author: TAGGART, J.

text:
    SALES..
    [Ashland (5th) Circuit Court,
    October 21, 1910.]
    Taggart, Donnelly and Voorhees, JJ.
    Durant-Dort Carriage Co. v. S. L. Karth & Bro.
    Offer to Purchase does not Constitute Enforcible Contract of Purchase Until Acceptance by Seller.
    An offer to purchase goods in accordance with a written or printed proposition previously submitted, does not constitute an enforcible contract of purchase, until the offer has been submitted to the seller and approved by him.
    Error to common pleas court.

      J. W. Myhrante, for plaintiff in error.

      Chapman é Taggart, for defendant in error.
   TAGGART, J.

The question in this proceeding in error is as to the action of the trial court in sustaining an objection to the introduction of any testimony, after a jury was impaneled to try the cause, which objection was sustained by the court, and a verdict directed, and the petition dismissed.

If the amended petition, upon which this ease was put to trial, contains facts constituting a cause of action, then the action of the court was erroneous and prejudicial. If, however, the amended petition does not state facts constituting a cause of action, then the action of the court in sustaining the objection to the introduction of any testimony was proper.

The action in the court below was based upon an alleged written contract, and the amended petition refers to a copy which is attached thereto and made a part thereof, marked exhibit “A,” and then refers to ,the terms of the alleged contract, and from the terms so referred to, the right is claimed to recover for the damages stipulated therein.

The court has the right, in construing the petition, to look to the exhibit that -is made a part thereof, not to help out the petition to make a good cause of action, but may look to it for the purpose of determining whether the averments of the petition are supported by the exhibit and if there is a variance between the terms of the exhibit and the allegations of the petition, the exhibit must control and the court may declare the petition insufficient.

An examination of the exhibit attached to the amended petition does not sustain the averment that the cause of action is founded upon a written contract. The exhibit, by its terms, is simply an order or an offer to purchase certain goods of the plaintiff, according to the terms of the order or offer, so made by the defendants. One of the terms and conditions of this order or offer to purchase is as follows, “Subject to approval of the Durant-Dort Carriage Co.”

Now, it is averred in the amepded petition that the plaintiff accepted said order and approved the same, and fully performed its entire part of said contract. But the exhibit itself contains no approval, nor evidence of approval by the plaintiff, neither is it averred that such an approval was ever eommunicated to the defendants, and the averment that it fully per7 formed its entire part of said contract, we think, is clearly referable to the fact that it constructed the buggies named therein.

But, it is a clear rule of law, sustained by abundant authorities; that an order or offer to purchase goods, under a written or printed order, similar to the exhibit attached to the amended petition, is a mere offer, and before notice of acceptance may be revoked by the party making the offer or signing the order. This • amended petition avers that the defendants refused to accept the goods or refused to give any orders for shipment. It is not shown that they had in any wise accepted, or had any knowledge of the approval of said order by the plaintiffs, and such refusal was. the equivalent of revocation of the order so made by them.

We think there was no error in the action of the court in sustaining the objection to the introduction of any testimony, as in our judgment this amended petition did not state a cause of action.

The judgment of the court of common pleas is affirmed with costs, and remanded for execution.

Donnelly and Voorhees, JJ.,


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    EVIDENCE — JUDGMENTS AND DECREES.
    [Hamilton (1st) Circuit Court,
    February 3, 1912.]
    Smith, Swing and Jones, JJ.
    Addison Y. Reid et al. v. George Mathers et al.
    Res Adjudicata not a Bar Unless Demand In Issue has been Adjudicated on Merits to Determine Which the Record of Former Trial is Admissible.
    Res adjudicata is not a bar to recovery unless the demand sued on has been adjudicated on its merits in the former trial to determine which so much of the records of such trial as will aid in the determination of the issue interposed is admissible. Hence a judgment, inadvertently including certain items not then due or paid by plaintiff, which the court, sua sponte, on motion for new trial, deducts from the sum adjudged and to which remittitur of excess plaintiff consents, is not a bar to an action for recovery of the amounts thereafter paid.
    [Syllabus approved by the court.]

      Error to common pleas court.

      Horace L. Smith and H. E. Engelhardt, for the plaintiffs in error.

      Chas. B. Wilby and Oliver S. Bryant, for defendants in error.
   JONES, J.

We think.it was proper to admit all evidence in the court below which tended to prove what the entry of April 21, 1903, in case No. 121794 in common pleas court really meant. The former judgment could only be a bar to recovery in case the court in that case decided the claim here sued upon on its merits. It is claimed that this was done; that the court regularly rendered judgment for a sum including the items upon which the petition in this ease is based.

The record bears out this claim.

But, after the case had been heard and decided by the court without the intervention of a jury, a motion for a new trial was filed in which there was no mention of mistake or excess in the amount of the judgment. The motion was overruled and in the entry the court, apparently on its own motion, corrected the former judgment entry in the amount thereof, expressly stating that by inadvertence it included certain items or sums of money not yet paid by plaintiffs.

The action was one for damages and the trial court evidently acted upon the theory (correctly, as we think) that where the assessments had not been paid the right of action had not accrued.

But, it is not material whether or not this view was correct. The entry shows clearly that the reduction was made solely for the reason, as before stated, that the assessments had not yet been paid and that the right of action had not accrued. There was, therefore, in the action of the court, no adjudication of these separate items of the account upon their merits.

The use of the word “remit” in the final entry can-not change the rights of plaintiffs, as the manifest intention was to consent to the reduction only, and this, for the reasons given by the trial judge. There is no waiver, express or by implication, of the items of the account which the court found had been erroneously included in the judgment. There is no remittitur of the claim, but simply, “from said judgment.” There is no language in the entry that .could be construed into a voluntary relinquishment of the claim.’

The verdict below and judgment thereon are sustained by the evidence and we find in the record no prejudicial error.

Judgment affirmed.

Smith and Swing, JJ., concur.


author: JONES, J.'

text:
    NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    July 29, 1911.]
    Smith, Swing and Jones, JJ.
    Isaac Bishop v. George D. Becker.
    Cleaning Exterior of Buildings by Sand-blast Process not Negligence per se.
    Cleaning the exterior of a building by 'the sand-blast process, littering the sidewalk with sand and gravel, is not negligence per se, from which a court will presume such manifest danger arising therefrom to persons passing along the sidewalk below as would require more than ordinary care on the part of those operating the device.
    [Syllabus approved by the court.]
    Error to common pleas court.
    The plaintiff complains that, while passing a building, the walls of which wmre being cleaned by the defendant by the sandblast process, he fell upon the sidewalk and sustained serious injuries, averring the fall was due to the littering of the sidewalk with sand, pebbles and gravel, thrown against the building by the process employed.

      Prescott Smith, for plaintiff in error.
    W. A. Rinckhoff, for defendant in error.
   JONES, J.'

We have searched the record of this proceeding in vain for any evidence of negligence on the part of plaintiff in error.

One of the plaintiff’s witnesses below -testified that there was a man with a broom sweeping sand from the sidewalk.

Another testified that they tried to catch all the falling sand by means of a canvas, but that same was impossible. He said “they tried to catch it all but couldn’t.”

We are not asked to hold, nor could we, that the cleaning of the exterior of a building on a public thoroughfare by sandblasting -is negligence per se. It seems that only upon such doctrine could the verdict in this case be sustained.

. There is no evidence to show that sand scattered upon a stone walk is dangerous to pedestrians and we can not presume such manifest danger as would require of the defendant below extraordinary care.

Ordinary care is that degree of care which is commensurate with the danger naturally and necessarily connected with the act complained of.

There is a lack of evidence showing want of such care in this case and the judgment will be reversed.

