author: HAYNES, J.

text:
    MUNICIPAL CORPORATIONS — APPROPRIATION.
    [Lucas (6th) Circuit Court,
    October 19, 1901.]
    Haynes, Parker and Hull, JJ.
    Elizabeth Webber v. Toledo.
    1. Appropriated Property Transferred — Action Por Compensation — Parties.
    Where a city appropriated property' to widen and extend a street and had compensation assessed.to the owners thereof, but failed to take possession of the property or pay the award, until several years after the appropriation, and after the property has passed into other hands, a widow as devisee thereof under the will of a testator, who owned part of the property'at the time of appropriation and to whom part was conveyed by warranty deeds after the appropriation and before the improvement was commenced, lias the right to bring an action for the amount assessed in the appropriation proceedings.
    2. Action not Barred in Less Than Twenty-One Years.
    The owner of property appropriated by a city for street improvements, wherein the city neglects to pay or take possession thereof within six months as provided hv .Sec. 2'260, Rev. Stat, has an election when the property is taken, to determine how he will sue therefor. His right is not barred, under Sec. 4977, Rev. Stat., in less than twenty-one years. Section 4981, Rev. Stat., the six years’ statute is not applicable. ,
    3. Taking Possession Without Paying Award — Remedy. - ■
    Where a city, under Sec. 2232, Rev. Stat., authorizing appropriation, takes possession of property, without payment of compensation awarded, the owner is not entitled to bring ejectment. His only remedy is to seek compensation.

      4. Evidence of Intention to Dedicate — Waiver.
    An intention to dedicate properly to public use must be evinced by acts clearly showing such intent. Therelore, the fact that the owner of property abutting a street, part of which is appropriated to widen the same, puts down a sidewalk either voluntarily or by order of the city for the purpose of enabling persons passing on the street to use it, cannot be construed as an intent to dedicate the property to the public or a waiver of any rights barring his recovery for the laud so appropriated.
    HEARD ON ERROR.
    M. R. Brailey and J. P. Mantón,- for defendant in error.
    T. L. Gifford, for plaintiff in error,
    cited :
    An action to recover compensation for lands taken for public use must be brought by the owner of the land at the time the action is commenced. Pittsburgh & W. Ry. Co. v. Perkins, 49 Ohio St. 326, 333 [31 N. E. Rep. 350]; Fries v. Railway Co., 56 Ohio St. 135 [46 N. E. Rep. 516]; Clarke v. Cleveland, 6 Circ. Dec. 176 (9 R. 118); Cincinnati, P. & V. Ry. Co. v. Davis, 10 Circ. Dec. 745 (19 R. 589).
    Elizabeth Webber possessed all the rights of Jacob Webber and was therefore, the only proper person who could have brought this action Railroad Co. v. Robbins, 35 Ohio St. 531; Warner v. Tanner, 38 Ohio St. 118,120; Railroad Co. v. O’Harra, 48 Ohio St. 343 [28 N. E. Rep. 175]; Railway Co. v. O’Harra, 50 Ohio St. 667, 678 [36 N, E. Rep. 14],
    The owner has twenty-one years from the time of the taking of his land in which to bring an action to recover compensation therefor'. Section 4977, Rev. Stat., gives to a claimant twenty-one years in which to bring an action to recover the possession of real estate wrongfully withheld from him. See, also, Dane v. Kennedy, 13 Ohio St. 42, 46; Tootle v. Clifton, 22 Ohio St. 247, 252 [10 Am. Rep. 732 ]; Thomason v. Day ton, 40 Ohio St. 63, 68.
    Municipal corporations áre subject to the operation of the statute of limitations in the manner and to the same extent as natural persons. Cincinnati v. Evans, 5 Ohio St. 594; Elster v. Springfield, 49 Ohio St. 82 98 [30 N. E. Rep. 274]; Hartman v. Hunter, 56 Ohio St. 175, 179 [46 N. E. Rep. 577]; Mott v. City of Toledo, 7 Circ. Dec. 216 (17 R. 472).
    The city having abandoned the proceedings to appropriate the land by its failure to comply with the order of the probate court within the time provided by the statute governing the same,-it lost whatever rights it had secured by virtue of the appropriation proceedings. It had no right to take possession of the land sought to be appropriated subsequent to the period stated in the order of the probate, court without the consent of the owner. However, having taken possession without such consent, the owner, if he so elected, could have maintained ejectment proceedings and ousted the city therefrom. Dillon on Municipal Corporations, Secs. 611 and 613; Elliott on Roads and Streets, Secs. 130» 242; Ryan v. Hoffman, 26 Ohio St. 109, on page 120.
    The owner having elected to bring an action for compensation, she could sue for the amount of the award in the appropriation proceedings or have the damages assessed as of the time of entry of the city upon the land. Toledo v. Groll, 1 Circ. Dec. 441 ( 2 R. 199). (Aff. by S. C., 23 Bull. 220.)
    A dedication cannot be based upon presumption. There must be facts shown from which a dedication can be fairley inferred. Those facts must be external and unequivocal, such facts as clearly indicate an intention to dedicate. The intention which must be shown to establish a dedication must be clear and unequivocal. It cannot be left to presumption or inference; but must be established clearly and without question. Elliott on Roads and Streets, Sec. 156; Eongworth v. Cincinnati, 48 Ohio St. 637, 645 [29 N. E- Rep. 274]; Millikin v. Bowling Green, 6 Circ. Dec. 483 (9 it. 493); Cherry v. Howe, 9 Circ. Dec. 131 (17 R. 246) ; Toledo v. Converse, 11 Circ. Dec. 468 (21 R. 239); Bass & Eake Co. v. Hollenbeck, 5 Circ. Dec. 242(11 R. 508.); Washburn on Easements, page 205; Case v. Favier, 12 Minn. 48. Mere lapse of time alone not sufficient. Penquite v. Eawrence, 11 Ohio St. 274.
    Even though the owner consent to the entry by the city, still that would not deprive him of the right to recover compensation for the land taken. Penn. Ry. Co. v. Platt, 47 Ohio St. 366, 382 [ 25 N. E. Rep. 1028] ; Goodin v. Canal Co., 18 Ohio St. 169, 179 [98 Am. Dec. 95].
    However much the opening and widening of Niagara street would benefit the remaining property of the owner, he would still be entitled to recover for the land actually taken. Cincinnati, E. & N. Ry. Co. v. Cincinnati, 62 Ohio St. 465 [57 N. E. Rep. 229]; Youngstown v. Moore, 30 Ohio St. 133.
   HAYNES, J.

Elizabeth Webber brought suit in the court of common pleas, against the city of Toledo, in which she set up that about February 15, 1875, the common council of the city duly passed the necessary legislation to open Niagara street a certain width; that on June 21, 1875, the common council passed an ordinance to appropriate the lands described in the petition, being parts of lots 228 and 248, Stickney’s addition, and also parts of lots 223 and 224; and on September 12, 1875, the city council made application to the probate court, and steps were taken whereby the amount of compensation to the owners was assessed, and É states the amount. And she says these amounts have never been paid. She says in her petition also that the city did not take the land so appropriated, and nothing further was done until about the year 1886, when the city entered upon the lands, and graded them, and they have been taken and used for a street ever since. The precise ordinance under which the grading was done has not been set out, but it is admitted that the work was doue under the authority of the city of Toledo. She says that one of the lots was conveyed to her husband in 1878, as I understand it; a portion of lot 224 was conveyed to Jacob Webber in 1875, February 12, by warranty deed, and the north half of lot 228 was conveyed to Webber by Valentine H. Ketcham February 8, 1878, and they owned the other lot before. Jacob Webber died somewhere about 1888 or 1889, I believe, and by his last will and testament he gave all this property to his wife, the plaintiff herein, who has been and remained in possession of it ever since.

It is claimed on behalf of the city of Toledo that the plaintiff has no right to sue; that even if the city was liable to pay the appropriation money, the administrator or the executor of the will of Jacob Webber was the proper party to bring the suit. It is claimed also that the statute of limitations is a bar to the action; also, that there has been a dedication of the lots by the Webbers.

The testimony shows that the Webbers were in possession of the property up to the time that the city graded the street, and had fences around it; that the city tore down the fences, graded the street, and took possession of the property, and subsequently the Webbers built a sidewalk along that part of the street for the benefit of people living on that side of the street.

It is not necessary that I should spend very much time on the case. There are two cases which settle some of the questions for us, at least. The first case is one decided by this court at the March term, 1887, the court then being composed of the original members, Upson, Baldwin, and myself. This is Toledo v. Groll, 1 Circ. Dec. 441 (2 R. 199), in which John Groll brought suit to recover the amount of $1,881 that had been awarded to him in certain proceedings brought by the city in the probate court to extend Fast Broadway across Groll’s land in East Toledo. The land had been appropriated in 1873. The city council passed a resolution directing the street commissioner to take possession of the land and open the street, but the street commissioner did not do jt. The matter remained in that condition until 1883, when the city council again passed a resolution directing the street commissioner to open the street, which the street commissioner did; and in 1884 the plaintiff began his suit, being eleven years after the award had been made. To that a contest was made by the city, and a decision was rendered by the court. After citing the statute, Sec. 2260, Rev. Stat., we cited from the opinion of Judge Gilmore in delivering the opinion of the Supreme Court in Ryan v. Hoffman, 26 Ohio St. 109, 120, wherein that judge said:

“ The provisions of this section are evidently intended for thé benefit of the land-owner, preventing as they do the land from being hung up in uncertainty for an unreasonable length of time; and a strict compliance with its requirements could be waived by the owner. An acceptance of the money assessed as compensation after the expiration of six months from the date of the assessment and delivery of possession, would constitute such a waiver and operate as a ratification of the proceedings.”

