text:
    CIVIL RIGHTS
    [Cuyahoga (8th) Circuit Court,
    November 27, 1911.]
    Marvin, Winch and Henry, JJ.
    Harry E. Davis v. Euclid Ave. Garden Theatre Co.
    1. Two Refusals to Sell Tickets, One Violation.
    Two refusals at different times to sell tickets to one performance at a theatre, constitute but one violation of the civil rights act.
    2. Aiding and Inciting Denial of Civil Rights Held Separate Offense.
    Aiding or inciting a denial of civil rights under Sec. 12940 G. C., is a distinct and separate offense, and one guilty of it is punishable, notwithstanding he whom he aided or incited has been convicted of the concomitant offense.
    Error.

      Pattison & Austin, for plaintiff in error.

      White, Johnson <& Cannon, for defendant in error.
   HENRY, J.

The parties to this proceeding in error stand here as they stood below. There the plaintiff, who is of African descent, sued for damages under Secs. 4426-1 and 4426-2, now Sec. 12940 G. C., for defendant’s refusal, on August 3, 1909, to accord him “the full and equal enjoyment of the accommodations, advantages, facilities and privileges,” of its theatre, “subject only to the conditions and limitations established by law, and applicable alike to all the citizens,” in that on the afternoon of said day, by and through its agent Max Davis at its down-town ticket office in Burrows Brothers’ bookstore in Cleveland, it twice declined to sell plaintiff tickets for its matinee performance on the following day, though it then and there had tickets for sale, and plaintiff tendered the usual price therefor.

In his original petition, plaintiff complained of these two refusals in two separately stated and numbered causes of action. On motion he was thereupon required to elect on which cause of action he would rely. To this ruling he excepted, and made his election to rely on the second refusal, as set forth in his second cause of action. We hold that the court did not err in thus ruling. The reiterated refusal to sell plaintiff tickets to one and the same performance constituted but one cause of action, and his attempt to assert two causes of action in his petition was properly challenged and prevented.

The defendant thereupon filed its answer to the amended petition, pleading a general denial and also alleging as a bar to the action that the said agent, Max Davis, had, upon the same state of facts, been convicted and punished by the police court of said city. This defense is based upon the concluding clause of the second section of said act, which reads as follows:

1 ‘ That any person who shall violate any of the provisions of the foregoing section by denying to any citizen, except for reasons applicable alike to all citizens of every race and color, and regardless of color or race; the full enjoyment of any of the accommodations, advantages, facilities or privileges in said section enumerated, or by aiding or inciting sucb denial, shall, for every such offense forfeit and pay a sum not less than fifty ,($50) dollars nor more than five hundred ($500) dollars to the person aggrieved thereby, to be recovered in any court of competent jurisdiction in the county where said offense was committed..; and shall also, for every such offense, be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than fifty ($50) dollars nor more than five hundred ($500) dollars or shall be imprisoned not less than thirty days nor more than ninety days or both; and provided further, that- a judgment in favor of the party aggrieved, or punishment upon an indictment, shall be a bar to either prosecution respectively.”

A demurrer to this defense, as embodied in an answer to the original petition, had been overruled, and exception taken. But no such demurrer was interposed to the last answer, and said exception was therefore waived.

The bill of exceptions does not contain all the evidence; hence the weight of the evidence is not before us. Neither is the propriety of the court’s ruling in directing a verdict for the defendant, though that ruling was apparently based upon the plaintiff’s admission of the truth of the facts pleaded in bar as aforesaid.

It is complained, however, that the court erred in excluding plaintiff’s testimony that, at the time he-repeated his attempt to buy the tickets, the agent said, “What are you doing this to me for 1 I am only doing what I was told to do. ’ ’ This was a) part of the res gestae. It tended to prove that the defendant, aside from any application of the rule of respondeat superior, had aided or incited the ticket agent to commit the offense of which the latter was convicted.

The act makes this a distinct and separate offense, and the one guilty of it is of course punishable, notwithstanding that he whom he aided or incited has been convicted of the concomitant offense. The conviction of the agent would not bar prosecution of the aider or inciter; nor vice versa. Facts tending to show a separate criminal liability, tend also to show that the inciting principal’s civil liability is not barred by the agent’s conviction for his own misdemeanor. ■ The principal may be civilly liable either because he has specially authorized or commanded the act complained of, or because his agent within the scope of the agency has done it even against his- orders. In the former case, both are criminally liable. They may not be jointly liable in a civil suit; but the conviction of the agent is certainly no bar to the civil liability of the principal, where the latter might also have been convicted. .

For error in excluding this evidence, the judgment is reversed and the cause remanded.

Marvin and Winch, JJ., concur.


source: Caselaw Access Project

author: HENRY, J.

license: Public Domain

text:
    APPEAL — INJUNCTION—MUNICIPAL CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    December 4, 1911.]
    Marvin, Winch and Henry, JJ.
    Viola M. Nichols v. Cleveland (City).
    1. Appeal Dismissed Sua Sponte when Cause Forbids.
    .An appellate court may of its own motion dismiss an appeal for want of jurisdiction, when it is discovered before trial and judgment that the cause is not appealable.
    2. Appropriation Proceeding Treated as Action in Ejectment.
    An action to restrain a municipal corporation from proceeding with an appropriation case, when it appears that the municipality under a former order, which had been reversed, deposited the amount found by the jury, gave bond and took possession of the land and improved it, is in reality an action in ejectment, and is not appealable.
    Appeal.

      Squire, Sanders & Dempsey, for plaintiff in error.

      Newton D. Baker, for defendant in error.
   HENRY, J.

Upon the hearing of this cause, the court, sua sponte, raised the question of its appealability. That an appellate court will of its own motion dismiss an appeal for want of jurisdiction, when it is discovered before trial and judgment that the cause is not appealable, was held in Jordan v. Jordan, 4 Circ. Dec. 290 (8 R. 431) see, also, Hulbert v. Mason, 29 Ohio St. 562, 565.

This action was commenced in the court of common pleas to enjoin the further prosecution of an appropriation proceeding in the probate court, upon the ground that the resolution to appropriate, on which the city assumes to found said proceeding, was passed by a city park board organized under an unconstitutional act.

The plaintiff does not deny, but impliedly admits, that the city, having prosecuted said proceeding to judgment, and having made the deposit and given the bond provided for by law, thereupon took and has ever since retained possession of said property, and has greatly improved and enhanced the value thereof. She further alleges that said judgment having been reversed, and various subsequent proceedings had therein, the case now stands for trial again in said probate court, where the city will again prosecute it to judgment unless enjoined from so doing. The petition also sets out the grounds on which said proceeding is claimed to be void, and prays that the city be enjoined from further prosecuting the same and from interfering with plaintiff’s peaceable possession and enjoyment of said premises.

The city’s answer pleads various matters of defense, but neither prays nor alleges grounds for affirmative relief. No reply was filed. The first question before us then is whether this cause on the face of the pleadings is not in substance and effect an action for the recovery of the possession of real estate, or in other words, ejectment. If so, it is not appealable.

In Atlantic & G. W. Ry. v. Robbins, 35 Ohio St. 531, it was held that:

‘ ‘ The owner of land which has been unlawfully and wrongfully taken and appropriated to its use by a corporation authorized by law to appropriate land can not maintain any action for the value of the land so taken and appropriated, and also damages accruing by reason of such taking and appropriation, if the circumstances are such that he may recover compensation and damages, by special proceedings under Sec. 21 (69 O. L. 88, 95, Rev. Stat., 6448-6450), or the land itself, as in other cases of unlawful entry.”

In other words, as Johnson, J., says at page 540, “the owner has his election. ’ ’ He may seek his remedy against the intruding corporation either by acquiescing in the wrongful appropriation and claiming compensation for the land taken; or by asserting his own title thereto, maintain, unless estopped, his action to recover possession of the same. In Bothe v. Dayton & Michigan Ry., 37 Ohio St. 147, it was held, in the circumstances of that case, that he could maintain his action.

As against a municipal corporation an analogous alternative is open to any one similarly aggrieved, though in such ease the action for compensation is not statutory Longworth v. Cincinnati, 48 Ohio St., 637 [29 N. E. 274]. There Spear, J., at page 640, says:

“It would appear to be common sense to say that where an owner discovers that a municipal corporation has seized his land and appropriated it to the use of a street, without process or payment, he may have his option either to repudiate the unlawful act and reclaim the land, or assent to the seizure, ratify the act, and demand compensation, yielding to the corporation title to the land so taken. And we know of no rule of law which prevents the exercise of such option.”

In that ease the plaintiff was permitted to have his action for compensation. And it is now held that the same kind of an action may be maintained against any corporation, public or private, which has wrongfully taken lands that it might have appropriated. Says Spear, J., in Fries v. Wheeling & L. E. Ry., 56 Ohio St. 135, 138 [46 N. E. 516]:

“Under these circumstances, what remedy, or remedies, after the company had neglected and refused to pay, were open to plaintiff? Might he (1) resort to ejectment? Or (2) could he compel an appropriation under the statute? Or (3) was he confined to a suit to recover compensation?”

The plaintiff in that case having rightly considered that under the circumstances he was estopped to maintain ejectment, he elected the third course, and the court upheld his choice of remedy, saying at page 144, that he “had an election to proceed under the statute and compel an appropriation, or affirm the appropriation in fact made by the company, and tendering conveyance, recover compensation.”

It is clear that injunction will not lie to prevent an unlawful appropriation of land by a public corporation to its public use, after tbe land has in fact been taken, used and improved Goodin v. Cincinnati & W. Canal Co., 18 Ohio St. 169, 179 [98 Am. Dec. 95], “It is a question,” says Welch, J., “which the plaintiffs are not in a position to raise.”

These precedents clearly define the range of relief which a plaintiff in such’ circumstances may have. We can not escape the conclusion that the case at bar falls within the rule of Raymond v. Toledo, St. L. & K. C. Ry., 57 Ohio St. 271 [48 N. E. 1093].

