author: GORMAN, J.

text:
    PARTNERSHIP.
    [Hamilton (1st) Court of Appeals,
    April 30, 1917.]
    Jones, Gorman and Hamilton, JJ.
    August Herrmann v. E. Bruce Rohn and Charles S. Geisinger et al.
    1. Declaration Denying Partnership Liability Does Not Affect Liability as Such.
    Stipulations in a contract between parties that no partnership relation is to exist between them and that one of the parties is to have the absolute control and management of the business ’ and be liable for the debts do not affect the existence of partnership liability. Wood v. Vailette, 7 Ohio St. 172, followed.
    2. One Lending Money to Conduct Business Without Stipulations as to Repayment of Principal or Interest Liable as Partner.
    One entering into a contract with another, lending him money with no stipulations for repayment or interest, the other agreeing to turn over a percentage of the profits of the business and not to transfer the business without the consent of the former, first giving him the privilege of purchase, actively enga ges in securing credit for the latter and advises persons having dealings with the latter that the former is financially interested, is liable for the debts of the business incurred by the latter.
    3. Admission Against Interest by Persons Denying Partnership Liability.
    In an action against three persons as a partnership upon checks of one of them personally and for money advanced to him as trustee to protect his account as broker, where partnership liability is denied by the other two, an agreement signed shortly before the trial by the two latter providing for payment of any judgment which might he rendered against them and division of the amount of judgment between them and that neither should settle without consent of the other, is admissible in evidence as an admission against interest and a circumstance tending to show that such two felt equally bound, notwithstanding also the contract between the two latter was oral.
    ERROR.

      Cogan, Williams é Ragland, for plaintiffs in error.

      Victor Ueintz, Geoffrey Goldsmith, Froome Morris, Little-ford Hunemeyer, Bayly, Simmons & DeWitt, Charles Case and Carl Lehmann, for defendants in error.
   GORMAN, J.

In the superior court of Cincinnati the defendants in error, Rohn and Geisinger, who were partners in Allentown, Pennsylvania, brought an action against August I-Ierrmann, Louis Werk and Charles E. Bultman, to recover money on four causes of action set out in their petition. The first three causes of action were upon checks issued by C. E. Bultman as trustee, and the fourth cause of action was for moneys advanced to Charles E. Bultman, trustee, to protect said Bultman’s account as a broker. The total amount claimed was $13,703.43.

Upon the trial of the cause below to a jury, a verdict was returned in favor of plaintiffs and against all the defendants in the sum of $10,425.32.

Thereupon August Herrmann prosecuted error to this court and has filed his petition in error herein, and the defendant Louis Werk has filed a cross petition in error, each seeking to reverse and set aside the verdict and judgment which was entered thereon in the superior court. The defendant Charles E. Bultman has not prosecuted error to the judgment.

The claim of plaintiffs was that these three defendants, August Herrmann, Louis Werk and C. E. Bultman, were partners doing business as brokers under the name of C. E. Bultman. A great mass of evidence was heard in the court below, and the cause having been fully considered by the court a motion to set aside the verdict was overruled and judgment entered thereon against all of the defendants.

It is claimed by plaintiff in error Herrmann: first, that there is not sufficient evidence in the record to show that he was a partner of Bultman; second, that the verdict is against the weight of the evidence; and, third, it is claimed that there was error in the admission of evidence and in the charge of the court and the failure to give certain special charges.

An examination of the record satisfies us that there was sufficient evidence to submit this ease to the jury so far as Herr-mann is concerned. As to the defendant in error, Louis Werk, we think that it is established by a preponderance of the evidence that Werk was a partner of Bultman.

It appeared upon the trial that Louis Werk had entered into a written agreement with Charles E. Bultman on or about June 10, 1914, and we think the evidence warranted the jury in finding that Herrmann had entered into a similar contract at the same time with Bultman, although the evidence fails to show that Herrmann’s contract was in writing. This contract in .substance provided that Werk was to loan $10,000 to Bult-man. There was no time stipulated when this money was to be repaid or returned; no.evidence of indebtedness taken; no interest to be paid upon the loan; nor was there any promise whatsoever to repay the money. In the agreement the parties stipulated that they were not to be partners. It was further agreed that Werk was not to be liable for any of the debts of the business, but that the business should be conducted by Bult-man, and that he should have absolute control of the management thereof and be liable for all the debts. It was further stipulated that Bultman was not to transfer his business to any one without first obtaining the consent of Werk; and that Werk should have the first privilege of purchasing the business. It was further stipulated that Werk was to receive fifteen per cent out of the profits of the business. After the business was opened up, both Werk and Herrmann took an active part in securing credit for Bultman and in advising persons who had dealings with Bultman that they were financially interested. Bultman at their request employed a friend of Herrman and Werk, who remained in the office of Bultman and was paid by Bultman, but Avho, as Bultman expressed it, ivas the most expensive piece of bric-a-brac he ever had about the office. This man made reports to Herrmann and to Werk as to the manner in which the business was conducted by Bultman. While the evidence does not disclose that Herrmann ever signed any written agreement such as did Werk, it is in evidence that Herr-mann agreed orally to sign a similar agreement.

Both Herrmann and Werk advanced the amount of money which each agreed to advance, and it can not be doubted, we think,-that the evidence adduced was sufficient to warrant the jury in returning a verdict against both Herrmann and Werk as well as against Bultman.

However this may be, we can not say that the verdict is so manifestly against the weight of the evidence as to require us to set aside the judgment and return the cause to the superior court for a new trial. The trial court heard the evidence, saw the witnesses face to face, observed their demeanor and their conduct. The" jury also had the same opportunity as the trial court. They returned this verdict and the trial court refused to set it aside upon the ground that it was manifestly against the weight of the evidence, or upon the ground that there was insufficient evidence. A reviewing court under such circumstances should hesitate to set aside a verdict and judgment on the ground that the same is against the weight of the evidence.

Notwithstanding the fact that both Herrmann and Werk testified that they did not intend to be partners, and notwithstanding the fact that in Werk’s agreement and in the agreement which Herrmann was to sign' — if he did not sign it — they were not to be partners, the question as to the partnership was not to be determined by their declarations.

It was held in Wood v. Vallette, 7 Ohio St. 172, that notwithstanding the fact that the parties stipulated ‘they were not to be partners, the question as to the partnership was to be determined by the acts and conduct and the agreements of the parties.

The case of Wood v. Vallette, supra, was under consideration in the later case of Harvey v. Childs, 28 Ohio St. 319 [22 Am. Rep. 387], and in that case the court distinguished the ease of Wood v. Vallette from the case that was under consideration. The ease of Harvey v. Childs was a single transaction and not involving a series of transactions or a business enterprise. But the case of Wood v. Vallette was approved in Harvey v. Childs.

It was also held in the case of Cox v. Hickman, 99 E. C. L. 27, decided by the House of Lords, that a partnership could be implied in law by the' acts and conduct of the parties, and the agreements entered into by them, notwithstanding the fact they had stipulated they were not to be partners.

In the case at bar there is no question but that Bultman was authorized to act for Werk and Herrmann. Their agreement was that they were to participate in the profits. The advancement of the money which each, was to make to Bultman does not bear any of the ear-marks of a loan, but has the characteristic indicia of advancements in the business.

As was well said in the case of Beecher v. Busch, 45 Mich. 188, 189 [7 N. W. 785; 40 Am. Rep. 465]:

“It is nevertheless possible for parties to intend no partnership and yet to form one. If they agree upon an arrangement which is a partnership in fact, it is of no importance that they call it something else, or that they even expressly declare that they are not to be partners.”

This statement of the law is in line with the rule laid down in Wood v. Vallette, supra.

It is objected by counsel for Herrmann that a certain agreement entered into between Werk and Herrmann, three days before the case was tried in the court below, was improperly admitted in evidence. This agreement was in writing, signed by Herrmann and Werk, and in substance provided that in the litigation pending against Herrmann and Werk in the superior court of Cincinnati, if a judgment should be rendered against either or both, or it should be necessary to pay any claims in those actions, Herrmann would pay all sums up to $10 000 with interest, that being the amount which Werk had contributed as a loan to Bultman; and for all sums above $10,000 and interest, each of the parties, Herrmann and Werk, would be liable and pay in equal proportions or fifty per cent thereof. The parties further agreed not to settle or compromise any suits or claims involved in said litigation without the consent of the other. Each of the parties agreed to furnish his own attorney to defend the actions and the claims, and to pay one-half of the costs and expenses, if any.

We think this paper was admissible in evidence against both Herrmann and Work, as admissions against interest and circumstances tending to show that they both felt equally bound, each for one-half of any judgment that might be rendered against either.

Upon a careful consideration of the entire case and the record, we have come to the conclusion that there is no error in the record prejudicial to either plaintiff in error or the cross-petitioner in error, Louis Werk. .It appears to us that substantial justice was done by the court and jury in the trial below, and the judgment is therefore affirmed.

Jones and Hamilton, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    EVIDENCE.
    Hamilton (1st) Court of Appeals,
    May 24, 1915.]
    Jones, Jones and Gorman, JJ.
    Cincinnati Trac. Co. v. May Hackett.
    Memorandum Inadmissible Unless Virtually Coincident with Event Extinguished.
    Where the memory of a witness as to an event is extinguished and a memorandum made by the witness is offered as substantive evidence, he testifying to it as correct but recollecting nothing as to its contents, it is inadmissible unless it is shown to be virtually coincident with the event, and this is eminently the case when the concoction is in view of litigation.
    [Syllabus by the court.]
    ERROR.

