do that.

Q. Couldn’t you have done that?

A. ■ I suppose I could.

Q. There wasn’t the slightest difficulty before you stepped down on the track?

A. If I had stopped there somebody would have-bumped against me or knocked me over. I have no right to blockade the way.

This testimony furnishes its own comment. The witness, if he did not see the approaching train before reaching the edge of the platform, knew it was about due, and yet with this knowledge, he attempted to pass over the crossing without looking for the train, as he testified, and was injured. Surely he could not with his eyes wide open walk into the presence of danger for had he looked there was nothing to prevent him from seeing the approaching train, and then - make a claim for damages against the company because the bell on its engine was not rung nor the whistle sounded.

And so, too, if he could have seen the train and avoided the accident by the exercise of ordinary care on his part, he is not entitled to recover. And further, if before attempting to cross said walk leading from the first to the second platform, he was in such position as that he could have known and ought to have; known of the approaching train and the danger confronting him, and with this knowledge .undertook to cross said walk and was injured in so doing, he was guilty of such contributory negligence as would defeat his right to a recovery.

“A passenger awaiting the arrival of his train, is bound to yuse reasonable care for his own protection while on the company’s premises, and failing to do so will be denied a recovery in case of a resulting injury. ’ ’

For the reasons stated, we think there was no error in the action of said common pleas court in directing the jury to return a verdict for the defendant below, and the judgment of said court will therefore be affirmed, with costs. Exceptions noted.

Voorhees and Powell, JJ., concur.


author: JONES, J.

text:
    CRIMINAL LAW — INTOXICATING LIQUORS.
    [Cuyahoga (8th) Court of Appeals,
    March 25, 1913.]
    Jones, Metcalfe and Ferneding, JJ.
    (Judge Jones of the 4th district, Judge Metcalfe of the 7th district, and Judge Ferneding of the 2nd district, sitting by designation, in place of Winch, Meals and Grant, JJ.)
    John A. Sanders v. State of Ohio. Jasper Post v. State of Ohio. August Pfaff v. State of Ohio.
    1. Prosecution of Accused for Violation of Liquor Laws by Initials of Given Names not Prejudicial.
    Courts take judicial notice that Christian and surnames are abbreviated. 'Hence, in a prosecution before a mayor under Gen. Code 13195, for keeping a place where intoxicating liquors are sold in violation of law, the fact that accused is named in the affidavit by initials instead of his full name does not necessitate a reversal for variance under Gen. Code 13582, especially where no objection is made on the trial thereto and in his internal revenue certificate and state liquor tax application it appears that his name is designated by such initials.

      2. Proof of Single Sale in Connection with other Indicia of Place where Intoxicating Liquors are Kept and Sold Justifies Conviction for Sunday Violation.
    Proof of a single sale on Sunday of intoxicating liquors in a room furnished with bar fixtures, a bar tender and other indicia of a, place where liquors are kept, justifies a conviction under Gen. Code 13195 for keeping a place where intoxicating liquors are sold contrary to law.
    3. Inhibition against Unlawfully Keeping for Sale of Intoxicating Liquors Applies to Sunday Violation as well as Local Option Territory.
    The inhibition of Gen. Code 13195 as to unlawfully keeping a place for sale of intoxicating liquors is not limited to dry territory but includes unlawfully keeping a place on Sunday.
    4. Jury Trial not Necessary upon Issue of Former Jeopardy in Prosecution for Keeping Place for Unlawful Sale of Intoxicating Liquors.
    Plea of former jeopardy is properly heard and determined by a mayor under Gen. Code 4528, in a prosecution for unlawfully keeping a place for sale of intoxicating liquors contrary to Gen. Code 13195, and, since the prosecution is for a fine only, a jury trial is not necessary.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Geo. W. Shaw and M. Bernstein, for plaintiffs in error.

      John A. Chamberlain, David E. Oreen and Cyrus Locher* Pros. Atty., for defendants in error.
   JONES, J.

Plaintiffs in error were each brought before and convicted by J. R. MacQuigg, mayor of East Cleveland, upon affidavits based upon Gen. Code 13195, charging them with keeping a place in the adjoining city of Cleveland where intoxicating liquors were sold in violation of law. The convictions were each affirmed by the common pleas court, and proceedings in error are here instituted to. reverse the judgment of the lower courts.

The cases involve similar questions except that in the Pfaff case the additional claim is made that Pfaff, as shown by the record, has been once in jeopardy for the same offense before a Cleveland city justice of the peace; and that when he had demanded a jury before the East Cleveland mayor, upon a plea in bar, he was denied the same.

It is claimed in all three cases that the judgments below are against the evidence, in that the showing of a single sale could not be held to be a violation of the statute as to keeping, etc.; that the defendant, Sanders, was not shown to be the John A. Sanders who was on trial. The testimony refers to the defendant as “J. A. Sanders”; the internal revenue and state licenses were issued to “J. A. Sanders” but it is insisted that this “J. A. Sanders” was not shown to be the John A. Sanders charged in the affidavit. The record does not show that defendant made any issue of the fact on the trial, but reserved it for review only. The variance is not material. Courts will take judicial notice that Christian and surnames are abbreviated. If tried under indictment it would not appear to be prejudicial to the defendant under Gen. Code 13582. While the section is not made applicable, in terms, to procedure before magistrates, Ave think that no prejudice arose to the defendant which would necessitate reversal for that cause. Furthermore, no proper action was taken at the time by defendant objecting because of variance. What has been said as to Sander’s case applies as well io the Pfaff case.

Again, it is urged that proof of a single sale on a single day does not dignify the offense as one of keeping a place. Strictly speaking, that is true. Under the law a single sale is of itself an offense punishable as such. Where, however, a single sale is accompanied by proof evidencing the indicia of a place Avhere liquors are kept, showing the connection wherewith a room furnished with fixtures, bartender or other evidence connecting such’ sale with the place, such proof in connection with a single sale may be sufficient to justify of “keeping a place, etc.” We are not comdnced that there was a failure of proof in this regard, or that the judgment was against the evidence. The circuit court of the fourth circuit has held, as above stated, in cases of similar character. But here appears the additional fact that the salé in question was made on the first day of the week. Therefore, a showing of the place and a single sale therein, would fall within the inhibition of Gen. Code 13195. This view is supported by the case of Lynch v. State, 31 O. C. C. 352 (12 N. S. 330), affirmed, no op., Lynch v. State, 81 Ohio St. 489.

While the sale in the foregoing case was in violation of law, as being made in dry territory, tbe principle is analogous where the violation of law claimed is under Gen. Code 13050.

Plaintiffs in error urge that Gen. Code 13195 applies only to the keeping of places and the violation of law in dry territory. It is somewhat difficult to follow counsel in this phase of the case, for the reason that Gen. Code 13195 was substantially as it is now, long before the local option laws were effective in this state, and in its original form applied to the entire state.

But the argument is wholly unavailing for the reason that the plain import of the section applies to any place where intoxicating liquors are sold in violation of law. Furthermore, under the local option sections of the Code, Gen. Code 13225, 13226, special provisions are made for punishment and abatement in cases where the places are within dry territory.

The defendant below, August Pfaff, filed before the mayor of East Cleveland his plea, in abatement, alleging former acquittal for the same offense before a justice of the city of Cleveland, and demanded a jury upon that issue; this the mayor refused, and himself heard the entire case, including the issue of former acquittal. Plaintiff in error, Pfaff, relies on his right to a jury on Gen. Code 13630 found in title 2, part four of criminal procedure. Gen. Code 13630 is made applicable to criminal proceedings upon indictment and is lodged in title 2, part four.

