text:
    (Sixth Circuit — Lucas Co. O. Circuit Court
    January Term, 1897.)
    Before King, Haynes and Parker, JJ.
    SAMUEL A. HUNTER, TREASURER, v. FRANKLIN Y. HALL, et al.

      Interest on mortgage — When computation with annual rests not admissible—
    Where the condition in a mortgage provides that interest at the rate of six per cent, shall he paid annually for the term of five years, without providing also that after the five years interest should be continued to be paid annually, interest' must be computed after such term of five years without annual rests.

      Same — Sale of school lands — Conditions in purchase money mortgages, not required by statute, void—
    Where a statute providing for the sale of school lands, directs that interest on purchase money mortgages should be paid at the rate of six per cent, until paid, a provision written into the mortgage that interest at the rate of six per cent, per annum, should be paid annually, would be ultra vires, and the interest on such a mortgage can not be computed with annual rests.
   Haynes, J.

A petition was filed in the court of common pleas for the foreclosure of a mortgage, and such proceedings were had that the case came to this court by appeal, and it has been heard upon the pleadings and the evidence.

The action was brought for the forclos'ure of a mortgage that was given in the year 1843 by Thomas Wood upon certain lands in Springfield township in this county, to secure the payment of the purchase price, the lands themselves, being a part of school section 16, and being sold under a special act of the legislature, pasáed March 20th, 1840,. which is found in Yol. 38, Ohio Local Laws, at page 177.

The petition claims, after setting up the mortgage, that there’is still a balance due upon the mortgage of quite a large sum of money, perhaps $1700, and issues are joined, by the defendants upon this petition; and the defense substantially is,that the mortgage has long since been paid,and cancelled and satisfied.

The first question that arises in the case, and the important question at the outset, is, as to the manner in which the interest is to be computed upon this mortgage.

The petition, after stating the proceedings in regard to the sale of the property in pursuance of the statute, says:

Thereafter, and on said 9th day of March, A. D. 1843, said auditor, by proper deed and by virtue of the statute in such case made and provided, duly conveyed said west half of the southeast quarter of said sec. 16 to said Thomas Wood, and on the same day, and in order to secure the payment of said purchase money and interest, said Thomas Wood made, executed, and deliverd to the treasurer of Lucas county his certain bond and mortgage deed of that date, whereby by said mortgage deed he conveyed to said treasurer for the use of the common schools of said township No. 2 said land so conveyed to him as aforesaid. Said bond was upon the condition that said Thomas Wood should pay, or cause to be paid, annually to the treasurer of Lucas county, for the use of the common schools of said. township, the interest at 6 per cent per annum, which should accrue upon the sum of $640, for the term of five years from the date thereof, and at the expiration of said five years, should pay or cause to be paid to the said treasurer of Lucas county, for the use of the common schools as aforesaid, said sum of $640.

The bond and mortgage were not paid at maturity, but continued to run for some time; and it is claimed that if paid at all, they were not fully and completely paid up until some time in the year 1884.

The contention on the part of the plaintiff is, that interest is to be paid upon this bond and mortgage with annual rests up to the date of final payment. On the other hand, it is claimed on the part of the defendants that after the period mentioned in the bond for the maturity of the bond and the mortgage also, that interest should be paid at 6 per cent per annum, simple interest.

Section 16, as I have stated, was sold under and by virtue of the provisions of a statute of the legislature of the state of Ohio, which is found among the local laws of the year 1840, in Vol, 38, and is entitled:

“An act to authorize the sale of school section sixteen, in the township number two, in the United States’ twelve mile square, at the foot of the rapids of the Miami of Lake Erie, in the county of Lucas.”

It provides, first, for the sale of the property by first obtaining the permission of the electors of said township.

Sec. 3 provides:

“That so soon as said sec. 16 shall have been surveyed by the said county surveyor into half quarter sections, the said commissioners shall cause to be delivered to the auditor of Lucas county, such survey and plat thereof, and the appraised value of each respective lot or parcel thereof, so made as aforesaid; and it shall be the duty of the auditor, upon receiving the return of said commissioners, to give at least 30 days’ notice, by advertisements set up in five of the most public places in the county of Lucas, or in some newspaper of the most general circulation therein, of the time and place of sale; and pursuant to such notice, he shall, between the hours of 10 o’clock A. M., and at 4 o’clock P. M., at the door of the court-house in said county, proceed to sell the said section in half quarters, to the highest bidder, on a credit of five years, continuing said sale from day to day, if necessary; the interest on the purchase money to be paid annually into the treasury of said county, for the usé of schools in said township: provided, that no lot or parcel of said land shall be sold for less than |3.00 an acre: and provided further, that in case any purchaser at the first sale shall fail to make payment of the sum by him bid therefor, said land shall not be sold at any subsequent sale for less than the appraisement.
“Sec. 4. That the auditor of said county shall, on sale of any part or parcel of said school section being made as aforesaid, make and execute deeds of said section, being made as aforesaid, make and execute deeds of said lands to the purchaser or purchasers thereof, and shall take from the purchaser or purchasers thereof, a mortgage on the said lands'so sold as aforesaid, together with a bond, in the penalty of at least the amount of such purchase money, with good and sufficient security,to the acceptance of said county, as additional security, which mortgage and bond shall be taken in the name of the c aunty treasurer of the county of Lucas, to secure the payment of the purchase money, with interest thereon until paid, at the rate of 6 per cent per annum, and the purchase money at the expiration of five years from the day of sale, to the said county treasurer, for the use of schoos in said township.
• “Sec. 5-. The said county treasurer shall,out of the first money that may come to his hands, of the interest on the purchase money of the sales of said lands, refund to the treasurer of said county, the amount which may have been paid out to said commissioners and surveyor, for the services rendered by them as hereinbefore provided.”

It would seem that within the policy of the legislature this school section 16 was sold specifically for the purpose of supporting schools in the township in which the land was situated, and that its dealings were all to be between the purchaser and the officers of the county, and the money appropriated to these particular schools. That is to say, I should judge from the appearance of things, that it was not intended that the money should go through the hands of officers of the state, or go into the permanent fund provided for in the statutes of the state for the support of the schools.

In our judgment, the question as to whether interest is to be paid with annual rests is dependent upon this statute, and upon the terms of the contract. I do not know but that within the holding of the courts of that day, or the understanding of the members of the bar at that time, this statute was drawn with clear and well defined views in the mind of the person who drew it; but under the decisions of the supreme court, as they stand to-day, there is some inconsistency in the statute, or at-least some seeming inconsistency. It will be-observed that the sale is to be made to the highest bidder cm a credit of five years, ¿nd then, and not just at that' point, the interest on the purchase money to be paid annually in to the treasury of said county. There is nothing said about the rate, there is nothing said about the time or terms upon which it shall be paid, except that the interest shall be paid annually; nothing said as to how it shall be secured, or in what manner. That is all left for a subsequent section to settle. The law being drawn in that manner, is a little difficult to understand. However, in sec. 4, when the statute comes to provide for the making of deeds conveying the title, and then securing the purchase price, it is quite clear and explicit. It provides, first, that there shall be taken, first, from the purchaser a mortgage on the said lands so sold; then it provides that a bond shall also be taken with a penalty to the amount of the purchase money, with a good and sufficient security, to the satisfaction of said county, as additional security. That is to say, he has to secure it by mortgage upon the land, and he has to give in addition to that a bond for the payment of the money, to the acceptance of the county. You notice he deals sometimes with the treasurer, sometimes with the auditor, and sometimes with the county itself. “Which mortgage and bond shall be taken in the name of the county treasurer of the county of Lucas, to secure the payment of the money, with interest thereon until paid, at the rate of 6 per cent per annum, and the purchase money at the expiration of five years from the day of sale, to the said county treasurer, for the use of schools in the said township.” I have already said that it is possible that the drawer of that considered that the statement which is expressed in this statute that interest is to be paid at the rate of 6 per cent per annum, meant that it was to be paid annually; but in the case of Patrick v. McConnell, 10 Ohio St. 348, which stands to-day a the law of the state, it is clearly pointed out that the phrase “six per cent, per annum” means that interest is to be paid at 6 per cent for the time being, by the year, instead of by the month or by the six months, or any other date: it is simply the rate as to time. It follows from that decision that if a party seeks to have an instrument draw interest payable annually, it must be expressed in that form.

Under the powers that were granted to these officers, and the duties that it was incumbent upon them to perform, they were to take a mortgage and a bond, the bond to provide that the interest on the sum of $640 — in this case, interest on an amount equal to the amount for which the land was sold — should be paid to the county, for the period of five years ,and at the expiration of that time, that the whole sum should be paid. It was contemplated, of course, that the officers would take the bond in that form, and that the mortgage would be paid at that time, and that would be the end of the matter. It happened, though, in this case, that the money was not paid at the expiration of the time. The question arises, then, as to the rights of the parties, if the petition correctly states the condition of the bond. There is no copy of the bond attached. The bond itself has either been delivered to the grantors or their representatives, or is lost. The condition of the mortgage is that the mortgagor, “Wood, shall pay or cause to be paid annually to the treasurer of the county of Lucas for the use of common schools as aforesaid, the interest at 6 per cent per annum, which shall accrue upon the sum of $640, for the term of five years from the date thereof, and at the expiration of said five years, shall pay or cause to be paid to the said treasurer the sum of $640.’’