Smith and Swing, JJ., concur.


author: METCALFE, J.

text:
    DEATH — MINES AND MINING.
    [Jefferson (7th) Circuit Court,
    December 20, 1911.]
    Pollock, Metcalfe and Norris, JJ.

       Elizabeth Rankine, Admrx. v. Pennsylvania & Ohio Coal Co.
    Administratrix of Employe in Mine may Maintain Action for Death by Wrongful Act of Employer.
    An action for damages for wrongful death of a person employed in a mine, occasioned by negligent, though not “willful” acts on the part of his • employer, such as would have entitled him to recover if living, may be maintained by his administratrix by virtue of Gen. Code 10770, as amended 101 O. L. 198.
    [Syllabus approved by the court.]
    Error, to common pleas court.

      Ershine & Smith, for plaintiff in error.

      Blandin, Hodgsett & Ginn and Mansfield & Merryman, for defendant in error.

      Affirmed, no op., Ohio & Pennsylvania Co. v. Rankine, 87 O. S. 000; 58 Bull. 155.

   METCALFE, J.

This action was brought by Elizabeth Rankine, as administratrix of Henry Rankine, deceased, for the benefit of his widow and children to recover damages for the death of said Henry Rankine from injuries received in the defendant’s mine. Plaintiff recovered a judgment in the common pleas court. A motion for new trial was overruled and thereupon the defendant filed a motion in arrest of judgment and for judgment notwithstanding the verdict. These motions were both sustained and judgment entered for the defendant and it is to reverse that judgment that error is prosecuted in this court.

The action having been brought by the administratrix for the benefit of the widow and children of the decedent the common pleas court rendered the judgment non obstante veredicto upon the theory that under the provisions of Gen. Code 972, as amended 101 O. L. 86, the action could only be maintained by the widow and lineal heirs, and not by the administratrix, and that for injuries occurring in a mine resulting in death to an employe said Gen. Code 972 is exclusive and furnishes the only remedy. The petition in- this ease does not state any act of willful negligence, but does allege several negligent acts which would entitle the plaintiff to, recover unless such right to recover is limited by Gen. Code.972, to acts of willful negligence.

By the act. of April 5, 1910, 101 O. L. 86, known as the “mining code,’.’ Gen. Code 878-898, inclusive, were amended and their provisions very much enlarged. Gen. Code 972 provides :

“In case of an injury to persons or property, occasioned by a violation of any of the provisions of this act, or any willful failure to comply with .any provision of this act by any owner, lessee or agent of a mine, a right of action shall accrue to the person injured, for any direct damage he may have sustained thereby. In case of loss of life, by reason of such willful neglect or failure, a right of action shall accrue to the widow and lineal heirs of the person whose life has been lost, for like recovery of damages.”

The right to recover for a wrongful death is statutory. Did the legislature intend by this section to limit the right to recover for the wrongful death of a person employed in a mine' to cases where the negligence complained of was willful, and to limit the right to recover to the widow and lineal heirs in all cases? By Gen. Code 10770, et seq., where the death of a person is caused by a wrongful act a recovers- may be had in the name of the administrator for the benefit of the widow and children, or if there be no widow and children then the father and mother, brothers and sisters, or the .next of kin. This statute is general, and applies to all cases of wrongful death, and will apply to the case of a miner unless the language of Gen. Code 972 is so restricted as to limit all recoveries for wrongful death in mines to the widow and lineal heirs, and to cases where the negligent acts causing death are willful.

The “miners code,” of which Gen. Code 972 is a part, is very comprehensive in its terms and deals not only with the rights, duties and liabilities of the mine owners and operators, and their employes toward each other, but it deals-also with the obligations and duties of the owners of mines towards private citizens whose rights may be affected by the operation of mines, and with the rights and duties existing between the mine owners and fhe public generally. Any person injured in person or property by a violation of the provisions of the act, or by any willful failure to comply with any of its provisions, may recover damages. It is perfectly clear that the right of an injured person to recover is not limited to a willful failure to comply with the provisions of the act, but he may recover for any violation thereof by which he is injured. It hardly seems consistent with a just and reasonable interpretation of this act to hold that an employe in a mine may recover for an injury if he lives, if the injury be the result of negligence which is not “willful” but such as would entitle him to recover under the common law, but if he loses his life no recovery can be had unless the negligent act which resulted in his death is “willful.” Can we say that the legislature intended to take away from a class of persons coming under the provisions of the miner’s code rights which are granted and secured to all other persons, and to make the right to recover in their case for wrongful death depend purely upon the ground of willfulness, and deprive them of the right to recover for all other acts of negligence for which all other classes of persons may recover. This certainly would be a discrimination against a class which we do not think the legislature intended to make, and we can not put such an interpretation upon the law unless its provisions plainly require it. That the mining code was intended to cover all cases which might arise between mine owners and their employes, and to fix the basis of recovery where such employes were injured, whether death results from the injury or not, we do not doubt. Having been specifically enacted as a code of laws relating exclusively to the operation of mines, and defining as it does the rights, duties, and obligations of the mine owners and employes toward each other, makes it clear enough that so far as it does specifically define those duties and obligations, and provides specific remedies for violation thereof the remedies provided must be followed.

Where death is caused by a willful failure to comply with the provisions of the act, it would seem that the right to- recover is exclusive in the widow and lineal heirs. The provision is “ a right of action shall accrue to the widow and lineal heirs of the person whose life has been lost.” If the right of action “accrues” to the widow and lineal heirs, then it follows that the action must be in the name of the’ party in interest, that is, the widow and lineal heirs. A determination of this question is not necessary to a decision of the question before us, and speaking for myself alone I think it may be doubtful, in view of the provisions of the “Norris act,” whether the willful clause is exclusive, but whether it is or not it does not follow that the widow and lineal heirs are the proper parties to sue and recover in ease the negligent act or acts causing death are not willful but aré such acts as would have entitled the party injured to recover if he had lived. Gen. Code 972 must be construed in connection with Gen. Code 10770, et seq., as amended, 101 O. L. 198. Gen. Code 972 contains no provision relative to the amount which may be recovered for a wrongful death in any case. This must be determined by the general provisions of Gen. Code 10772. The “Norris act,” so-called, was passed at the same session of the general assembly as the mining code, and Gen. Code 10770, et seq., as amended, are a part of that act. That act relates to all classes of employes, and by its express terms it included all actions for wrongful death. The provisions relating to superior servants, fellow-servants, assumed risk, contributory negligence, etc., apply as well to miners as to any other class of employes. Original Gen. Code 10770 which created a remedy in case of wrongful death, was repealed and re-enacted as part of the Norris act without change except that the words “in every such case” were omitted. The omitted words served no purpose in the statute unless it was to encumber it with superfluous language, and their omission does not change the meaning of the section in the least. The reenactment of Gen. Code 10770 as part of the Norris act is significant, and would seem to indicate an intention on the part of the legislature that every action for wrongful death should be governed by its provisions. Certainly all such actions are governed by its provisions unless they are clearly excepted from its operation by some other law, and the provisions of that section would govern in this case unless they are excepted therefrom by the provision of Gen. Code 972.

We have not concerned ourselves with the meaning of the word “willful” as used in Gen. Code 972. We see no occasion for extending its application to gil cases of omission to perform a duty, but take it in its ordinary meaning as indiegting a purposeful omission to comply with some provision of the statute. When such is the ease and death results th'e right of action accrues to the widow and lineal heirs. We think, however, that this is not the case where death results from an act of negligence which is not willful. In such case the action should be maintained by the administrator under the provisions of Gen. Code 10770, et seep, as in other cases.