The fourth paragraph of the syllabus in that case is as follows:

“A petition against a railroad company by one out of possession of real estate, which alleges title and right to entry and possession by defendant, and prays that the defendant may show his interest therein, that it may be adjudged null and void, and that judgment for the possession of the property may be awarded plaintiff, and defendant enjoined from interfering therewith until compensation is made, states a ease for the recovery of specific real property, notwithstanding the petition also contains allegations of threatened irreparable damage, as a ground for relief by perpetual injunction, and of a dispute as to boundary lines, as a ground for action by the court in settlement of such dispute, and of a dispute as to title as a ground for asking that plaintiff’s title be quieted. Such action, being one in which either party may demand a jury, is not appealable. ’ ’

The plaintiff here, it is true, does not in terms ask to be restored to possession of her land; but her prayer to be protected in the possession thereof is tantamount to praying that she be put into possession. And since an action either of ejectment or for compensation is her only alternative in seeking relief under the facts of this case, it must be presumed that she has pursued one or the other. As between the two, this is plainly ejectment. The plaintiff might, indeed, have had an injunction by way of primary, instead of ancillary, relief, if she had seasonably sought that remedy to protect her possession from ah unlawful exercise of the right of eminent domain. But the possession of her land having fully passed to the city, under color of right, she can no longer regain it by such means. To recover possession she must maintain ejectment;-and that, we hold, is what she has sought to do. But ejectment is a jury action; and having unavailingly pursued • that remedy in the court of common pleas,. her sole means of review is through a proper prodeeding in error and not by way of appeal.

For want of jurisdiction, the appeal is therefore dismissed.

Marvin and Winch, JJ., concur.


text:
    MASTER AND SERVANT
    [Cuyahoga (8th) Circuit Court,
    December 4, 1911.]
    Marvin, Winch and Henry, JJ.

      Marble & Shattuck Chair Co. v. Frances Dubroy, Admx.
    Protection of Operatives from Contact with Machinery, not Prevention of Parts Flying Off.
    Section 4364-89c R. S. (Sec. 1027 G. C.), requires wood-working machinery to be protected by a guard to prevent the operator coming in contact with it, and not to prevent parts of the machine from flying off and injuring the operator.
    Error.

      L. B. Bacon, for plaintiff in 'error.

      Kart, Canfield & Crohe, for defendant in error.

      Affirmed no opinion, Dubroy v. Marble & Shattuck Chair Co. 88 Ohio St 570.

   HENRY, J.

The defendant in error’s decedent was fatally injured by a knife which flew from a wood working machine, known as a Whitney double spindled shaper, and struck him while he was at work at the machine. He had himself adjusted the knife into its proper place in the machine. It is admitted that unless the ease falls under See. 4364-89c R. S. (Sec. 1027 G. C.) the’judgment must be reversed. It is also admitted that unless the case is distinguishable from that of Kulp v. Kilby Mfg. Co. (not reported) decided by this court March 24, 1911, we must hold that it does not fall within the statute.

The danger of coming into contact with a machine, or with any moving part thereof, which the statute seeks to provide against, clearly does not include the danger of something flying from a machine. Had this machine been so guarded as to prevent the operator from accidently coming into contact with the moving parts thereof, the law would have been fully complied with according to its letter and spirit. But it is impossible to conceive of its being so guarded that this particular accident would or might not have happened. The knife flew along the plane of the table. If no aperture were left there, the work could not have been inserted, and the machine could not have been operated. Moreover, when the knife became detached, it was no longer an integral part of the machine. It was like a piece of wood detached by the knives from the material to be shaped and by them hurled back across the table or into the air. That was the Kulp case, and this is like it. ' '

Because the judgment is contrary to law, it is reversed.

Marvin and Winch, JJ., concur.


author: HENRY, J,

text:
    PAYMENT
    [Cuyahoga (8th) Circuit Court,
    December 4, 1911.]
    Marvin, Winch and Henry, JJ.
    Erie Ry. v. Nicola Gugliotta.
    Liability for Mistake in Payment of Wages.
    It is no defense to a claim for wages that they have been paid to a third person, unless such third person received payment with the knowledge and consent of the plaintiff.
    Error.

      Gushing, Siddall & Palmer, for plaintiff in error.

      B. D. Nicola, for defendant in error.
   HENRY, J,

This proceeding in error should never have been brought. The defendant in error recovered a judgment of $24.30 in the court of common pleas in an action for wages which was appealed from a justice court. The bill of exceptions contains 122 pages; and the cost of preparing it must have exceeded the amount of the judgment.

The Erie Ry. pays its men regularly on or about the fifteenth day of each month for the work done the preceding month. When an employee quits or is discharged before the regular pay day arrives, he is given a ‘.‘D. Cr.” or discharge credit slip, by means of which he may get his pay at once.

Nunzio Laseta, No. 478, assignor of the plaintiff below, and Nunzio Destro, No. 490, worked for the company in November. A laborer, supposed to be one or the other of these Nunzios, quit on the twenty-third of that month, and was given a D. Cr. bearing the name of one Nunzio and the number of the other. Someone cashed it. The company claims it was Nunzio Laseta. The plaintiff below denies this, insists that he did not quit work in November, and declares that if either Nunzio cashed it Nunzio Destro must have been the one. To complicate the matter further, some clerk in the office of the company sought to reconcile the name and number on the pay roll. He thought proper to do so by changing the name instead of the number. The facts thus present a veritable comedy of errors. Not so, the record. The two Nunzios may have concertedly played the roles of the two Dromios from Ephesus and Syracuse in order to obtain double payment of a single wage claim; but the jury has vindicated the plaintiff’s Nunzio, and we could not have done better upon all the evidence.

The company complains of the following paragraph in the charge:

“I am inclined to think, gentlemen, that inasmuch as the averment in the answer is that this claim was paid to No. 478, or as ordered by him, if it was in fact paid to somebody else it could only operate to extinguish the debt if a person other than Laseta actually collected it, or did it upon the order or with the permission of and consent of Laseta himself. That is to say, if the slip was given to Laseta, and if he lost it, and if a person found it, and collected the money upon it, it would not, in my judgment, operate as a valid defense; it would only be in case it was presented by some person with the knowldge and consent and permission of Laseta himself. If, of course, it was presented by himself, it would constitute a valid defense.”

If the word “or,” which I have underscored, had been “and” the instruction would have been correct. As given, it was less favorable to defendant in error. But the jury could not on any event have been prejudiced.

The judgment is affirmed.

Marvin and Winch, JJ., concur.


text:
    APPEAL
    [Cuyahoga (8th) Circuit Court,
    December 4, 1911.]
    Marvin, Winch and Henry, JJ.
    Abraham B. Katz v. Ike H. Linder.
    Transcript on Appeal from Justice Court Filed after Thirty Days, Too Late.
    Transcript for appeal from a magistrate’s judgment was filed in the common pleas court more than thirty days after its rendition; thereupon plaintiff filed his petition and defendant an answer and cross-petition; thereafter plaintiff filed his motion to strike the answer and cross-petition from the files and dismiss the appeal for want of jurisdiction; this motion was granted; Held: No error.
    Error.

      J. G. Bloch, for plaintiff in error.

      J. L. Stern, for defendant in error.
   HENRY, J.

Linder recovered a judgment for about $256 in justice court on November 18, 1910, and Katz filed his transcript for appeal on December 20, 1910, or more than thirty days after judgment. Linder then filed his' petition and Katz his answer and cross-petition. Thereupon Linder filed a motion- to strike the answér and cross-petition from the files and to dismiss the appeal from the court for want of jurisdiction. The motion was granted, and Katz now prosecutes error, alleging that Linder, after filing his petition, was estopped to challenge the jurisdiction.

We hold that there was no error in granting the motion to dismiss, since the judgment of the justice was valid until properly appealed from; the petition discloses that the appellate and not the original jurisdiction of the court of common pleas was invoked; and the- cause had not yet gone to trial or judgment in the common pleas when the jurisdiction was challenged.

In all cases of estoppel or waiver cited to us, some one of these elements is lacking. We find no case precisely in point; but we see no reason to doubt that the valid judgment of the justice has remained in full force ever since it was rendered. If so, it might have been pleaded in bar of any attempt to relitigate the same matter under the original jurisdiction of the common pleas court. The appellate jurisdiction of the latter ,was clearly not adequately invoked; nor could it be by mere consent after the time for invoking it. had expired.

The judgment is affirmed.

Marvin, J., concurs.

Winch, J., dissents.


text:
    MUNICIPAL CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    December 8, 1911.]
    Marvin, Winch and Henry, JJ.
    Walter L. Robinson, Taxpayer v. Cleveland (City) et al.
    1. Discretion of Municipal Authorities in Awarding Bids not Judicially Controlled.
    Unless the requirements of ordinance or statute have been violated, or fraud or its equivalent has been practiced, the discretion of municipal authorities in the letting of contracts to the lowest and best bidder, will not be controlled by the courts.
    2. Bid Requirement to Furnish Sample not Invalid.
    A provision in an advertisement for bids for coal that the successful bidder shall furnish a sample and fulfill his contract in conformity to it, does not invalidate the bidding or vitiate the letting pursuant to it.
    Appeal.

      G. F. Taplin, for plaintiff.

      N. D. Baker, and F. Desberg, for defendant.
   HENRY, J.

On this appeal of a taxpayer’s suit to enjoin the execution of a contract for the purchase of coal for the city water works, the question presented for our decision is whether the discretion of the city officials may be controlled by injunction in the letting of contracts, after the competitive bidding prescribed by law, where the statute authorizes an award to the lowest and best bidder. This is no longer an open question in this state. Unless the requirements of ordinance or statute in the submission have been violated, or fraud or its equivalent has been practiced in the award, the exercise of such discretion in any particular way can neither be commanded nor enjoined. State v. Hermann, 63 Ohio St. 440 [59 N. E. 104]; State v. Shelby Co. (Comrs.), 36 Ohio St. 326; Scott v. Hamilton, 29 O. C. C. 652 (7 N. S. 493); Yaryan v. Toledo, 28 O. C. C. 259 (8 N. S. 1); affirmed in 76 Ohio S. 584 [81 N. E. 1199],

The specifications in this case do not, as we view them, call for samples. They provide merely that samples may be called for before awarding the contract and if a sample is furnished by the successful bidder, he must fulfill his contract in conformity with both his bid and his sample. We see no reason why the city officials may not seek all the light for themselves and all the legitimate advantage for the city that they can get from any bidder in exercising their discretion to make their award to the lowest and best of the competitors. The statutory competition is not final. It does not conclude the matter. The award is still discretionary when the Competition is ended. All that the law requires is that it be exercised in good faith, and without violence to the principle of competition. State v. Cincinnati Bd. of Pub. Affairs, 2 Circ. Dec. 428 (4 R. 76).

It is argued that further negotiation with bidders after the bids are submitted and opened, makes it possible for one who finds that he is the lowest bidder by quite a margin to deal less generously with the city than he otherwise would. It may be presumed, however, that the lowest bidder, if an award were made to him without further negotiation, would do this anyway in so far as the limitations of his contract permit. We are not to be understood as holding that by negotiation a bidder may obtain any abatement of the requirements fixed by the terms of the submission and of his bid addressed thereto, nor are we to be understood as holding that the foregoing observations in regard to discretion have any application where the statute requires the award to be made to the lowest bidder, instead of to the lowest and best bidder.

The petition is dismissed.

Marvin and Winch, JJ., concur.


text:
    QUIET TITLE
    [Cuyahoga (8th) Circuit Court,
    December 11, 1911.]
    Marvin, Winch and Henry, JJ.
    Albert Barnitz v. Martin F. Sebelin et al.
    Possession Necessary to Maintain Action to Quiet Title.
    An action to quiet title will be dismissed when it appears that the plaintiff is not in possession of the premises.
    Appeal.

      M. L. Thompson and Bentley, McCrystal, Biggs & Staiger, for plaintiff.-

      E. P. Eirich and William Howell, for defendant.
   HENRY, J.

This is an action to quiet title, appealed to this court by the defendants Louise and Julia L. Sebelin. The action can only be maintained by one in possession, and the plaintiff alleges that at the time of the commencement of this suit he was in possession.

In brief outline, the facts are that plaintiff bought a comer lot on Cedar avenue and Bast 105th street, in Cleveland, which by description included not only the whole of sub-lot No. 1 in an allotment previously made there, but also two feet front on Cedar avenue west of said sub-lot No. 1. The land purchased thus he leased to the defendant Martin F. Sebelin, who had the same surveyed, and built a fence on what, by the report of said survey and by his own supposition, was his west boundary line. In fact it was the west boundary line of sub-lot No. 1 in said allotment. Soon afterwards Sebelin called the plaintiff’s attention to the apparent discrepancy between Cedar avenue frontage called for by his lease and the frontage actually enclosed by him in the maimer aforesaid. Barnitz said that the discrepancy might be due to the fact that two fe\t had been taken off ir£ the widening of 105th street. He did hot in terms affirm this to be true, and no one took any steps to verify it and, in fact, the suggestion seems to have been unfou\ided. Some years later, and while Sebelin was still enjoying his said leasehold, he bought the adjacent lot west thereof, and entered into possession of the same. The parties from whom he bought it had a precarious title, but they had been in possession clear up to the line of the said fence which Sebelin had built upon the line of a pre-existing fence. Sebelin conveyed the property which he thus purchased, by deed of gift, to his wife, and she in turn devised it to her daughters, the defendants, Louise and Julia L. Sebelin, who are today in possession of the same.

It thus appears that Martin Sebelin had no intention of procuring title in derogation of his landlord’s title; that he never took possession of the two feet in dispute; that neither he nor Barnitz had any other possession of said two feet than such as the law annexes by implication to a valid title, and that an actual possession by cultivation was had by plaintiff’s neighbor on the west, who subsequently sold to the defendant Martin Sebelin.

We conclude, therefore, that plaintiff has not the possession necessary to enable him to maintain his action to quiet title; and there is nothing in the facts of the case to raise an estoppel on the part of Martin Sebelin or his daughters to deny plaintiff’s right to possession. They can in no proper sense be said to be holding for or under the plaintiff. Whether or not, therefore, plaintiff’s title is a valid one, he can not here quiet it, because he has not the possession on which such an action must be founded, and the petition must be dismissed.

Marvin and Winch, JJ., concur.


text:
    ACCOUNTS
    [Cuyahoga (8th) Circuit Court,
    December 11, 1911.]
    Marvin, Winch and Henry, JJ.
    George S. Beckwith v. Cleveland Telephone Co.
    Express and Unequivocal Acknowledgment of Correctness of Account not Necessary.
    While it may not ordinarily be true that an account, the items of which are disputed in an action therein, can be said to have been acknowledged' by mere implication, yet an express and unequivocal acknowledgment is by no means always necessary to afford sufficient foundation for an inference that an acknowledgment is intended.
    Error.

      Joseph L. Stem, for plaintiff in error.

      Kline, Tolies & Morley, for defendant in error.
   HENRY, J.

The parties to this proceeding in error stand in the relation opposite to that in which they stood below. There, the action was for telephone rentals and for long distance toll charges covering a period of many months. It is conceded here that, the rental claimed was properly-allowed in the verdict and judgment below; but it is contended that the proof of the correctness of the account for long distance tolls is insufficient to sustain the burden of proof raised by the denial interposed by the defehdant below.

One contention at first relied upon, is admittedly not presented on this record, namely, that the record discloses no evidence of a schedule of long distance rates as of the times of the accruing of the various items of plaintiff’s cause of action, such as to satisfy the provision of the contract which is the foundation of the account sued on. This leaves simply a question of the weight of the evidence.

We have examined the bill of exceptions, and while it does not anywhere appear that the defendant below ever acknowledged, in terms, the correctness of the long distance toll account, still he made no-objection to the items thereof when the same was submitted to him, and from time to time thereafter he put off the collectors with the plain intimation that he would pay if given time. It may not ordinarily be true that an account, the items of which are disputed in an action thereon, can be said to have been acknowledged by mere implication, yet an express and unequivocal acknowledgment is by no means always necessary to afford sufficient foundation for an inference that an acknowledgment is intended.

We hold that the circumstances of these acts, as disclosed by the evidence, are such as to warrant the jury in finding, as they did find, that the account sued on was correct, and the judgment is affirmed.

Marvin and Winch, JJ., concur.


text:
    DIVORCE AND ALIMONY
    [Cuyahoga (8th) Circuit Court,
    December 16, 1911.]
    Marvin, Winch and Henry, JJ.
    F. W. Cadwell v. Herma M. Cadwell.
    Four Sprees in Ten Years do not Establish Habitual Drunkenness.
    Proof of four protracted sprees during a period of ten or twelve years, does not establish habitual drunkenness.
    Appeal.

      B. E. Lee, for plaintiff.

      B. Pearce, for defendant.
   HENRY, J.

The issues upon this appeal are narrowed by the elimination of those relating to the divorce sued for by the plaintiff below and denied by the judgment of the court of common pleas. There the defendant, having filed her answer and cross-petition, praying for alimony and custody of the two children of the parties, was awarded the relief prayed for in such measure that the plaintiff has appealed. The ground of alimony alleged is habitual drunkenness; but the evidence shows, during the period of ten or twelve years, but four instances of inebriety on the part of the plaintiff. These instances, it is true, were of aggravated character, consisting of long sprees; but the separation of the parties appears to have been occasioned immediately, not by any of these lapses, but rather by a somewhat ill-grounded jealousy on the part of the defendant. Since she left her husband she has lived at her parents’ home in Toledo with her two children, now nine and ten years old respectively. After her departure, the plaintiff indulged in a spree which was apparently superinduced by that occurrence. Except during these sprees, the plaintiff seems to have been a sober and hard-working man. It is worthy of remark that the defendant knew, at the time she married him, that he had not always been strictly temperate. Apart from this circumstance, however, we can not hold, upon this evidence, that the plaintiff is guilty of habitual drunkenness within the meaning of the alimony statute.

See Crabtree v. State, 30 Ohio St. 382, 386; Bean v. Green, 33 Ohio St. 444; Union Mutual Life Ins. Co. v. Reif, 36 Ohio St. 596 [38 Am. Rep. 613].

The prayer for alimony is therefore denied.

The defendant’s prayer for the custody of the children may be sustained under Secs. 8032 to 8035 G-. C. Under all the circumstances we think it is better for them that they should remain, in general, with their mother, unless either shall, being over ten years of age, otherwise elect. Until such contrary election is made, the general custody of the children is therefore awarded to the mother, with the privilege to the father, at his own expense, to take and keep them in his custody for the period of two months each year in the summer vacation beginning at the close of the school year. For the support of the children, we order that the plaintiff pay to the mother, on the first day of each month, beginning on the first day of January, 1912, the sum of $30, and we adjudge the costs of this suit against him, including an attorney fee to defendant’s counsel for her defense of this action in the court below, and for his services as such attorney in this court, the sum of $175.

Marvin and Winch, JJ., concur.


author: henry; j.

text:
    PLEADING
    [Cuyahoga (8th) Circuit Court,
    December 16, 1911.]
    Marvin, Winch and Henry, JJ.
    Bernard Schatzinger v. Lakeview Land & Improvement Co.
    General Denial Sufficient to Traverse Happening of Contingency.
    When a petition discloses upon its face that a contract sued upon provides for the payment of the sum demanded only upon the happening of a contingency named, an answer by way of a general denial is sufficient to traverse the petition’s allegation that such contingency has been satisfied.
    Error.
    P. G. Kassulker, for plaintiff in error.

      Frank Eigley, for defendant in error.
   henry; j.

The parties stand here as they stood below. There Sehatzinger commenced his action upon a contract by which he undertook to build certain houses and repair others for the defendant company for 10 per cent, of the cost, to be paid him when all said houses should be sold and paid for.

On the trial it developed that at the time the action was commenced, some of the houses had not yet been paid for, nor was it then certain that the outstanding leases thereof with option of purchase by the lessees, would culminate in outright sales. At the time of trial, however, all the houses were sold and paid for.

Upon a motion to direct a verdict, after all the evidence was in, the court took the view that the action had been prematurely .brought, and that the defendant’s motion was sufficient to raise this point, notwithstanding that the defendant, by its answer, had not specially pleaded the facts above recited, and had sought to introduce them under a general denial. The motion was therefore granted.

In assigning error upon this ruling of the court, the plaintiff in error claims that the premature commencement of the suit was a matter of abatement merely which could not be raised by general denial, but must be specially pleaded under the code as at common law. We have examined the authorities cited from code states, some of which show that matter in abatement, especially if not clearly disclosed on the face of the petition, can not be taken advantage of by demurrer to the petition, but only by answer. Other authorities cited show that matters of abatement, not disclosed on the face of the petition, must be brought upon the record as new matter by answer, before they can be made available as a defense. In other cases, where the lapse of a certain period of time is a condition, precedent to the maintenance of an action, though not an essential part of the cause of action, the non-fulfillment of such a requirement must be specially pleaded, or else it is to be deemed to have been waived by the defendant.

We find no case under the code which is squarely in point; but on principle we hold that where, as in this case, the petition discloses upon its face that the contract sued on provides for the payment of the sum demanded only upon the happening of a contingency named, an answer by way of a general denial is sufficient to traverse the petition’s allegation that such contingency has been satisfied. In other words, the petition here, having alleged that the plaintiff was not to be paid until all the houses were sold and paid for, it follows that a general denial of the allegations of the petition amounts to a traverse of this averment, and puts the plaintiff upon proof. We think, however, that the court, in directing a verdict upon this ground, should have qualified the judgment as he instructed the jury to qualify the verdict, by stating therein that it proceeded'solely upon the ground of the action being prematurely brought. Burt v. Wilcox Silver Plate Co., 41 Ohio St. 204.

. This error may, however, be cured in this court by modification of the judgment, which we make accordingly. As thus modified, the judgment is affirmed. • -

Marvin and Winch, JJ., concur.


text:
    MASTER AND SERVANT
    [Cuyahoga (8th) Circuit Court,
    December 16, 1911.]
    Marble & Shattuck Chair Co. v. Stanislav Mondrzecki.
    1< Extent of Master's Duty in Furnishing Safe Place to Work.
    It is the duty of an employer to exercise ordinary care for his employe’s safety, but this duty is not absolutely and at all ■ events to provide a safe or a reasonably safe place to work and safe or reasonably safe instrumentalities, but only to exercise ordinary care so to do.
    2." Contributory and Comparative Negligence Essential Elements for . Consideration.
    It is error to charge in a personal injury case that the plaintiff is entitled to recover if he has proved all his allegations of negligence against the defendant, without reference to the defense of contributory negligence and without qualification as to comparative negligence.
    Error.

      Reed, Russell <& Eichelherger, for plaintiff.

      H. G. Powell, for defendant.
   HENRY, J.

The judgment in this ease must be reversed for error in the charge.

At page 185 of the bill of exceptions, the court said:

“It was the duty of the defendant company, the employer, to furnish its employe, the plaintiff, with a reasonably safe place and reasonably safe instrumentalities to protect himself from such dangers in the performance of his work as in the exercise of órdinary care can be provided against.”

It is the duty of the employer, as well as of the employe, to exercise ordinary care for the employe’s safety, but as often said, the duty of the employer is not absolutely and at all events to provide a safe or a reasonably safe place, and safe or reasonably safe instrumentalities, but only to exercise ordinary care so to do. The error is repeated and emphasized at page 190.

At page 188 the court said:

“So, gentlemen, of the jury, if you believe from the proof that the plaintiff has maintained, by a preponderance of the evidence, his claim that the machine or appliance furnished to him, and his instructions with regard thereto, constituted want of care or negligence on the part of the defendant, then the plaintiff is entitled to recover.”

This broad statement is, of course, untrue. It might well be that contributory negligence on the part of the employe would prevent recovery.

At page 188, again, the court said:

‘ ‘ If you find that the defendant was negligent, as charged by plaintiff, in the respects charged in the petition, and you also find that the plaintiff was guilty of negligence in the* respects charged by the defendant, then I say to you, the plaintiff may still recover.”

While this is literally true under the Norris act, where the employe’s negligence is slight and that of his employer is gross in comparison therewith, it is not true as a general proposition, and should therefore have been strictly qualified. The qualification made by the court is not such as to prevent the instruction above quoted from being misleading.

At pages 192 and 193 the court charges the jury on the subject of damages, without cautioning them concerning the diminution of damages provided for by the Norris act in case the verdict is given thereunder for the plaintiff notwithstanding the latter’s contributory negligence. It is true that the court, earlier in the charge, had read this provision of the Norris act, but he failed to clearly couple the extract thus read with the general and unqualified instructions in regard to the measure of damages found on the pages last above indicated.

For the errors thus pointed out, and because the charge is misleading, the judgment is reversed.

Marvin and Winch, JJ., concur.


text:
    MUNICIPAL CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    November 15, 1909.]
    Henry, Marvin and Winch, JJ.

      Cleveland (City) v. Adela Brooks.
    Municipal Corporation not Liable for Negligence in Guarding New Cement Sidewalk by Independent Contractor.
    A municipal corporation is not liable to one injured by stumbling over a wire netting placed around a newly made cement sidewalk to prevent pedestrians from stepping upon it, by independent contractors employed by the municipal corporation to lay the sidewalk, the municipality having no notice, active or constructive, of the manner of guarding the sidewalk.
    Error.

      Newton D. Balter, for plaintiff.

      F. C. Scott, for defendant.

      Affirmed no opinion, Brooks v. Cleveland, 83 Ohio St. 468.

   HENRY, J.

Adela Brooks was injured by a fall over a wire netting stretched across the sidewalk on the southerly side of Euclid avenue in the city of Cleveland. The sidewalk, at the point named, was at the time being relaid by Leek & McGrath, under a contract made by -them with the city. The evidence.tends to show, and for the purpose of this opinion will be treated as showing, that this netting was so stretched across the sidewalk by Leek & McGrath as to prevent pedestrians from stepping on to the newly-laid cement. The netting was not high enough to prevent one who in walking brought his feet against it from falling over, and was well calculated to cause one thus walking against it to fall.

The city offered no evidence on the trial of the case.

The evidence of the plaintiff having been introduced, the jury was charged and a recovery was had.

Before the case was submitted to the jury a motion was made by the city that the court direct a verdict in its favor. This motion should have been sustained.

There was no evidence tending to show that this netting had been across tbe sidewalk for a sufficient length of time so that it was the duty of the city .to know about it, and the only ground upon which the plaintiff below could recover was upon the claim that the city was liable for any damage resulting from the obstruction of the sidewalk in this manner by its contractor.

In the case of Circleville v. Neuding, 41 Ohio St. 465, it was held:

“Where a city contracted for the construction of a cistern, eighteen feet wide and twenty feet deep, in a street, and before the cistern.was completed a horse fell into it and was killed, for want of sufficient protection around and over the excavation, to guard animals in the proper use of the street from danger, held, that the city was liable for the loss of the horse, although it did not reserve or exercise any control or direction over the manner of doing the work, except to see that it was done according to specifications which were a part of the contract.”

. In the opinion the court called attention to the fact that such an excavation in a street, unless protected to guard persons and animals using the street from falling into it, was necessarily dangerous, and that the city was under statutory obligations to keep the streets open and in repair and free from nuisance, and it could not cast this duty upon the contractor so as to relieve itself from liability to one who should receive any injury. And this language is used:

“But the public in the use of the streets may rely upon the legal obligation of the city to keep them free from dangerous places, or if such places become necessary to be made in the course of an improvement or work necessary or proper for the city to do, that it shall so guard them that no injury shall result in the ordinary use.of the street.”

This was a ease then in which the very thing to be done made a dangerous place in the street. The city knew that such dangerous place must be made in the street, and the law is that the city was bound to see that a proper guard should be placed to keep from falling into this dangerous place any person or animal traveling upon said street, but in the case before us it isn’t that there was a dangerous place in the street that caused the accident, but that of placing a guard to keep people from going upon a certain part of the street, not because that part of the street was dangerous by reason of the work there being done, but to prevent from going upon a place which it would be disagreeable for them to walk upon, which guard was so placed as to make it dangerous.

In the ease of Covington & C. Bridge Co. v. Steinbrock & Patrick, 61 Ohio St. 215 [55 N. E. 618; 76 Am. St. 375], the syllabus reads:

“When danger to others is likely to attend the doing of certain work, unless care is observed, the person having it to do is under a duty to see that it is done with reasonable care, and can not, by the employment of an independent contractor, relieve himself from liability for injuries resulting to others from the negligence of the contractor or his servants.
“The ruined walls of a building of the defendant, measurably destroyed by fire, were left standing, a menace to the public and the property of others in the vicinity. He was ordered by the inspector of buildings to take down the walls; and, for the purpose, employed a contractor to do the work, for an agreed consideration, and stipulated he should save him harmless for injuries to others in doing the work. The east wall, by reason of the negligence of the contractors in attempting to pull it down, fell outward upon and injured the property of the plaintiffs situated across an alley from the wall. Held: The defendant is liable for the injury.”

