text:
    INJURY TO WOULD BE PASSENGER WHILE STEPPING ON STREET CAR.
    Court.of Appeals for Hamilton County.
    The Cincinnati Traction Co. v. Weber.
    Decided, May 16, 1914.
    . Negligence — One Stepping on Street Car — Injured by Sudden Starting of Car — Effect of Reading Petition as Part of Charge to Jury — Allegation Not Supported by Evidence — Rendered Harmless by Subsequent Instruction to Jury — When One Becomes a Passenger on a ■Street Car.

      i. One is a passenger in a street oar wlio is in the act of stepping on the step or platform, the car having stopped for him; and in case of an accident when stepping on, his rights are those of a passenger. In an action for damages on account of personal injuries due to the sudden starting1 of a street car under such Circumstances, it is not error for the trial court to refuse to incorporate in the charge to the jury a.statement that to. warrant a finding that the plaintiff was a passenger the jury must find that the conductor knew, or by the exercise of ordinary care should have known, that the plaintiff was about to board the ear while it was at a standstill.
    2. It is not error for the court to read to the jury- thp entire petition, which petition sets forth an element of damage not supported by any evidence, where the court, in the portion of the charge which followed the reading of the pleadings, did not make any allusion to the element of damage which, was uns\ipported by evidence; but on the contrary mentioned the different elements of damage which would go to make up the verdict of- the jury in case they should find in favor of the plaintiff.

      Kittredge & Wilby and R. E. Simmonds, for plaintiff in error.

      Bettinger, Schmitt & Kreis, contra.
   Jones (E. H.), J.

In the action below the defendant William F. Weber was plaintiff, and in his petition sought damages on account of personal injuries alleged to have been sustained by him on the afternoon of October 23, 1910.

In his petition it is alleged that on said day “one of defendant’s North Norwood cars being operated, over Montgomery pike, inwardly bound, for the said.city of Cincinnati, stopped on the bridge which crosses the tracks of the Baltimore & Ohio Southwestern Railroad, in said city of Norwood, which said point is a regular stopping place, for the purpose of taking on passengers to be conveyed to Cincinnati.

“That while said car was standing still, after having stopped as aforesaid, this plaintiff started to board the same, and took hold of the rear post with his left hand and put his right foot on the step of said ear, and was attempting to board the same for the purpose of being conveyed to Cincinnati, when said car, through the negligence and carelessness of the agents and servants of said defendant, and. before this plaintiff had ample opportunity to board the same and reach a place of safety, suddenly and without any notice, or warning to this plaintiff, started with a violent and unusual jerk or' motion, whereby this plaintiff, without any fault or negligence on his part, but solely through the negligence of said defendant, was violently thrown to the street,” etc..

The trial resulted in a verdict in favor of the plaintiff below, and this proceeding in error is prosecuted for. the purpose of reversing the judgment in his favor entered upon said verdict.

Two assignments of error are relied upon by plaintiff in error in the brief and oral argument of counsel.

The first error assigned is in the charge of the court. The plaintiff in error in its brief says:

"We submit that there is error in the charge of the court to the jury with reference to whether or not the plaintiff at the time the accident occurred, was a passenger, and, as such, entitled to demand from the defendant that it exercise toward him .the highest degree of care as defined by the court below in his charge to the jury.”

■ The brief then quotes the following portion of said charge:

‘ ‘ Now, coming down to this particular case, if the plaintiff was in the act of getting on the ear, taking hold of the car, and was in the act of getting upon the car, he was then entitled to the rights of a passenger and the obligations existing between the company and the plaintiff are those to which I have already referred : ordinary care on the part of the passenger to take care of himself and avoid dangers, and the highest degree of care on the part of the defendant, if, as I say you find from the evidence that the plaintiff had become a passenger. In other words, that he had laid hands upon the car, and had endeavored to get upon it. Also it must be before the ear was in motion.”

Counsel for plaintiff in error point out that this portion of the charge was erroneous in that the trial judge did not incorporate in it something to the following effect:

"And if the jury should find that the conductor knew; or by the exercise of ordinary care should have known, that the plaintiff was about to board the car while it was at a standstill.”

It is admitted in the answer of the defendant below that the place where the accident occurred was a regular stopping place for taking on and letting off passengers. There is no question, from the evidence, but that the car stopped for the purpose of taking on a group of persons who were waiting for the car. It is also uneontradieted that the plaintiff below was among those who.were waiting to board the car. These.facts having been proven, and their being no evidence tending to rebut the same, it is unnecessary, in the opinion of the court, for the trial court to incorporate in its charge any condition with reference thereto such as that quoted above from the brief of counsel for plaintiff in error. The motorman and conductor both testified that the car stopped at this regular stopping place for the purpose of taking on these would-be passengers, thus extending to them an invitation which was accepted by several persons as soon as they .respectively laid hold upon the car for the purpose of entering the same.

This principle of law seems to be well established, ,and is concisely stated in I Nellis on Street Railways (2d Ed.), Section 252, as follows:

‘ ‘ One is a passenger in a street car who is in the act of stepping on the step or platform, the car having stopped for him, and in - case of an accident when stepping on, his rights are those of ,a • passenger.”

Under the undisputed facts as stated above, we conclude that the 'charge of the-court, or the portion thereof above quoted, contains a complete statement of the law as applicable to this case.

The second and last assignment of error complained of is stated in the brief for plaintiff in error as follows:

.“We -submit that the court below also erred in submitting to the jury, by reading the petition, elements of damage claimed in the petition which were not supported by any evidence. We refer to the following portion of the petition as included in the charge: ‘ That he was unable to attend to his grocery business but has had to employ extra help in order to carry on the same, during which time, because of the lack of his personal at- ' tention, he has lost several customers and has otherwise sus- . tained losses- in said business.’ ” ■

The bill of exceptions shows that the court read to the jury the entire petition, including the language just quoted. It is conceded that there was no evidence to support in any way this allegation in the petition. It is not claimed that the court in the portion of the charge which followed the reading of the pleadings made any' allusion to this element of damage which was unsupported 'by evidence; on the contrary, the court mentioned the different elements of damage which would go to niake up the verdict of the jury in case they should find in favor of the plaintiff, and nowhere did it make any mention of the loss of business complained of in the petition. It would be a sad reflection on the intelligence of the twelve men who made up the jury to assume, in the face of the charge of the court upon the elements which constituted the damage ,and upon the necessity of proof to support each of the claims, that they would proceed to award damages upon-a claim in the petition which was abandoned by the plaintiff in the trial of the case and which had no evidence whatever in its support.

After a careful examination of the record, and a consideration of the points advanced by counsel for plaintiff in error, we are persuaded that there is no error in any manner prejudicial to the plaintiff in error; that substantial justice has been done; and that the judgment below should be affirmed.

Judgment affirmed.

Jones (Oliver B.), J., and Swing, J., concur.


source: Caselaw Access Project

author: Ferneding, J.

license: Public Domain

text:
    WRIT OF PROHIBITION MUST BE BASED ON WANT OF JURISDICTION.
    Court of Appeals for Franklin County.
    The Kanawha & Michigan Railway Co. v. The Court of Common Pleas et al.
    Decided, March 7, 1916.

      Prohibition — Writ of, Distinguished from Writ of Error — Oan Only be Invoiced where there is an Absolute Laelc of Jurisdiction.

    1. The writ of prohibition can not be made a substitute for a proceed- • ■ ing in' error, and in order to invoke ithis writ there must be an absolute'want of jurisdiction.
    .2. Jurisdiction is determined by the pleadings, and when the petition contains an averment sufficient to invoke the jurisdiction of the court, the question of jurisdiction must be met by tendering an issue of fact which the court has jurisdiction to decide and the decision of which may be reviewed on error. This rule is not changed by an admission of counsel that the averment in ques-tion is not supported toy the facts. Under such conditions the remedy is error and not prohibition.

      W. N. King and E. J. Jones, for applicant.
    In prohibition.
   Ferneding, J.

An ex parte application is made for a writ of prohibition against further proceedings in the case of Clarence C. Case-bolt against the applicant in a proceeding pending in the Court of Common Pleas of Franlkin County. This writ can not be made a substitute for a proceeding in error. State, ex rel Broenstrup, v. The Court of Common Pleas of Montgomery County (decided by the Supreme Court June 3, 1913, 11 O. L. R., 72), and State, ex rel Garrison, v. Brough et al, 94 Ohio St., 115.