The only statute that was in force at that time in regard to interest, so far as I can discover, is to be found in the statutes of Ohio — '“Swan’s Statutes,’’ as they are commonly called — of 1841, at page 465. It provides:

“That all creditors shall be entitled to receive interest on all money, after the same shall come due, either on bond, bill, promissory note, or other instrument of writing, or contract for money or property; on all balances due on settlement between parties thereto, or money withheld by unreasonable and vexatious delay of payment; and on all judgments obtained from the date thereof; and on all decrees obtained in any court of chancery, for the payment of money, from the day specified in the said decree for the payment thereof, or if no day be specified, then from the day of the entering thereof, until such debt, money or property is paid; at the rate of six per centum per annum and no more. ”

The former act was repealed.

Now, if the party who drew this bond and mortgage, had drawn the mortgage in accordance with sec. 4 of the statute, we are unable to see how he could have drawn it otherwise than that the mortgage should draw interest at the rate of 6 per cent per annum until paid. That is the direction of the statute; that is all the authority that is granted to him. If he passed beyond that, he would have been acting ultra vires.

It, perhaps, would be a proper construction of the statute to hold that the bond should have been drawn in the form in which it was — a bond for the payment of the sum of |640, with a provision that interest at the rate of 6 per cent per annum should be paid annually during the period of five years upon the sum. If the bond had been drawn in the form which I have suggested, it seems to us there would be no question but what, according to the expressed condition of the bond itself, it would draw interest annually for the period of five years, and five years only, and at that time it would draw interest according to the terms of the statute and according to the practical conditions of the bond and mortgage, and at and for the sum of 6 per cent per annum. Now, the condition of the bond as recited in the mortgage, and also as recited in the copy of the mortgage which has been produced in court, is, that the mortgagor “shall pay interest at 6 per cent per annum, which shall accrue upon the sum of $640 for the term of five years from the date thereof, and at the expiration of said five years, .shall pay or cause to be paid to the said treasurer the full sum of $640.” There is no agreement that he shall pay interest annually after that date; there is no statute: and where a contract of that kind is drawn to pay interest down to a certain date, interest may be computed to this time with annual rests, as in that contract. In fact, the only statute in force, as I have read, is, that after the money becomes due, or the bond, or note, interest should be computed at the rate of 6 per cent per annum, and no more.

Our conclusion is very clear that the contract provides that interest should be paid annually for the period of five, years, and that there is no contract for the payment of interest annually for any period of time after that; and that the statute under which the bond and mortgage were taken, provides only for the payment of interest annually for the period of five years, and that under the decisions of the supreme court of the state of Ohio, the true construction of the language of that statute is, no matter what the party had in mind who drafted the act at the time it was passed, interest is to be computed simply at 6 per cent per annum from the time the mortgage fell due down to the date o payment. So that in whatever light we view the whole transaction, we are led to the same conclusion: that the contention on the part of plaintiff that the county is entitled to interest with annual rests after the bond and mortgage became due, cannot be sustained.

We understand that under the agreement of parties, under the construction of the statute and of the mortgage, if is conceded and agreed that the whole sum of $640 and interest has been fully paid. We therefore have not looked into the many interesting questions that have been discussed by counsel in the case, but simply content ourselves with arriving at a proper conclusion upon the proper construction of the contract. It will therefore follow that the plaintiff’s petition will be dismissed at his costs, and that the defendants will have judgment for costs against the plaintiff.

Geo. P. Kirby, for Plaintiff,

Ó. W. Everett and Chas. T. Lewis, for .Defendants.


source: Caselaw Access Project

author: Bentley, J.

license: Public Domain

text:
    (Sixth Circuit — Lucas Co., O. Circuit Court
    Jan’y. Term, 1895.)
    Before Bentley, Scribner and Haynes, JJ.
    SHELDON C. REYNOLDS v. JOHN T. NEWTON, et al.

      Gower Map of Toledo — Owners who failed to sign plat bv.t sold lots as designated on and with reference to it, bound by designation of streets—
    The ‘ ‘ Gower Map, ’ ’ of the city of Toledo, made in 1886-7, subdivided a tract of land, known as the Bartlett farm, laying it out in streets and alleys, which were duly accepted by the city, and in lots numbering the same. The tract belonged to a number of parties undivided, and some after-wards signed and acknowledged the plat. Those that did so, and their successors in title, are bound by the plat.of subdivision and the dedication of the streets as designated by the map. There was afterwards a partition proceeding to which all the joint owners, were parties, each receiving a number of the lots as designated on the Gower Map in severalty. Those owners who had failed to sign and acknowledge the Gower Map, afterwards sold lots which they had received in severalty, by numbers and descriptions as designated on the Gower Map. Held, that these owners and their successors in title, were estopped as against the other purchasers of lots in the subdivision, from claiming any title and right to possession in the streets as they were laid out on the Gower Map.

      Unauthorized taxation of and assessment on land embraced in streets as laid out, no estoppel to city to afterwards claim street—
    The fact that the land embraced in any such street while it was yet unopened and unimproved, was subjected to taxation and assessment by the city, does not estop the city from now claiming the same as a public street. Such taxation and assessment was unauthorized, and the parties who paid them voluntarily, were in no wise compelled to do so, and by voluntarily paying them, took their chances of any subsequent assertion by the city of the land as a public street.

      Adverse Possession — Fencing in street for more than 21 years—
    Adverse possession to give title must have been open, notorious, continuous and adverse for twenty-one years,, and where it appears that land, part of a dedicated and accepted public » street, while yet unopened and unimproved, was fenced in by an adjoining owner for twenty-one years, such fact is only one element of evidence necessary to establish his right to possession, and would not be conclusive to establish such right. The question remains under what circumstances and claim the fence was built and maintained. And where it appears that the predecessors in title of the claimant, within twenty-one years, had in their deeds and mortgages recognized the existence of the street as such, and had described the lots as extending to and bounded by the street, the fact that the land, part of such street, was kept fenced in by them, would not be construed as a claim against the city to the same as a public street.

      Decree of court in action against city recognizing land embraced in street as private property, not binding on owners of other lots not parties to such suit—
    Where in an action to quiet title to a strip of land, which on a plat o'f subdivision appears as part of a public street, as against an assessment levied by the city, to which aetion the city was a party, the court enters a decree wherein it recognized the land as subject to taxation and assessment as private property, and where in another suit by the predecessor in title of the claimant here, to restrain the city from opening 14th street in the same subdivision, the plaintiff described his land as embracing the part of 16th street here in question, and the court found for the plaintiff, the subject in controversy in such suit however being the land embraced in 14th street, even if the city would be estopped by such record which is doubted but not decided, yet such record would not estop private owners of lots in this subdivision, all purchased as designated and with reference to the Gower Map as to the location of the public streets therein, and who were not parties to such actions, to bring suit for the maintenance of the public streets as laid out in such map, against any other property owner who obstructs the same, as in the case at bar.

      Fencing in street adjoining lot not conclusive as eviclenee of intention to claim possession—
    The fact that an owner of lots in a subdivision, in selling the : same, conveys the lot as described in such subdivision, and also the strip of land adjoining, part of a public street as laid out in such subdivision, can not be construed as evincing an intention to claim that part of the street adversely. It may be a mere matter of precaution, to secure the legal title to the land covered by the street, so that in case of vacation of the street, or, if otherwise the question would arise, the title would be in the purchaser.
    [See in connection with this case, Daiber v. Scott, 3 O. C. C., 313, and Ashley v. Toledo, 13 O. C. C., 1.]
    Error to the Common Pleas Court of Lucas County.
   Bentley, J.

This cause comes into this court on appeal form the decree of the court of common pleas rendered in the case. It involves the question as to whether what is called Sixteenth street between Monroe street and Jefferson street, in this city, is a public street, such that the plaintiff has the right to insist as against the defendants shall be kept open and unobstructed.

The plaintiff claims that he is the owner of lot 33, in Mott’s addition to the city, and that said lot fronts on Sixteenth street between Monroe and Jefferson streets, and is only accessible by means of that street, and that the defendants by their fence and other structures, obstruct said street and blockade the way to the plaintiff’ said lot and thus injure its value, and that their said structures are nuisances which he has a right to enjoin.

The defendant Ellen A. Coghlin does not answer, but is in default for all pleading.