      Einlcead & Rogers, for plaintiff in error.

      Hackett, Yeatman & Rover, for defendant in error.
   GORMAN, J.

This is a proceeding in error to reverse a judgment of the court of common pleas. The defendant in error, May Hackett, recovered a verdict and judgment against the plaintiff in error, in the court below, for the sum of $750, on account of personal injuries claimed to have been sustained by her on or about November 22, 1908, because of the sudden jerking of a car from which she was alighting as a passenger near Eighth and John streets in Cincinnati.

Two grounds of error are claimed by plaintiff in error in its brief. The first is abandoned because of the decision of the Supreme Court, adverse to its contention on this point, in the case of Brogan v. Cincinnati Trac Co. 91 Ohio St. 403 [110 N. E. 1055].

This leaves but one ground of error to be considered by this court, to wit: error of the trial court in refusing to admit in evidence a written and printed statement made by a witness the day after the accident occurred.

The record discloses that the defendant, for the purpose of showing that the plaintiff attempted to alight from the car before it had come to a stop and while it was in motion, offered a witness, Edward Pestrop, who testified that he was on the rear platform of the car on November 22, 1908, when plaintiff was alighting from the car. He remembered the day of the month and that it was Sunday at about 7 :30 P. M. and near the corner of Eighth and John streets that the accident occurred. He was then asked:

“Q. Tell the jhry what you remember about it, won’t you1’ ’

To which he replied:

“A. That is about all I remember. I don’t remember seeing the woman get off or don’t remember only what I have said on that statement there; that was my information of it at the time, the day after the accident. ’ ’

He was then shown a statement consisting of printed questions, some of which were answered, and others not answered, in the handwriting of the witness and signed by him, purporting to have been made November 23, 1908, the day after the accident. The paper had been sent to him that day by the defendant, with the request that he fill in as many blank spaces as possible on the opposite side of the sheet of paper. The blank spaces filled in were in the handwriting of the witness. Among other questions and answers thereon were these three:

(Printed.) “Was tbe ear standing or moving? If moving, bow fast ?
(In witness’s handwriting.) “Was moving slowly.’’
(Printed.) “If there was anyone injured or any property destroyed please state extent of same.
(In witness’s handwriting.) “A woman fell while leaving the car.”
(Printed.) “What in your opinion was the direct cause of the accident ?
(In witness’s handwriting). “The woman stepped from the car while it was in motion.”

After examining the paper he was asked if reading the paper refreshed his recollection as to whether or not he saw the woman as she stepped off the car or went off the ear. He answered:

“No, I don’t remember seeing just how she stepped off now.”

He was further asked:

“And looking at that paper, that does not bring it back to your mind?”
“No sir,” he answered.

He said he saw the woman on the ground as she was being assisted to the sidewalk. He was then asked if the statement was in his handwriting, and replied “yes.” He was asked if the statements made on the paper were correct. Objection was interposed and sustained by the court. To which ruling of the court counsel for defendant excepted and offered to show by the witness if he were permitted to answer, that they were correct. Counsel for defendant then offered the paper in evidence. Objection was made and sustained, and an exception taken. The paper is attached to the bill of exceptions and made a part of the record. There were witnesses who testified that the car had come to a stop and as plaintiff was in the act of alighting it was suddenly started with a jerk, throwing her from the car. There were other witnesses who testified that she attempted to alight before the car had stopped and while it was in motion. The jury answered a special interrogatory that the injury was not caused by the manner in which the ear was brought to a stop near John street.

"Was it error for the court to exclude this paper 1

We think it was not. The only statement in the paper which can be claimed to aid the cause of the plaintiff in error is the one in answer to the question as to the witness’s opinion as to what was the direct cause of the accident. The question as to the opinion of the witness as to what was the direct cause of the accident was clearly objectionable, and if the witness had been asked that question directly, while on the stand, it would have been the duty of the court to sustain the objection. How then can it be claimed that the witness’s opinion may be secured indirectly by admitting a paper in which he states his ’opinion as to the direct cause of the accident, when it could not be obtained directly from him while under oath upon the stand 1 The paper could not be admitted without admitting this objectionable question and answer, and therefore the entire paper was properly excluded on this ground. It will be noticed that the witness was asked for his opinion as to the cause of the accident, not what was the cause of the accident. His answer was an expression of his opinion as to the cause of the accident. His answer was tantamount to saying: “In my opinion the woman stepped from the car while it was in motion.” The next question on the paper, which he failed to answer, was: “Give a full account of the accident as witnessed by you, ’ ’ etc. Furthermore, on the stand he testified that he did not remember seeing the woman get off the ear. This further bears out the conclusion that in his answer to the question as to his opinion he was merely giving his opinion and not stating as a fact that she had stepped off the car while it was in motion.

Furthermore, we are of the opinion that this paper, which could be treated in no other light than as a memorandum made by the witness not at the time of the accident but the next day, could be used only for the purpose of refreshing his recollection or memory, if it could be used for that purpose, which is doubtful in view of the fact that it was not made until the next day. There are authorities, and some of them are cited by counsel for plaintiff in error in their brief, which hold, that, while a court will not receive as evidence á memorandum which has served to refresh the recollection of a witness, yet, where after reading it a witness testifies that he has no recollection of the facts therein stated but that the memorandum was made by him at a time when the events recited were fresh in his recollection and is correct, such memorandum is admissible. An examination of these authorities will disclose that these are cases of book accounts, or transactions kept in the usual course of business and required to be kept in the course of business by the person making the memorandum or entries. But where the memorandum is prepared or made by the witness at the instance of an interested party, as in this case it was, the court will not admit the memorandum in evidence or allow it to be used by the witness to refresh his recollection. 5 Jones, Evidence, See. 879, and I Wharton, Evidence (3 ed.). Sec. 523.

Where, however, the witness’s memory of the event is extinguished, and the memorandum is offered as substantive evidence, he testifyng to it as correct, but recollecting nothing as to its contents, then it is inadmissible unless it is shown to be virtually coincident with the event. This is eminently the ease when the concoction is in view of litigation. Steinkeller v. Newton, 9 Car. & P. 313, 315; Washington Ice Co. v. Webster, 68 Me. 449, 470; Church v. Perkins, 3 T. R. 749, 752, and Wigmore, Evidence, Sees. 763, 902-905 (pp. 127, 139, Pocket Ed.).

In the case of Steinkeller v. Newton, supra, the witness 18 months before the trial drew up a paper at the request of the party calling him, and the court would not even permit him to refer to it to refresh his recollection, much less admit it in evidence.

We do not believe that any well-considered case can be found in which a paper such as this, prepared as this ivas prepared, at the request of a party to the suit, after the accident had occurred and not contemporaneous therewith, has been held admissible. We doubt the propriety of allowing the witness to use it to refresh his recollection, because of the manner in which it was procured — at the request of a party to the suit. However, we do not hold that it was not proper to use it to refresh the recollection of 'the witness, as it is not necessary to so hold; but we do hold that no error was committed by the court in excluding it as substantive evidence.

There being no other prejudicial error claimed to exist in the record, the judgment of the common pleas court is affirmed.

Jones (E. H.), and Jones (O. B.), JJ., concur.


author: MIDDLETON, J.

text:
    CARRIERS.
    [Ross (4th) Court of Appeals,
    April 4, 1917.]
    Middleton, Walters and Sayre, JJ.
    Norfolk & W. Ry. v. Nelson Dresbach and Cleveland, C., C. & St. L. Ry.
    1. No Recovery Against Initial and Connecting Carrier Can be Had for Goods Lost in Transit Under Carmack Amendment.
    In an action against an initial and connecting carrier for the loss of goods in transit, such action being based upon their common law liability and sounding in tort, no recovery may be had against the initial carrier by reason of the provisions of the Carmack amendment of Sec. 20 of the federal act to regulate commerce.
    2. Connecting Carrier Not Proper Party in Action Against Initial Carrier for Goods Lost in Transit.
    The remedy against the initial carrier provided by Sec. 20 of the federal act to regulate commerce and Sec. 8994-1 G. C. may be prosecuted only against the initial carrier and in such action a connecting carrier or carriers is neither a necessary or proper party.
    3. Remedy Against Initial Carrier Afforded by Carmack Amendment Not Combinable With Action Against Connecting Carriers.
    While Sec. 20 of the act to regulate commerce is intended to provide the shipper with a special remedy against the initial car-, rier, thereby relieving him from the necessity of actually locating the carrier or carriers by whose negligence he sustained his loss, yet it also saves to him all his common law rights and remedies against all carriers but he may not prosecute both remedies under one cause of action.
    [Syllabus by the court.]
    Error.

      Bannon & Bannon and Lyle S. Eva,ns, for plaintiff in error.

      J. D. Withgott, for Nelson Dresbach.

      Fred G. Hector, for Cleveland, C., C. & St. L. Ry.
   MIDDLETON, J.

This action was instituted by the defendant in error, Nelson Dresbach, against the plaintiff in error, Norfolk & W. Ry. and the Cleveland, C. & St. Louis Ry., which will hereinafter be designated as the Big Four, to recover damages alleged to have been sustained by reason of the negligence of the defendants in not properly carrying and handling two car loads of hogs shipped by the plaintiff over the lines of said defendants.