Gen. Code 10490 and 10491 do not apply the procedure of Gen. Code 13630 to justices’ and mayors’ procedure, as will be seen from an inspection of those sections.

Under Gen. Code 4528 the mayor has final jurisdiction in misdemeanor cases, unless the accused, is, by the constitution, entitled to a jury trial. The offense charged under Gen. Code 13195 against the defendant was punishable by fine only. The mayor had complete and full jurisdiction to hear and determine 1he offense including every issue made, and including the plea of former jeopardy. Gen. Code 4528, clothes him with full final jurisdiction to “hear and determine any prosecution for a misdemeanor.” ’ Any issue embraced within that “prosecution” may be therefore determined by him, without the intervention of a jury.

That, upon a second conviction, the defendant’s place may be abated as a nuisance and that a constitutional right to a jury trial would then accrue to him, and that therefore, by force of the second, need not now be discussed, for obvious reasons. A second offense was not charged.

Upon an inspection of the record in the three cases, we are constrained to hold that no prejudicial error has been committed irad the judgments of the mayor’s and common pleas court will foe affirmed.

Cause remanded to the mayor’s court for execution and for lurther proceedings according to law.

Metcalfe and Ferneding, JJ., concur.


author: JONES, O. B., J.

text:
    CARRIERS — STREET RAILWAYS.
    [Hamilton. (1st) Court of Appeals,
    June 2, 1913.]
    Jones, Swing and Jones, JJ.

      Cincinnati Traction Co. v. Harry Luebkert.
    Passenger, Negligent in Alighting from Street Car in Motion After Having Stopped at Street Corner.
    A passenger, alighting from á street car in motion after it ha's stopped to let off passengers at a street intersection and then started around the comer before he reached the lowest step, is negligent and a verdict for plaintiff will be reversed as against the evidence in the absence of any evidence that the car was stopped when plaintiff stepped from the last step.
    Error to common pleas court.

      Einkead & Rogers, for plaintiff in error.

      Horstman & Horstman, for defendant in error.

      Dismissed, no op., Luebkert v. Traction Co. 58 Bull. 459.

   JONES, O. B., J.

The action below was brought by Henry Luebkert to recover damages for personal injuries received by him in alighting from a street car on which he was a passenger at Twelfth and Main streets in Cincinnati, Ohio.

The car ran east on Twelfth street and stopped just before it reached Main street for passengers to get off, and then turned the corner soutlrward down Main street.

Plaintiff alleges in his petition that when the car stopped at the usual place for passengers to alight, he and other passengers prepared to alight from said car by means of the front platform and steps provided for such purpose; that two or three passengers immediately in front of plaintiff succeeded in so alighting, and plaintiff was preparing to step from the front steps of the front platform when the conductor signaled for the car to proceed and the motorman, responding to the signal, started the ear while plaintiff was in the act of getting off, and he was thus caused to fall on the street his feet landing on the street while with his hands he still held to handle bars alongside of the front steps and was dragged and his back was struck severely against the front steps and front part of said car.

The Traction Company denies that plaintiff was injured while he was alighting from the ear after it had been brought to a full stop, but avers that his injuries were caused by his leaving the car while it was in motion rounding the curve at the corner turning into Main street.

The issue raised therefore is a direct one of fact. The testimony is unusually clear and without conflict. It appears that two, probably three, passengers preceded Luebkert in going to the front of the car when it neared Main street for the purpose of getting off. Two of these were called as witnesses by plaintiff, and gave their testimony. Both of them agree that they preceded plaintiff and that the car had stopped for the discharge of passengers and had started up again before either of the three attempted to get off. Bolander, who was in the lead of the three, waited for the car to swing around the curve so he could step off conveniently on the sidewalk. Zimmerman who followed him also says that he got off while the car was in motion, and plaintiff himself testified that he waited inside the vestibule and on the “top step” to let the other three get off before he stepped on the lower step to get off, and then he realized the ear was moving, and being timid because of his unsound leg, but unable to remain standing on the step, stepped or fell down to the street and still holding the handle bar was dragged by the car a short distance until it was stopped, and thus injured.

As these three passengers got off one after the other with plaintiff last, as all agree, and as both Bolander and Zimmerman are clear that the car was moving when they each got off, and as the car made no stop after starting round the curve until the accident had happened to plaintiff, it follows as a physical necessity that the ear was moving when plaintiff got on the lower step and stepped off. Plaintiff himself admits it and there is no evidence contradicting it.

A special interrogatory was submitted to the jury in these words:

“Was the- car moving in the curve, rounding the corner of Twelfth and Main streets, when Luebkert, the plaintiff, placed himself on the front step preparatory to leaving the car?”

To which the jury answered “No.” This carries no particular weight, as undoubtedly plaintiff was inside the vestibule .and on the upper step or platform some little time while waiting for those who preceded him to alight, and the wording used in the interrogatory might well be understood by the jury to refer to the period of time when he placed himself on the front platform, or “top step” as he called it, rather than his position on the lower step, which latter as we have seen must have been while the car was moving around the curve.

The vedict was not sustained by the evidence, and the court below should have granted defendant’s motion to instruct the jury to return a -verdict for defendant. Judgment will be reversed, and judgment entered here for defendant.

Swing and Jones, JJ., concur.


text:
    DRAINS AND DITCHES — MUNICIPAL CORPORATIONS —RAILROADS.
    [Hamilton (1st) Court of Appeals,
    August 3, 1913.]
    Swing, Jones and Jones; JJ.

      Cincinnati (City) v. Baltimore & Ohio Southwestern Ry. et al.
    .Municipality Constructing Embankment Diverting Flood Waters cannot Evade Liability for Damage by Failure of Railroad to Construct New Openings in Prior Constructed Fill.
    A municipality, making a street improvement, having failed to construct culverts under an embankment for the purpose of draining certain interior basins of flood waters, the flow of which the embankment diverted, cannot shift liability for damages resulting from a break in such embankment during flood season by asserting that the break was effected by the failure of a railroad company to provide additional openings in its prior constructed fill to allow the water retained thereby to escape, especially since the railroad fill contained sufficient culverts to drain the water in the basins before the flow thereof was diverted by such embankment.
    Error to common pleas court.

      Alfred Bettman, city solicitor, Coleman Avery, and Constant Southworth, for plaintiff! in error.

      Edward Barton for B. & O. S. "W. By., and Harmon,• Colston, Goldsmith <& Hoadly for C., N. O. & T. P. By. and B. & O. S. W. By.

       Affirming, Cincinnati v. Railway, 22 Dec. 46 (11 N. S. 577); affirmed, no op., 89 O. S. 416.

   JONES, O. B„ J.

The action below was for damages caused to the city by the destruction of a part of the embankment upon which Eighth street has been constructed and also the consequent destruction of a part of the viaduct upon said street and embankment, which were caused by a flood in the Ohio river, in March, 1907.

The claim of the city is based upon the proposition that the law imposed a duty upon the two defendant arilroads to provide a passage for flood waters through or under their embankment, in order to keep the flood water east of said embankment and south of Eighth street at an equal height and pressure with the water east of said embankment and north of Eighth street. The specific claim is made that a small culvert about four feet in diameter, which had been constructed under said railroad embankment at the time it was built, should have been kept open to permit the free passage of this flood water.

It appears from the evidence that the embankment upon which the defendant railroads are now built and operated was oriirinally filled by the predecessor in title of said B. & O. Southwestern Railway Company in 1870 and 1871. When this railroad embankment was constructed over the low land known as Millcreek bottoms, the stream called Millcreek was so straightened as to be thrown west of said embankment, which practically ran north and south, and for the purpose of affording drainage into that stream as so re-located, and probably for the further purpose of permitting flood waters to pass through, four culverts were constructed through said embankment between the C., H. & D. Railroad on the south, and Harrison avenue on the north, and there was also an opening under said railroad at what was called Gest street for the passage of the street thereunder. About turn years after said railroad embankment was constructed the city built Eighth street, filling an embankment for same up to the grade of said railroad so that they crossed on grade. In making said fill there were no culverts or passageways made through this embankment, which was a solid fill from Millcreek east to the higher lands of the city. The filling of Eighth street in this way divided the basin lying east of said railroad embankment into two parts — that lying north of Eighth street being accessible to the flood waters of the Ohio through the three largest culverts that had been constructed under the railroad embankment, while the basin lying south of Eighth street had no passage-way through the railroad embankment for either drainage water or flood water except the four-foot culvert previously spoken of, and which culvert it appears from the record was constructed by order of the engineer in charge of the building of said railroad embankment, primarily for the purpose of draining certain lands then used for brickyard purposes.

The' defendant, the C., N. O. & T. P. Railway Company, is the lessee of the Cincinnati Southern Railway; which is owned by the city of Cincinnati, and for its use a strip of land was acquired by the city along the east side of the original fill of the B. & O. S. W. Railway, and was filled wide enough to accommodate two tracks, to the same grade as that of the existing railroad, and the culvert complained of was extended through this additional fill. There is some dispute in the record as to just how and to what extent this culvert had become clogged up and at which end the obstructions occurred.

The real question in the case, therefore, seems to be whether or not it was the duty of the defendant railroads to keep open a passage-way to the south basin for the flood waters. Under the facts of the case the court is of the opinion that no such duty existed as against the defendants. It was the act of the ■city in building the earthen embankment on Eighth street which cut off the south part of the basin lying east of the railroad embankment from the main culverts which had been left through the railroad embankment lying north of Eighth street and prevented said culverts from performing their function of admitting flood waters to the entire basin, and it was not within the power of the city to insist that the small culvert which had been constructed primarily for drainage purposes should be so opened and maintained as to operate in place of the larger culverts whose operation had been by its act rendered of no avail so far as the south basin was concerned. And if it was necessary for the safety and maintenance of the city’s embankment at Eighth street to have the flood waters equalized on each of its sides this could have been accomplished by the construction of one or more culverts through the Eighth street embankment, and as the record shows the expense of such construction would have been very slight. The city, by its failure to construct such passage-way for water under its own fill so built after the railroad embankment, could not create a new use for the small drainage culvert, or require the railroads to maintain a culvert for the purpose of flooding the area of the south basin which had thus been cut off by its embankment from the culverts originally constructed for such purpose.

This being the view of the court as to the law, under the facts of the. case it hardly becomes necessary to review the elaborate arguments, both oral and by printed brief, submitted by distinguished counsel upon the many interesting questions, discussed therein, in order to take up in detail the many errors claimed on behalf of plaintiff in error. ' Appropriate to this situation is the language used by Davis, J., in McLemore v. Bank, 91 U. S. 28 [23 L. Ed. 196]:

“It is unnecessary to consider whether in all respects the charge of the circuit court to the jury was correct, because the record shows the case of the plaintiff to be so fatally defective, that the judgment would not be reversed for instructions, however erroneous.” In which case he cites: Brobst v. Brock, 77 U. S. (10 Wall.) 519, 525 [19 L. Ed. 1002]; Decatur Bank v. Bank, 88 U. S. (21 Wall.) 301 [22 L. Ed. 560].

The case was carefully tried and submitted to a jury under a full, fair and careful charge given by the trial judge. Under Gen. Code 11364, this court finds that substantial justice has been done by the decision of the court below, and that no errors appear in the record prejudicial to the plaintiff in error. Judgment is therefore affirmed.

Swing and Jones, JJ., concur.


author: POWELL, J.

text:
    TELEGRAPHS AND TELEPHONES.
    [Licking (5th) Circuit Court,
    February Term, 1912.]
    Yoorhees, Shields and Powell, JJ.

      Gratiot & Brownsville Tel. Co. v. Brownsville Farmers’ Tel. Co. et al.
    1. Public Utilities Act Not Applicable to Companies Already Chartered.
    A telephone company, upon which both primary and secondary ' franchises had been conferred prior to the enactment of the state public utilities law (act 102 O. L. 549), is not subject to the provision of Sec. 54 (Gen. Code 614-52) of the act requiring that a certificate be secured from the public service commission that the exercise of the franchise or permit granted to it is proper and necessary to the public convenience.
    2. Private Lines Constructed by Persons Associated for such Purpose not Public Utility.
    The construction of a private telephone line and station for the use of a number of persons associated together for that purpose does not constitute a public utility, nor are persons so using such a line subject to control by the public service commission.
    Appeal from common pleas court.

      J. O. Bassett and Robert Ramsey, for plaintiff.

      Fitzgibbon & Montgomery, for defendants.

      Affirmed, Gratiot & B. Tel. Co. v. Telephone Co. 58 Bull. 476; 88 O. S. 000.

   POWELL, J.

This is an action by the plaintiff to enjoin the defendant, the Brownsville Farmers’ Telephone Company, from exercising any permit, right, license or franchise heretofore granted it, but not actually exercised by it, for owning or operating a plant for furnishing telephone service thereunder in the locality in which it is situated, and being the same locality occupied by plaintiff with its telephone lines and plant. This judgment is asked under and by virtue of the provisions of Sec. 54 of what is known as the Public Utilities act of Ohio, passed May 31, 1911, and which act took effect June 30, 1911, and is found in 102 O. L. 549 to 575 inclusive. This act provides for the regulation and control of what are known and defined in said act as public utilities, and it establishes a commission to be known as the public service commission, and prescribes the duties and defines the authority of such commission.

The particular delinquency urged against the defendant is, that it is about to proceed with the construction of a telephone-plant for the use of its stockholders and the public generally, without first having obtained a certificate of the public service commission that the exercising of its franchise, permit, right or license so to do is proper and necessary for the public convenience as provided by said Sec. 54. The petition, by proper averments, sets out the facts upon which the plaintiff predicates its right to the relief prayed for.

The defendant, by its answer, admits the corporate capacity of both plaintiff and defendant, and avers that it was incorporated on or about March 10, 1911; that it proposes to construct a telephone line in Licking and adjoining counties; that it has purchased supplies, material and equipment therefor, and has partially constructed said line; that a part, of its said line was constructed prior to June 30, 1911, and that prior to May 31, 1911, it was actually exercising the grants and franchises before that time granted to it under the laws of Ohio. It further admits that it has not received a certificate of public necessity from the • public service commission, and that said commission has not determined that the construction of its proposed line was necessary.

A temporary restraining order was allowed on the filing of the petition. Afterwards a motion was filed to dissolve the same. The case was heard on its merits in the court of common pleas, the petition was dismissed, and the action was brought to this court by appeal, and the ease is now submitted upon its merits. (See Gratiot & B. Tel. Co. v. Telephone Co. 23 Dec. 682.)