At page 122 of the same case, he says:

“ The second objection is that even if the city takes and pays for the property condemned, it takes the title by purchase, and not by appropriation, and hence cannot assess the expense on the adjoining property. From what has been before said, it will appear that there is no force in this objection. We think the city will take the title by appropriation; but the right to assess the expense upon the adjoining property depends upon other provisions of the municipal code and other proceedings not before us.”

This case was a proceeding in mandamus to compel the city to pay the amount of the assessment of compensation made by the jury.

We further cited in the same case, Trustees C. S. Ry. Co. v. Haas, 42 Ohio St. 239, where the court held that the failure of the corporation to pay and take possession of the land within six months, was no bar to a proceeding by the corporation to appropriate the same property for the same public use. And that the case was governed by the same rules as in case of municipal corporations. This court, then proceeding in announcing its decision, said:

“ We have said that we find that upon the city's making the order in 1883 and taking possession of the property, that it was proceeding under the order for the appropriation, and was seeking to take the property by virtue of that appropriation, and we think the true rule is that the owner of the property had his election to waive the forfeiture of the city to take within the six months and to demand of the city the amount of compensation assessed by the jury at the time the city'took possession in 1883; and that by the demand he made of the city for the award of- the jury, and the bringing of this suit for the same, making no objection to the city opening the street, he ratified the appropriation -and is entitled on the facts stated to recover the amount of the assessment made by the jury. The court below having so found, its judgment is affirmed.
“ Question is made as to when interest should commence to run upon the assessment.
“The plaintiff below had the use of the property during the time from 1878 to 1883, with full right to dispose of or sell the same free from the order of appropriation, and at the time of taking the property in 1883, had the right to elect to take the compensation awarded or to have a new assessment made. We therefore are of the opinion, that interest should commence to run from 1888; and the court below having so found, we affirm the judgment in that respect.”

That- case went to the Supreme Court and was affirmed without report. Toledo v. Groll, 23 Bull. 220.

Clark v. Cleveland, 6 Circ. Dec. 176 (9 R. 118), is a case that is also applicable to this one, besides containing some good law. It was decided in Cuyahoga county in 1894, and was tried before Judges Baldwin, Caldwell, and Hale, Judge Baldwin having sat in the case from which I read Toledo v. Groll, supra. I will read the syllabus :

“ After conditional judgment in favor of the plaintiff in error under 66 O. L., Sec. 537, p. 240 (R. S. 2260), in appropriation proceedings against the city of Cleveland, he conveyed the lands in fee simple-Thereafter, and after the expiration of the six months provided for in that statute, and without any new appropriation contract, the city took possession of the land, but did not pay therefor.

Held, the right of the vendor to receive the damages under the conditional judgment had ended, and the right of action -for damages for the taking of the land accrued to the vendee.”

It will be observed that the facts of the case are exactly like those of the case at bar. After stating the facts of the case, and after citing the case of Toledo v. Groll, 1 Circ. Dec. 441 (2 R. 199), the court say:

“ We think that was good law. The property owner had the election at the time of the city taking possession to determine how he would sue for the amount awarded him. We do not think that a former owner of that land, who had parted with that land by warranty deed in fee simple, had the right to make such election and require payment by the city to him for that, land of which he had long ceased to be the owner-We are therefore of the opinion that when, after the six months expired’ the city took possession of that ten feet, the right to recover for that was in Mercy J. Phillips, and not in Clarke. The decision of the court of common pleas is affirmed.”

That sustains the position that the plaintiff in this case is the one authorized to .sue ; and so we hold.

Now, in regard to the statute of limitations. • The title in this property being in Mrs. Webber, and she having the right of election when the property was taken, we think she should not be cut off short of twenty-one years, Sec. 4977, Rev. Stat., and that the six years statute, Sec. 4981, Rev. Stat., does not apply to the case.

It is claimed here that there had been a dedication of this property. We are clearly of the opinion that there had not been a dedication, or anything from which the jury could infer that there was a dedication. The statute, Sec. 2232, Rev. Stat., et seq., provides that where land is taken for and used as a street the compensation shall be made, but it does not say that it shall be first made. It is held by the Supreme Court that the rule that applies to railway companies does not apply to streets. The city takes possession of a street. The owner of the property cannot eject the city from the street, as we understand the case, and the only remedy that is left him is to seek to obtain the compensation which is allowed him ; and we think in a case of that kind, any act like putting a sidewalk on the street which the city has a right to improve and keep possession of for the use of the public, whether the sidewalk was laid down by order of the city or voluutarily by the owner, for the pui pose of enabling persons passing on the street to use it, cannot be construed into any act which shows an intent to dedicate the property to the public. The owner of the land does not waive his rights by any such act as that. To be a dedication there must be a clear intention to dedicate, and that evinced by acts tnat clearly show such intent to. dedr cate. We think no act of this kind can be construed to show any attempt to dedicate. Plaintiff in the case says that she never had dedicated. She went out to object when they came to open the street, but I think she did not go into that, or was not allowed to; at any rate, nothing further was said about it. She says her husband always during his life said he never would give any of his property, not even a shovelful, to the city.

We therefore hold that the judgment of the court of common pleas, should be reversed and a new trial awarded.


source: Caselaw Access Project

author: PARKER, J.

license: Public Domain

text:
    FIDELITY BONDS.
    [Lucas (6th) Circuit Court,
    October 19, 1901.]
    Hayues, Parker aud Hull, JJ.
    Imperial Building and Loan Co. v. United States Fidelity and Guaranty Co.
    False Material Reprenentations in Obtaining Fidelity Bond.
    In an application to a fidelity and guaranty company for an indemnifying bond guaranteeing the faithful performance of duty by an agent of a company requiring the bond, answers to questions as to the agents having previously made application to another indemnity company and as to -whether the same was refused, etc., are material and vital, being representations with respect to .matters about which the defendant company had a right to be informed as affecting the hazard involved in giving the bond. False answers to such questions by the applicant, and with knowledge thereof by the party for whose benefit the bond is required, render the same invalid.
    Clayton W. Everett, for plaintiff in error.
    Chittenden & Chittenden, for defendants in error.
   PARKER, J.

In the court below the parties stood in the same position upon the record as they stand in this court, the Imperial Building and Loan Company being the plaintiff and the tJni ted "States Fidelity and Guaranty Company the defendant. The action was upon an undertaking by the defendant guaranteeing the faithful performance by one James Thomas Morris, of Mansfield, Ohio, of his duties as agent lor the'plaintiff. It appears that as agent for the plaintiff he had collected some $524.75, which he had embezzled. Defendant had given bond to indemnify the plaintiff against any frauds of this character upon the part of Morris. Morris upon being required by the plaintiff to give some surety for the faithÍul discharge of his duties, had made application to the defendan^ to guarantee his fidelity.

In the application, which was upon a blank furnished by the defendant, certain questions were asked of him aud answered by him, and among others, these:

“ Q. Have you ever applied for a bond in this or any other company ? A. No.
“ Q. If so, state name of company, the date, name of employer, and whether accepted or declined. A. No.
“ Q. Have you ever beeu refused the issue or continuance of a bond on your fidelity by any company? If so, give particulars. A No.”

The employer, the plaintiff, was also required to make a statement upon a blank furnished by the company, and the statement which it made reads as follows :

“ The replies of the applicant herein are to the best of my knowledge and belief correct. He has been in the service of the undersigned employer since December 1, 1898, filling position of solicitor, and has continuously filled the position for which this bond is required since December 1, 1898, but we add new duties now. He has always, to the-best of my knowledge and belief, given satisfaction in his personal con duct and performance of duties, and kept his accouuts faithfully and • without default.”

There is more of this, but the material part is, “ The replies of the applicant herein are to the best of my knowledge and belief correct.” This is signed by T. F. Brady, the secretary of the company, on behalf of the Imperial Building & Loan Company, .the employer.

It appears that shortly before this application was made to the defendant, Morris had made application to another company, The American Surety Company, for a bond of this character to be given to this same employer, which application said company rejected, and that this secretary of the plaintiff was aware of that fact, and of the fact that the American Surety Company had not passed favorably upon the application, is fairly inferable from the evidence. There is correspondence between the secretary of the plaintiff company and Morris, indicating that they were both aware of the fact that this application had not been accepted, but had been rejected, before these answers that I have read were made by them respectively.

The falsity of these- answers is adduced as a defense to the action upon the bond. Without entering into a full discussion of the matter, we have simply to say that we regard the representations contained in these answers to these questions as being material and vital. They are representations with respect to matters about which the defendant had a right to be informed, as affecting the hazard involved in the giving of this bond. They are similar in character and of like effect with representations made by a person applying for life insurance, for instance, that he had never been rejected by any other company; or by a person applying for fire insurance, that the risk had not been rejected by any other company ; or that he had not suffered any loss by fire. If truthful answers had been made to these questions, it cannot be doubted but the defendant would have at once rejected the application, or at least have advised itself as to the grounds upon which the American Surety Company had rejected the application. The defendant had the right to know the facts, and to require truthful answers to these questions.