And at page 232 of the opinion in that case, this language is used:

“The doctrine of independent contractor, whereby one who lets work to be done by another, reserving no control over the performance of the work, is not liable to third persons for injuries resulting from negligence of the contractor or his servants, is subject to several important exceptions. One of these * * * is where the employer is, from the nature and character of the work, under a duty to others to see that it is carefully performed.”

And then quoting from the case of Bower v. Peate (1 L. R., Q. B. Div. 321, 326) it is said:

“That a man who orders a work to be executed from which in the natural course of things, injurious consequences to his neighbor must be expected to arise, unless means are adopted by which such consequences may be averted, is bound to see to the doing of that which is ncessary to prevent mischief, and can not relieve himself of his responsibility by employing some one else — whether it be the contractor employed to do the work from, which the danger arises or some independent person — or to do what is necessary to prevent the act he has ordered done from becoming unlawful.”

In the ease of Columbus v. Penrod, 73 Ohio St. 209 [76 N. E. 826; 3 L. R. A. (N. S.) 386; 112 Am. St. 716], the city had given a license to Penrod to use a part of the street for the placing of building materials for use in the construction of a building on adjacent property, and the court held that where such a license is given to do a thing which would be in the nature of things dangerous, the city would be liable if it was so negligently done that an innocent party was injured by reason thereof. But, they say, this is not the rule where the thing to be done is not necessarily dangerous, and having called attention to the cases which hold that where work is to be done in a street either by a licensee or by a contractor which is necessarily dangerous, the city is liable for the negligence of the licensee or the contractor, the court say:

‘ ‘ These cases, read in the light of the facts, an excavation in the sidewalk, necessarily dangerous, in the one case, and in the other an obstruction in the street, not necessarily dangerous, consisting of building materials, are not in conflict, and the present case being one of an obstruction in the street, not necessarily dangerous, we are not required to determine whether Clark v. Fry [8 Ohio St. 358], in so far as it applies to excavations or obstructions necessarily dangerous is too broad, or whether in a case of permit to the owner of adjacent property to make an excavation in the street for some lawful purpose incident to the use of his property, it would be the duty of the city to see that a nuisance is not created.”

But the court says in the syllabus in this ease, as follows:

“A permit by a city to use part of the street for the placing of building materials for use in the construction of a building on the adjacent property is the mere regulation of a right of the property owner to make such use of the street and not a license to do an act in the street which but for such license would be illegal or a nuisance, and a city by giving such permit is not charged with the duty of seeing that the place is .guarded, and will not be liable in damages to a person injured in consequence of the omission to guard such place with barriers or lights unless it had notice, express or implied, of such omission and after such notice was guilty of negligence. ’ ’

We are of opinion that in the case at bar there was no obligation upon the city to see to it that the guard which the contractor might place about the work, that he .was doing, which work would not in itself constitute a danger to the public, was not dangerous; or in other words, the city was not bound to see that the work was so guarded that there could be no danger from the guard itself.

The result is that the judgment of the court of common pleas is reversed and the cause remanded for further proceedings.

Marvin and Winch, JJ., concur.


author: MARVIN, J.

text:
    WILLS
    [Cuyahoga (8th) Circuit Court,
    November 15, 1909.]
    Henry, Marvin and Winch, JJ.
    Arthur R. Teagle, Exr. v. Arthur R. Teagle et al.
    Residue to Surviving Children of Named Heirs Share and Share Alike.
    A testator devised the residue of his. estate, “to the surviving children (or their heirs) of my sister Elizabeth, and my sister Mary, and my brother Arthur, share and share alike.” Held: There being nineteen living children of Elizabeth, Mary and Arthur surviving at testator’s death, and a grandchild of Elizabeth, child of her son who died before testator, that the residue of testator’s estate should be divided into twenty equal parts and one part distributed to each of the children of Elizabeth, Mary and Arthur and one part to the grandchild of Elizabeth.
    Error.
    Wto. M. Raynolds, for plaintiff in error.

      Thompson & Sine and F. A. Quail, for defendant in error.
   MARVIN, J.

The only question to be determined in this case is the meaning of Clause 8 in the last will and testament of Frank Teagle, deceased, which will was duly admitted to probate. That clause reads:

“All the rest and residue of my property of every description I give, devise and bequeath to the surviving children (or their heirs) of my sister Elizabeth Hollis Teagle Ferris, of Salthorp, Swindon, England, and my sister, Mary Teagle God-win, of Seagry, England, and my brother Arthur E. Teagle, of Cleveland, Ohio, share and share alike.”

The sister Elizabeth named was the mother of several children who survived the testator, and of one child who died before the execution of the will, leaving a child. The sister Mary was the mother of severál children, and the brother Arthur was the father of several children.

The testator left other brothers, and at least one other sister. To some of these and to the children of some of these, bequests were made in the will. To some no bequests were made.

It is urged on the one part here that the property bequeathed by this clause of the will should go one-third to the sister Mary Teagle Godwin, one-third to the brother Arthur E. Teagle, and one-third to the children of Elizabeth. Our attention is called to a great number of authorities on the meaning of the words share and share alike, and the holdings by the courts are not altogether uniform, nor can they all be reconciled with one another, but we think the natural meaning, the plain obvious meaning, of the words as used in this will is that whoever the parties are to whom this property is to go, each is to take an equal share with the others, so that if anything is given by this will to Mary or Arthur, each must take an equal share with each of those who take under the bequest to the surviving children (or their heirs) of Elizabeth. “Share and share aliké” to the ordinary mind means in equal parts, and unless the words are used in such wise as to show that some other meaning is to be attributed to these words, they must be held to mean in equal parts. And we think clearly from the language of the will itself, and a fair construction of the words, that nothing is bequeathed to Mary and nothing is bequeathed to Arthur, but that the children of Mary and the children of Arthur are the beneficiaries provided for. This construction requires no change in the wording of the clause at all.

As was said in argument of this case appliéd to other things than persons this would be the other meaning.

Suppose one said I have been traveling in Europe and I was much impressed with the art exhibits of Paris, and Florence and Rome. Would anybody doubt that what was meant was that he who said it was much impressed with the art exhibits of Paris, and the art exhibits of Florence, and the art exhibits of Rome ? Suppose one said, I have been traveling about the country and I find great beauty in the autumn leaves of Cuyahoga county, and Summit county, and Lorain county. Would anybody doubt that what was meant was that great beauty was found in the autumn leaves of each of these several counties, and not simply that the great beauty was found in the autumn leaves of Cuyahoga county, and that great beauty was found, without reference to autumn leaves, in Summit and Lorain counties? The question answers itself.

Finding as we do that the meaning of the testator is perfectly plain in so far as bequests are made to the children and not the parents, certainly so plain that it would require such evidence of extrinsic facts as to deprive the words of their ordinary meaning, and finding in this case, if all the evidence produced were competent, no such extrinsic facts as would justify a holding that these words do not mean what they seem on their face to mean, we reach the conclusion that the bequests are to the children of Mary and Arthur, as well as to the children of Elizabeth.

There remains, however, the question of the right of the grandchild of Elizabeth, Francis J., son of her deceased son,Frederick, who died prior to the date of the will. We are of opinion and hold that the words “or their heirs” include this grandson of Elizabeth.

The only words which we find to be ambiguous in this clause of the will are these words “or their heirs,” and we must suppose that the testator meant something by the use of these words, and the most obvious meaning would seem to be that he meant to include the children of any one of Elizabeth’s children not living.

One of Elizabeth’s children died since the will was admitted to probate, and of course the parties who would be entitled to the estate of that child would take his share here. This brings us to tbe conclusion that the estate should be divided into twenty equal parts, and divided one part to each of the children of Mary, one part to each of the children of Arthur, one part to each of the children of Elizabeth, now living, one part to the grandchild, Francis J., and one part to the proper representatives of her deceased son, Francis William.

The decree to be taken will be the same as that taken in the court of common pleas, except that the share which Francis William would take, if he were living, should go to the administrator of his estate, or the executor of his will, instead of directly to his children. This, from the fact that when the testator died, the interest of Francis William vested and whatever personal property was coming to him from this estate would be a part of his estate to be administered upon.

Henry and Winch, JJ., concur.


author: RICHARDS, J.

text:
    ELECTIONS
    [Wood (6th) Court of Appeals,
    October 31, 1913.]
    Kinkade, Richards and Chittenden, JJ.
    State ex rel Thomas J. Miller, v. George M. Brubaker et al.
    1. Deputy State Supervisors Pass on Validity of Nominations.
    Section 4818 G. C. confers general authority upon deputy state supervisors of elections to pass upon the validity of nominating papers.
    2. Withdrawal of Objections Filed does not Affect Authority of Deputy State Supervisors.
    The filing of written objections with the deputy state supervisors of elections to the validity of nominating papers then in the hands of that board clothes the board with authority to pass upon the validity of such papers, and the jurisdiction of said board in that behalf is in no way affected by the subsequent withdrawal of said objections.
    Appeal.

      N. B. Harrington and E. M. Fries, for relator.

      Clyde B. Painter, Benjamin F. James, Datus B. Jones, Bufus B. Moore and Earl D. Bloom, for respondents.
   RICHARDS, J.

This ease is pending in this court on appeal, and I will announce briefly the conclusion at which the court has arrived. The case has been submitted on the pleadings and evidence and certain statements of counsel.

It appears from the pleadings and the evidence that the nominating paper on behalf of the Citizens party was filed with the board of deputy state supervisors of election at Bowling Green on August 30, 1913, and that on September 4, a formal written objection thereto was filed with that board by Rufus B. Moore. Thereafter this written objection which had been filed by Mr. Moore was withdrawn; just the circumstances under which it was withdrawn do not appear in the evidence, but it is sufficient for the purposes of this case that it appears from the evidence that the paper was carried away from the office of the deputy state supervisors of election by him. Subsequently other written objections were filed by him to certain nominees named by the Citizens party in the city of Bowling Green, and later the matter came on for hearing before these deputy supervisors of election. They found that the objections which had been filed were well taken and should be sustained, and held that the names of the nominees for the Citizens ticket should not be placed on the ballot to be voted on November 4 of this year.