The petition alleges that plaintiff delivered said hogs to the defendant, Norfolk & W. Ry., at the village of Kingston, Ohio, to be transported to Buffalo, New York, and that said defendant company thereupon delivered to plaintiff its written agreement to so carry said hogs to said destination. It alleges further that said defendant, the Big Four Co., received said hogs at Columbus. Ohio, subject to the agreement entered into by the defendant, Norfolk & W. Ry. It alleges further that said defendants did not carry said hogs safely and were negligent and careless, and permitted said ears of hogs at points along the lines of said companies to stand without attention or water for several hours and to be unnecessarily delayed in transportation, etc.

It is apparent from this petition that the plaintiff below, Nelson Dresbach, launched his case against the defendant companies upon the theory that they were joint tort feasors and that the combined negligence of both was the proximate cause of the injury sustained by him. A careful review of the facts set up in the petition admits of no other inference or conclusion. Manifestly, the action was not brought against the initial carrier under'its liability as defined by what is known as the Carmack Amendment of Sec. 20 of the act to regulate commerce, because in an action against the initial carrier under said amendment the connecting carrier is neither a necessary or proper party and if joined with the initial carrier the petition would be subject to a special demurrer upon the -ground of misjoinder of parties defendant. So that the action as originally instituted must be treated as an action to- enforce the common law liability of both carriers, which liability may be joint or several as the evidence may disclose.

Both defendant companies filed answers setting up substantially the same defenses, with the exception that the Big Four Co. in an amendment to its answer pleads a failure of the Norfolk & W. Ry. to notify it of the shipment of said hogs so that it could promptly transport them from Columbus and, if necessary, hold a train for that purpose.

After the jury was impaneled and the case had proceeded to trial the court sustained a motion to dismiss the Big Four Co. upon the ground that it had not been notified of the claim of plaintiff within thirty days, as required by the terms of the contract with the initial carrier or Norfolk & W. Ry. The dismissal of the Big Four Co. is one of the grounds of error now urged by the Norfolk & W. Ry. After the dismissal of said defendant company the case proceeded against the one defendant, Norfolk & W. Ry., and resulted in a verdict in favor of plaintiff. The jury also returned a special verdict, in which it found that the loss and damage complained of in the petition were sustained upon the line of the Big Four Co.

Various errors are assigned for the reversal of this judgment, to which, for the purposes of this decision, it will not be necessary to refer in detail.

Coming direct to what we consider to be the controlling question as shown by the record it becomes necessary to examine Sec. 20 of the commerce act aforesaid to determine whether said section has any application to or connection with this action under the pleadings. That section as amended is the same as Sec. 8994-1 G. C. and provides as follows:

“That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.
“That the common carrier, railroad or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad or transportation' company on whose line the loss, damage, or injury shall have been sustained, the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.”

Plaintiff in error contends that the dismissal of its co-defendant is in effect an adjudication of the latter’s liability, and that such dismissal deprives the former of its right of action to recover from its codefendant the loss or damage it has sustained by reason of this judgment because the jury has found that the loss to the shipper occurred on the line of said Big Four Co. It contends further that the court erred in dismissing said Big Four Co. from the ease because while the contract between the Norfolk & W. Ry. and the shipper provides that no common carrier shall be liable for any loss sustained upon its line unless such carrier is notified as required by the terms of said contract in respect to the notification of the initial carrier, yet in as much as the initial carrier was notified of such claim that notice to it is notice to the connecting carrier because the latter was the agent of the former in the transportation of said hogs. In support of this contention the court is cited to the case of Northern Pac. Ry. v. Wall, 211 U. S. 87 [36 Sup. Ct. 493], in which it is held that notice to the connecting carrier is notice to the initial carrier.

We are not impressed with either of the foregoing contentions of the plaintiff in error. We do not think that the dismissal of the Big Four Co., for the reasons named in the entry of said dismissal, is a final adjudication of its liability to the initial carrier, if such liability exists; and as to the second contention, while notice to the initial carrier may be notice to the connecting carrier in all matters within the scope of the latter’s agency, yet when the liability of the connecting carrier is a several liability and depends upon facts wholly independent of its agency and its relation to the initial carrier such a ride may not obtain, and that is precisely the situation here. The initial1 carrier has written this provision into its contract. It has placed it there for the protection of the connecting carrier, not as a protection to the connecting carrier as its agent, but as a protection to the connecting carrier against the latter’s separate and independent liability to the shipper growing out of acts wholly disconnected with its responsibility to the initial carrier. It would seem that such a provision in the contract was wholly unnecessary and in reality one against the interests of the initial carr'er, but it is there by the act of the initial carrier alone and it ought not complain of results that may not be as favorable to it as it anticipated when it placed this condition in the contract.

We have, however, in this connection, another question of much more serious import as regards the interests of plaintiff in error.

When the court dismissed the Big Four Co. such dismissal did not thereby change the nature of the action. It still remained a suit to enforce the common law liability of the Norfolk & W. Ry. The dismissal of the Big Four Co., under the circumstances, could not and did not change in any respect the character of the suit. The only effect of this dismissal was to relieve the Big Four Co. from any liability and to confine the plaintiff entirely to his right of action against the Norfolk & W. Ry. under its common law liability as fixed and determined by its contract with the plaintiff.

While there has been much confusion and somé conflict in the construction placed on Sec. 20 of the commerce act aforesaid, it now appears to be the settled law that the provision of this section whereby the shipper or holder of any receipt or bill of lading .shall not be deprived of any remedy or right of action which he has under existing law, authorizes him to sue any one or all of the carriers whose negligence, joint or several, resulted in any loss of goods in transit on their respective lines. While this section is intended to provide the shipper with a right of action against the initial carrier, thereby relieving him from the task of actually locating the carrier whose negligence caused the loss, yet if he does not desire to pursue this remedy which, as before observed, is one against the initial carrier alone, and if he knows which carrier or carriers caused the injury he may sue it or them. Bichlmier v. Minneapolis, St. P. & S. S. M. Ry. 159 Wis. 404 [150 N. W. 508] ; Elliott v. Chicago, M. & St. P. Ry. 35 S. D. 57 [150 N. W. 777].

When a statute gives a remedy where one already exists at common law the statutory remedy is considered merely cumulative, and a party may sue at common law as well as upon the statute. 20 Ency. PI. & Pr. p. 603. But both remedies may not be prosecuted together under one cause of action. Com. Dig., Action upon Statutes, C.

So in this case, as before observed, the defendant in error, Nelson Dresbach, having elected to pursue his common law remedies against said defendant companies, must be held to the law applying to the cause of action so selected by him.

The learned court in its general charge to the jury, after quoting Sec. 20 aforesaid, proceeded to instruct the jury to the effect that if they found the loss was caused by the negligence of the Big Four Co. they could nevertheless return a verdict against the Norfolk & W. Ry. under its liability as an initial carrier as fixed by this section. We think this instruction was erroneous and not applicable to the case under plaintiff’s petition. When the Big Four Co. was dismissed it did not change the character of the action. The plaintiff shipper could not then be heard to say that the Norfolk & W. Ry. was liable to him as an initial carrier because no cause of action against it as an initial carrier was pleaded' in his petition. After the dismissal of the Big Four Co. the plaintiff was compelled to establish the fact that the Norfolk & W. Ry. by its negligence, or its negligence combined with that of the other company, caused his loss. If the evidence did not disclose either one or the other state of facts he could have no recovery under his petition against the Norfolk & W. Ry. If the negligence of the Big Four Co. alone was the proximate cause of the injury, under plaintiff’s petition the Norfolk & W. Ry. could not be held liable for his loss. We are, therefore, of the opinion that the instruction of the court aforesaid was highly prejudicial to plaintiff in error, and for this reason alone tbe judgment of that court must be reversed.

The judgment of the court of common pleas will be reversed and the cause remanded to that court for a new trial.

Sayre and Walters, JJ., concur.


text:
    ACCORD AND SATISFACTION.
    [Hamilton (1st) Court of Appeals,
    March 22, 1915.]
    Jones, Jones and Gorman, JJ.
    Bettman et al. v. Sporkin et al.
    Retention of Check “In Settlement of Account in Full” Satisfaction of Claim.
    When there is a bona fide controversy existing between two parties regarding the amount due on an unliquidated claim, and the debtor sends to the creditor a check, upon which appear the words, “In settlement of account in full,” and the creditor receives this cheek and retains the same and uses it, there is an accord and satisfaction and the creditor cannot recover any additional amount on account of such claim.
    [Syllabus by the court.]
    Error.

      Joseph W. O’Hara, for plaintiffs in error.

      Matthews <& Matthews, for defendants in error.
   GORMAN, J.

The action below was brought by Sporkin Brothers & Co., defendants in error in this case, to recover from the plaintiffs in error, Bettman, Cohen & Co., a balance amounting to $931.56, claimed to be due on an account.

The original account was for goods sold and delivered by the defendants in error to the plaintiffs in error, and amounted to something like $17,000, all of which had been paid except the balance claimed. There was attached to the petition an itemized account.

The answer of the defendants was a general denial, after admitting the respective partnerships of plaintiffs and defendants ; and by way of second defense set up full settlement of the account by accord and satisfaction, in this, to wit, that on October 24, 1910, a check was sent to the plaintiffs for $1553.31, and endorsed thereon, on the body of the check, were the words, 1 ‘ In settlement of account in full; ’ ’ that this check was sent in a letter which contained an itemized statement of a corrected account of the transactions between the plaintiffs and the defendants.

Upon the trial of the case below a verdict was rendered in favor of the plaintiffs for $516.76, which sum included interest from the time claimed up to the first day of the term. Deducting the interest, the verdict represents $472.10, and this sum represents the aggregate of two items of invoices claimed to have been sold and delivered by the plaintiffs to the defendants: one, July 15, 1910, $254.75, and the other, August 20, 1910, for $217.35.

The evidence in this case adduced at the trial shows that some time prior to September 26, 1910, a dispute and controversy arose between plaintiffs and defendants concerning the quality of the goods sent by the plaintiffs to the defendants, the amount of discount which should be allowed, and the question of the receipt of some goods, and other matters. On that day, September 26, 1910, a member of the plaintiff firm came from Philadelphia to Cincinnati and had a conference with Mr. Bettman of the defendant firm, after which it was agreed between the parties, and the agreement reduced to writing, that of the 625 suits of clothes held by Bettman, Cohen & Co. and shipped by the plaintiffs, 325 suits were to be taken back by the plaintiffs and credit given by the plaintiffs to Bettman, Cohen & Co. for them; and it was further agreed that Bettman, Cohen & Co. would pay the rest of the account at once after the return of the goods, deducting 4% per cent discount upon the whole account, instead of payment upon the original’ terms. The goods were sent back, 325 suits, and on that day $2,000 was paid to the plaintiffs, and, later, $2,000 more was sent to the palintiffs. The defendants wrote to the plaintiffs to send an account, but no account -was sent; and the evidence does not disclose that up to this time any account had ever been rendered by the plaintiffs for goods sold up to September 26, 1910.

The defendants not having received an account, finally, on October 17, 1910, sent a letter to the plaintiffs in which they “again request a complete statement so that we can mail you check.” On October 8 the defendants had written to plaintiffs remitting the $2,000 and asking them to send a correct and complete statement of the account, .crediting the goods returned, and stating that upon receipt thereof the defendants would mail cheek. (See Exhibit 3.) On October 20 the plaintiffs sent what purported to be a complete itemized account of charges and credits, showing a balance due from the defendants to the plaintiffs of $3,316.35. Thereupon Mr. Bettman of the defendant company sat down and prepared a contra account, item by item, in which he omitted from the account sent by the plaintiffs, four items: One of July 15, 1910, for $254.75; one of August 20, 1910, for $217.35; and two items of September 17, 1910, one for $659.25 and the other for $63.35. Mr. Bettman also in the contra account made deductions for basting, and a great many other items, and marked the deductions upon the itemized account which he made out. There were a great number of these deductions made in addition to the deduction of the four items. He also marked on the bill the credits — cash paid and goods returned; and took credit for 4% per cent discount, as he claimed was agreed upon on September 26. In the letter of the plaintiffs to the defendants containing their account sent October 20, they did not allow 4% per cent discount, and claimed that inasmuch as the defendants had not paid promptly, as they said they would, that the 4% per cent discount agreed upon on September 26 should not be allowed. Upon October 22, after Bettman had made out his contra account with all the deductions, which showed a balance of $1553.31, he enclosed a check with the account, and also a letter to the plaintiffs. The check was payable to the plaintiffs, and in the' body thereof contained a statement, “in settlement of the account in full.” The letter was dated October 22. The contra account was dated October 22, but the cheek was dated October 24, and that is the day the check, the account and the letter were sent — Sunday having intervened between the 22 and 24. In this letter the defendants said:

“Replying to your favor of the 20th instant, we beg to state that when you left here you said that when you received the goods we shipped back to you, you would send us a statement, but you did not do it. "We had to write you for the statement. We therefore distinctly hold you to the agreement in regard to the discount and enclose herein a check in settlement of account. “Bettman, Cohen & Co.”

The evidence discloses that the check, the letter and the contra account reached the plaintiffs, and there is evidence tending to show that at the time the check was received it contained the endorsement above referred to. Furthermore the jury, in answer to an interrogatory, found as a matter of fact that the cheek when received by the plaintiffs did contain the above endorsement, “in settlement of account in full,” so that it is established in this case that the check was received in that condition. The plaintiffs banked the check, and after it had gone through the clearing house and been collected they then made a further demand upon defendants for some $1600. Subsequently they admitted that from the $1600 the two items of September 17, aggregating $722.60, should be deducted, because the defendants never received the goods charged.

Upon the trial of the case, upon the conclusion of all the evidence, counsel for the defendants requested the court to give the following special charge, which the court refused to give:

“If the jury should find that on October 24, 1910, there was a controversy existing between the plaintiff and the defendant regarding the amount due from the defendant to the plaintiff, and that the defendant sent to the plaintiff a cheek, upon which appeared the words ‘In settlement of account in full’ and that the plaintiff received this cheek and retained the same and used it, then I charge you that there was an accord and satisfaction in this ease, and the plaintiff cannot recover, and the defendant is entitled to a verdict.”

We are of the opinion that under the evidence in the case it was shown that there was a controversy between these parties on October 24, 1910, when the cheek was received, and prior to that time. The question of discounts was in dispute, the question of the four items was in dispute, the question of the charge made for bastings, etc., was in dispute, and when the account was sent by the plaintiffs setting out all these charges and items and was received in Cincinnati by the defendants, and the defendants took up that account ánd made out what they claimed to be a corrected account and forwarded that to the plaintiffs with a check for the balance shown, with the words quoted above endorsed thereon, and that account with the letter and the check went to the plaintiffs, they were chargeable with notice of the fact that the defendants disputed the correctness of their itemized account sent on October 20; so that when the plaintiffs took the check they took it with full knowledge that the defendants were disputing the correctness of their account and were tendering the check in full payment and satisfaction of the account. ¥e are therefore of the opinion that the court erred in refusing to give this special charge.

"We think that there was error in the general charge of the court in this, to wit, that the court (Record, page 74) used the following language in his charge:

“If you find by a preponderance of the evidence that it did contain these words ‘in full settlement of account in full’ when it was received by the plaintiffs in Philadelphia, then you will go further and consider whether it was in payment in full of the account enclosed by the defendants with the check, or whether it included in payment in full of the entire account between these parties, and if you find that it was in payment on the account that was enclosed by the defendants to the plaintiffs, then the plaintiffs would be entitled to recover whatever balance of the account they had against the defendants, should you find that they are entitled to anything. Should you find it covered the whole account as presented between these parties, your verdict will be for the defendants, provided you find there is a bona, -fide dispute after September 26 and that these words were in the cheek when it was received by the plaintiffs. If you should find the check was only in payment in full of the account enclosed with' the check, which was sent with the check by the defendants, then you will consider the other items not included in the account sued on by the defendants. These items, as the court remembers, are the shipments of July 15 and August 10 of two cases of goods. If you find they were not included in the check, then if they were ordered by the defendants from the plaintiffs and plaintiffs shipped them to the railroad company and they were received by the railroad company, they would be the property of the defendants and they would be liable for the amount and your verdict would be for the amount of the goods. ’'

We think this charge had a, tendency to mislead the jury into finding in favor of the plaintiffs on the items of July 15 and August 20, 1910.

The jury, upon a special interrogatory submitted to them, found against the plaintiffs and in favor of the defendants on the question of the endorsement on the check, and this being true, we are of the opinion that it was the duty of the court, after the return of the verdict, to have granted the motion of the defendants to enter a judgment in favor of the defendants, notwithstanding the verdict, and that the facts in the case were such that the defendants were entitled to a verdict.

We think the law-point in this case has been settled by our supreme court in the case of Seeds, Grain & Hay Co. v. Conger, 83 Ohio St. 169 [93 N. E. 892; 32 L. R. A. (N. S.) 380], the syllabus of which reads as follows:

“1. When there is a bona fide dispute over an un-liquidated demand and the debtor tenders an amount less than the amount in dispute, upon the express condition that it shall be in full of the disputed claim, the creditor has but one alternative ; he must accept the amount tendered upon the terms of the condition, unless the condition be waived, or he must reject it entirely, or if he has received the amount by check in a letter, he must return it.
“2. Where in such case the creditor retains a check which was sent upon the condition that it shall be in full satisfaction of the debt claimed to be due, and receives the money thereon and notifies the debtor that the amount is placed to his credit but that he does not intend that the same shall close up the matter in dispute, to which the debtor makes no reply, such silence by the debtor does not amount to a withdrawal of the condition which accompanied the tender, nor to a waiver of it. The transaction is an accord and satisfaction.”

See also Brown-Ketcham Iron Works v. Hazen, 24 O. C. C. 681 (4 N. S. 582). In this decision of the circuit court of this county the court held:

“The law in Ohio as to accord and satisfaction does no% differ from that of other states or of the federal courts in that, where a liquidated sum is due, the acceptance of a draft for •* less sum in satisfaction thereof is binding as in full satisfaction, notwithstanding a want of full satisfaction.”

This rule of course applies to an unliquidated claim such as the one in the case at bar.

To the same effect are the cases of Chicago, M. & St. P. Ry. v. Clark, 178 U. S. 353 [44 L. Ed. 1099; 20 Sup. Ct. 924], and Ostrander v. Scott. 161 Ill. 339 [43 N. E. 1089].

Counsel for defendants in error, plaintiffs below, have cited several authorities to the effect that the dispute must exist before the tender of the payment is made in order to constitute the payment of a smaller sum an accord and satisfaction of the larger sum claimed. Even if this be true, the court is of the opinion that in the case at bar there was a controversy and dispute between plaintiffs and defendants in this case with reference to this account, and inasmuch as there was but one account, there was no room for difference as to what account was in dispute. It was the account which the plaintiffs had against the defendants. The defendants had no account against the plaintiffs, and the memorandum sent by the defendants through Mr. Bettman was simply a restatement of the plaintiffs ’ account as the defendants claimed it should be.

For the reasons stated herein we are of the opinion that the judgment of the court of common pleas should be reversed and this court should enter a judgment in favor of the defendants, as the court of common pleas should have done on the motion for judgment non obstante veredicto.

Judgment reversed, and judgment for plaintiffs in error.

Jones (E. H.), and Jones (O. B.), JJ, concur.


author: JONES, O. B., J.

text:
    DIVORCE AND ALIMONY.
    [Hamilton (1st) Court of Appeals,
    March 22, 1915.]
    Jones, Jones and Gorman, JJ.
    Elmwood Place Loan & B. Co. v. Cincinnati Concrete Co. et al.
    si-udgment for Alimony Relates Back to Filing Petition and Issue of injunction.
    When a petition for alimony is filed and a restraining order issued enjoining the defendant from disposing of or incumbering certain property described in the petition, the action in alimony becomes a lis pendens against the property described in the petition and covered by the injunction, from the date of the filing of such petition and the issue of such injunction, and a judgment thereafter taken in the suit for alimony relates back to the date when the petition was filed and the restraining order issued.
    [Syllabus by the court.]
    ERROR.

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

      P. & S. C. Roettinger and Harry B. Street, for defendants m error.
   JONES, O. B., J.

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

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

The Cincinnati Concrete Co. claims a lien for $299,89 by reason of a judgment taken against Jay Brown, tbe owner of said real estate, before Edward F. Woodruff, justice of the peace, a transcript of which judgment was filed in the court of common pleas May 4, 1912. The transcript shows that this judgment was taken before the magistrate March 12, 1912, upon the confession of the defendant. This confessed judgment was therefore a violation of the restraining order issued against said defendant in the alimony case. Outside of that question, however, the action in alimony became a lis pendens against the property described in the petition and covered by the injunction, from the date of the filing of said petition and the issue of such injunction, and the judgment when taken in that case related back to that date, November 8, 1911.

Luella J. Brown must therefore be held to have a prior lien on the proceeds of said property. Tolerton v. Williard, 30 Ohio St. 579. Judgment accordingly.

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


author: Pee CuRiam.

text:
    JURY — MILITIA.
    [Franklin (2nd) Court of Appeals,
    May 17, 1917.]
    Kunkle, Allread and Ferneding, JJ.
    State ex rel. v. John B. Miles, Clerk.
    Exempting Contributory Members of National Guard from Jury Service, Constitutional.
    Section 5211 G. C., exempting from jury service, contributing members of the Ohio National Guard, is constitutional.

      Turney, Olds & Sipe and Simeon Nash, for plaintiff.

      Robert P. Duncan, for defendant.
   Pee CuRiam.

This case is submitted to this court upon a demurrer to the petition of the plaintiffs.

The action involves the constitutionality of the provisions of See. 5211 G. C. providing that contributing members of the Ohio National Guard shall be exempt from service as jurors.

We have carefully considered the authorities cited in . the Very exhaustive briefs which have been filed by counsel.

We shall not undertake to discuss in detail the authorities so cited but will merely announce the conclusion at which we have arrived after a consideration of such authorities. We shall adopt this course for the reason that this case can and doubtless will, be taken to the Supreme Court where it can be authoritatively reported.

A former act embodying some of the features of the act under consideration was before our Supreme Court in- the case 'of Hamann v. Heekin, 88 Ohio St. 207 [102 N. E. 730], wherein such former act was held unconstitutional.

We have carefully examined the present act in connection with the case above referred to and are of opinion that the present act does not come within any of the objections made by the Supreme Court to the former act nor do we think it conflicts with any provision or limitation of the constitution.

We appreciate the suggestion of counsel for defendant as to the wisdom of the exemptions from jury duty provided in this act, but that is a question for consideration by the legislature rather than by the courts.

Demurrer overruled.

KunMe, Allread and Feraeding, JJ., concur.


text:
    HIGHWAYS — TAXATION.
    [Brown (4th) Court of Appeals,
    July 17, 1917.]
    Middleton, Walters and Sayre, JJ.
    George Kress v. Cornelius Wilson, Treas.
    Levy for Repair of Roads in Absence of Emergency Controlled by Limitations of Smith Law.
    A levy for the repair of roads under favor of Sec. 7419 G. C., when no emergency exists is controlled by Sec. 5649-2 G. C., and must be within its limitations.
    [Syllabus by the court.]
    Error.

      Young & Barnes, for plaintiff in error.

      B. E. Campbell, John B. Moore and John M. MwrMey, Pros. Atty., for defendant in error.
   MIDDLETON, J.

This action was instituted in the court of common pleas of this county by the plaintiff in error, George Kress, for himself and others as taxpayers, to enjoin the collection of a levy of two mills on the dollar of all the taxable property situate in said county, said levy having been made for the year 1916 by the board of county commissioners for the repair of certain public highways under favor of See. 7419 G. C.

The petition sets forth in detail the resolution adopted by the board of county commissioners under which said levy was made, and this resolution shows that in every instance it was found and declared that each public highway to be affected by the levy had been damaged by freshets, and that by reason thereof and by reason of a large amount of traffic thereon, and from neglect and inattention to the repair thereof, said-highway had become unfit for travel and caused difficulty, danger and delay to teams passing thereon. The petition further alleges that said public highways “had not been damaged by freshets, land-slides, wear of water courses or other casualties, but that the condition thereof was caused from neglect and inattention and by reason of a large amount of traffic thereon, and that by reason thereof the said county commissioners had no authority of law to make said levy of two mills and the same is void.”

To this petition the defendant in error, the county treasurer, filed an answer which contains three defenses, the first of which may be considered merely a denial of the operative facts in the petition. In his second defense, however, the treasurer alleges that the aggregate tax rate in the taxing- district in which the plaintiff in error resides, including the levy involved in this action, was and is less than fifteen mills on the dollar of the taxable property therein; and in his third defense he pleads that in no taxing district in the county does the tax rate exceed said fifteen mills, including this levy of two mills.

The plaintiff filed a demurrer to the second and third defenses aforesaid, upon consideration whereof the court of common pleas held that said defenses were sufficient but that the petition itself did not state a cause of action. The plaintiff not desiring to plead further, a judgment of dismissal was entered, to reverse which judgment these proceedings are now prosecuted here.

It appears from the facts stated in the petition and the claims now made by the plaintiff in error that he launched this case upon the theory that if no emergency existed requiring the levy in question the board of county commissioners, under the provisions of said Sec. 7419 G. C. were without any authority to make said levy.

Whatever doubt and uncertainty have heretofore obtained in the courts and with the taxing authorities of this state in respect to the construction to be given Sec. 7419 are now removed by the very recent case of State v. Zangerle, 95 Ohio St. 1 [115 N. E. 498]. In this case it is held that roads affected by the provisions of said section are of two classes, and Judge Matthias, who announced the majority opinion of the court, discussing this phase of the case says:

“Roads requiring reconstruction or repair are of two general classes, the first embracing those roads which have been destroyed or damaged by freshet, landslide, wear of water courses, or other casualty, any one of which conditions comes within the term ‘emergency’ as above defined; the second, those roads which by reason of the large amount of traffic thereon or from neglect- or inattention to the repair thereof have become unfit for travel or cause difficulty, danger or delay to teams passing thereon.”

The resolution adopted by the commissioners aforesaid, as before observed, finds and declares conditions to exist in respect to each turnpike which places each road within both classes as above-enumerated and defined. In other words, it is found and declared by the commissioners in said resolution that an emergency exists as to each road, and further that all the other conditions also exist in respect thereto which are set forth in said isection and which, under the definition above given, may be said not to constitute an emergency. We are now dealing with what this resolution contains only as an abstract proposition of law and are, therefore, not concerned with any apparent conflicting and inconsistent findings that may appear therein. Tt therefore follows that the plaintiff when he adopted the whole resolution without question and bases his petition upon its declarations and does not attempt to dispose of any of the facts alleged therein except those which refer to the existence of an emergency, has met only one phase of the situation. If it be true, as he alleges in his petition, that no emergency may be shown to exist as to any of the roads named this fact will only remove them from the first class as specified in State v. Zangerle, supra, and as roads of the second class they still may be repaired by a levy under favor of this section within certain limitations. The only distinction between the two classes of roads which may be repaired under favor of this section is, that a levy for the repair of the first or emergency class may be made independent of the so-called Smith law (being Sees. 5649-1 G. C. et seq.), while a levy for the second class or for roads which arc out of repair by reason of the large amount of travel thereon or from neglect and inattention must be made within the limitations of said law. State v. Zangerle, supra.

The material matter now to be considered, however, is that the plaintiff does not in his petition in any manner whatever question, challenge or deny that conditions obtain, as stated in said resolution, which will authorize a levy if the roads named have become and are out of repair and dangerous by reason of the large amount of travel thereon or from inattention and neglect- We are, therefore, impelled to conclude that in this respect the petition is defective and does not cover the whole situation as presented by the facts stated therein and, therefore, is insufficient to sustain an action for an injunction.

The judgment of the lower court, therefore, in sustaining a demurrer to the petition will be affirmed.

As before observed, a demurrer was filed to the second and third defenses of the answer, which was overruled by the learned trial judge and which ruling must now be affirmed for the reason that any answer to a defective petition must be held good as against a demurrer. But in thus affirming this entry we do not th reby sustain the suffieiencj'- of the facts stated in the defenses aforesaid were they pleaded in answer to a good petition. The theory of these defenses is that so long as the aggregate tax rate, including the levy under Sec. 7419 aforesaid, does not in any taxing district in the county exceed fifteen mills, any of the conditions specified in said section, when found to exist, will sustain this levy. As we have already indicated, we do not question the proposition that a levy may be made under favor of Sec. 7419 which is within the limitations of the Smith law if conditions are shown to exist other than emergency as defined in State v. Zangarle, supra, but we can not adopt the contention that a limitation of fifteen mills may apply to such a levy. Upon the contrary, the limitation of the Smith law applying to this levy is ten mills, as provided by Sec. 5649-2, which section controls and fixes the aggregate amount which may be levied under the facts as shown here and which must include this levy of two mills if it is to repair only such roads as have become dangerous by reason of neglect and inattention or because of a large amount of travel thereon.

In the ease of State v. Sanzenbacher, 84 Ohio St. 506, the relative bearing of Sees. 5649-2 and 5649-3® on the aggregate amount of taxes that may be levied was considered and determined by the court, and the former section was held to be the controlling law, while the latter section was considered as having only to do with interior limitations. While taxing authorities, therefore, may levy the full amount specified in the latter section for any one, or even more, of the purposes specified therein, yet they may not make such levy for all, for in that event the aggregate amount levied would exceed the ten mills prescribed in the former section and it would impose upon the budget commission the duty of eventually reducing the levy so made to conform to the provisions of said last named section. Rabe v. Board of Education, 88 Ohio St. 403, 418 [104 N. E. 537]; State v. Patterson, 93 Ohio St. 25, 34 [112 N. E. 142], We are, therefore, of the opinion that the facts stated in the seeond and third defenses of the defendant’s answer would not constitute a valid defense to a good cause of action.

While the pleadings do not disclose the actual tax rate in the taxing district in which the plaintiff in error resides it appears from one of defendant in error’s briefs that it is made up as follows:

County (other than road under Cass highway law).. 2.8 mills
Township (other than road under Cass highway law) .95 mills
School .5.0 mills
Making a total of.8.75 mills

Manifestly, if these figures are true, the addition of two mills on the levy herein will make the aggregate rate 10.75 mills, which is in excess of the limitations of said Sec. 5649-2 and contravenes its provisions. If, therefore, no emergency may be shown in this case to sustain this levy, and the foregoing facts are true, the levy is without authority of law and void.

We are, therefore, of the opinion that it is our duty in affirming the judgment herein of the lower court to remand this case to that eourt for further proceedings according to law, whieb would include leave in' said court to the plaintiff in error to file an amended petition setting forth in full the facts in respect to the aggregate amount of the tax rate in the district involved.

Walters, J., concurs.

Sayre, J., not sitting.


text:
    CARRIERS — STREET RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    June 21, 1915.]
    Jones, Jones and Gorman, JJ.
    Diehl v. Cincinnati Trac. Co.
    Street Railway Liable for Ejecting Passenger Holding Transfer improperly Executed.
    A passenger on a street car who has paid his fare and is entitled to ride over another line of the same company, and who, having asked for a transfer over such other line, is given, by mistake of the conductor, a transfer not properly punched as to time, may nevertheless, if he has exercised ordinary care and prudence about the receiving and making use of such transfer, lawfully insist upon being carried over such other line without further payment of fare; and if such passenger, without fault on his part, is ejected from a car for refusing to pay fare other than by such transfer, he may recover damages for the tort and cannot be restricted to damages for breach of the contract to carry him.
    ERROR.

      Fulton & Woost, for plaintiff in error.

      Joseph Wilby, for defendant in error.
   GORMAN, J.

In the common pleas court plaintiff in error, George S. Diehl, sought to recover from defendant in error damages for an alleged wrongful ejectment from one of the East End ears of the defendant in error. At the close of the plaintiff’s evidence, the court, upon a motion to instruct a verdict in favor of the defendant, granted the same, and judgment was entered in favor of the defendant upon the instructed verdict. This error proceeding is to reverse that judgment.

It appears in tbe record that on the morning of Jnne 28, 1912, plaintiff in error left bis borne on Hosea avenue about eight o’clock and boarded a southbound Yine and Clifton ear at the corner of Jefferson and Brookline avenues. He paid his cash fare of five cents and asked the conductor for a transfer to an East End car going east. The conductor received his money and gave him a transfer slip. The slip was punched for the East End ear going east, but the punching was marked 15 minutes later than the time at which it should have been properly punched. Plaintiff in error left the Yine and Clifton ear at Fifth and Yine. hurried down Yine street to Fourth, one square, boarded an East End car going east, and tendered his transfer to the conductor, who refused to receive the same because. as he stated, “the time of the punching was too late.” He ejected plaintiff in error from the car upon his refusal to pay an additional fare, and put plaintiff in error as well as his suitcase or bag out upon the street. Plaintiff in error did not know that the transfer slip was punched at the wrong time, nor was there any evidence tending to show that he was in any wise negligent in accepting the transfer and in leaving the Yine and Clifton car and boarding the East End ear, unless it may be that he was negligent in failing to notice the time punched on the transfer slip. <

We are of the opinion that this was a proper case to submit to the jury on the question of whether or not the plaintiff in error was negligent in not discovering that tire transfer slip had the wrong time punched upon it.

The rule, in a case where the facts are similar to those above set out, is stated in 1 Nellis, Street Railways (2 ed.), Sec. 267. Among other things in this section, it is stated:

“A rule with respect to the punching of transfers is reasonable, if due precaution be taken to insure its observance and application in such a manner as to protect a passenger from the errors or mistakes of the conductor. If the passenger, by reason of the inattention of the company’s servants to its own rules regarding transfers, or to statutory requirement in that regard, is ejected, an action for the breach of the contract of transportation is not his only i'emedy. If it were, the carrier might be encouraged to employ negligent or incompetent conductors, to tbe serious annoyance and inconvenience of tbe traveling public, and passengers would not be afforded reasonable protection or security in their rights. If a passenger entered the car believing his transfer was valid, and was not negligent in failing to discover that it had been punched erroneously, he was there lawfully, and is entitled to maintain an action for the wrongful ejection, and to receive compensating damages for the loss of time, fare on another car, and injury to his feelings because of the indignities suffered by him and his wrongful ejection from the car.”

This doctrine appears to be supported' by the case of Cleveland City Ry. v. Conner, 74 Ohio St. 225 [78 N. E. 376; 6 Ann. Cas. 941], where it is stated in the first paragraph of the syllabus:

“A passenger on a street railway, who has paid fare and is entitled to ride over another line belonging to the same company, and who, having asked for a transfer ticket over such other line, is given, by mistake of the conductor, a transfer which is not good over such other line, may nevertheless, if he has exercised such care about the receiving and making use of the transfer ticket as persons of ordinary prudence are accustomed to exercise under the same or similar circumstances, lawfully insist upon being carried over such other line without further payment of fare; and if such passenger, without fault on his part, is ejected from a car for refusing to pay fare other than by such transfer ticket, he may recover damages for the tort and cannot be restricted to damages for breach of the contract to carry him. ’ ’

A passenger upon paying his fare and receiving a transfer which he has requested, and which transfer the street railway company is obliged to give under the law and the provisions of its charter, has a right to assume that the servant of the street railway company will perform his duty in giving him a proper transfer properly punched as to time. 1 Nellis, Street Railways (2 ed.), Sec. 273.

In the case of Eddy v. Syracuse Rapid Transit Ry. 50 App. Div. (N. Y.), 109, it was held:

“Where a passenger upon a street car receives from the conductor a transfer containing the following condition: ‘ Good only at transfer junction — on first connecting car, after time canceled on the line punched, subject to the rules of this company,’ and, without knowledge that the time at which the transfer had been issued was erroneously punched, and without being negligent in failing to discover that fact, boards the first ear on which the transfer would have entitled him to ride, if it had been properly punched, his ejection from such car because of the conductor’s refusal to honor the transfer, is wrongful and entitles him to recover from the railroad company compensatory damages for the indignity, humiliation and injury to his feelings caused by such wrongful ejection and the remarks of the conductor attending it.”

In the ease of Memphis St. Ry. v. Graves, 110 Tenn. 232 [75 S. W. 729; 100 Am. St. 803], it is held:

“It is negligence on the part of a street ear company for a conductor to give a passenger a wrong transfer ticket, and the passenger can accept the transfer ticket without question, and his acceptance of such ticket will not constitute negligence on his part. The passenger will not be required to scrutinize the ticket, but he may assume that the conductor has given him the proper ticket; and if the conductor make a mistake, it is the fault of the company, for which it is liable.’1'

It is further held in the second paragraph of the syllabus of this case:

“When a passenger on a street car pays his fare, and is, by the conductor thereon, given a transfer ticket, which the conductor on another car, to which the passenger properly changes, refuses to accept, and the passenger is forcibly expelled from the car, he can recover from the street car company all approximately resulting damages, including those for humiliation and mortification, if such were in fact sustained.”

The amount of damages which, the plaintiff in error might be entitled to recover would depend upon the circumstances of the ease, but that question is not presented by the record in this case, because the jury had no opportunity to pass upon the question of damages, but were precluded from considering the case by the ruling of the trial court in arresting the case from their consideration.

The judgment of the court of common pleas will be reversed and a new trial granted.

Jones (E. H.), and Jones (O. BL), JJ., concur.


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

text:
    INSURANCE.
    [Hamilton (1st) Court of Appeals,
    June 29, 1914.]
    Swing, Jones and Jones, JJ.
    R. K. LeBlond Mach. Tool Co. v. Humboldt Fire Ins. Co.
    1. Fire Insurance, Reformation of Contract, Construction of Written Instrument.
    Where the meaning of a written instrument is not clear, it will be construed most strongly against the person who prepared it.
    2. Duty of Agent of Insurance Company.
    Where through mistake, fraud or inadvertence, the agent of an insurance company fails to insert in a policy of fire insurance a proper description of the location of the risk, the court will reform the policy to make such description correspond with the intention of the parties.
    ERROR.

      Robert A. LeBlond, for plaintiff in error.

      J. L. Kohl, for defendant in error.
   JONES (E. H.), J.

Plaintiff in error, who was plaintiff below, brought suit on a certain policy of fire insurance issued by the defendant company. The issues were made upon the plaintiff’s fourth amended petition, which alleged that the defendant, by the policies of insurance referred to, insured the plaintiff against loss and damage by fire to the amount of $400 on live patterns, etc., “all while contained in the building occupied by the Mowry Car Wheel Works Co., situated at the southeast corner of Eastern Avenue and Lewis street, Cincinnati, Ohio. ” It is then alleged that the patterns of the plaintiff on the premises of the Mowry Car Wheel Works Co. were stored in two separate buddings at the time the policy was issued, which fact, it is alleged, was known to the defendant’s agent; that the intention of the parties was that the said property should be covered while located and contained not only in the building at the corner of Eastern avenue and Lewis street, but also while located and contained in the other building on the premises of the Mowry Co.; and that by mistake, fraud or inadvertence the agent of the defendant company failed to include both buildings in the description of the location of the risk.

The reformation of the policy, so that the same will stipulate for insurance on the property referred to while located and contained on the premises of the Mowry Co. at the southeast corner of Eastern avenue and Lewis street, Cincinnati, Ohio, is prayed for, and that after reformation is ordered plaintiff be given judgment against said defendant in the sum of $400.

The total amount of insurance on these patterns, etc., at this, time, was $2400, which was divided among different companies who issued separate policies in amounts of about $400 each. It appears from the evidence in this case that at the time these policies were issued, and at all times since, the patterns had been left in the custody of the Mowry Car Wheel Works Co. by the plaintiff, and that about nine-tenths of the patterns were stored in the frame building which burned, and which stood a few feet away from the brick building immediately upon the comer of the two streets named.

Mr. Dillaby, a stockholder and a frequent visitor at the Car Wheel Company’s plant, was at the time engaged in the insurance business, and undertook at the request of the superintendent to obtain insurance upon said patterns, which said superintendent had been requested by the plaintiff company to secure.

' We think that there is satisfactory evidence that Mr. Dillaby knew that the great bulk of these patterns were stored in the frame building, and it was unquestionably his duty and the duty of the agents of the defendant company who wrote this policy to know what it covered and where the property was • located. In the absence of evidence to the contrary the company through its agents must be presumed to have known where the patterns were. The building which was destroyed, or at least a portion thereof, had been for at least 30 years, and possibly for 50 years, used exclusively for the storage of patterns. It is true that in late years some few patterns were stored in the brick building at the corner, which, according to the claim of the defendant in error, is the only building described or contemplated in the policy. In this connection see Richards, Insurance (2 ed.), p. 53, par. 6, Sec. 43, which reads:

“The contract of insurance having been framed by the insurers in their interest, and the insured being compelled to accept the form offered in order to secure insurance, any ambiguity as to the intent or meaning of its terms, or what properly was intended to be covered, or where situated, will be construed in favor of the insured, and with the purpose of granting him an indemnity for his loss. ’ ’

This policy was written and executed by the insurance company and by it delivered to the insured, or rather to the Mowry Car Wheel Works Co. for the insured. It is a familiar rule of construction that an instrument will be construed, where its meaning is not clear, most strongly against the person who prepared it. This rule of construction, coupled with the presumption of knowledge as to the location of the patterns on the part of the defendant company, makes it appear to the court that there should be a reformation of said policy and that the court below erred in instructing a verdict for the defendant. We think that the instruction was prejudicial to the rights of plaintiff in error, and that substantial justice has not been done.

For these reasons the judgment is reversed, and the cause remanded for further proceedings.

Swing and Jones (O. B.), JJ., concur.


author: JONES (O. B.), J.

text:
    APPEARANCE — COURTS.
    [Clinton (1st) Court of Appeals,
    June 9, 1915.]
    Jones, Jones and Gorman, JJ.
    Cluxton v. Smithson.
    Appearance and Consent to Continuance Held Waiver of Jurisdiction of J. P.
    When the subject of action is within the jurisdiction of a justice of the peace, and the defendant, without objecting to the jurisdiction of the justice of the peace over his person, appears and consents to a continuance, before the filing of a motion to dismiss for want of jurisdiction, such defendant thereby confers jurisdiction of his person upon the magistrate.
    ERROR.

      Hayes <& Hayes, for plaintiff in error.

      H. S. Pulse, for defendant in error.
   JONES (O. B.), J.

This action below was one brought in the court of common jileas seeking to enjoin defendant in error, C. E. Smithson, from causing an execution to issue upon a certain judgment taken against plaintiff in error before J. A. Saunier, a justice of the peace in and for Jefferson township, Clinton county, Ohio.

The petition states that Clayton Cluxton was on March 19, 1913, and for many years prior thereto, a resident and freeholder of Clark township, Clinton county: that there were then two justices of the peace duly elected, qualified and acting as such in said Clark township, neither of whom was interested in the controversy or disqualified under the terms of clause 3 of Sec. 10225 G. C. and therefore not competent to try the cause; and that notwithstanding said fact the defendant filed with J. A. Saunier, justice of the peace of Jefferson township, a certain bill of particulars against plaintiff claiming a money judgment for violation of a contract and upon an account for work and labor. It appears further from the petition that the justice of the I>eace made an entry in said case upon his docket, stating that it appeared to bis satsifaetion that the defendant (Cluxton) was a resident of Clark township of said county, which is an adjoining township to Jefferson township, and that there was no justice of the peace in said Clark township competent to try said cause, and that he therefore took jurisdiction of said cause.

A summons was duly issued and served upon the defendant in that action, and although the entire proceedings are not set out in the petition in this action enough is stated to make it appear that certain continuances were had from time to time in said cause, some of which were by the act of the defendant, Cluxton; and that afterwards defendant there filed a motion seeking to dismiss the action because of the want of jurisdiction of said justice of the peace for the reason that defendant was then a freeholder and not a resident of Jefferson township, and did not come within any of the exceptions contained in Sees. 10224 and 10225 G-, C.

This motion was overruled by the magistrate and further proceedings were had which resulted in a judgment against the defendant, who then brought this suit seeking to enjoin execution under said judgment, and to have such judgment set aside and held for naught.

A demurrer to the petition was sustained in the court below, and judgment was entered in favor of the defendant. Error is prosecuted here to reverse that judgment.

The facts set out in the petition as above stated satisfy the court that Cluxton entered a general appearance consenting to continuance before the filing of his motion in the justice’s court to dismiss for want of jurisdiction, and therefore conferred jurisdiction of his person upon the magistrate. The subject-matter of the action was one over which the court had jurisdiction, and the appearance without objection to that jurisdiction at the time the continuance was arranged for gave the justice jurisdiction of the person. In Pittsburgh. C. & St. L. Ry. v. Fleming, 30 Ohio St. 480, the second clause of the syllabus is as follows:

“Where the subject of the action is within the jurisdiction of a justice of the peace, and the parties appear before sueh nearest justice, agree upon a day of trial, which is assented to by the justice, and. thereupon the defendant demands a jury, which is awarded him, he thereby waives all objection to the jurisdiction of such justice to try the case. ’ ’

The finding made by the magistrate upon which he took jurisdiction, which is set out in full in the petition, should have stated the reasons why neither of the two magistrates in Clark township was then competent to try said cause. But under the liberal construction that is allowed to the record of an inferior court, in reviewing its proceedings, this clause might itself be considered sufficient, so long as reasons contrary to the finding of the justice do not appear upon the record. Beebe v. Scheldt, 13 Ohio St. 406, 416, and McCurdy v. Baughman, 43 Ohio St. 78 [1 N. E. 93].

The defendant before the magistrate, to preserve his rights, could have introduced evidence showing the competency of one of said magistrates of Clark township, to support his motion, and could have brought error proceedings from the court of the justice of the peace to the common pleas court and have thus procured a reversal of any judgment entered against him; having failed to pursue this right under the law equity will refuse him a remedy.

“The authority of a magistrate cannot be collaterally attacked. A resident householder of one township being sued before a magistrate in another township, going to trial on the merits of the case without objection to the jurisdiction of the magistrate over him, will be taken to have waived his right to so object.” Caldwell v. High, 11 Dec. Re. 183 (6 Bull. 201).

The demurrer to the petition was properly sustained, and the judgment is affirmed.

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


author: SAYRE, J.

text:
    LARCENY.
    [Scioto Court of Appeals,
    December 26, 1917.]
    Middleton, Sayre and Walters, JJ.
    John Porter v. State of Ohio.
    Formation After Trespass of Intent to Steal Constitutes a Felonious Taking.
    If the original act of taking was a trespass and subsequently while the defendant is in possession of the property he forms the intent to steal, the crime of larceny is committed.
    [Syllabus by the court.]
    Error.

      Theodore K. Funk, for plaintiff in error.

      Joseph T. Michlethwwite, Pros. Atty., for defendant in error.
   SAYRE, J.

The defendant and two associates were indicted for grand larceny, charged with stealing an automobile owned by Lawrence Fitch and taken out of his garage in New Boston, Scioto county, Ohio, at night without his knowledge or consent. The machine was driven to Portsmouth and back through New Boston out of Scioto county and through Lawrence county to Huntington, "West Virginia, where the same was sold and the proceeds divided between the defendants. There was evidence tending to show that, when the automobile was taken out of the owner’s garage, there was no intent on the part of the defendants to steal it but simply to take a “joy-ride. ’’ The trial court charged the jury at defendant’s request before argument that to constitute larceny the intent to steal must be present in the mind of the defendant at the "time of the taking of the property. This instruction was Repeated in the general charge, but later therein the jury was instructed that if the intent to steal was formed by the defendant after the taking of the automobile and while he was in Scioto county with it, then the crime of larceny was committed in that county.

Unquestionably here are two conflicting propositions of law. If the first proposition is correct then there could be no lar-eeny, if the intent to steal arose after tbe automobile was removed from the garage of the prosecuting witness. If, however, the second proposition is correct then the first proposition, although erroneous, was not prejudicial to the defendant, for the effect of it was only to make it more difficult for the state to prevail and was thus favorable to the defendant. If the first proposition is correct than the giving of the second was highly prejudicial to the defendant because of the evidence tending to show that the original taking was without intent to steal.

The rule announced in 25 Cyc., p. 46, and in 17 R. C. L., Sec. 28, is that the intent to steal must exist at the time of the taking, and very many cases are therein cited as supporting this rule. But a careful reading of the reports will show that the rale is announced in a large number of cases where the original taking was entirely lawful, and it is admitted on all hands that if such was the character of the taking, then there can be no larceny. Two essential elements of larceny are trespass, or as-portation by trespass, and the intent to steal, and these must be simultaneous. If the possession was secured without trespass— that is, if the act of acquiring possession was lawful — then the possession remains lawful, and no subsequent act of the defendant in connection with the property can constitute larceny. So if the original securing possession was a trespass, it remains a trespass as long as the possession of the property continues in the defendant, and if to that is added the intent to steal the crime is complete, because both essential elements of larceny are present. State v. Coombs, 55 Me. 477 [92 Am. Dec. 610] ; Commonwealth v. White, 65 Mass. (11 Cush.) 483; State v. Davenport, 38 S. C. 348 [17 S. E. 37] ; King v. State [Ala.], 72 So. 552; Regina v. Riley, 14 Eng. Law & Eq. 554; 19 Eng. & Am. Encyc. of Law [2 Ed.], p. 507.

The thought which influences us to adopt the rule, announced in the authorities last above referred to, is that we can see no difference in the character of the act, whether the intent to steal is formed at the time of the taking or thereafter during the time the defendant has possess'on, provided the possession was unlawfully secured. Suppose the defendants in this ease did not have the intent to steal when they drove the ear out of the garage of the prosecuting witness, but did form such intent a half hour later as they were driving along the highway, what difference was there in the character of the act after the intent to steal was formed, than there would have been had the intent to steal been present when possession of the automobile was secured? Certainly there would be none. When there is an unlawful possession secured and kept, followed by the intent to steal, there is a felonious “taking” within the meaning of the technical form of indictment for larceny. To take in this connection means to appropriate for use, to get possession of and hold. The first act of laying hands on the property does not exhaust the meaning of the word “take,” but there is included the act of holding for use. So if the defendant unlawfully gets possession of property and keeps the same until he forms the intent to steal, he feloniously “takes” the same when to such unlawful holding there comes the intent to steal. In the case under consideration the “taking” began with the first act of the defendants in moving the automobile. The “felonious taking” began when the intent to steal was formed.

The judgment of the court of common pleas will be affirmed.

Middleton and Walters, JJ., concur.


author: FERNEDING, J.

text:
    CONSTITUTIONAL LAW — HOSPITALS.
    [Montgomery (2nd) Court of Appeals,
    June 20, 1916.]
    Femeding, Kunkle and Allread, JJ.

      State, ex rel. Woolery et al. v. Brenner et al.
    1. District Tuberculosis Hospital Act is Constitutional.
    The constitutionality of the district tuberculosis hospital act is not affected by act 103 O. L. 494, amending Sec. 3148 G. C., exempting municipalities containing a tuberculosis hospital.
    2. Discretion of District Tuberculosis Hospital Joint Board Not Interfered With by Courts.
    The joint board created by See. 3148 G. C. et seq. is invested with a discretion which cannot be controlled by the courts, at least in the absence of fraud or gross abuse of discretion.

      3. Tuberculosis Hospital Not Nuisance.
    The location and construction óf a tuberculosis hospital building does not constitute a nuisance per se.
    4. Injunction Lies to Protect Property Owner Not Party to Condemnation Proceedings,
    An owner whose lands are about to be taken for any public purpose, without being made a party to the condemnation proceedings and without compensation first being made, is entitled to have relief by way of injunction to protect his property.
    DEMURRER to tlie second amended petition.

      J. A. Kerr and J. A. SJiarts, for plaintiffs.
    D. W. Iddings, Robert C. Patterson, P. A. Saylor and Robert R. Kevin, for defendants.

       Judgment affirmed on authority of Brissel v. State, 87 O. S. 154.

   FERNEDING, J.

The ease involves important questions which have been thoroughly and ably argued by counsel on both sides. Some questions have been presented involving procedure, but we have gone to the merits of the case as presented by the petition.

We do not consider it necessary to go into detail, but will content ourselves with merely announcing our conclusions upon the controlling questions of the ease.

In respect to the constitutionality of the law, we feel bound by the decision of the Supreme Court in the ease of Brissel v. State, 87 Ohio St. 154 [100 N. E. 848], and other cases which the Supreme Court has had occasion to consider and in which it has been held that the tuberculosis hospital act [Sec. 3184 G. C. et seq.] is constitutional.

The counsel for plaintiffs refer to the exemption of municipalities containing a tuberculosis hospital, but we think that even if this question was not in the former cases presented to the Supreme Court, there would be a sufficient reason for the exemption of municipalities which had already provided a tuberculosis hospital. Whether tuberculosis patients of a municipality could find their way, by the process described in argument, through the county infirmary, into the district hospital, we are not called upon the express an opinion at this time.

In any event, as we are advised, this provision exempting municipalities having a tuberculosis hospital was introduced by amendment passed April 17, 1913 (103 O. L. 492, 494), and if that feature is unconstitutional, it would go to the validity of the amendment rather than to the validity of the entire act.

We therefore hold that the act, so far as involved in the present case, is constitutional.

We are also of opinion that the joint county board is invested with a discretion which can not be controlled by the courts, at least in the absence of fraud or gross abuse of discretion, and we do not consider that the facts stated in the second amended petition are such as to constitute either fraud or gross abuse of discretion.

The statutes have expressly authorized the location and construction of tuberculosis hospitals, and we do not think that we are justified, even under the averments of the second amended petition, in holding that the. location and construction of the hospital building constitute a nuisance per se. The nuisance, if any, contemplated by the second amended petition, must be held to be one growing out of the operation of the hospital and the question is, therefore, premature at this time. If the hospital should be operated in the manner shown by the averments of the petition, it would be ample time for a court to enjoin when such careless and negligent operation of the hospital should be demonstrated.

In respect to the contention, that there is'no money in the treasury available for the purchase of the property, we think this is insufficient for two reasons: First, the petition does not show that there is any money in process of collection, and, second, the statute would apply at the time when the joint boar,d condemned the property and is about to expend the county funds for the purpose of paying the purchase price. The property can not be taken until the compensation is actually paid.

There are other objections, made in the first and second causes of action, to the condemnation of the property and the location, and construction of the tuberculosis hospital,- but we think none of these are sufficient .to sustain an injunction.

The third cause of action seeks to prevent the joint board of trustees from appropriating certain real estate, in which the plaintiff has an interest, for a right-of-way and easement, without making or allowing plaintiffs to be made parties to the condemnation case and without first mating compensation therefor.

Counsel for defendants claim the fact to be that both Wool-ery and Ratcliff are made parties defendant in the condemnation case; but we are bound by the averments of the petition. While the plaintiff' Woolery does not very clearly assert that he and Ratcliff were not parties, yet the inference to that effect from the petition is sufficiently clear.

The petition avers that the right-of-way in controversy “Is sought to be appropriated by said condemnation proceedings without making or alloAving this plaintiff or said Alonzo Ratcliff to be made parties thereto.”

There is> a further averment that:

“Plaintiff has heretofore applied to said court of common pleas to have Alonzo Ratcliff made a party to the condemnation proceedings and said court overruled said motion and refused to allow plaintiff to plead therein.”

We think the necessary inference from these averments is that neither the plaintiff nor said Alonzo Ratcliff is a party to the condemnation proceedings. The case is, therefore, according to the petition, one in which the joint board of trustees are about to appropriate a certain right-of-way over the lands of the plaintiff, without his being made party to the condemnation proceedings and without first making compensation to plaintiff for his interests in the property about to be taken.

We think it is familiar law that an owner whose lands are about to be taken for any public purpose, without such owner being made a party to the condemnation proceedings and without compensation first being made, is entitled to have relief by way of injunction to protect his property.

It therefore follows that the demurrer to the first and second causes of action should be sustained and to the third cause of action overruled.

Decree accordingly.

Kunkle and Allread, JJ., concur.