The judgment of the court below was in favor of the defendant upon this defense, and we discover no error in that.

It is also contended that the bond is not broad enough in its terms to cover this particular occupation, but upon that question also we think the conclusion of the court below was correct. Therefore the judgment oí the court of common pleas will be affirmed.


author: HULL, J.

text:
    CRIMINAL LAW — JUNK SHOPS.
    [Lucas (6th) Circuit Court,
    October 26, 1901.]
    Hayues, Parker and Hull, JJ.
    Jacob Neifeld v. State of Ohio.
    1. Section 7215, Rev. Stat., Applies to Affidavits in Police Court.
    Section 7215, Rev. Stat., enumerating what defects in an indictment are not fatal, and which provides that any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits, is not fatal, applies to an affidavit or information in the police court.
    2. Substantiae Compliance with Statute in Charging Offense.
    An affidavit or information charging the proprietor of a junk shop with “fail-, ing to retain the metal for thirty days,” as required by Sec. 4413, Rev. Stat., substantially charges that he did not retain it, and is sufficient to notify the defendant of the offense with which he is charged; he is not prejudiced in his substantial rights thereby because the provision of the statute is not negatived.
    3. Rule as to Answers not Responsive to Questions.
    Where the prosecuting witness, in a proceeding for violation of Sec. 4413, Rev. Stat., requiring the proprietors of junk shops to keep old metal thirty days, being asked, “ State what if any further examination you made at that time of the items,” made in the daily report of such proprietors, answers: “I went over to get a better description of the wire and Mr. N-told me he had disposed of it, ” the auswer, while not responsive to the question except by inference that the witness did not examine the metal because it was not there, is competent testimony as an admission of the defendant that he had disposed of the metal at that time, and where opportunity was afforded for cross-examination of the witness thereon, judgment will not be reversed, especially since it was a matter discretionary with the trial court as to whether such answer should stand or not.
    4. Oral Testimony as to Filing Report.
    In a prosecution of the proprietor of a junk shop, under Sec. 4413, Rev. Stat., for failing to retain old metal purchased by him, for thirty days, it is competent to show by oral testimony that he made a report on the day of the alleged purchase, where the report is iu court and is afterwards identified and offered iu evidence.
    5. Officer Acting Without Proper Authority.
    A police board of a city not having taken any action, under Secs. 1917, Rev. Stat., et seq., authorizing the inspection of junk shops, etc., to ordain the duties of officers, a police officer merely detailed to inspect and look after such places, has no authority under Sec. 1918, Rev. Stat., to enter the premises of one running a juulc shop, to search for stolen properly without a search warrant. Under such circumstances the owner of a junk shop has a right to resist such officer’s entering his place of business and taking possession of property therein, and by so doing is not liable to a prosecution under Sec. 1919, Rev. Stat., for such resistance.
    8. Rule as to Removal Upon Review.
    The fact, that in a criminal proceeding submitted to the court substautial'y upon the testimony of the complaining witness and the defendant, there is a direct conflict as to a question of fact, is not sufficient to warrant a reviewing court insetting aside the judgment of the trial court, finding, beyond a reasonable doubt, that the defendant is guilty of the offense charged, for the reason that the trial court had the opportunity of seeing the witnesses, observing their conduct on the stand, their candor, etc., and had a better opportunity of reaching a just conclusion and determining where the truth lies than a court that knows nothing about the case except what appears in the ■written record.
    HEARD on Error.
    Seney & Johnson, for plaintiff in error.
    M„ R. Brailey and C. E. Sumner, for defendants in error.
   HULL, J.

The plaintiff in error is the same person in both of these cases (above entitled and Same v. Toledo), and they will be discussed, so far as possible, together, although they must be considered to some extent separately, first taking up the case of Neifeld against the state of Ohio.

Neifeld was prosecuted in the police court of the city of Toledo for the violation of Sec. 4413, Rev. Stat. A jury being waived, he was tried to the court and found guilty, and sentenced to pay a fine, and it is to reverse this judgment that this proceeding is prosecuted. He was charged with violating the provisions of Sec. 4413, Rev. Stat., requiring a junk shop keeper to retain in his possession, property fora period of thirty days after it has been purchased. The statute provides as follows :

“Any person who purchases, sells, exchanges, or receives secondhand furniture, second-hand articles of any kind, scrap iron, old metal, canvas, rope, junk or lead pipe; except plow irons and old stoves and furniture, shall put up in a conspicuous place, in or upon his shop, store, wagon, boat, or other place of business, a sign, having his name and occupation legibly inscribed thereon, and shall keep a separate book open to inspection by any member of any police force, city marshal or constable, or any other person, in which shall be written, in the English language, at the time of every purchase or exchange of any of the articles above mentioned, a description thereof, the name, description, and residence of the person from whom purchased and received, and the day and hour when such purchase or exchange was made; each entry shall be numbered consecutively, commencing with number one, and any and all of such articles so purchased or exchanged, shall be retained by the purchaser thereof, for at least thirty days before disposing of the same, and kept in an accessible place in the building where such articles are purchased or received, and a tag attached to such article in some visible and convenient place, with the number written thereon corresponding to the entry number on the book. And any such purchaser shall prepare and deliver every day to the mayor of the city in which such business is carried on, before the hours of 12 o’clock M., a legible and correct copy, written in English, from such book, a description of all such purchases, purchased or received during the preceding day, together with, the hour at which the purchase or purchases were made, together with a description of the person or .persons from whom the same was purchased.”

The plaintiff in error was arrested upon an affidavit purporting to charge him with a violation of one of the provisions of this statute, and an information was thereafter filed in police court, and he was tried upon that information, and found guilty, and sentenced as stated.

There are various errors complained of by the plaintiff, in error. First, it is claimed that the affidavit and the information based upon the affidavit are defective, in that they do not charge an offense under this statute. The claim of counsel for plaintiff in error is that the affidavit and the information do not charge with sufficient definiteness that he did not retain the old metal. The language of the affidavit is this :

“ And said Jacob Neifeld did unlawfully fail and neglect to retain said lot of old metal, to-wit: said 82 pounds copper wire, thirty days before disposing of the same.”

And the language of the information is the same.

The statute provides, “And any and all of such articles so purchased or exchanged, shall be retained by the purchaser thereof for at least thirty days before disposing of the same.”

It is argued that the affidavit and information should negative the provision of the statute; that the charge should be plainly and distinctly made that he did not retain the articles in question; that that exactly, or. in substance, should be the language of the affidavit; and that the language used is not equivalent to charging the plaintiff in error with a violation of this provision of the statute, in that it charges only that he failed and neglected to retain. It is urged that he might have failed to do anything in the way of retaining this property, or might have neglected to retain it, or to do anything to retain it, and still that it might have been retained, and that therefore the affidavit and information do not charge a violation of this section.

We are of the opinion that this language does substantially charge the offense named in the statute; that to charge him with failing to retain the old .metal is in substance charging that he did not retain it-It was his duty under the statute to retain the metal for thirty days after its purchase. The affidavit and information charged that he failed to do this. It se.ems to us that to charge him with failing to retain the metal as provided by statute, is substantially charging that he did no* retain it. It-certainly was sufficient to notify the defendant below and his counsel of the offense with which he was charged. We cannot see that the .defendant could have been prejudiced by reason of the language not beiugi more definite; in advising him of the charge-that was made against him. Section 7215, Rev. Stat., relating to indictments, applies as well to affidavits and informations. The title of Sec. 7215 is: “ What defects in an indictment are not fatal.” Then after reciting various things that are not fatal, the statute provides :

“ Nor for want of averment of any matter not necessary to be proved; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

This statute was considered by the Supreme Court in Burke v. State, 34 Ohio St., 79, where there was a conviction for burglary. The Supreme Court say in the syllabus:

“ Where the charge is burglary by breaking into the car of a railroad company, designated by its corporate name, but the indictment contains no averment that the company was incorporated, the accused cannot avail himself of the defect, if defect it be, in view of the code of criminal procedure.”

And in the opinion, which was delivered by Judge Okey, on page 81, it is said : .

“A great advance has been made in the laws relating to crimes, punishments, and criminal procedure. The fact is unquestioned that there was a time when ielonies, which at common law were few in number, embraced, by parliamentary enactments, more than two hundred offenses; when acts were punishable with death, which, if committed in this state, at this daj', would not be punishable at all; when one charged with felony was not permitted to have a copy of or even to examine the indictment, to call witnesses in his defense, or to have the assistance of counsel ; when no instance could be found in which a jury, in a criminal case, had failed to render a verdict on the same day it was impaneled; when jurors were fined for refusing to return a verdict of guilty; when the ordinary course was to sentence as soon as a verdict of guilty was rendered, and cause the accused to be executed on the following morning. It is not strange that in such a state of the criminal law, humane judges, in favor em vites, would determine cases upon technicalities which at this day would be regarded as frivolous. But all this is changed. Now, the tendency is, on the one hand, to disregard that which is merely formal and technical; on the other, to preserve, in every stage of the case, all matters of substance, and aflord the accused a trial as full, fair, and impartial as can reasonably be desired, with the presumption of innocence effectual for his protection, until his guilt is proved beyond reasonable doubt.”