This action in mandamus was brought immediately thereafter by Mr. Miller as a taxpayer, citizen and resident of the city of Bowling Green, asking an order of the common pleas court of Wood county, in which the petition was filed, that these names be ordered placed on the ballot, including also in his petition the names of four candidates for ward councilmen as well as the candidate for mayor and other city officials.

Our attention has been called to Secs. 4818, 5005 and 5006 G. C. I will not take the time to read these sections, but it seems from the language of the section first cited that general authority is given to the deputy supervisors of election to pass upon the validity of nomination papers. Section 5005 has in it a provision, in substance, that if written objections are not filed within five days after the nomination papers are filed with that board that they shall be held valid, if they are in apparent conformity with the statutes.

It is contended by counsel for plaintiff that the first written objection that was filed can not be considered because it was withdrawn by the person who filed the same with the board, and that therefore the board was powerless to consider and pass upon the validity of the nominating papers.

We do not think it necessary to decide, and do not decide, whether formal objections in writing must be filed with the board of deputy state supervisors before they have power to pass upon the validity of nominating papers. We think that the first written objection, which was filed on September 4, was in and of itself ample to clothe the board with authority to pass upon the validity of the nominating papers which had been filed, if written objections were necessary for that purpose; and it is clear to this court that it could not be deprived of its jurisdiction or power by the withdrawal of that paper. It is not only reasonable to suppose, but from the facts disclosed in this case it is clear, that many were interested in these proceedings besides Mr. Moore who filed the objections, and he could not deprive the board of jurisdiction by carrying off that paper from the office of the board. To so hold would open the door to fraud. A case might readily be supposed where a person filing the written objections would do so having in his mind the plan of withdrawing them as soon as the five days had elapsed, his scheme being to dissuade others from filing like objections. We hold that power to act was not taken away from the board by the removal of this paper from its office, any more than the powers of a court to rule on a demurrer would be ended by a removal of the demurrer from files of the court. The principle is somewhat similar to a ease brought for the contest of a will. If, in such a case, the plaintiff should see fit to wait until the time for other actions of that sort had elapsed and then withdraw his petition, and if he could by so doing deprive others of the right to contest the will, it would result in grave injustice.

Such procedure has been condemned by the Supreme Court in Bradford v. Andrews, 20 Ohio St. 208 [5 Am. Rep. 645]. The court speaking through Welch; J., say on page 220:

“When the jurisdiction of the court has once attached in such a case, I suppose it is not in the power of the petitioner to withdraw the action against the will of the other parties in interest. ■ The status of the parties, as plaintiffs or defendants, is merely nominal. Those named as defendants have a right, equally with the nominal plaintiff, to insist upon a contest. Otherwise, there would be no safety to the defendants who happened to be identified in interest with the plaintiff, except in the commencement of separate similar actions, or the filing of a cross-petition by each. We need not, however, decide this question, for the precaution was taken in the present case to file such cross-petition before the period of limitation had expired or the original petition had been dismissed. ’ ’

Similar rulings have been made in the federal courts denying the right of petitioners in bankruptcy to withdraw from the proceeding. Bedingfield, in re, 96 Fed. 190; Cronin, in re, 98 Fed. 584. See also State v. Joyce, 87 Ohio St. 126 [100 N. E. 325].

The board of deputy state supervisors acted favorably upon the written objections which had been filed by Mr. Moore, and the law seems to have been uniformly held in an unbroken series of decisions in this state that the action of the board under these circumstances is final. Necessarily the power to render a final decision in cases of that kind must be reposed by the general assembly somewhere and in somebody, and the general assembly has seen fit to repose that power in the power of deputy state supervisors of elections and if they shall disagree it is provided that the matter shall be referred to the secretary of state and the decision of that officer is made final by Secs. 5006 and 5007 G. C.

On the hearing of this case no fraud was shown nor claimed to have been committed by the board of deputy state supervisors. That board held that the written objections were well taken and sustained them, and this court is without authority to interfere with the conclusion reached by that body.

The announcement which has been made perhaps does not determine the status of certain of the nominees for ward offices, but we fail to see under the showing made in the pleadings and the evidence such a clear right in the relator as would entitle him to the relief as to the ward candidates, and as was stated in State v. Joyce, supra, before a party is entitled to the relief which is provided by a writ of mandamus the right should clearly appear. We hold that the relator has not made such a showing as entitles him to the relief sought in this case and his petition will therefore be dismissed.

Kinkade and Chittenden, JJ., concur.


text:
    LIBEL AND SLANDER
    [Cuyahoga (8th) Circuit Court,
    November 23, 1909.]
    Henry, Marvin and Winch, JJ.

      James M. Shallenberger v. Scripps Publishing Co. Thomas H. Bushnell v. Scripps Publishing Co.
    Malice in Expressing Opinion as to Candidate’s Fitness for Office Immaterial.

    If one is of the opinion that a candidate for the office of judge of the common pleas court is unfit to be a judge, he has the right to say so, and it is a matter of indifference whether, in giving expression to such opinion, he was influenced by malice or not.
    Error.
    if. H. McKeehan and Gage, Wilbur <& Williams, for plaintiffs in error. .

      T. H. Hogseit and G. M. Dahl, for defendants in error.

      Affirmed no opinion, Shallenberger v. Scripps Publishing Co. 85 Ohio St. 492.

   MARVIN, J.

The question in these eases is whether the court erred in sustaining in each ease a demurrer to the petition.

The language used in this opinion will speak of but one petition, because the same is equally applicable to each.

It would not be profitable to set out at length the allegations of the petition, nor the entire article published which, it is charged, is the basis for recovery. The carefully prepared opinion rendered in the court below seems to us to fully justify the decision there made.

In argument here that opinion is criticized because of the language used in reference to a number of the statements in the published article, that such language in a publication would.not be libelous' if the criticism of the candidate were made in good faith. It is urged that this begs the real question, because the petition here charges that the language was used maliciously and for the purpose of injuring the defendant. The exact language of the petition in that regard is this:

“Plaintiff further says that on the said 21st day of August, 1908, with the intent and for the purpose of wilfully and maliciously injuring the plaintiff in his good name, character, and reputation, and in his said profession, did write, compose, ’ ’ etc.

Because of this language, it is said that the court below was not justified in treating the criticism of the plaintiff as having been done in good faith.

If this language carries with it more weight than the statement that “the publication was false” the question still remains whether a fair construction of the language used was libelous. It seems to us that it is clearly shown in the opinion of the learned judge below that a fair construction of all the language is, that in the opinion of the writer the plaintiff was unfit to be a judge of the court of common pleas, and that being true, we hold that it is a matter of indifference whether in giving expression to such opinion he was influenced by malice or not; if it was the writer’s opinion, he had a right to say so, regardless of what feelings he may have had toward the plaintiff.

As has already been said, we content ourselves with expressing1 our concurrence with the opinion of the court below, and we do not regard the criticism of the use of the words “in good faith” made in the argument here, as justifying any change from the conclusion there reached.

Judgment affirmed.

Henry and Winch, JJ., concui.


text:
    NEGLIGENCE
    [Cuyahoga (8th) Circuit Court,
    November 22, 1909.]
    Henry, Marvin and Winch, JJ.

      May Co. v. Cora Cummings.
    Person Going on Escalader Knowing Defective Condition Cannot Recover.
    One who goes upon an escalader with knowledge that it is out of order and in a dangerous condition, can not recover if she is injured by reason of the defect of which she knew.
    Error.

      Hoyt, Dustin, Kelley, McKeehan & Andrews, for plaintiff in error.

      McGrath <& Stern, for defendant in error.

      Affirmed no opinion, Cummings v. May Co. 83 Ohio St. 503.

   MARVIN, J.

Suit was brought by plaintiff below against the May Co. to recover for damages suffered by her on February 12, 1907, while she was in the store of the defendant as a patron.

The department which she was about to patronize was on the second floor, necessitating her taking some means of going up one story. To do this, she took what is called an “escalader,” which is a constantly moving pathway, constructed on an incline, reaching from the first to the second floor of the store of the defendant, so that one stepping upon it is carried, without taking any steps, from the first to the second floor, or from the second floor to the first floor. While on this escalader, going up, her skirt was caught upon some device connected with the escalader, and she was thereby injured. She charges that this injury was caused solely by the negligence of the defendant. The language of the petition charging negligence is in these words:

“Which negligence consisted in the failure of said defendant to keep said escalader in repair, and in safe and proper condition, and in permitting the same to be and remain in a defective and dangerous condition as above mentioned; that the defendant was negligent in not having and keeping the aforesaid hinges or knuckles covered with rubber or some other substance that would avoid the slippery condition thereof; and was negligent in failing to have an attendant in charge of said escalader to properly warn, conduct and direct its patrons while using the same; and it was negligence on the part of the defendant to use and operate said escalader while in said defective condition. ’ ’

One of the defenses set up by the defendant was that the plaintiff contributed by her negligence to the injury which she received. The result of the trial in the court below was a verdict and judgment for plaintiff.

By proper proceedings the case is here for review.

At the close of the evidence on the part of the plaintiff, the defendant moved the court to direct a verdict for it. This motion was overruled, and this is charged as error.

The testimony of the plaintiff herself shows that she was entirely familiar with this escalader and its use; that within a week or ten days of the time of her injury she was upon it; that it then exhibited the same want of próper covering for the knuckles that it exhibited at the time of her injury. Her testimony also shows that her injury resulted from the slipping of her feet upon these knuckles. But for such slipping she would not have been injured. She not only had used the escalader at the time spoken of about a week prior to her injury, but she had used it frequently within a few months of her injury, and she observed, as she says, this defective condition, and not only so, but she had been employed in this store and knew all about the way in which the escalader was used and to what extent there was any supervision of it by anybody. She knew too that the second story could be reached by a passenger elevator, in constant operation, and that this story could also be reached by a convenient stairway. The very defects which she says existed in this escalader were open, plainly to be seen, and she had actual knowledge of their existence as shown by her testimony.