The defendants Newton and Mulhenny file separate answers admitting the plaintiff’s ownership of said lot 33, but they deny that they obstruct said street, and deny that the said Sixteenth street, so-called, is a dedicated or existing street. They also allege adverse possession of the parcels of land where their said respective structures are situated, in them and their respective grantors for more than twenty-one years next before the commencement of this action under said circumstances, and claim that the statute of limitations has run against the plaintiff’s said alleged right of action.

They also set up that the city has for many years taxed and assessed said parcels of land, now claimed to be a part of said street, and caused proceedings to be instituted to condemn the same for street purposes, (which were not consummated, for that the city declined to pay the damages awarded to property owners by juries in said proceedings). And Mr. Mulhenny sets up that his said parcel was sold at sheriff’s sale to pay said taxes and assessments, and that his title comes to him under said sale. And Mr. Newton pleads that the county treasurer brought suit to subject his parcel of land to sale for the payment of such taxes and assessments while it was owned by his predecessor in title, but that his grantor proved, and that the court found that he owned the ground, and that the assessments had been paid after that action was commenced. And the defendants allege that the city never accepted any dedication of any of the parcels in question for street purposes, never opened, used, improved, or occupied them for a street.

The defendants Newton and Mulhenny also file a joint amendment to their said several answers, alleging that the plaintiff is estopped from setting up that the said places in question are in a public street, for that in the year 1865,' James W. Myers and Sarah Ann Myers, under whom the plaintiff and' the said Newton each claim title to their respective parcels of land, began an action against the city of Toledo in the court of common pleas of this county, alleging that their father, James Myers, at the time of his death, 1864, and for many years prior thereto, and ever .since 1845, was the owner and in the exclusive possession of a certain large tract of land, including plaintiff’s said lot and said Sixteenth street so-called and Fourteenth street and other lands, being a tract of land assigned to said James Myers in a partition proceeding in 1845; That by his last vyill and testament he devised all of said tract of land to the said James W. Myers and Mary Ann Myers, and that they, ever since the death of said James Meyers, have been in the open and adverse possession of the same and have the legal title thereto; and that the city of Toledo was about proceeding to cause said Fourteenth street to be opened as a public street, but that the city never had any right or title to said street, or if it ever did have, it had been lost by non-user, and asking that the city be enjoined from taking possession of or opening said street.

The defendants here, Newton and Mulhenny, aver that on the trial of said cause the court of common pleas, and the district court on appeal,sustained the case made by the plaintiffs in that action, and perpetually enjoined the city -as prayed for, as to said Fourteenth street, and they claim that the effect of the decision in that case applies as well to Sixteenth Street, and that the plaintiff here, as a grantee under said Myers, is estopped from making the claim he sets up in his petition herein. These are the issues.

All the lands here in question were once a part of the old Bartlett Farm so-called. That part which the defendant Newton claims, and the plaintiff’s lot 33, were included in that part of said Bartlett farm which was setoff to James Myers in the partition proceedings of 1846, whereby said farm was aparted among said James Myers, Hicks, Under-hill, Hubbard, Pratt and Taylor. That part claimed by defendant Mulhenny was a part of that which was set off to - said Underhill in said partition proceedings.

' This case involves, substantially, the same facts and questions of law as the. case of Daiber and Southard v. Scott decided by this court at its April (1888) term, and which is reported in 3 Ohio Circuit Court Reports, page 313, with the addition of the questions arising under the plea of the statute of limitations and the estoppel alleged to arise by reason of the record of the said action of James W. and Sarah Myers agaiust the city.

Except these two matters, all of the questions involved in this case must be held to be disposed of in that case, unless we should recede from the position there taken, and our further reflection but deepens ■ our conviction of the correctness of our conclusions in that case.

We hold therefore, that said Hicks, Myers, Underhill, Hubbard, Pratt and Taylor, by executing or recognizing the Gower Map so-called, by accepting each his portion of the Bartlett Farm, as set off to them respectively in said partition proceedings of 1845-6, and by their respective acts in dealing with and deeding the lands thus allotted with reference to said map, and by paying regard in their descriptions to the streets appearing on said map as public streets, evinced their intention to dedicate, and they did dedicate Sixteenth street to public uses as a street of said city.

And it is worthy of remark here in all the evidence produced before us,not one of the original proprietors thus dedicating ever manifested any disposition to question said dedication, but continuously recognized the existence of said streets,we think, in all their conveyances and dealings; and in saying this we do not forget the provisions of the will of James Myers.

We farther hold that the city of Toledo, by proper and sufficient action, accepted said dedication many years since, and that neither by causing said Sixteenth Street to be taxed or assessed for improvements, nor by instituting proceedings to condemn it for street purposes, did the city estop itself from claiming that it was and is a public street. Such assessments were unauthorized, and the parties who paid them were in no wise compelled to do so, and by voluntarily paying them they took their chances of any subsequent assertion that said Sixteenth Street was a public street.

As to the statute of limitations: To determine whether the statute of limitations has run against plaintiff’s claim, the usual rules as to adverse possession must be applied. The statute in its present form (Sec. 4977) was passed and took effect April 15th., 1889, ten days after the plaintiff bégan this action, but whether we apply the old or the new statute, we apprehend would make no difference. The possession of the defendants, in order to raise the bar of the statute,must have been notorious and adverse for twenty-one years before April 5, 1889. This period would reach back to April 5, 1868.

Now, the question presented in this phase of the case is whether such possession as the defendants and their grantors had, was such as set the statute of limitations running; whether in fact it was open, notorious and adverse, such as would finally eventuate in giving them, in effect, the title to the lands.

We heard the testimony as to the fencing on that part of Sixteenth Street here in question, it appearing that for quite a good many years there was, during most or perhaps all the time substantially, a fence along Jefferson street and across that part of Sixeenth street; that there was a fence running from Jefferson street along lengthwise to Sixteenth street to a point about midway between Monroe and Jefferson streets, which included the lot now claimed by Mr. Newton. We think the proof fairly shows that fact, although that portion of the fence thus running lengthwise of Sixteenth street was not upon the exact center, but was southeasterly of the exact center some six or eight feet perhaps. As to the other part of the street, that which Mr. Mulhenny claims, next to Monroe Street, we think the proof shows that there has been a fence along the center line of Sixteenth street from Monroe street back as far as Mr. Mulhenny claims, only for a comparatively few years. The earliest fence there seems to have been placed upon the north-westerly line of Sixteenth street, and to have run back from Monroe street as far as Mr. Mulhenny’s lot, and that the fence which is now perhaps along the center line of Sixteenth street from Monroe Street, has not been there twenty-one years,and that there has not been a fence for many years across Sixteenth Street and along the line of Monroe Street. But whether these fences were there or not, whether they were such as enclosed the ground now claimed, would not be in and of itself conclusive in establishing the rights of the parties upon the question.

A fence or enclosure in only one element of the evidence that is necessary to establish such possession as would finally ripen into what would be, in effect, a title. This is recognized in case of Lane v. Kennedy, 13 Ohio St. 42. There a portion of the street had been fenced up for many years; there was no question about that, but there was still the further question whether the possession thus taken of a portion of a street was adverse, so that it set the statute of limitations running. The supreme court held that it was not.

There are many other decisions tending in the same direction. The main question is not whether a fence is around or upon the premises, but under what circumstances was the fence built, and maintained, and under what claim. In order to judge of that, it will be proper to notice the understanding of the parties as evinced in their deeds. We consider in this connection the point that has been made by council, that the owners of that tract had already dedicated this part of Sixteenth Street; that it was a public dedication, and legally a public street of the city. Now, if after that, the dedication had ceased to be so, it must be so by such acts of the parties as would substantially annul that dedication, and vest title in the parties.

Underhill, as I said, was one of the original proprietors, and it is under Underhill that Mulhenny finally claims title to a portion of his lot, or all of it. Mr. Mulhenny and wife in 1849, after these partition proceedings, conveyed his land to John Poag. He did not originally join in the dedication,-but in 1848 he delivered the deed which contained this description, after describing the fractional part of land:

“Beginning at the intersection of ‘the center line of Monroe Street in said city of Toledo with the center of Sixteenth Street, running thence njrthwesterly along the center of said Monroe street to its intersection with the center line of Ninteenth street; thence northeasterly along the center line of Ninteenth street to its intersection with the center line of Jefferson Street; thence southeasterly, along the center line of said Jefferson street to its intersection with the center line of Seventeenth street; thence southwesterly, along the center line of said Seventeenth Street to a point where the same would be intersected by a northwesterly prolongation of the dividing line between lots 40 and 41 (so numbered on a map of said quarter-section No. 33 on file in the recorder's office of said Lucas county); thence southeasterly along said dividing line to a point where its prolongation would intersect the center line of said Sixteenth Street; thence southwesterly along the center line of said Sixteenth street, to the place of begining, and including lots 41, 46, 47 and 52 according to the map above referred to, made by Robert Gower, surveyor, together with all and singular the tenements,” etc.