No objection was made to this affidavit or information until the trial was commenced, and then' the objection was made that no evidence could be introduced under the affidavit. We think the affidavit did in fact charge a violation of this statute, and in any event that if there was any defect in the affidavit, it did not prejudice the substantial rights of the defendant below.

It is claimed that various errors were committed by the court in the admission of evidence upon the trial of the case. As appears on page 2, of the bill of exceptions, the prosecuting witness was asked:

What, if any, report did he, the defendant, Mr. Neifeld, make on or about the 8th day of December, 1900, of metal claimed to be purchased by him ?”
This was objected to, and overruled, and he answered: “ He made a report.”
And then follows the question “Is this the report?” And he answers, “Yes.”

We‘see no objection to this testimony, in view of the fact that the report was there, and was handed to the witness, and was afterwards admitted in evidence, and is attached to the bill of exceptions. It seems from the record that after he made this report, Mr. Daley, who was an officer of some kind, went over to Mr. Neifeld’s place of business with the report, for the purpose of making an examination of some items contained in the report, and he is asked, on page 4, a question, the answer to which is objected to. The question-is this :

“ State what, if anj', further examination you made at that time, of the items.” He answered: “ I went over to get a better description of the wire, and Mr. Neifeld told he had disposed of it.”

Counsel moved to strike out this answer, for the reason that it was not responsive to the question, but the court overruled that motion, and error is claimed upon that answer. It is true that the answer is not responsive to the question. He was asked what further examination he made at the time. He answers by saying he went over to get a better description of the wire. That far the answer is substantially responsive to the question. And then he adds, “And Mr. Neifeld told me he had disposed of it.” The inference from the answer is that he went over to examine the wire, and did not find it there, and accordingly made no examination, and the witness says that Mr. Neifeld told him that he had disposed of it. While the answer is not responsive to the question, it still was proper testimony in the case, and was an admission, of the defendant, that he had disposed of the wire, and was a proper thing to interrogate the witness upon. The witness was cross-examined, and here was an opportunity to cross-examine him fully upon this answer. We think it was a matter discretionary with the court whether this answer should stand or not, not being wholly responsive to the question, and that there was no error in the court overruling the motion to strike out the answer.

It is urged further that the conviction of Neifeld was contrary to the evidence and not sustained by sufficient evidence.

It appears that on December 8,1900, he filed a report as required by law, that contained in it an item as follows: “82 copper;” and under the head of “ description and residence of person selling,” “ H. W. Clifer-ton, 819 Colburn St.” After this report was filed, Mr. Daley, who said he was a police detective, went over to Mr. Neifeld’s place of business, and whether Neifeld is guilty or not depends largely upon the testimony of Mr. Daley and Mr. Neifeld as to what occurred upon the occasion of Daley’s visits on December 10 and 18. Mr. Daley testifies that when he went over to Neifeld’s place of business after the filing of this report, he found this wire there, — saw it there, and talked with Neifeld about it; and that he came back three days later and enquired about it, and Neifeld told him he had sold it or disposed of it. Neifeld denies this, and claims that there was no wire there; that he had no such conversation with Daley; that he did not buy any copper wire at that time; that the copper referred to in his report was not copper wire, but was other material. Neifeld was not arrested for this offense until about a month later.

The question of fact involved here was submitted to the court. It is true there is a direct conflict in the evidence, Daley testifying what he claims about it on the one hand, and is contradicted by Neifeld upon the other. That is not sufficient to warrant a reviewing court in finding that the court below erred in finding beyond a reasonable doubt that Neifeld was guilty of the offense charged. If that were true, a great many criminal cases would have to be reversed on the ground that the judgment was not sustained by sufficient evidence. The court before whom the case is tried has an opportunity to see the witnesses, and observe their conduct on the witness stand, their candor or want of candor, and has a much better opportunity of reaching a just conclusion, and determining where the truth really lies, than a court that knows nothing about the case except what appears in the written record. This rule has been recognized in Breese v. State, 12 Ohio St. 146 (80 Am. Dec. 340), where the court say:

“A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing court will always hesitate to do so where the doubts of its propriety arise out of a conflict in oral testimony.”

This man was convicted of burglary. The court say, in a paragraph on page 156:

“ The jury who try a cause and the court before which it is tried, have much better opportunities to determine the credibility and effect of the testimony, and we ought, therefore, to hesitate before disturbing a verdict rendered by a jury and confirmed by a court, possessing such advantages, merely because there is an apparent conflict in the testimony. The conflict or its effect might all disappear, if the witnesses were examined before us and we could see and hear them face to face, as they were seen and heard by the court and jury whose verdict and judgment are passing in review before us.”

Upon an examination of the whole record we feel that we woul not be warranted in disturbing the judgment upon the ground that it is not sustained by sufficient evidence. The judgment in this case is affirmed.

We will now consider the case of the same plaintiff in error against the city of Toledo.

On December 31, Mr. Daley again went to Neifeld’s place of business, as he claims, to inspect his establishment and some property which he had, Daley being then and there in search of some property that was alleged to have been stolen. Neifeld was charged in this case with resisting Daley, who, it was alleged, was an officer duly authorized in the premises. He was tried before the police court without a jury, and found guilty, and sentenced to imprisonment in the workhouse, and it is to reverse this judgment that this second proceeding in error is filed. Nei-feld was prosecuted in this case under an ordinance of the city of Toledo which is as follows:

‘ ‘Any person who shall, within the limits of this city, abuse, resist, or hinder any policeman, watchman or any other city officer in the execution of the duties of his office, shall be deemed guilty of an offense, and on conviction thereof shall be fined in' any sum not less than five or more than fifty dollars, and imprisoned at hard labor not exceeding thirty days. And in case of the refusal or neglect of any person to pay such fine and costs, the court shall order such person to be imprisoned at hard labor until the same are fully paid.”

Daley was acting, or claimed to be acting, under certain statutes of the state of Ohio which authorize the inspection of junk shops, and which contain other provisions in regard to junk shops, second-hand dealers, etc., the sections referred to are Secs. 1917, 1918 and 1919, Rev. Stat. Section 1917 provides that:

“ The mayor and the superintendent of police, and the lieutenants of police within their districts, shall possess powers of general supervi-' sion and inspection over all pawnbrokers, junk shop keepers, cartmen, hackmen, dealers in second-hand merchandise, intelligence office keepers, and auctioneers within such city-; and in the exercise, and in the furtherance of such provisions, may, from time to time, detail members of the police force to fulfil such special duties in the aforesaid premises, as may be ordained by the board.”

Section 1918 provides: .

“ The superintendent and the lieutenants within their districts may, by authority in writing, empower any member of the police force, whenever such member is in search of property, feloniously obtained, or in search of suspected offenders, to examine the books of any pawnbroker, or his business premises, or the business of any junk shop keeper or dealer in second hand merchandise, or intelligence office keeper; and such member of the force, when thereunto authorized in writing as aforesaid, and having in his possession a pawnbroker’^ receipt or ticket, shall be allowed to examine the property purporting to be pawned, pleged or deposited on such receipt or ticket, in the possession of whomsoever such property may be; but no such property shall be taken from the possessor thereof without due process or authority of law.”

The affidavit in this case shows that the prosecution was commenced under Sec. 1917, Rev. Stat., as it alleges that “F. G. Daley, a police officer of said city, while said officer was in the execution of the official duties of his office, to-wit, attempting to inspect old metal in possession of said Neifeld, he, the said Neifeld, being then and there a dealer in junk and old metal, the said police officer being duly authorized and qualified according to law to make such inspection, all of which said defendant at the time he so resisted, hindered and abused the said police officer, well knew.”

Section 1917, Rev. Stat., as- has been observed from the reading, provides for the inspection of junk shop dealers.

There are various errors complained of in this case. First, it is claimed that the record in the case does not show that Daley was a police officer. We think on an examination of the whole record, although he testifies he was a police detective, that it does show that he was a police officer, and that the evidence in that behalf is sufficient to establish that necessary element in the offense. • He testifies also that he was regularly detailed to do this work, and on page 6 of the record he testifies that the defendant knew he was an officer, and in other places in the record he speaks of himself as an officer.

But it is alleged that although he was an officer, that ’he was proceeding in this matter without that authority which was required. Daley’s testimony shows that he went to Neifeld’s place on December 31, and as he reached there he saw Neifeld coming with a horse and buggy. He took out a basket of lead pipe and took it into his shop. Daley says he followed him into the shop, and when he laid the basket down, he said: “Mr. Neifeld, I want to look at this lead pipe; I am looking for something that answers the description of what you have here,’’ and Daley testifies : “ and he grabs hold of the basket and says, ‘ you can’t look at anything here without a search warrant: ’ and he went to the rear of the shop and tried to scatter it in around some barrels he had there, and I said ‘Mr. Neifeld, the law requires you to hold this for thirty days,’ and he gr.-hbed the basket, and said, ‘ Damn you and the law. Go out of here; you have no right in here at all without a search warrant; ’ and he' attempted to put me out or the building, and I arrested him.” He then testifies that it occurred in this county, and that Neifeld grabbed hold of his coat and pulled off a couple of buttons. That is substantially all there is of Daley’s testimony in chief. There was no evidence that Daley had a search warrant, or that he had any written authority, or that he had any authority in the premises except it be as he testified, that he was detailed to do this kind of work.

There can be no question that before one man can enter another man’s premises and interfere with either his person or property, unless he has committed an offense in f he presence of an officer, the person so interfering must have some authority of law. The statutes provide that under a search warrant which has been properly issued, premises may be searched, and Sec. 1917, Rev. Stat., provides for the inspection of junk shop keepers and their premises, and it provides that “ The mayor and the superintendent of police, and the lieutenants of police within their districts, shall possess powers of general supervision and inspection over all pawnbrokers, junk shop keepers, cartmen, hack-men, dealers in second-hand merchandise, intelligence office keepers, and auctioneers within such city.”

So that by those provisions of this section the officers named have general powers of supervision and inspection over such persons ; and in the latter part of the statute it is provided, that these officers “ in the exercise, and in the furtherance of such provisions, may, from time to time, detail members of the police force to fulfil such special duties, in the aforesaid premises, as may be ordained by the board.” There is no evidence in this record that the police board had ever taken any action under this statute, or had ever ordained any duty to be performed in carrying out the provisions of this section. There is no evidence in the record that Mr. Daley had any authority whatever for what he did, except as he says, he had been detailed to inspect and to look after these places.

We are of the opinion that it was necessary for the city to show the authority which Mr. Daley had, if he had any, under this statute; that it was necessary for the city to show that the police board had ordained certain duties to be performed, and that he had acted within the limits of the duties that had been prescribed by the police board. The power to enter a place of business at any time, and inspect it, or take possession of property, is rather a wide power, and might be abused; and the statute evidently was intended to throw around it restrictions, and limitations and to only authorize the officer to exercise such power and per-iorm such duties as had beeu prescribed by the police board.

It is not necessary to cite authorities to show that an officer has no power except in certain cases to arrest without-a warrant, or interfere with the personal property of another. It has been held a great many times. It has been held by the Supreme Court that one could not be properly convicted of resisting a supervisor of roads, where the statute under which the supervisor. was acting was unconstitutional. Hendershot v. State, 44 Ohio St. 208 (6 N. E. Rep. 245). Although the officer in that case, as the statute read and stood upon the statute books, had authority, he in fact had none, because the statute was unconstitutional.

If it should be claimed that he was acting under Sec. 1918, Rev. Stat., which refers to the examination of books, we find upon an examination of it that that section requires authority in writing. It provides that “ The superintendent and the lieutenants within their districts may, by authority in writing, empower any member of the police force, whenever such member is in search of property feloniously obtained, or in search of suspected offenders, to examine the books,” etc.

We are not advised under which statute the city was proceeding, as no brief was filed by counsel for defendant in error. We have considered both of the sections, and the evidence shows in this case that Daley was in search of property claimed to have been stolen. If it should be claimed that he was acting under Sec. 1918, Rev. Stat., then it is clear that he was acting without authority, because he had been given no authority in writing as required by this section.

Mr. Daley having no authority to enter Mr. Neifeld’s place of business and take possession of his property, Mr. Neifeld had the right under the law to resist him, as he would any other person under the same circumstances. The fact that he knew Mr. Daley was an officer, if he had such knowledge, did not affect his rights. He was arrested there and then by the officer for the offense of resisting an officer. We are of the opinion that the city failed in the respects mentioned to make a case against Mr. Neifeld, and therefore the judgment should be reversed, for the reason that if is not sustained by any evidence upon these material elements in the case. We find rfo other errors in the record. The judgment will be reversed for the reasons stated, and the case remanded for a new trial.


text:
    ASSESSMENTS.
    [Lucas (6th) Circuit Court,
    November 1, 1901.]
    Haynes, Parker and Hull, JJ.
    Kate Hendrickson et al. v. Toledo et al.
    1. Presumption in Pavor or Public Files or Records.
    The presumption from a petition for a' street improvement accompanied by a resolution ordering the improvement, identified by the city clerk as original papers, and appearing to have been duly recorded, together with memorandums on the backs of the papers indicating, in proper continuity, the action of the council thereon, is sufficient to impose the burden of proof upon persons or property owners who, in an action to enjoin the assessment, deny having signed the petition. In the absence of evidence impeaching such records or files, they should be sustained,
    2. Waiving Jury not Fatal Irregularity.
    The fact that a jury is waived in proceedings under Secs. 22-32, Rev. Stat., ei seq., to appropriate certain property through which the city has been petitioned to open and extend a street by the property owners thereon, is not such an irregularity as to invalidate the award made by the probate judge to whom the question of compensation was submitted, especially where it does not appear that there was any fraud, collusion or unfairness in the transaction, that the award is excessive, or that the complainants were prejudiced in the slightest degree. Whether there is any irregularity in such a proceeding, quaere?

    3. Failure'to Question such Method Estops.
    Where no question is raised as to such proceedings either by the city or the persons from whom the property was appropriated, but both seem contented with the award, and the city pays the award and the owners accept the same and the city takes possession of the land and holds the same, the petitioners for the improvement cannot be heard to complain, even if the proceedings were irregular, in the absence of averment oi fraud or prejudice.

      4. City Acts as Trustee — Good Faith Required.
    Where a city brings an appropriation proceeding in the probate court against the owners of the property sought to be appropriated, in conformity to a ■ petition therefor and asking that the costs and expenses thereof be assessed against the petitioners as above stated, the city acts in the capacity of a trustee for such petitioners to acquire such property. Therefore, it devolves upon the city to exercise good faith to preserve and protect the rights of the petitioners.
    5. Burden or Proor as to Benerits.
    Where it is averred by the plaintiffs in an action to enjoin assessments for a street improvement that they are not benefited by the improvement, the introduction of the petition for the improvements signed by the plaintiffs and setting forth that they believe and acknowledge that their properties will be benefited thereby, casts the burden on them to prove the failure of benefits. Whether it estops them from such declaration, quaere?

    6. Assessment Sustained — Estoppel—Contract.
    Where the improvement petitioned for is one which the council has power to legislate for and make, and where the only question of legality is that touching the right to assess the costs back upon the property, and the parties expressly agree that it shall be so assessed in accordance with Sec. 2267, Rev. Stat., this is sufficient to make the assessment valid; and whether the petitioners are bouud by contract or estoppel is not material. The court is, however, of the opinion that petitioners are estopped, and this even though it may turn out to be an agreement invalid because the city was not authorized to enter into it; that it is not necessary for the city to invoke the rule in Lewis v. Symmes, 61 O. S. 471.
    Appeal.
    Beard & Beard, for plaintiffs.
    M. R. Brailey and C. S. Northup, for defendant.
   PARKER, J.

This case is here on appeal. The action was brought to enjoin the collection of assessments made upon the lands of the plaintiffs on account of the expense, of extending Colfax street, in the city of Toledo ; the expense assessed being the cost of the lands acquired by the city for the extension of the street, i. e., the expense incident to the acquisition of these lands by appropriation proceedings.

Plaintiffs contend that this is an illegal assessment, relying upon the decision of Cincinnati, L. & N. R. R. Co v. Cincinnati, 62 Ohio St. 465 [57 N. E. Rep. 229], which overrrules Cleveland v. Wick, 18 Ohio St. 303, and holds that so much of Sec. 2284, Rev. Stat., as provides for the. assessment of this kind of expenses upon lands benefited is invalid.

Plaintiffs do not aver in their petition in this case that the improvement was not petitioned for by them or others in accordance with the requirements of Sec. 2267, Rev. Stat., which section requires that as a condition precedent to levying an assessment upon lands to be benefited, there shall be a petition signed by two-thirds of the, owners of the lands to be charged. It is averred in the petition, however, that the assessment of this cost was not made by a jury, as provided by Chap. 3, Tit. 12, Div. 7, Rev. Stat., but that the city instituted an action for the appropriation of this property in the probate court, where a jury was waived, or was not called, and that by agreement or consent the value of the two pieces of land taken was fixed at $1,560 — $600 to one proprietor and $900 to another — and that thereupon judgment for the payment of this amount was entered.

It is said that this action was irregular, and rendered the proceedings invalid, so that even if there were no other objection, the assessment ought not to stand. The petition also avers that the lands or lots of the plaintiffs upon the street were not specially benefited by the improvement, and that therefore they could not be assessed.

The answer admits the averments of the petition as to the various steps taken by the common council in establishing this improvement, the opening up of this street, and the appropriation of the property for the improvement. It denies that the plaintiffs were not specially benefited. it denies in effect that there were any irregularities in the proceedings in the probate court; and it avers with respect to the petition for this improvement as follows:

“ Further answering, these defendants say that prior to the time of the adoption of the resolution, the plaintiffs herein or their grantors, filed a petition in writing with the common council of the city of Toledo, praying the said city of Toledo to enact the necessary legislation for the appropriation and condemnation of the property necessary for the extension of said Colfax street as aforesaid, and consented therein that an assessment might be made by the said city of Toledo upon the lands of said petitioners to defray the cost and expense, including all awards ¿rising out of, or resulting from, the condemnation1 and appropriation of said property; that said parties so petitioning the said city of Toledo, knew at the time of the filing of said petition with the common council of said city, that if said improvements were made, all of the property abutting upon said Colfax street when opened and extended, as petitioned for, would be assessed for the appropriation and condemnation of said property, in proportion to the special benefits conferred thereby; that the said city of Toledo enacted said legislation in pursuance of and in reliance upon said petition, and in reliance upon their right to assess the cost and expense occasioned thereby upon all the real estate bounding or abutting upon said Colfax street when so opened and extended as aforesaid ; that these plaintiffs knew at the time of the filing of said petition with said common council,, that said property so bounding and abutting upon said Coliax street would be specially benefited by the making of said improvement over and above the general benefit that would result to the remainder of the said city of Toledo therefrom.”