We think clearly that she was not entitled to a recovery and that the court below should have directed a verdict in favor of the defendant.

Numerous errors are complained of as to the charge of the court, but, holding as we do, it would be fruitless to discuss these various questions.

On the part of the defendant in error it is urged that the defendant below was bound to exercise the same care for the protection of the plaintiff as is required of a common carrier of passengers.

The argument is made on the part of the plaintiff in error that this proposition is not the law. But it is unnecessary here to determine this question, because whatever duty was owing by the defendant to the plaintiff, her own negligence, as shown by her own testimony, so contributed to her injury as to preclude her right to recover.

The cases cited and quoted from in the brief of the plaintiff in error fully sustain this proposition.

We content ourselves with a quotation from but one, namely, Interurban Ry. & Term. Co. v. Hancock, 75 Ohio St. 88 [78 N. E. 964, 6 L. R. A. (N. S.) 997, 116 Am. St. 710; 8 Ann. Cas. 1036] the third clause of the syllabus of which case reads as follows:

“In a suit against an interurban electric railway company for injury to a passenger by reason of his arm being struck by a car passing upon an adjoining track, it is not error for the court to instruct the jury that if they find that there were four iron bars, extending horizontally across the window of the car, equally distant from each other, the top one approximately twelve inches from the windowsill, and that plaintiff while sitting in the car permitted his arm or any part thereof to extend or project out beyond or over the rods, and that said act directly contributed to the accident, the plaintiff would be guilty of contributory negligence and can not recover.”

And in the opinion by Judge Spear, at pages 111, 112, this language is used:

‘ ‘ To say that as a rule of law a passenger on such car may be heedlessly negligent, exposing his person to needless danger, and visit the consequences on the Interurban Company, upon showing negligence on its part, appears to us to be without reason, nor is it supported by authority. On the contrary, the generally recognized rule is that a passenger can not east upon the carrier responsibility for an event which, except for his own contributing negligence, would not have happened, and the law, as always held in this state, does not undertake, when both parties have been negligent, to measure the degree of the negligence of each.”

We have carefully examined the supplementary brief filed by the defendant in error in so far as the position is there maintained that one may select between several paths in going from one place to another and is not necessarily negligent because of selecting the least safe path. We do not regard that point as important in the present case. It is not because the plaintiff selected the' least safe path, but that she selected a pathway, the defects of which were known to her, that precludes her right to recover. The ground upon which this reversal is made seems to be so thoroughly well established in Ohio that we have not felt it incumbent upon us to go outside of the state for authorities upon the question. See Baker v. Pendergast, 32 Ohio St. 494 [30 Am. Rep. 620]; Conneaut v. Naef, 54 Ohio St. 529 [44 N. E. 236]; Dayton v. Taylor’s Adm’r., 62 Ohio St. 11 [56 N. E. 480].

In this case the language of the court is such as to indicate that the plaintiff was not entitled to recover because of an assumption of risk, and with the same propriety it might be said in this case that the plaintiff assumed the risk, with full knowledge of the danger: but whatever term be used, the result is the same, that the plaintiff was negligent, by reason of which she can not recover. See also Norwalk v. Tuttle, 73 Ohio St., 242 [76 N. E. 617].

Judgment reversed.

Henry and Winch, JJ., concur.


text:
    EMINENT DOMAIN
    [Cuyahoga (8th) Circuit Court,
    December 17, 1909.]
    Henry, Marvin and Winch, JJ.

      Frank Seither et al v. Cleveland (City).
    1. Measure of Damages for Appropriation of Remaining Lands.
    In an appropriation case, where the defendant owns land on both sides of a railroad and the corporation appropriates all he owns on one side of the railroad, it is for the jury to say whether the land on the other side of the railroad is such “remaining portion” of the defendant’s lands as to entitle him to compensation for depreciation in its value by reason of the taking of the land appropriated.

      2. Adaptability for Park Purposes of Land Appropriated Element of Value.
    In estimating tlie value of land sought to be appropriated for park purposes, its adaptability for park purposes is a proper element of value for the jury to consider.
    Error.

      Smith, Taft & Arter, for plaintiff in error.-

      N. D. Baker, for defendant in error.

      Affirmed no opinion, Cleveland v. Seither, 86 Ohio St. 357.

   MARVIN, J.

The city of Cleveland having decided upon a system or plan of public parks for the use of its inhabitants by proper legislation appropriated certain lands of the plaintiff in error. Other lands adjoining or near to these lands were some appropriated and some purchased by the city. As to those not purchased, and with the owners of which the city could not agree, proceedings were instituted in the court of insolvency of this county, to have the compensation to which the owners of the several tracts appropriated would be entitled assessed by a jury. Among those whose compensation was thus to be ascertained were the plaintiffs in error. They owned a parcel of land through which a railroad passed, the grade of the railroad being considerably lower than the surface of.the adjoining land. There was a bridge over the railroad, uniting the land which was on opposite sides of the railroad.

The lands appropriated were wholly on the westerly side of the railroad, the easterly boundary being the line of the railroad’s right-of-way. The appropriation included all of the land owned by plaintiffs in error on that side of the railroad. • The plaintiffs in error sought to show that the appropriation of this land on the westerly side of the railroad would depreciate the value of the land on the easterly side and that therefore they would be entitled to have as compensation not only the value of the land taken, which was something more than nineteen acres, but a sufficient amount to compensate them for the depreciation of the value of the land which would remain on the easterly side of the track.

The language of the statute fixing the oath to-be administered to the jury requires that'.they assess the compensation which ought to be paid to the property owner for the land appropriated and, in addition thereto, ascertain how much less valuable the remaining portion of said property will be in consequence of such appropriation.

In the present case the court left to the jury to determine whether the land on the opposite side of the railroad from that appropriated, was a residue or “remaining portion” of the premises of the plaintiffs in error in such wise as to entitle them to compensation on account of its being rendered less valuable by reason of appropriation. This, the plaintiffs in error urge, was erroneous, and insist that the court should have said to the jury that such land was a “remaining portion” and that the jury should inquire how much, if any, less valuable such remaining portion was by reason of the appropriation.

There was no error on the part of the court in submitting this question to the jury. The question has frequently been before the courts and the authorities are that where lands are physically separated in such wise that it is a question whether the two parts can be used together, that question shall be submitted to the jury. See Kossler v. Pittsburgh, C. C. & St. L. Ry., 208 Pa. St. 50 [57 Atl. 66].

A more serious complaint made, however, on the part of the plaintiffs in error is that the court excluded from the jury all evidence as to the value or fitness of these premises as a public park. Evidence had been introduced as to the fitness of these lands for a park. Such evidence, or a considerable part of it, went in under the objection of the city, and the court at the request of the city said to the jury in its charge:

“If you find from the evidence that the only demand for this property for the purposes of a public park is the demand of the city of Cleveland for that purpose, then I say to you that you must not consider any of the evidence presented in this proceeding so far as it shows the value of this parcel for such purpose. You must not consider the adaptability of this land for public park purpose at all, unless you first find that there is some general demand for the land for that purpose.”

The court again said to the jury in directing them how to ascertain the compensation to be paid for the land taken:

“But you must not give too free a flight to your fancy in this regard. It is not any use that the land might be put to; there are a great number of things that it might be used for that it probably never will be used for.' That can add nothing to its present value. But if there are any uses that it may be put to in the near future that are probable, reasonably probable, that affects its present market value.”

It will be seen by this last quotation from the charge that the court inadvertently used the word “any” where he said “It is not any use that the land might be put to.” It is dear that the court inadvertently used the word “any” in this sentence, where he meant to use the word “every.” The court did not mean to say to the jury that they could not consider any use to which the land might be put, but that that they could not consider every use to which it could be put.

However, the jury undoubtedly understood it to mean the same as though the word “every” had been used, and this raises the question raised by the prior part of the charge, given upon the request of the city.

The theory upon which the court gave this charge, and excluded from the consideration of the jury its value or fitness for the purposes of a public park, was that the owner being entitled only to a fair compensation for the property taken, could not take advantage of the fact that the city alone wanted this property for park purposes, and that to allow the owner to have the amount to be paid to him increased because of the fact that he held a piece of land which the city must have, he could, so to speak, “hold up the city” and make it pay whatever price he could show it would be worth for its purpose, when it might be many times the value which it would be worth for another purpose, and the court in so charging, applied apparently the decision of the Circuit Court of Huron County in the case of Gibson v. Norwalk, 7 Circ. Dec. 6 (13 R. 428). That was a case in which the city of Norwalk had appropriated certain lands to be used as a basin or reservoir for storing water for the use of the city, and the court held that the fact that the lands appropriated were especially adapted to the purpose for which the city desired to use them could not be taken into account in determining the compensation to be awarded. The first clause of the syllabus reads r

‘ ‘ In ascertaining the market value of land sought to be appropriated by a city for water works purposes, the fact that said lands are specially adapted for reservoir purposes is not admissible in evidence and can not be considered by the jury determining its market value. ” •

If that is a proper statement of the law applicable to the case under consideration, it would justify the action of the court in this case in this regard and we proceed, therefore, to consider the question of whether that case should be followed.

In Cincinnati & S. Ry. v. Longworth’s Exrs. 30 Ohio St. 108, the second paragraph of the syllabus reads (speaking of the compensation to be awarded) :

“In ascertaining these amounts, the jury are to take into consideration the real value of the land taken and the diminished value to the remainder, and may for that purpose take into account, not only the purposes to which the land is or has been applied,, but any other beneficial purpose to which it may be ápplied, which would affect the amount of compensation or damages. ’ ’

, And in the opinion at page 111, Judge Johnson quotes with approval the following language from the case of The Queen v. Brown, L. R., 2 Q. B., 630:

‘ ‘ A jury, whether the dispute be as to the value of land required to be taken by thé company, or as to compensation for damages by severance, in assessing the amount to which the land owner is entitled, have to consider the real value of the land, and- may take into the. account not only the present purpose to which the land is applied, but also any other more beneficial purpose to which, in the course of events at no remote peribd it may be applied, just as an owner might if he were bargaining with a purchaser in the market. ” -,

In .the case of Goodin v. Cincinnati & Whitewater Canal Co., 18 Ohio St. 169 [98 Am. Dec. 95] the fourth paragraph of the ’ syllabus reads (speaking of the assessment of compensation in cases of appropriation) :

‘ ‘ The rule of valuation in such cases is what the interest of the canal company was worth, not for canal purposes merely, or for any other particular use, but what it was worth generally, for any and all uses for which it might be suitable.”

And in the opinion, at page 181, .this language is used.:

“The true value of anything is what it is worth when applied to its natural and legitimate uses: its best and most valuable uses. The estimate should have been given of its value generally for any and all uses, and not for' any particular and especially not for any inferior or inappropriate use. ’ ’

In the case of Currie v. Waverly & N. Y. B. Ry. 52 N. J. Law (23 Vroom.) 381 [20 Atl. 56; 19 Am. St. 452] the fourth paragraph of the syllabus reads:

“The rule, that the special advantages of the land to the party acquiring it by condemnation shall not swell -the' compensation of the landowner, applies to cases where the taking, which is advantageous to the purchaser, is not pecuniarily disadvantageous to the seller. If, however, the advantageous feature is of such a nature that it has commercial value in the hands of either, then a fair estimate of such value is a proper part of the just compensation which the owner is entitled to receive. ’ ’

And the fifth paragraph reads:

‘ ‘ The situation and surroundings of land sought for railroad purposes may impart to it a Special valúe for such purposes generally; where such a value is shown, the owner may reap the benefit of it when compelled to- part with his land by condemnation.”

And on page 397, the court in its opinion uses this language:

“Under the law as thtis expounded the landowner in the present ease should have been permitted to produce evidence as to the situation and surroundings of his land as they existed at the time of the location of the company’s route, for the purpose of demonstrating, if he was able; that there resulted to his land from these circumstances a special value growing out of the' best use to which, from its situation, it was presently adapted. Guarded by the exclusion of speculative opinions upon the one Land, and of the individual advantages to the condemning agent upon the other, such a course will best secure to the owner of the lands taken that compensation for their general value which is guaranteed by the Constitution whenever private property is taken for public use.”

In Mississippi & Rum River Boom Co. v. Patterson, 98 U. S. 403 [25 L. Ed. 206], the court in the fourth and fifth paragraphs of the syllabus use this language:

“4. In determining the value of land appropriated for public purposes, the inquiry must be, what is the property worth in the market, from its availability for valuable uses, both now and in the future.
“5. In estimating the value of the lands sought to be taken by a boom company for a boom, its adaptability for boom purposes is a proper element of value for consideration. ’ ’

And in the/ opinion, this language is used:

“So many and varied are the circumstances to be taken into account in determining the value of property condemned for public purposes, that it is, perhaps, impossible to formulate a rule to govern its appraisement in all cases. Exceptional circumstances will modify the most carefully guarded rule; but, as a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may reasonably be expected in the immediate future.
1 ‘ The position of the three islands in the Mississippi fitting them to form, in connection with the west bank of the river, a boom of immense dimensions, capable of holding in safety over twenty millions of feet of logs, added largely to the value of the lands. The boom company would greatly prefer them to more valuable agricultural lands, or to lands situated elsewhere on the river; as, by utilizing them in the manner proposed they would save heavy expenditures of money in constructing a boom of equal capacity. Their adaptability for boom purposes was a circumstance, therefore, which the owner had a right to insist upon as an element in estimating the value of the lands.”

This question is discussed and a great number of authorities eite'd in Lewis on Eminent Domain, Sec. 706 of the Third Edition (old Sec. 478). See also Brown v. Weaver Power Co., 140 N. C. 333 [52 S. E. 954; 3 L. R. A. (N. S.) 912].

From the authorities to which attention has already been called, including those cited under the above section of Lewis and from what seems to us the better reasoning, we reach the conclusion that the court erred in excluding from the jury all consideration of the fitness and value for park purposes of the land taken in this appropriation. As well said in a number of the cases, it is difficult to frame a rule which shall be applicable in all cases, but it seems an anomalous thing that if property is specially suitable for a particular use that fact may not be shown when the value of such property is to be ascertained. This would certainly be true if it was a case of bargain and sale of property; and the owner of property appropriated for public use is not to be a loser by the fact that under the law he is forced to part with his property. He is entitled to be fully compensated for the value of the property, and while this does not entitle him to “hold up” the public because he happens to have the only parcel of land which will answer .the purpose of the public, still he is not to be cut down to what the land would be worth for a purpose to which it is less fitted than for the purpose for which it is appropriated.

Every use for which the land is suitable should be taken into account in determining its value, and taking into account such uses,-including the use for which the appropriation is made, the jury should say what the fair value of the land is, and this does not require of the jury nor must not permit the jury to put a speculative or an exorbitant price upon the land, but to determine and allow what, all things being taken into account, the land is fairly worth.

■Without going into detail on the rulings on evidence, it is sufficient to say that whatever evidence was excluded, which under the proposition enunciated would have aided in determining the fitness of the value of the land for park purposes, should have been admitted.

For the reasons pointed out, the judgment is reversed and the cause remanded.

Henry and Winch, JJ., concur.


text:
    TRIAL
    [Cuyahoga (8th) Circuit Court,
    December 17, 1909.]
    Henry, Marvin and Winch, JJ.
    Greenhut Cloak Co. v. American Credit Indemnity Co.
    Directing Verdict for ■ Defendant when there is Evidence to be Weighed, Held Erroneous Notwithstanding Granting New Trial Necessary.
    A verdict directed and a verdict set aside upon the weight of evidence are distinguishable in that retrial is precluded in the former case and possible in the latter. Hence, when there is • evidence upon both sides to be weighed, it is erroneous to direct a verdict for the defendant, notwithstanding the trial judge is of the opinion that, should the jury find for the plaintiff, he would grant a new trial on the weight of the evidence.
    Error.

      W. D. McTighe, for plaintiff in error.

      White, Johnson, McCaslin & Gannon, for defendant in error.
   MARVIN, J.

The parties here are as they were in the court below. The plaintiff, a corporation, was engaged in merchandising in the city of Cleveland. The defendant is in the business of indemnifying merchants on accounts'made by their customers, and it has a form of contract by which it makes this guarantee. This form of contract speaks of it as a bond and also as a contract of indemnity.

Without discussing whether technically this is to be.called a bond, or a policy, or a contract of indemnity, a contract under this form used by the defendant was entered into between it and the plaintiff, whereby the defendant undertook to guarantee the plaintiff against loss on accounts which should become due to it by its customers. This indemnified for a certain per cent, of losses and upon certain conditions as to things to be performed in the way of notice and the like, on the part of the plaintiff, in order to entitle it to the benefit of the indemnity.

Upon the trial, evidence was introduced tending to show that by reason of the failure of certain customers of the plaintiff to pay their several accounts, the plaintiff was entitled to recover from the defendant upon his contract of indemnity. Among those accounts was one against A. J. Van Loan, another against the National Credit Clothing Co., another against the Sampliner Cloak Co., and another against the Hahn-Berno Co. Besides these, there were a large number of other accounts against the customers of the plaintiff included in the suit. When the court came to submit the ease to the jury it withdrew from their consideration the four claims above named, saying that the plaintiff was not entitled to recover anything upon any one of these accounts, and it is this instruction of the court which is complained of in the present proceeding.

We have examined the evidence carefully upon each of these accounts, and as to the third named, we reach the conclusion that the court was right in withdrawing this from the consideration of the jury. As to the last -named, towit, the claim against the Hahn-Berno Co., we find that the court erred. There was some evidence on the part of the plaintiff in this case which should have gone to the jury. The argument made here is that the evidence introduced on the part of the plaintiff in reference to such claim is so completely overcome by the evidence of the defendant, that if the verdict had been rendered by the jury, including this claim, it must have been set aside on the weight of the evidence, and it would have been a vain thing for the court to have submitted to the jury a question, which, if found by them for the plaintiff, would not have been permitted to stand.

This argument has been used a great many times, and to many lawyers seems of weight, but the rule in Ohio is otherwise, and there is this difference to be noticed, that when the court directs a verdict there is not another opportunity for a retrial of the case, whereas, a verdict having been rendered, if the court finds that it should be set aside on account of the weight of the evidence, the party is entitled to a new trial, upon which it is possible that he will produce sufficient evidence to, entitle him to such verdict. In any event, it is not an open question in Ohio where there is evidence upon each side to be weighed — that upon' one side being set against that of the other — the court is not authorized to direct a verdict, and because a verdict was directed in reference to this claim the judgment of the court of common pleas must be reversed and the case remanded.

The amount of this claim, if it were to be added to the judgment recovered by the plaintiff in the court below, would take away all the prejudice which the plaintiff suffered by reason of the error found. But we by no means intimate that if the case had been submitted to the jury upon the evidence the verdict would have been increased at all by' reason of this Hahn-Berno Co. claim, but if the defendant desires to avoid a new trial and agrees to have the judgment of the court of common pleas so modified in this court as that the amount of this claim shall be added; the judgment as thus modified will be affirmed. But we have no power to order that this shall be done, nor do we recommend it to be done; we simply suggest it, leaving the plaintiff to determine for itself whether it cares to have such modification.

Henry and Winch, JJ., concur.