The question presented is: what is the proper construction to be given to said Sec. 54 of the public utilities act? Said section reads as follows:

“No telephone company shall exercise any permit, right, license or franchise that may have been heretofore granted but not actually exercised, or that may hereafter be granted, to own or operate a plant for the furnishing of any telephone service thereunder, in any municipality or locality where there is in operation a telephone company furnishing adequate service unless such telephone company first secures from the commission a certificate, after public hearing of all parties interested, that the exercising of such license, permit, right or franchise is proper and necessary for the public convenience.”

■What is the “permit, right, license or franchise,” the exercising of which is prohibited by this section ? It can not be the right to its corporate existence which is conferred by its charter, because that is a right which can not properly' be said to be exercised. This is usually referred to as the primary franchise of a corporation, and confers upon it the right to exist, and gives it an identity of its own, with the right to carry out the objects and purposes for which such corporation is formed and as expressed in its charter. This right of the defendant was created and was in existence before the passage of the law sought to be construed; and it is claimed by the defendant that no other permit, right, license or franchise has ever been granted to it by any person or corporate body authorized to grant such permit or franchise.

On the other hand, it is contended by the plaintiff that the defendant’s right to construct and maintain a telephone line is such a permit, right, license or franchise as is contemplated by said See. 54, and- that the same is a grant of a. part of the sovereign power of the state by act of the legislature in enacting the statutes authorizing the same and under which said corporation is formed; that the right to construct, own and operate a telephone line is the permit, license or franchise which shall not be exercised, if it has not already been so exercised, until a certificate of necessity shall have first been obtained from the public service commission, as provided by said Sec. 54.

In forming a corporation, it is necessary to set out the objects and purposes in the application for which the corporation is farmed; and we find in the articles of incorporation of the defendant that it is formed for the “purpose of building and operating a telephone line in Licking and adjoining counties. ”

These articles of incorporation were offered in evidence.

We are of the opinion that the construction contended for by the plaintiff in this action is not tenable; that the defendant, having been created as a corporation on March 30, 1933, some two or three months prior to the enactment of the public utilities law, had not only the right to exist as a corporation, known as the primary franchise, but that it also had at that time the right to build and operate a telephone* line in Licking and adjoining counties by virtue of its charter; and that this right carried with it the power and authority to do whatever might reasonably be necessary to .be done in order to carry out the provisions of such charter. That is, it had the right to purchase material, to construct a telephone line, own the same and operate it. Whether or not it was to be operated for the public, so as to constitute it. a public carrier, and thereby make it subject to the jurisdiction and control of the public service commission, might be a disputed question. The objects and purposes for which it is formed are expressed in its articles of -incorporation, and nothing is said in these articles as to whether or not it intends to operate, as a public utility or not. It can not be doubted that any number of persons may associate themselves together and construct and use a telephone line and station for their own immediate use, and not otherwise. Such a corporation would not be a public utility. There is nothing in the evidence that shows to us that this defendant either intends to operate as such public utility or simply as the owner of private property and for private purposes. We think the evidence fails to disclose that the defendant is such a public service corporation as could be required to come under the control and regulation of the public service, commission.

The relief sought in this action can not be granted for another reason, and that is this: because what are known as both primary and secondary franchises having attached to the defendant before the passage of this act, the act itself, if construed to apply to this defendant, would be in the nature of a retroactive law, which is prohibited by the constitution, and that such a construction would make the act itself unconstitutional.

It might further be said that, before it could be held that the defendant should procure a certificate of public necessity from the public service commission, the adequacy or inadequacy of the service rendered in the locality where the plaintiff’s property is located would first have to be determined; and while it might not be essential to its right to the relief sought in this action to show that it was rendering adequate service in the same territory, or in the same locality, where the defendant company expected to locate its lines; yet it would not be necessary to make such showing in this proceeding, but the question of the adequacy or inadequacy of its service would have to be raised and passed upon by the public service commission.

We think that, upon the two grounds mentioned, viz: first, that the construction claimed by plaintiff would constitute the public service act retroactive, and, therefore, unconstitutional; and, second, that the evidence does not disclose that the defendant is or will become a publie utility within the meaning of that act, the prayer of the petition should be refused. A decree for the defendant will be entered in conformity with this opinion, and the petition will be dismissed at the costs of the plaintiff, and the cause will be remanded to the common pleas court for execution.

Voorhees and Shields, JJ., concur.


author: POLLOCK, J.

text:
    LANDLORD AND TENANT.
    Metcalfe, Norris & Pollock, JJ.
    [Columbiana (7th) Court of Appeals,
    March Term, 1913.]
    Meek, et al. v. Gealy, et al.
    Condition to Return Leased Property in Good Condition does not Include Damages for Loss by Fire.
    An agreement in a lease of a stave mill that the lessee will at the termination of the lease, return the mill in as reasonably good condition as when taken away, does not make the lessee liable in damages for the value of the mill, if it is destroyed by fire without his fault.
    [Syllabus by the court.]
    Error to common pleas court.

      E. L. Lyon, Billingsley, Clark & Moore, for plaintiffs.

      C. C. Connell, for defendants.
   POLLOCK, J.

The defendants in error were plaintiffs in the court of common pleas in this county, in an action to recover on account for staves sold and delivered by them to the defendants below, the plaintiffs' in error herein, in the sum of $1,171.27. To this cause of action the defendants below, now the plaintiffs in error, filed an answer admitting part of this indebtedness, but denying the balance of the account.

They further filed a cross petition in which they claimed that on November 16, 1910, the plaintiffs below hired from the defendants below a stave mill, on condition that they pay therefor a monthly rental of $10. * They said that plaintiffs agreed to keep up all the wear and tear of said machinery, and at the conclusion of their term of rental, the machinery was to be delivered to defendants below in as reasonably good condition as when taken away; that plaintiffs below were to have an opportunity to purchase this machine at any time within nine months from the date of the agreement, paying therefor $950. They then say that plaintiffs refused and neglected to deliver the machinery in as reasonably good condition as when said' agreement was entered into, and they ask damages in the sum of $950.

To this cross petition the plaintiffs below filed an answer in which they admitted entering into this written agreement of' lease, but alleged that the machinery while in their possession,, and without any fault on their part, was partially destroyed, by fire, and that they delivered to defendants below the remainder of the machinery which was not destroyed at the time-of the fire. .

The only error complained of in this case arises from the issues joined between the cross petition and the answer thereto,, of the plaintiffs below.

The evidence in this ease shows that the parties entered into a written contract of lease for a stave mill. The only part of this contract which is necessary to determine the question arising in this action is as follows: “Second parties agree to keep up all the wear and tear of said machinery. At the conclusion of this lease machinery to be delivered to parties, of the first' part in as reasonably good condition as when taken away”. That during the life of this lease the mill was almost totally destroyed by fire; that the fire occurred without any fault on the part of the plaintiffs below, and that they delivered back to the defendants below the property leased, that was not destroyed.

The verdict and judgment on the issue thus joined between the cross petition and the answer was in favor of the plaintiffs below, and for that reason the plaintiffs here are prosecuting; error, claiming that the defendants in error by their contract bound themselves absolutely to return the property leased, and. that when they failed they were required to respond in damages, regardless of the reason for the failure.

The legal relation existing between the parties by virtu© of this contract, in regard to the care and return of the prop^ erty, was that of bailor and bailee for their mutual benefit. In the absence of a contract the common law duties of a baile© requires him to exercise ordinary care in the preservation of the property which is the subject-matter of the bailment, and upon the termination of the bailment, to return the property to the bailor, or otherwise account for the property according to the contract, and he is not liable for damages to the bailor for the destruction of the property which does not occur by reason of the want of ordinary care on his part; but the parties are permitted to make their own contract, and the bailee may enlarge his liabilities by the contract until he becomes the absolute insurer of the property against any damage or loss that may occur from any source.

It is not to be presumed that the bailee has become liable for the property beyond his .common law liability, for this can only arise by his express or implied contract. So much depends upon the terms of the particular contract and the subject-matter to which it has been applied, that it is hard to deduce any absolute rule from the reported cases which will determine when the bailee’s liability extends beyond that of ordinary care, and he becomes an insurer of the property, but when the language of the contract does not require more of him than would be implied by law under like facts, the bailee’s liability is not increased by reason of his having contracted to do what the law would require of him in the absence of this provision of his contract.

Lake Michigan Car Transportation Co. v. Crosby, 107 Fed. Rep. 723; Fairmont Coal Co. v. Jones, 134 Fed. Rep. 711 [67 C. C. A. 265]; Seevers v. Gable, 94 Iowa 75 [62 N. W. Rep. 669; 27 L. R. A. 733; 58 Am. St. Rep. 381]; Young v. Leary, 135 N. Y. 569 [32 N. E. Rep. 607]; Standard Brewing Co. v. Malting Co. 171 Ill. 602 [49 N. E. Rep. 507]. Further citations might be given, but we think these and the authorities referred to in them will suffice.

It would not be correct to say that the authorities uniformly follow this rule. Plaintiffs in error have called our attention to a number of cases, and others might be referred to, holding that where the bailee binds himself by contract to do what the law in the absence of the contract would infer, he is hound to perform his contract. But we think an examination of this class of cases will show, with few exceptions, that the bailee was liable for other reasons; either that by the terms of his contract he had bound himself beyond the common law liability, or the facts showed that the loss occurred by reason of his not having used the care required of him. Neither of these appear in the case now before the court. The evidence shows that the stave mill was destroyed by fire without fault on the part of the plaintiffs below, and the parties had contracted that at the conclusion of the lease the machinery was to be delivered to the plaintiffs in error in as reasonably good condition as when tahen away. The language of this contract requires of the defendants in error just what the law would have required in the absence of this provision of the contract. A fair construction of this contract does not imply an absolute promise to return the property, but that the parties had in contemplation the continued existence of the property until the end of the lease, and that at that time it should be returned to> the plaintiffs in error. The property-at that time, without the fault of the bailee, was not in existence, and he should be held, to no greater liability than he would have been in the absence-of this contract.

For these reasons the judgment of the court below is affirmed.

Metcalfe and Norris, JJ., concur.


author: SWING, J.

text:
    INSURANCE.
    Hamilton (1st) Court of Appeals,
    August 6, 1913.]
    Swing, Jones and Jones, JJ.
    Clara L. Johnson v. Policemen's Benevolent Assn.
    Designation by Member of Policeman’s Benefit Association of Brothers as Beneficiaries Invalidated by Subsequent Marriage.
    The designation by an unmarried member of the Policemen’s Benefit Association incorporated under R. S. 3630 (Gen. Code 9427), of his brothers as beneficiaries of a fund payable at his death by said association, is invalidated by bis subsequent marriage, and death occurring after marriage such fund should he paid to his widow.

      Appeal from common pleas court.

      Johnson & Levy, for plaintiff.

      Geo. H. KaUenhorn, for defendant.
   SWING, J.

Clara L. Johnson is the widow of Clifford E. Johnson who was a member of said benevolent association. Said association was incorporated in 1888 under the laws of this state, under old section of Rev. Stat. 3630 (Gen. Code 9427), which is as follows:

“A company or organization may be organized to transact the business of life or accident, or life and accident insurance on the assessment plan for the purpose of mutual protection and relief of its members, and for the payment of stipulated sums of money to families” or heirs of the deceased members of such company or association.

The constitution of said association provided:

“Article II. Object. Sec. 1. The object of this association shall be to provide assistance for the families or legal Jieirs of a deceased member.”

Article IY. Sec. 2, provided:

“The sum so paid shall be held as a death benefit fund to be paid to the family or whoever the next deceased member may have elected, immediately upon satisfactory evidence of ■such death having been furnished to the board of trustees.”

Under the provisions of the statute and of the constitution -of this association there can be no question but that the death benefit provided would be payable to the widow, Clara L. Johnson, the deceased having left no children; but it is claimed “that the widow is not entitled to this benefit by reason of the fact that the said Clifford E. Johnson had designated his brothers the beneficiaries of his claim. Prior to the marriage of Clifford E. and Clara L. Johnson this designation had been made by Clifford E. Johnson, so that the question is, whether or not the widow — notwithstanding the brothers had been designated — is entitled to the claim, or whether by reason of the ■designation the brothers are entitled to the fund.

If Clifford E. Johnson had not married Clara L. Johnson there would be no question but that the designation of the brothers would be binding upon the association, and they would be entitled to .the benefit because they would come under the provisions of the law and the constitution, but we are of the opinion that the purpose of the law and the purpose of the constitution of this association was primarily to raise a fund for the families of the deceased, and that it was not within the power of said Clifford E. Johnson to designate others than the members of his family as the beneficiaries of this fund. At the time of his death the family of Clifford E. Johnson consisted of himself and his wife, the brothers at that time were not members of his family within the meaning of the law, and therefore not being members of the family, his designation made at the time when it was proper became inoperative as against the provisions of the law and the provisions of the constitution of the society, and the court hold that the widow alone is entitled to the benefit provided by the association.

Jones and Jones, JJ., concur.


author: JONES, E. H., J.

text:
    ASSESSMENTS.
    [Hamilton (1st) Court of Appeals,
    July, 1913.]
    Swing, Jones and Jones, JJ.
    Mary Eva Wolf et al. v. Cincinnati (City) et al.
    Assessment of Fifty Per Cent of Improvement Cost against Property Abutting Street One-half of which is Occupied by Market House Legal.
    Where a market house occupies the middle of a street, extending cross an entire square- from one intersecting street to another, and the said street is improved with a new pavement on both sides of the market house, an assessment of 50 per cent of the cost, exclusive of intersections, against the abutting property is not inequitable but may be legally made and will not be enjoined.
    [Syllabus by the court.]
    Error to common pleas' court.

      W. W. Prather, for plaintiffs in error.

      O. 8. Bryant, assistant city solicitor, for defendants in error.
   JONES, E. H., J.

Plaintiffs brought an - action in the court below for an injunction against the defendants, the city of Cincinnati and the auditor of the said city, seeking to enjoin the collection of an assessment against the plaintiffs’ property bounding and abutting upon Pearl street in said city, between Broadway and Main streets, said assessment being made against their property to pay the expense of improving said portion of said street with bitulithic pavement, setting granite curbs, etc.