Pollock and Norris, JJ., concur.


author: POWELL, J.

text:
    BRIDGES — DRAINS AND DITCHES — RAILROADS.
    [Wayne (5th) Circuit Court,
    October 18, 1911.]
    Voorhees, Shields and Powell, JJ.
    Ashland & Western Ry. v. Wayne Co. (Comrs.) et al.
    Railroad not Liable for Cost of Railway Bridges Over Artificial Water Courses.
    A railway company cannot be made liable under Gen. Code 6518 for the expense of constructing a bridge or culvert over an artificial water course, constructed underneath its tracks and established 'after the company acquired its right of way at its own expense, and constructed a railroad thereon.
    [Syllabus approved by the court.]
    Error to. common pleas court,

      Semple & Sherriok and Eugene Carlin, for plaintiff in error.

      L. B. Critchfield, Jr., and S. B. Eason, for defendant in error.
   POWELL, J.

This action comes into this court on a petition in error, filed by the Ashland & Western Railway Company, against the commissioners of Wayne county, Ohio, and Harry L. Henderson, alleging error in the orders of said commissioners establishing a county ditch upon the lands of the defendant, Harry L. Henderson, and in which order the commissioners required the plaintiff in error,'to construct a bridge over said ditch at its own expense.

The original action was commenced by Harry L. Henderson filing his petition for said ditch with the county commissioners of this county, and after the same was allowed an appeal was taken by the plaintiff in error to the probate court of- this county, upon all the grounds upon which such appeal may be taken, and we are asked by the petition in error to review the action and judgment of the probate court upon such appeal.

We have examined this record upon all the assignments of error set forth in the petition in error, and find that there is error' in the charge of the court for which the judgment below should be reversed. There may be other errors in the record, but they are not of sufficient importance to justify a reversal of ■the judgment, but we find that the probate court in construing R. S. 4495 (Gen. Code 6518) instructed the jury.

“If you find that the location and construction of the bridge on the railway at the crossing of the proposed ditch, No. 187, is necessary to the public health, convenience or welfare, it is the duty of the Ashland & Western Railway Company to locate and construct said bridge at its own expense, and it can not recover damages for the expense.”

This court is of the opinion that the section above quoted ought not to be so construed, because such construction would make the plaintiff in error liable at its own 'expense to construct a bridge or culvert over an artificial w-ater course, that was established after it had acquired its property and constructed a railroad thereon at its own expense and such construction would render the statute unconstitutional. Alma Coal Co. v. Cozad, 79 Ohio St. 348 [87 N. E. Rep. 172; 20 L. R. A. (N. S.) 1092], supports this view.

The syllabus of this ease is:

“1. The provisions of the constitution forbid not only the taking of the private property of one, but as well the laying of. an imposition upon it, for the sole benefit of another.
“2. The act of April 18, 1904 (97 O. L. 138), may not be so construed and administered as to charge an owner of lands which are, and are to remain unenclosed, with any part of the expense of constructing and ' maintaining a line fence for the sole benefit of the adjoining proprietor*. ”

It is not contended here by any one that the establishment and construction of this bridge is for the benefit of the plaintiff in error, but it is admitted that it will be solely for the benefit of others than itself, and if such construction would be allowed to prevail, the plaintiff in error would be suffering the imposition of an assessment for the benefit of other parties, and which, in effect, would be the taking of its property for the benefit of others without compensation.

This instruction to the jury naturally would influence their decision upon the question of compensation and damages, and we think that there is such prejudicial error in such instruction that the judgment of the probate court should have, been reversed. For these reasons, the judgment of the court of common pleas, affirming the judgment of the probate court, and the judgment of the probate court, will be reversed, and the cause remanded to the probate court for further proceedings according to law.

Shields and Voorhees, JJ., concur.


author: HENRY, J.

text:
    EVIDENCE — NEGLIGENCE.
    [Cuyahoga (8th) Circuit Court,
    June 14, 1909.]
    Marvin, Winch and Henry, JJ.

      Newburg Brick & Clay Co. v. Joseph Chojnicki.
    1. Evidence of Executory Agreement to Settle Incompetent in Action Subsequently Brought;
    Evidence of an oral executory agreement of settlement for personal injuries received is properly excluded in an action for damages for such injuries.
    .2. Evidence of Previous Occurrences of the Character for Which Damages are Sought, Competent.
    In an action for damages for injuries to plaintiff from being struck, while standing on his own premises, by a stone thrown by a blast in a neighboring quarry, evidence of previous instances of stones being thrown upon the land of the plaintiff is competent, where admitted for the single purpose of show- - ing whence the stone came that struck plaintiff and the «distance it might be' thrown in that way.
    IProof of this decision was submitted to Judge Henry and corrected. — Ed.]
    Error to common pleas court.

       Affirmed, no op., Brick & Clay Co. v. Chojnicki, 83 O. S. 450.

   HENRY, J.

The defendant in error recovered a verdict and judgment of $250 in the court of common pleas for personal injuries received by him, in consequence of being struck by a piece of ■.stone flying upon his own premises from a blast in the quarry of the plaintiff in error.

i The first error assigned is upon the exclusion of evidence of an oral executory agreement of settlement between the parties. This ruling was made upon the authority of Frost v. Johnson, 8 Ohio 393, wherein the first paragraph of the syllabus is as follows;

An accord with mutual promises to perform is not a good defense if there be no performance before'action brought. A part performance is not sufficient to bar tbe preexisting demand. ’•’

It is urged here, however, that while this doctrine was true at common law of a technical accord without satisfaction, it is now no longer under the reformed procedure, if it ever was true' of an executory contract, in which the consideration on either side is the mutuality of promises between the contracting parties. Upon the hearing we were impressed with this view, but upon careful examination of Frost v. Johnson, supra, and of the only other reported case in which it has since been cited by any reviewing court in this state, namely, Conard v. Bare, 29 O. C. C. 153 (8 N. S. 118), we conclude that the trial court was right.'

The second assignment of error is upon the admission of testimony of previous instances of stone thrown upon the land of plaintiff below by blasts from said quarry. The bill of exceptions discloses that one of the contentions made by the defendant below was, that stones could not be so thrown, and the evidence was admitted for the purpose of showing whence the stone came that struck the plaintiff, and how far such stones might be thrown./ "We hold that the evidence was admissible for these purposes merely.

The third and fourth assignments of error are respectively that the verdict is against the weight of the evidence and that it is excessive, but the evidence, as we have examined it, does not warrant us in interfering with the jury’s findings.

The judgment is therefore affirmed.

Marvin and Winch, JJ., concur.


text:
    EXECUTORS AND ADMINISTRATORS — SALES.
    [Hamilton (1st) Circuit Court,
    November 11, 1911.]
    Smith, Swing and Jones, JJ.

      Wallace Burch v. Cincinnati Trust Co. and Cincinnati Gas & Electric Co.
    Failure to Conform in All Respects with Statute In Sale of Corporate Stock by Administrator in Absence of Fraud does not Invalidate Sale.
    Omission by tbe probate court to fix tbe lowest price at wbicb corporate stock belonging to the estate of a decedent may be sold at private sale, does not invalidate a sale made in all other respects in conformity with Gen. Code 10704, without collusion or fraud and at the market price.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Robert B. Burch, for plaintiff in error.

      Louis A. Ireion, for defendant in error.

      Affirming, Burch v. Trust Co. 22 Dec. 6.

   JONES, J.

The order of the probate court, in that it does not fix a sum heloi*i..c*Aiicli the shares of stock could not be sold at private sale, is defective and not in compliance with Gen. Code 10704.

Such defect, however, does not impair the title to the stock in the plaintiff where it appears that the proceedings in all other respects conformed to the statutes and that the sale was •made in good faith, at the market value, and in the absence of fraud or collusion.