So that by his deed as early as 1849, Underhill respected this street, and although the boundaries of the land conveyed in^this^deed include[half¿of[Sixteenth Street we cannot, in view[of^other®provisions of the deed, conclude otherwise than that|he thereby^expressly recognized the existence of Sixteenth Street as a public[street,and Mr. Poag took it, of course, with such knowledge as the recitals in that deed gave him,

, Poag having thus obtained title, it seems, by some description which I cannot here[recite, conveyed to trustees— this title passed to some trustees: whether all his lands or simply that portion conveyed by the deeds I have called attention to, we do not know. The trustees of Mr. Poag, however, on March 30, 1862, conveyed to Augustus Thomas all the lands which Mr. Poag had thus obtained by his deed from Underhill, excepting this part of Sixteenth street herein controversy; that is, the trustees of Mr. Poag, in deeding to Mr. Thomas, conveyed all of this land of Mr. Mulhenny’s, except the very part here in question, to-wit, this half of Sixteenth street. That was in 1862.

The way that Mr. Mulhenny, who is the grantee under Thomas, finally gets what title he has to this portion of Sixteenth Street,is under proceedings begun by the treasurer of the county against the persons claiming to own Sixteenth street, from Monroe street to Jefferson street, to pay the taxes and assessments that had been levied thereon — the assessments levied by the city, and the general taxes. In that case was included the portion of Sixteenth street, then owned by Mr. Hiett, the predecessor in title of Mr. Newton. He answered in the case, and showed the court that since the beginning of the action he had paid the special assessment which had been levied upon that part of the land by the city,and also secured this^finding:

“And the court further finds that the said John W. Hiett has heretofore duly paid all the special assessments charged against his part of saic property, since the commencement of this action,, and that his part of [said property was improperly charged with general taxes, and that there are now no taxes or assessments due from said Hiett’s portion of said lands, but that the above taxes and assessments are due wholly from the said Poag, Harris and Sherman’s portion of said lands.”

The other portion of Sixteenth' street however, next to Monroe street, was ordered to be sold to pay the taxes and assessments in that case, and was finally sold by the sheriff to Curtis and Gloyd, the executors of Thomas. They bid it off at sheriff’s sale in 1881, and by their deed of 1884 conveyed it to the defendanCMulhenny. He gets his title therefore in that way, through the medium of that public sale, through Curtis and Gloyd, to the portion of Sixteenth street which he now claims.

He had purchased at the partition proceedings, instituted by the Thomas heirs, the other portion of the lot to which this part of Sixteenth street is, as he claims, attached. The' proceedings in partition among, the Thomas heirs, which resulted in an order by the court to sell the premises and which were bid off by¡Mr. Mulhenny at sheriff’s sale, included this description:

‘‘That part of the southeast fractional quarter of section 35 town 9 south,range 7 east,Lucas county, Ohio commencing on the northeasterly line of Monroe street where said line of Monroe street would be intersected by a continuation of the northerly or northwesterly line of Sixteenth street, should said Sixteenth street be extended across said quarter section; thence in a northerly or northwesterly direction along said northeasterly line of Monroe street, a distance of one hundred feet, to a point midway between said northerly line of Sixteenth street if extended, and the southerly or southwesterly line of Seventeenth street; thence extending in a northerly or northeasterly line, at right angels, from Monroe street to a point midway between Monroe and Jefferson street; thence in a southerly or southeasterly direction on a line midway between said Jefferson and Monroe streets, to the northerly or northwesterly line of Sixteenth and Monroe streets, to the northerly or northwesterly line of Sixteenth street, if extended through said section.”

Thus excluding from the description this part of Sixteenth street in question; that is, in that partition proceeding by the Thomas heirs, that part of the land in this Sixteenth street was not included, was not ordered partitioned, and was not sold by the sheriff.

As to the other portion or part of Sixteenth stieet in question, now claimed by Mr. Newton, it is well to see what the character of the parties’ possession was, so far as evinced by their deeds in later years. In 1870 the devise of James Myers, one of the original proprietors, deeds to Mr. Hiett, who afterwards deeds to Mr. Newton, the deed from James W. Myers to John W. Hiett containing the following description:

‘‘Commencing on the southwesterly line of Jefferson street at a point half of the distance between the center line of Sixteenth and Seventeenth streets extended, and running thence southwesterly on a line parallel with the center line of Sixteenth street extended, to a point half of the distance between said southwesterly line of Jefferson street and the northeasterly line of Monroe street; thence southeasterly, to a line parallel with Jefferson street to the center line of Sixteenth street extended to the southwesterly line of Jefferson street, thence northwesterly along said last mentioned line to the place of beginning; said premises being a part of subdivision number five of the east half of the southeast fractional quarter of section number thirty-five aforesaid, set off to James Myers, in his lifetime in a partition proceeding, had between the owners of said half-quarter section; the premises hereby, conveyed being subject to all taxes,” etc.

That is, that while that said deed made, in 1870 by Jamse W. Myers, recited the boundaries upon Sixteenth street, as the lines of “Sixteenth street extended,” nevertheless, it refers directly to these partition proceedings of 1845-6, as to the meaning of the descriptions, showing the intention to convey the same lands by and in which said partition proceedings, Sixteenth street to the full width was recognized as fixed, and the boundaries of the very land in question were described by name. So that it seems to us that the mere use of the term “extended,” regarding the lines of Sixteenth street, in the same deed where these partition proceedings are fully recognized, does not indicate that, at that time, Mr. Myers was claiming adversely to any person regarding that street, or that he intended by his deed to convey any right as had been by him, up to that time, obtained by adverse possession, as now claimed by the defendant Newton.

Mr. Hiett, in 1879, conveys, by similar description, to • the defendant Newton; but while Mr. Hiett owned it and was keeping up some of the fences which were claimed to indicate adverse possession, he gave a certain mortgage to the Connecticut Mutual Life Insurance Company on a portion of this land, and described it as follows:

“A piece of land on the west corner of Jefferson and Sixteenth streets in the Vistula Division of the city of Toledo, beginning at said west corner, and running thence northwesterly along the southwest side of Jefferson street one hundred feet; thence at right angles with Jefferson Street, southwesterly two hundred feet; thence southeasterly to the line of Sixteenth Street, thence northeasterly to the place of beginning, being part of lot number forty as marked on Marston’s map of Toledo, and as made by Declan Allen, assessor, and recorded in Volume Second A of Lucas County Plats, page 43.”

The possession of Mr. Hiett of this land, now called in question, must be established by Mr. Newton in order to make' out adverse possession, which he claims to have run for twenty-one years. While Mr. Hiett was the owner of the title to this land — having whatever fence he did have there — he made this mortgage, wherein he recognized Sixteenth street as an existing street at that time, nothing being said about its being extended, and it would be difficult for us to find that Mr. Hiett, when he made that mortgage, was claiming that, where his fences were, he was holding — as against the city, and everybody else who would claim that as a public street — that Sixteenth street was not a public street — that he owned it as private land.

Mr. Myers, long after 1865-^-being in 1883 — owned lot 33 which the plaintiff now owns, and mortgaged that, and a large number of other lots and other lands, to Valentine H. Ketcham. In the description of that mortgage, he conveys:

“Also, lots number one, five, twenty-three, twenty-four, twenty-five, and thirty-three in Mott’s Addition to the city of Toledo according to the Gower map.’’

Now, these lots appeared upon the Gower map, and it was impossible to locate them, except with reference to the Gower map. They were located, some of them, upon this street in question: this lot No. 33, as I said, being the plaintiff’s lot, bounding and abutting upon Sixteenth street. There was no possible access to it over or through any public street, except along Sixteenth street, between Jefferson street and Monroe street.

Now, we think the evidence in connection with this deed abundantly shows, wherever these fences were along the line of Sixteenth street,it was not designed by the owners at any time during the period of twenty-one years, that they should hold the possession indicated by these fences as against the city, or as against the public, or as against the lot owners in the same addition to the city, but that their possession was in fact in line with the presumptions which, without testimony, would ordinarily obtain, viz: that their possession was subservient to the rightful title wherever it might exist. We think the proof does not sustain the allegations in the defendant’s answer as to the twenty-one years adverse possession.

We come now to the other question which was not involved in the former case of Daiber v. Scott; and that is, the effect of this record in the case brought by James W. Myers and his sister, against the city of Toledo, to enjoin it from opening Fourteenth street. That action was brought in 1865, it would seem, and resulted in a finding and decree in favor of Mr. Myers and his sister. There was no person made a party defendant to that proceeding except the city of Toledo. The only thing sought by it was to enjoin the city of Toledo from opening Fourteenth street, and while in the description of the land which they claim to own in this petition, they describe it as including the part of Sixteenth street in question, yet we apprehend that in no event could an estoppel arise from that case to any person, to any extent further than that which was included in Fourteenth street so-called. We doubt very much whether that record would even estop the city as to any other street except Fourteenth street so-called,notwithstanding the averments in the petition, which in general terms the court found perhaps to be all true. We think that estoppel would not apply here, even if this plaintiff had made out his case, by virtue of the right which the oity might have to open Sixteenth street; but we think the plaintiff is not necessarily driven to that; that is, that circumstances might exist which would estop the city of Toledo from operating and claiming it as a public street, which would not estop the private owners of any of the lots in that addition.