The lower court made a seperate finding of facts and its: conclusions of law, and upon those findings and the arguments of counsel the cause was submitted to this court. The court found:

‘1 That said Pearl street between Broadway and Main streets'in said city is two blocks in length, crossing Sycamore at a point one-half the distance between Broadway and Main street,, and that the portion of said Pearl street between Broadway and Sycamore street is divided into two streets by a public market house running lengthwise of said Pearl street, which market house is bounded on both sides by said improvement for the entire length of said market house; that said market house is. 400 feet long and 52 feet wide, and that portion of said Pearl street between Broadway and Sycamore that lies north of said market house is known as North Pearl street and is 400 feet long by 33 .feet wide between curbs, and that that portion of said Pearl street between Broadway and Sycamore street lying south of said market house is known as South Pearl street an,d is 400 feet long and 33 feet wide between curbs, and that both said North Pearl street and said South Pearl stréet were included and improved under said resolution and ordinance. ’ ’

Tt was also found by the lower court that the market house was a substantial brick structure containing stalls for the use of persons selling vegetables, fruits, etc., for which the city of Cincinnati receives an annual rent for each stall, and in which said merchandise is sold for profit.

It is contended by the plaintiffs in error, all of whom are owners of property abutting upon said Pearl street, that the assessments for said improvement are illegal and void for the reason that no part of the cost of said improvement was assessed against the city of Cincinnati on account of said market house,, or that, admitting that property is not assessable, the frontage of said market house upon said so-called North and South Pearl streets should be included in estimating the total frontage and after same is done their property should only bear its ratable-portion of said cost.

The resolution declaring it necessary to improve said portion of said Pearl street provided as follows:

“That 50 per cent, of the whole cost of said improvement,, less the cost of intersections shall be assessed by the foot frontage-on all lots and lands bounding and abutting upon the proposed improvement, which said lots and lands are hereby determined, to be especially benefited by said improvement.”

The ordinance passed later contained a similar provision. It will thus be seen that the city assumed the burden of paying-50 per cent of the cost of said improvement, after taking out. the cost of the intersections. The percentage which the city: shall bear in making an improvement is to be determined by council in each particular ease. It seems to us to be the policy of the law that council should take into consideration all the-circumstances and conditions of each improvement, and fix such a percentage to be borne by the city as will be equitable and. just; in doing this it considers any public land that may be situated alone the line of the proposed improvement or property which for any other reason might be exempt from assessment, the nature of the property to be assessed, arid its ability to bear the burden placed upon it.

We must assume that in fixing the percentage in this ease all those matters were taken into consideration by council and that the city .undertook to divide this work equally with the abutting owners, because of the position of the market house, in the center of said street. It strikes the court that this division was a liberal one upon the part of the city and that there is nothing inequitable in the assessment as finally made.

It has been held that an assessment can not be levied against public property such as this market house was, for street ©r sewer improvements, and we think the case of Mathers v. Norwood, decided by this court and reported in the Court Index ©f February 21, 1910, is decisive of the question raised in this case. In its opinion, by Giffen, P. J., the court says:

"The resolution of the city council ‘that 98 per cent of the whole cost of said sewers should be assessed by the front footage upon all lots and lands bounding and abutting upon said improvements’ was not intended to embrace the strip of ground in the middle of the street which was dedicated for park purposes, because such public property is not liable to assessment for a sewer improvement. Toledo v. Board of Education, 48 Ohio St. 83 [26 N. E. Rep. 403].”

It is contended by counsel for plaintiffs in error that the above case was decided upon the ground that the park in the ©enter of the street in Norwood had natural drainage and was therefore not subject to an assessment for a storm sew.er. It is true that in its finding of facts the court finds such to be the ©ase, but the opinion above quoted shows that the court clearly held that the property was not assessable and was not to be considered in estimating the frontage. In its conclusions of law in the Norwood case the court found that "public property” is not liable to assessment for sewer improvement. Counsel for plaintiffs in error, in their brief, point out that in the resolution and ordinance passed by council, all the lots and lands bounding and abutting upon the improvement were found and determined by council to be "specially benefited by the improvement.” This language, they claim, embraces the market house. We think not. It embraced only such lots and lands as could be assessed for said improvement. The resolution and ordinance were adopted and passed under requirements of law as notice to the owners who were to bear tbeir ratable portion of tbe expense according to the “foot frontage” plan.

The words of tbe ordinance “which said lots and lands are hereby determined to be specially benefited by said improvement” do not change or fix the mode of assessment, and refer only to the lots and lands which can be assessed. The city pays the whole cost for intersections and 50 peí cent of the remainder and in fixing this apportionment, liberal as it appears to be upon the part of the city, the location of the market house in the center of the street was obviously considered.

Judgment affirmed.

Swing and Jones, JJ., concur.


text:
    INJUNCTION — MUNICIPALITIES—RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    July, 1913.]
    Swing, Jones and Jones, JJ.
    Cincinnati Union Stock Yards Co. v. Cincinnati.
    1. Taxpayer’s Suit Barred as to Issue Properly Litigated in Previous Suit Brought by City Solicitor.
    The right of a taxpayer to bring a suit on behalf of a city under Gen. Code 4314 is barred, when the question desired to be raised is one that might properly have been raised and litigated in a previous suit brought by the city solicitor and carried to a final judgment.
    2. Ordinance Relating to Separation of Grades at Street Crossing Railway Tracks Contains one Subject.
    An ordinance relating to a separation of grades at a crossing of a street over railway tracks, passed pursuant to Gen. Code 8864, will be deemed to contain "but one subject within the meaning of Gen. Code 4226, notwithstanding many matters of detail may be involved therein.
    3. Irreparable Damages for Taking Abutters Lands by Conversion of Street into Viaduct to Remove Grade Crossing Determinable in Appropriation Proceedings not in Injunction against Improvement.
    While ail abutting property owner may be greatly inconvenienced by the conversion of a street in front of his property into a viaduct and may lose a portion of his land through appropriation for that purpose, notwithstanding the damage he is about to sustain will be irreparable, yet the fact that he has a compíete remedy by way of compensation deprives him of the rigjtt to an injunction against the carrying forward of the improvement, particularly, since it appears that it will be of great benefit to the community at large.
    Appeal from common pleas court.

      Paxton, Warrington & Seasongood, for plaintiff.

      ■ Harmon, Colston, Goldsmith & Hoadly, for B. & O. S. W. Ry.

      Stanley Merrell, for city.
   JONES, O. B., J.

This case is a suit brought by plaintiff in the dual capacity as a taxpayer of the city of Cincinnati on behalf of said city, and as an individual. The suit is to enjoin the city from proceeding under ordinance 141 providing for the separation of grades at the intersection of Hopple street and the tracks of the Baltimore & Ohio Southwestern Railroad.

The court is of the opinion that the right of the plaintiff to proceed on behalf of the city as a taxpayer is barred by the suit brought by the city of Cincinnati by its city solicitor in case No. 150293 and the judgment therein. See Thoms v. Greenwood, 6 Dec. Re. 630 (7 Am. L. Rec. 320).

“Where the solicitor of a city prosecutes under Sec, 159 of the municipal code, an action to final judgment, no taxpayer of the corporation has. the right to maintain any action for the same cause, but all become bound by the judgment finally rendered in such case. All questions and matters involved in the determination of such suit, or that could or might have been raised thereby, are concluded and finally settled by the judgment rendered in said case as to all persons whomsoever, the same being res adjudícala. ’ ’

The questions raised in the suit referred to above were the validity of the same ordinance that is here attacked and the rights of the city to proceed thereunder. And while the point made and particularly relied upon by the plaintiff in that case was that money had not been certified to be in the treasury under the provisions of Gen. Code 3806, still all other questions that are raised in this case by plaintiff in its capacity as a taxpayer could have been raised and litigated in that case and should have been there considered. Covington & C. Bridge Co. v. Sargent, 27 Ohio St. 233; Hixson v. Ogg, 53 Ohio St. 361 [42 N. E. Rep. 32]; Strangward v. Bedstead Co. 82 Ohio St. 121 [91 N. E. Rep. 988].