In order to invoke the writ, there must be an absolute want of jurisdiction. Jurisdiction is determined by the pleadings. It is admitted in the case at bar that the,petition contained an averment that the applicant’s railroad extended into Franklin county. This averment was sufficient to invoke the jurisdiction of the Court of Common Pleas 'o'f Franklin. County. The case is similar to that of a party brought in from another county because of a joint liability with a party over whom the court has jurisdiction. See Allen v. Miller, 11 Ohio St., 374.

In such case the question- of jurisdiction must be met in that ease by tendering ,an issue of fact which the-court has jurisdiction to decide and the decision may be reviewed on error. We think this rule is not changed by the fact that counsel for the plaintiff in the action in the court of common pleas admitted on the hearing of a motion to dismiss for want of jurisdiction that the railway company did not extend into Franklin county. This admission formed no part of the pleadings and would be merely evidence upon which the court of common pleas might be justified in acting in determining the issue of fact as to jurisdiction..

We have therefore reached the conclusion that the applicant’s remedy is error and not prohibition. ■

Application refused.

Kunkle, J., and Allread, J., concur.


author: Jones (E. H.), J.

text:
    TOWNSHIP DITCH PROCEEDINGS.
    Court of Appeals for Clinton County.
    Board of Township Trustees of Wilson Township v. Gilbert et al.

    Decided, February 22, 1915.

      Ditches — Township Trustee May Petition for Township Ditch in His-Capacity of Property Owner — Bequest for Tiling Not Necessary, When.

    1. It is unnecessary, when township trustees are proceeding under a petition containing an express prayer for the tiling of a ditch, that one or more of the parties interested should make a written reguest, at the hearing of the petition, that the tiling be done.
    2. There is no inhibition against an owner of real estate filing or joining in a petition to township trustees for an improvement . of a ditch, merely because at the time he happens to be a member of the board of township trustees, and the proceedings for such improvement are not invalid where the record shows that such trustee took no part, as trustee, in the proceedings by the board of trustees in relation to the matter, and that all proceedings were conducted by the other members of the board who constituted a quorum and had power to act.

      Joe T. Doan, Prosecuting Attorney, P. B. Aldridge and James M. Morton, for plaintiff in error.

      W. I. Stewart and Hayes & Hayes, contra.

      Motion for an order requiring the Court of Appeals to certify its record in this case overruled by the Supreme Court April 6, 1915.

   Jones (E. H.), J.

A petition in error was filed in tbis court seeking a reversal of the judgment of the court of common pleas in setting aside the action of the township trustees of Wilson township in certain proceedings had before said trustees for the cleaning, altering and tiling of a certain ditch.

This ditch was originally constructed about the year 1903, and the petition filed with the township trustees, upon which the proceedings under review are based, prayed that ‘‘‘you may establish, deepen, straighten, alter the course of if- necessary, and tile with proper underground drain tile that part of the’ township ditch known as the Aaron Gilbert Ditch petitioned for by Aaron Gilbert and located and established the trustees of said township about August, 1903, described as follows:’’ etc.1

It was held by the common pleas court, on petition in error that under such a petition the township trustees had no authority to order that said ditch or any part thereof be tiled, unless one or. more of the .parties interested should make a written re-quest, at the hearing of the petition, that tiling be done, in accordance with the terms of Section 6614, General Code.

This section has application, as we think, to proceedings in the establishment and construction of a ditch’ where the petition does not contain an express prayer for tiling. The proceeding under review, however, was manifestly brought under Section 6644, General Code, which relates to altering, deepening, widening, enlarging, repairing, boxing or tiling a ditch already established and constructed, as was this Gilbert ditch: -

“Section 6644. The trustees may cause a ditch, or part thereof, located and constructed under any law, to be altered, deepened, widened, enlarged, repaired, boxed or tiled, and like proceedings shall be had, so far as applicable, as is required in the location and construction thereof. The expense--thereof shall be apportioned as is provided in.this title for original construction. ” '

The petition filed with the trustees, out of which this controversy arose, asks, among other things, that the ditch be tiled. The transcript of the proceedings before the township trustees shows, by written objections filed and claims of various kinds presented by those interested, that the tiling was an important part of the improvement under consideration.

It seems to us that it would be a vain thing in such a proceeding to require those desiring an enclosed ditch, or a tiled ditch, to renew this prayer, or to file any sort of a written request, when the original petition, as we have said, clearly embraced the tiling of the ditch.

Counsel for defendants in error lay stress in their brief upon the fact that Mr. Peele, petitioner for the improvement, was at the time the petition was filed and during the pendency of the proceedings, a member of the board of township trustees, and that by reason of his holding his said position he had no right to file the petition.

The statute provides that a majority of the board of township trustees may act in any matter, and we find no inhibition against an owner of real estate filing or joining in a petition for an improvement of a ditch merely because at that time he happens to hold the office of township trustee or other office. The record shows that he took no part, as trustee, in the proceedings by the board of trustees in relation to this matter, but that all proceedings were conducted by the other members of the board, who constituted a quorum and had power to act.

We find that there was error in the judgment of the common pleas court in reversing so much of the proceedings of the trustees as ordered the ditch to be tiled.

We have examined the other errors assigned in the petition in error filed in the common pleas court, .and fail to see where there was any departure from the provisions of the statute in the action of the trustees.

Judgment reversed.

Swing, P. J., and Jones (Oliver B.), J., concur.


author: Chittenden, J.

text:
    EXPERT OPINIONS BY PHYSICIANS AS TO INJURIES SUFFERED.
    Court of Appeals for Lucas County.
    The Toledo Railways & Light Company v. Mary Prus.
    Decided, March 31, 1917.

      Professional Opinions — Where Given by Physicians as to Injuries Sustained — Oan Not be Based on Statements Made by the Injured Party —Objections to Evidence Must be Promptly Made — Damages for Injuries Suffered Must be Limited to those Reasonably Certain to Result from the Injury.

    1. A physician who makes an examination of one who has received physical injuries, for the sole purpose of enabling him to testify as an expert in an action to recover damages for such injury, can not testify to statements made by the party as to her condition, and an opinion given by the physician must not be based in any substantial degree on statements of the injured party as to subjective symptoms.
    2. In general, a physician when testifying as an expert should be able to state to the jury, before giving his opinion, that such opinion is based upon his examination of the person without being affected in any substantial degree by the relating to him by the person of subjective symptoms.
    3. The law imposes upon every litigant the duty' of vigilance in the trial of a case, and he can not permit incompetent evidence to be introduced without objection or without seeking to have the same excluded, with reasonable promptness, and at the conclusion of the trial, especially after argument of the case to the jury, predicate error upon the refusal of the court to exclude such evidence from the jury at that stage of the trial.
    4. Witnesses can not be interrogated as' to matters wholly collateral merely for the purpose of contradicting them by other evidence, and if questions of this character are answered the answer can not be contradicted by the cross-examiner.
    5. Where prospective damages from an injury are claimed, they should-be limited by the court in its charge to the jury to such as the evidence shows are reasonably certain to result from the injury, and it is error to charge that recovery may be had for "such future pain and suffering as you find from the evidence is liable to ensue.”

      Tracy, Chapman & Welles, for plaintiff in error.

      Sala & Carabin, contra.
   Chittenden, J.

Error to the court of common pleas.

The plaintiff in the court of common pleas, Mary Prus, recovered a verdict and judgment against the defendant, the Toledo Railways & Light Company, in the sum of twenty-five hundred dollars as damages for injuries sustained by being thrown from a street car while in the act of alighting therefrom.

The defendant admits that the plaintiff was, on the date of the accident, to-wit, the 7th day of December, 1915, upon one of the cars of the defendant, and that in attempting to dismount therefrom she fell to the pavement. Tha defendant denies all allegations of negligence upon the part of the defendant, and pleads in the alternative that if it was in any wise negligent, the plaintiff was guilty of negligence directly contributing to her injuries in that she attempted to dismount from a moving car.

The first error relied upon for reversal of the judgment is that the verdict and judgment are against the weight of the evidence. Without entering into a discussion of the evidence, we deem it sufficient to state that after an examination of the record we are unable to find that the verdict and judgment are contrary to the evidence or are not sustained by sufficient evidence.

It is further claimed that the judgment should be reversed because of the excessive amount of the verdict. The case has been twice tried in the court of common pleas and two juries have assessed the damages of the plaintiff in the same amount, and we are unable to find from the evidence that the verdict is so excessive in amount as to justify a reversal on that ground.