As briefly referring to this point which I am now considering, I call attention to the case of Segur v. Harrison, in 25 Ohio St. page 14, and will read a little from the opinion of the court, on page 20. After reciting a contract between the parties in the case, whereby a certain street should be dedicated or opened, and in reference to which a fence had been made by them, the court say: .

“Under these circumstances, it seems to us, in the absence of fraud or mistake, the agreement ought upon well-established principles of equity, to be enforced, whether the public authorities accept the street as dedicated to public use or not. When the street is opened, the public will have the right to use it, and the proprietors who are parties to the agreement for its establishment, have the right to insist upon affording the public the opportunity of using it.”

In support of the doctrine there spoken of, the court alluded to a case found in 5 Seldon, from which I read from page 257, being the case of Child v. Chappell. Judge Morris says, in the course of his opinion:

“Where an owner of land lays it out in lots and streets, and exhibits the streets upon a map by which he sells and conveys lots so laid out, as between him and the purchasers of such lots, the spaces so laid out upon the map, as streets are dedicated as such to the public use. This I understand to be the law, and in conformity to the principles of natural justice. The mere act of selling, and conveying by such a map binds the grantor to permit the land so laid down as streets, to be used as such. As between the parties, their heirs and assigns, it fixes the servitude of a public way upon the land thus laid out as streets. It is perhaps unnecessary now to consider whether such a grant as between the grantor and the public, would be a dedication. I think it would not,”

By this dedication End recognition of the Gower map, and the streets, etc. laid down upon it, and the conveying of property with reference to it, we think Mr. Myers and his grantees have shown as plainly as could be, by deed, that they were bound to regard this Sixteenth street as a public street in the village, and that whenever they should convey lots bounding and abutting upon it, their grantees would have the right to insist, as against them and all those bound by their acts, that this was in fact a public street,and that the public would have a right to use it whether or not the public had accepted it, or opened it, or improved it.

Now, it is said that Mr. Myers being the grantor of Mr. Newton’s grantor, and the plaintiff also claiming under Myers, that this suit which Myers instituted against the city, estops him any way from claiming under Myers. We cannot see on what settled principle that can be urged to result. Mr. Myers brought suit against the city as to Fourteenth street, and he prevailed as against the city. We hardly think that in that case, where the city alone was defendant, the estoppel arising between him and the city became a muniment of title to his grantee of this land now claimed of Mr. Newton, so that it could be urged by any subsequent grantee of Mr. Myers of any other lot in this addition.

Whatever Mr. Myers might have done in 1865, he after-wards abundantly recognized the dedication of these streets, as we think. He mortgaged to Mr. Ketcham this lot 38. It was afterwards sold by the sheriff, and the plaintiff became the purchaser; and we think, under these circumstances, it cannot be urged that, whatever the effect of that' former action was between Myers and the city, the plaintiff is estopped from claiming that this is a public street. It was not within Ihe power of Mr. Myers, after this street was dedicated and recognized, by private contracts between himself and any other individual, to have estopped his grantees of other lots from insisting upon the rights which they otherwise would have as to this street.

In some of these deeds Mr. Myers conveys the lots by lot numbers. They could be located only by reference to this plat showing these streets; and yet he proceeds to also convey the land adjacent to these lots, and which constitute a part of these streets. We think that it cannot be said to clearly evince an intention upon the part of the grantor, by said deeds, to claim to possess that portion of the street adversely. As a matter of precaution in such a case, it would be well for a grantee of a piece of land bounding and abutting upon the road to procure the legal title to the land covered by the street, so that in case of vacation of the road, or if otherwise the question should arise, the title would be in him.

In our view of the whole case, and as we find the facts to be, the decree of this court must be in favor of the plaintiff, and that the defendants be enjoined from continuing their structures, or obstructing said part of Sixteenth street; and that the costs of the action be paid by the defendants.


author: Day, J.

text:
    (Third Circuit — Hancock Co., O., Circuit Court
    May Term, 1897.)
    Before Day, Price and Norris, JJ.
    JOSEPH T. BARTOON et al. v. THE AMERICAN NATIONAL BANK.

      Proceedings in error — What necessary to complete—
    The mere filing of a petition m error and the issuing and service of a summons thereon, within the six months limitation, does not avail to commence an action in error.
    To accomplish that result there must be filed with such petition, within the six months’limitation, “either a transcript of the final record,or,a transcript of the docket and journal entries, and such original papers, or transcripts thereof, as are necessary to exhibit the error complained of;” to the reviewing court.
    Error to the Court of Common Pleas of Hancock county.
   Day, J.

The case was submitted and disposed of on a motion to dismiss the petition in error. The facts are: On September 15, 1896, a judgment was entered against the plaintiffs in error, in favor of the defendant in error, for the sum of 1152.74, by virtue of a warrant of attorney, attached to a promissory note then due and payable, authorizing any attorney at law to appear and confess a judgment, in a court of record, against the makers of the note and warrant of-attorney, and in favor of the legal holder thereof.

On March 12, 1897, within six months from the rendition of the judgment, a petition in error was tiled, with a precipe for a summons in error; but no transcript of the final record, or of the docket or journal .entries was filed, nor, was any of the original papers of the case filed until March 23, 1897, when copies of the Journal entries were placed on file. There was nothing on file within six months from the entering of the judgment, except' the petition in error. Presumably a summons in error was issued and served on the defendant, for the case got a number, was placed on the trial docket and assigned for hearing at the present term of the court; and defendant in error makes an appearance with a motion to strike the petition from the files, for the reason that a transcript of entries and the original papers were not filed in the circuit court, within six months after the rendition of the judgment in the case; and on this motion the case was submitted to the court.

An action in error, to procure the reversal of a judgment, can only be commenced within six months after the rendition of the judgment sought to be reversed; and whether the motion submitted in this case shall pre.vail, or not, depends upon the fact as to whether the plaintiffs accomplished the commencement of an action in error by the simple filing of a petition in error, without the original papers and transcripts of the record.

The statute provides how such action may be commenced, and specifically defines what must be done — what steps taken —to accomplish the commencement of an action in error. Sec. 6713, Rev. Stats., provides that the proceeding to obtain a reversal of a judgment shall be by petition in error, filed in the court having power to make the reversal, setting forth the errors complained of. Upon this petition a summons must be issued and served; the summons' must contain a statement that a petition in error has been filed in the case. The next two sections, 6714-15, provide, when a summons in error shall, and shall not, issue. Sec. 6716, Rev. Stats., provides:

Albert Zugschwert, fox Plaintiff.

H. F. Burlcet, for Defendant.

“The plaintiff in error shall file with his petition, either a transcript of the final record, or a transcript of the docket or journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of, etc.”

The filing of one of these requisite things, separately from the others, within the six months time fixed and limited, will not avail to commence a proceeding in error. Either one alone, would be a vain and futile thing; as neither would exhibit to the reviewing court the error complained of. Of course, it is not necessary that the. filing be concurrent in point of time of filing; the petition might be filed on one day, the transcript on another and the original papers on still another; but it is essential that they all be on file together, within the six months; and a failure to so file all of them, is a failure to comply with the mandatory provisions of the statute; in which event no proceeding in error is commenced, and no action is procured to be pending.

Thejnotion is allowed and the petition in error is dismissed.

Price and Norris, JJ., concur.


author: Havnes, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1893.)
    Before Bentley, Haynes and Scribner, JJ.
    THE TOLEDO, COLUMBUS & CINCINNATI RAILWAY COMPANY v. JOSEPH FRICK.

      Negligence of R. R. Co. to fill up empty spaces between .ties near switch—
    1.. In action to recover for personal injuries sustained by an employe of a railroad company, it was alleged that it was the duty of the defendant railroad company to have filled the open spaces between the ties projecting' outside of the rails of its track, in such wise as to protect its employes engaged in coupling and uncoupling ears, from having their feet caught in the open spaces between the ties outside of the rails, and being thrown down and run over by the cars, etc.; that the railroad company wrongfully and negligently omitted and neglected to fill the spaces between the ties near a switch, by reason of which the plaintiff had his foot caught in such open space and was thrown down and injured by a car passing over his arm. Held, the petition stated a ease of negligence: the company being bound to use reasonable and proper care in filling the spaces between the ties near switches where it is known the track will be used by brakemen for the purpose of coupling and uncoupling cars, to prevent the feet of employes being caught while in the performance of their duties.

      Uncoupling cars while in motion as contributory negligence—
    2. It is not negligence per se on the part of a brakeman to uncouple cars while the cars are in motion, when it is necessary to have them in motion to get the proper slack to enable the brakeman to do the work.

      Where evidence as to contributory negligence conflicting, verdict will not be disturbed by reviewing court—
    3. Where the evidence is conflicting whether the plaintiff had before switched cars at a place where he is injured in such wise as to charge him with knowledge of the conditions at such place, and his attention while uncoupling cars at such place. Held, the question of his contributory negligence in stepping into an open space between the ties, is for the jury, and a court of review will not set aside a verdict in favor of the plaintiff in such ease on the ground of contributory negligence.
   Havnes, J.

A petition in error is filed in this case to reverse the judgmerit of the court of common pleas. It is a case where Joseph Frick was plaintiff and the railroad company was defendant. The action was brought in the court below for the purpose of recovering damages from the defendant for the loss of an arm, from an injury which plaintiff had sufered while in the employ of the defendant company. Trial was had, and judgment was rendered for a certain sum in favor of the plaintiff and against the defendant. A motion for a new trial was filed, in which the grounds set forth for a new trial are: That the verdict was not sustained by sufficient evidence; for several errors of law occurring at the trial, to the commission of each and every one of which the defendant at the time excepted; and for other manifest errors apparent upon the face of the record. The petition in error sets out as causes of ertor: that the court erred in overruling the motion of plaintiff in error fora new trial; that the facts set forth in the petition are not sufficient in law to maintain the said action against plaintiff in error. There are some other points, but these are the main ones.

The principal point argued is, that the petition in error does not set forth a cause of action in favor of the plaintiff below against the defendant. The main portions of the petition are as follows:

“Plaintiff further says, that on the 26th day of August, 1890, he was an employe of the said defendant in the capacity of a brakeman on freight trains, Plaintiff further says, that it was the duty of the said defendant to have Billed the open space between the ties projecting outside of the rails of its said railroad, and thereby protect its employes engaged in the work of switching, coupling and uncoupling cars, against the danger of having their feet caught in such open spaces, and being thrown down and run over and crippled or killed by the cars that they were switching, coupling or uncoupling. Plaintiff further says, that the said defendant, at a point near the station of Stewartsville, a station on the line of said railroad aforesaid, about three or four hundred feet north of the place where the New York, Chicago & St. Louis Railroad crosses the railroad of said defendant, the said defendant, wrongfully, carelessly, negligently and unlawfully omitted and neglected to fill the spaces between the ties on the west side of said railroad, and for a long time prior to, and at said date, permitted the spaces between the said ties to remain open, unprotected, and unfilled at the said point, whereby its employes, undertaking to couple or uncouple cars as aforesaid, were liable to have their feet caught therein, and thrown forward and injured by passing trains upon the said tracks; all of which was well known, or by the use of reasonable care, might have been known to the said defendant, and was unknown to this plaintiff.”

And this petition further avers, that while at this point in question, engaged in the duty of uncoupling a car, he stepped into one of those spaces, was thrown forward upon the track without any fault on his part, and suffered an injury which caused the loss of his right arm,

The defendant, for answer,

“Admits that the open space between the ties projecting outside of the rails of its said railroad, was unfilled at the time of the accident in the petition alleged, and had never-been filled since the construction of the railroad at the point of said accident, or at any other point along the line of said railway. It further admits, that the plaintiff, while engaged in switching cars in a moving train at Stewartsville, was so injured, that his left arm was amputated. But defendant denies each and all the other allegations of the petition not hereinbefore specifically admitted to be true.”

A reply was filed, denying all the new allegations in the answer.

The case proceeded to trial, and evidence was offered as to the condition of the road-bed at the point in question. Evidence was also offered tending to show that at other points upon the line of the road, near the stations, and at the points where ordinarily the brakemen would be occupied in coupling or uncoupling cars, or switching cars, the spaces between the ties outside of the rails were filled. Evidence was offered on the part of the defendant, tending to prove that that was not so; that the plan adopted by the owners of. the road in constructing it was, in ballasting, to fill the space between the track to a point at the center even with the top of the ties, and then to slope that off a little as they approached the rail on either side, and as they neared the rail, sloping a little more, so that it would leave a space under the rail of about two inches, passing down to the end of the tie — it was about 22 inches from the rail to'the tie— or near the bottom of the tie, and extending on that on a slope; and this, it was averred, and the testimony was offered to show, was done for the purpose of enabling the water to run off the track speedily, so as to keep the track dry and prevent the ties from rotting, and water accumula.ting so as to make the track soft. And testimony was offered on the part of the defendant to show that that was the condition, of the track at all points, including the points where the switching was done, as well as upon the general line of the tracks.

The evidence being closed, the case was submitted to the jury upon the charge of the court, without any- requests being made by either party, so far as the record discloses, and without any exceptions being taken to the charge by either party. In that charge the court submitted the question in regard to the condition of the track or road bed of the defendant in the following language:

“The burden of proof to show negligence on the part of the railroad company is upon the plaintiff. Negligence, which is the gist of the action, is not to -be presumed, but must be proven. There is no presumption that the railroad company was negligent, from the mere fact that the plaintiff was injured while he was in the employ of the company, or while he was performing his duty as an employe of the company. To entitle the plaintiff to recover damages, it is incumbent upon him to show affirmatively, and by a fair preponderance of evidence, that the company was negligent in the respect complained of; that is, in omitting to fill the space between the ties outside of the rails at the place where the injury occurred; and it is incumbent upon the plaintiff to show, by a fair preponderance of evidence, that his injury resulted from such alleged negligence. He cannot recover if the injury was produced by any cause for which the railroad company in law is not responsible. He cannot recover if, by his own want of care, he contributed in any degree to his injury. Now, if the plaintiff received his injury in consequence of the negligence of the company, under the rules which I shall give you, and was himself free from any fault contributing to the injury, then he is entitled to recover such damages as the proof shows he has sustained; but if the injury was not caused by negligence on the part of the railroad company, or if the plaintiff, by his cwn want of care, contributed to the injury, then he is not entitled to recover, and in that case your verdict must be for the defendant.”
“The two principal questions,then, in the case which you are to determine from the evidence, are:
“First: — Whether the railroad company was negligent in omitting to fill the space between the ties at the place of the injury, and whether the injury was caused by such negligence.
“Second: — Whether the plaintiff was himself free from fault contributing to the injury.
“The relation between the plaintiff and defendant was that of master and servant, and the law imposes certain duties upon each of the parties to that relation, both upon the master and also upon the servant. It was the duty of the railroad company, the master, to use ordinary and reasonable care in providing for its employes a safe and suitable place in which to do their work; and ordinary and reasonable care is such as ordinarily prudent persons or corporations are assumed to exercise under the same or similar circumstances. The company is not required to use extraordinary care, nor is it required to do that which is unreasonable or impracticable, taking into consideration all the circumstances. The company does not guarantee the absolute safety of its'employes; it is notan insurer of its employes; it is required only to use what would be reasonable care under all the circumstances of the case.
“You will first determine from the evidence, how the injury occurred. Did it occur by the plaintiff having his foot caught between the ties^ — in the spaces between the ties; — while attempting to uncouple cars; or did it occur in some other way? If it occurred as alleged by the plaintiff, did the company fail to use reasonable and ordinary care in omitting to fill the spaces between the ties at the place where the injury occurred? Now, gentlemen, that is a question of fact purely, which you must determine from all the evidence in the case. Everything must be considered; the place where the injury occurred; all the objects and purposes to be accomplished in the construction of the defendant’s road bed; the duty of the company to its employes; the safety of the road bed for trains to pass over it, and what would be practicable and reasonable in view of all the circumstances of the case. You may consider whether or not the road bed of the defendant at the point of the injury, was constructed in-accordance with the regular mode of construction at similar places adopted by the company, if there was such a mode of construction. If the road bed at the place of the injury was constructed in accordance with such regular mode, and the plaintiff knew this, or might have known it by the exercise of reasonable care, then the company is not chargeable with negligence. But if there was no regular mode of construction at similar places, or if the mode of construction at the place of the injury was materially different from such regular mode of construction, then you may take that fact into consideration in connection with all the other evidence, in determining whether there was any negligence. The inquiry is: whether, under all the circumstances and all the facts, the company did, or did not, use reasonable care in omitting to fill these spaces at the place of the injury.”

To this charge, as I have stated, no exception was taken. The question which was very fully argued here, by counsel on behalf of plaintiff in error, is this: He asserts in substance, as a proposition of law— I will not undertake to give his words — the right of the company to construct its road in conformity to a plan of its own~choosing, and that those who take service with it, take it with the risk incident to that service. And he avers that the [petition does not state a cause of action, because there is*no averment that there was any mistake in the plan, but simply|that the plan did not provide for the filling of the spaces^between these ties.

The question, in the form in which it is presented, is rather new to us. We have endeavored to give very careful attention to the arguments that have been advanced and to the authorities that have been cited. An authority"nearly approaching the position that is taken by plaintiff, will be found in 122 U. S., Tuttle v. Detroit, Grand Haven & Milwaukee Railway. In the opinion of the court, which is found on page 194, it appears that at Detroit, in the yards of the company, there was a curve called a boot-jack, which was a very sharp curve, and that the plaintiff, who was an •old employe, attempted to couple cars that were passing around that curve, and he approached them on the concave side. The cars, when they came together, did so in such a way that the draw-bars did not meet, and the cars pressed together. Judge Bradley says:

4 ‘ We have carefully read the evidence presented by the bill of exceptions, and, although it appears that the curve was a very sharp one at the place where the accident happened, yet we do not think that public policy requires the courts to lay down any rule of law to restrict a railroad company as to the curves it shall use in its freight yards and depots, where the safety of passengers and the public is not involved; much less should it be left to the vague and uncertain opinions of juries to determine such an engineering question. The interest of railroad companies themselves is so strongly in favor of easy curves as a means of facilitating the movement of their cars, that it may well be left to the discretion of their officers and engineers in what manner to construct them for the proper transaction of their business in the yards, etc. It must be a very extraordinary case, indeed, in which their discretion in this mattér should be interfered with in determining their obligations to their employes. The brakemen and others employed to work in such situations must decide for themselves whether, they will encounter the hazards incident thereto; and if .they der cide to do so, they must be content to assume the risk.”

He refers to the case of Randall v. Baltimore & Ohio R. R., 109 U. S., where it is said:

“A railroad yard, where trains are made up, necessarily has a great number of tracks and switches close to one another, and any one who enters the service of a railroad corporation connected with the moving of trains, assumes the risk of that condition of things.”

He further says, in reference to this particular case:

“It is for those who enter into such employments to exercise all that care ar d caution which the perils of the business in each case demand. The perils of the present case, arising from the sharpness of the curve, were seen and known. They were not like the defects of unsafe machinery which the employer has neglected' to repair; and which his employes have reason to suppose is in proper working condition. Everything was open and visible, and the deceased had only to use his senses and his faculties to avoid the dangers to which he was exposed. ' One of these dangers, was that of the draw-bars slipping and passing each other when the cars were brought together. It was his duty to look out for this,and avoid it. The danger existed only on the inside of the curve. This must have been known to him. It will be presumed that, as an experienced brakeman, he did know it; for it is one of those things which happen,.in the course of his employment, under such conditions as existed here.” , ■

A case was cited in 39 Fed. Rep., 419, in which Judge Colt, of the Circuit Court, delivered an opinion. The question arose over an injury received by a freight conductor, causing his death, which injury resulted from the negligence of defendant company in its construction of a sidetrack at a certain point, the claim being, that the side-track was defectively constructed. It seems that the accident was caused by a collision of a freight train in charge of a conductor with a freight car which had drifted from a sidetrack, and that the company failed to employ stop blocks or proper means for blocking the cars when upon the side-track. Upon the trial of the case before a jury, the court had instructed the jury to say, “whether the siding was constructed in accordance with scientific railroad construction, and whether, in its construction, with respect to stop blocks, or to securities against a car being blown out on to the mam track, the company exercised ordinary care.” Before the case came up on a motion for a new trial, this decision had been made which is reported in 122 U. S., and following that the Circuit Judge granted a new trial for the error in the charge which I have just read. So it seems that the judge had originally started out with the opinion that it was a question of the exercise of ordinary care on tbepart of the railroad company.

There is an instructive case to be found in 8 Allen, 441, which we think takes a different view of the question. In that case, the defendant was sued for an. injury that had occurred to one of its servants who had endeavored to uncouple the cars of a train at a point near where its railroad crossed the highway, and near its intersection with another railroad. It was shown that certain planks had been laid down thereat a certain time that had become defective, and that there was a hole in them through which the plaintiff stepped while endeavoring io uncouple the cars. So .that the question arose, perhaps, in part, as to .whether the defendant had been negligent in keeping up the plank as originally laid, and the discussion of the question has much that is interesting. The judge delivering the opinion on behalf of the Supreme Court, says:

“But, in the next place, a decisive answer to this ground of defense is, that it does not appear that the defect in the road, which was the proximate cause of the accident, was the result of any such negligence of a servant of the defendants, that they would be excused from liability. It was caused by a want of repair in the superstructure or roadbed between the tracks of the defendant’s road, where it crossed the highway. In other words, the defendants neglected to keep a portion of their road, where it was necessary for the plaintiff to go in the discharge of his duties, in a safe and suitable condition, so that he could not pass over it without incurring the risk of injury. Now, while it is true, on the one hand, that a workman or servant, on entering into an employment, by implication agrees that he will undertake the ordinary risks incident to the service in which he is engaged, among which is the negligence of other servants employed in similar service by the same master, it is also true, on the other hand, that the employer or master impliedly contracts that he will use due care in engaging the service of those who are reasonably fit and competent for the performance of their respective duties in the common service, and will also take due precaution to adopt and use such machinery, apparatus, tools, appliances and means, as are suitable and proper for the prosecution of the business in which his servants are engaged, with a reasonable degree of safety to life and security against injury.
“Thus an owner of a steamboat would be liable to an engineer or workman in his employment for an injury occasioned by the use of a boiler which was defective and insufficient. So a manufacturer would be subjected to a like liability by the' use of imperfect or badly constructed machinery. And in like manner the proprietors of a railroad would be responsible for accidents happening by tracks improperly laid, orswicthes which are not constructed to operate with regularity and precision. The distinction on which this rule of law is founded is an eminently wise and just one. ’’

Then he states the law as to master and servant, and proceeds:

“But it is otherwise where injuries to servants or workmen happen by reason of improper and defective machinery and appliances used in the prosecution of a work. The use of these they could not foresee. The legal implication is, that the employer will adopt suitable instruments and means with which to carry on his business. These he can provide and maintain by the use of suitable care and oversight; and if he fails to do so, he is guilty of a breach of duty under his contract, for the consequences of which he ought, in justice and sound reason, to be responsible. Such we understand to be the rule of law, and the principles on which it is founded are now fully established by authority.”

A case is also found in . 67 Texas, and that case more nearly approximates this. It appears that a railway company was constructing a railroad, and had constructed its track so that it could use it for a certain distance, and was running cars over it for the purpose of constructing its road on beyond. It had not opened the road for general traffic, but was using it with a locomotive that had a cow-catcher on it that was hung a little low, or hung a little out of plumb in some way, so that it went very near to the ties. The road bed was not ballasted at all. It further appears that the plaintiff, who was a brakeman, was engaged in attempting to uncouple the cars as they came near the end of the road, and in stepping along, he sometimes stepped in the space between the ties instead of stepping upen them; and at the time of the accident in question in the suit, he had stepped between the ties and caught his foot, and being satisfied that he would be run over by the train, be threw his body to one side and attempted to pull his foot out, and would have accomplished it but for the fact that the cowcatcher at that moment came along, and being depressed in the manner I have stated, there was not room for his foot to pass-out, and he was badly injured. Now, the supreme court of that state say, that the company was bound to have its road bed ballasted and fixed up before it undertook to use the road, even although it was in process of construction. It may be an extreme case, but is in line, it seems, with the doctrine that has been followed by some of the courts with regard to the duties of railroad companies.-

Quite a number of other cases were cited, and have been discussed. They relate, very largely, to injuries that have resulted from the use of some form of machinery or appliances of that class, in regard to which there is no question as to the liability of a railway company, provided it has been guilty of negligence, and I shall not revert to those further. There is one case, however, in regard to which there was a discussion as to the manner in which the platform of a railway depot was constructed; but that is a discussion of a question of evidence in regard to the condition of affairs at that point rather than an enunciation of any general principles that will help us in this case.

Now, the judge of the court below proceeded upon the theory that the railway company, plaintiff in error here, was bound to use reasonable and proper care in the construction of its tracks at these points, for the purpose of securing the safety of its employes in the performance of duties which they are called upon to perform there, to-wit: —that of switching and coupling and uncoupling cars. To that no exception, as I have said, was taken, The case was submitted upon that theory to the jury, with a very full statement of the rule of law in that regard, and the verdict was returned upon that without any exception. Assuming that the question that is presented here is properly raised, or that is sought to be argued here by the parties, may be argued here at this time, based upon the facts stated in the petition, we are inclined to the opinion that the law was properly stated by the trial court. The question is not one of the bare right of the railway company, to say as to the manner in which its tracks shall be constructed. The company was bound to use reasonable and proper care at these points, to so fill the spaces between the rails that persons who were engaged in coupling and uncoupling cars might have reasonable assurance.-of safety..in passing along in the. performance of their duties. The general doctrine that they have the right, as a general rule, to prescribe the manner in which their track shall be constructed, we do not now discuss. It is only at these particular points — at the points near the switches, where it is known, and must be known to them, that the track will be used by brakemen for the purpose of coupling and uncoupling cars, as they pass along the train.