The petition. states a cause of action and the demurrer must be overruled. Sutherland v. Brush, 7 Johns. Ch. (N. Y.) 17 [11 Am. Dec. 282]; Edney v. Baum, 70 Neb. 159 [97 N. W. Rep. 252]; 1 Rockel, Prob. Prac. p. 420; Jelke v. Goldsmith, 50 Ohio St. 499 [40 N. E. Rep. 167; 49 Am. St. Rep. 730].

Smith and Swing, JJ., concur.


author: SHIELDS, J.

text:
    CONTRACTS — LIMITATIONS—TRIAL.
    [Stark (5th) Circuit Court,
    February, 1912.]
    Powell, Voorhees and Shields, JJ.
    Samuel Rudy v. Letitia Rudy.
    1. Statute of Limitations does not Run on Contract for Continuous Service until Breach or Other Termination.
    The statute of limitations does not begin to run on an express contract for personal services, theretofore performed and thereafter to be rendered and performed, until the contract is terminated by breach or otherwise; failure to specify time of payment, or period of service does not operate to bar recovery for services rendered prior to six years of date of bringing the action therefor, since the contract is of continuous nature.
    2. Jury Having Been instructed that it is Incumbent to Establish Contracts by Clear and Unequivocal Proof Further Instruction Putting Burden on Plaintiff Held Unnecessary.
    In an action for personal services, consisting of housekeeping for and nursing a person not a blood relative, it is incumbent only upon plaintiff to establish by a fair preponderance of evidence a contract therefor; hence, the jury having been instructed that the contract in question must be established by clear and unequivocal proof, error cannot be predicated on a refusal to give a written instruction 'before argument putting the burden on plaintiff to prove the existence of the contract by fair and satisfactory evidence.
    3. Refusal to lhstruct that if Nonrelative by Blood Probably Rendered Services as Acts of Kindness Rather than for Compensation no Recovery can be Had not Prejudicial.
    A request to instruct a jury in an action upon an express contract for personal services rendered another by one not a blood relative, that “if you find from the evidence that it is more probable the plaintiff rendered the services described in the petition as acts of kindness than with the expectation of being paid for the same, she can'not recover” is properly refused.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Craine <& Snyder, for plaintiff in error:
    Cited and commented upon by the following authorities: Disbrow v. Durand, 54 N. J. L. 343 [24 Atl. Rep. 545; 33 Am. St. Rep. 678]; Keegan v. Malone, 62 Iowa 208, 211 [17 N. E. Rep. 461]; Leitgabel v. Belt, 108 "Wis. 107 [83 N. W. Rep. 1111]; Martin v. Martin, 108 Wis. 284 [84 N. W. Rep. 439; 81 Am. St. Rep. 89b]; Fross, In re, 105 Pa. St. 258; Wright v. McLarinan, 92 Ind. 103; Hobnan, Ex parte, 28 Iowa 89; Marple v. Morse, 180 Mass. 508 [62 N. E. Rep. 966] ; Royants, In re, 73 Yt. 240 [50 Atl. Rep. 1065] ; Hinkle v. Sage, 67 Ohio St. 256, 263 [65 N. E. Rep. 999]; Townsend v. Eichelberger, 51 Ohio St. 213, 216 [38 N. E. Rep. 207] ; Tobias v. Richardson, 26 O. C. C. 81 (8 N. S. 74) ; affirmed, no op., Tobias v. Richardson, 72 Ohio St. 626; Gamer v. Ganser, 83 Minn. 199 [86 N. W. Rep. 18; 85 Am. St. Rep. 461] ; Landis v. Sapton, 105 Mo. 486 [16 S. W. Rep. 912; 24 Am. St. Rep. 403] ; Grisham v. Greer, 61 Kan. 533 [60 Pac. Rep. 312] ; Garter v. Carter, 36 Mieh. 207; Stevens v. Lee, 70 Tex. 279 [8 S. W. Rep. 40]; Ward, In re, 12 Circ. Dec. 44 (21 R. 753); Sidway v. Land & Live Stock Co. 187 Mo. 649 [86 S. W. Rep. 150] ; Dempsey v. McNabb, 73 Md. 433 [21 Atl. Rep. 378] ; Wagner v. Illuminating Co. 177 Mo. 44 [75 S. "W. Rep. 966]; Davis v. Gorton, 16 N. Y. 255 [69 Am. Dee. 694]; Gardner, In re, 103 N. Y. 533 [9 N. E. Rep. 306; 57 Am. Rep. 768] ; Miller v. Cinnamon, 168 111. 447 [48 N. E. Rep. 45] ; Ennis v. Palace Car, 165 III. 161 [46 N. E. Rep. 439]; Mosgrove v. Golden, 101 Pa. St. 605.

      A. M. McCarty and L. C. Wise, for defendant in error.
   SHIELDS, J.

Plaintiff below sought to recover of defendant below a judgment for a breach of an express contract for services rendered by such plaintiff to such defendant. >

In the petition filed in the court below by Letitia Rudy, plaintiff below, she sets up that Samuel Rqdy, defendant below, is indebted to her in the sum of $9,830, with interest thereon from January 10, 1911, for work done and services performed by her for the defendant, at his request, from February 16, 1892, or about said date, continuously until on or about January 10, 1911, in caring for his room and bed, washing his bed and clothing, cooking his meals, sewing and mending for him, nursing, caring for and attending him when sick and feeding him when he was unable to feed himself by reason of sickness and injuries received by him, keeping and earing for Ms promissory notes, bonds, deeds, securities and other valuable papers, attending and accompanying Mm at times when away from home, aiding and providing fuel, heat and light, and entertaining him and looking after his comfort and well-being, and for furniture, bed clothing and supplies furnished by her for his use during said period, which said services she says are reasonably worth said sum of $9,830, no part of which has been paid.

In said petition she further says that in the spring of the year 1893, the exact date of which the plaintiff can not state, the defendant made an express promise and agreement with plaintiff to pay her for said work and services theretofore rendered and performed by her for him, and for such work and services as she. should thereafter do and perform for him, but no time for payment nor amount of payment was at any time agreed upon, nor was there at any time any agreement as to how long the performance of said work and services should continue, and she prays judgment against the defendant for said sum of $9,830, with interest .thereon from January 10, 1911.

' To the plaintiff’s petition the defendant filed an answer in which, for a first ground of defense, he denies each and all of the allegations contained in said petition.

For a second ground of defense, the defendant avers that all of the claim of the plaintiff for things done by her for the defendant, as set forth in the petition, prior to January 10, 1905, did not accrue within six years next before this action was begun and is barred by the statute of limitations, there being no written agreement between plaintiff and defendant concerning •the things set forth in plaintiff’s petition.

To the defendant’s answer the plaintiff filed a reply to the second ground of defense' thereof in which she admits that there is no written agreement between the plaintiff and defendant concerning the things set forth in her said petition, but denies each and every allegation in said second ground of defense not therein admitted to be true.

With the issues thus made up, said cause was submitted to a jury, under instructions of said court, resulting in a verdict in favor of the plaintiff for the sum of $3,500. A motion for a new trial was filed by the defendant, which was overruled, and judgment wras entered upon said verdict. A bill of exceptions was prepared and tendered embodying all the evidence taken upon said trial including said court’s charge to the jury, and error is prosecuted in this court to reverse the judgment of said common pleas court. The petition in error filed contains the following assignments of alleged error as grounds for such reversal:

(1) Said court erred in overruling the motion of the plaintiff in error for a new trial.

(2) Said court erred in charge to the jury on the trial of said action.

(3) Said court erred in refusing to give the charges, and each of them, asked for by the plaintiff in error, before the commencement of the arguments.

(4) The facts set forth in the petition are not sufficient in law to maintain said action against plaintiff in error.

(5) Said court erred in the admission of the evidenet offered by the defendant in error, to which the plaintiff in er ror objected and excepted.