Upon the cross-examination of two physicians who were called as expert witnesses on behalf of the plaintiff, it was shown that the opinion expressed by them was based in part on statements made by the plaintiff to them .as to her subjective symptoms, as well as her recital of the history of the case. Neither of these physicians was treating the plaintiff for her injuries, but they were eallecl only for tbe purpose of making an examination with a view to giving expert testimony. One of the witnesses states that, regardless of any statements made by the plaintiff, he thought his diagnosis would be the same, namely, that the plaintiff was suffering from traumatic neurasthenia. No motion was made on behalf of the defendant at the time of the examination of the witnesses to exclude their opinion evidence from the jury upon the ground that it was based in part upon statements made by the plaintiff to them of her subjective smyptoms. At the close of the arguments, but not before, the defendant requested the court to charge the jury with respect to each of these physicians, that no weight should be given to their opinions, based in part upon the statements made to them by the plaintiff as to her subjective symptoms and the history of her ease, that she has traumatic neurasthenia. These requested instructions were refused and such refusal is claimed to constitute prejudicial error.

We find no error in the action of the court in so refusing to give these requested instructions. This court has in many cases followed the decision of the Supreme Court of this state in Pennsylvania Co. v. Files, 65 O. S., 403, which established the rule that when one who has received a physical injury calls upon a physician for the sole purpose of enabling the physician to testify as an expert in a suit for damages on account of such injury, statements made by the party under such circumstances in regard to his condition are not admissible in evidence. Counsel for plaintiff contends that this rule was not violated in this case for the reason that the physicians were not called upon to testify to any statements made by the plaintiff to them, and, indeed, this is true. In direct examination it did not appear that their opinion was based in any part upon statements made by the plaintiff. This fact was elicited by cross-examination, and the cross-examination, of course, did not call for any statements made by the plaintiff to the physicians. It only developed the fact that such statements had been made to the physicians and that their opinion was in part based upon such statements. It may well be that a physician who is called for the purpose of examining a plaintiff with a view to giving expert testimony may find it important, and even quite necessary, to ask some questions of the plaintiff. Indeed, the nature of tbe malady might be such that the statements would be the only means of determining the malady. For example, if it was claimed that there was a mental disturbance resulting from an injury, questions asked by a skillful physician would be one of the proper means of determining the truth or falsity of the claim. But in general a physician when testifying as an expert should be able to state to the jury, before giving his opinion, that such opinion is based upon his examination of the plaintiff without being affected in any substantial degree by the relating to him by the plaintiff of subjective symptoms. It seems entirely clear that if the.physician is precluded from relating to the jury the statements made by the plaintiff in regard to her condition, on the ground that such statements were made without the sanction of an oath and under such circumstances as tend to cause her to exaggerate her feelings or even to make false statements with reference to them, that it is equally obnoxious to correct procedure to permit the witness to give to the jury an opinioii based in any substantial degree upon those same statements of the plaintiff.

We hold that the opinion evidence of Dr. Baldwin, which was based, as he said, in part upon plaintiff’s statements to him as to her subjective symptoms, was incompetent; and the opinion evidence of Dr. Ritchie, in so far as it was based in part upon similar statements of the plaintiff, was incompetent. The latter witness, however, testified that his diagnosis and opinion would have been the same even if such statements were excluded from his consideration.

This court has discussed this class of evidence in a number of cases, and especially in the case of Toledo Railways & Light Co. v. Yahnke, decided February 9, 1914. We deem it unnecessary to add anything to what was said upon this subject by this court in the opinion in that case, but call attention to the following authorities cited therein: Lee v. K. C. Southern Ry. Co., 206 Fed., 765; Railroad Co. v. Huntley, 38 Mich., 537, 544; Shaugh nessy v. Holt, 236 Ill., 485, same case, 21 L. R. A. (N. S.), 826.

The ruling of the court upon this evidence was not erroneous, however, for the reason that objection to the evidence was not seasonably made. One can not permit incompetent evidence to be introduced in a case without objection or without seeking to have the same excluded with reasonable promptness, and at the conclusion of the trial, especially after argument of the ease in which it is to be presumed that such evidence, together with all other evidence, was analyzed and discussed before the jury, predicate error upon the refusal of the court to exclude such evidence from the jury at that stage of the trial. (State v. Kollar, 93 O. S., 89, 91; 5 Enc. of Evidence, page 616.) Such an application to exclude the evidence should in all fairness be made while the witnesses are in court and the opportunity is available for the party who called the witnesses to re-examine them, if he sees fit, on the point in question, and avoid the loss of their testimony in so far as it is competent.

Upon the cross-examination of the plaintiff she was asked if she had ever received any other injury and she answered in the negative. Thereupon she was confronted with a statement signed by her in which was set forth an injury received by her in 1912 because of being thrown from a car while in the act of alighting therefrom; also by a receipt for forty dollars in full settlement of a claim made by her against the Toledo Railways & Light Company for such injury. The defendant thereafter called a conductor in its employ and sought to prove by him that on the date and at the time of such claimed accident there was in fact no such .accident. This evidence was excluded and it is claimed that the court erred in so doing. The evidence as to the former accident was entirely collateral to the issues involved in the ease on trial and was claimed to be competent only for the purpose of impeaching the plaintiff and tending to show that her claim was fraudulent. The rule governing the cross-examination of a party upon matters collateral to the issue is well stated in Jones on Evidence, Section 827, as follows:

“Although witnesses may often be questioned on cross-examination as to matters collateral to the issue, for the purpose of testing their credibility, it is a well settled rule that witnesses can not be interrogated as to matters wholly irrelevant merely for the purpose of contradicting them by other evidence. Hence, if questions of this character are answered the answer can not be contradicted by the cross-examiner. * * * Any other rule would lead to the trial of innumerable issues, the distraction of the attention of the jury from the main question on trial, and would subject witnesses to the injustice of being compelled to be prepared on all occasions to support this testimony by that of other witnesses upon subjects having no connection with the issue.1 ’

The court was undoubtedly correct in its limitation of the examination upon this collateral question.

Plaintiff in error complains of the general charge upon the subject of the assessment of dprages for future pain and suffering. The charge upon that subject is as follows:

“If you find from the testimony that those injuries are permanent you can incorporate in your assessment of damages for such future' pain and suffering as you find from the evidence is liable .to ensue. ’ ’

And again:

“You may include what, if any, amount the testimony shows such expense to have been, together with any amount which you may find from the testimony she is reasonably liable to incur in the future therefor.”

The rule upon this subject has been so clearly stated by the Supreme Court in the case of Pennsylvania Co. v. Files, supra, that little need here be said with reference to this part of the charge. In that case the rule as 'stated in the syllabus is:

“Where prospective damages from an injury are claimed, they should be limited by the court in its charge to such as may be reasonably certain to result from the injury. ’ ’

This rule has been often followed by this court and we especially call attention to the discussion of the rule in the opinion, in the case of Edward Poland, Guardian, etc., v. Toledo Railways & Light Co., 27 O. C. A., 105. The word “liable” used by the court in the case at bar is no more than the equivalent of “may.” By the use of this word in the charge the jury were justified in considering any damage that might by any contingency or possibility ensue in the future.

In addition to the cases cited in the opinion in the Poland case we call attention to the following: Green v. Catawba Power Co., 75 S. C., 102, in which ease the word “liable” was used in the charge in the same sense as in this case and its use was condemned and held to be prejudicial error. Also: Ayers v. D., L. & W. R. R. Co., 158 N. Y., 252; Stutz v. C. & N. W. Ry. Co., 73 Wis., 147; Louisville S. R. Co. v. Minogue, 90 Ky., 369; Ford v. Des Moines, 106 Iowa, 94; McBride v. St. Paul City Ry. Co., 72 Minn., 291.