These averments of the answer are denied by the reply ; so that it will be observed that the issue as to whether the plaintffs signed the petition for this improvement is raised by the answer and reply.

The evidence upon the issues as made by the pleadings has been submitted to this court. Plaintiffs contend that it does not appear from this evidence that they or their grantors petitioned for this improvement.

Exhibit 1 introduced in evidence, consists of two sheets, with a paper back, upon which back appear several endorsements. The first sheet is a petition which (omitting a part of the heading, which cannot be made out on account of the way it is pinned in) reads as follows: “To the Hon. The Common Council of the City of Toledo :

“Gentlemen: — We the undersigned, owners of the property dé-scribed opposite our respective names, the same abutting on Colfax street and Colfax street extended, between Shaw avenue and Lawrence avenue as indicated, desiring that Colfax street may be opened and extended from the present terminus of said Colfax street at the west line of Shaw’s Monroe street addition to Lawrence avenue, and believing and acknowledging that our respective properties would be specially benefited thereby, respectfully petition your honorable body to cause the same to be so opened and extended, and that you pass the necessary legislation and cause proper appropriation proceedings to be had therefor, and we further request that a special assessment be made to pay the cost and expense thereof, upon the property abutting upon said Colfax street and Colfax street extended, between Shaw avenue and Lawrence avenue, and consent and request that our respective properties may be so assessed.'
“ Respectfully submitted. ”

This is signed by twenty petitioners. Appended is a notation that there are twenty-nine land owners upon the street, and that there is a majority of five signing the petition. It is admitted that seven of the plaintiffs — Dale, Wilkinson, Miller, Hough, Van Hellen, Ott, and Yearick —signed this petition, and it is also shown that the grantor of Emma C. Caldwell, who owned the property at the time this improvement was made, signed the petition. With respect to the other plaintiffs — Kate Hendrickson, Ada S. Long and Michael Murphy — there is no evidence tending to show that' they or their grantors signed the petition; and it is conceded that the evidence shows that they did not.

The second sheet of this exhibit is a resolution in the ordinary form, declaring the intention of the city to open and extend Colfax street from Shaw avenue to Lawrence avenue, and that appears to have been adopted, according to the notation upon it, March 21, 1898. It is indorsed by a stamp by David McAllese, president of the board of councilmen, and J. Charles Meissner, president of the board of aldermen, and attested by Lem. P. Harris, city clerk. The backs of these two sheets contain various endorsements, to the effect that the resolution mentioned was adopted by the board of aldermen and the common council in 1898. There are also upon it notations indicating, as explained by the city clerk, who was a witness, that this paper had been referred to certain committees of the common council. The first sheet, viz., the petition, contains this endorsement:

“ I, William A. Mills, city solicitor of the city of Toledo, Ohio, hereby certify that I have examined the above and foregoing petition, and that I approve the same.
“ Wm. A. Miuus, City Solicitor.”

Originally that contained the additional words, ‘ ‘the 2d day of September, 1897,” but a pen was run through that part of it for some reason not explained.

■ The city clerk testifies that this paper, consisting of these various sheets, was found in the office of the city clerk, by him, in the usual and proper place for petitions and‘resolutions, and that both of the papers "have been duly recorded in the course of proceedings for the opening up ■of this street, in the respective volumes of records provided for the recording of such papers; that as a rule and custom of the office, and of the council, a petition like unto this, is first presented, and then a resolution is prepared, if upon examination it is found to have been certified thereon by the city solicitor that the petition is in due form and contains the necessary names; that when he found the paper these various sheets were fastened together in the form in which we now have them. There ,is no evidence submitted tending to show that the usual course to which he now testifies was not pursued in this case, There is no evidence tending to show that this petition was not a part of the papers fastened together as we now find them, at the time the resolution was adopted by council, and at the time the various proceedings were taken for the appropriation of this property and the opening up of this street. The presumption of the continuance of things as found alone would require us to hold, in the absence of any evidence to the contrary, that the original form of the paper was as we find it, all these sheets being fastened together and having this back on them.

, The petitioners admit that they signed this petition, and that it was signed by them sometime prior to this action by the council; they think .prior to the year that the council took action upon it. There is evidence that they also, signed another petition asking for substantially, if not exactly, the same thing; and another petition is presented here, and witnesses are questioned about it. That petition answers to the description given by the plaintiffs of that, which they signed, and which appears to have been signed, in the year 1892.

We think there is no evidence to impeach this document, and no evidence authorizing us to find that the petition was not originally a part of the document. We therefore do find that the petition was a part of the document, and was attached to the resolution, and that it was upon the faith and authority of this petition that the council proceeded ,to make this improvement.

As to the question whether there was irregularity in the action in the probate court, the confessing of judgment for $1,500, instead of impaneling a jury, and submitting evidence, and requiring a verdict of the jury awarding, the amount. It is not averred that there was any fraud, or collusion, or unfairness in this transaction; it is not averred that the amount for which there was a confession of judgment, or which it was agreed should constitute the amount of the award, was excessive in any degree; or that these plaintiffs were in the slightest degree prejudiced in any way by this action.

It seems to us that the city acted substantially in the capacity of a trustee for the petitioners in acquiring the property necessary for the improvement that they petitioned for. They had agreed that the expense should be assessed upon their property, and therefore it devolved upon the city to exercise good faith to undertake to preserve and to protect the rights of the petitioners, but in the absence of any averment- of any wrong or any prejudice, we do not think that there was such an irregularity in these proceedings as would invalidate them. For my own part, I am not able to say (supposing it to have been fairly and honestly done), there was any irregularity about it. I do not understand why the city and the owners of the property cannot agree upon the amount. It seems to be that the statute (See Secs. 1692 and 2232, Rev. Stat. et seq.') authorize the city to acquire property for such purposes by purchase or agreement as well as by condemnation proceedings, and that if they can obtain it at a fair price by an agreement or com-, promise, they may do so; and when the petitioners ask that the council shall proceed to pass the necessary legislation to cause proper appropriation proceedings to be had to acquire the property, the fair construction of that is, if the city is not able to obtain it at a fair and reasonable price without condemnation, then the city is authorized to proceed by appropriation proceedings to acquire the property. At all events, we agree that there was no irregularity in this that would invalidate the award. The city was contented with it, the owner of the property was contented; the city is not questioning it, the owner of the property raises no question about it. The city paid the award, the owner of the property accepted the award, and the city took possession of the premises and has since held them. And we do not think, even if this were an irregularity, that it now lies in the mouths of the plaintiffs to complain, unless their complaint is based upon an averment or charge of fraud or prejudice of some sort.

The petition avers that the plaintiffs were not benefited by this improvement. No witnesses were called upon that subject. If it devolved upon the city to show benefit as the pleadings stood (which we very much doubt), we think that situation is changed when this petition is produced, with the petitioners setting forth in their petition that they believe and acknowledge that their respective properties would be especiallj' benefited'by the improvement, and that they direct and consent that their respective properties may therefore be assessed- for the improvement. Though perhaps not absolutely estopped thereby from saying that they derive no benefit, they should at least furnish evidence': sufficient to sustain the burden of proof thereby cast upon them, to show hat they did not derive a benefit from the improvement.

That brings us to the principal question in the case, which is whether the plaintiffs who petitioned for this improvement or whose grantors petitioned for the improvement, are bound to pay the assessment because of their having petitioned.

I pass over without discussion the question whether this expense may be assessed upon abutting property owners under ordinary circumstances, where no question of estoppel arises, because we understand that has been decided in favor of the contention of the petitioners, in the case of to which I have referred, i. e., Cincinnati, L. & N. R. R. Co. v. Cincinnati, supra, which we followed in McGlynn v. Toledo, 12 Circ. Dec. 15 (22 R. 34). In the McGlynn case it was contended that the petitioners were estopped, because they had petitioned for the improvement which in that case consisted of the grading and paving of a street. The expenses assessed upon the property of which the property owners in that case complained were awards of damages on account of a change of grade of the street, and we held that they were not estopped, because the evidence did not show us that the property owners were so far aware of the fact that the city was proceeding upon the faith of the former decisions of the Supreme Court with respect to the law as to be estopped from asserting an objection to the assessment. The decision turned rather upon a question of the construction of their petition, which did not set forth specifically and distinctly that they agreed to be assessed expenses of this particular nature, and we held that therefore they should be deemed to have petitioned for and consented to such assessment only as would be legal and valid; that it should be assumed that what the parties asked for at the hands of the council was, that it should proceed under valid laws, and according to law, to make the improvement and the assessment. But in the case at bar we find no opportunity for putting a construction upon this petition which would sustain it as consenting to a part of the costs and expenses to be involved in the improvement, and which would not sustain it as to the remainder; for the whole improvement consists in the extension of the street, and the whole cost and expense incident to it is that arising from the acquisition of the property necessary for the extension. So that it appears very clearly and distinctly, that the petitioners applying to the council to make this improvement, consented and agreed that the cost and expense should be assessed upon their property. Are they, under such circumstances, bound by their agreement or by estoppel? We think they are. We think they are bound, applying the principles laid down by our Supreme Court in State v. Mitchell, 31 Ohio St. 592, and in Columbus v. Sohl, 44 Ohio St. 479 (8 N. E. Rep. 299]. I read a paragraph from the case last cited, page 482. The law in that case under which the improvement, consisting of the paving of a street, was made, was held by the Supreme Court to be unconstitutional and void, and yet the assessments made under and in pursuance of that law were sustained and enforced, and they were enforced because, as stated in State v. Mitchell, supra, the parties by their ac.tion in invoking the aid and assistance of the council under the law were estopped, and because, as stated in Columbus v. Sohl, supra, they were bound by their agreement. The paragraph to which I refer is as follows :

“ The law was invalid, and no authority was derived from it, for the making of the improvement, beyond the extent to which it had been adopted by all concerned as a scheme for improving North High street. Its provisions simply furnished the terms of an agreement among the concurring property holders, and the basis of a commission from them to the agencies of the city for the improvement of the street; and the rights and liabilities of all parties, including the city, are to be determined by the law of contract and agency, and not by any statutory powers that may have been intended to be conferred by the legislature; for the act being invalid could confer none.

Sohl, the defendant in that case, was held because he had petitioned for the improvement.

In State v. Mitchell, supra, it was said that parties who had participated in the business leading up to making the impro ement would be bound, but just how far they would be required to participate in order to be bound was not very clearly indicated, the court suggesting that that question could be presented if the parties sought to resist the collection of the assessment. But in the Sohl case it was held that it was a sufficient participation to petition for the improvement. In the Mitchell case it was held that not only the commissioners who acted under that law, but also those who petitioned for the improvement, were bound.

It would be manifestly unfair and unjust to the city for parties to petition for an improvement, and agree to pay the costs thereof, and afterwards, upon some technicality, saddle the expense upon the taxpayers of the city generally. Circumstances often arise in which a city may be willing to lend its aid by legislation and such machinery as is provided by law to parties to make an improvement, if the parties are willing to pay for it, where the city would not agree to do so unless the parties would agree to pay for it. The statutes upon the subject of assessments, Chap. 4, Tit. 12, Div. 7, provide that improvements of this kind may be paid for by the city out of the general funds. I read from Sec. 2263, Rev. Stat.:

“ When the corporation appropriates, or otherwise acquires, lots or lands for the purpose of laying off, opening, extending, straightening, pr widening a street, alley, or other public highway, or is possessed of property which it desires to improve for street purposes, the council may assess the cost and expenses of such appropriation or acquisition, and of the improvement, or of either, or of any part of either, upon the general tax list; in which case the same shall be assessed upon all the. taxable real and personal property in the corporation. ”

But Sec. 2267, Rev. Stat., provides that the council may decline to do that, and may require a petition setting forth that all cost or some share of the cost shall be assessed upon the property of the petitioners; and where such petition is filed, the .council shall proceed accordingly to assess all, or such part of the costs as the petitioners consent to, upon the property specially benefited; and under .this plan what is said by Judge Burkett in Cincinnati, L. & N. Railroad v. Cincinnati, supra, reading from pages 484, 485, is quite pertinent:

“Sometimes a municipality desires to open a new street, or straighten or widen an old one, in the line of general improvements, and for the general benefit and appearance of the municipality, and not for the special benefit of the lots and lands in a particular district. In such cases the compensation, costs and expenses for lands taken should be paid by the municipality out of its general revenue fund raised for such purposes.
“Sometimes the people in the vicinity desire to have a new street opened, or an old one straightened or widened, as a special' benefit to their lots and lands, and when the same .would not be sufficient benefit to the municipality to warrant the payment of the compensation, costs and expenses out of the treasury. In such cases the municipality may refuse to act in the matter until the parties to be specially benefited supply the funds to pay the compensation, costs and expenses, or such portion thereof as the municipality regards fair and just, the same as is now authorized by Sec. 4651 as to public roads. By acting upon this principle the burden can be placed where it belongs without forcing people to contribute by assessments where they are not benefited, and where they are .opposed to the opening, straightening, or widening of the street; and more than all else, their constitutional rights will be protected. If the present statutes are not broad enough, they can be amended.”

In our judgment, in such a case as this, where the improvement is petitioned for, and where it is such an improvement as the council may legislate for and have made, and where the only question of legality is that touching the right to assess the costs back upon the property, and the parties expressly agree that it shall be so assessed, this statute is quite sufficient, in connection with the agreement, to make an assessment valid; and whether they are bound by contract or estoppel, or both, is perhaps immaterial. To us it seems that they are estopped by the contract or agreement, even though it may turn out to be an invalid agreement because the city was not authorized to enter into such an agreement. I may add that it seems to us that it is not necessary for the city to invoke the rule laid down in Lewis v. Symmes, 61 Ohio St. 471 [56 N. E. Rep. 194],

For the reasons stated we hold that as to the plaintiffs, Dale, Wilkinson, Miller, Hough, Van Hellen, Ott, Yearick and Caldwell, the petition should be dismissed at their costs, and that there should be a decree as prayed for in favor of Kate Hendrickson, Ada S. Fong and Michael Murphy. There being a decree in favor of three of the plaintiffs and against eight, the costs will be apportioned accordingly; eight elevenths of the costs will be adjudged against the petitioners as to whom the petition is dismissed, and three-elevenths will be adjudged against the city.


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    PERSONAL, INJURIES — DAMAGES.
    [Lucas (6th) Circuit Court,
    October 26, 1901.]
    Haynes, Parker and Hull, JJ.
    Louise Ohliger v. Toledo Traction Co. et al.
    1. Obiter — Damages eor Injury erom Fright.
    It would seem to be a harsh rule, that a person cannot recover for a physical injury, as for instance a rupture of the heart or of a blood vessel, or paralysis or some other functional disorder, caused by fright in consequence of the negligence of another, seems to be a harsh rule; and whether it would be followed, quaere ?

    2. No Recovery Allowed eor Distress oe Mind.
    When the only injury from the negligence of another is distress of mind, there can be no recovery.
    Heard on Error.
    Southard & Southard, for plaintiff in error,
    cited.
    1. Mental pain and suffering when accompanied by physical injury is recognized by all courts as a proper subject of damage. 8 Am. & Eng. Ency. Raw (2 ed.), 658, 662, 666, 667, 668, 669; Black Law & Practice in Accident Cases, Sec. 281. _
    2. What constitutes bodily injury. Warren v. Railroad Co., 40 N. E. Rep. [163 Mass. 484 ]; Consolidated T. Co. v. Eamberton, 36 Atl. Rep. 300 [86 N. J. R. 297]; Reach v. Reach, 33 S. W. Rep. 703 [11 Tex. Civ. App. 699.]
    3. Wanton and intentional wrongs. Spade v. Railway Co., 47 N. E. Rep. 88 [168 Mass. 285; 38 R. R. A. 512 ; 70 Am. St. Rep. 298]; Purcell v. Railway, 50 N. W. Rep. 1034 [48 Minn. 134; 16 R. R. A. 203]; Gulf C. & S. F. Ry. Co. v. Hayter, 55 S. W. Rep. 128.
    4. Physical injuries produced by fright; proximate cause. Sloane v. Railway Co., 44 Pac. Rep. 320 [111 Cal. 668, 683; 32 R. R. A. 193] ; Brown v. Railway Co., 11 N. W. Rep. 356 [54 Wis. 342]; Razzo v. Varni, 22 Pac. Rep. 848 [81 Cal. 289]; Chicago & N. W. Ry. Co. v. Huneberg, 16 Ill. App. 387.
    5. Fright when connected with recognized cause of action. Cleveland City Ry. Co. v. Ebert, 10 Circ. Dec. 791 (19 R. 25) ; Smith v. Railway Co., 23 Ohio St. 18, 19; Kester v. Telegraph Co., 4 Circ. Dec. 410 (8 R. 240); also, “ Compensation damages for mental suffering,” 52 Central Raw Journal, 126; Mental Suffering,” 15 American Digest 1756, etc.; “Mental Suffering,” Thomas Rules, Opinions, etc., p. 1242n.; “ Riability of a Telegraph Company for Mental Suffering,” by W. C. Rogers, 29 Am. Raw Review, 209.
    Smith & Baker, for defendants in error.
   PARKER, J.

Plaintiff in error, who was plaintiff in the court below, brought an action against the Toledo Traction Company and Daniel H. O’Hara, charging that they had been guilty of negligence whereby she had been injured and suffered damages, which she sought to recover, The case was tried to a jury, and resulted in a verdict in favor of the defendants. A motion for a new trial was overruled. On occount of alleged errors occurring in the court below, Rouisa Ohliger prosecutes error here.

She charges in her petition that on June 7, 1900, she was a passenger upon one of the cars of the Toledo Traction Company, a company operating a system of street cars in the city of Toledo, and that through the negligence of the employes of the company in charge of that car, and the negligence of the driver of a certain garbage wagon owned by the defendant O’Hara, a collision occurred between the car and the garbage wagon. She says that she was very much frightened by the collision and suffered great agony and distress of mind in consequence of the fright. She also says that she was thrown violently forward from her seat in the car, and then jerked violently backward into the seat, whereby she suffered physical injuries, perhaps a fracture of one of the floating ribs, and of the pelvis, and a lesion of some of the muscles or tendons of the back. The jury returned a verdict in favor of the defendants. They also answered certain interrogatories submitted to them, as follows :

“ 1. 0. Was whatever injury the plaintiff sustained caused by fright ? A. Yes.
“ 2. Q. Did plaintiff receive any physical or bodily injury at the time by reason of the collision ? A. No.”

It seems that on the trial in the court below the chief controversy, if not the only serious controversy, was whether the plaintiff might recover for injuries resulting from fright alone, and that question is debated here, — whether the plaintiff might recover for the distress of mind due to fright caused by the negligence of the traction company and the other defendant. The second question debated is, whether the general verdict and this answer to the second interrogatory were against the weight of the evidence.

In debating the question whether she might recover for injuries received from fright, counsel for the plaintiff in error have discussed it as if the question were whether if through fright she suffered any organic or functional impairment of the heart or other organ, that might afford a basis of recovery.

If the answer to the second interrogatory is to stand, that question is not involved, since that answer is that she suffered no physical or bodily injury at the time or by reason of the collision.

There is evidence tending to show that after this collision and in consequence of it, she became extremely nervous and debilitated ; unable to walk with ease, unable to perform her usual and ordinary work that she had been accustomed to perform before that time, and that she suffered great distress and pain in the back ; all of which injuries the testimony tends to show may have resulted from the iright that she suffered on this occasion. On the other hand, there is testimony tending to show that before this collision she was weak and feeble, an infirm, delicate woman, and fully as bad off physically as she was after the injury; and that she was feigning, pretending, that she suffered pain in her back; that is, that she was feigning so much as would appear to be in excess or aggravation of what she had previously suffered.

If the question were to be decided by us, we would not feel inclined to follow the authorities cited in support of the proposition that there could be no recovery on account of physical injuries from fright, without giving the matter much more study and consideration than we have given it in this case. There are authorities to that effect, many of them decisions that are entitled to great respect; but it seems to us at first blush, and indeed after such consideration as we have given it, to be a harsh rule, and perhaps not in entire harmony with other rules upon the subject, though it may be the law. We might, if we were required to pass upon the question, find ourselves obliged to follow this line of decisions. It would seem, as I say, to be a harsh rule, to say that one suffering from fright in consequence of the negligence of another, if that fright resulted directly in a physical injury, as for instance a rupture of the heart or of a blood vessel, or paralysis, or some similar functional disorder, could not recover on account thereof; and yet it is conceded that for a mere physical injury, as for instance an injury produced by something coming in contact with the body, whereby there would be a contusion or an abrasion, or any other injury to the tissue or substance of the body, no matter how trifling, there might be a recovery, and such injury would let in 'proof of, and enable one to recover on account of other injuries resulting from the fright. But as I say, we do not feel obliged to pursue this inquiry or to decide upon this question of law, because the answer of the jury to the second interrogatory excludes it all. It is sweeping. It is to the effect that there was no physical injury resulting from this fright; that whatever injury the plaintiff suffered was from the fright, and that such injury was not physical; that therefore if she suffered any injury it must have been in the nature of distress of mind consequent upon the fright; and we think that the authorities are clear, uniform and consistent, to the effect that for such distress of mind standing alone i. e.— when that is the only injury resulting from the negligence, there can be no recovery.

That leaves for consideration the question whether this general verdict and this answer to the second interrogatory are against the weight of the evidence. I will not undertake to discuss the evidence, and shall content myself with saying that we cannot find that the conclusions of the jury are contrary to the weight of the evidence.

The verdict and judgment, therefore, will be affirmed.


text:
    NEGLIGENCE — PLEADING—CHARGE TO JURY.
    [Lucas (6th) Circuit Court,
    October 26, 1901.]
    Haynes, Parker and Hull, JJ.
    Toledo v. William Radbone.
    1. Averment or Knowledge oe Defective Sidewalks — Evidence.
    An averment of knowledge on the part of a city of the defective condition of a sidewalk may be sustained by evidence of facts from which constructive notice would arise, although constructive notice is not charged.
    2. Injured Person Mat use His Judgment to Effect Cure.
    A person injured through the negligence of others, may properly proceed upon his own judgment to effect a cure; he is not bound," in order to recover damages there for, to satisfy the judgment of any one else as to what treatment he should give the injury. A mistake in treatment, due to an error in judgment will not bar his recovery or mitigate the damages, and any qualification as to what an ordinarily prudent man might do, has no application thereto. Thus, a person who, upon receiving what he supposed to be a trifling injury, treated the same with home remedies for several weeks, when he discovered that it was not healing, and then employed a physician, is not thereby barred from recovery.
    3. General Exception Relate to Charge as a Whole.
    A party having filed a general exception to a charge as a whole, without asking the court to charge specifically upon the subject complained of, is bound by the whole charge. He cannot afterwards pick out a single sentence in a paragraph and complain of it.
    4. Verbict not Excessive.
    A verdict of $1,500 for injuries sustained by a person falling upon a defective sidewalk, the immediate effects of which were abrasions or contusions of the skin, which ultimately resulted in ulcers, causing great distress and disabling him to a great degree, is not excessive.
    Heard on Error.
    M. R. Brailey and C. K. Friedman, for plaintiff in error.
    King & Tracy, for defendant in error:
   PARKER, J.

William Radbone brought an action in the court of common pleas of this county to recover from the city of Toledo on account of injuries which he averred he sustained by falling upon a sidewalk which he charges was defective. He say that his fall and his injuries were in consequence of this defect, and that the city was negligent in permitting this defect to exist. It is said on behalf of the city; that the verdict is against the weight of the evidence, but this is not insisted upon in argument ; nevertheless, being assigned as a ground of error, we have carefully read the record, and are of the opinion that the verdict is fully sustained by the evidence; that the defendant in error made out a very clear case against the city.

The petition avers that the city had knowledge of this defect for some time before plaintiff sustained his injury: Upon the trial of the case, evidence was admitted tending to show that the defect had existed ■for so long a time that the city was chargeable with constructive notice thereof. There was no proof of any actual or direct notice, or of any actual knowledge by any person whose knowledge would be knowledge of the city. At the close of the evidence; counsel for the city moved the court to direct the jury to return a verdict for the defendant, on the ground that the petition did not allege constructive notice, and that ho actual notice had been proven.

We think there was no error in admitting this evidence in support of this allegation, or in overruling this motion. We think an averment of knowledge in a case of this character may be sustained by evidence of facts from which constructive notice would arise; in other words, that from such a state of facts as is shown here, the city is chargeable with all the effects of knowledge.

It is complained that there was error in the charge as it was given upon the subject of the circumstances that would render the city liable, but it is conceded that there is no error in the charge as it stands now in the record. It is said that there has been a correction made, and it appears that this correction was made by the judge who delivered the charge.

We must take the record as we find it. We will say in passing that it appears to us to be quite apparent that the correction was right; that the learned judge never gave the paragraph to the jury, standing alone as a proposition by itself, as it stood before the correction was made. In other words, the sentence as it stood would have been in effect a direction to the jury to find a verdict for the plaintiff below; and that, in view of the course pursued upon the trial by counsel and the court, and the pains the court took before this, and afterward in the charge, to lay down all the rules of law applicable to the cause, would be entirely inconsistent, and would be very absurd. The sentence standing right after that — “ it is your duty to find a verdict for the plaintiff, unless guilty of negligence himself directly contributing to his injury,” as charged, is correct. That is simply the termination of a long sentence, setting forth the circumstances under which the city would be responsible, which is entirely unobjectionable. The correction consisted in striking out a capital “A” of the word “And,” at the beginning of a part of this sentence, and putting in a small “a,” and changing a period to a comma — a mere correction in the punctuation of the sentence.

It is also contended that there is error in the charge upon the subject of the duty of the plaintiff below to employ a physician. It appears that when he fell he bruised and knocked the skin off his shin, and that he undertook to treat the injury himself, supposing that it was trifling, by the application of some home remedies, such as arnica, bandaging, etc. In the course of about three weeks he found that the hurt was not healing, but was becoming worse, and thereupon employed a physician. The injury utimately resulted in ulcers, which caused him a great deal of distress, and disabled him to a great degree.

The part of the charge on this head which is complained of is a single sentence in a paragraph which is devoted to this subject, which sentence reads: A mistake in treatment to his limbs, a mistake in judgment in the result, would not bar his recovery or mitigate the damages.”

It is insisted that the court should have qualified this by saying that if the mistake in judgment was such as an ordinarily prudent man might, have made, would not be barred from recovery. We think that no qualification is required; that the injured person is to proceed upon his own judgment, or such judgment as nature or his Creator has given him, and is not bound to satisfy the judgment of somebody else. But taking the whole paragraph on that subject together — I will not take time to read it — it seems to us to be entirely correct. It is not admissible for a person who has filed a general exception to the charge, and has not asked the court to charge specifically upon a subject, to afterwards pick out a single sentence in a paragraph and complain of that. He must take the whole charge together. We think there was nothing wrong, nothing misleading, in this charge upon this subject.

Finding no error in the record, the judgment of the court below is affirmed.