(6) Said court erred in ruling out the evidence offered by the plaintiff in error, to which the plaintiff in error excepted.

(7) Said judgment was given for the defendant in errot when it should have been given for the plaintiff in error.

As claimed by counsel in argument, the main question raised upon this record is not solved by any adjudicated case in the courts of this state, at least no such case is cited, but we find that like questions have been adjudicated in other jurisdictions, and we are therefore not without aid in applying recognized rules of construction to the claim made by the defendant below under the contract between the parties hereto, in respect to the statute of limitations. ,

The contract in question is denied by the plaintiff in error, but he insists that if made, as alleged in said petition, it does not limit the time for the termination of the services rendered, or fix any time therein for their' payment, or specify the prices to be charged and to be paid for said services, and therefore the plaintiff’s right of recovery is limited to six years immediately preceding the commencement of the action. In this contention we agree with counsel, if the action is based upon a running account for a period beyond six years, for under the holding of our courts, each item of an account is barred in six years after the right of action accrues thereon, unless there has been a part payment of the account or an acknowledgment of liability thereon, or a promise to pay the same in writing signed by the party to be charged thereby within six years before the action is commenced, Courson v. Courson, 19 Ohio St. 454. Every item of an account carries writh it an implied promise of payment, each sale, if made at different times, being a completed and independent contract, and subjects each item thereof to the rule imposed by the statute of limitations, but the question here made is not one on an open account, or on an account stated, but arises upon contract — upon an account for services furnished under a contract. The petition recites

“That in the spring of the year 1893, the exact date whereof the plaintiff can not state, the defendant made an express promise and agreement to pay her for said work and services theretofore rendered and performed by her for him, and for such work and services as she should thereafter do and perform for him, but no time for payment nor amount of payment was at any time agreed upon, nor was there at any time any agreement as to how long the performance of such work and services should continue. ’ ’

Said services having been rendered under a contract, nothing being specified therein as to what time payment therefor should be made, or how long such labor should continue or be performed, the question arises as to when the statute of limitation begins to run? As before stated, the plaintiff in error insists that all but six years of the claim of the plaintiff below, before suit was brought, is barred by the statute of limitations, and in connection with authorities cited he also cites Gen. Code 11222, which provides that an action upon a contract not in writing, either express or implied, is limited to six years. Is this contention supported by the decisions of courts where the question here presented has been squarely met and p-assed on, or is said contract to be construed as a continuous contract where the statute of limitations begins to run at the close of the services rendered ?

In the case of Carter v. Carter, 36 Mich. 207, it is held that:

“Where a person goes into the service of another upon an indefinite promise of payment for the same, and no price or no period is fixed, the bargain and service are alike continuous, and the statute of limitations does not begin to run against the claim until the service is concluded; the right of action at the close of the service is an entire right and applies to the entire service, and the employe is entitled to claim for the whole amount of all unpaid wages for all the service rendered under the agreement. ’ ’

In Hall v. Wood 75 Mass. (9 Gray) 60, it is held that:

“An account for work and'labor, with a bill of particulars, some items of which bear date more than six years before the commencement of the action, may be maintained for the full amount, notwithstanding the statute of limitations, if the whole work was done under an entire contract. ’ ’

In the 25 Cyc. 1076, it is held that:

“As against a cause of action to recover compensation for services rendered under an entire, indivisible contract, the statute begins to run when work is completed, although the work may consist of numerous parts or items, and although the contract provides that the compensation shall be made at stated intervals or in installments. This rule applies where the employer prevents further rendition of services, as by discharging the employe, or renouncing the contract; the employe’s action being to recover the value of the services actually rendered. ’ ’

In Schoch v. Garrett, 69 Pa. St. 144, it is held that:

‘ ‘ On the death of his wife, a father asked his daughter, the wife of the plaintiff, to keep his house, take care of him, etc., saying she should be well paid. The daughter kept the house for eleven years, until the father’s death. In an action against his administrator by the husband for the wife’s services, the court charged, that if the jury found it to be an entire contract not completed till the father’s death, the statute of limitations would not bar any part of the claim till six years after the death."

In Littler v. Smalley, 9 Ind. 116, it is held that:

"Services rendered under an agreement which does not state the time of payment or when the contract shall terminate-,, are under an entire continuous contract, and the statute o£ limitations does not begin to run until the service ceases..’”

In O’Brien v. Sexton, 140 Ill. 517, 524 [30 N. E. Rep. 461], it is held that:

"Where there is no special contract, the law will imply an agreement to pay for the materials as delivered and the work as one; but when one continues piece of work, consisting of a number of parts or items, is to be performed, the statute of limitations does not begin to run upon the completion of each separate part or item, but upon the completion of the whole. If the several items are merely parts of one transaction, the statute begins to run from the date of the last item.”

In the case of Morrissey v. Faucett, 28 Wash. St. 52 [68 Pac. Rep. 352], it is held that:

"Where services are rendered under a contract for an indefinite time, with no period of payment specified, the employment is a continuous one and ,the statute of limitations will not begin to run against an action to recover compensation until the services are ended.” Case of Ah How v. Furth, 13 Wash. St. 550 [43 Pac. Rep. 639], also cited.

In the case of Shorick v. Bruce, 21 Iowa 305, it is held that:

"When labor is performed under one entire contract running through several months, the statute of limitations commences to run from the completion of the work. ’ ’

The same holding has likewise been made by courts in other states, but we do -not deem it necessary to give citations from them.

In 3 Page, Contracts Sec. 1655, the principle is also recognized that:

“Limitations do not run against a continuing contract, as between the sheriff or his deputy or a contract to work for compensation, no time being specified either for payment or for the termination of the contract until the end thereof. ’ ’

In Wood, Limitations 348, the principle is also recognized that:

“In a contract for services, if the work is done under a continuous contract, and no time for payment is fixed, a right of action does not accrue until „the work is completed. ’ ’

True, as contended by plaintiff in error, a contrary doctrine seems to prevail in New York, and possibly elsewhere; but the general current of authority, under a contract such as we have been considering, fixes the time for the commencement of the statute of limitations to run at the termination or close of the services which, in this case, is January 10, 1911, when the breach of the contract occurred, and before which time the plaintiff below could not have maintained her action.

We hold, therefore, that this exception to the charge of the court below affords no ground of error.

Plaintiff in error also insists that the court erred in charging the jury that it might consider the claim of the plaintiff below for services rendered from February 19, 1892, to the time when said contract was made. It is claimed that there is no consideration supporting such promise for services already rendered. We think it clearly appears that the contract is entire, and if any part of it is valid and enforcible for the recovery of services rendered, the entire contract is valid and enforcible. The language of the contract is:

“That the defendant made an express promise and agreement to pay her for said work and services theretofore rendered and performed by her for him and for such work and services as she should thereafter do and perform for him.”

This part of the contract, we think, is to be construed together, and in the instruction of the court to the jury in this respect we find no error.

Plaintiff in error also urges upon our attention that the court below erred in refusing to give to the jury the following written requests, before argument:

(1) Before you can render a verdict for the plaintiff you must find by clear and satisfactory evidence that plaintiff and defendant entered into the contract set forth in the petition, and the burden of proving said contract is on the plaintiff.

(2) If you find from the evidence that it is more probable that the plaintiff rendered the services described in the petition as acts of kindness, than with the expectation of being paid for the same, then she can not recover in this action.

(3) If you find that the plaintiff and the defendant entered into the contract set forth in the petition then you can only allow the reasonable value of the wages rendered by plaintiff to the defendant under said contract, during the six years immediately preceding April 21, 1911, the time of the commencement of this action.

Sub. 5.of It. S. 5190 (Gen. Code 11447), provides that:

“When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given or rejected by the court before the argument to the jury is commenced.”

Does request No. 1 present a proposition of sound law as applied to the ease at bar ? If it does, said request should have been given, but if not, it was properly refused.. Contracts ordinarily are established by a preponderance of proof, except in eases where family relationship obtains- and where a higher • degree of proof is required -to overcome the natural presumption arising out of each relationship. The record in this case discloses no. such relationship between the parties to the contract in question, and the right of the plaintiff below to recover on her claim set up in said petition is therefore unaffected by considerations of the character mentioned. This -action being one-on contract, it is incumbent on the plaintiff below to make proof of said contract by a fair preponderance of proof, it appears that the court below even went further, and in its general charge instructed the jury that in order to entitle the plaintiff to recover, the contract must be established by clear and unequivocal proof. We think, therefore, that said request No. '1 was properly refused, and in the refusal of the court to give said request there is no error.

Request No. 2 we hold was properly refused. Of course had the jury found that the services rendered were so rendered without any expectation of being paid for, no recovery could be had therefor, but an instruction to the jury that if they should find from the evidence that it is more probable that such services were rendered as acts of kindness than with the expectation of being paid for the same, is, in our judgment, a marked departure from the well recognized rules of law governing courts in their • instructions to juries in respect to their duties in civil cases, and wre therefore hold that request No. 2 was properly refused, and in the refusal of the court to give said request there is no error.

Request No. 3 we hold was properly refused for the reasons already stated.

Not overlooking the importance of this ease to the parties hereto, we have read the record herein with no little care and find no substantial or prejudicial error to the plaintiff in error „ in the admission or rejection of evidence upon the trial, to which exceptions were taken by the plaintiff in error, and upon the whole record we find no error committed by the court prejudicial to the legal rights of the plaintiff in error, and the judgment of the court of common pleas is therefore affirmed, with costs, but without penalty.

Exceptions noted.

Powell and Voorhees, JJ., concur.


text:
    ASSIGNMENTS — INTERPLEADER—PARTIES.
    [Richland (5th) Circuit Court,
    September, 1908.]
    Taggart, Donahue and Craine, JJ.

      Myra W. Swett v. Mutual Benefit Life Ins. Co.
    1. Since Not All Contesting Claimants to Funds are in Court Stakeholder Is Entitled to Equitable Protection.
    Since .two or more persons are severally claiming -the same debt or property, and the party who is to pay the debt or deliver the property makes no claim of title or interest therein, and does not know to which of the claimants he should pay the debt or deliver the property, he is entitled to the protection of a court of equity by virtue of R. S. 5006, 5013 (Gen. Code 11262, 11255).
    2. Failure of Beneficiary to Bring In Assignee of Life Policy Assigned to Nonresident She is Remanded to Forum of Assignee for Determination of Issue.
    Where a policy of life insurance was issued in Michigan, the residence at that time of both the assured and his wife who was made beneficiary, and an assignment of the policy was afterward made in Michigan to' a resident of Michigan, and the assured died in Michigan, and the policy is still held there, and suit has been brought upon it by the assignee in the federal court in that state, an action brought in this state by the beneficiary, who is now a resident here, will be dismissed without prejudice for failure to make a bona fide effort to bring in the assignee of the policy as a party to the action, and she will be remanded to the Michigan forum for a determination of her rights.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Lewis Brucker and B. F. Long, for plaintiff in error.

      John R. Sayler and Cummings, McBride & Wolfe, for defendant in error.

      Affirmed, no op., Swett v. Insurance Co. 83 O. S. 470.

   TAGGART, J.

In the court of common pleas, see Swett v. Insurance Co. 20 Dec. 694 (8 N. S. 569), the plaintiff in error filed her petition on a policy of insurance issued by the defendant in error on the life of her husband, Edward E. Swett. The petition alleged the issuance of the policy as of the date of September 4, 1900, while the plaintiff and her late husband were residents of the state of Michigan. She further alleged that on October 24, 1906, her late husband departed this life; that due proof under said policy was given the defendant, all the requirements and conditions of said policy were performed. She averred further that the policy of insurance is not in the possession or under the control of the plaintiff, but that she is informed and believes, and, therefore, avers that the same is in the possession of the defendant,'and for this reason she is unable to attach a copy of said policy as an exhibit to her petition. She prays judgment in the. sum of $15,000.

This petition was filed on April 24, 1907, and on July 10, 1907, the insurance company filed its answer, in which it admits the execution and delivery of the policy on the life of Edward R. Swett. payable to the plaintiff, if living, upon the death' of the insured, and upon due and satisfactory proof of interest and of the death of the said insured, deducting from the policy the indebtedness to the company on said policy, together with the current year’s premium. The defendant further pleads a provision of the policy that, “no assignment of the policy shall take effect until a written notice thereof be given to the company.” It then pleads and sets forth a copy of an assignment of a policy to the ITackley National Bank of Muskegon, Michigan, which assignment is signed by the plaintiff and endorsed on said assignment of the policy, the acceptance of the same by the company and the filing of the same, and provision that if canceled, the original to be returned to the company.

It further avers the purpose of this assignment to secure certain indebtedness of $15,000 'to the Ilaekley National Bank, and that it is informed and therefore avers that no part of the same has been paid, and that the Hackley National Bank has made proof of a valid interest in said policy, and has made proof of the death of said Edward R. Swett; that it is entitled to a credit on said policy certain amounts set out in its said answer, and then says that the policy of insurance is held in the state of Michigan under said assignment, and is the same policy and insurance set out and referred to in the petition of plaintiff.

To this answer plaintiff replied admitting that the policy sued on contained the provision alleged in the answer, and that proof of the death of Swett was made to the defendant, and denies the remaining allegations of the answer.

In her second defense by way of reply, she admits signing the purported assignment of insurance in the county of Muskegon, in the state of Michigan, but avers that the purported assignment by her, as the wife of Edward R. Swett, was invalid and ineffective to convey any of her interest in said policy, and she sets out what purports to be several-sections of the laws of-Michigan in support of her claim.

In her third ■ defense by way of reply, she adopts the averments of her second defense, and alleges that' the purported assignment was without any consideration.

In her fourth defense, by way of reply, she sets out the alleged indebtedness, which said assignment was made to secure, was renewed from time to time and extensions of time given without her knowledge or consent, and that in consequence thereof the purported assignment is illegal and void and of no effect.

On November 15, 1907, the defendant filed its supplemental answer, in which is averred in brief that since the filing of its answer the assignee or assignees of said policy, the Hackley National Bank, and others, brought an actiqn in circuit court of the United States for the western district of Michigan against this defendant on said policy of insurance. It then further says that it disclaims any interest in any controversy respecting the validity of said assignment of said policy of insurance except in so far as this defendant may be protected in the payment of the money on said policy, towit, $14,160.46, as aforesaid, to the proper person or persons. It then avers that the said assignees of said policy of insurance “are parties necessary with plaintiff in this case in order that the controversy herein may be determined, that a determination of the controversy herein can not be made without the presence of said assignees.”

On March 10, 1908, the defendant by its motion moved the court for an order requiring the plaintiff to bring in the assignees of said policy as necessary and proper parties to the determination of this ease according to the supplemental answer of defendant filed herein, and upon failure or refusal so to do that her action be dismissed.

On May 10, 1908, this motion was heard, and on May 13, 1908, the court made the order, “whereas, the plaintiff failed to comply with the order of the court heretofore in reference to bringing in new parties, this case is dismissed without prejudice and adjudged- the costs against the plaintiff, to all of which the plaintiff at the time excepted.

Thereupon the plaintiff below, now plaintiff in error, filed her petition in error to reverse the judgment and order of the court o-f common pleas. And the question before this court is, was the judgment and order so made erroneous?

R. S. 5013 (Gen. Code 11262), is'as follows:

“ The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy can not be had. without the presence of other parties, the court may order them to be brought in, or dismiss the action- without prejudice. ’ ’

That the court may dismiss a case without prejudice for disobedience by the plaintiff of an order concerning-the proceedings in an action is determined by R. S. -5314 (Gen. Code 11586). But we take it that the order must be one that the court is entitled by law to make. This brings us to the real question in this case, did the court of common pleas have the right under the law to require the plaintiff to bring in the assignees of said policy of insurance, and upon default of bringing them in have her case dismissed without prejudice. It is claimed by plaintiff in error as this was an action at law for money only and as the insurance company had filed its answer tendering an issue that plaintiff was entitled to a trial by a jury on those issues, and the case was not one of equitable cognizance, neither did it fall within the provisions of R. S. 5013 or 5006(Gen. Code 11255).

It is further contended by plaintiff in error that the insuranee company, if it desires to protect itself from a multiplicity of suits, its remedy is to be found under R. S. 5016 (Gen. Code 11262 or 11265), by way of interpleader.

That in the ease at bar the action is upon contract, and that if the company is ready to dispose or pay it should come into court under this provision and there find complete protection for itself. It will be noted that when the original answer of the defendant was filed the defendant pleaded a provision of its policy and an assignment thereof to other parties. The plaintiff replied attacking the assignment as being invalid and void; subsequently by its supplemental answer it alleged a demand by the assignees of this policy upon it, for payment of the amount due thereunder. It then pleads a disclaimer of any interest in the controversy as to the assignee of the policy or as to the proper payees, and avers that it is willing to pay the amount of its liability. It will be seen that the company could not avail itself of the provisions of R. S. 5016, because it had already filed an answer and would be prevented from availing itself of this remedy under the statute.

At the 'time the motion was filed there was a controversy between the parties to this case. The controversy was in respect to this assignment. The plaintiff claimed the assignment was wholly invalid, nugatory and void. The determination of this controversy as to whether this assignment was nugatory and void or valid and in full force could not be determined, as we view it, without the presence of the assignees of this policy. While the company, in the case before the court of common pleas, might have gone on and litigated this case, yet it was a controversy purely between the plaintiff and the assignees of the policy.

' By the disclaimer in the supplemental answer, the attention of the court of common pleas was called tó the fact that there were matters of equitable cognizance before it.

First. By the accounting of the amount that was due on the policy.

Second. By the fact that there were other parties than the plaintiff claiming the funds or proceeds of this policy.

It did not appear that this was by collusion or through an independent or different contract or arrangement than that by which the plaintiff claimed to recover. So that several contingencies might arise: the defendant might be called upo<n to pay this policy twice in certain evepts, and in certain other events might be relieved from all responsibility.

In the first contingency it would be an inequitable and gross injustice to. it. In the second contingency it would be inequitable and a gross injustice to some of the contending parties. Now the Supreme Court in Penn v. Hayward, 11 Ohio St. 303, thus lay down the rule:

“A court invested with general chancery powers in this state, may decree specific performance of agreements to convey lands lying in another state, where all the parties, still bound by the agreement, are within the jurisdiction of the court, and have been served with its process.
“But where part only of the persons from whom such conveyance is required, are residents of the state, and the court has not acquired jurisdiction over the persons of the nonresidents, so that complete relief can not be had in that suit, the cause will be dismissed; especially where no real necessity exists for trenching upon the rule discountenancing multiplicity of suits. ’ ’

Sections 35 and 10 of the code (K. S. 5006 and 5013), providing for the joining of all persons in interest, etc., and that the court may determine any controversy when it can be done without prejudice to others, are permissive in their nature, except the last clause. They substantially adopt the rule in equity, and the discretion given must be exercised with a view to avoiding multiplicity of suits.

On page 306 the court says:

“The effect of these sections is to vest in the court a legal discretion to say, when and under what circumstances a suit may proceed without drawing into its vortex all parties interested in the questions involved in it, if it can be done without prejudice to the rights of others. But this discretion is not an arbitrary discretion. It must be exercised with due regard to established rules; and prominent among these, is the duty to avoid multiplicity of suits, and to obtain a final and complete determination of all the questions involved in it, with the least delay and at the least possible expense.
“There is much obscurity in the title of the code as to ‘parties to civil actions,’ owing to the effort to blend, in one system, the rules pertaining to suits at law and in chancery; but the rules of courts of equity will be found to predominate in its provisions. Judge Swan, in his recent and valuable treatise upon the code, at page 100, says that Sec. 35 is a substantial adoption of the equity rule, requiring persons whose interests are involved in the issue, and who may be affected by the judgment or decree, be made defendants; and adds as a sequence on the next page, that ‘all parties entitled to litigate the same questions over again in a new proceeding, instituted by them or either of them, are, in general, necessary parties.’ This is not perhaps a logical sequence of the rule as stated; but where considered in connection with the duty to avoid multiplicity of suits, it is believed to be correct. ’ ’

In this case the court dismissed the proceedings because all the parties to a complete determination of the case were not before it, and the court could not granit complete relief.

We are of the opinion that on the filing of the supplemental answer the court did obtain equitable cognizance and full power to grant complete relief of the parties by making the order that the assignees be brought in to the case, or that the case be dismissed without prejudice. R. S. 5016 is not exclusive, but is auxiliary to the practice in chancery respecting interpleader, and even if the matter before the court was not a matter of interpleader, it was one of equitable cognizance. Where two or more persons severally claim the same thing, and the party who is to deliver the property not claiming any title or interest therein himself and not knowing to which of the claimants he ought to render the debt or duty or deliver the property, and may be either molested by action or actions brought against him or fears that he may suffer injury from the conflicting claims, he is entitled to protection by a court of equity.

In this case the insurance was issued in the state of Michigan, the alleged assignment was made there, the assured died there, the policy is held there, suit is brought there on this policy, and there is nothing appearing to the court why the plaintiff may not assert her rights in that forum and have them there determined. By so doing no injustice will be done to any of the parties to the controversy, and the rights of all may be protected. This is not turning a suitor out of the courts of this state and requiring her to go to a. sister state. It is simply requiring her to attempt to secure the attendance of the contending party in this jurisdiction, or attempt to have her rights determined in a foreign jurisdiction, where an action is pending which would determine the entire matter, and in the event of failure after a bona fide effort to either secure the contending parties in this court, or effect an entrance into the case as a party in the foreign jurisdiction, this case could be commenced again and prosecuted to a finality. As the plaintiff is entirely responsible for this situation every equitable consideration requires that she should be required to conform her conduct so that no wrong or injustice will be done to either party.

And we think peculiarly in this class of oases where-no final judgment is to be rendered, there is reposed in the court a discretion to require the plaintiff to make the effort to secure the presence of the contending parties or suffer a dismissal of his case without prejudice. If the plaintiff after a bona fide attempt to secure the presence of the contending party and obey the order of the court, had failed, or had in good faith attempted to become a party in the foreign jurisdiction and had been denied, we do not see any reason why she might not again begin this action here alleging these facts, but until she has obeyed a proper order of the court she is not prejudiced by a dismissal of this action without prejudice.

The judgment of the court of common pleas is affirmed.

Donahue, J,, concurs.

Craine, J., dissenting.


author: PER CURIAM.

text:
    RAILROADS.
    [Richland (5th) Circuit Court,
    January, 1911.]
    Taggart, Donahue and Voorhees, JJ.
    Joseph S. Carter, Admr. v. Erie Ry.
    Railroad Company not Liable for Death of Boy Darting in Front of Train while Loitering on Right of Way.
    A locomotive engineer, keeping a lookout on the track in front his train, is not charged with the responsibility of watching the open railway grounds and right of way on either side of the track, in the belief that mere licensees on such grounds will attempt to cross the track in front of his train, and the company is not liable for striking a hoy who did attempt to cross the track almost immediately in front of a train.
    [Syllabus approved by the court.]
    Error to common pléas court.

      Farber & McCray, for plaintiff in error.

      Cummings', McBride <& Wolfe, for defendant in error.
   PER CURIAM.

The plaintiff, as administrator of the estate of Clarence A. Carter, deceased, grounded his action in the court of common pleas upon the alleged negligence of the defendant, see Carter v. Railway, 20 Dec. 398 (10 N. S. 292).

It was his claim that the deceased, Clarence A. Carter, came to his death in consequence of the negligence of the defendant company’s servants in failing to warn the deceased when in the immediate proximity of one of the company’s trains in passing over its line of road close to Springmill street crossing in the city of Mansfield.

The deceased was a boy between»eleven and twelve years old, who with a companion had gone to the Baltimore & Ohio Eailroad depot about four o ’clock on the afternoon of November 24, 1906. While at the Baltimore & Ohio Depot these two boys were required to go from the depot and. grounds and they passed across Springmill street to unenclosed lands belonging to the Erie Eailroad Company and the Baltimore & Ohio Eailroad Company. These unenclosed lands lie between» Springmill street and North Main street, in the city of Mansfield.

It is claimed in the petition that these unenclosed lands have for many years been opened and used by the public as a' way for passage between the Baltimore & Ohio depot and the said Main street, and points eastward thereof; that the defendant company had permitted the public to so use these unenclosed grounds, and that the same were highly dangerous and known to be such by the defendant company, and that while these two boys were upon these unenclosed grounds the defendant company so wrongfully and carelessly operated its train and wholly failed to ring its bell or sound its whistle on the engine of the train, or give any other adequate warning so that the deceased might have been aware of its presence and its approach and escape being run down by said train.

It is further claimed that the servants of the company failed to keep a lookout so as to watch its track in front of its trains, and in consequence of the alleged negligent, careless and wrongful acts of the defendant, the plaintiff’s intestate was killed. The answer is a general denial and averment of the contributory negligence on the part of the deceased at the time of the injury.

The defendant, at the close of plaintiff’s testimony, moved the court to direct a verdict for the defendant, which motion the court at the time overruled but submitted the ease to the jury under his instructions. The jury returned a general verdict and returned special findings which were objected to and excepted to by the defendant. Thereupon the defendant filed its motion for a new trial, which was afterwards sustained and a new trial was granted. And the defendant further insisted upon the court passing upon the motion so made at the close of all the evidence, which, the court sustained and entered a judgment against the plaintiff for costs. Plaintiff thereupon filed a motion for a new trial which was overruled, and bill of exceptions was taken and he now seeks the reversal of the judgment of the court of common pleas.

The plaintiff in error insists that the deceased being a boy of but ten years of age, and being upon unenclosed grounds of the defendant was entitled to more consideration than had he' been an adult, and that the proof in this case indicates that the grounds of defendant company were used by the public in such a way that these two boys were not trespassers but were licensees, and that the company owed them some duty by exercising care in approaching the Springmill crossing; suoh care in fact, that they should run their trains and keep a lookout that children of tender age or persons upon the grounds should not be run down and injured and killed as was the deceased in this„ease.

. The record in this ease discloses that these boys did not go to the Baltimore & Ohio for any purpose connected with the business of the railroad; the only excuse they give for being in that vicinity was that they wient to meet the incoming car which would cross the Baltimore & Ohio tracks at the Baltimore & Ohio depot, for the purpose of getting papers that would come from Cleveland. But it appears from the record that this was not the usual or customary manner of > securing these - papers, or that this errand would, necessarily lead them to pass over the unenclosed grounds of the Brie company. After failing to get their papers, the record discloses that they passed across Springmill street and entered upon the unenclosed grounds of the defendant. It does not show that they ever attempted to pass down the known track or way that it is claimed pedestrians took when passing from the Baltimore & Ohio depot eastward to Main street.

Upon the contrary the record seems to disclose that they were on the north .side of the Brie tracks with no well-defined purpose or object, either loitering or playing there or amusing themselves as they saw fit.

It does appear affirmatively that they knew of the approach of the defendant company's train from the east, it having passed the Erie station and was westward bound. We learn from the survivor of these boys that it was in contemplation that they cross the track in a southwardly direction to reach the Baltimore & Ohio depot; whether this was in the mind of the deceased we can only assume from his conduct.

We have a comparatively clear description of what was done by him after the two boys started from the north side of the Erie track in a southwest direction; an eye witness saw them start, describes their course and what they did. And the survivor of them gives us some information as to what the deceased did and the direction that he took.

It appears that he started in a southwesterly direction and ram parallel with the company's track westerly to near what is known as the “gateman’s tower,” when he started across the Erie track almost immediately in front of the engine that caused his death.

With this state of facts and the engineer having given all the usual and required signals, it is contended that the record shows that the engineer, he being on the north side of the engine, should have.kept a lookout and should have given such warnings as would have attracted the attention of the deceased.

But we do not think that this record justifies such a conclusion. As we have said, the deceased even if he were upon these grounds as a licensee, which is 'as much as could be claimed for him and perhaps more th-am he is entitled to be considered in this case, the company would only be liable When its servants saw him on the track, or when by the use 'of ordinary care they should have seen him. If by the exércise of ordinary care they saw him, if he was on the track or they should have seen him, and that could have prevented his injury, then they were required to do so.

But, we can not, as we view this record, hold that he was a licensee, but, on the contrary, as we view the record, we think he was a trespasser, amd if he was a trespasser on these grounds, then the company owed him no duty to sound any whistle or ring any bells except that they were not to be permitted to wantonly run him. down. As to the duty of the engineer to keep a lookout, we think the ease of New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130], lays down the duty of an engineer in respect to a lookout:

“It is the duty of a locomotive engineer to keep a lookout on the track ahead of the train. If while so doing his eye takes a person approaching the track he may assume that such person will be kept away from the track until the train passes; but when it becomes evident that such person will not be. kept off the track, it becomes the duty of such engineer to use ordinary care to prevent injury to such person, his first and highest duty, however, being for the safety of the passengers and property in his charge for transportation.”

In this case we conceive it to be the duty of the engineer to keep a lookout for Springmill crossing rath-er than for trespassers upon the right of way who might be approaching the track or attempting to cross, and this would be the case whether the boys were upon the unenclosed ground as licensees or as trespassers.

It can not be insisted, we think, that it was the duty, through these grounds, for the engineer to be compelled or required to keep a lookout for the track ahead of the train and at the same time keep a lookout for persons on the right of way, all the time assuming that the same would attempt to cross the track. But, if the deceased and his companion were mere trespassers and the engineer was in the use of ordinary care in' managing his train, and this record discloses that these boys traversed part of the unenclosed grounds and ran alongside of the track and gave no indication of their purpose to cross the track, until the deceased attempted to cross 'the track 'almost immediately in front of the engine, and hearing the warning cry of the witness Carr and that of his surviving companion turn and attempt to go back and was struck, we see no basis or foundation for any recovery in this case, for there can be no basis upon which any negligence can be imputed to the railroad company or to its servants in the operation of its 'trains.

We think the case of Wheeling & L. E. Ry. v. Harvey, 77 Ohio St. 235 [83 N. E. Rep. 66; 19 L. R. A. (N. S.) 1136; 122 Am. St. Rep. 503; 11 Ann. Cas. 981], and the cases there collated by Summers, Judge, in deciding that case, is absolutely controlling in this case, and we see no grounds upon which any recovery could be had under the averments of the petition or under the proof as made in this case.

Therefore we are clearly of the opinion that tbe court was right in sustaining the motion and the judgment of the court of common pleas is affirmed with costs.