text:
    RIGHTS OF A DROVER RIDING ON A FREIGHT TRAIN.
    [Circuit Court of Cuyahoga County.]
    Lake Shore & Michigan Southern Railway v. Samuel C. Hotchkiss.

    Decided, January 26, 1903.

      Carriers — Drover Traveling on a Freight Train — Is a Passenger "While Walking Along the Tracks to Reach the Caboose — Degree of Care Required in so Doing — negligence in Operating Trains.

    1. One traveling on a freight train in charge of live stock is a passenger although paying no fare in addition to the freight charges on the stock, and is entitled to protection from injury while walking along the track at the direction of one of the company’s agents to reach the caboose.
    2. Where such a passenger is injured while thus attempting to reach the caboose, questions as to his own negligence and that of the railway company should be submitted to the jury.
    3. Failure upon the part of one thus walking along the track to use ordinary care in keeping out of danger would constitute contributory negligence.
    Marvin, J.; Caldwell, J., and Hale, J., concur.
    Error to court of common pleas.

       Affirmed by the Supreme Court without report, December 1, 1903.

   Tbe parties in tbe court of common pleas were tbe reverse of wbat they are here. In this opinion tbe terms plaintiff and defendant refer to tbe parties as they were in the court of common pleas.

On August 19, 1899, tbe plaintiff made a contract with Thomas M. King, receiver of tbe Pittsburg & Western Railway Company, be being in tbe operation of the road of said company, by which two carloads of live stock were to be transported for tbe plaintiff from Middlefield, in Geauga county, Ohio, to East Buffalo, in tbe state of New York, over the road operated by said receiver and connecting lines. Tbe only connecting line over which this stock was to be transported was the line of the defendant. The contract, among other things, had the following provisions:

‘ ‘ That whenever the person or persons accompanying said stock under this contract to take care of the same shall leave the caboose and pass over or. along the ears or track of said carrier, or connecting carriers, they shall do so at their own sole risk of personal injury, from whatever cause, and neither the said carrier, nor its connecting carriers, shall be required to stop or start their trains or caboose cars at or from the depots or platforms, or to furnish lights for the accommodation or safety of the persons- accompanying said stock to take care of the same under this contract.
“And it is further agreed by said shipper that in consideration of the premises and of the carriage of a person or persons in charge of said stock upon a freight train of said carrier, or its connecting carriers, without charge other than the sum paid or to be paid for the transportation of the live stock in charge of which he .is, that the said shipper shall and will indemnify and save harmless said carrier and every connecting carrier, from all claim, liabilities and demands of every kind, nature and description, by reason of personal injury sustained by said person or persons so in charge of said stock, whether the same be caused by the negligence of said carrier or any connecting carrier or any of its or their employes or otherwise.”

The two cars were loaded with live stock at Middlefield on said August 19, and on the morning of August 20, about three o’clock, the train, of which said cars formed a part, reached Painesville, on the line of the defendant, where the cars were to be taken into a train on the defendant’s road. The plaintiff accompanied these cars and was to go on with them in charge of said live stock to their destination at East Buffalo. The plaintiff went to the station of the defendant and reported his cars as having arrived, and a locomotive engine of the defendant was sent out to switch these two cars onto the defendant’s line of road and connect them with a freight train to go east on its line. To get to that part of the defendant’s line of road where these cars were to be attached to the east-bound train of the defendant a considerable distance had to be traveled, and, at the invitation of the engineer of the locomotive which did the switching, and which was the locomotive which was to haul the train east, the plaintiff rode with the engineer on the engine. This same engineer remained with the engine to take the train east.

When the cars containing the plaintiff’s live stock were properly in the defendant’s train, the engineer stated to the plaintiff that he must now go back to the caboose of that train to ride. The defendant’s line has a double track. The trains going to the east use the northerly and those going west the southerly track. The plaintiff, upon receiving this notice from the engineer, alighted from the locomotive on the north side, passed around in front of the engine to the south side, and there had a conversation with the engineer, the substance of which was that as this train contained some sixty cars, it was a long distance to the caboose, and he cautioned the engineer not to start his train until he (the plaintiff) should have time to reach the caboose. To this the engineer replied that if he did start the train he would wait until the plaintiff had nearly reached the caboose, and would then start so slowly that he would have no difficulty in getting upon the car.

The distance between the north rail of the southerly track and the south rail of the northerly track was the usual distance of about seven feet. Between these tracks was a hard, good path for walking and one which those employed about these yards were accustomed to use. On the north side of the north track the condition of the ground was much less favorable for walking, though one could without very great inconvenience walk along on the north side. The plaintiff started west toward the caboose, on the south side of this train, between the two tracks. If freight cars were standing on each track opposite to each other, the distance between the cars would be about forty-seven inches. The. engineer knew that the plaintiff had taken this pathway between the two tracks for the purpose of reaching the caboose. From the point where this engine stood one could see to the east along the tracks for a long distance. There was no west-bound train coming in sight of the plaintiff when he started to walk toward the caboose. When he had gone some distance to the west, perhaps half-way from the engine to the caboose, a freight train coming from the east at from thirty to thirty-five miles an hour came in sight of the engineer of this east-bound train. The plaintiff, hurrying on to take his place in the eabobose, did not look around to see whether anything was coming on the south track. When, however, he had got within three or four cars of the caboose, he heard some unusual noise, and looked over his shoulder and saw the west-bound train coming at a distance, as he thinks, of from seventy-live to one hundred feet from him. Of course, this estimate is necessarily somewhat indefinite. At this time the east-bound train, which he was to take, was moving slowly, the engineer having just before started, as he had said to the plaintiff that he would. The plaintiff burred on toward the caboose, and just before reaching it was struck by a car in the west-bound train and injured. He brought suit against the defendant to recover damages for this injury, charging that such injury was due to the negligence of the defendant in starting its east-bound train while he was in and known to be in a perilous position, where he would be likely to be injured if the train started.

The trial of the case resulted in a verdict for the plaintiff. Motion for a new trial made by the defendant was overruled, and after a remittitur of a part of the damages allowed by the jury, judgment was entered for the plaintiff against the defendant for the balance. The present proceeding is brought for the purpose of reversing that judgment.

On the part of the defendant it is urged that it was not an act of negligence on its part to start its train as it did, and that, even if that were negligent, the plaintiff contributed by his own negligence to the injury which he received in not keeping a lookout for trains on the southerly track, and that it was negligence on his part not to have gotten out of the way of the west-bound train after he saw it.

The question of the relative duties of the plaintiff and the defendant depends largely upon the relation which at the time they sustained to each other.

It is conceded by the defendant that if the plaintiff was then a passenger upon its road, its duties would be very different from what they would be were he but a licensee, which, it is urged, he was at that time, and in support of this contention attention is called to the language of the contract, in which it is provided that “whenever the person or persons accompanying said stock under this contract, to take care of the same shall leave the caboose and pass over or along the cars or track of said carrier, or of connecting carriers, they shall do so at their own sole risk of personal injury, from whatever cause,” etc.

Whether this clause of the contract could in any wise affect the right of the plaintiff to recover if this accident had happened at some point on the defendant’s line where the plaintiff had alighted from the caboose and gone along the track to look after his stock or not, we think it does not affect his right to recover under the circumstances of this case. The plaintiff had not yet reached the caboose, where he was to ride. He was on his way to get on board of the train, and, as we think, was entitled to the rights of any passenger of the railroad company.

In the case of Cleveland P. & A. Ry. Co. v. Curran, 19 Ohio St., 1, it is held that one traveling on what is designated a “drover’s pass,” and which, together with the contract for the transportation of live stock, constituted the contract between the shipper and the railroad company, was a passenger of the railroad company both in going with his stock and in returning on another train. And in the same case it is held that a provision in the contract between the shipper and the railroad company which is, if not in exactly the same words, surely'in substance the same as the last clause heretofore quoted from the contract in this case, is void as against public policy. This last doctrine has been repeatedly affirmed by our Supreme Court. See Union Express Co. v. Graham, 26 Ohio St., 595; Cincinnati, H. & D. Ry. Co. v. Pontius, 19 Ohio St., 221; United States Express Co. v. Backman, 28 Ohio St., 144; Telegraph Co. v. Griswold, 37 Ohio St., 301;

In the case of Chicago & A. Ry. Co. v. Winters, 51 N. E. Rep., 901 (175 Ill., 293), it is said, in the second clause of the syllabus:

. “The relation of carrier and passenger still exists when a passenger is obliged to alight from a car to go to another car, to be carried by the carrier to his destination.”

And the third clause reads:

“A stockman traveling with the consent of the railroad company on a freight train, in charge of stock carried by the company for him, is a passenger.”

Unless, then, in this ease the defendant exercised that care for the protection of the plaintiff which it owed to its passengers, it was negligent, and, under proper instructions, it was a question for the jury to determine whether it did exercise such care.

In the case to which attention has last been called, the fourth clause of the syllabus reads:

“Where a train has reached a point where the passenger may lawfully leave it, and no direction is given him to alight on the side of the train where there is no danger, but he is permitted to alight on the side where there is danger, it is for the jury whether reasonable care for the safety of the passenger has been used by the railroad company.”

Attention is called to the case of Railroad Co. v. Perry, 58 Ga., 461. In this case the plaintiff had purchased a ticket from the railroad company at Macon, entitling him to ride on the train of the railroad company to Savannah, both in the state of Georgia. He, after having purchased the ticket, fell into conversation with a friend in the car shed near the ticket office. The train, at its proper time, started out without his observing the signals. Noticing that the train had started, however, he started in pursuit, being very near to the train. An engine standing on a track which led onto the tracks on which the train was, had waited for the train to pull out and then started up, as it had a right to do, and the plaintiff came in contact with that engine and was injured. The court say, on page 468, in the fifth subdivision of the opinion:

“It is for the jury to say whether the danger of pursuing and boarding a train when in motion was, under the circumstances, so apparent as to make it the duty of the passenger not to undertake it, or to desist from the attempt before he was injured. ’ ’

In the present ease we think the facts are not such as would warrant a court in saying, as matter, of law, either that the defendant was without negligence in starting its train, or that the plaintiff was guilty of such contributory negligence as to bar a recovery. Without doubt, the danger to the plaintiff in being between the two trains was greatly increased by the starting of the east-bound train. Had that train remained standing, with the space of forty-seven inches between its cars and. those of a swiftly moving train going west, it would have enabled him to lean against or hold onto the cars of the north train, and so avoid danger. There can be no doubt that the engineer of this train on the north track knew before he started his train that the other train was coming rapidly from the east. He knew also that the plaintiff had started down the pathway between the two tracks on his way to the caboose, and must have known that if the west-bound train passed him while he was thus between the tracks and while his own train was in motion, he would be in a highly dangerous position. Perhaps he might have thrown himself upon the ground and thereby have escaped injury. It is possible that after he knew of the approach of the west-bound train he could have crossed the southerly track and got out of the way of danger, yet this last is very doubtful, and it is not probable that a cautious man would have risked it, and- it is very doubtful whether, in the very short space of time in which the plaintiff must have determined what to do, it would have occurred to the average prudent man to throw himself upon the ground.

The duty of a railroad company to its passengers requires a very high degree of care on the part of the company. In the case of Wabash Ry. Co. v. Skiles, 64 Ohio St., 458, Judge Davis, in his opinion at page 471, uses this language:

“It has been laid down as the law that passengers who are required to cross railroad tracks in getting upon or alighting from trains, have the right, from the nature of their contract, to expect a safe place for that purpose, and may govern themselves accordingly.”

Attention is called to the case of Baltimore & Ohio Ry. Co. v. State, 32 Atl. Rep., 201 (81 Md., 371), a case decided in the court of appeals of Maryland in 1895. In this case the party injured was not a passenger, but had alighted from one train and was taking the usual course to the ticket office of the B. & O. Railroad Company to purchase a ticket from East Brunswick to Washington. This language is used, on page 203, in the opinion:

“He took the same route to the ticket office as that pursued by other passengers and certain employes of the appellant. He was not required, under the circumstances of this case, when he reached the track, to ‘stop,-look and listen.’ This rule is not one of universal application except in cases when it is applied to public road crossings.”

In the case of Railroad Co. v. State, 63 Md., 135, the party injured had purchased a ticket at the station, and, in order to take her train, she was required to cross the railroad track to reach a platform on the opposite side of the track from that on which was the station or ticket office. She had not yet got upon any car of the company, but it was held that she was a passenger entitled to all the protection of a passenger, and further, it was said, on page 144, in the opinion:

“If she had purchased a ticket and was crossing the track by and under the direction of the ticket agent for the purpose of taking the train, she is to be considered as a passenger, and as such entitled to the rights and protection of a passenger, and it was the duty of the agent, so far as human care and prudence could, to guard against exposing her to danger.”

Under the authorities to which attention has been called, and many others to the same effect, we think it clear that the defendant was not entitled to a direction to have a verdict returned for it; and this disposes of the first exception taken to the refusal of the court to charge as requested by the defendant.

Exception is taken to the refusal of the court to charge a considerable number of requests made by the defendant. The first of these, which was that the jury be directed to return a verdict for the defendant, was, as has already been said, properly refused. The second request reads:

“If the court refuse defendant’s first request to charge, then defendant requests the court to charge the jury that under the circumstances of this case, plaintiff, while passing over and along the tracks of defendant, was not a passenger; and that in the conduct and management of its road and trains it was not bound to anticipate plaintiff’s presence at the place mentioned in the petition, nor to modify its usual and customary methods of maintaining and operating its railroad on account of his presence in that place.”

What has already been said in this opinion necessarily results in holding that this request was properly refused. Complaint is further made that the court refused to give in charge the fifth request of the defendant. That request reads:

“If the court refuse defendant’s first request to charge, then defendant requests the court to charge the jury that if they find that plaintiff made a contract, by the terms of which he was permitted to ride upon the freight train of defendant in charge of his stock, upon certain conditions, among which were the following:
“ ‘That whenever the person or persons accompanying said stock under this contract, to take care of the same, shall leave the caboose and pass over or along the cars or track of said carrier, or of connecting carriers, they shall do so at their own sole risk of personal injury, from whatever cause, and neither the said carrier, nor its connecting carriers, shall be required to stop or start their trains or caboose cars at or from the depots or platforms, or to furnish lights for the accommodation or safety of the persons accompanying said stock, to take care of the same under this contract.’ And if you shall further find that plaintiff was in fact passing over or along defendant’s track at the time of the injury complained of, he did so at his own risk of personal injury from whatever cause. And defendant owed him no duty except after becoming aware of his dangerous position to refrain from wantonly or wilfully injuring him.”

There was no error in refusing this request. The views of the court in regard to it are expressed in what has already been said in this opinion.

Requests seven, eight and nine each bear upon the question of the care which the plaintiff was bound to exercise, and put upon him the same care which would have been required of him had he been a licensee of the defendant instead of a passenger. Holding, as we do, that he was a passenger of the railroad company, the court properly refused these requests. The eleventh request reads:

“If the court refuse defendant’s first request to charge, then defendant requests the court to’ charge the jury that if you shall find that plaintiff saw or heard the train coming on the south main track in time to have stepped across it and from the space between the main tracks, but tried to get to the caboose in advanee of the oncoming train, then he assumed the hazards and perils of such a course and he can not recover from defendant any damages he may have sustained by reason of his action.”

This request was properly refused. In the main, it states a proposition which should have been given, but if this had been given, it would have put upon the plaintiff the obligation of determining whether he could pass to the south and across the south track to a distance far enough from the track to be safe after he knew of the coming of the train. It is certain that the time after the plaintiff knew of this coming train and the time it reached him was very brief. To say that he must have determined at once that he could get across, and if, as a matter of fact, he could, although to all appearances it was very doubt-fill whether he could, would be to require more of this man than can be expected of an ordinarily prudent man. If he could have thus got across, and if it was so plain that he could have thus got across that a prudent man would have risked it, then it might well be required that he should have thus got across; but in a case where it is so doubtful whether he could have made it, to say that if he possibly could he must have done it, is to require more prompt judgment than the law requires of the ordinarily prudent man.

The twelfth request reads:

“If the court refuse defendant’s first request to charge, then defendant requests the court to charge the jury that it is no excuse for the plaintiff that he was afraid that he might lose the train on which he was about to go, and that the fact that the train on the north track was moving and he was apprehensive that if he stepped across the south track and from between the main tracks, he might lose his train, this would not justify him in remaining in such a perilous place.”

We think there would have been no error in giving this request and it would not probably have misled the jury, yet perhaps it is putting it stronger than it should be to-say that the facts suggested would be no excuse for the plaintiff, though certainly it is true that they would not justify the plaintiff for remaining in a perilous place. The court, however, charged the jury on the subject of this request, and, as we think, fully covered the proposition and correctly stated the law to the jury. On pages 154 and 155 of the record this language is used in the charge:

“I say to you further that, though you may find the company was negligent in directing or permitting, with its knowledge, if you find it had the knowledge, the plaintiff to walk between the tracks in going to the caboose, and that he was thus put in a place of danger, it would yet be the duty of the plaintiff, upon discovering that he was in a place of danger, to exercise ordinary care to prevent injury to himself; and if the plaintiff (after the discoyery that he was in a place of danger) failed to go to a place of safety, if there was reasonable opportunity to find a place of safety, this would be such contributory negligence as would defeat his recovery.”

Complaint is made to the charge of the court, and especially to this language used in the charge.

“It is contended by plaintiff that even though it might have been a safer course to have gone on the outside of the tracks instead of between the tracks to reach the caboose, that the defendant, through its agents, knew in ample time of the imminent danger of plaintiff to have obviated the danger and injury to plaintiff. In this connection I say to you that, though the plaintiff may have put himself in a place of danger negligently, yet if the defendants, through its servants and agents, apprehended, in time, the dangerous position of plaintiff, by the exercise of ordinary care, to have prevented the same, it was the duty of the company through its agents to do so, and that if the company, by the exercise of ordinary care, after such discovery, could have saved plaintiff from the injury, then the failure of the company in this respect would be the proximate cause of the injury, and the negligence of the plaintiff would not, under such circumstances, bar his right to recover.”

If this language was so used as to be understood by the jury as meaning that though the negligence of the plaintiff continued up to the instant of his injury, still he might recover if the defendant was negligent, it would have been erroneous, but, taken in connection with the language immediately following, which is that heretofore quoted from the charge, and together, the law is stated as we hold it to be. The court distinctly stated that if the plaintiff, when he knew of his danger, failed to exercise proper care to save himself, he could not recover. We find nothing in the charge of the court as given, or in the refusal of the court to charge as requested, or in the facts of the case, to justify a reversal, and the judgment of the court of common pleas is affirmed.

Brewer, Cook & McGowan, for plaintiff in error.

Kline, Carr, Tolles & Goff, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    ACTIONS FOR MALICIOUS PROSECUTION.
    [Circuit Court of Lorain County.]
    Frank Lieblang v. The Cleveland Electric Railway Co.
    Decided, October 8, 1903.

      Malicious Prosecution — Termination of Prosecution Necessary to Sustain Action for — Denial of Knowledge of Entry of Nolle Prosequi— Puts Plaintiff upon Proof that the Case is Ended — Pleading.
    1. In an action for malicious prosecution, an allegation that the case was ended by a nolle prosequi, and a denial by the defendant for want of knowledge that the case was thus ended, raises the issue as to its termination, and puts the plaintiff upon proof as to his final discharge, and if such proof is lacking there can he no recovery.
    2. The fact that a final termination of the prosecution was assumed and not denied during the trial does not supply the place of such proof, particularly where the trial judge directs attention to this defect in proof hy sustaining an objection to a question on the ground that such proof is lacking.
    Marvin, J.; Hale, J., and Winch, J., concur.
   The case of Frank Lieblang against The Cleveland Electric Railway Company is brought here upon proper proceedings for a review, complaint being made by Lieblang, who was the plaintiff below as well as the plaintiff in error, that error to his prejudice was committed by the trial court upon the trial.

The suit was brought for malicious prosecution. The petition set out, stating it briefly, that The Cleveland Electric Railway Company conspired with The Citizens Electric Railway Company of Detroit and certain natural persons in the city of Detroit to have Lieblang arrested upon a false charge in Detroit, and prosecuted him upon such false charge; that he was arrested; that he was in jail for several days, and that for many months he was under bond and required to appear and did appear a good many times in the city of Detroit, and that he wa¡s thereby greatly injured. The petition further states as was clearly necessary that the prosecution in Detroit against him was terminated, and he states that the case or persecution was terminated by a nolle being entered by the prosecuting attorney with the permission of the court.

The answer denies that The Cleveland Electric Railway Company was in anywise responsible for the arrest of Lieblang, and denies for want of knowledge that the prosecution begun in Detroit was terminated at the time the suit was brought; that raised the issue squarely, and put the plaintiff upon proof that the prosecution in Detroit was ended.

It is settled without any question in Ohio that before a suit can be brought for malicious prosecution, the prosecution must be ended, and must have ended either by an acquittal of the accused or by a dismissal of the prosecution. The last case to which our attention has been called on that subject is in the 56th Ohio State Reports, page 156 (Douglass v. Allen).

“In order to maintain an action for malicious prosecution, it must be shown that the prosecution was legally terminated before the commencement of the action; but it is not essential that the plaintiff shall have been acquitted of the charge on a trial of the merits; the entry of a nolle prosequi, followed by his discharge is sufficient.”

Prior to that the court had said in another case, that of Foreman v. Rotier, 8th O. S., page 550, that the prosecution must have ended by an acquittal of the accused; but in that case that question was not raised, and was only incidentally stated. But in the case last referred to in the 56th, Judge Williams says: It is not necessary, clearly ought not to be necessary that the case should be terminated by an acquittal; because if that were true, and there was a nolle entered, it would leave the party remedyless, although he had a good case, although, he had thus been wrongly dealt with. Attention was called' to this in the argument of the case in this court by counsel for the defendant in error.

Counsel for the plaintiff in error was inquired of if there was that defect in the evidence, and he answered he did not think that there was any direct proof of the prisoner’s discharge or plaintiff’s acquittal, but that that was conceded. Every body assumed that that was so, overlooking the fact that in the trial his attention was called to it. A good many questions were asked by counsel for the plaintiff of the plaintiff when he was upon the stand. Questions which assumed he had been discharged. One if them is found on page 122.

“Q. From the time of your arrest on the 31st day of August 1900, until the time of your final discharge on the 2d of July, 1901, you may state to what extent by your travels hither and thither and your imprisonment your business was interfered with?”

Now a good many questions of that sort were asked, and objections to them sustained, and the court on page 124 called attention of counsel to the fact he was assuming that there was a final discharge of the plaintiff from the prosecution in Detroit, and said:

“The question has in it,” speaking of a question to which an objection had been made, and which was then being considered, “The question has in it, ‘And your final discharge;’ you are assuming a thing that ought not to be in your question. Now I hold that the time that he spent in Detroit in the court — you may show whose transactions, how long he was before the court, in the court room, the incarceration, in the hands of the officers, any of those things. I suppose you had covered all of that.”

Calling his attention to the fact the only defect in his question he was asking was, he had failed so far to show any discharge or termination of the prosecution in Detroit. And still after a careful search of this record all through we can find nothing which squints toward that fact. The nearest is the assumption by counsel for plaintiff that he was finally discharged, and he was cautioned he must not ask that because of the fact he failed to show it. And still the ease went through and he did not show and so far as we can find there was no effort to show there was a final discharge. That being true, it is not necessary to comment upon what the court said below, and the reasons why he took the case from the jury. It is enough to say he was justified in taking the case from the jury, for there could have been no verdict that could have been sustained for the plaintiff; there was not a scintilla of evidence upon this material point, that the prosecution was ended. That being true, without any discussion of the further questions, although in examining this question we have had to look the record through, and learned pretty nearly what there is in that record, but without any discussion as to any other question, that was fatal to the plaintiff’s case and justified the court in directing a verdict for the defendant, and the judgment is affirmed.

Kerruish, Chapman & Kerruish, for plaintiff in error.

Squire, Sanders & Dempsey, E. G. Johnson and Hale C. Johnson, for defendant in error.


text:
    BENEFICIAL INSURANCE.
    [Circuit Court of Lucas County.]
    Elizabeth Crockett v. Order of the Red Cross et al
    Decided, January Term, 1903.

      Mutual Benefit Societies — Requisites of Notice of Assessment — Rights of the Beneficiary.

    1. Where a provision of the constitution of a beneficial order requires that there should be actual notice to members of the levying of an assessment, such notice must be in fact given to a member before forfeiture of his rights will result from failure to pay the assessment, notwithstanding a rule of the order that a member becomes suspended ipso facto from all benefits of the beneficiary fund by failure to pay an assessment.
    2. A beneficiary of such an order can not be deprived of his rights under the certificate by the fact alone that the policy holder became dissatisfied with the order and declared his intention to withdraw and pay no further assessments.

      Parker J.; Haynes, J., and Hull, J., concur.
   This case comes into this court on appeal. The plaintiff says that the defendants named (The Order of the Red Cross; The Knights of the Red Cross; The Subordinate Commandery, known as The Toledo Commandery No. 4, Order of the Red Cross, and The Knights of the Red Cross) are corporations under the laws of Michigan and Ohio; that the business of the companies is chiefly fraternal insurance — class insurance, as distinguished from the old line method of insurance; that James K. Crockett in his lifetime was a member of all the associations named, by virtue of his membership in the Toledo Commandery No. 4 of the order; that on September 24, 1888, the order issued to him a beneficiary certificate for the sum of $1,000, payable to the plaintiff, as beneficiary, upon the death of the insured, if he should comply with the rules of the order with respect to the payment of assessments and otherwise hold and keep himself in good standing in the order; that he complied with all these requirements, and was in good standing at the date of his death, which occurred on September 23, 1900; but that the defendants refused to recognize her claim under this certificate, and therefore she prays that they may be compelled to levy, collect and pay over to her such assessments as will make up to her the amount promised in the policy, to-wit, $1,000.

Various issues presented by the answer have been eliminated during the trial of the ease, so that the only issue remaining is that presented by the averment of the answer, that the rules of the order required that:

“All assessments must be paid on or before the twenty-eighth day of the month, and any member failing to pay the assessment by midnight of the date for which the assessment is called, becomes thereby ipso facto suspended from all benefits of the beneficiary fund of the order; that on or about the first day of August, 1900, two assessents were levied and called for under said revised constitution and laws, and that notice, as provided under the laws of said order, was mailed to each and every member of said The Order of the Red Cross and Knights of the Red Cross and to the said James K. Crockett; that the said James K. Crockett failed to pay said assessments on or before midnight of the twenty-eighth day of August, 1900, and became thereby ipso facto suspended from all benefits of the beneficiary fund of said order.”

It will be observed that the answer does not contain an averment that this notice was in fact served upon James K. Crockett or that he ever received it, nor does it advise us who it is claimed mailed the notice to him. To the answer and supplemental answer a reply was filed by the plaintiff. I read from the reply:

“Plaintiff says that she denies that deceased ever received any legal notice of the pretended assessment made payable August 20, 1900, and denies that any such notice was ever issued to the deceased.”

In so far as the denial of the receipt of the notice is concerned, it is a denial of something not averred in the answer; but the case has been tried as if the issue were presented here whether the notice if issued and mailed was ever received by James K. Crockett in his lifetime. It appears that in the course of the business of the order, it was customary and perhaps required that a notice should be issued on the first of each month of the assessments payable upon the twenty-eighth of the month, and a notice, as averred in the answer, was issued upon August 1, 1900, calling for the payment of assessments Nos. 28 and 29, payable August 28, 1900, and another notice was issued upon September 1, 1900, calling for assessment No. 30, payable September 28, 1900; Mr. Crockett having died upon September 23, 1900, the notice of September 1, 1900, was the last one issued before his decease. According to the testimony of his wife, the notice of September 1, 1900, was found among his paper after his decease. The notice of August 1, 1900, was not found there, and she seems to have had no knowledge of it. The testimony shows that Mr. Crockett was rather lax and dilatory about paying his assessments; that he had not been in the habit of paying promptly; that he had paid some days after the time fixed for payment, to-wit, the twenty-eighth of the month, on a great many occasions during the continuance of his membership in the order. Among the laws of the order, printed in a little book containing the revised constitution and laws of the order introdueed in evidence, Section 11, appearing at page 77 of this book, are the provisions:

“All assessments must be paid on or before the twenty-eighth day of the month, and any member failing to pay the assessment by midnight of the date for which the assessment is called, becomes thereby ipso facto suspended from all benefits of the beneficiary fund of the order.” * * *

Section 12 on page 78 provides:

“Members who become suspended for the non-payment of dues and assessments may be reinstated upon compliance with all of the following conditions, and not otherwise, to-wit: By the payment of all arrears for which they become suspended, and all dues and assessments which have subsequently become payable, and upon the consent of a majority of the members of the commandery to which the said suspended member or members belong. Provided also, that no reinstatement shall take effect until the supreme treasurer’s receipt for the arrears has been received by the commandery, and a notice thereof received by the supreme scribe. Members who are suspended for a period of one month and less than three months shall be required also before being reinstated to sign a certificate of good health, in form as follows:
“To the Supreme Commandery of the Order of the Bed Cross and Knights of the Bed Cross:
“I, -, to whom was issued beneficiary certificate No.--as member of-commandery-----■ ——, having been suspended from all rights, benefits and privileges of the order by reason of---, and desiring to be reinstated in the order, do hereby certify that I am at this date in sound bodily health, and I agree that my reinstatement shall be valid and binding only upon condition that this statement is true in every particular.
“Signed-------
“Attest Hall of------, Commandery No. —--
“This is to certify that------was duly reinstated by a vote of this commandery on the night of-18 — .
“----------Scribe.
“Section 13. Members suspended from the beneficiary fund of the order for a term exceeding three months, shall again be obliged to undergo a medical examination upon the prescribed form of the order, which must be approved by the supreme medical examiner. They shall then receive a new beneficiary certificate, and be in every way received as a new member.”

It appears that Mr. Crockett had never been in arrears for as much as thirty days, and that by paying his arrearage in each instance to the treasurer of the local commandery, he was regarded and treated as reinstated; and that seems to have been the universal practice so far as this local commandery was concerned. If a member was not as much as thirty days in arrears, all that was required was that he pay his arrearage; thereupon he was restored to good standing. The provision that the suspended member must pay all dues and assessments, and also obtain the consent of a majority of the members of the commandery to which he belonged, must be construed in the light of this custom, and the construction, in view of this practice, that we give to this provision is, that the member -obtains the consent of the membership of the local commandery to his reinstatement by paying his dues and assessments within thirty days to the treasurer, and no formal action of the body denominated the local commandery, in session, is required. It will be observed that the assessment in question being payable upon August 28, 1900, and Mr. Crockett having died upon September 23, 1900, he was not more than thirty days in arrears at the time of his decease, and that he was in position to have become fully reinstated merely upon the payment of the double assessment of August to the treasurer of the local commandery, even if he had been duly served with notice of the August assessments.

It appears from the evidence that Mr. Crockett, during the month before his decease, had expressed some dissatisfaction with the treatment he had received at the hands of the order, and some dissatisfaction with these double assessments that had been coming in from time to time, “double headers,” as he called them; that when they came in at the rate of two per month, he seemed to think they were too much of a burden, and he expressed dissatisfaction and an intention to quit the order and not pay any more. This mere expression of a purpose to quit the order, while proper evidence in the ease on certain issues presented, would not of itself deprive him or the beneficiary of the rights they might have under the certificate.

The real questions in this case, and the only important questions, as we view it, are, first, the question of fact whether Mr. Crockett received the notice of August 1, 1900; and second, the question of law whether the actual receipt of the notice by him was necessary in order to place him in default, so that he might be deprived of the benefits accruing to a member. I will first discuss the question of law that I have mentioned as being involved. Section 77 of the constitution, appearing at page 55 of this book, provides the method of service of notice through subordinate commanderies until an official journal shall be published, and that thereafter:

“Assessment notices shall be printed therein and a copy of. said journal sent direct from the office of publication to each beneficiary member of the order, which shall be in every way a legal notice of assessments, and no other notice shall be given to members.”

To the same effect is Section 10 of the laws, appearing at pages 76 and 77 of the boob of laws. Now it appears that after this provision was adopted as part of the law of the order, an official organ of the order was published, and that thereafter that official organ containing notices of the assessments was sent out to the members, and that that was the only mode of service of notice of the assessments. It will be observed that this law does not state how this official organ is to be sent out, or by whom; that is not provided for; but it is provided that” it is to be sent direct to the member. A construction of this provision that would make the simple mailing of the notice without evidence of its receipt by the member sufficient to put him in default, so that his rights as a member would be ipso facto suspended or terminated, would not be consistent with the general principles governing notices as a predicate of a forfeiture, and would not be favored by the law. Such notice could not well be regarded as being sent direct to the member, if it had been merely started on its way toward him through the mails as second class matter; and the course pursued by this order seems to have been to mail this official paper of the order to the members as second class matter. A provision of the constitution, preceding this as to the sending out of the official organ of the order, requires that the financier of the local organization “shall notify all members of the assessments and when in arrears for dues.” The provision in the by-laws as to the form of the notice is as follows, Section 10, page 76:

“Whenever the supreme scribe forwards notices of assessments to the subordinate commanderies, the scribe thereof shall impress the seal of the eommandery on said notices and deliver them to the financier for distribution, at the same time notifying the supreme scribe of the date of such delivery.”

This provision of the constitution as to the financier notifying the members, we have no doubt requires actual notice to the members, and we can not believe that the mere mailing of the official paper of the order when it was published was intended to be a substitute for the actual notice to the member. We think rather that while the method of notification was to be changed, the very gist and spirit of the provision that the members were to be notified was not affected by the adoption of this new method.

A resolution was subsequently adopted by the order with respect to the manner of serving notices, which was to take effect after July 1, 1899, and we think that this resolution is to be regarded as part of the law of the order in force upon that subject at the time this notice of August 1, 1900, was sent out and thenceforward; therefore it is applicable to the case in hand. Thereafter notice through the Gazette, the official organ, was not requisite or proper. The resolution is as follows:

“Resolved, That the Gazette be discontinued and assessment notices be mailed direct to each member of the order in folder form by the supreme scribe, commencing July 1, 1899.”

The folder was to be thereafter sent out as a substitute for the notice provided for in the Gazette. While the provision was not clear as to how the official organ was to be sent out, or by whom, this resolution provides explicitly that the folder is to be sent out by the supreme scribe and is to be sent by mail. Whether this provision was intended to be regarded by the order as the only notice to be sent out — whether no other notice was to be given to a member is not clear. It seems to •us that the laws of the order are hardly capable fairly of a construction that this folder notice is to be the only notice to be sent to a member; that the mailing of such a notice is to answer all the purposes of a legal and valid notification to the member of his assessments. We are rather of the opinion that after the adoption of this resolution the provision that the financier of the subordinate commandery should notify the members of assessments by the distribution to them personally of notices under seal was revived, and that the folder notice to be mailed by the supreme scribe was an additional notice, not dispensing with the actual notice that is to be given by the financier of the subordinate commandery. I say that is our construction of the laws after the adoption of this resolution. That is our view of the effect of the adoption of that resolution. But the order seems to have acted upon the other theory of construction, namely, that the folder notice sent out by the supreme scribe was to fulfill all the requirements of a notice. Assuming that the construction put upon this resolution by the order is the true construction, adopting that construction for the purpose of this case, though not giving it our full approval, we adopt and apply to such folder notice what we have said with respect to the notice in the official organ sent to the member, to-wit, that the mere mailing thereof addressed to the member can not be deemed a compliance with the requirement of the law that the member shall be actually notified of the assessment before he can be considered as in default and his rights as a member suspended, forfeited and terminated. We have no doubt but the order might lawfully provide that a notice thus mailed to members should be sufficient to put them in default, though they failed to receive it; but we believe the courts do not and will not so construe a provision for notice in a case of this character unless the language is so clear to that effect as to admit of no other reasonable construction.

I will now call attention to a few authorities upon this question. We had before us recently the ease of Hayes v. Yost, in which was involved the question of how a notice provided for by Section 2807, Revised Statutes, with respect to equalizing boards and their transactions, where they are authorized to raise the valuation upon property for purposes of taxation, must be served upon the owners thereof. The provision then under consideration is to the effect that such addition shall not be made to such lists returned, without the board having first given reasonable notice to the owner of the property to be revalued. The board in that instance mailed a notice to Mr. Hayes. It did not appear that he had received the notice mailed. It was insisted in behalf of the taxing officers that the mailing of the notice was sufficient. Judge Haynes, in the course of his opinion, had this to say upon the subject, page 25:

“The statute provides that the party shall be given reasonable notice. He is to have a notice that is reasonable, notice as to the time and place, so he may have an opportunity to appear. Notice is to be given to him. The court below found that a notice put in the post office directed to him was sufficient. We are unable to agree with the court in that respect, because we find decisions of the Supreme Court of this state and other courts that lead us to an opposite conclusion. And because, in reason, if he is to have notice, it should be given to him in person, served upon him, so that the board, before it acts, may know that he has received it and that it has jurisdiction over him.
“In the case of Moore v. Given, 39 Ohio St., 661, the second syllabus says:
“ ‘Where a statute requires notice of a proceeding, but is silent concerning its form or manner of service, actual notice will alone satisfy such requirements.’ ”

Now that is the law upon the subject of a statutory notice. But we have authorities directly in point upon the question of notices of the kind provided for in the laws of this order. I call attention to the case of Castner v. Insurance Co., 15 N. W. Rep., 452 (50 Mich., 273). It is said in the syllabus:

“The charter of a mutual insurance company provided that members should be notified of assessments by circular or verbally, and that if they did not pay within a fixed time they would forfeit protection through their policy. Meld: That such a personal liability could not attach from merely mailing the notice if it was not actually received.”

The question is discussed at page 454, where the court say:

“As to the second point, was the fact of mailing the paper which contained the information for the member sufficient of itself to constitute the notification required by the charter? The proposition here is that it makes no difference whether the member ever gets knowledge of the assessment upon him of not, provided notice of it is regularly mailed to him, and therefore the contention is to be viewed on the assumption that he does not get it. The language of the charter is that the member is to be ‘notified by the secretary or otherwise, either by circular or a verbal notice’ (Section 16). The consequences to flow from this notification are admitted to be important.
“A fixed personal liability is to depend upon it; and, further, in case of failure to respond by payment of the sum assessed as communicated by the ‘notice’ during a given number of days, the member is to stand unprotected by his policy and wholly without remedy or redress in case of loss. In principle it is not so easy to distinguish the nature of the required notification from the office and object of service of process, and there would seem to be as much reason for real notice in the case in question as in the case of an action. The destruction of a mail, or accidents preventing the delivery of matter, or even a considerable delay, might at any time, without fault of the persons insured, eventuate in widespread loss and injustice.
“No construction, open to so much objection, should be admitted, unless rendered necessary by the terms of the charter; and they do not require it. On the contrary, they contemplate that the members shall have real information of the assessment. The provision is not that notice or information shall be mailed or sent or forwarded. The members are to be ‘notified’ — that is, informed; to have made known to them the fact of the assessment; and this is permitted to be done either by oral statements to the members or by delivery to them of written statements through the agency of the post office or some other. It follows that the second ground of defense can not be supported. ’ ’

Also in the case of Wachtel v. Widows & Orphans’ Soc., 84 N. Y., 28 (38 Am. Rep., 478). Also to the case of McCorkle v. Benevolent Assn., 71 Tex., 149 (8 S. W. Rep., 516). I will read part of the syllabus in that ease:

“The by-laws of the T. B. A. required that notice of its assessments shall be sent to each member and that ‘any person who shall fall in arrears for dues or contributions, after thirty days notice, shall cease to be in good standing and shall forfeit all rights and claims to any and all benefits of the association.’ It was the custom of the officer charged with the duty to mail such notice to each member. Held: That a reasonable construction of the by-laws required that notice be in fact given to a member before a forfeiture would result from a failure to pay dues, etc., and that mailing to a member through the post office was not such notice.”

We therefore conclude that it devolved upon the order in this case to aver and establish by a preponderance of the evidence, at least, that the folder notice of assessment falling due August 28, 1900, was not merely mailed to James K. Crockett, but that he actually received a copy thereof. I have already called attention to the fact that the answer fails to aver that he received a copy, and, in our opinion, it was, therefore, so far as that defense is concerned, open to a general demurrer. But because of the averment in the reply to which I have called attention, and because of the manner in which the case has been tried and presented, we proceeded to consider this defense upon the facts. Now the evidence that this notice was ever actually mailed is not clear nor satisfactory. The supreme scribe, by whom the notice is to be mailed, says that as a rule he did not mail these notices; that he did not address the envelopes containing the notices, but that was done by a secretary or employe in his office. He can not tell whether this notice was actually mailed to Mr. Crockett; he has no recollection or knowledge upon the subject; and the employe in his office is not called upon to testify.

But it is urged on behalf of the association that Mr. Crockett must have received this notice, because in a certain conversation he spoke of the August assessments, the “double headers.” It is said that he spoke particularly of these August assessments in a conversation with Mr. Lee, the scribe of the local commandery, but a few days before his death, complaining of the “double header,” declaring that he would not pay any more assessments, and saying to Mr. Lee that he might strike his name from the roll of membership. It is doubtless true that Mr. Crockett had knowledge of the August assessments. How he obtained this knowledge, we are not advised. He might have oeen apprised of the fact in various ways. But we hold that it devolves upon the order to show that he was served with this folder notice, or that he received it, in order to pnt him in default; and the fact that the making of such an assessment had come to his knowledge in a roundabout way is not sufficient basis upon which to predicate a forfeiture of his rights and interests in the society.

Mr. Lee testifies that during this conversation Crockett had a paper in his hand, and that in speaking of the “double header” for August, he flourished a paper, or called attention to a paper and wanted to know if the assessments mentioned there or spoken of there were correct; if it was true that such assessment had been made for August. Mr. Lee does not pretend that he examined this paper. lie does not say that he had it in his hands, lie does not say that it was one of these printed blank or folder notices. If it were a printed blank notice of the kind that Crockett had been in the habit of receiving, it is hard to understand why he should have made any such inquiry of Mr. Lee, because the notice upon its face is perfectly clear. He had been in the habit of receiving such notices for a long time, and he would have understood as fully and perfectly as Mr. Lee did what was stated therein, and that it called for the payment of a double assessment on August 28. It may have been a mere memorandum made by somebody else, or by himself, of the fact that there was a double assessment for August.

The mother of Mr. Lee, who was present part of the time on the same occasion, also says that Mr. Crockett, at the time he was speaking of the assessment, held a paper in his hand. But she does not attempt to describe the paper. It is very significant that upon the trial of this case in the court of common pleas, neither Mr. Lee nor his mother made any reference whatever to this paper or to any paper having been in the possession of or having been shown by Mr. Crockett upon that occasion.

But laying that aside, we are not satisfied by the testimony of Mr. Lee or his mother, or by any other evidence in the case, that Mr. Crockett had come into possession of a notice of these August assessments, such as the supreme scribe was required to send out, and that therefore he did not have the actual notice emanating from the order that is required to put him in default so that his rights might be forfeited.

James M. and Walter F. Brown, for plaintiff.

Roy Spencer, for defendant.

A few 'days after this interview with Mr. Lee, Mr. Crockett, who was a very old man, suffered a severe injury, lingered along in misery for a few days, and then died.

Some interesting questions are presented and discussed as to whether there was not a waiver of any default upon the part of Mr. Crockett by certain conduct upon the part of the local organization; as to whether thé organization as a whole is not estopped by certain misleading statements made to one who undertook to pay these assessments on behalf of Mr. Crockett or on behalf of the beneficiary. But we deem is unnecessary to discuss these questions. It is sufficient that we have found that Mr. Crockett never received the actual notice which put him in default; and therefore we find that the plaintiff is entitled to the relief prayed for in the petition, and judgment will be entered accordingly.


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    ORDER TO VACATE LEASED PREMISES NOT AN EVICTION.
    [Circuit Court of Cuyahoga County.]
    Samuel Greenberg v. Timothy Murphy.
    Decided, June 20, 1904.

      Landlord and Tenant — Notice to Vacate on Pain of Eviction — Not an Eviction, Where the Lease Has Not Expired.

    Before the expiration of the term under a lease, a landlord served upon his tenant a notice in writing to vacate the demised premises within three days, or legal measures would he taken to obtain possession, and the tenant thereupon moved out without protest— Held: No eviction.
    Winch, J.; Hale, J., and Marvin, J., concur.
    Error to the court of common pleas.
   The error complained of in this case is the action of the trial court in sustaining a general demurrer to the amended petition. Said amended petition reads as follows:

“Now comes the plaintiff and by leave of the court first had and obtained, files this,, his amended petition herein, and for his cause of action says that prior to and upon the first day of September, 1903, and while the said plaintiff was a tenant of the said defendant and was occupying the premises hereinafter mentioned and described, the said defendant, for a valuable consideration, agreed to and with the said plaintiff that he would further lease and let to the said plaintiff the said premises then being occupied by plaintiff, and which premises have been so occupied by the plaintiff for two years prior thereto, for a further term of one year after the expiration of the then term under which the plaintiff was then occupying the said premises, to-wit, No. 2336 Broadway, in the city of Cleveland, Ohio. That in pursuance, and as a result of such promise and agreement so made by said defendant with said plaintiff as aforesaid, the plaintiff relying thereon that he would have the said premises above described for another year, incurred expenses by way of repairs upon the said property, such as plumbing, paper hanging, etc., to the extent and cost of two hundred ($200) dollars.
“The plaintiff further says that upon the first day of September, 1903, the said defendant, in pursuance of the contract and agreement and promises so made as aforesaid, entered into a written lease or agreement to make a lease to the plaintiff for the occupancy of said property above described, and was to receive from the said plaintiff as rental for the said property the sum of four hundred and forty-four ($444) dollars per year, which sum of $444 was to be paid in installments of $37 per month in advance, and an additional sum of $1 per month for water rent.
“That the plaintiff performed all of the obligations on his part to be performed, but that the defendant, disregarding his obligations and agreements so made as aforesaid, did, upon and about September 10, 1903, cut certain water pipes then connected with a certain watering-trough in front of plaintiff’s place of business, which had been erected and constructed by plaintiff, and was being used in connection with the carrying on and transaction of the plaintiff’s business, thus causing a great inconvenience to plaintiff’s customers and damage to said plaintiff.
“The defendant further says upon the 28th day of September, 1903, defendant notified this plaintiff in writing that the plaintiff’s tenancy of the premises above described and known as 2336 Broadway, must and would cease on September 30, 1903, at which time the said defendant would take possession of the said premises, and further served an additional notice in writing upon plaintiff to vacate the said building and lot of land within three days, or legal measures would be taken by said defendant to obtain possession thereof.
“Wherefore said plaintiff immediately, or as soon thereafter as was possible, secured another place and vacated the said premises in accordance with the said notices. Plaintiff was compelled to pay additional rent for a place in which to continue and carry on his business, and by reason of the action on the part of said defendant in so refusing to carry out and perform his part of said agreement and to execute said lease as aforesaid and allow said plaintiff to remain in peaceable possession of the said premises as theretofore agreed upon, said plaintiff was damaged to the extent of $1,500.
“"Wherefore, the plaintiff prays judgment against defendant for damage so sustained by him in the sum of fiften hundred dollars ($1,500).”

It will be noticed that this pleading does not definitely state when the original two years’ lease ended and when the new term was to begin, but we take it that the old lease ended August 31, 1903, and that plaintiff was in possession on September 10 when the water pipes were cut and thereafter and until he moved out, under what he claims was a new “written lease or agreement to make a lease.”

No copy of this writing is attached to the pleading and as to the premises demised, all we know is that they were No. 2336 Broadway, in the city of Cleveland.

Whether the water pipes connected with a certain watering trough in front of plaintiff’s place of business which defendant cut were appurtenant to said premises and whether defendant violated any of the covenants of said alleged lease by cutting them we are unable to say.

The only other wrongful act of the defendant complained of is that he notified the plaintiff that the tenancy must cease and served three days’ written notice to quit, or legal measures would be taken to obtain possession of the premises.

If this conduct of the defendant amounted to an eviction, the amended petition states a good cause of action; if not, the demurrer was properly sustained, for if the plaintiff voluntarily complied with, the defendant’s request and moved out without protest, he has no ground of complaint.

McAdam, in his work on Landlord and Tenant, gives the rules as to eviction as follows:

“The .test as to eviction is whether the tenant has been deprived of the beneficial enjoyment of the estate, or a portion of it, by the wrongful act of the landlord.” McAdam on Landlord and Tenant, Volume 2, Section 418.
“The wrongful acts of a lessor do not, in law, amount to an eviction, where there is neither an actual nor a constructive expulsion of the lessee from any portion of the demised premises. ’ ’ McAdam on Landlord and Tenant, Volume 2, Section 418, page 1335.
“To work a suspension of the obligations of the tenant, under the lease, while his rights under it remain in full force, there must he cm exclusion of the occupant from some portion of the premises demised or a substantial and effectual deprivation of the beneficial enjoyment of the property, in whole or in part. Any of the following acts will constitute an eviction, viz.: Preventing the tenant from occupying the premises by any act of the lessor or by one having paramount title; a recovery of judgment in ejectment by the owner of a paramount title; an injunction by the lessor against the use of the premises; a judgment of eviction in his favor.” McAdam on Landlord and Tenant, Volume 2, Section 407.

The text is supported by numerous authorities and illustrations of the application of the above principles, but none of the cases cited contain the proposition that a right of action arises in favor of a tenant as for an eviction or breach of the lease contract upon a mere demand by the landlord of possession and the voluntary surrender thereof by the tenant.

Nothing more than this is alleged in the petition; the landlord demanded possession and demanded it in writing; he said he would begin legal proceedings to recover possession if the tenant did not comply with the demand. It is not alleged that he did begin legal proceedings or do anything else showing his intention to evict the tenant. If the tenant was rightfully in possession and entitled to remain, he should have awaited the legal proceedings that were threatened and made his defense thereto, rather than to have complied with the demand, as he did, and then bring his action for alleged damages which perhaps never would have resulted.

The cases cited by plaintiff to sustain the sufficiency of the petition are most of them illustrations of the rule that an action for rent will not lie in favor of the landlord where the tenant leaves the premises as the result of some action on the part of the landlord evidencing his desire to terminate the lease. They have no application to a case like this where the tenant seeks to found a right of action upon the wrongful acts of the landlord. Such eases hold that a rescission of the contract of lease is worked by the acts of the landlord showing such intention and the consent of the tenant thereto. This suggestion also disposes of the contention of plaintiff that eviction is a matter of intention, and as the intention must be gathered from acts, the question of intention must be left to the jury. In this case there is no allegation of .any facts which can possibly be construed as amounting to an eviction, and therefore nothing to submit to a jury for its determination upon the subject.

We are cited to the case of Tarpy v. Blume, 101 Iowa, 469, as sustaining the proposition that serving a notice to quit amounts to a wrongful eviction. The syllabus of that case reads as follows:

“Actual force is not essential to a wrongful eviction of a tenant by his landlord, but such eviction may be effected by the serving of a notice to quit within a specified time prior to the expiration of the period for which the tenant is entitled to possession, the moving of property into the buildings without the tenant’s consent and the latter’s leaving the premises in consequence thereof.”

It is evident that the decision of this case turned on the fact that the landlord took possession of the buildings on the demised premises without the tenant’s consent, and not on the notice to quit. On page 471 of the opinion, Judge Given distinguishes the case from the case of Wright v. Everett, 87 Iowa, 697, and says:

“In that, the landlord entered without objection, while in this, it was against the protest of the plaintiff.”

J. F. Clark, for plaintiff in error.

Scott & Parks, for defendant in error.

In tbe latter ease there was only a notice to quit and entry by the landlord without protest from the tenant, who soon thereafter quit, and the court held “that the possession taken by the lessor was not wrongful and that the lessee was not entitled to damages therefor.”

The latter case, and not the former, is in point and should be followed in determining the case at bar. There is no allegation in the petition that plaintiff protested against leaving the premises; his voluntary compliance with the notice to quit determined his rights and put them at an end.

The demurrer was properly sustained and the judgment is affirmed.


text:
    BILLS OF EXCEPTIONS.
    [Circuit Court of Crawford County.]
    A. Strauck v. Massillon Stoneware Co.
    Decided, January Term, 1904.

      Bills of Exceptions — Errors Must Appear Upon the Record — Order Making Bill Part of the Record Necessary — Signature of Trial Judge and Proper Filing of, not Sufficient — Office of Motion to Strike Bill from the Files — Original Papers Which are a Part of the Record — Jurisdiction.
    1. The circuit court has jurisdiction under Section 6709 to review, vacate or modify a judgment of the common pleas court only for errors appearing upon the record.
    2. The warrant for filing original papers in the circuit court extends only to such papers as are a part of the record in the court below. Original papers which were not properly a part of the files in the court below, are not properly made part of the record there, and are not necessarily nor properly a part of the files of the circuit court; and a motion to strike a bill of exceptions from the files of the circuit court does not involve the question whether the bill was a proper file in the common pleas, but whether the bill was and is a proper part of the record in that court

      3. Tbe mere filing of a bill of exceptions in tbe circuit court does not make it a part of tbe record nor can an order of court making it a part of tbe record be presumed from tbe fact that it was allowed, settled and signed by tbe trial judge.
    4. Section 5302, Revised Statutes, as amended October 22, 1902, does not dispense with tbe necessity of an entry by tbe trial court making tbe bill a part of tbe record.
    Mooney, J.; Day, J., concurs; and Norris, J., dissents.
    Error to Crawford Common Pleas Court.
   In the original action the parties were reversed. The action was commenced in the justice of the peace court; was appealed to the court of common pleas; issues were made by the pleadings; the action was tried to a jury; a verdict returned for plaintiff; defendant’s motion for a new trial was overruled, one ground of the motion being that the verdict is not sustained by sufficient evidence. Defendant duly excepted; judgment for plaintiff was entered on the verdict; defendant duly prepared his bill of exceptions and filed the same; a proper entry of the date was made on the appearance docket; the bill was afterwards settled, allowed and signed by the trial judge.

The defendant afterwards, as plaintiff in error, commenced this proceeding in error to reverse the judgment of the common pleas. All the errors assigned are predicated upon the bill of exceptions. The record shows no order of the trial court making the bill of exceptions a part of the record and for want of such order, defendant in error here moves that the bill of exceptions be stricken from the files of this court.

It is doing no violence to the facts in this ease to say that this motion and its proper determination have occasioned the court a very great amount of trouble. This has been increased by reason of the fact that upon critical examination we have arrived at a conclusion at variance with our preconceived notions of the law upon the subject under consideration. However, the only province of this court is to declare the law as it finds it, leaving the work of legislation to the General Assembly and all other changes of the law to the Supreme Court. By Section 6709, Revised Statutes, this court has jurisdiction to review, vacate or modify a judgment of the court of common pleas only for errors appearing upon the record. By Section 5334. Revised Statutes, the record is required to be made up from the petition, the process, the return, pleadings subsequent thereto, reports, verdicts, orders, judgments and all material acts and proceedings of the court, and “the bill of exceptions shall be filed with the pleadings and papers, but not recorded, unless the court for good reasons shall so order. ’ ’

By Section 6716, Revised Statutes, the plaintiff in error “shall file with his petition either a transcript of the final record, or a transcript of the docket or jourmal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of; and, if original papers and pleadings are filed, and the final record has not been made, the reviewing court may permit the temporary withdrawal of the originals for a reasonable time, to allow the recording thereof.” From this provision it is held that the only necessity, as indeed the only warrant to file original papers in this court, extends to such original papers as are part of the record in the court below, and that such original papers as are properly a part of the files in that court, but are not properly a part of the record there, are not necessarily nor properly a part of the files in this court. A motion to strike the bill of exceptions from the files therefore does not involve the question whether the bill was a proper file in the court of common pleas, but does involve the question whether the bill was and is a proper part of the record in that court.

No one will doubt that prior to the act of October 22, 1902 (96 O. L., 17), a bill of exceptions, though duly settled, allowed and signed by the trial judge or judges and filed in the cause, did not become a part of the record proper to be considered by a reviewing court in proceedings in error, without an order of the court making the bill a part of the record. Prior to that act it was required that the journal, by proper entry, should show (1) either by direct affirmative statement or by presumption arising from the journal entry, that the bill was duty settled, allowed and signed by the trial judge or judges; and (2) that the court order the bill to be made a part of the record (Felch v. Hodgman, 62 Ohio St., 312, and Riverside Rubber Co. v. Manufacturing Co., 63 Ohio St., 66). In this latter case the first paragraph of the syllabus is:

“In order to entitle a bill of exceptions to be considered by a reviewing court, it must be shown by a proper journal entry that the bill was ordered made a part of the record.”

The case was one arising in 1897 when Section 5334, Revised Statutes, defining what the record shall contain, was in its present form, and when Section 5302, Revised Statutes, provided that:

“The bill of exceptions shall be filed with the pleadings, and, if the party filing the same request it, made a part of the records, but not spread upon the journal; and an entry of the allowance and signing of the same must be entered upon the journal of the court within the time fixed for such allowance and signing.” (89 O. L., 125.)

It will be noted that the sections contain no express requirement that the entry making the bill a part of the record shall be made upon the journal. The provision that the bill shall become a part of the record if the party requests it does not, of itself, require an entry to show such request (Smith v. Board of Education, 27 Ohio St., 44). If the mere filing, after allowance and signing, made the bill in fact part of the record, the request would be presumed. It follows, therefore, that the Supreme Court has determined, in view of the provisions of Section 5334, Revised Statutes, as it now exists, and of Section 5302, Revised Statutes, as it existed prior to October 22, 1902, and when the latter section expressly required an order of the allowance and signing of the bill and was silent as to the necessity of an entry ordering the bill to be made a part of the record, that, nevertheless, the bill did not become a part of the record, for purposes of review without an express order of the trial court making it so. In this state of the law the amended Section 5302, Revised Statutes, was passed on October 22, 1902, and is as follows:

“It shall not be necessary to cause an entry to be made upon the journal of the court of the settling, allowance and signing of any bill of exceptions; but the signature of the trial judge, or other judge mentioned in Section 5301a allowing, settling and signing such bill, shall be sufficient evidence of such fact.”

Harris & Sears, for plaintiff in error.

Finley & Gallinger, for defendant in error.

Neither this nor any other amended section expressly dispenses with any other entry relating to bills of exceptions, nor is there now any express requirement of an entry showing an order by the trial court to make the bill a part of the record.

It seems to follow necessarily that if the filing of the bill, after its due signing and allowance and with the necessary entry to show such signing, allowance and filing, did not make the bill a part of the record before the amendment, the filing of the bill with the signature of the judge, instead of the entry, as sufficient evidence of the fact of allowance, settling and signing, since the amendment will not have that effect. A bill of exceptions since, as well as before the amendment, does not, upon filing by mere force of either Sections 5334 or 5302, Revised Statutes, become a part of the record, and so, under the former section, it requires something more than filing, after settling, allowance and signing, to-wit, an order, which, for the purpose, would become and be “a material act and proceeding of the court to make it so,” and of course, all orders and material acts and proceedings of the trial court must be evidenced here by a proper transcript of the journal, unless the statute expressly makes some other showing of such fact sufficient evidence of it. While in Fetch v. Hodgman, 62 Ohio St., 312, a presumption of due allowance and signing by the trial judge was indulged from the subsequent action of the court in ordering the bill to be made a part of the record, in this case it can not be presumed, from the fact of the prior allowance and signing of the bill, that the trial court subsequently ordered the bill to be made a part of the record.

We feel that, on the authorities, we are compelled to sustain the motion and strike the bill from the files here, and we declare that this action is taken only with extreme reluctance.

The pleading sustain the judgment, and the bill of exceptions being disregarded, we find no error in the record and. the judgment is therefore affirmed.


text:
    JURISDICTION OF PRESIDENT PRO TEM OF COUNCIL ACTING AS MAYOR..
    [Circuit Court of Belmont County.]
    The State of Ohio v. William T. Hance.
    Decided, June Term, 1904.

      Criminal Law — Procedure under Beal Law Prosecution — Mayor Accused of Bias — President Pro Tern of Council Assigned to Try the Case — Held to Have Had no Jurisdiction.

    1. The president pro tern of a village council as acting mayor, under Section 1536-854 of the Revised Statutes, has no jurisdiction to hear and determine a misdemeanor.
    2. The circuit court has no jurisdiction to hear a petition in error filed by the state in a criminal case to reverse the judgment of the court of common pleas, discharging the accused.
    Cook, J.; Laubie, J., and Burrows, J., concur.
    Error to the Court of Common Pleas of Belmont County.
   An affidavit was filed before the mayor of the village of Barnesville charging the defendant in error, William T. Hance, with unlawfully furnishing intoxicating liquors to a party named in the affidavit within the village of Barnesville, where such furnishing was prohibited under the provisions of the statutes known as the Beal Act. When the accused was arraigned, he objected to being tried before the mayor, for the reason that the mayor was biased and prejudiced; that he had been an eye-witness to the transaction, upon which the state relied for conviction, and had expressed an opinion from such personal observation of the transaction that the accused was guilty. Thereupon the mayor, considering himself disqualified, transferred all the papers in the case to the president pro tern of the council of the village, with instructions to hear and determine the ease. When the case came on for trial before the president pro tern of the council, the accused objected in due form to his proceeding in the case, for the reason that he had no jurisdetion in the matter. This objection was overruled, to which the accused excepted; and in order to save the expense of a trial, he entered a plea of guilty, and was fined seventy-five dollars and costs. The accused then filed a petition in error in the court of comon pleas to reverse the judgment, assigning as cause for such reversal that the president pro tern of the council had no jurisdiction of the case. The court of common pleas, on this ground, reversed the judgment and discharged the accused. The state now prosecutes error in this court to reverse' the judgment of the common pleas court.

The sole question is: Had the president pro tern of the council jurisdiction to hear and determine the case upon a plea of guilty! It is claimed he had; and, in support of this claim, Section 1536-854 of the revised statutes is invoked. That section, after providing for the election,. term, qualifications and duties of the mayor, in the second paragraph provides as follows:

“When the mayor is absent from the village, or is unable from any cause to perform his duties, the president pro tern of council shall be acting mayor. In case of the death, resignation or removal of the mayor, the president pro tern of council shall become the mayor. and serve for the unexpired term, and until the sucessor is elected and qualified; and the vacancy thus created in council shall be filled as other vacancies therein, and council shall elect another president pro tern from their own number, who shall have the same rights, powers and duties as his predecessor.”

Does this provision of the statute clothe the president pro tern of council with authority to hear and determine a case of this character! The affidavit charges a misdemeanor, and Section 1536-876 provides that the mayor of an incorporated village shall have final jurisdiction to hear and determine any prosecution for a misdemeanor, unless the accused is, by the Constitution, entitled to a trial by jury; and his jurisdiction in such eases shall be co-extensive with the county. This was a prosecution in which the accused was not, under the Constitution, entitled to demand a trial by jury; therefore, the mayor would have final jurisdiction; and it is insisted that the president pro tern of the council, as acting mayor, would have the same jurisdiction as the mayor.

It will be observed that Section 1536-854 is found in chapter 2, which provides for the executive powers and duties of the officers of the village; and the first part of the section sets forth such duties of the mayor as are primarily ministerial.' Chapter 3 provides for the judicial powers of the mayor and police courts; and in that chapter we find no provision that the president of council, as acting mayor, shall possess any judicial powers whatever. Mayors and justices of the peace are elected by the people, for the purpose of exercising judicial functions to a certain extent. Presidents pro tern of councils are not elected by the people, but appointed by council to perform certain specified duties. The judicial powers of justices of the peace to hear and determine criminal prosecutions, with jurisdiction co-extensive with the county, is a high prerogative; and we do not think a member of council, who was not elected with any expectation that he would perform such important judicial functions, should be held to be clothed with such power, unless the statute expressly so provides; and that all that was intended by the provision was that, in the absence of the mayor from the village, or his inability for any cause to perform his duties, the president pro tern of council should then be acting mayor and discharge the ministerial duties of that office.

In Sections 1536-773a, it is provided that “in cities having no police judge, in the absence, or during the disability of the mayor, he may designate a justice of the peace to perform his duties in criminal maters, which justice shall, during the time, have the same power and authority as the mayor.” We are not prepared to say, as claimed by counsel, that this provision applies to villages. This provision, however, should have some effect in construing the section under consideration. The president pro tern of council of cities has the same powers as in villages when the mayor is disoualified from acting. The provisions as to cities and villages are very similar (Section 1536-664). Why, then should the mayor of a city be required to call in a justice of the peace, in a city having no police judge, to perform his duties in criminal cases? The president pro tern of council could perform the duties as well in cities as in villages, but in cities he is deprived of’ that power. From these considerations we are persuaded that the president pro tem of a council of a village has not jurisdiction to hear and determine a prosecution for a misdemeanor.

Smith & Howard, for plaintiff in error.

E. T. Petty, for defendant in error.

This view is strengthened by the decision in case of Logan Branch Bank, Ex parte, 1 O. S., 432. On page 434, Corwin, Judge, says:

“It is not within the competency of the Legislature to clothe with judicial power any officer or person not elected as a judge."

We are not unmindful of the fact that police judges may be appointed by council, and justices of the peace may be appointed by the trustees of the township to fill out unexpired terms, but they are appointed for the express purpose of exercising judicial powers, and by express authority of the General Assembly.

We have said this much for the reason that this was the only question made in the case. However, this was entirely unnecessary, as this court has no jurisdiction in this proceeding in error. The action of the court of common pleas was a complete and final determination of the ease in favor of the accused. It held, as we have said, that the president of council, as acting mayor, had no jurisdiction, and discharged the accused. That ended the case. Error can not be prosecuted by the state from a judgment of the court having jurisdiction of a criminal case where the accused is discharged, in the absence of statutory authority for such proceeding. State v. Simmons, 49 O. S., 305; State v. Bour, 10 C. C. R., 58.

There is no warrant in the statutes for such prosecution of error by the state, and the petition in error will therefore be dismissed for want of jurisdiction in this court, at the costs of plaintiff in error.