It is said, that this accident occurred jyhile the train was in motion, and that it was negligence on the part' of the brakeman to endeavor to uncouple the cars when the train was in motion. As a general rule, perhaps, that may be true, but it appears from the testimony here, which is not questioned, that in order to get the proper slack to enable the brakeman to uncouple these cars, it was necessary to have the train in motion; and it appears that while it was in motion, proceeding, perhaps, slowly, that he was passing along, leaning towards the car, and his foot caught in the track, or under the end of the ties; that he was thrown down with his left arm upon the track, and was run over. In doing that while the train was in motion, we do not think that the brakeman was negligent. We think that the brakeman was in the performance of his duty, and in the place he ought to have been, and was doing his work in a careful and prudent manner.

It is said, as a second ground upon which the judgment should be reversed, that the plaintiff himself was guilty of negligence. That question has been argued and discussed by counsel with a good deal of earnestness. The testimony shows that the plaintiff had been in the employ of the corppany for some months, and that he had been out of the employ, and absent a month, for some purpose, and had returned the day before the accident happened, and had started out upon this trip, leaving Findlay in the morning,coming north. He testifies himself, that he had never switched at this point before. He furnishes the testimony of some of his co-employes, who testify that they had run with him all this spring, and that he had never done any switching at this point. It was said that he was usually rear brakeman, and his duty was to set brakes when coming to a station, and he helped load and unload freight, while the switching was done by the foreman or forward brakeman. On this particular day, the foreman was alone, the conductor being absent for some reason, and he was ordered by the person who was acting as conductor to make this switching, and he passed from the rear end of his^train along the length of the train up to the front; that he came to the seventh car from the engine, and at that point he was to set out a certain car, which he uncoupled at that point, and the train moving forward with the seven cars,threw this car upon the switch and left it. He was also to take two other cars that’stood on a side-track, which was also a connecting track with the road that they crossed at that point. He got those cars, and in getting them out he had to take out quite a number of other cars — sixteen,I think they were. He pulled them all out, and backed down to his own train, and uncoupled the two cars that he was to connect to the train. He started to go ahead, and was attempting to uncouple the cars that were to go back upon the side-track at the time the injury occurred, and was upon the west side of the main track. It is said that he passed up to that point before that time that morning. It would seem as if he ought to have been more familiar with this point than he was, or than the testimony of his co-employes would tend to show that he was. But that question has been submitted to the jury, the witnesses themselves being present in court, and has been passed upon by the jury; and we are not permitted, under the rules that should govern this court in passing on evidence that has been passed on by a jury below, to say that the jury have erred, or have been governed by improper motives, in arriving at the conclusion that the plaintiff himself was not guilty of negligence. In that connection it should be remembered that the duty which he was called upon to perform, was one that occupied his mind and his attention, and that it was very difficult for him to give attention to the coupling and uncoupling of cars at that point, and protect his hands, and at the same time watch very closely the place where he should put his feet; and that we think should have an important bearing upon the question, as to whether he was guilty of negligence in not observing greater caution in regard to the place where he should walk. It seems that in attempting to step on the ties, instead of stepping on them he stepped between them. Tt should be remembered that these ties are nearly the whole width of a tie above the grade. The rails themselves are two inches above the ground; so that if he should happen to turn a little towards the car, his toes pointing in, and we may say towards the car, he would have been very liable to have had his toes caught under the rail itself, or at the point where the rail and tie would cross each other. In looking this matter over, we are not prepared to say ourselves, that the plaintiff was guilty of negligence, even if the case were an original one before us. Certainly we are not prepared to say, and cannot say, that the jury have been guilty of prejudice or passion, or anything that would entitle the parties to a new trial, in coming to the conclusion that the plaintiff was not guilty of negligence.

Doyle, Scott & Leiois, Attorneys for Plaintiff in Error.

Scribner & Hurd, Attorneys for Defendant in Error.

For these reasons, we think that the judgment of the court below should be affirmed, but reasonable cause may be certified.

(Note: — Affirmed in the Supreme Court, 51 Ohio St., 575.)


author: Hale, J.

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    Term, 1897.)
    Before Caldwell, Hale and Marvin, JJ.
    THE CAPITAL FIRE INSURANCE CO. v. JOHN BEVERLY.

      Fire Insurance policy — Clause avoiding it for fraud, valid—
    1. A clause providing .that a fire insurance policy shall be void if the insured shall commit fraud before or after a loss, is valid.

      Same — Exaggerated statement of loss, although actual loss greater than amount of insurance—

    2. Where the answer sets up such a clause, with an allegation that the plaintiff presented to the company, a fictitious, exaggerated and fraudulent schedule as part of his proofs of loss, it is error to instruct the jury that the plaintiff may recover notwithstanding the fraud, if his actual loss equalled the amount of insurance.
    Error to the Court of Common PJeas of Cuyahoga county.
   Hale, J.

The action in the court below was upon an insurance policy by the defendant in error against the plaintiff in error. In his petition he sought to recover for losses which he had sustained in the destruction of property by tíre on the 21st day of August, 1894. Two claims are made by which it is said this judgment should be reversed. First, that the verdict was against the evidence, and therefore the motion for a new trial on that ground should have been granted. That claim is not well taken, at least we do not sustain it.

Secondly, it is claimed that there was error in the charge of the court. The policy contained this clause:

“This policy shall be void in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after the loss. ”

Proper allegations were made in the answer claiming that there had been false swearing by the insured in the making up of his proof of loss. Suffice it to say that the exact question arising upon this charge is this: When the actual losses exceed the whole amount of the insurance, will a knowingly and purposely false statement on oath in the proof of loss, destroy the plaintiff’s claim for his actual losses under this policy? The facts being that the proof of loss included property other than that covered by the policy,and the statement was that the loss sustained amounted to more than $2,000.00. The amount of the policy was $700.00. The jury found the value of the property,or loss sustained, to be exactly the amount named in the policy. It was contended upon one side that a fraudulent statement in the proof of loss, false swearing purposely with intent to deceive, although the losses were equal to the amount of the policy, avoided the policy, while on the other band it was said that it was immaterial,

The court charged the jury in defining what would constitute fraud under the policy:

“The representations must be false; they must have been made by the plaintiff knowing them to have been false, and they must have been made with the intent to deceive and defraud. Some discrepancy in value, or some discrepancy between the amount which you might find the property to have been worth, and the amount which the plaintiff claimed it was worth in his proof of loss, would not be sufficient to establish fraud, showing that it must be a- corrupt swearing on the part of the claimant.”

Then the court says:

“Where the actual value of the property destroyed by the fire exceeds the amount of loss, then any misrepresentation, although fraudulent, in the proof of loss, or in the sum of any schedule of statements, is of no consequence whatever, and constitutes no defense against the liability of the defendant. That is, although the plaintiff did make false and fraudulent representations of the extent and character of the property which he had insured, exaggerated its quantity, exaggerated its quality, exaggerated its value in the schedules attached to the proof of loss, yet if, as a matter of fact, the property which was in the building covered by the insurance exceeds the sum of the insurance, it would not constitute a defense.”

Independent of authority, it might not seem strange that the court would so charge the jury. I think it would possibly, without an examination, be supposed that that was law. But answering this same question, the reasoning of which we adopt, is a case found in 82nd Maine, 266.

After putting the question precisely as I have put it, which is: “Will such false swearing. avoid the policy?” the court say:

‘‘We cannot doubt that it will; the parties stipulated that it should; it is so provided in the contract, and it is a lawful provision. It is impracticable for the insurers to ascertain for themselves the extent of the losses, particularly where the contents of a dwelling-house and barn are insured” (as in this case). ‘‘The assured and his family or servants are usually the only persons who can give a true account of the loss. The insurers, therefore, usually, as in this policy, require from the assured a detailed statement on oath of such losses as area necessary preliminary to the payment of the indemnity. When, therefore, he meets this demand with knowingly false statements of losses he did not sustain in addition to those he did sustain, he ought to lose all standing in a court of justice as to any claim under that policy. The court will not undertake for him the offensive task of separating his true from his false assertions. Fraud in any part of his formal statement of loss taints the whole. Thus corrupted, it should be wholly rejected and the suitor left to repent that he destroyed his actual claim by the poison of his false claim.”

We examined beyond this for authorities, and find none in conflict with it. In the case reported in the 110 U. S. 81, a statement was made in the proof of loss exaggerating the amount of the loss, not for any purpose of deceiving the insurance company, but the insured had made a statement to a commercial agency exaggerating the property that he had on hand, and when he made out the proof of loss to the company, although he knew his actual loss was more than the amount in the policy, he put into his proof of loss an exaggerated statement of the property he had lost for the purpose of covering up his tracks in the statement that he made to the commercial agency, and the Supreme Court of the United States say that even was such a fraud as to avoid the policy.

Dickey, Brewer & McGoioan, for Plaintiff in Error.

Heisley & Selzer, for Defendant in Error.

Finding nothing to sustain this charge in the authorities we have examined, and finding these direct authorities against it, we feel compelled to reverse the judgment and remand it for a new trial for error in the charge of the court.