In the last case the second proposition of the syllabus is as follows:

“When a matter has been finally determined in an action between the same parties by a competent tribunal, the judgment is conclusive, not only as to what was determined, but also as to every other question which might properly have been litigated in the ease.”

It therefore becomes a question as to the rights of the plaintiff suing as the owner of property abutting upon said improvement in its individual right, and not on behalf of the city of Cincinnati, to enjoin the doing of the work under said ordinance. Plaintiff relies upon the case of the P. C. C. & St. L. Ry. v. Greenville, 69 Ohio St. 487 [69 N. E. Rep. 976], as showing a right in every instance in a property owner to inquire into the regularity and validity of the proceedings for appropriation in an independent suit before the heating of appropriation proceedings can be had. We do not think that the decision in this case would apply to an individual owner of property in all cases. The question there decided was whether a railroad company, which was exercising necessary public functions and had power of eminent domain for such purpose, could have its tracks interfered with by the extension of streets across same, where it could show that necessity did not require it.

While the business of the plaintiff in this case in carrying on its stockyard is an important business to the community, and the interference may be very hurtful to the business and may require heavy damages paid by the city under such appropriation proceedings, still it possesses no power of eminent domain and does not perform such public functions as would permit it to prevent the extension of a street or public way across or along its property after full compensation for same had been determined and paid. We seriously question, therefore, whether as such property owner, in advance of the hearing of the appropriation proceedings, it would have a right to enjoin. As an owner of abutting property, however, it has a peculiar interest in the street which is to be changed by these proceedings and a part of which is to vacated. We have considered fully therefore, the reasons presented by it why an injunction should issue.

Ordinance 141 involves the consideration of many questions, but all of the matters embraced within it relate to the subject of the separation of grades at the intersection of Hopple street and the railroad, and the ordinance therefore does not violate Gen. Code 4226, which provides that:

“No ordinance, resolution or by-law shall contain more than one subject, which shall be clearly expressed in its title.”

The title is sufficiently broad to include all of the provisions of the ordinance, and the requirement of the statute is not to be determined by its form but rather in the light of the mischief the statute was intended to prevent. Heffner v. Toledo, 75 Ohio St. 413 [80 N. E. Rep. 8].

The objection made that the city intends to build the viaduct sixty feet wide, while the present street grade crossing is only forty feet in width, and that the railroad company is only required .to pay 50 per cent of what the cost would be if the city had constructed a forty foot viaduct instead of the one provided for, is a question with which the plaintiff can not be concerned except in its capacity as a taxpayer, and that we have already shown can not be pressed by it in this case. But the court is of the opinion that the provision made by the city is all that can be insisted upon by it under the provisions of the law as it existed at the inception of this improvement. To enforce the sharing of the cost by the railroad company of the completed viaduct sixty feet in width would first require that the present grade crossing be widened to a sixty foot crossing, before it could be abolished and replaced by a sixty foot viaduct. This would require the outlay and expense of condemnation to first provide for the wider grade crossing, and then would require that all of the proceedings be started again, de novo, to provide for the sixty foot viaduct. Whether or not the time and the expense involved would be repaid by the increased contribution thus to be levied upon the railroad company is a practical question of administration that is addressed to the legislative and executive officers of the city rather than to the courts. They have, as we think, properly acted upon this question within their powers, and if they have the right by the process we have indicated to build a sixty foot viaduct by first widening the crossing, it would clearly seem that they had the right to build the wider viaduct as proposed in abandoning the present crossing.

The testimony showed that the plaintiff will be greatly inconvenienced in its business by the new improvement, but sueh inconvenience and damage can all be compensated for in money and will all be taken into consideration by the court in the appropriation proceedings, and while the damage is claimed in this proceeding to be irreparable, after all it becpmes merely a question of compensation to be determined in the appropriation proceedings and does not authorize plaintiff to interfere with an improvement which is of great importance to the municipality and its citizens and which, planned as it is to protect and save human life, should not he delayed when plaintiff has a complete and adequate remedy for all damages to be suffered by it, in appropriation proceedings.

The relief prayed for by plaintiff will therefore be denied, and the petition dismissed at its costs.

Swing and Jones, JJ., concur.


author: PER CURIAM.

text:
    GAS COMPANIES — MUNICIPAL CORPORATIONS.
    Scking (5tb) Circuit Court,
    March Term, 1911.]
    Voorhees, Shields and Powell, JJ.

      Granville (Vil.) v. Crawford Nat. Gas & Fuel Co.
    Í. Petition Seeking to Enjoin Gas Company from Charging Higher Price for Gas than New Price Arbitrarily Fixed by Council is Demurrable.
    Demurrer lies to the petition of a municipality to enjoin a gas company, after the exercise of its franchise for ten years, from charging prices to consumers in excess of the maximum metered and flat rate prices fixed by ordinance for the ensuing term and from shutting off gas to consumers refusing to pay the minimum metered only rate declared by the company.
    ' "swer Denying Passage of Ordinance Pleaded and Asserting invalidity thereof not Demurrable.
    An answer of a gas company, denying knowledge of the due and legal passage of an ordinance fixing the price of gas other than averred in the petition, admitting notice of the passage of said ordinance but averring its nonacceptance and repudiation of the terms and conditions thereof and its giving notice to the municipality of its rejection of the ordinance, and alleging the invalidity of the ordinance, is not demurrable.
    [Syllabus approved by the court.]
    Appeal from common pleas court.

      A. A. Stasel, for plaintiff.

      L. B. Denning and W. II. Thompson, for defendant.

      Reversing, on appeal, Granville v. Gas & Fuel Co. 23 Dec. 694.

   PER CURIAM.

The plaintiff filed its petition in the court of common pleas, alleging that it is an incorporated village of the state of Ohio; that the defendant is a corporation, doing business in Ohio in the way of furnishing natural gas for fuel and light to the village of Granville and its inhabitants aforesaid, by virtue of a franchise granted by the council of said village to the defendant company on June 7, 1898. That by the ordinance granting such franchise, there was granted to the defendant company the right and privilege of laying pipes through the streets of said village for the purpose of supplying and conveying gas to the inhabitants of the village for the period, of 25 years. Said ordinance further provided that, for ten years from the passage of the same, the defendant should have the right to charge the consumers of gas twenty-five cents per thousand cubic feet, meter measurement.

Said period of ten years having expired, the plaintiff by its council, duly and legally passed an ordinance on June 2, 1908, fixing the price which said defendant might be allowed to charge for gas furnished said village, and its inhabitants, at the rate of fifteen cents per thousand cubic feet, and which price should prevail, by the terms of said ordinance, for the period of ten years, the defendant to supply meters to all who desired gas at meter measurement. S-aid ordinance further provided that the consumer should have the option to take gas at either meter measurement or flat rate, and fixed the flat rate for the price of gas which the defendant company should be allowed to charge, and which rate was that it should not charge more than five cents per month for each gas light; for a cooking stove in private house, $2 a month from October 1st to May 1st of each year, and $1.50 a month for the period of the year from May 1st to October 1st; for each heating-stove, grate or fire-place used in a private family, $2.50 per month from October 1st to May 1st of .each year, for each furnace, hot mater, steam, or hot air apparatus in private family, $7 per month from October 1st to May 1st, of each year.

Said petition also avers that said prices so fixed are reasonable. That the defendant operating under said ordinance, notified the inhabitants of said village that on and after a certain date named, the price for gas will be twenty-two cents per thousand cubic feet, and that unless this price, is paid by the people of the said village the defendant will stop the supply and refuse to furnish gas at any less rate or price, and that said company intends to make the price for all gas furnished on and after the date named, to-wit: November 1, 1910, the sum of twenty-two cents per thousand cubic feet and no less. That unless restrained by the court, the consumers of gas furnished by the defendant will be required to pay twenty-two cents per thousand cubic feet, contrary to the provisions of such ordinance.

It'further alleges that the defendant company, contrary to the provisions of said ordinance, will refuse to furnish gas to the inhabitants of said village other than at meter rate, and refuses and will refuse to furnish gas at the rates provided in said ordinance, commonly called flat rates, or rates by the month with certain appliances.

- The plaintiff prays for an injunction restraining the defendant from charging prices in excess of the amount fixed by said ordinance to either the village of Granville or to the inhabitants thereof, and from refusing to furnish gas other than by meter and at meter rates.

It further asks that defendant be restrained from shutting off the supply of gas to the village or the inhabitants of said village in the event that persons refuse to pay the price in excess of the price fixed by said ordinance.

A temporary injunction was allowed on said petition, to which a demurrer was filed. The demurrer, on hearing, was overruled, to which exceptions were noted.

The defendant filed its answer, iu which it admitted the corporate capacity of the plaintiff and the defendant, as alleged in the petition. It also admitted the passage of the ordinance of June 7, 1898, and that, by said ordinance, it acquired the privilege of laying its pipes through the streets and alleys of said village for the purpose of supplying natural gas to the inhabitants of said village for the period of 25 years. The provisions of said ordinance as to the price to be charged consumers were admitted. It admits the acceptance of said ordinance, and that it has been doing business in said village under the terms thereof. The answer further alleges that the defendant had no knowledge of the due and legal passage of the ordinance of June 2, 1908, other than the averments contained in the petition, and denies the same.

It admits that it was notified of the alleged passage of said ordinance, but avers that it never accepted the terms and conditions of the same, but on the contrary, expressly repudiated said ordinance, and notified the plaintiff of its refusal to accept under said ordinance immediately after the notice of the alleged passage thereof had been given.

For a second defense, the defendant adopts the averments of its first defense, and alleges that said ordinance of June 2? 1908, is contrary to and in violation of Art. 2, Sec. 1, of the bill of rights, constitution of the state of Ohio, and, for this reason, Is null and void.

For a third defense, the defendant adopts the averments of the first defense, and says that the said alleged ordinance of June 2, 1908, is contrary to and in violation of Art. 1, See. 19, of the bill of rights, constitution of the state of Ohio, and is therefore null and void, and of no effect for the reason that it is a taking of private property without process of law.

For a fourth defense, it adopts the averments of the first defense, and says that the alleged ordinance of June 2, 1908, is contrary to and in violation of Art. 14, See. l,.of the amendments to the constitution of the United States of America and is-therefore null and void, and of no effect, for the reason that it. is a denial to this defendant of the equal protection of the laws,, in that it attempts to compel the defendant company to furnish, gas in a manner and at a price entirely at the option of the; consumer, without the consent of the defendant thereto.

To this answer a demurrer was filed by the plaintiff, and, on hearing, the demurrer was sustained.

The defendant then came to this court by appeal, and a motion has been filed in this court to dissolve the injunction allowed in the court of common pleas.

The motion is based upon the following grounds:

1st. That the plaintiff has not legal capacity to maintain the action as brought.

2nd. The facts set forth in said petition are insufficient in. law to entitle plaintiff to the relief sought by way of injunction..

It will be observed that the motion is, in effect, a demurrer.,

The cause comes on to be heard in this court on said appeal. On consideration whereof, the court is of the opinion that the demurrer to the answer should be overruled.

And coming on further to be heard upon demurrer to the petition, the court is of opinion that said demurrer is well taken, and should be sustained.

The injunction heretofore allowed is dissolved, and the petition of the plaintiff dismissed, with costs.

A motion for a new trial is overruled, and exceptions.


text:
    AUTOMOBILES — DEATH.
    [Hamilton (1st) Court of Appeals,
    July 23, 1913.]
    Swing, Jones and Jones, JJ.
    Samuel Shott, Admr. v. Edna Farrin Korn, et al.
    Owner of Automobile not Liable for Death of Pedestrian Killed While Crossing Street at Intersection with Automobile in Full View.
    An owner of an automobile is not liable for the death of a pedestrian, killed while attempting to cross a well lighted street intersection at night, in front of a rapidly approaching automobile, in full view and with lights brightly burning; hence, in an action for wrongful death against such owner a verdict for defendant is properly instructed.'
    Error to Cincinnati superior court.

      Horace A. Reeve and Joseph L. Meyer, for plaintiff in error.

      Worthington & Strong and Albert Bettinger, for defendant in error.
   SWING, J.

This case is here on error to the judgment of the superior court of Cincinnati. In that court it was an action for the wrongful death of Benjamin Shott. The trial court at the conclusion of plaintiff’s testimony on motion of the defendants directed the jury to return a verdict for the defendants.

The accident occurred at 8:37 o ’clock on the evening of May 5, 1912. Benjamin Shott was killed by being struck by an electric automobile, the property of Edna Farrin Korn, at the intersection of Rockdale avenue and Reading road in this city. Shortly before the accident it had been raining, but it was not raining at the time. The automobile was coming south of Reading road and the decedent, Shott, was preparing to cross Reading road from east to west. The automobile had its lights burning- and the street at that point was lighted by electric lights, so that Shott could have seen the automobile and the driver of the automobile could have seen Shott. There were no obstructions in the street. One witness alone saw the accident; this was Mr. Downing who was standing at the intersection of the two streets. He testified:

“I saw a pedestrian half across the street and a machine coming from the northern intersection of Rockdale and Reading road. I paid only casual attention to it at the time, but when T saw neither the pedestrian nor the machine slacken of course that was a realization that there was an accident imminent. I didn’t see the actual contact of the machine and the body because of the automobile, the machine coming between my line of vision and the decedent, but I heard hiiú strike the ground. I judge the car ran in the neighborhood of seventy-five or eighty feet after striking the man.”

Downing further says:

“Well, he was crossing the street from the east to the west. I thought he hesitated, and when I first saw the machine T judged he was waiting for the car to pass. I saw Mr. Shott and the machine probably at the same time. Upon Rearing the bell I thought he slackened his pace, but barely paused to let the machine go by, and afterwards he continued, to go across the street.”

From the evidence it seems clear to us that Shott was guilty of contributory negligence, and that his death was caused by it. The machine was in plain view for quite a distance before he started to cross the street. There was nothing to obstruct this view, and there was nothing to distract his mind or prevent him from exercising the prudence which he should have exercised in looking for approaching vehicles when about to cross the street. He seems to have deliberately walked in front of the approaching machine. And under the evidence we think the court was justified in directing the jury to return a verdict for the defendants. The facts were really not in dispute and it became a question of law for the court. ■

There are other questions in the ease, but with this view that we have taken the other matters are immaterial and it is not necessary to consider them.

Jones and Jones, JJ., concur.