text:
    EXPULSION OF A TRESPASSER FROM A MOVING FREIGHT TRAIN TO HIS INJURY.
    [Circuit Court of Richland County.]
    Edward Whistler v. John K. Cowan et al, Receivers.

    Decided, January Term, 1903.

      Master and Servant — Liability for Act of Servant — And of Railroad Company for Expulsion of Trespasser by Employe, When — What Must be Shown — Where the Expulsion was by Brakeman on a Freight Train — Authority Not Implied — And Proof that He was a Brakeman not Sufficient to Hold the Company — Agent or Employe of Adverse Party Can Not be Called for Purpose of Cross-Examination, When.

    1. A master is not responsible for the wrongful act of his servant unless the act be done in the execution of authority, express or implied, given by the master.
    2. A railroad company is liable for the willful wrong of its employe in expelling a trespasser from its freight train while in motion to his injury only upon proof that the act was done by such employe in the course of his employment and within the scope •of his authority.
    3. In order to hold a railroad company responsible for an injury resulting to a trespasser upon one of its trains when there is no contractual relationship between the parties, and the injury results from an order to get off the train by an employe other than the conductor, or the person in charge of the train, the party injured must establish one of two propositions: Either that there was direct authority given the employe to order such person off the train, or from the employment or position occupied by such employe giving the order that duty arises by implication of law.
    4. Where a regular freight train is in charge of a regular crew consisting of a conductor, engineer, fireman and necessary brakeman, in the absence of evidence showing by course of conduct, custom or instructions, that a brakeman thereof had authority to keep trespassers therefrom, such authority would not arise by implication simply from the fact that he was a brakeman.
    5. If a brakeman expels a trespasser from such a train while in motion, and the party expelled is injured thereby, proof of the fact that he was such brakeman is not alone sufficient to hold the company liable.

      6. It is not error to refuse to permit one party to a suit to call the agent or employe of the adverse party for the purpose of cross-examination before such person had been offered as a witness by the adverse party. Section 5243, Revised Statutes, does not apply to an agent or employe of the adverse party.
    Error to the Court of Common Pleas of Richland County.
    Edward T. Whistler, plaintiff in error, filed his petition in the Court of Common Pleas of Richland County, Ohio, against John K. Cowan et al, Receivers of the Baltimore & Ohio Railroad Co., in which it is alleged that he, on or about the 18th day of April, 1898, boarded a freight train of the defendants’company at Lexington, Ohio, that was bound for Mansfield, Ohio, and other points north on said defendants’ road, which said train was being conducted over said road by the agents of said defendants; that after said train had left Lexington, so situated on said road, and on which plaintiff was then riding, and after said train had attained a high rate of speed, to-wit, fifteen or twenty miles an hour, one of the employes on said train, an agent of defendants, a part of whose duty it was to keep unauthorized persons off of said train, without any provocation, other than that plaintiff was riding on said train, he, the said employe, in a menacing manner, with club in hand, approached plaintiff and ordered him to get off of said train. That plaintiff offered to comply with the demand of said employe on said train, whom he believed to be a brakeman, and who was a brakeman on said train, provided he would slow up the train or stop the same; that immediately after so communicating his intention to comply and act to said brakeman, he was again, in a most insolent, threatening and demonstrative manner ordered to leave said train instanter by said brakeman, who made no effort to slack the train, and thereupon said brakeman, in a most menacing and threatening manner, approached plaintiff and compelled him against his will to leap from said train while it was in motion and while at said great rate of speed. The petition sets forth the injuries caused thereby to the plaintiff, and asks to recover his damages, which are stated at '$15,000.
    Defendants’ answer, for a first ground of defense is a general denial, and for a second ground say that plaintiff was well acquainted with the movement of trains and the tracks and premises where he was injured, and on said 18th day of April, 1898, without necessity, excuse or promises therefor, went upon said defendants’ railroad train, and by his own negligence and want of ordinary care directly contributed to said injury.
    Plaintiff’s reply to this second defense was a general denial.
    On the trial to a jury, at the close of the plaintiff’s testimony, the court, on motion of the defendants, instructed the jury to render a verdict for the defendants, which was done. A motion for a new trial was overruled, exceptions taken, and judgment rendered on the verdict. A bill of exceptions containing all the evidence was taken and made a part of the record. Error is prosecuted to this court to reverse the judgment of the court below.
    Voorhees, J.; Douglass, J., and Donahue, J., concur.

      Affirmed oy Supreme Court without report, June 30, 1904.

   The question is, did the trial court err in directing a verdict for the defendant on the evidence produced by the plaintiff?

Without restating the allegations of the petition it will be observed that the plaintiff does not allege therein, or contend in his evidence, that he was a passenger upon this train; but it does appear from the evidence, that on the occasion of the injury he was wrongfully on the train as a trespasser. It is contended that, notwithstanding he was a trespasser on the train, if an agent of defendants ’ company or an employe on said train, a part of whose duty it was to keep trespassers and unauthorized persons off of the train, did, in a threatening and menacing manner, when the train was running at a speed of fifteen or twenty miles an hour, order plaintiff off of the same, and in obedience to such order, under the circumstances stated, plaintiff in getting off was injured, the company would be liable.

The answer of defendants puts in issue the allegation of the petition that the employe on this train was authorized or had any authority or control of the train in its operation, or in keeping persons off who had no right to be thereon.

The right of the plaintiff to recover in this action turns upon this question: Whether the person who ordered plaintiff off of the train was, at the time in the discharge of his duty, acting within the scope of his employment.

The petition does not allege who this employe was, does not describe his employment, except in one place the plaintiff says that he was an employe and an agent of the company, a part of whose duty it was to keep unauthorized persons off of said train; and in another place he alleges that “he believed said employe to be a brakeman, and who was a brakeman on said train. ’ ’ The evidence m the record upon this particular question the same act done by a servant falling within the other class, it is about as uncertain as the petition. The plaintiff in his testimony, in referring to the person who ordered him off the train, says, “he was a brakeman. ’ ’ There is no other evidence that this person who ordered him off the train was in fact a brakeman. Testing the question we will assume that the person who did order plaintiff off the train was a brakeman on that particular train. It was a regular freight train. Such a train must have more than one brakeman in charge of it. A regular crew may be assumed to have had charge of the train on this occasion, which would consist of a conductor, engineer, fireman, and the necessary brakeman. It was a train that did not carry passengers. It is conceded that the plaintiff was on this train wrongfully, not only in violation of the statutes of Ohio, but without authority from any one in charge of the train. In other words, he was a trespasser. From the evidence it appears that he and his companion, Bert Gray, got on the train after it had left the station at Lexington. After leaving this station and proceeding in its course toward Mansfield, this person, who plaintiff designates as the brakeman, saw plaintiff and his companion, Gray, on the train, and ordered them off.

"Without going fully into the details as to what occurred between the brakeman and these parties, it is sufficient to say, that from the record it appears that the plaintiff claims that the brakeman with a weapon in his hand and in a menacing manner advanced toward him and ordered him to get off; that if he did not do so, he would knock him off; and, in obedience to these orders and threatening manner, he undertook to get off the car he was on by going down the ladder; being a box car he was on top of it. On reaching the lower round or step of the ladder he jumped off, his foot went under the. car and he lost his foot and ankle.

It is not shown by any evidence in the record that the brakeman had any authority to put persons off of the train. It is alleged in the petition that he was so authorized. That is denied by the answer. The record fails to show that he had any authority in this regard. The record does not undertake to disclose what authority this brakeman had, whether he had charge of any portion of the train, or what his duties were as brakeman.

The question resolves itself in its legal aspect into this: Is a railroad company liable for the act of its employe, a brakeman, in expelling a trespasser from one of -its freight trains, while in motion, to his injury?

The company is liable when the' act is done by such employe in the course of his employment, and the act complained of is within the scope of his authority; otherwise not.

In order to hold the railroad company responsible for an injury resulting to a trespasser from the wrongful act of an employe, as in this ease, the party injured must establish one of two propositions: Either that there was direct authority given the employe to order the person off of the train, or that, from: the employment itself or position occupied by the employe, the duty arises by implication of law. It is not contended here that there was any direct authority given to this brakeman to do anything with reference to trespassers upon the train. There is nothing in the record showing or tending to show by any course of conduct, custom or instructions, that a- brakeman was so authorized or required to act as a part of his employment. Does this duty or authority arise by implication simply from the fact that he is a brakeman? If it does so arise, then it would have been the duty of the company to show in this case that what this brakeman did was outside of his implied duty or authority.

In the ease of a trespasser no duty except abstinanee from wanton injury and gross negligence lies upon the carrier to make the carrier or master liable. The wrong done by the servant or employe must be an act within the scope of his duty and in the course of his employment. Wood on Railroads, Volume 2, Section 316, page 12, states the principle thus:

“While in the ease of passengers, because of the contractual duty existing on the part of the company, the question as to whether the servant committing the injury had authority, express or implied, to do so, or in other words, whether it was done in the line of his duty, is not material, yet when the question arises between a trespasser, or one to whom this duty is not owed, and the company, a different question is presented, and the company can only be made liable when authority, express or implied, to do the act is shown. Thus the conductor of a train, being in charge of and having full control over it, represents the company as to any matter connected with its management or control, and for an act done by him in the line of his duty, as by the ejection of a trespasser, the company would unquestionably be liable: but for the act of a brakeman of the train, who, without the direction of the conductor, should remove a trespasser from the train, the company would not be liable, unless express authority to do an act to which the act complained of is incident, is shown, because the act is not one which comes within the scope of his duty.”

In Elliott on Railroads, Volume 3, Section 1255, the author says:

“A railroad company owes trespassers no contractual duty; indeed, as already stated, the general rule is that it owes them no duty, except not to willfully injure them, and this rule applies to those who are attempting to steal a ride, or otherwise trespass upon the company’s cars. They are not in a position to invoke the doctrine of apparent authority, and can only hold the company liable for acts of its employes done within the scope of their actual authority, express or implied.”

Outside of the exception as to passengers, the employes of a railroad company may be divided into two classes: for the willful wrongs of one class, though done to even a trespasser, the company is liable, because the act is done in course of their ' employment and within the scope of their authority; while for the same act done by a servant falling within the other class would not be liable. A company may be held liable for a trespass by a conductor of a freight train to a trespasser on his train, as in the case of Railway Co. v. Boyer, 18 Cir. Ct. (Ohio), page 327, but not for the same act of and by a brakeman on the same train.

These principles we consider to be supported by the following additional authorities: Railway Co. v. Wetmore, 19 O. S., 110; Stranaham Bros. Co. v. Coit, 55 O. S., 398; Nelson, etc., Co. v. Lloyd, 60 O. S., 448; Planz v. Railroad Co., 157 Mass., 377; International, etc., Ry. Co. v. Anderson, 82 Texas, 516; 27 Am. St., 902; Marion v. Railway Co., 59 Iowa, 428; 13 N. W., 415; Towanda Coal Co. v. Heeman, 86 Pa. St., 418; Bess v. Railway Co., 35 W. Va., 492; 29 Am. St., 820; O’Neill v. Railway Co., 2 Cir. Ct. (Ohio), 504, 510.

There is nothing in the record, applying even the scintilla rule, tending to show that the act of this brakeman was an act done within the scope of his duty as such brakeman or employe of said defendants’ company. In the absence of such authority ■and duty he would stand to the company just as a stranger would. If a stranger had ordered plaintiff off the car, as did this brakeman, the railroad company would not be liable. The railroad company can only be liable to trespassers for the act of a servant when the act done is ordered by the master or is the result from necessary implication from the employment. There is no evidence in the record tending to establish either of these facts or conditions of liability. Therefore the court of common pleas did not err in directing a verdict for the defendants.

There is one other ground of error which will be briefly considered. It is contended that the court erred in refusing to permit the plaintiff in error to call the engineer of this train for cross-examination. The court refused to permit the engineer to be called for cross-examination because he had not been offered as a witness by the company. The court informed plaintiff if he desired to put the engineer on the stand, that he could do so, but he would make him his own witness, and -not merely for cross-examination under the statute. This plaintiff was unwilling to do. Under the circumstances the court did not err in refusing to permit plaintiff to cross-examine the engineer.

Douglass & Mengert and Vivam Abernethy, for plaintiff in error.

Cummings, McBride & Wolfe, for defendants in error.

The court was justified in taking the case from the jury for the reasons stated, and the judgment of the court is affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    THE MODIFYING OF JUDGMENTS.
    [Circuit Court of Summit County.]
    The City of Akron v. The Cleveland Terminal & Valley Railroad Company.
    Decided, April 15, 1904.

      Jurisdiction on'Error — To Modify or Reverse a Judgment — Gan Only be Done on the Pleadings or the Facts — Record Silent as to the Facts.

    A reviewing court is without authority to render a different judgment from the ’one rendered helow, except upon the state of the pleadings, or a finding of fact, or a hill of exceptions containing the facts upon which such different judgment can he based; and where the record merely shows that the case was heard, and was argued hy counsel and judgment rendered, there can he no modification or reversal of such judgment.
    Hale, J.; Marvin, J., and McCarty, J., (sitting in place of Winch, J.), concur.
   This case comes into this court by proceedings in error.

On the 30th day of October, 1902, the city instituted proceedings in the probate court of this county for the assessment of the compensation and damages by reason of the appropriation of property belonging to the defendant railroad company, and others, to the use of the city.

After many delays, on August 4, 1903, the preliminary questions involved in the necessity and the right of the city to appropriate were heard by the probate court, and upon that hearing, for some reason, the court determined to consider the questions involved as against all other owners of property separate from and independent of the railroad company. As to all property owners, except the railroad company, the court found all jurisdictional facts involved in that hearing with the city, and that it was entitled to appropriate the property, and that a jury should be impanneled to assess the compensation and damages to the owners of the property; and there, as to all owners of property, except the railroad company, the record stops. On the same day this entry was made on the issues made between the railroad company and the city:

“This cause coming on further to be heard on the application filed herein by the city of Ákron to appropriate and condemn the lands described therein against the defendants therein named, and the amended answer to said application filed herein by the Cleveland Terminal & Valley Railroad Company (each and all the other defendants having failed to plead herein, and having failed to appear and contest the right of said city to appropriate said lands described in said application), the city of Akron and the Cleveland Terminal & Valley Railway Company introduced their evidence and the cause was argued by counsel and submitted to the court. It is therefore considered and adjudged by the court that the application of said city of Akron to appropriate said lands of said the Cleveland Terminal & Valley Railroad Company be and the same hereby is dismissed at its costs, but without prejudice to its right to commence a new proceeding for the appropriation of the property of said railroad company and the appropriation of the property of any or all of the other defendants herein named, for the extension of said Prune street. ’ ’

To all of which finding and judgment of the court exceptions were taken. A petition in error was filed in the court of common pleas to reverse so much of this judgment as added to the judgment of the court “without prejudice to its right to commence a new proceeding,” but leaving the balance of the judgment stand.

The court of common pleas reversed that part of the judgment, leaving it to stand as an absolute dismissal of the case, without the modification “without prejudice,” and the correctness of the ruling of the court of common pleas is now before this court for review.

No bill of exceptions was taken on the hearing of this issue before the probate court; there was no finding of fact by that court; and we are wholly ignorant of the facts upon which that judgment of the probate court was based. What we do know is, that after the evidence had been introduced, the court dismissed the proceedings without prejudice. Why, we do not know.

It is clear that this judgment, as a whole, can not be reversed upon this record. Indeed, there is no claim that it can be. No such claim was made in the court of common pleas. That court was only asked, in effect, to modify the judgment. We are satisfied that that judgment must stand as rendered, or the whole judgment set aside; and as it is not asked to set aside the whole judgment, it necessarily follows that it must stand as rendered. The judgment is an entirety. The' dismissal of the proceeding, without prejudice, has an entirely different legal effect from the dismissal of a ease with prejudice, or without that qualification. The probate court never rendered the latter judgment. That court adjudged that the proceeding should be dismissed without prejudice, but never held that, under the facts, the ease should be dismissed without that qualification. To strike out that qualification leaves a judgment that that court never rendered; and there are no facts upon this record from which this court, or the court of common pleas, could determine that that court intended to render such judgment, or that such judgment was the proper judgment to be rendered.

We are aware that a reviewing court, on the reversal of a judgment under proper conditions, may render such judgment as the trial court should have rendered in the case; but that must be done either upon the state of the pleadings, or upon a finding of fact, or upon facts brought before the court in a bill of exceptions, so the court can have before it the facts upon which to base such judgment. There were no such facts in this case. There was no finding of fact at all by the trial court. All we know is, that the case was heard, argued by counsel and judgment rendered, dismissing the case without prejudice. Whether some technicality arose, or for what reason that was done, does not appear.

C. F. Beery, for plaintiff.

Allen, Waters & Andress, for railroad company.

So we hold, as this record stands, no reversal or modification of that part of the judgment was authorized by the court of common pleas.

We, therefore, hold the court erred in modifying the judgment of the probate court, and the judgment of the court of common pleas is reversed, and that of the probate court affirmed.


text:
    EVIDENCE AS TO LOST DEED.
    [Circuit Court of Cuyahoga County.]
    Matilda Slipman v. Charles Telschow et al.
    Decided, February 23, 1903.

      Lost Instruments' — Evidence Necessary to Establish Execution of.

    Under the rule of the Supreme Court as to the evidence necessary to establish a deed alleged to have been lost, it is not sufficient to show that an. order was left with a certain abstract company for the drawing of such a deed, or that such a person saw a deed supposed to cover the property in the suit, but who did not observe as to whether it was properly witnessed and executed.
    Marvin, J.; Hale, J., and Winch, J., concur.
   This case comes into this court by appeal from the judgment of the court of common pleas.

The petition sets out that the plaintiff is the owner of a certain piece of real estate in this city, and describes the same, with the averment that the defendants claim some interest therein, and the prayer is that her title to said land may bo quieted.

To this petition the defendant, Charles Telschow, answers, denying that the plaintiff is the owner of the whole of said real estate, but avers that he is the owner of an undivided one-half thereof.

The defendant, Wilhelmina Telschow, answers that she is the wife of the defendant, Charles Telschow, and as such has an interest in said estate to the extent of her inchoate right to dower in an undivided one-half interest, which she says is owned by the said Charles.

Whatever rights the plaintiff has in this property came to her by descent from her former husband, Fred Slipman, who died intestate and without issue in July, 1898. In 1892 the property in question was purchased jointly by the said Fred Slip-man and the defendant, Charles Telschow, and a deed of the same was executed and delivered to them for the property.

There is no dispute here that the plaintiff is the only heir of her deceased husband, and as such is the owner of an undivided one-half of these premises. The whole dispute is as to the remaining one-half. The claim on the part of the plaintiff is that in 1894, on June 7, a warranty deed of this undivided one-half, which theretofore was the property of the defendant, Charles Telschow, was executed by the said Charles and his wife, Wilhelmina, and delivered to the said Fred Slipman. This deed was not recorded and is not produced in court. Its absence is explained by the plaintiff by saying that immediately after its delivery to her husband he brought it to their home and exhibited it to her; that she complained that her name nowhere appeared in the deed; that her husband became angry and tore the deed, if not entirely into two parts, very nearly so, and then left the room; that she with court plaster fastened the two parts together, went to the room of her mother, which was in the same house, and there exhibited it to her mother, Mrs. Blaha, her sister, Emma Koss, and her brother, John Blaha; that they made some examination of it, but such examination was very hasty, as she heard her husband come into the hallway adjoining the room in which she was exhibiting the deed, and she folded the deed, put it into her clothing and thereafter placed it in a drawer in the room where she and her husband lived. She says that two or three years thereafter her husband took the deed from this drawer and said that he placed it in the safe of the defendant, Charles Telschow, and that she has never seen it since. At the time when she says this deed was delivered to her husband the relations between herself and her husband were strained, and some two years thereafter she brought a suit for divorce against him and went to live with the defendants, the defendant, 'W’ilhelmina Telschow, being his mother, and it is at or about the time of this separation that she says the deed was taken from their home. After a separation of about five months she and her husband went to living together, and so continued up to the time of his death. Both of the defendants emphatically and unqualifiedly deny that any deed from them to Fred Slipman was ever executed by them. They deny that they ever signed any such deed.

On the part of the plaintiff one Harry Van Heining was called as a witness. He testified that in June, 1894, he was in the employ of Cozad, Belz & Bates Abstract Company of the city of Cleveland; that he was at the time a notary public; that a part of the business of said company was the drawing and acknowledgment of deeds; that by a custom of the company, when a deed was to be drawn, if the deed to the parties about to make the new deed was brought into the office of this company a minute or memorandum was made on such deed, indicating the parties to the new deed and the consideration to be expressed in said new deed, and that a number was given to the transaction, which number was minuted on the old deed; that then in a minute book kept by the company an entry was made with a corresponding number, which entry indicated what was to be done with the deed on which this number was written, and then a mark was made upon such memorandum indicating when the transaction, so far as their office was concerned, was completed. The plaintiff then offered in evidence the deed made to Telschow and Slipman in 1892, and this being exhibited to the witness, he stated that a number, to-wit, 45,115, which appears in pencil on the filing side of said deed, was made by him; that this indicated that some memoranda in reference to this deed would be found in the books of the company under a corresponding number. He further testified that a memorandum found on the opposite side of this deed when folded, reading, “Charles and 'Wilhelmina Telschow to Fred Slipman, $580,” was made by him. He then produced a memorandum book, or a book of the abstract company, entitled on tbe back, “Orders,” and exhibited to the court under the number 45,115 a memorandum which reads: “45,115. Ordered by Chas. T., draw D. Charles and Wilhelmina Telschow to Fred Slipman, for $580 for an undivided one-half interest. To be done Friday, 11 a. m. Delivered 6—8—94.” He says that he has no recollection whatever of making the memorandum on the deed nor of making the memorandum in the book. He says that certain marks drawn with a blue pencil across the memorandum in the book indicate the completion of the transaction.

The defendants objected to the introduction of the memorandum on the deed and also the memorandum in the book, and the same was received by the court over such objection, the court reserving, however, the question of whether it should be treated as evidence in the case. The conclusion to which the court has arrived makes it immaterial whether this evidence be considered or not, and hence the question is not here decided. All that is indicated by these memoranda may be true to the extent of showing that this old deed was taken to the abstract office by somebody; that a deed of the undivided one-half from Charles and Wilhelmina Telschow to Fred Slipman was ordered and was made out and paid for. It does not necessarily follow that such deed was ever signed or even ordered by Charles or Wilhelmina Telschow or either of them, and if it was so signed by either of them, it does not follow that the same was ever properly executed. The evidence as to the execution is that the plaintiff says she saw the names of the defendants on the deed shown her by her husband at the proper place for them to sign if they were making such deed. She says there were some names on the left-hand side of the deed nearly opposite these names of the defendants, at the place where witnesses would sign if the deeds were properly executed, and she says there was some kind of a seal on the lower left-hand corner of the deed shown her. She says, too, that this deed shown to her was a warranty deed, and that it described the undivided one-half of the property described in the petition. She does not know whether there was the name of any notary signed to the acknowledgment or not, nor does she know whether the names of the defendants were written by them or somebody else, nor does she know whose names appeared at the proper place for witness to sign. Her mother, Mrs. Blaha, remembers less of the deed than does the plaintiff. John Blaha, her brother, remembers practically what she does about its appearance. Her sister, Emma Koss, was somewhat familiar with the execution of deeds, being employed in a business office where deeds are frequently made out. She is not certain about the description, but says that the names of the grantors appeared at the proper place for grantors to sign. There were names written at the* place where witnesses should sign, and the certificate of the acknowledgment was filled out and it seemed to be all right. She has no recollection of who the witnesses were, nor does she remember that the names of any officer or person was written at the place where the officer taking the acknowledgment should write his name.

There is evidence tending to show that since the death of Fred Slipman the rents upon all this property have been paid to'the plaintiff. But she is the administratrix of the estate of her deceased husband; these parties have been in litigation about this property almost ever since Fred Slipman’s death, so that the inference is not very strong that this was a recognition on the part of the defendants of her ownership of the property.

Evidence was offered on the part of the defendants tending to show that during the lifetime of Fred Slipman semi-annual settlements were made between him and the defendant, Charles Telschow, ir reference to this property, but none of this testimony is very important as bearing upon the issue here. Certainly the case of the.plaintiff must be determined upon the question of whether the writing which her husband exhibited to her in June, 1894, was a deed duly executed, attested and acknowledged by Charles and Wilhelmina Telschow to Fred Slipman for this undivided one-half 'of the property. If all that the plaintiff says is true, though she makes a strong probability that such deed was executed, we do not think that she makes a case under the law annuoneed by our own Supreme Court in the case of Gillmore v. Fitzgerald, 26 Ohio St., 171. The syllabus reads:

P. J. Bradley, for plaintiff.

W. T. Clark, for defendant.

“Where parol evidence is relied on to prove a deed alleged to have been lost, such evidence must clearly and satisfactorily show the existence and execution of the supposed deed, and so much of its contents as will enable the court to determine the character of the instrument.”

The evidence here does not come up to the requirement laid down in this rule. She and other members of her family may have seen what appeared to be a deed, with the names of these defendants upon it at the place where, if they were executing the same, they would have written their names, and yet they may not have written their names there. If they wrote their names, we don’t know that their signing was witnessed by anybody, nor do we know that there was ■any certificate of acknowledgment. There are facts in the case which can not be explained except upon the theory that there was testimony produced upon the trial which was not true. We do not undertake to say who gave the false testimony, but only that if all the testimony introduced on the part of the plaintiff was true, the execution of this deed is not evidenced “clearly and satisfactorily,” as is required under the decision of the Supreme Court referred to.

The result is that the petition of the plaintiff is dismissed at her costs.


text:
    CARELESS FEEDING OF A RUBBER MILL.
    [Circuit Court of Summit County.]
    The Diamond Rubber Company v. Addison H. McClurg.
    Decided, April 19, 1904.

      Negligence — As Between Master and Servant — Where the Work Was Dangerous and the Workmen Careless — Master Not Bound to Anticipate an Accident Which Occurred in an Unheard of Way.

    Where a servant, engaged in a dangerous occupation, disregards his instructions, and performs his work in a manner different from that directed, and is injured in so doing, the master can not he held liable for failure to warn the workman against an injury occurring in a manner in which he had no reason to anticipate it might occur.
    McCarty, J. (sitting in place of Winch, J.); Hade, J., and Marvin, J., concur.
    Error to the Court of Common Pleas of Summit County.
   This cause comes into this court on petition in error to reverse the judgment of the common pleas court in what is called a personal injury case. The action was tried below to a jury, a verdict in favor of the plaintiff was rendered, and motion for new trial overruled and exceptions taken. Plaintiff states his cause of action in his petition as follows:

The defendant is a corporation, incorporated under the laws of Ohio. On the 7th day of February, 1901, the defendant owned and operated certain manufacturing shops for the purpose of making rubber, which shops are situated in Akron, said Summit county, and has ever since and still operates said shops. On the 7th day of February, 1901, the defendant employed plaintiff to work in said shops, and plaintiff, pursuant to said employment, to-wit, on the 7th day of February, 1901, commenced and continued to work from said day up to the 21st day of February of said year.

That on the said 7th day of February, the defendant, through one of its foremen of said shops, ordered plaintiff to work in that part of its said shops known as the mill-room, at a machine designated as a mixing-mill, for the purpose of mixing rubber and making rubber.

That there are two large steel rollers on the mill, placed side by side, about four feet from the floor, which rollers arc about five feet in length and about twelve or fifteen inches in diameter, and when said mill was in operation, said rollers revolve together at a rapid rate of speed.

In operating this mill it was necessary for workmen, and this plaintiff to stapd in front of said rollers and place the rubber on said rollers so as to run it through until properly mixed into slabs, and when the edges of said slabs were uneven and ragged it was necessary, and the duty of the workmen and plaintiff, to place said slabs on said rollers so that it would double said ragged edges back and pass through so as to even up said edges, which work was very hazardous and attended with great danger to the person operating said mill, and when said slab is placed upon said rollers as aforesaid it is liable in doubling, in the ordinary operation of said machine, to catch the hands of the person operating the same and draw them in between said rollers.

That to operate said mill, or machine, so as to avoid said dangers and to protect the operator from injury, required great experience and skill as to the proper mode of operating the same as well as a knowledge of the dangers that existed, and the injuries to the operator that might, and were liable to occur, all of which was unknown to the plaintiff, but defendant had full knowledge thereof, and well knew that the plaintiff did not know, and could not learn and discover in time to protect himself from injury.

That at the time herein mentioned the plaintiff was inexperienced in any kind of shop work, and had no knowledge or experience whatever in the operation of said mill or doing the work thereon aforesaid, and had no knowledge of the hazards and dangers attending the operation of said mill, nor had he equal means with the said defendant of knowing or ascertaining said hazards and dangers; that said hazards and dangers in the operation of said machine were not obvious; that it could only be known from skill and experience in the operation thereof, and as to the proper way to operate said machine to protect one from injury that might arise from said dangers, all of which was well known to said defendant and its said foreman.

And plaintiff says that the labor performed by him as aforesaid, and as hereinafter described, was done under the immediate direction and supervision of said foreman, and it was the duty of the defendant and its said foreman, before directing the plaintiff to work upon and operate said machine, to instruct him as to the manner of performing said labor, so as to protect himself against injury and avoid the said dangers incident thereto, and to caution and warn him of the dangers to which he was subjected in the performance of said work, but negligently and in disregard of its said duty towards plaintiff, said defendant, and its said foreman, wholly failed and neglected to so instruct the plaintiff in the premises, or caution or warn him of the dangers incident thereto.

That on the 21st day of February, 1901, while working at said mill in mixing rubber, and making a rubber slab about two feet square, it became necessary by reason of the ragged edges of said rubber slab for him to place said slab on the top of said rollers as aforesaid, and for the purpose aforesaid he did place it on the top of said rollers while they were rapidly revolving, and put his left hand on said rubber, pressing it against the roller at the side next to him, to prevent it from slipping, and so that the said rollers would catch it and double it, and said rollers did catch it, and when it doubled, the end farthest from him and on the opposing roller, was thrown over onto his said hand with great force, instantly drawing it between said rollers and so mangling it that it necessarily had to be, and was, amputated at the wrist joint. That he suffered greatly in body and mind from said injury and was for a long time sick, and is forever disabled from performing manual labor, and is permanently injured, all of which suffering and injury was directly caused by the carelessness and negligence of the defendant aforesaid, and without any fault or negligence on the part of plaintiff, to his damage in the sum of twenty thousand dollars, for which sum he asks judgment against the defendant.

Defendant for its answer says that it admits that it was and is a corporation duly organized and existing under and by virtue of the laws of the state of Ohio, and at all times mentioned in said petition it was engaged in the manufacture of rubber and rubber goods in the city of Akron, said county and state. It admits that on the 21st of February, 1901, and for a time prior thereto the plaintiff was in its employ and was engaged in operating a certain machine designed for the mixing and making of rubber sheets or slabs. It admits that on the 21st day of February, 1901, the plaintiff sustained certain bodily injuries on account of which his left hand was amputated at or near the wrist, but it avers that said injuries were caused by the inadvertence, inattention, carelessness and negligence of the plaintiff himself, and not by reason of any default, carelessness or negligence on the part of the defendant company. And further answering defendant denies each and every statement, ■allegation and averment in said petition contained, not herein specifically admitted or denied, and having fully answered prays to be dismissed with its costs.

To that answer a reply has been interposed which denies the statements and allegations contained in the said answer, except such as are admissions of the allegations and statements contained in the plaintiff’s petition filed herein. Upon these pleadings the case was tried to a jury, and, as I have said, a verdict was rendered in favor of the plaintiff. The facts in the ease are substantially as follows:

There were in this machine two large steel rollers placed side by side; they are about five feet in length and twelve to fifteen inches in diameter, and when in operation said rollers revolve together; that is, toward each other, at ten to fifteen revolutions per minute. In operating this mill it was necessary for the plaintiff to stand in front of the rollers and place the rubber on said rollers so as to run it through until properly mixed and pressed. On the 21st day of February, 1901, the injury of which complaint is made occurred, causing the loss of the plaintiff’s left hand. It is claimed that the plaintiff was inexperienced in such work as this, and that the foreman neglected to instruct him in the proper way to perform this work so as to avoid the dangers incident thereto. The contention of the plaintiff in error is that the dangers were obvious, and that the plaintiff below had been fully instructed as to how to do his work safely, and that if he had followed these instructions he would not have been injured. He was instructed as shown by the record as follows:

“Q. "What was this other man doing you speak of? A. He was a mill man working on the mill.
“Q. Working on the mill? A. Yes, sir.
“Q. What did he say to you in the way of operating the mill? A. He showed me; he done most of the work.
“Q. Was anything further than that said to you before you cut the rubber off when it would stick and to throw the compound in and pour oil in.
“Q. Was anything further than that said to you before you commenced the handling of the mill yourself? A. I was told not to put my hand up where the rolls begin to go downward; keep my hands down where they were coming up.
“Q. Who told you that? A. This man that I worked with and also the boss.
‘ ‘ Q. Who was the boss ? A. Noonan.
“Q. State what Noonan said to you on that subject about the operating of the mill? A. Well, he said it was a dangerous machine and to be careful.
‘ ‘ Q. What further did he say ? A. And not let my hands
get so they would go down over; keep them at a certain point on the mill.
“Q. Was there any other foreman there while you were at work? A. Foreman?
“Q. Of those mills, that were there specially? A. A man by the name of Oberdoerster that I worked under when I commenced at night work.
“Q. What talk did you have with him on the subject of operating the mill? A. Well, he told me about the same as Mr. Noonan.
“Q. Go on and tell what was said. A. He told me to feed the rubber in certain batches, not put my hands over where the roller turned in; and when I was cutting off, if the rubber was going to catch me, to let the knife go in if it was necessary and keep my hands off of the top of the rollers in working.”

And on cross-examination he said in answer to the questions:

“Q. And all three of these men, Mr. Noonan, Mr. Oberdoerster and Mr. Hazard, told you where to put your hands and where not to put them? A. Yes, sir.
"Q. And they all told you not to put your hands .above the top of the rollers? A. Yes, sir.
“Q. Calling your attention, Mr. McClurg, to your statement that Mr. Hazard, or the man with whom you worked when you first began there, that he instructed you or told you not to put your hands on top of the rolls, did he give you any reason why you should not put your hands on top of the rollls ? A. Why, he said the rolls were turning inward that wav that they were liable to catch my hands.
“Q. Danger of catching your hands? A. Yes, sir.
“Q. Now at the time you was injured you may state to the jury what you were doing at that time, at the time you were injured. A. Well, I was just finishing up ready to quit; it was just before the whistle blowed a little while, and I had my last batch on finishing up; it was ragged and I wanted to make it even and nice; I picked it up and throwed it in the mill, and it slid and didn’t go in and went clear over the other side; I put my left hand in, and it bounded, and when it bounded it struck my wrist and arm and dragged it in before I could put it back. ’ ’

That is a direct violation of his instructions. If he had followed his instructions and kept his hands above the rollers he would not have been injured. He could as easily have kept his hand out, kept it above the rollers as to have kept it from going further down. Such an injury never happened before. The company was not bound to anticipate or guard against it. It is not negligence on the part of the master to fail to instruct aD employe to avoid an injury which the master had no right to anticipate would happen. It is only as to injuries that are likely to occur, not those that never did occur, that the master never heard of, that he is bound to anticipate and bound to guard his employes against. The plaintiff below clearly brought this injury on himself. The danger was obvious. He needed no instructions to keep his hands from between those rollers, and if he did, he was fully warned of all the dangers, fully instructed as to how to operate the mill and avoid being caught. He disregarded his instructions, and on no principle of law or right can he recover. The judgment of the court below will be reversed with costs, and exceptions noted.

E. K. Wilcox, for plaintiff in error.

Geo. M. Anderson, for defendant in error.


text:
    CLERKS OF SCHOOL BOARDS UNDER THE NEW SCHOOL CODE.
    [Circuit Court of Richland County.]
    State, ex rel Mowery, v. Harry E. Cave.
    Decided, June, 1904.

      Office and Officers — Power of the Legislature and Rights of the Officeholder — Said Rights Accrue hy Virtue of Election and Not of Qualification — Clerk of Board of Education — Who Had Been Elected But Had Not Qualified — When the New School Code Went into Effect.

      1. While in Ohio there is no tenure of office, the office-holder possesses a legal title to the emoluments of the office so long as the office exists; and this is equally true as to one who has been duly elected, but has not yet qualified and entered upon the duties of the office.
    2. Notwithstanding the statute does not say just when officers of the board of education shall enter upon their duties, it is clearly the intention that they-shall assume office at once, or as soon as they give bond and qualify. A delay in giving bond amounts merely to a waiver of the rights of the one so elected during the period of the delay, and does not operate as an extension of his term for a corresponding period.
    3. Where at the time the present school code went into 'effect, an election of clerk of the school board had been held, but the one so 'elected had not yet qualified, he is entitled to the office under the new code, notwithstanding the provision of Section 3 of sai'd act.
    Donahue, J.; Voorhees, J., and McCarty, J., concur.
    Mandamus.
   This action is brought by the relator, W. Clyde Mowery, who claims to be entitled to the office of clerk of the board of education of the city of Mansfield. There is practically no dispute as to the facts, and the pleadings make an issue of law only.

It appears from the pleadings that Harry E. Cave on the third Monday of April, 1902, was chosen by the board of education of the city of Mansfield as clerk of that body; that he gave bond and qualified as such on the sixth day of May next f ollowing, and on the third Monday of April, 1903, he was again chosen as such clerk, and on the fifth day of May next following gave bond and qualified according to law. On the third Monday of April, 1904, which was the eighteenth day of said month, the relator, W. Clyde Mowery, was chosen by said board of education as its clerk, and on the third day of May next following he gave bond and qualified as such.

The petition avers that the respondent, Harry E. Cave, usurps said office of clerk of the board of education of the city of Mansfield and deprives relator therefrom, and prays that the said respondent may be ousted from said office and that relator be given possession thereof.

It further appears that on April 25, 1904, at 4:30 p. m., the present school code, known as the Harrison school code, was signed by the governor of the state of Ohio. The respondent contends that by Section '3 of that act it is provided that all existing officers of boards of education and school councils shall hold their respective offices until boards of education are elected and organized under the provision of that act, and that at the time said act went into effect he was in fact and in law the clerk of the board of education of the city of Mansfield, and that this act extends his term until the election of new officers, under the provision of the new code.

He further claims that his term of office as such clerk did not expire for one year from the time he filed his bond and qualified, May 5, 1903, and that therefore the relator had no immediate right to the office at the time he was chosen by the board of education as such clerk; that there was then no vacancy and that relator’s term would therefore not commence until May 5, next following.

In this contention, however, we think counsel for respondent are mistaken. Section 3980, Revised Statutes, requires the board of education to organize on the third Monday of April of each year, by choosing one of its members president, and one of its members clerk, who may or may not be a member of the board. The statute does not say just when these officers shall enter upon their duties, but clearly it means immediately, or as soon as they give bond and qualify, and the neglect to qualify for ten, fifteen or twenty days thereafter, even though it had been the custom for many years, would not give the incumbent the right to hold beyond the third Monday of April, if his successor should elect to qualify as soon as chosen.

Section 3979, Revised Statutes, provides that each person elected or appointed, either as a member of the board of education, or to any other office under the title in which that section is found, shall take an oath of office.

Section 4050, Revised Statutes, provides that the clerk of the board of education shall furnish bond. So that to qualify as such an officer, it is necessary for the person chosen as such clerk to give bond and take the oath of office.

Section 8, Revised Statutes, provides that — •

“Any person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified, unless it is otherwise provided in the Constitution or laws. ’ ’

There is no prohibition in the Constitution of the state of Ohio preventing the clerk of the board of education from holding his office until his successor is elected and qualified, nor is there any statutory provision that would prevent him from so doing. There does not appear to be any term of office fixed in express words; but the statute expressly provides that on the third Monday of each April the board shall organize, by selecting a president and clerk. It is therefore evident that the clerk chosen at such meeting holds until the next organization of the board, as the term of his office, and until his successor is chosen and qualified.

In the case of State v. Coon, 4 C. C.—N. S., 560, it was held that the clerk of the board of education continued in office until his successor is chosen and qualified. On page 563 the court say:

“Upon the whole we therefore conclude that the relator is a public officer and was occupying the office of clerk of the board of education at the time the new school code took effect. ’ ’

In that case the board of education of Cleveland did not organize on the third Monday of April, but on the night of April 25, at 7:30 o ’clock, and after the signing of the law by the governor of Ohio, which extended the time of office of the then present incumbents. So that unless the former clerk held until his successor was chosen and qualified, his term of office would have expired on the third Monday of April, and he would not have been in office on April 25, and the court would then not have declared him entitled to the office under the provision of the new law, unless it in fact found that his term of office did continue until his successor was chosen and qualified. In the case at bar at the time this new law went into effect the relator had been chosen, but had not qualified, and the respondent was in office claiming and having the right to hold the same until his successor should qualify.

The effect of qualifying later is a more serious question. Does the act of qualifying relate back to the time of his appointment, at which time his right to the office began, or simply from the time he qualified ?

In State v. Pollner, 18 C. C., 304, it is held:

“Where the statute does not fix any time when the mayor of the city of Cleveland shall take his seat, but prescribes that he shall take an official oath, that he shall file a good and sufficient bond, which shall be approved by the city council, the term of such mayor elect commences immediately upon his election, and if he sees fit he may immediately enter upon the duties of such office, by declaring himself to be mayor; the requiring of the oath, bond or any other thing that the statute may require, is merely directory language and is not mandatory. ’ ’

In the same case on page 145, Judge Caldwell, in the opinion says:

“And, secondly, that the requiring of the cath, that the requiring of the bond or any other thing that the- statute may require although the statute may be explicit, is merely directory language and is not mandatory, and I believe the courts in this country now quite unanimously, and, I do not know but entirely, say so at this time, that language of that kind is merely directory and is not mandatory language.’’

We, however, are not able to find the authorities so unanimous as suggested by Judge Caldwell.

In the case of State v. County Comrs., 61 Ohio St., 506, it is held that where the sheriff elect failed to give bond before the first Monday of January, next after his election, there occurs on that day a vacancy. But it further appears in that case that while Section 1203, Revised Statutes, provides and directs the giving of the bond, Section 1205, Revised Statutes, provides that a failure to give the bond defeats the claimant’s right to the office, and the commissioners shall declare a vacancy.

The provision of Section 1205, Revised Statutes, of course, distinguishes that case from the case at bar, and also from State v. Pollner, supra, but Section 19, Revised Statutes, seems to us to be as imperative as Section 1205, Revised Statutes, so that the only substantial difference between the eases is, that in the case of the sheriff the time in which bond shall be given is absolutely stated in the statute, but there is no such limit of time in which the clerk of the board of education must give bond and qualify. So that it would naturally be held to be within a reasonable time, and the board of education is undoubtedly clothed with discretion to determine what is a reasonable time, and it would only be for an abuse of this discretion that a court would interfere with its finding in that behalf. In this ease the clerk elect qualified within the usual time customary in that city, and the board of education accepted his bond at the time it was presented. So that we are of the opinion that the delay in giving bond did not amount to a refusal to accept the office under the provision of Section 19, Revised Statutes, and therefore he had not forfeited his right to the same, and the only question remaining in this case is, can the Legislature of Ohio, by an act passed after his selection, deprive him of the office to which he was chosen, without abolishing the office itself ?

On April 18 relator was chosen as clerk of the board of education of the city of Mansfield, and if he had qualified at once or before 4:30 p. m. of April 25, he unquestionably would be entitled to hold the office. It must also be a'dmitted that he was entitled to qualify by giving bond and taking the oath of office at any time up until the time of the signing of the new law by the governor of the state. He was at least an officer elect with the right to the office at the time this act of the General Assembly became a law by the signature of the governor. Respondent claims that Section 3 of this act deprived relator of this right without abolishing the office. It is true that in Ohio there is no tenure of office strictly speaking; that is to say, there is no right to continue in office beyond that time which the Legislature declares there is no further need of the office. But while there is no absolute right to the office, there is a legal title to the emoluments of the office so long as that office exists, and after an individual has been properly selected, either by the vote of the people or any authority authorized to select him, even the Legislature of the state can not say that that particular individual shall not have and hold his office, but instead thereof some other person shall. This would certainly be true if the officer elected had in fact entered upon the duties of his office. Is it not equally true, if at the time of the passage of the law, he is entitled to the office? We think it is.

We have no quarrel with the doctrine that the Legislature may abolish the office, and the office once abolishéd the person entitled thereto, if it had continued to exist, can not complain, nor can he claim the emoluments thereof, but so long as the office continues the incumbent or the person entitled thereto can not be deprived of it by an act of the Legislature. This relator had been selected as clerk of the board of education by the board itself, and this board was clothed with ample authority to make such selection. From that time on, unless he refused to accept the appointment or neglected and refused to qualify, the office was his as matter of right. He had a legal title thereto, so far as an individual can have the legal title to an office in Ohio, and he did qualify to the satisfaction of the board selecting him, but, in the meantime, the Legislature proposes to divest him of that right by saying that the incumbent then in office shall continue until a later time, but does not abolish the office now, but provides that it shall be abolished later. We think the Legislature can not do this. Where his term of office commenced immediately upon his selection, whether he qualified by giving bond and took the oath of office then or not, his right to the office and the emoluments thereof at once arose, and is good against the world so long as the office exists, unless he forfeits his right by refusing to accept, or neglect or refuse to qualify, or is properly removed therefrom in manner prescribed by law for the removal of officers from public office.

Douglas & Mengert, for plaintiff.

Kerr & Le Dow, for defendant.

We therefore hold that this act did not affect his right to the office nor divest him thereof, and that he is entitled to hold the same until the office is abolished in pursuance of the statute.

Judgment of ouster may be entered against the respondent with costs, and the relator decreed to be the present rightful incumbent of the office. Motion for a new trial will be overruled and exception noted. Twenty days are given for the separate finding of fact and law, and statutory time for bill of exceptions.


text:
    PERSONAL JUDGMENT.
    [Circuit Court of Hamilton County.]
    John A. Caldwell et al v. John B. Peaslee.
    Decided, February 20, 1903.

      Trial — Suit in Foreclosure — Endorsement of Summons — Personal Judgment in Excess of Amount Endorsed.

    In a suit for the foreclosure of a mortgage and for personal judgment, it is not error to enter a personal judgment for an amount in excess of that endorsed on the summons.
    Swing, J.; Giffen, J., and Jelke, J., concur.
   This was an action in the court of common pleas for the foreclosure of a mortgage and for a personal judgment. The summons contained the following endorsement:

“Summons in action for money; amount claimed, $639.84; for foreclosure of a mortgage, sale of real estate and other relief.”

The petition alleges that the defendants were the owners and holders of twelve shares of the Consolidated Building & Savings Company of Cincinnati, Ohio, and that said defendants borrowed on said twelve shares the sum of $6,000, for which they executed a mortgage on certain real estate which is described in the petition; that the defendants agreed to pay certain weekly dues, premiums and interest; that the defendants have failed for a great number of weeks to pay either premiums, dues or interest; that the amount in arrears at the time of the filing of the petition is $639.84, the amount endorsed on the summons, but the petition asked that the plaintiff have judgment against defendants for the amount that should be due, if any, after the sale of the premises.

Defendants filed no answer, but did file certain motions during the progress of the case, one of which was to make the petition more definite and certain. The court entered up a decree finding the amount due on the mortgage and ordering the sale of the premises, but entering no personal judgment. The property was sold, and after applying the proceeds of the sale to the payment of the debt, a large amount remained unsatisfied, and afterwards the court rendered a personal judgment against the defendant for this balance.

It is claimed by the plaintiffs in error that in rendering a judgment for an amount in excess of that endorsed on the summons the court erred.

In Larimer v. Clemmer, 31 Ohio St., 499, the first proposition of the syllabus is as follows

“In an action for the sale of mortgaged premises and for a personal judgment, pursuant to the act of 1864 (S. & S., 575), no endorsement on the summons as to the amount or nature of the claim is necessary, the ease being governed in that respect by Section 57 of the civil code (Section 5030, Revised Statutes), but where an endorsement was made which truly indicated the amount for which judgment was afterward taken, and contained the further statement that the plaintiff sought ‘ equity relief,’ a personal judgment and order of sale, rendered in default, will not be reversed.”

Under this decision it was not necessary that any amount should be endorsed on the summons, but if for money only, no judgment could be taken for any amount unless endorsed on the summons, where judgment was rendered by default. But the plaintiff, having done something, that the statute did not require, should not be bound by what was done, unless it is clear that the defendants would be misled to their prejudice.

A reading of the petition taken in connection with the summons shows the claim of plaintiff. The amount endorsed on the summons was the amount then due, and was the only amount that the plaintiff was then entitled to have a personal judgment for, but further relief was asked for, and that was that the plaintiff might have a personal judgment for the balance, if any, that remained unpaid after the application of the proceeds of the sale of the mortgaged real estate. The plaintiff took no personal judgment for the amqunt due at the time of the decree and order of sale, but waited until the property was sold and balance ascertained, and then took judgment for the deficiency.

Renner & Renner and Johnson & Levy, for plaintiff in error.

Gideon G. Wilson, contra.

Defendants were not misled by tbe plaintiff having had endorsed on the summons the necessary statement about the $639.84.

They appeared in court and filed a motion to make the petition more definite and certain; they knew the whole claim of plaintiff and they knew that the endorsement on the summons was for the amount then due at the time of the filing of the petition, and that the petition asked for a personal judgment for the full amount that might be due after exhausting the proceeds of the sale of the mortgaged premises.

Judgment affirmed.


author: Per Curiam.

text:
    AGREEMENTS BY COUNCIL TO EXPEND MONEY WITHIN THE INHIBITION OF THE BURNS LAW.
    [Circuit Court of Warren County.]
    Malinda Pullen v. John E. Smith et al and William Evans et al v. John E. Smith et al.
    Decided, July, 1904.

      Municipal Corporations — Bilateral Agreements by — Within the Inhibition of the Burns Law — Although Not Enforceable — Section 1536 (205 M. C.).
    The action of a municipal council purporting to be an agreement involving the future expenditure of money, although admittedly not legally enforceable is nevertheless within the inhibition of the Bums Law, Revised Statutes 1536 (205 M. C.).
    Jelke, J., Gieeen, J., and Swing, J.
   Per Curiam.

We find that the proposed use of the lot involved herein as the site for a public library is within the public and municipal use intended by the original donors of said lot.

A more se-rious question, however, is presented in the contention made by Mr. Evans, as a tax-payer, that the resolution passed by the Lebanon Council, on July 7, 1903, contravenes the Burns Law. R. S., 1536, 205. The issue thus arises: Mr. