text:
    NEQLICENCE — STREET RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    April 29, 1908.]
    Marvin, Winch and Henry, JJ.
    Cleveland & Southwestern Trac. Co. v. James E. Fauver.
    Contributory Negligence of Driver in Collision Between Street Car and Vehicle, Question for Jury.
    It is for the jury to say whether the driver of a vehicle in driving along side of a street car track on a public street, was contribu-torily negligent in driving too close to the track.
    [Syllabus by the court.]
   WINCH, J.

By the consideration of. the common pleas court defendant in error recovered a judgment against plaintiff in error in the sum of $500 for personal injuries received in a rear end collision on Lake avenue, in the city of Elyria, between the car of plaintiff in error and the delivery wagon of defendant in error.

The accident happened about 4 o’clock on the afternoon of May 16, 1906.

The car and wagon were both going in the same direction, the wagon at about eight miles per hour and the car at from ten miles, as testified by the motorman, to twenty-five miles, as testified by other witnesses.

The petition alleges “that the defendant was negligent in running and operating its said car at said high rate of speed (twenty-fiv¡e miles per hour) on said Lake avenue, in said city of Elyria, and in approaching said plaintiff without warning while so running its said car at said high rate of speed.”

The ear tracks are on Lake avenue, about fifteen feet from the easterly curb. Lake avenue extends in a nearly northerly direction from the Lake Shore tracks about 2,000 feet to West street, where it turns in an oblique angle to the northwest. Lodi street comes in from the southwest at West street and joins with Lake avenue at an angle even more oblique than that formed by the two parts of Lake avenue, so that forks are formed at West street. The latter street crosses Lake avenue on a course due east and west. Evidently the two vehicles were approaching the forks of the road at about the same time.

When Fauver was within seventy feet of the track, where it is crossed by West street, he looked back to see if a car was coming. He could see 200 feet along back to the track on Lake avenue and saw no car. He proceeded northwesterly along the easterly side of Lake avenue, beeping in the beaten track, and when he had gone from 40 to 120 feet, just as he was turning around a mud hole, the car came up from behind, without warning struck the rear wheel of his wagon, upset it and threw him out, injuring him, as the jury found, in the manner claimed in the petition.

It appears from the evidence of both parties that Lake avenue was in a very bad condition, full of mudholes in and out among which the traveled road wound, many places coming so close to the track as to leave no room for a car to pass, if a vehicle was on the traveled road.

This condition of the road was well known to the motorman and was perfectly apparent to him at the time of the accident, so that the jury might well have found, as it necessarily did, that the motorman was negligent in running into the wagon without warning, for according to his own testimony, he saw the wagon for some time before he struck it, and at first thought it might cross at West street, and slowed down to give it a chance to do so.

The serious legal proposition in the case is the question whether the man on the wagon was guilty of contributory negligence in not looking back just before he drove around the mud-hole, which brought him too close to the track. This question was submitted to the jury under proper instructions. Bemem-bering that Fauver had looked back not more than ten seconds before he was struck (for that time is figured out from the distance he traveled and the speed he was driving), a majority of the court is not willing to say that the jury was clearly wrong in finding Fauver guiltless of contributory negligence.

With the numerous mudholes there were on this street, Fauver could not have driven along it without looking back nearly every second, if it was his duty to look back at each mud-hole. In other words, we conceive the situation on this road to be such that in driving along it the same rules are to be applied as if Fauver had driven onto the track itself at West street. having first looked back to see if a ear was coming, and had kept on the track until struck, without looking back again during the time which elapsed in this case.

We are aware that the conclusion is not warranted by the opinion delivered by Judge Davis in the case of Drown v. Traction Co. 76 Ohio St. 234 [81 N. E. Rep. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. Rep. 844], but are not disposed to apply the reasoning of that opinion to the facts of this ease.

Drown turned out in the night season around a temporary obstruction, a wagon standing at the curb, of which the motorman had no notice. In this case the motorman knew the condition of the road and saw Fauver’s position and the whole situation. He should have expected Fauver to do just what he did do and we hesitate to say that Fauver, as a matter of law, was guilty of contributory negligence in failing to look back more than once.

We have examined all the errors alleged to have occurred at the trial but find none prejudicial to plaintiff in error. A majority of the court being of the opinion herein expressed, the judgment is affirmed.

Marvin, J., concurs.

Henry, J., dissents.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    MUNICIPAL CORPORATIONS — STREETS.
    [Cuyahoga (8th) Circuit Court,
    December 9, 1907].
    Marvin, Winch and Henry, JJ.
    William P. Herig et al v. Cleveland (City).
    One Voluntarily Using Street Having Knowledge of Defect Assumes Risk.
    One who, with knowledge of a defect or obstruction in a city street, voluntarily assumes the risk and ventures upon the obstruction, can not make the city respond in damages.
    [Syllabus by the court.]
    Error.

      J. J. McCormick, for plaintiffs in error.

      N. D. Baker, for defendant in error.
   WINCH, J.

The driver of plaintiff’s team and a high furniture wagon was driving westerly on Summer street in the city of Cleveland on May 28, 1904, when he came to an excavation in the middle of the street made by the city, which was about six feet wide and seven feet long. This excavation was protected on the northerly side by sheeting or piling which averaged about two feet in height. On its easterly end, toward which the driver was approaching, dirt thrown out was about three or four feet high. The distance between the excavation and the curb of the street on the northerly side, was seven feet and four inches. Paving stones taken from the excavation were piled on the curb to the north. A few of these stones had fallen over into the street. Everything connected with the hole and the entire situation was in plain view to. the driver from his elevated seat. He decided to drive past the excavation on its northerly side. While doing so, a piece of paper blew up in the street just in front of his horses and frightened them, so that they either backed in such a manner that the nigh horse was cast into the hole, or the off horse, stumbling on said loose paving stones, crowded the other horse into the excavation before the driver could get his team under control. The horse which fell into the excavation was badly injured, and for his loss the plaintiffs brought their action against the city. The trial judge directed a verdict for the defendant.

In this we think there was no error. One who with knowledge of a defect or obstruction voluntarily assumes the risk-and ventures upon the obstruction can not make the city respond in damages. Schaefler v. Sandusky, 33 Ohio St. 246 [31 Am. Rep. 533]; Conneaut v. Naef, 54 Ohio St. 529 [44 N. E. Rep. 236]; Norwalk v. Tuttle, 73 Ohio St. 242 [76 N. E. Rep. 617],

Nor was there any merit in the motion for a new trial on the ground of newly-discovered evidence, for the affidavit accompanying it shows no new evidence, or any that could not have been discovered by the exercise of ordinary diligence. Further if the so-called new evidence had been presented it would have made no difference in the verdict.

Judgment affirmed.

Marvin and Henry, JJ., concur.


author: KINDER, J.

text:
    BANKRUPTCY — JUDGMENTS AND DECREES.
    [Crawford (3d) Court of Appeals,
    March, 1915.]
    Crow, Ansberry and Kinder, JJ.
    J. S. Morrow v. Jacob Pfleiderer et al.
    1. Discharge In Bankruptcy Bars Remedy Including Revivor of Judg. ment.
    While a discharge in bankruptcy does not extinguish the debt, it does bar the remedy, and may be pleaded in any action or proceeding in which the debt is asserted or is sought to be made the basis of a recovery, including a proceeding to revive a judgment.
    2. Conclusiveness of Judgment as to Discharge in Bankruptcy.
    The Tecord of a judgment is conclusive of its character as a claim, for the purpose of determining whether it is within the exceptions from the bar of a discharge in bankruptcy, provided in Sec. 17 Bankruptcy Act as amended in 1903; hence, a creditor who seeks a revivor of a judgment rendered on a promissory nóte can not, upon the interposition of a plea of discharge in bankruptcy, for the purpose of bringing the judgment within said exceptions, under a pleading to that effect dispute or explain the record by proof aliunde that the note was given for property obtained by the judgment debtor from such creditor by false and fraudulent representations.
    Error.

      Crow & Donifhen, for plaintiff in error.

      Beer & Leuthold, for defendant in error.
   KINDER, J.

This proceeding in error is brought to procure the reversal of a judgment of revivor obtained by tbe defendants in error against the plaintiff in error by the consideration of the court of common pleas of Crawford county.

Hereafter the defendants in error will be' referred to as the plaintiffs, and the plaintiff in error as defendant.

The plaintiffs filed their petition under the statute, alleging the recovery of a judgment by the plaintiff Jacob Pfleiderer against the defendant; the assignment by said plaintiff of an undivided three-fourths interest therein to the other plaintiffs; that the judgment had become dormant: and prayed a judgment of revivor.

The amended answer o£ tbe defendant, J. S. Morrow, alleged that in a proceeding in this district court of tbe United States for tbe northern district of' Obio, western division, in bankruptcy, be was adjudged a bankrupt; that the judgment sought to be revived was, in said proceeding, duly scheduled, proven and allowed; and that in said proceeding upon bis petition it was duly adjudged that be, tbe said J. S. Morrow, was entitled to discharge from all bis debts, including tbe judgment sought to be revived; and that a certificate of discharge in bankruptcy was duly issued to him.

Tbe plaintiffs, by way of reply to tbe amended answer, averred that tbe judgment sought to be revived was secured on a debt which arose and was created by tbe transfer by tbe plaintiffs of certain- of their personal property to tbe said J. S. Morrow by reason of certain false and fraudulent pretenses and representations, knowingly and wilfully made by the said defendant to tbe plaintiffs, relative to the amount of real and personal property then owned and possessed by the said Morrow for tbe purpose of obtaining credit, which fraudulent representations are set forth in detail in said reply.

Wherefore they further aver that the said debt was not discharged, but is still a valid and subsisting liability of the said J. S. Morrow.

On these issues the case was tried and submitted to the court, and resulted in a judgment of revivor as prayed for in the petition.

Two grounds of error are set forth in the motion for new trial, which was overruled, and in the petition in error it is claimed:

First, that the judgment of revivor is not supported by, and is contrary to, the evidence.

Second, that the judgment is contrary to law.

At the trial, the plaintiffs offered a complete record of the case in which the judgment sought to be revived was entered, together with the assignment of a three-fourths interest therein to the plaintiffs other than Jacob Pfleiderer.

The defendant, J. C. Morrow, offered in evidence a certified copy of his discharge in bankruptcy. And thereupon, without objection by tbe defendant, tbe plaintiffs offered evidence tending to support tbe averments of tbe reply touching tbe sale of certain property by tbe plaintiffs to tbe defendant, J. S. Morrow; and that said J. S. Morrow made certain representations touching property owned by him at tbe date of such sale, to obtain credit from tbe plaintiffs; that such statements were false and fraudulent; that tbe said J. S. Morrow was at tbe time an infant and executed bis promissory note for such property then by him so purchased; and that afterwards, and before the maturity of said note, tbe said defendant became of age and married, and when said note became due, the note upon which the judgment sought to be revived was taken was executed by the said J. S. Morrow, his wife, Jessie Morrow, joining with him therein.

The questions presented by the record and in the briefs in this case are:

First, is a plea of discharge in bankruptcy available in a proceeding to revive a judgment? And,

Second, are the plaintiffs entitled to a revivor of the judgment notwithstanding the defendant’s discharge in bankruptcy?

This involves a consideration of Sec. 17 Bankruptcy Act of 1898 as amended in 1903, which, so far as it affects the case at bar, provides that:

“A discharge in bankruptcy shall release a bankrupt from all his provable debts except such as are * * * (2) liabilities for obtaining property by false pretenses or false representations,” etc.

That a plea of discharge is available as a bar in a proceeding to revive a judgment has been repeatedly decided by the courts of other states and was recognized in our state in Newshuler v. Maule, 6 Circ. Dec. 806 (10 R. 232).

The record of the case in which the judgment sought to be revived was rendered, discloses that the action was upon a promissory note with a warrant of attorney annexed, with no hint of fraud or false representations upon the part of the defendant contained in the petition; and that the judgment was entered by confession, as authorized by said warrant of attorney.

Is the record of the judgment conclusive of the character of the claim upon which such judgment is based for the purpose of determining whether it is within the exceptions from discharge in bankruptcy provided by Sec. 17 Bankruptcy Act as amended in 1903 ? Or,

May a creditor, as was done in this case, upon a plea of discharge in bankruptcy for the purpose of bringing the claim within such exceptions, by pleading to that effect, dispute or explain the record by proof that the note was given for property obtained by the judgment debtor from such creditor by false and fraudulent representations?

The first of these questions must be answered in the affirmative and the latter in the negative.

These questions have been raised and determined under each of the U. S. Bankruptcy Acts of 1867 and 1898 and under the amendment of 1903.

The decisions are numerous and a few only will be cited.

In the case of Forsyth v. Vehmeyer, 176 Ill. 359 (52 N. E. 55), it was held that the question whether a judgment sought to be enforced against a discharged bankrupt was rendered for fraud committed by the defendant must be determined by the court from the record; that said judgment was conclusive and that evidence would not be received to dispute the record.

This case was affirmed by the United States Supreme Court, Forsyth v. Vehmeyer, 177 U. S. 177 [20 Sup. Ct. Rep. 623; 44 L. Ed. 723],

To the same effect is the case of Hargadine-M’Kittrick Dry Goods Co. v. Hudson, 111 Fed. 361, affirmed in 122 Fed. 232.

In the case of Harrington v. Herman, 172 Mo. 344 [72 S. W. 546; 60 L. R. A. 885], which, like the case at bar, was an action to revive a judgment rendered upon promissory notes, the Supreme Court of Missouri held that the record of the judgment was conclusive and that a judgment creditor could not, by reply to an answer averring discharge in bankruptcy, and evidence offered thereunder, go behind the judgment and prove that the claim upon which the judgment was based was in fact for fraud and misrepresentation.

The foregoing authorities are all either under the act of 1867 or the act of 1898, prior to the amendment of 1903.

It is insisted by the defendants in error that under the amendment of 1903 there is such a radical change in the statute as to make these eases inapplicable ; and in support thereof our attention is called to the case of Thompson v. Judy, 169 Fed. 553 [95 C. C. A. 55; 22 Am. Bankr. 154], and the case of Peters v. United States, 177 Fed. 885 [101 C. C. A. 99; 24 Am. Bankr. 206].

The question under consideration in the case of Thompson v. Judy was, whether after the change by the amendment of 1903 in the language of the statute from “judgments in actions for fraud or for obtaining property by false pretenses or false representations” to the language of the amendment “liabilities for obtaining property by false pretenses or false representations,” a judgment for fraud was still within the operation of Sec. 17 making the exception, and the court in that case held, that the merger of the claim in a judgment did not destroy the character of the claim as one for fraud, but that looking to the record, the court would ascertain whether the claim represented by the judgment was in fact a liability of the character indicated under the amendment of 1903 as exempt from discharge.

The case of Peters v. United States, supra, also a case under the amendment of 1903, reversed the case of United States v. Peters, 166 Fed. 613 [22 Am. Bankr. 177], in which case the court received evidence touching the merits of the original case, to dispute the record of the judgment, and held that the case was not within the exception as provided in the amended act of 1903.

The reviewing court, in substance, held that this was improper, and, looking to the record of the judgment alone, decided that the judgment there under review was within the exception.

In this case it was found that the trial court was in error for two reasons:

First, that it could not, under a habeas corpus proceeding, review the judgment either as to errors or upon its merits; and,

Second, that the judgment of the court under consideration, was conclusive.

Attention is also called to the case of Strauch v. Flynn, 108 Minn. 313 [122 N. W. 320; 22 Am. Bankr. 246], in which it is held by the supreme court of Minnesota that in an action upon a promissory note in which a discharge in bankruptcy is plead, the plaintiff could not, by reply, and evidence thereunder, show that the money was loaned on a promissory note by reason of the false representations of the party executing the note and so bring the claim within the exceptions under the amendment of 1903.

This, of course, is aside from the question of the conclusiveness of the judgment.

The judgment of the court of common pleas is contrary to law and reversed as to the plaintiff in error, J. S. Morrow.

Crow and Kinder, JJ., concur.


author: JONES (E0 H.), J.

text:
    JUDGMENTS — QUIET TITLE — TAXES.
    [Hamilton (1st) Court of Appeals,
    February 15, 1915.]
    Jones, Jones and Gorman, JJ.
    The City of Cincinnati v. R. J. Archiable.
    1. Defense Must be Shown before a Default Judgment Can be Set Aside during Term.
    A trial judge is without discretion, In the face of a rule of court and the provision of Sec. 11637 G. C. to set aside a default Judgment, even during the term at which it was rendered, without first requiring the defendant to show a valid defense and forthwith set it up before an order is made setting the judgment aside.
    2. Recovery of Taxes and Penalties Paid bv One Who Purchased Property at Tax Sale.
    Title may be quieted against a purchaser of land at a tax sale without requiring that the plaintiff first pay over the amount which the defendant has advanced by way of taxes and penalty, but the decree should provide for the amount so advanced by the defendant with interest for which the law gives him a lien.
    ERROR.

      Walter M. ScJioenle and Saul Zielonka, City Solicitors, for plaintiff in error.

      William S. Little, for defendant in error.
   JONES (E0 H.), J.

On October 25, 1911, tbe plaintiff in error, the city o£ Cincinnati, commenced an action against the defendant to quiet the title to certain real estate at the corner of Erie avenue and Michigan avenue in said city, and which was the property known and used as the' town hall of Hyde Park, before the suburb was annexed to the city of Cincinnati. Defendant was duly and legally served personally, and on the answer day through his counsel he filed a demurrer to the petition, which was overruled on December 4, 1911, and he was given fifteen days to plead further. No answer or plea having been filed for five months, the plaintiff’s solicitor caused the case to be noted on the default docket and in due course of time on May 28, 1912, a default decree was entered by the court in favor of the city of Cincinnati, quieting its title to the property described in the petition as against the defendant. Eleven days thereafter, on June 8, 1912, defendant’s counsel filed a motion to vacate and set aside the decree, alleging irregularity in entering the same; that the decree is contrary to law; and that plaintiff has not refunded to the defendant the amount of taxes and penalties and costs paid by the defendant, with interest thereon, as in the petition alleged. The claim of defendant, although no answer set up the same, appears to have been one for taxes and penalties paid, which were a lien upon the property and for the non-payment of which the property had been forfeited to the state. On June 26 the court made the following entry:

“The motion to set aside the decree quieting title is heard and granted, and the decree entered May 28, 1912, is hereby set aside and held for naught, to which the plaintiff excepts. ’ ’

Thereupon plaintiff below prosecuted error to the court and asks a reversal of the judgment of the court of common pleas setting aside the decree quieting title to the real estate claimed by it in its petition. Plaintiff in error, the city of Cincinnati, in its petition in error claims that said judgment is contrary to law, was entered contrary to the rules of the court of common pleas, especially the rule relating to setting aside defaults, being Bule 6; and that in setting aside said decree in the manner and form in which it was done the court below abused, over-Btepped and exceeded its discretion in said matter, to tbe prejudice of the plaintiff in error. A transcript of the docket and journal entries is-filed with the papers herein, and said entry appears to be the last one made in the case.

Now it is undoubtedly the law of the state that a court, during the term at which a judgment or decree is rendered, has inherent power and authority, regardless of the statutes, under the rules of common law, to set aside and modify its judgments and decrees at its discretion. Huntington v. Finch, 3 Ohio St. 445; Knox Co. Bank v. Doty, 9 Ohio St. 505; Niles v. Parks, 49 Ohio St. 370 [34 N. E. 735]; Huber Mfg. Co. v. Sweeney, 57 Ohio St. 169 [48 N. E. 897].

Nowhere under our code is this wholesome rule abrogated, but the rule has been qualified by Sec. 11637 G. C. (formerly Sec. 5360 E. S.), and to the extent that a limitation or qualification is provided under the code we are of the opinion that the courts are bound by the qualification to the rule. That Sec. 11637, which is under Chap. 6, relating to “other relief after judgment,” provides that “a judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action in which the judgment was rendered,” etc.

A default judgment is authorized upon failure to answer, under Sec. 11592 G. C., so that the defendant in this case being in default for answer, the plaintiff was well within its rights and the court was authorized to enter the judgment when it was rendered.

The rule of the common pleas court as to default, which was presumably adopted, to be observed at least by the court, is as follows:

“Defaults, etc. — If a party neglect to file a proper pleading within the time provided by statute or rule of court, he shall be in default, and may be proceeded against accordingly. The clerk shall note the fact of such default on his appearance docket and on the docket of Eoom No. 8.
“The default may be set aside on such terms as the court may think proper, and the court may either order the proper pleading filed forthwith or may give such further time as may seem reasonable to the court. If a judgment has been entered upon the default it shall not be set aside, unless at the same term of court the party against whom the judgment was rendered present and offer to file the proper pleading in the case together with an affidavit of the party or the professional statement of his attorney, reduced to writing, setting forth that there is a meritorious cause of action or defense and the facts showing the nature of it, in which case the court may set aside the default upon such terms as to costs as to the court may seem just, and shall order the pleading, for want of which such default existed, to be filed forthwith.”

The record in this case fails to show a compliance with either the statute, Sec. 11637, or the above rule of court, and the question therefore presented is, whether or not the trial court abused its discretion in setting aside the default judgment, or whether or not he had the power to do so without at least complying with the statute, even if we assume that he might disregard the rule of his own court.

In Braden v. Hoffman, 46 Ohio St. 639 [22 N. E. 930], the Supreme Court, in passing upon the question involved in this case as to the right of the trial court to set aside the default judgment and construing this Sec. 11637 G. C. (then See. 5360 R. S.), says on page 642:

“The record in the case at bar does not show that, before setting aside the judgment, there was an adjudication upon the validity of the defense to the action, and until it was adjudged that there was a valid defense, there was, in our view, no authority in the statute to vacate the judgment.”

With the record before us in the case at bar, it therefore appears that there was no adjudication of any defense or that defendant had a defense at all. There was no offer to file an answer setting up any hind of a defense, but apparently the court arbitrarily and without requiring an answer to be filed set aside the judgment, under the belief that he had the power to do so without requiring anything from the defendant. This court is of the opinion that such proceedings as were had in this ease are not authorized by the statute, and we find numerous authorities to support this conclusion.

In Bradon v. Hoffman, supra, it was held in tbe second paragraph of tbe syllabus:

“Although the court may have decided that there is good ground to vacate on motion such judgment rendered on default, at a preceding term, it is error to vacate the same before it has been adjudged that there is a valid defense to the action; and if, on error, such adjudication is not shown by the record, it will not be presumed.”

It further appears that Sec. 11636 specially provides that the court must try and decide upon the grounds to vacate or modify a judgment or order before trying or deciding upon the validity of the defense or cause of action.

In Follett v. Alexander, 58 Ohio St. 202 [50 N. E. 720], it was held in the third paragraph of the syllabus:

“Upon the hearing of such motion (to set aside a default judgment) it is error for the court to enter a judgment of vacation before it has adjudged that there is a valid defense to tha action. ’ ’

To the same effect is the ruling of the court in Lee v. Benedict, 82 Ohio St. 302 [92 N. E. 492].

In these cases just cited the motion to vacate and the vacation of the judgment were after the. term at which the defaults were rendered. But in the case of Smead Foundry Co. v. Chesborough, 6 Circ. Dec. 670 (18 R. 783), it was held that the same rule and the same Sec. 5360 R. S. (now Sec. 11637 G. C.) should apply where the motion was made to vacate the default judgment within the term at which the default judgment was entered. In the first paragraph of the syllabus of this case it is:

“Held: Therefore, that where an application is made more than three days after judgment, Sec. 5354 R. S. ought to be permitted to apply and govern, although the term had not yet expired.”

On page 672 (785), the court employs this language:

“We recognize the fact that the supreme court has decided that at least under certain circumstances a court of common pleas has control of the judgments that have been rendered in its court during the term, while the term lasts and before final adjournment; but it seems to us that that principle of law must be taken with certain modifications and be construed consistently with tbe statutes which I have read. It certainly could not be intended by the supreme court to hold or decide that the court of eommon pleas may, of its own motion, its own free will, set aside during the term any judgment that may be rendered by that court.”

Sections 5359 and 5360 (now 11636 and 11637) are then cited and quoted, and the court applied the rules therein laid down to the setting aside of a default judgment within the term at which it was rendered, and on pages 672 (785) and 673 (786), says:

“Under our view of the case the first thing to have been done by the court of common pleas in these eases was to have decided upon the grounds to vacate or modify the judgments; and that it did.”

In the case of French Wax Figure Co. v. Jupp-Baxter Co. 12 Circ. Dec. 76 (21 R. 764), the circuit court of Cuyahoga county had before it a case in which error was prosecuted to the judgment of the common pleas court in setting aside a default judgment at the same term in which the default judgment was rendered, and upon motion of the defendant as in the case at bar. It was held in this case that:

“In order to justify the common pleas court in setting aside a default judgment against the defendant and allowing an answer to be filed the defendant must show that he has a good defense to the action, and to do so, otherwise, is a clear abuse of discretion of the court justifying a reversal on error. ’ ’

In this case the court violated its own rule with reference to setting aside defaults as was done in the ease at bar, and the court held that this was an abuse of discretion. However, the rule of the court with reference to setting aside default judgments is the rule laid down with reference to setting aside any judgment in Sec. 11637 G-. C., so that it was just as reasonable to apply the rule of the statute to the conduct of the trial judge as to apply the rule of the court. The rule of court invoked in this case was similar to the rule of the common pleas court of Hamilton county as to default judgments. Com-meriting on the excuses given for failure to plead by the defendant, the court says in this case just cited, on page 766:

‘ ‘ That the excuse given for not filing an answer in time by counsel for defendant, is a very weak one, can not be denied; and the court would have been justified in refusing to set aside the judgment.”

In Fisher v. Foundry Co. 11 Dec. 797 (8 N. P. 314), it was held by the general term of the superior court that the court below erred in vacating the judgment by default absolutely. If that judgment was improperly obtained, the court below should have suspended the same until it has been adjudged there is a valid defense to the action. Citing, Frazier v. Williams, 24 Ohio St. 625; Braden v. Hoffman, 46 Ohio St. 639 [22 N. E. 930.]

Now Sec. 11637 is not made specifically to apply to cases in which it is sought to set aside judgments after the term. The chapter in which it is found applies to the vacating or modifying or relief after judgment. Section 11631 does specifically apply to the vacation of judgments after the term, and points out the mode of doing this. The language of Sec. 11637 applies to any judgment whenever or however rendered. It does not say a judgment shall not be vacated or modified after the term on motion or petition until it is adjudged that there is a valid defense to the action. Now we see no good reason why the limitation upon the court setting aside its judgment during the term should not apply under Sec. 11637, to the same extent as to actions to set them aside after the term, so far as requiring the defendant to show a valid defense. The rule of the common pleas court of this county recognizes the justice of the statutory rule and followed it with reference to default judgments. In any event, we are of the opinion that there was an abuse of discretion in this case by the trial court in setting aside the default judgment in the face of the court’s rule and the rule of Sec. 11637, before requiring the defendant to show a valid defense and then requiring the defense to be forthwith set up and filed before setting aside the judgment.

We think it would be wise to follow the statutory rules laid down by Judge Baldwin of the Wood county common pleas court in the ease of Metzger v. Zeissler, 22 Dec. 63 (13 N. S. 49), when application or motion is made during the term to vacate a judgment, wherein he holds that the provisions of Secs. 11637 and 11638 should be applied.

It is urged by counsel for defendant that the court was justified in setting aside this default decree, because no provision was made therein for the repayment to defendant of the taxes and penalties which he had paid. But if he desired to recover these from the plaintiff he should have set up his claim by way of cross-petition, and upon the issues joined on the cross-petition the court below might have awarded him the sum found due with interest; but he could not as a condition precedent to the quieting of plaintiff’s title require the plaintiff to pay over the money which he claims to have paid out as taxes and penalty.

This proposition we think was decided in the case of Heffern v. Hack, 65 Ohio St. 164 [61 N. E. 703]. In the first paragraph of the syllabus the court says:

“The owner of land, in an action to recover it from one in possession under a void tax deed, is not required by Sec. 2910, Rev. Stat., before he can have judgment rendered in his favor, to refund or tender the taxes paid by the defendant. Such payment or tender may be made after judgment, but it must be made before process is issued on the judgment to turn the defendant out of possession.”

This case differs from the instant ease in that it was an action for the recovery of the real estate, while this is an action to quiet the title.

But under the provisions of Secs. 5766 and 5767 G. C., the law undertakes to secure to a person who has purchased at forfeited tax sale a lien for the amounts paid by him for taxes with interest thereon, and the petition in this ease recognizes such a right and offers to repay defendant for the same. The decree as entered below overlooked this matter, and should have been modified so as to provide for a repayment of the proper amount of such tax claim and interest to him. This can no doubt yet be done by proper proceedings in the court below, or by agreement of the parties.

For the reasons stated, the judgment of the common pleas court setting aside its decree quiting title will be reversed, and the cause remanded for such further proceedings as are authorized by law.

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


author: HENRY, J.

text:
    DAMAGES.
    [Lorain (8th) Circuit Court,
    December 28, 1909.]
    Henry, Winch and Marvin, JJ.
    Cleveland S. & C. Ry. v. Sanford G. Gibson.
    Verdict not Set Aside as Excessive Notwithstanding Court.
    A judgment in a personal injury damage case should not he set . aside because of a claim that the verdict is excessive, simply because the reviewing court is of opinion that it would not have awarded so much, no passion or prejudice on the part of the jury being shown.
   HENRY, J.

This proceeding in error is brought to reverse a judgment obtained by the.defendant in error, Gibson, against- the plaintiff in error, the C. S. W. & C. Railway Co. for damages on account of injuries sustained by the former while a passenger in one of its ears, which came into collision with another of its cars.

Three errors are alleged:

First, that the verdict of $4,500 is so excessive as to be indicative of passion and prejudice on the part of the jury. Th<? bill of exceptions consists largely of testimony of physicians There is a sharp conflict in the evidence, the plaintiff below claiming that his injuries are both varied and permanent, whereas the defendant below contended that he sustained no permanent injuries whatever. A great deal of evidence was also produced to impeach the reputation of the plaintiff below for truth and veracity, inso much that we wonder that the jury nevertheless appeared to give some credence to his testimony. Apart from this,' however, we have examined enough of the medical testimony to see not only that the doctors disagree, but that their diagnoses of Gibson’s injuries are utterly irreconcilable. If the jury believed the testimony of his physicians, as doubtless they did, the verdict should not be reversed as being against the weight of the evidence; it would be simply to embrace the other horn of the dilemma. If we were to require a remittitur it would be upon the theory that the medical testimony on neither side is to be believed, but that the truth lies part way between. The solution of difficulties of this sort is pre-eminently for the jury. We are not permitted to set their verdict aside simply because we would have rendered an opposite verdict, nor yet because the amount of damages is greater than we should have awarded upon the same evidence, but only when we are brought to the conclusion that the jury must have been actuated by passion or prejudice. This we are far from being able to say in the present ease.

The second assignment of error is upon the failure to grant a new trial because the verdict is not only contrary to the weight of the evidence, but because it is not supported by any evidence. The theory of the plaintiff in error is that the accident was due not to its negligence but to an act of God. The negligence, if any, was that of the motorman of the car which collided with the one in which Gibson was a passenger. He was aware that he was approaching the place where he was to meet two cars going in the opposite direction, but when he came near enough to make it necessary to apply his air-brakes he found that they refused to work, and before he had time to take other measures, such as to throw on the power and reverse the motor, the collision occurred. It was afterward discovered that the reason why the air brakes would not work was that a hole had been burned in the air hose line underneath the car, and this in turn was caused by the last of three flashes of lightning which had struck the car a short distance before it came to the scene of the collision. The motorman testified that he was aware of the fact that the car had been thus struck and that he had twice restored the circuit overhead when it was blown out by strokes of lightning. But though he had tried his brakes and found them all right at the B. & 0. crossing, two or three minutes before the accident, he had no knowledge that they had been put out of commission by the lightning stroke thereafter, until it became» too late to prevent the collision.

If the jury believed this story it would undoubtedly have authorized a verdict for the defendant below. The question was put squarely before them by proper, charge of the court. It was in testimony that accidents to the airhose are extremely rare from this cause, but that the motorman might at any time by trying his brake have discovered that it was out of order. Unless the jury were prepared to say from this evidence that it rebuts the presumption of negligence which the law attaches to a collision, to fasten liability upon a common carrier of passengers for damages to a passenger which are caused by such collision, their verdict for the plaintiff below was of course warranted. The motorman’s credibility as a witness was a question for their determination. The accuracy of his memory and recital of the facts was also a question for them to take into consideration. They had, in short, to balance the presumption of law against the excuse which the motorman’s testimony affords. They found that excuse insufficient, either because they did not believe the motorman’s testimony, or because they thought that ordinary care would require him to test his brakes frequently during the electrical storm.

As on the question of the amount of the verdict, already considered, it may be said again here that we are not authorized to reverse a judgment because a contrary verdict might well have been rendered, or even because we should have rendered such contrary verdict had we been in the jury’s place. It is idle to say that there is no evidence to support the verdict, when the presumption of law alone, if unrebutted, would sustain it. It is likewise impossible for us to say that the testimony of the motorman was binding upon the jury and afforded such complete rebuttal of the presumption as to necessitate a judgment against the plaintiff below for failure to sustain a burden of proof that rested upon him.

The third error assigned is newly-discovered evidence reflecting upon the character of the injuries sustained by the defendant in error and upon his veracity. This was, of course, cumulative, and therefore it was within the sound discretion of the court below to determine whether a new trial should he granted because of such additional evidence newly discovered.

Furthermore, we think the court below may well have inferred that the evidence would have been discovered in time to have been produced at the trial, if proper diligence had been used. At all events, we are not authorized to reverse the judgment below because the court failed to grant a new trial upon this ground alone, since we do not find that there was any abuse of his discretion in that regard.

¥e find no error in the record before us and the judgment is affirmed.

Winch and Marvin, JJ., concur:


author: SHIELDS, 3.

text:
    COURTS — PLEADING.
    [Montgomery (2nd) Court of Appeals,
    May 18, 1916.]
    Shields, Powell and Houck, JJ., of the fifth district sitting by designation.

      Miami County et al. v. Deeds et al.
    1. Jurisdiction of the Conservancy Court to Permit Amendment to Petition.
    A conservancy court may permit the filing of an amended petition eliminating territory which was included in an original petition for the establishment of a conservancy district.
    2. Whereby Certain Territory was Eliminated and the Judge Representing That Territory Withdrew from Court.
    Where territory has been eliminated from a conservancy district and a judge representing such territory withdraws, the remaining members of a conservancy court are not divested of jurisdiction.
    [Syllabus by the court.]
    ERROR.

      Frank C. Goodrich., Pros. Atty. of Miami county; D. Finley Mills, Pros. Atty. of Shelby county; Charles F. Ballard, Pros. Atty. of Clark county, and P. R. Taylor, for plaintiffs in error.

      J. A. McMahon and Brown & Frank, for defendants in error.

      Motion to certify record overruled by the Supreme Court Novvember 28, 1916, Miami County v. Deeds, 61 Bull. 389.

   SHIELDS, 3.

A petition in error is filed herein to reverse the judgment of the court below on substantially three grounds:

1. That the court below erred in allowing the plaintiffs below to file an amended petition by eliminating certain territory embraced in the original petition.

2. That said court was without jurisdiction to hear and determine the matters in controversy after Judge Hoover retired from and severed his connection with the court hearing said ease.

3. That the finding of said court establishing the district is based upon insufficient evidence in contemplation of the fact authorizing the organization of conservancy districts in the state of Ohio.

The object of the conservancy act of Ohio is so clearly defined in its title that we find it unnecessary to make any reference thereto, and, its constitutionality having been passed on and upheld by the Supreme Court of this state, it is likewise unnecessary to discuss anything outside of the assignments of error in the petition in error brought upon the record before this court for review.

1. At the threshold of the hearing of the case it appears that “the petitioners filed a motion requesting leave of the court to amend their petition to reduce the size of the proposed district by eliminating Logan county and part of Shelby county, as set forth in said motion, ’ ’ which motion was by the court sustained and leave granted. This action of the court was duly excepted to at the time, and is assigned as error. It is the policy of the law and the practice of courts, in the exercise of a sound discretion, to act liberally upon applications for amendments to pleadings; for, as was held by our own Supreme Court in Snider’s Exrs. v. Young, 72 Ohio St. 494, 509 [74 N. E. 822], quoting from Shamokin Bank v. Street, 16 Ohio St. 110, “the general power of amendment given to the courts by the code is very broad, and is only limited by the ‘justice’ of the case.” The object of the exercise of this discretionary power is too apparent to merit discussion, but if anything was lacking in this respect, as afforded by general statutory authority conferred on courts to grant amendments of this character, the provisions of Section 3 of said conservancy act expressly warrant it. Ordinarily, before trial, amendments are allowed upon oral statements of counsel, when the same do not have the effect of changing the cause or causes of action stated, and, even after trial to conform to the facts proven; and when so allowed before trial the event of the trial demonstrates whether or not such action is or is not wisely taken. Nor do we think that under the inherent authority of the trial court to deal with amendments, any hearing based upon testimony is necessary for this purpose. Here the object of the amendment was to eliminate certain territory embraced in the original petition. The record shows that the motion to amend was duly filed and argued by counsel, and that after ten days thereafter the court allowed the amendment to be made, at which time it appears that an amended petition was filed, issue joined by the refiling of the pleadings and other papers to the petition originally filed, and the case heard on the evidence. It appears that no objection was made to the form of such amended petition at the time of filing, hence such objection afterwards raised will be considered as having been waived, especially in view of the action of the defendants below in refiling their answers to such petition. In thus allowing this amendment we think the court did not abuse its discretionary power, and wé therefore hold that there is no substantial foundation shown for the first allegation of error recited in said petition in error.

2. It was argued that because of the withdrawal of Judge Hoover as a member, said court had no jurisdiction to hear said case, and that its finding establishing a district as a conservancy district is a nullity.

It appears that in conformity with the provisions of the conservancy act the common pleas judges in the counties composing the proposed original district convened at the court house in the city of Dayton, Montgomery county, Ohio, where the original petition for the establishment of a conservancy district was filed. Judge Broderick, a resident of Union county, represented Logan county, which at the time constituted a part of his judicial district; but he was afterwards succeeded on the conservancy court by Judge Hoover, who bad been elected common pleas judge of Logan county under the new constitutional amendment, and who at the time of commencement of the hearing took the place of Judge Broderick. These judges, representing their respective counties, were authorized to sit, and constituted a conservancy court, under See. 6 of said act, which provides:

“In case of a district lying in more than one county, one common pleas judge of each of the counties having land in the district shall sit as a court in the court house where the original petition was filed, to make the findings required by this section and by Sec. 12 herein. A majority of said judges shall be necessary to render a decision. ’ ’

Stating the facts as they actually occurred, as shown by the bill of exceptions, we quote from pages 3 and 4 of said bill of exceptions, which recite the following:

“Be It Remembered, That at the trial of this cause, In the Matter of the Miami Conservancy District, at the April term, A. D. 1915, of the common pleas court of Montgomery county, Ohio, said hearing beginning Thursday, June 24, 1915, before Their Honors, Judge Sprigg of Montgomery county, Judge Wright of Warren count;', Judge Geiger of Clark county, Judge Murphy of Butler county, Judge Kyle of Greene county, Judge Jones of Miami county, Judge Hoover of Logan county, Judge Mathers of Shelby county and Judge Cosgrave of Hamilton county, the following proceedings were had, and the petitioners, to maintain the issues on their part, offered and introduced the following evidence and testimony:
“10 A. m., Thursday, June 24 1915. Hon. Carroll Sprigg, Judge of the common pleas court of Montgomery county, Ohio, presiding.
“A motion was filed by counsel for the city of Troy and the county of Miami asking that the counties of Darke, Auglaize and Champaign be made parties defendant for the reasons stated in the motion filed. Said motion was overruled by the court at the time, and exception noted by counsel for the city of Troy and county of Miami.
“Counsel for the petitioners filed a motion requesting leave of the court to amend their petition to reduce the size of the proposed district by eliminating Logan county and part of Sbelby county, as set forth in said motion. Said motion was argued by counsel on both sides. The motion was then sustained by the court, and exceptions noted by counsel for objectors.
“Thereupon His Honor, Judge Hoover, of Logan county, withdrew as a member of the court.
“Thereupon counsel for Shelby county and Miami county, 3ioted an exception to the court continuing any further.”

The good faith shown in eliminating Logan county from the territory embraced in the original petition appears to find support if not justification, in the evidence, adduced in support of the petition as amended. With the petition before the court as amended, and Logan county no longer in the enumeration of counties “having land in the district,” was Logan county thereafter entitled to representation on said court? Was it then a part of the district to be benefited, and part of the lands occupied by said district to bo held liable to assessments for the construction and maintenance of said proposed improvement ? Under the provisions of See. 6 of said act such a claim would scarcely be made. But it is contended that Judge Hoover, having been a member of the court, could not be deprived of the legal right of sitting as a member thereof by reason of any change in the pleadings in the case. It is apparent that Judge Hoover shared the view that the right of Logan county to be represented on the court rested on its inclusion among the counties to be embraced in the proposed district, “having land in the district”; and when Logan county by said amendment was eliminated from said counties such right of representation ceased and Judge Hoover thereby became disqualified to further participate in the hearing and “withdrew as a member of the court.” Such withdrawal was wholly voluntary and undoubtedly was prompted by a sense of duty under the circumstances. But plaintiffs in error urge that the court as originally constituted having acquired jurisdiction of the ease can not be ousted of such jurisdiction, by amendment of the pleadings. Ordinarily jurisdiction continues when it once attaches, but the fact is not to be lost sight of that the foundation and right of jurisdiction here lies in the qualification imposed by the express terms of said section of said act, namely, that “one common pleas judge of each of the counties having land in the district shall sit as a court.” With Logan county no longer in the case, its elimination, and the voluntary withdrawal of Judge Hoover as a member of the court, in our judgment, could not and did not affect or deprive the remaining members of the court of jurisdiction of the case. Without discussing the question raised by counsel as to the intervening rights of parties to prosecute error herein, we hold that said hearing was had and a decision was reached and rendered by a constitutional majority of such members of the court, that the proceedings of said hearing were regular, and that said judgment of said court so rendered is valid.

3. As to the finding of said court establishing said district, the act conferring as it does jurisdiction on courts of common pleas to establish conservancy districts when the conditions stated in said act are found to exist, and said court in the exercise of such jurisdiction having found such conditions to exist in this case — based upon the facts found from the evidence and applying the provisions of said aet to the facts so found — we have no hesitancy in saying that the action of said court in this respect is warranted both by the evidence and the law.

Finding no error in the record prejudicial to the legal rights of the plaintiffs in error, it follows that the judgment of the court of common pleas will be affirmed.

Judgment affirmed.

Powell and Houck, JJ., concur.


author: ALLREAD, J.

text:
    LIBEL AND SLANDER.
    [Cuyahoga (8th) Court of Appeals,
    1915.]
    (Femedmg, Allreád and Kunkle, of the second district, sitting by designation.)

      Tratnik v. Kalish et al.
    Publication Warning Countryman that Another did “Take” Money from Writer Libelous per se.
    Publication of the following is libelous per se: "An honest man is M. Tratnik, whom I noticed take some money from me and from somebody else. Therefore countrymen beware of him.” [Syllabus by the court.]
    ERROR.

      PL. L. Eastman, for plaintiff in error.

      Patterson & Neiding, for defendant in error.

      Motion to require the Court oí Appeals to certify its record in this ease overruled by the Supreme Court, February 15, 1916.

   ALLREAD, J.

M. Tratnik brought suit in municipal court against Edward Kalish and others, doing busines as the “ Slevelanska-Amerika,” to recover damages for the publication of an article in the Slavonic language, of which the following is an English translation:

“An honest man is M. Tratnik, whom I noticed to take some money from me and from somebody else. Therefore countrymen beware of him.
“Mih Bucar.”

It was averred that the publication was false and malicious and that the intended meaning was that the “plaintiff was a thief, and therefore not a safe man to be trusted by his fellow countrymen.”

There was a verdict and judgment in municipal court for $125 and costs. This judgment was reversed in the court of common pleas: “For the reason, that the statement of claim is not sufficient in law, and is erroneous in refusing to direct a verdict for defendant below. ’ ’

Tbe sufficiency of tbe statement of claim and of tbe evidence depends largely, if not wholly, upon whether tbe publication is libelous per se.

Tbe rule many times announced in Ohio is thus stated in the recent case of Cleveland Leader Printing Co. v. Nethersole, 84 Ohio St. 118 [95 N. E. 735; 23 Ann. Cas. 978]:

“In an action to recover for an alleged libel tbe question whether the publication is or not libelous per se is a question for the court. (Mauk v. Brundage, 68 Ohio St. 89 [67 N. E. 152].) And where the publication is, as matter of law, not libelous per se, and no evidence has been given tending to show special damage, it is the duty of the court to sustain a motion by defendant, made at the close of the evidence, to direct the jury to return a verdict for defendant.”

The innuendo as to the intended meaning is sufficient to charge a libel per se, providing the published words are fairly susceptible of such meaning.

This brings us to the meaning of the published words.

There was some controversy in oral argument over the translation, but the English translation seems to be conceded in the answer, and the question of translation raised in argument is therefore not before us.

The arguments of counsel are directed chiefly to an interpretation of the word ‘ ‘ take. ’ ’

The counsel for plaintiff in error contends that the word “take” has a criminal meaning, while counsel for defendant in error insist that its meaning is innocent.

Many adjudicated cases are cited involving an interpretation of the word “take,” when used in the discourse in libel and slander eases. Some of these cases sustain the contention of the plaintiff and some that of the defendant.

The adjudicated cases may be reconciled upon the theory that the meaning of the word “take” is flexible and controlled by the context.

The introductory clause in the discourse declared upon was undoubtedly used in an ironical sense, and to give coloring to the specific acts. This laconic sentence descriptive of the man first strikes attention and prepares the reader’s mind for the specific charge. The concluding anathema is intended to leave the final impression.

The intermediate clause forming the gist of the charge makes prominent the detection and thereby leaves a possible inference of stealth and secrecy in regard to the taking of the money.

The word “take” as controlled by the context we think Í3 susceptible of a criminal meaning and may sustain the innuendo charged in the petition. The publication as charged in the petition was therefore libelous per sc.

We are of the opinion that the statement of claim in the municipal court was sufficient and that the court properly overruled the motion to take the case from the jury.

We are of the opinion that there was no prejudicial error in the rulings and charge of the court and that the evidence was sufficient to support the verdict of the municipal court.

It therefore follows that the judgment of the court of common pleas should be reversed and that of the municipal court affirmed.

Judgment reversed.

Ferneding and Kunkle, JJ., concur.


author: GORMAN, J.

text:
    MASTER AND SERVANT — NEGLIGENCE.
    [Hamilton (1st) Court of Appeals,
    March 8, 1915.]
    Dreses Machine Tool Co. v. James G. Henderson.
    Employers not Exculpated from Blame by Furnishing Appliances In Ordinary Use.
    The fact that machines of a certain type are used In the trade without guards for the protection of employes operating them, and that although guards are known to the trade their use is infrequent, does not render it improper to submit to the jury the question of whether in the case under consideration the defendant employer was guilty of negligence in not providing a guard; and where the jury has found that negligence existed, and has fixed reasonable damages which should be paid to the injured employe on account of such negligence, a reviewing court will not disturb the judgment based thereon.

      ERROR.

      Rolertson <& BucJiwalter and Theo. C. Jung, for plaintiff in error.

      Littleford, James, Ballard <& Frost, for defendant in error.
   GORMAN, J.

The action below was one to recover damages by the defendant in error, a minor by his next friend, for personal injuries claimed to have been received while working upon a turning lathe in the machine tool shop of the plaintiff in error. It was alleged in the petition, and the evidence tended to show, that the defendant in error James G. Henderson, while at work for the plaintiff in error on or about November 24, 1912, in its machine tool shop on McMieken avenue in this city, engaged in operating a certain lathe to turn mitre gears from steel castings, was injured by a splinter or sliver from the steel easting thrown from the lathe into his left eye, thereby causing the loss of sight in said eye.

It was claimed in the petition that the negligence of the defendant consisted in failing to place a guard over the tool which did the cutting of the steel casting which was being turned in the lathe to make the mitre gear. There was a great deal of testimony offered pro and con upon the practicability of the use of a guard.

The evidence of Henderson tended to show that guards were used at the LeBlond Machine Tool shop in the city of Cincinnati, where the same sort of lathes were in use as the one at which he was at work when injured. There was also other evidence tending to show that guards made of sheet iron or galvanized iron and cardboard were used in many shops in the city of Cincinnati, which guards were usually made by the employees operating the lathes. It was further shown in evidence that the superintendent of the Dreses Machine Tool Company knew óf the practice of using guards, and that he had known them to- be used when mitre gears were turned out of brass rather than steel. There was also evidence of others that they had used guards and known of them to be used. But the great weight of the evidence tended to show that guards were not used generally; upon lathes of the kind involved in the case at bar.

There was a verdict in favor of plaintiff, Henderson, in the court below for $4,000, and a judgment entered upon that verdict. It is now claimed that there is error in the record of the case which calls for a reversal by this court.

Practically the only grounds upon which plaintiff in error claims a reversal in this court are, that upon the facts shown in the ease there was no culpable negligence upon the part of the Dreses Machine Tool Company; that the use of a guard upon the machine in question was impracticable and not in general or customary use, and that it was contrary to the custom of the trade to use a guard. There was evidence tending to show that where these guards were used, made of sheet iron, galvanized iron or pasteboard, the dangers resulting from the flying of particles of steel were greatly minimized if not entirely removed. There was also evidence tending to show that guards are manufactured and sold made of wire gauze close meshed, and glass, which when placed in position before the cutting tool deflect the particles of steel thrown off so they can not come in contact with the eyes of the operator.

The contention of the defendant is that the rule to be observed in a ease of this kind is that the master is not bound to furnish the most approved appliances that may be had in his business; that he has performed his duty when he has furnished appliances of ordinary character and reasonable safety in general use; and that the evidence in this case tends to show that it was not customary to employ guards upon these lathes. The evidence is conflicting upon the practicability of the use of guards, and the great preponderance of the evidence tends to show that the guards were not in general use.

But we dó not think that this is determinative of the question of negligence in this ease. We do not think that the right of plaintiff to recover depends upon the fact that the guards were usually, generally or customarily used upon the kind of lathes at which he was put to work.

In 1911 the legislature amended Sec. 1027 G. C. so as to read as follows:

“The owners and operators of shops and factories shall make suitable provisions to prevent injury to persons who use or come in contract with machinery therein or any part thereof as follows:
######
“7. They shall guard all saws, wood-cutting, wood-shaping and all other dangerous machinery.”

Previous to the amendment of this section in 1911, this subdivision of the section required only the guarding of saws, woodcutting and wood-shaping machinery, and by the addition of the words “all other dangerous machinery,” the court is of the opinion that the legislature intended to extend the provisions of guarding to all dangerous machinery.

Now we think the evidence in this case tends to show that this was a machine attended with more or less danger in its operation. It was of frequent occurrence for those who operated machines of the character of the one involved in the ease at bar to have splinters of steel or metal fly into their eyes, and to the extent that there was danger to the eyes of the operative we believe that the machine was dangerous and that by the terms of the statute it was incumbent upon the plaintiff in error, as it was upon every other owner of such shops, to guard the lathes so as to minimize the danger that would result to the operatives.

It is laid down in 3 Labatt, Master & Servant 2d ed. Sec. S16:

‘ ‘ That the entire failure to furnish any instrumentalities or materials in a case where they are necessary for the servant’s protection is not less a breach of the duty to furnish proper instru-mentalities or materials than is the furnishing of instrumen-talities or materials Which fall below the legal standard of safety. A servant who bases his right of action on the total lack of requisite appliances must show that, under the circumstances, they were reasonably necessary for his protection from a danger which the master knew or ought to have known to be incident to the work, and that they were either not obtainable at all or were not readily accessible. ”

Now the plaintiff’s right to recover in this case is based upon the absence of a guard, and that it was reasonably necessary to have such a guard in order to protect him. There is a conflict of authority as to whether or not the master has performed his duty when he has furnished a machine such as is ordinarily or customarily in use, or whether or not he must go further and furnish appliances and machinery which are readily obtainable and known to science or the trade which will tend to protect the operator and employees.

3 Labatt, Master & Servant, See. 940, states the rule as follows :

“Where the only inference that can be reasonably drawn from the evidence is that the master conformed to the general usage of the average member of his trade or profession with respect to the adoption or retention of the instrumentality in question, he may be declared as a matter of law to have been in the exercise of due care. The language in which this doctrine is formulated or referred to would, if taken literally, often convey the idea that the generality of the usage and the similarity of the business or establishment of which the usage is adduced as a standard of comparison are the only points to be considered, and that the manner in which that business or establishment is conducted, and the character of the persons engaged in it are not material factors in the question to be determined. ’ ’

But, he says:

“It is clear that under the general principles of the law of negligence, these latter elements must be material, and that the test really propounded is not usage of any employers, however imprudent and unskilful, or of any concerns, however ill regulated, but the usage prevailing among prudent and skilful employers and in well regulated concerns. That this is the actual position taken is shown by the following extract from the opinion in a leading decision by a court which has been one of the most uncompromising exponents of the doctrine now under discussion.”

The author then quotes the language of the court in the section above cited. The author does not agree with those courts which hold that the master has performed his duty when he fur-rushes machinery and appliances such as are in ordinary and general use. Id. 947, he says:

“The doctrine that conformity to common usage is not conclusive in the master’s favor. The principle upon which a large number of decisions is based, some of which emanate from the courts whose rulings are reviewed in the preceding sections, is that embodied in the remark of Wiles, J., with reference to the plea put forward by the defendant in a well-known case, that, ‘no usage could establish that what is in fact is unnecessarily dangerous was in law reasonably safe as against persons towards whom there was a duty to be reasonably careful. That is to say, the position is taken that custom furnishes no excuse, if the custom itself is negligence. In this point of view the master’s conformity to general usage is regarded merely as evidence tending more or less strongly to exculpate him from the charge of negligence. After it has been shown that the defendant had complied with the usage of other employers in the same line of business the question whether the particular instrumentality or method was reasonably safe still remains open, and unless it is decided in the master’s favor, he must indemnify the servant.”

The author states that it is proper for the master, in an action by the servant to recover damages, to introduce evidence tending to show that he conformed to the general custom and that he furnished an ordinarily safe machine or appliance, but nevertheless it is still a question to go to the jury whether or not the master has performed his full duty even when he furnishes machinery and appliances in general and ordinary use in the business. He cites a great number of authorities in various states to show that the latter view is very strongly maintained in many jurisdictions. Supra, on page 2550, under Sec. 947, he says:

In spite of the imposing array of authorities which have adopted the doctrine explained in paragraph 940 et seq., the present writer has no hesitation in saying that in his opinion the cases just cited embody the correct principle. The essential meaning of the theory that the case ceases to be one for the jury when conformity to common usage is once established, is that employers ought to receive the benefit of a presumption which may be thus expressed: The persons who pursue a particular line of business at any given time are reasonably prudent, and the majority of a reasonably prudent body of persons will not use unsuitable instrumentalities or methods when suitable ones are available. As a basis for the doctrine founded upon it, however, this presumption seems to be extremely unsatisfactory.”

He then proceeds to show at length that this presumption does violence to reasonable logic and experience, and concludes the section (947) with these words:

“Under such circumstances, it is submitted, there is no sufficient basis upon which to found an inference of law that an employer fulfills his duty when he adopts instrumentalities and methods which are in common use.”

In 1 Bailey, Personal Injuries, Master & Servant, pages 381, 382, 383, it is stated that while it is proper for a master to be permitted to introduce evidence to show that he conformed to the general and ordinary custom in the furnishing of machinery and appliances, nevertheless it is still a question for the jury to determine whether or not he was negligent notwithstanding such appliances. On page 382, he cites this case:

“An employer, however, was held guilty of negligence in not furnishing a guard to prevent small pieces of boards and knots from being thrown back. The machine was of standard type and as sent into the market such machines were not furnished with a guard, yet upon the evidence of a former employe that he caused a board to be bolted to the frame work of the machine to act as a guard, which remained for about two seasons and a half, when it was shattered by recoiling pieces of timber and was not replaced, it was held that the employer was liable in not providing some other device. It was said that an employer could not be excused for operating a machine, although of standard type, when a reasonable amount of experience and observation has developed the fact that it is inherently dangerous and could be made reasonably safe by attaching safeguard appliances. See Johnson v. Lumber Co. 101 Minn. 325 [112 N. W. 262].

In the case of Boy Lumber Co. v. Donnelly, 31 Ky. L. Rep. 601 [103 S. W. 255], the court of appeals on page 603 employs this language: — “The third contention of the appellant is error in the instructions. ’ ’—

“The court in effect instructed the jury that they should not find for appellee, if the saw was guarded and protected with safe appliances, as was customary and usually employed with such saws to make them safe and prevent them from swinging out into the room.
“This is not the true test, and was prejudicial to appellee. It was proper for appellant to introduce testimony showing that this saw was placed, guarded and protected as such saws used for a like purpose are usually and customarily guarded and protected. If the saw in question was so guarded and protected, it created a strong but not conclusive presumption that it was reasonably safe. If the custom and manner of hanging and guarding these saws is dangerous, it should not prevail, if they could be swung and protected in a reasonably safe way. ’ ’

The court is of the opinion that, aside from the question of whether or not this case is covered by the statute, Sec. 1027 G. C., it was proper to submit to the jury the question of whether or not the master, plaintiff in error, was relieved from liability by furnishing a lathe without a guard and that that was the custom and general method of furnishing lathes to employes.

We think the great weight of authority supports the rule laid down in the case of Mather v. Rillston, 156 U. S. 391 [15 Sup. Ct. 464; 39 L. Ed. 464]. The opinion was announced by Justice Field, in which he says:

“All occupations producing articles or works of necessity, utility, or convenience may undoubtedly be carried on, and competent persons familiar with the business and having sufficient skill therein, may properly be employed upon them, but in such cases where the occupation is attended with danger to life, body or limb it is incumbent on the promoters thereof and the employers of others thereon to take all reasonable and needed precautions to secure safety to the persons engaged in their prosecution, and for any negligence in this respect, from which injury follows to the persons engaged, the promoters or the employers may be held responsible and mulcted to the extent of the injury inflicted. * * * Occupations, however important, which can not be conducted without necessary danger to life, body or limb should not be prosecuted at all without all reasonable precautions against such dangers afforded by science. The necessary danger attending them should operate as a prohibition to their pursuit without such safeguards. Indeed, we think it may be laid down as a legal principle that in all occupations which are attended with great and unusual danger there must be used all appliances readily attainable known to science for the prevention of accidents, and that the neglect to provide such readily attainable appliances will be regarded as proof of culpable negligence.”

In the case at bar we think the evidence shows that there was known to science and to those employers using lathes, such as the one in question, guards which would prevent or minimize the danger attending the flying of steel splinters from the metal which would have a tendency to injure the eyes of the operator. "We think the evidence in this ease fully discloses that if a guard such as the operators had used themselves, of sheet iron or pasteboard had been used, the probabilities are that the plaintiff below would not have suffered injury to his eyes. It is further shown that other kinds of guards were known to science and attainable, and it was proper to submit the question to the jury whether or not the master had done his full duty when he furnished a machine without a guard, even though that was the usual and customary method of furnishing machines. It was in the last analysis for the jury to say whether or not a reasonably prudent employer, in view of the experience which he had, or should have had, would not have taken further precautions to protect his employes.

This being practically the only question involved in this case, except the question of the excessive amount of the verdict— which we do not believe was excessive — we are of the opinion that the judgment of the court below was in accordance with substantial justice, and that the judgment should be affirmed.

Jones (E. H.), and Jones (Oliver B.), JJ., concur.


author: POWELL, J.

text:
    GAS — MUNICIPAL CORPORATIONS.
    [Perry (5th) Court of Appeals,
    July 31, 1913.]
    Voorhees, Shields and Powell, JJ..
    New Lexington (Vil.) v. Ohio Fuel Supply Co.
    1. Ordinance Fixing Gas Rates to Consumers Accepted by Company Valid.
    An ordinance fixing the rates which may he charged consumers for gas when accepted by the company constitutes a binding contract which may be enforced by the municipality.
    2. Jurisdiction of Courts to Settle Differences between Municipality and Gas Company.
    While a controversy between a municipality and a gas company as to rate to be paid by consumers for gas would fall within the jurisdiction of the public service commission, the courts have jurisdiction to settle differences of that character, whenever a contract has been entered into and so long as the contract exists.
    3. Petition Alleging Making of Gas Contract and Breach Sufficient.
    When a petition filed by a municipality alleges the making of such a contract, its breach and a continuance of the breach, with a prayer for injunction and general relief, it states a cause of action.
    [Syllabus by the court.]
    Appeal.

      T. B. Williams and John Ferguson, for plaintiff.

      L. B. Denning, for defendant.
   POWELL, J.

The petition in this ease was filed by the village of New Lexington, against the Ohio Fuel Supply Company, alleging for its cause of action that on January 27, 1897, an ordinance was passed by its council granting to the New Lexington Natural Gas Company, its successors and assigns, the right to lay and maintain in the streets and alleys of said village, mains and pipe fixtures for conveying natural gas, and supplying the same to the said village and its inhabitants for use as fuel and for lighting purposes; that pursuant to such grant said company laid its mains and pipes in said village, and exercised the rights and privileges granted by said ordinance; that thereafter and prior to September 8, 1903, said right or franchise was assigned to the defendant who has been, and is now exercising all the rights and privileges contained in said ordinance ort granted thereby; that on September 8, 1903, plaintiff by its council passed another ordinance fixing the price at which natural gas conld be sold therein at twenty-five cents per 1,000 cubic feet of gas, meter measurement, and provided that the company so selling the same should make a reduction of 20 per cent discount from said rate to any one paying for the same on or before, the 10th day of the succeeding month, and provided that no greater rate should be charged therefor during a term of ten years, together with other terms and conditions, fixing the rights of the company in the use of its franchise, and in supplying gas to thq citizens of said village; that the defendant in writing accepted the said ordinance and al its terms and provisions, and agreed to be governed thereby in its charges for gas furnished to said village and its inhabitants, and was governed thereby until November, 1910; that ever since November, 1910, it has violated said ordinance and its said agreement to be bound thereby by imposing on all the citizens of said village not consuming fifty cents worth of gas per month a minimum charge of fifty cents for each and every month whether the meter shows that amount of gas consumed during such month or not, and which charge is alleged to be illegal and in violation of said ordinance; that defendant threatens to turn off its gas to such of the citizens of said village as refuse to pay said minimum charge unless their meter shows that amount of gas consumed, and have turned off the gas from such of its consumers as have not paid such charge. Injunction is prayed for.

To this petition a demurrer is filed alleging three grounds of demurrer—

1. "Want of legal capacity to sue.

2. Want of jurisdiction of the subject-matter.

3. The petition does not state facts sufficient to constitute a cause of action.

This demurrer should be overruled, because—

1. The ordinance of September 8, 1903, and its acceptance by the defendant constitute a contract, and it is such a contract as the village is specially authorized to make for the benefit of its inhabitants. Section 3982 G. C.

If a municipality is authorized to make a contract, it has authority to enforce it, by implication, if not by express provisions.

2. It is contended that questions, such as are presented by this petition, are questions that ought to be settled by the public service commission, and not by the courts, but this court takes the view that this is a proceeding to enforce a contract already entered into, plain and unambiguous in its terms, and that the controversy is properly cognizable by the courts, and not by the public service commission. It invokes judicial authority, and properly belongs to the courts. When the contract terminates or the time comes when there is no contract existing between the parties, then it could properly be submitted to the commission, but so long as a contract exists, its enforcement is for the courts,

3. The petition alleges a contract, a breach of it, and a threatened continuation of such breach, with a prayer for injunction and general relief.

We think it states a cause of action.

These questions are not made in a recent case, decided by our Supreme Court, involving the same question as is sought to be determined in this action, viz: the right of a public service corporation to make a minimum or “readiness-to-serve” charge when operating under an ordinance or contract, that makes no provisions for such charge. That action was commenced.

1. By the city of Springfield, Ohio.

2. Against the Springfield Light, Heat & Power Co.

3. To enjoin the imposition of a minimum or “readiness-to-serve” charge in violation of an ordinance of said city, under which it operated and for general relief.

The judgment of the court of common pleas in favor of the city was sustained by the Supreme Court without opinion in Springfield L. H. & P. Co. v. Springfield, 88 Ohio St. 572.

The same questions were made by an amended answer in that case as are made in the amended answer in this case, the first defense consisting of certain admissions of fact, and a general denial of everything not admitted or controverted, and being in legal effect a denial of the legal conclusions arising from the averments of the petition. For its second defense defendant alleges that there is an initial cost of fifty cents per month for each consumer, consisting of taxes, interest on money invested, cost of operation and inspection, and other items of expense, so that a customer who uses less than fifty cents a month worth of gas is unprofitable and must be carried at a loss. In addition to such initial and overhead expenses, the defendant company has a rule that each customer must agree to take a minimum of fifty cents worth of gas per month, or pay that sum when the meter shows less than that amount of gas consumed. It alleges that such rule is reasonable and just, and such charge is not fixed or prohibited by statute or ordinance.

To this defense a demurrer is filed, and it is to the same defense, that the court of appeals of Clark county sustained a demurrer in the Springfield case cited above, excepting only that the subject-matter of that action was the furnishing of electricity to the city and its inhabitants, while this relates to the furnishing of natural gas. Said judgment sustaining said demurrer was affirmed by the Supreme Court.

The matters alleged in the said second defense are not defensive against a contract entered into of which they are not a part, and furnish no reason why the contract should not be carried out as made. There is nothing alleged that was not already in existence, when the contract was entered into, and it is presumed they were all taken into account at that time.

The demurrer to said second defense will be sustained, and a decree may be entered in favor of the plaintiff, making the injunction heretofore allowed, perpetual, and exceptions may be noted.

Voorhees and Shields, JJ., concur.


text:
    DIVORCE AND ALIMONY.
    [Lorain (8th) Circuit Court,
    December 28, 1909.]
    Henry, Winch and Marvin, JJ.

      Albert M. Webster v. Ada M. Miller.
    Judgment for Alimony Payable in Installments Lien on Husband’s Estate.
    A money judgment rendered in a divorce and alimony case, payable in installments, made a lien on the husband’s property and with express provision for execution, rendered in favor of the wife, though the divorce is granted to the husband, will be sustained as a division of property between the parties under favor of Sec. 6700 R. S.

      Affirmed, no op., Webster v. Miller, 83 Ohio St. 473.

   HENRY, J.

Early in the present term of court this cause was heard and it was orally announced from the bench that the plaintiff was entitled to judgment, and an opinion to that effect was handed down. Afterwards two of the judges who participated in that hearing requested a reargument, because of doubts as to the correctness of the court’s decision. The case has therefore been reargued and we are now confirmed in the belief that the eourt erred in its former decision.

This is an action to enjoin the collection of a judgment purporting to be for alimony to the defendant here, Ada M. Miller, awarded notwithstanding that by the same decree a divorce was granted to the plaintiff, Albert M. Webster, for his wife’s aggression.

In view of the construction placed by the Supreme Court upon Secs. 5700 and 5702 Rev. Stat., in the case of Hassaurek v. Markbreit, 68 Ohio St. 554, 579 [67 N. E. 1066], it is plain that no alimony could rightfully have been allowed to the wife under such circumstances.

The sole question here is whether or not this award to the wife, though denominated alimony, may not be upheld as amounting to a division of property under See. 5700. This is the same question as arose in Kelso v. Love joy, 29 O. C. C. 597 (9 N. S. 539), affirmed by the Supreme Court in 76 Ohio St. 598. There the award to the wife against whom a divorce was granted by the same decree was denominated alimony, and there also it was payable in installments.

It is claimed here, however, that the case before ns is distinguished in that the decree provides for three other things which render it still more inconsistent with the idea that it was intended or may be regarded as an award to the wife of a share in her husband’s property, rather than as alimony. These are the three elements:

1. That a money judgment in favor of the wife and against the husband was in terms rendered.

2. That said judgment is in terms made a lien upon the husband’s property, and

3. That express provision is made that execution may issue for the collection of said judgment.

But we see no necessary inconsistency between any or all of these elements in the decree and the construction of the entire judgment as the award of a share of the husband’s property. If, for example, such property consist of money, what possible objection can be raised to the rendition of a money judgment for such share thereof as the court determines to award to the wife? What good reason can be urged why such a judgment should not possess the usual incidents of money judgments, to-wit, a lien upon the real estate of the judgment debtor, and the right of the judgment creditor to issue execution for the collection of the sum adjudged to be due ?

If the case of Kelso v. Lovejoy, supra, was properly decided, as must be conceded, since the Supreme Court has affirmed it, the main objections to the validity of the judgment here assailed are overcome, and the facts in this case afford no sufficient ground for distinguishing it. The petition will therefore be dismissed.

Winch and Marvin, JJ,. concur.