Counsel for defendant in error call attention to the concluding statements in the opinion of the Supreme Court in Pennsylvania Co. v. Files in which it is said that inasmuch as the attention of the trial court was not called to the error in the charge upon the subject of future damages at the time the charge was given, they might not, if that were the only error, have reversed the judgment. It is claimed that the attention of the trial court in the case at bar was not called to this error and that the judgment ought not to be reversed for that reason. In some classes of personal injury cases we might entirely agree with the contention of counsel. For example, if the permanancy and extent of an injury are manifest, and the injury is of some such character as to show that future damage must follow, as, for instance, in the loss of a limb or any eye, we might not be disposed to disturb the verdict' for an error of the kind just mentioned. In the case at bar, however, the immediate physical injury does not appear to have been very great, and the principal damage, as claimed, arises solely from a nervous disturbance claimed •to have resulted from such injury. Neurasthenia, which the plaintiff claims resulted from her injuries, is well known to be of such character that its duration is extremely uncertain. It therefore becomes extremely important not only that the expert evidence should be kept within proper and legal bounds, but that the charge of the court on the measure of damages should be correct and accurate. As was said in the Poland case, the witnesses testifying upon this subject may not, upon all features of the question, toe inclined to speak with entire certainty. Nevertheless, when the court comes to state the rule of law to the jury it must be stated with accuracy.

We therefore hold that the charge as given was erroneous and prejudicial to the rights of the plaintiff in error, and for that reason the judgment will be reversed and the cause remanded for new trial.

Kinkade, J., and Richards, J., concur.


author: Jones (Oliver B.), J.

text:
    SPECIAL ASSESSMENTS FOR. STREET IMPROVEMENTS.
    Court of Appeals for Hamilton County.
    Kelly v. City of Cincinnati et al.
    Decided, May 17, 1915.

      Assessment — Necessity for a Street Improvement Must be Decla/red by Council — Before a Special Assessment Can be Levied — Different Plans for Assessment Can Not be Commingled — Grading May be Paid for by Special Assessment.

    1. When an improvement is to he made by a city for which a special assessment is to be levied, council must declare the necessity by resolution, which shall determine the nature of the improvement and the method of the assessment, and where tuis is not done the cost can not be assessed.
    2. Grading is a proper subject for special assessment.
    3. Special assessments can not' be sustained in any instance in excess of special benefits.

      4. An assessment by the front foot can not be made under the guise of the benefit plan. Whichever plan is adopted must be pursued in-accordance with the statute, and the two plans can not be commingled.
    5. The failure of property owners to file objections to special assessments under the provisions of Section 3848, General Code, does not prevent them from seeking relief under the provisions of Section 12075, General Code, where the provisions of the law relating to as- . sessment in proportion to benefits have been clearly violated.

      Oliver S. Bryant, for plaintiff.

      Walter M. Schoenle, City Solicitor, and Frank K. Bowman, Assistant City Solicitor, contra.
   Jones (Oliver B.), J.

This cause was heard in this court on appeal from the court of insolvency. It is a proceeding brought by owners of lots and lands abutting on Isabella street, seeking to enjoin the collection of so much of an assessment as they deem illegal and excessive, levied on such lands by the city of Cincinnati for the improvement of Isabella street from Markbreit avenue to a point 610 feet south.

Isabella street is a highway in said city,' extending from Markbreit avenue, almost at Madison road, southwardly about half a mile, and that portion between its southern terminus and a point 610 feet south of Markbreit avenue had been improved by paving the roadway and setting curbs and gutters, the cost of which improvement had been assessed against the abutting property. The part of Isabella street lying between Markbreit avenue and this point 610| feet south of it had not been improved prior to the improvement for which the assessment under consideration was levied, but the lots fronting on it had been built upon and it was traveled on the natural grade of the street by vehicles, except for a portion of about 200 feet at its north end just south of Markbreit avenue, which portion was about twenty feet lower than the portions of the street both south and north of it. This low portion could not be used for vehicles, and Markbreit .avenue could only be reached over this low portion of the dedicated street by pedestrians by means of a wooden footbridge.

Preliminary to this improvement, no previous grade having been established,.the city by ordinance of March 26, 1912, established the grade of Isabella street from Markbreit avenue to a point 610 feet south, the grade so fixed being that of the natural surface of that part south, of the 200-foot portion. In the improvement of said street and as a part thereof this low portion was filled with an embankment 20 feet in height by about 200 feet in length, to bring it up to such established grade, the cost of such, fill being $3,955.39. In making said improvement the city also constructed certain cement sidewalks, at a cost of $46.08, said sidewalks not being provided for in the legislation had -by the city council for the improvement.

Plaintiff, Barton H. Kelly, contends that these two items should be eliminated from the assessment to 'be charged against his property.

The pcwer to levy special assessments on abutting or benefited property is conferred by statute, and this power can be exercised only in 'the manner provided by law. (Section 3812, General Code.) When an improvement is to be made for which a special assessment is to 'be levied, council must declare the necessity by resolution, which shall determine the nature of the improvement and the method of the assessment. (Sections 3814 and 3815, General Code.) It being conceded that the small item of cement sidewalk was not provided for in the legislation for this improvement, its cost can not be assessed.

The matter of grading, however, is not so easily disposed of. The evidence submitted is in .an unsatisfactory state in respect to whether grading was or was not provided for in the improvement legislation. In both the amended petition and the amended answer, on which the case was tried, it is alleged that the resolution declaring the necessity for the improvement, and the ordinance to proceed with the improvement, were for an improvement “by paving the roadway with bituminous macadam, according to certain plans and specifications then on file and according to the grade set forth in said resolution.” Whether grading specifically appeared as one of the items of said improvement is not shown by the production of a copy of the resolution, the ordinance to proceed with the improvement, or the specifications. It is, however, agreed, that in order to make the grade of said street comply with the grade so established, the city in improving Isabella street constructed said fill at the cost named. And from the assessment ordinance, a copy of which was introduced, it appears that the improvement was to be “by grading, paving the roadway with bituminous macadam, and constructing the necessary drains and inlets. ’ ’

It is contended with great ability, on behalf of plaintiff, that where in the improvement of a street it becomes necessary to radically change the natural contour of the ground in the street by grading, in order to present a proper smooth surface suitable to receive the paving, such grading is analogous to the acquirement of the land itself on which the street is built, and that its cost can 'not be charged against the owners of abutting property; that, while under the old doctrine laid down in Cleveland v. Wick, 18 Ohio St., 303, such an assessment could, have been upheld for the cost of the land occupied by the street, the later law, as laid down in C., L. & N. Ry. Co. v. Cincinnati, 62 Ohio St., 465, which directly overrules Cleveland v. Wick, and in Baker v. Norwood, 172 U. S., 269, and Dayton v. Bauman, 66 Ohio St., 379, would forbid it. And it is argued that the same law would apply to forbid the assessment of the cost of necessary grading.

To this we can not agree. It is common knowledge that one of the most important elements of roadbuilding is the grading of the roadbed itself to a suitable and proper grade; by excavation, where the natural surface is too high, and by embankment, where it is too low. And in a locality like Cincinnati, where the natural land is more or less hilly, this item of grading is usually one of the important matters in the improvement of a street that has not been previously improved. It is recognized as such in the statute itself by which such special assessments are authorized, Section 3812, General Code, in which section it is distinctly named as one of the elements of such an improvement. It is generally an essential part of every surface improvement, for which 'a special assessment may 'be levied not to exceed the special benefits conferred, as laid down in Dayton v. Bauman, supra, 393. Grading has been distinctly held to be a proper subject for special assessment in numerous other cases, among which are Longworth v. Cincinnati, 34 Ohio St., 101, and Jessing v. Columbus, 1 C. C., 90, 1 C. D., 54 (affirmed, sub nom., Central Ohio Rd. Co. v. Columbus, 22 W. L. B., 453).

Counsel for plaintiff relies upon Thale v. Cincinnati, Court, Index, February 4, 1902; Fridman v. Norwood, 1 C.C.(N.S.), 97 (affirmed, 70 Ohio St., 431); Carlisle v. Cincinnati, 8 C.C. (N. S.), 46 (affirmed, 77 Ohio St., 637), and Bartley v. Cincinnati, 8 C. C., 226. An examination of these cases shows that in each of them the item of grading which it was held could not he assessed was one occasioned by the change of an established grade to which .an improvement had been previously made, and came within the terms of Section 3838, General Code.

In the legislation for this improvement it was provided that 5Q per cent, of its cost, and the cost of intersections, should be paid by the city, and the remainder should be assessed upon the abutting property in proportion to the benefits resulting to it from the improvement. This is the second method of assessment provided by Section. 3812, General Code.

There is no question under the evidence but that the making of this improvement, opening the street to public travel by means of this fill out to Markbreit avenue, opened up a thoroughfare of general benefit to the public, and of particular benefit not only to the north 610 feet of Isabella street, but to the southern portion of that street as well, and to cross streets and the entire neighborhood. This is undoubtedly recognized by the city in paying more than one-half of the cost. Whether this was the fair proportion of the cost to be paid by the city, and whether the district to be specially assessed as being specially benefited should have been limited as it was, are matters to be determined by the city council, and its discretion can not be controlled by the courts in the absence of manifest abuse.

The power of the court can however 'be invoked under Section 12075, General Code, to enjoin the collection of illegal assessments, and special assessments can not be sustained in any instance in excess of special benefits. Chamberlain v. Cleveland, 34 Ohio St., 551; Walsh v. Barron, Treas., 61 Ohio St., 15, and Walsh v. Sinms, Treas., 65 Ohio St., 211.

In this case a consideration'of the assessment as fixed by • the ordinance to assess, confirming the report of the estimating board and the evidence as to values and special benefits, shows that the amounts assessed were not fixed as required by law in proportion to the special 'benefits, but that the lots abutting the fill on the east side were assessed on a basis of '$1.61 per front foot and those on the west side on a basis of $1.04 per front foot, while all the remainder of the property was assessed at amounts that would be obtained by the uniform rate of $4.50 per front foot.

From the evidence it is apparent to the court that the lots at the north end, abutting the fill, received as much and in fact greater benefit from the improvement than did the other property, and that the low amounts for the assessments were fixed with the idea that larger amounts might be uncollectible because of the limited value of the lots. The evidence' also shows that the value of the deeper lots on the east side was greater than that of those on the west and the special benefit was correspondingly greater.

An assessment by the front foot can not be made under the guise of the benefit plan. Which ever plan is adopted must be pursued in accordance with the statute and the two plans can not be commingled. (Kelly v. Cleveland, 34 Ohio St., 468, and Dick v. Toledo, 11 C. C., 349.) See also, as to benefit assessments, Cincinnati v. Batsche, 52 Ohio St., 324; Klein v. Cincinnati, 7 C. C., 266, and Frey v. Findlay, Id., 311, 319.

The property owners had an opportunity to object to this assessment under the provisons of Section 3848, General Code, and should have done so, when the amounts_ might have been properly equalized and adjusted under Sections 3849 and 3850, General Code. But their failure to file such objections does not prevent them from seeking relief under Section 12075, General Code where, as in this case, the provisions of the law relating to assessment in poportion to benefits have been so clqarly violated. The amended petition does not ask for an injunction against the entire .assessment as levied, but only for an injunction as to any excess over what might be found to be a legal charge. The validity of the entire assessment as made is, however, brought to the consideration of the court, and with an amendment of the pleadings might be set aside as entirely illegal, with an order permitting the city to levy a reassessment. This would involve delay and expense. The evidence shows, and plaintiff admits, that his property has been specially benefited. If the amount assessed had been distributed at a uniform rate on the entire frontage assessed, it would have amounted to a rate of about $3.4-5 per front foot. In the opinion of the court each of plaintiff’s lots has been specially benefited to that extent, and said assessment is a proper charge in the several amounts that may result from a calculation of the front feet of the respective lots. by such rate, and to that extent will be sustained.

A decree may be taken enjoining the collection of any part of said assessments in excess of such amounts.

Judgment accordingly.

Jones (E. H.), J., and Gorman, J., concur.


text:
    COMPENSATION TO INJURED EMPLOYEE.
    Court of Appeals for Hamilton County.
    The Ohio Traction Co. v. Washington.
    Decided, January 19, 1916.

      Workmen’s Compensation — Receipt of Award from the State Fund— Not a Bar to an Action Against a Joint Tort-Feasor, Other Than¡ the Employer.

    The receipt of money by an injured employee from the state liability board of awards by virtue of the workmen’s compensation law is not a bar to an action for damages against a person other than the employer whose negligence contributed to the injury.

      Kinkead & Rogers, for plaintiff in error.

      Fulford, Shook, Witty & Fricke, contra.
   Jones (E. H.), J.

The receipt of money by an injured employee from the state liability board of awards by virtue of the workmen’s compensation law is not a bar to an action for damages against a person other than the employer whose negligence contributed to the injury, there being no provision in said act making the remedy therein provided exclusive. The rule that settlement with one joint tort-feasor is a bar to recovery from the other has no application and can not be invoked in such a case.

The presence pf the piece of timber in the court room was within the discretion of the trial judge, and, while the prominence given it during the trial may have been unusual, it was not error upon which a reviewing court could bottom a judgment of reversal.

We find no error in the proceedings in the superior court, and its judgment will be affirmed.

Judgment affirmed.

Jones (Oliver B.), J., and Gorman, J., concur.


author: Kunkle, J.

text:
    BASTARDY PROCEEDINGS BY A MARRIED WOMAN.
    Court of Appeals for Clark County.
    State of Ohio, ex rel Mary Roden, v. Edward N. Cregar.
    Decided, January 5, 1918.
    ■ Bastardy — Not Maintainable Where the Child Was Born After Hie Marriage of the Mother — Section 12110.
    Bastardy proceedings can not be maintained' by a married woman, notwithstanding the child was begotten prior to her marriage by a man other than her husband.

      T. J. McCormick, for plaintiff in error.

      Stafford & Arthur, contra.
   Kunkle, J.

This is a proceeding in bastardy which was originally brought before a justice of the peace under Section 12110, General Code.

This section provides:

“When an unmarried woman, who has been delivered t>f or is pregnant with a bastard child, makes a complaint in writing, under oath, before a justice of the peace, charging a person with being the father of such child, he thereupon shall issue his warrant, directed to any sheriff or constable of the state, commanding him to pursue and arrest such accused person in any county therein, and bring him forthwith before such justice to answer such complaint.”

Without undertaking to quote in detail from the record, it is sufficient to say that the same discloses that the child in question was begotten September 26th, 1916; that Mary Roden, the complainant, was married February 12, 1917; that the child in question was born June 13, 1917; that the complainant was, at the time of the birth'of the child, at the time the proceeding was instituted before the justice of the peace, .and still is, a married woman, being the wife of a man other than defendant in error.

Can this proceeding, under such a state of facts, be maintained? We have carefully considered the briefs which have been filed by counsel. ■ Without attempting to discuss the authorities so cited in detail, we are of opinion that under the reading of Section 12110, General Code, and under the Ohio decisions, such as 30 O. S., 627; 43 O. S., 478, etc., this action can not be m.aintained.

We are also of opinion that* the case cited by counsel for plaintiff in error in the 65 Nebraska Reports, p. 608, is clearly distinguishable from the case at bar.

A consideration of the Ohio cases, in our opinion, requires a holding to the effect that the action can not be maintained.

The judgment of the lower court will therefore be affirmed.

Allread, J., and Ferneding, J., concur.


text:
    GOODS STORED IN RAILWAY WAREHOUSE INJURED BY FLOOD.
    Court of Appeals for Hamilton County.
    The Baltimore & Ohio Southwestern Railroad Co. v. Wuest et al.
    Decided, December 28, 1915.

      Act of God — Negligence Commingled Therewith — Cotton Stored in a Railway Warehouse — Damaged tsy the Waters of an Extraordinary Flood — Whether Warehouseman Exercised Ordinary Care a Question for the Jury.

    1. A warehouseman is liable for damage done by an unprecedented flood to goods stored in his warehouse where his own negligence commingling with the act of God as an active and co-operative element resulted in damage to the goods.
    2. A negligent warehouseman can be excused for failure to exercise ordinary care only in cases where the superior force of the act of God would have produced the same damage whether the warehouseman had been negligent or not.

      Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.

      Frank J. Dorger and Robert S. Alcorn, contra.
   Jones (E. H.), J.

This action was brought in the Superior Court of Cincinnati by the defendants in error, Mary and Adam Wuest, doing business as Adam Wuest, against the Baltimore & Ohio Southwestern Railroad Company, to recover damages sustained during the, flood of March, 1913, by plaintiffs 'below on bales of cotton and linters stored at the storage warehouse of the railroad company at the southwest corner of Front and Mill streets in the city of Cincinnati.

The railroad company, ás a part of its business, had three, different warehouses in Cincinnati, where it did a storage 'business for the benefit of the public desiring such accommodations. One was a large five-story brick warehouse, extending from the west side of Smith street westwardly to Mill street. In addition to this large warehouse for the storage of general merchandise, the railroad company had a one-story frame building on the southwest corner of Second and Mill streets, and one on the east side of Mill street. The plaintiffs had stored, ,at the time of the flood, 324 'bales of cotton and linters all but a small portion of which were stored in what was known as the old 'Southern Railway building on the southwest corner of Mill and Second streets. ' A few of the bales were stored in what was called the Eruit House, on the opposite corner. The plaintiffs had been storing cotton in those warehouses for seven or eight years prior to the flood of March, 1913.

Defendant claimed that the damage to plantiffs’ cotton was due to the flood of March, 1913, and was the result of an act of God. The defendant further claimed that in the exercise of ordinary care, in view of all the circumstances and conditions, it did all that could be reasonably expected of it for the protection of the cotton, and that it is therefore not responsible for the damage sustained by plaintiffs on account of said flood.

The trial resulted in a verdict in favor of the plaintiffs below for $3,631.50, and to reverse the judgment upon this verdict this proceeding in error is prosecuted. The last paragraph of the statement above made accurately states the respective claims of the parties in this case a,nd tersely states the issue which the jury was called upon to decide, which issue is exclusively one of fact for the jury.

The judgment of the court below, based as it is upon the veldict of the jury, can not be disturbed by this reviewing court unless it is found that there was some prejudicial error either in the admission or rejection of evidence or in the charge of the court. Recognizing this situation, counsel for plaintiff in .error rely for a reversal of this judgment upon alleged errors of the trial judge in the general charge and in the refusal to give certain special charges requested by them, together with the giving of certain special charges requested by plaintiffs below.

The examination of the bill of exceptions, with a view to ascertaining the action of the court in giving the law of the case to the jury, shows that counsel for plaintiff in error in their carefully prepared brief have made complaints of error which are not borne out by the bill of exceptions. For example, we quote from page 36 of said brief as follows:

“The essential and important fact in this case was that the damage to plaintiffs’ property was caused by ‘an act of God,’ to-wit, the flood in the Ohio River, and that being the case the defendant’s negligence, if there were any, which we deny and will discuss at .a later stage of this brief, did not make the defendant liable for the damage to plaintiff’s property.”

Continuing, on page 37, counsel quote from the opinion of our Supreme Court, in Assur v. City of Cincinnati et al, 88 Ohio St., 181, at page 187, language which they construe as a finding of that court to the effect that the flood of 1913 throughout the state of Ohio was ‘ ‘ an .act of God, ’ ’ and counsel then say, on page 37 of the brief:

“If this court does not know already that the flood of 1913 was ‘ an act of God, ’ certainly the decision of the Supreme Court that it was, is binding upon and will govern this court.”

One would think from reading this portion of the brief that there was some ground of complaint against the charge upon this subject, but upon examination of the charge we find that the court, upon page 383 of the bill of exceptions, used this language in its charge to the jury:

■“The flood of March, 1913, in some of its aspects may properly be considered by you as such an act of God.”

From a reading of the entire brief, however, it fairly appears .that the thing complained of by counsel in this connection is that the court refused to charge that the damage to the cotton was an “act of God.” Such ,a charge would have been erroneous under the evidence in this case, pages of the record being devoted to testimony adduced by plaintiffs tending to show that notwithstanding the unusual and almost unprecedented, flood in the Ohio river, the railroad company, as the custodian of these goods, had ample time and opportunity to protect them from the ravages of the flood and to remove them to a place of safety. It was shown that after warnings had been received through the weather bureau,, and other sources, of an unexpected rise in the Ohio river, 409 tons of freight had been received and stored by the company through its regular employes in the large warehouse near by. The purpose of this and other evidence was to place fully before the .jury the facts and conditions existing, in order that it might be determined whether or not the claim of the railroad company, that it did all that could reasonably be expected of it for the protection of the cotton, in view of all the circumstances and conditions, was true. All this evidence so offered was relevant and material under the law, as well stated in the case of Backus & Sons v. Start et al, 13 Fed. Rep., 69, the syllabus of which reads:

“3. Warehousemen are not required to provide against an unprecedented emergency; but if they have reason to expect such an emergency, they ,are bound to take such precautionary measures to prevent loss as prudent and skillful men in the like business and under like circumstances might be expected to use.
“4. They are not bound to have or keep on hand special facilities to meet and overcome possible but unexpected and unprecedented emergencies, which arc included in what is called the ‘act of God’; but if imminent danger presents itself, to use such appliances and means as the ordinary and safe conduct of their business requires them to possess, and such as are at hand, and to use them with such promptness as would be expected of ordinarily careful. and prudent men in regard to their own, or property entrusted to their care under like circumstances.”

Section 8459, General Code, thus defines in part the duties of a warehouseman:

‘‘A warehouseman may insert in a receipt, issued by him, any other terms and conditions, provided that such terms and conditions shall not:
“1. Be contrary to the provisions of this chapter.
‘‘2. In any wise impair his obligation to exercise that degree of care in the safekeeping of the goods entrusted to him which a reasonably careful man would exercise in regard to similar goods of his own.”

And in H. A. Johnson & Co. v. Springfield Ice & Refrigerating Co., 143 Mo. App., 441, it is held:

“A warehouseman can not escape liability for damage from an unprecedented flood to goods stored in his warehouse where it appears that his own negligence, commingling with the act of God as an active and co-operative element, resulted in damages to the goods. The warehouseman would be excused for failure to exercise ordinary care only in cases where the superior force of the act of God would have produced the same damage whether the warehouseman had been negligent or not.”

From Memphis & Charleston Rd. Co. v. Reeves, 10 Wall., 176, 179, we quote the following language from the charge of the trial court in that case, which was held by the reviewing court to be a correct charge:

“When the damage is shown to have resulted from the immediate act of God, such as a sudden and extraordinary flood, the carrier would be exempt from liability, unless the plaintiff shall prove that the defendant was guilty of some negligence in not providing for the safety of the goods. That he could do so must be proven by the plaintiff, or must appear in the facts of the case.”

These excerpts correctly state what we conceive to be the law applicable to this case. We now quote from the charge of the trial court in the instant case, at pages 383-4-5 of the bill of exceptions :

“An extraordinary flood of such volume and height ,and coming with such rapidity as to.be almost if not quite unprecedented, is sometimes referred to as an act of God. By this term is meant an occurrence directly and entirely due to natural causes operating without human intervention and such that because of its magnitude or the suddenness of its coming, it could not have been forseen in the light of ordinary knowledge'.
“The flood of March, 1913, in some of its aspects may properly be considered by you as such an act of God.
‘1 The question, 'however, in this case remains for your determination, whether the defendant under the circumstances existing for the period shortly prior to the stage of flood which reached plaintiffs’ goods, and with the knowledge of conditions, which defendant had or should have had at that time, exercised ordinary care for these goods stored in the so-called fruit house and old southern depot warehouses.
“If the defendant had or should have had knowledge of, or reasonable ground to anticipate a stage of water in’ excess of sixty-two feet, ,at about which height plaintiffs’ cotton was originally stored, and after such knowledge was had or’should have 'been had, failed to use facilities reasonably available and such as would have been employed by ordinary prudence to protect the cotton from such, stage of flood as was reasonably to have been anticipated, then defendant was negligent. Defendant, however, was not bound to keep on hand and immediately available facilities to meet an emergency not reasonably to have been anticipated, but only to take such precautionary measures to prevent loss as prudent and skillful men in a like business and under like circumstances would ordinarily take.
1 ‘ The standard of ordinary care is in law an unvarying standard, but manifestly that action or inaction which will amount to ordinary care depends on the facts and circumstances of each particular case. Ordinary care is a course of ordinary prudence, commensurate with the danger reasonably to be anticipated.
“Accordingly, if you should find that at the time in question the defendant was wanting in the duty of care incumbent upon it with respect to plaintiff’s goods, the defendant would not be excused by the mere fact of the oecurren.ee at that time of an act of God, manifested in the flood. In such event you must determine further whether such negligence on the part of the defendant if the defendant was negligent, or such act of God or other cause was the operative or proximate cause of the damage. If defendant was negligent and such negligence operated proximately and directly to cause damage to plaintiff’s cotton, the defendant is responsible for such damage.
“If, however, you should find that the flood in the extent, rate of increase and height was such as was not reasonably to have been anticipated by defendant in time to provide against damage to plaintiffs’ goods by measures of ordinary prudence in view of facilities reasonably accessible, and if as the flood increased the defendant took such precautions as were called for by ordinary prudence, then the damage which actually resulted is chargeable to what has been termed an act of God and not to negligence on the part of defendant and defendant can not be held to answer therefor. ’ ’

This, we think, is a clear and complete statement of the law considered both as an abstract proposition and as touching the issues in this case.

There were a great many special charges requested 'by each of the parties in the trial below, and most of the argument of counsel for plaintiff in error, both orally and by brief, was addressed to alleged errors of the court in ruling upon these special requests. We have found that the rulings of the learned judge upon each and all of these requests were consistent with the correct view o± the law entertained by him .and as expressed to the jury in the portion of the general charge above set out.

As before stated, it was the contention of counsel for plaintiff in error, both in this court and in the court below, that under the evidence in this ease a verdict should have been instructed for the defendant at the close of all the evidence, on the theory that the flood in the Ohio river in the year 1913, which caused this damage, was an “act of God.” We have already made clear our views that such an act on the part of the trial court would have been erroneous and wholly unjustified by the facts in this case.- Cases are cited in which it has been held by eminent authorities that the evidence not only justified but required such action by the trial court. Other actions for damages by flood have been cited where the judgments of the nisi prius courts have been reversed for the refusal of the trial judge to charge that the damage caused by the flood was an “act of God.” Some of these eases grew out of the great flood at Kansas City on May 31, 1903. The damage rat that time and place was caused by joint floods in the Missouri and Kaw rivers, which unite at or near Kansas City. The weather reports predicted the rise in the Missouri river, but the rise in the Kaw river was not only wholly unexpected but was unprecedented. The weather bureau had received no advices as to the water in the Kaw river. There was nothing in the telegraphic reports to indicate an unprecedented volume of water in the Missouri river.

In Wertheimer, Swartz Shoe Co. v. Missouri Pac. Ry. Co., 147 Mo. App., 489, 126 S. W. Rep., 793, which is one of these flood cases, the court in its opinion, describing this flood, says at page 494:

“This rise had been gradual for several days and was due to heavy rains over the States of Missouri and Kansas having swollen the Missouri and Kansas rivers. But similar overflows had occurred before in the river bottom at Kansas City without damaging property, and similar warnings had been given by the weather office. On May 31st an overwhelming flood occurred there in consequence of a vast volume of water pouring from the Kaw river in a torrent strong enough to turn back the current of the Missouri river and cause that stream to flow for a few miles towards its source. This flood was unexpected even by the official in charge of the government weather office in Kansas City, as he testified. The witness said he had sent out bulletins and warnings to railroad companies and others from day to day as the waters rose, giving notice of danger, but the flood stage of thirty-five feet was unexpected. ’ ’

The court held in that case “that the loss was due to the flood, ■and not to the railroad’s failure to remove the goods to a place of safety. ’ ’

Another ease cited, where it was held as a matter of law that the flood damage was caused by an “act of God,” was Herritt Creamery Co. v. Atchison, T. & S. F. Ry. Co., 139 Mo. App., 149, 122 S. W. Rep., 322. This action arose out of the same Kansas City flood, and the court found that the flood on May 30 and 31, 1903, at the junction o£ the Kaw and Missouri rivers, Kansas City, Missouri, was an “act of God,” and that a carrier was not liable for loss of freight by such flood. And in its opinion the court said, at page 152:

“Plaintiff’s entire case turns on a mere question of fact: that is, did defendant know or could it have known of the coming flood? * " * The Kaw suddenly rose, at Topeka and above, —miles from Kansas City, in addition to its already overflowed banks, and much stress is put upon the knowledge which defendant’s officers had obtained 'by telegraph of the coming of these waters. But it was shown that the amount of rise which these additional waters would have caused at Kansas City would have left plaintiff’s butter unharmed in the position in which defendant had placed it. The cause of the great destruction and the overwhelming nature of the flood arose, in great part, from the unexpected volume of water added to the already flooded Missouri. The result of the floods of both rivers joining at Kansas City caused the great destruction of property which that catastrophe brought about in such short time that few escaped its fury.”

We cite only these two cases to show that where courts have decided as a matter of law that flood damage was an “act of God,” the uneontroverted facts would admit of no other conclusion.

Such is not true in this ease, the facts of which differ very materially from those just narrated from the Kansas City case. This flood was neither unprecedented nor unexpected. The evidence does show, we think, that some two or three days after the first warnings were received by the railroad company and others the rise was very rapid — unexpectedly so — but the evidence also shows that during all this time the railroad company, the warehouseman, in this case, was anticipating danger to the storage-shed and its contents and was directing its efforts along the line of preparing for the expected flood, although what was done did not inure in any way to the benefit of Mr. Wuest in saving his cotton. The ease presented to us is not similar in a legal aspect to the cases growing out of the Kansas City flood.

The flood which reached this cotton and linters .and caused this damage was neither unexpected nor unprecedented. The damage was caused many hours after repeated warnings had been given by the bureau and had been brought, to the knowledge of the railroad company. Such being the ease, the question as to whether the railroad company, in the exercise of ordinary care, did all that could be reasonably expected of it for the protection of the cotton, was one for the jury. This question was submitted to the jury under a clear and correct charge by the court.

Finding no errors in the proceedings of the court below, its judgment will be affirmed.

Judgment affirmed.

Jones (Oliver B.), J., and Gorman, J., concur.


author: Metcalfe, J.

text:
    CONTRACTS UNDER. WHICH THE BAILEE BECOMES AN INSURER.
    Court of Appeals for Ashtabula County.
    The Triangle Film Corporation v. Helen Saks.
    Decided, December 2, 1917.

      Contracts of Bailment — Where there is an Agreement to Pay for Goods Lost or Destroyed — Cause of Action Stated Without Averring Negligence, When.

    Where in an action on a contract of bailment which provides, “That persons * * * taking the service specified in the order shall pay for any property * * * lost, destroyed, or damaged, general wear and tear excepted,” the petition avers that the article bailed was destroyed by fire while in the possession of and under the control of the bailee, such petition states a cause of action without averring any negligence on the bailee’s part.

      Squire, Scmders & Dempsey, for plaintiff in error.
   Metcalfe, J.

A demurrer was sustained to the plaintiff’s petition in the common pleas court, and the correctness of that ruling is the only question that we have here.

The petition recites that the plaintiff is a corporation engaged in the business of furnishing moving picture films to various theaters; that the plaintiff and defendant, Helen Saks, entered into a contract by the terms of which the plaintiff agreed to furnish the defendant, for use in her theater called the Strand in the city of Conneaut, Ohio, nine hundred linear feet of films each week; that the contract was in writing and contained the following provision, “That persons, co-partnerships, or corporations taking the film service specified in the order shall pay for any property of Triangle Film Corporation lost, destroyed, or damaged, natural wear and tear excepted, at the rate of $.20 per linear foot for all films,” On the 14th day of March, 1916, a quantity of films which plaintiff furnished to defendant were destroyed by fire while in the defendant’s possession and control. No negligence on the part of the defendant is averred in the petition.

Defendant in error contends that the furnishing of the films by the plaintiff to the defendant for hire the defendant can only be held liable for any loss or damage which occurred through their negligence. We do not think there is any question but that the contract stated in the petition is a contract of bailment; but such a contract is governed by its specific terms just the same as any other contract.

The provision of the contract in question is not a contract to return goods, natural wear and tear excepted, but is a contract to pay for them if lost, or destroyed, except by natural wear and tear. It makes no other exception. Under it the bailee became the insurer of the property, if lost or destroyed while in her possession or under her control, and the burden would be upon her to prove any circumstances which might relieve her- from that liability, if any such exists.

This provision of the contract is too plain to be construed in any other way. 'The law upon this subject is very clearly stated in the 3d R. C. L., page 105, Section 30:

“While in the absence of a special agreement the law of bailments outlines definitely the degree of responsibility imposed on a bailee for the care of the thing bailed, this does not prevent the parties from making their own contract in reference to their mutual rights and liabilities under bailments of property as well as in reference to other subjects, and generally speaking it seems that they may, by express contract, enlarge, abridge, qualify, or supercede the obligation which otherwise would arise from the bailment by implication of law. Thus, where a bailee enters into a special contract to return the property in good condition, or to pay its value, he is an insurer, and if loss occurs while it is in his possession, he is liable for its value. ’ ’ , . il ,[1¿j

Grady v. Schwinler, 16 N. D., 452 (14 L. R. A. [N.S.], 1089); Sleevers v. Gable, 94 Iowa, 75 (27 L. R. A., 733); Meeks v. Cold Storage Co., 107 La., 172 (57 L. R. A., 271); Geisweiler v. Railway Co., 82 Mo., 112 (53 Am. Rep., 558); Canfield v. Railway Co., 93 N. Y., 532; Johnson v. Miller, 96 N. Y., 93; Browning v. Hanford, 5th Hill (N. Y.), 588 (40 Am. Dec., 369).

The rights of the parties are to be determined by the express provisions of the contract and not by the common law.

■ The judgment is reversed.

Pollock, J.. and Farr, J., concur.


text:
    AS TO RELIEF FROM ALLEGED UNJyST TAXATION VALUES.
    Court of Appeals for Hamilton County.
    Helmers et al, Partners, v. McCarthy et al, Board of District Assessors, et al.
    Decided, January 29, 1917.

      Taxation — Relief from Alleged Unjust Appraisements — Must First be Sought from the Board of Complaints — Aid of a Court of Equity Available Only, When — Notice by Publication of Completion of Worlc by the Taxing Authorities.

    1. A party seeking' relief from an alleged illegal and unjust taxation value must first exhaust all his legal remedies before resorting to a court of equity; and where the law provides the tribunal to which he can appeal for relief, such as a board of complaints, state tax commission or board of revision, he must avail himself of such opportunity before he can be heard in a court of equity.
    2. Publication in a newspaper, as provided by law, of the fact that the taxing authorities had finished their work and that the same was open for inspection and objection is sufficient to charge a tax-payer with notice of the action of the assessors.
    3. The fact that a board of complaints had more work than it could and did perform does not relieve a tax-payer from the duty of first filing complaint with such board.
    4. Before one can be entitled to invoke the aid of a court of equity by the extraordinary remedy of injunction, something more than an irregularity, or illegality in procedure, or arbitrary official action, must be shown. There must be a wrong, an injustice or an irreparable injury for which the law provides no adequate remedy; otherwise no relief can be granted. •

      Otto Pfleger and Renner & Benner, for plaintiffs.

      Campbell, Hickenlooper, Hauck & Capelle, contra.
   Jones (E. H.), J.

After a careful consideration we have reached the conclusion that the principles of law announced in the case of Mills, Trustee, v. Bd. of Equalization of Cincinnati, 1 C. S. C. R., 566, and in the case of Wheeling Electric Co. v. Tax Commission of Ohio, decided by Judge Sater of the United States District Court for the Southern District of Ohio, are controlling in this case. The opinion in the latter case has not yet been reported, so far as we know, but a copy of same is attached to the brief filed by counsel for defendants herein.

In the cases above cited it was held that a party seeking relief from an alleged illegal and unjust taxation value must first exhaust all his legal remedies before resorting to a court of equity; and that where the law provides the tribunal to whieh he can appeal for relief, such as a board of complaints, state tax commission or board of revision, he must avail himself of such opportunity before he can be heard in a court of equity. . It is admitted in this case that no appeal from the alleged unjust increase in their tax valuation was taken by the plaintiffs to the board of complaints. As an excuse for this they s,ay: first, that they had no notice of the increase until they received their tax bill, which was some time after the board of complaints had finished its work and adjourned; and, second, that if they had made a complaint or filed an appeal with the board of complaints it would not have been heard for the reason that the said board adjourned with a great many complaints on file untried and undisposed of. Neither of these excuses is valid. The firm had the only notice which the law provides for, namely, the publication in a newspaper of the fact that the tax commission had finished its work and that the same was open for inspection and objection. The evidence shows that these notices were published in accordance with the law. and it follows that the plaintiffs had constructive notice of the action of the assessors. In the second place, the fact that the board of complaints had more work than it could and did perform does not relieve the plaintiffs from the duty of first filing their complaint with it. Had they done so, and a hearing for any reason had been denied them, it might well be claimed that they would have some standing in this court.

On the authorities above cited, which are only reaffirmations of the well-established general rule that a resort to a court of equity can only be had where there is no adequate remedy at law, we hold that the plaintiffs’ petition should be dismissed and the relief therein prayed for be denied.

We are constrained to add that regardless of the above barrier, technical as it may appear, the plaintiffs would not be entitled to the relief sought even though their petition were entertained. The employee who made the tax return did not appear as a witness in the case. The chief witness for the plaintiffs upon the question of values was a member of the firm, who testified that the machines, the value of which was the subject of this action, were carried upon their books at a value of three times that at which they were returned by them for taxation. In the light of this and other evidence in' the case, we are satisfied that the value fixed on these machines by the district assessors was fair and reasonable; and therefore the plaintiffs must be considered as coming for relief to a court of equity while themselves unwilling to do equity by contributing their fair proportion of taxes to the public treasury.

Under this evidence, there being no wrong to make right, there would be no room for the intervention of a court of equity.

“It by no means follows, however, that the plaintiffs are entitled to an unconditional injunction against the collection - of the tax. They ask equity, and must do equity. They invoke the exercise of an extraordinary power of the court for their relief, and the court in its discretion should refuse that relief, except .upon conditions that are equitable and justt. We think, therefore, that the injunction should only be granted upon the condition that the plaintiffs, or their bank, shall first ' pay to the treasurer of Hamilton county, a sum that will be a pro rata equivalent for the tax imposed upon the state and independent banks, under the act of 1861 — that is to say, such sum as might lawfully have been assessed upon the plaintiffs, or their bank, under said act, had it been one of said state banks. If the parties e,an not agree upon this sum, proceedings can be adopted to ascertain it by the court; and, if found necessary, the bank itself can be made a party.” Frazer et al v. Sieborn, Auditor et al, 16 Ohio St., 614, at page 624.

Courts of equity look through the form into the substance of things. Before one can be entitled to invoke their aid by the extraordinary remedy of injunction, something more than an irregularity, or illegality in procedure, or arbitrary official action, must be shown. There must be a wrong, an injustice or .an irreparable injury for which the law provides no adequate remedy; otherwise no relief can be granted.

The petition of plaintiffs will be dismissed at their costs.

Jones (Oliver B.), J., and Gorman, J., concur.


text:
    LIS PENDENS AGAINST PROPERTY IN SUIT FOR. ALIMONY.
    Court of Appeals for Hamilton County.
    The Elmwood Place Loan & Building Co. v. The Cincinnati Concrete Co. et al.
    Decided, March 22, 1915.

      Lis P-endens — Under a Restraining Order in Action for Alimony — > Property Covered Affected from Late of Filing of the Petition and ■ ■ a Judgment Relates Bade.

    When a petition for alimony is filed and a restraining order issued enjoining the defendant from disposing of or incumbering certain . property described in the petition, the action in alimony becomes a lis pendens against the property described in the petition and covered by the injunction, from the date of the filing of such petition and the issue of such injunction,' and a judgment thereafter taken in the suit for alimony relates back to the date when the petition was filed and the restraining order issued.

      W. W. Bellew, for Luella J. Brown.

      Philip & S. C. Roettinger and Harry B. Street, contra.
   Jones (Oliver B.), J.

The question to be determined in this ease is one of priority of liens upon a fund arising from the sale of certain real estate under foreclosure proceedings.

Luella J. Brown claims a lien by virtue of a decree tor alimony. The petition under which said decree was taken was filed November 8, 1911, and a restraining order was issued on that date enjoining the defendant from disposing of or encumbering property, the description of which was set out in the petition, and which included a lot later sold in foreclosure, the proceeds of which are now sought to be reached. This injunction remained against said property until the entry of the decree, which was made October 24, 1912, and which adjudged in addition to other property an allowance of the sum of $900 in money, which was thereby made a lien on said real estate.

The Cincinnati Concrete Company claims a lien for $299.89 by reason of a judgment taken against Jay Brown, the owner of said real estate, before Edward F. Woodruff, justice of the peace, a transcript of which judgment was filed in the court of common pleas May 4, 1912. The transcript shows that this judgment was taken before the magistrate March 12, 1912, upon the confession of the defendant. This confessed judgment was therefore a violation of the restraining order issued against said defendant in -the alimony case. Outside of that question, however," the action in alimony became a lis pendens against the property described in the petition and covered by the injunction, from the date of the filing of said petition and the issue of such injunction, and the judgment when taken in that case related hack to that date, November 8, 1911.

Luella J. Brown must therefore be held to have a prior lien on the proceeds of said property. Tollerton et al, Exrs., v. Williard et al, 30 Ohio St., 579.

Judgment accordingly.

Jones (E. H.), J., and Gorman, J., concur.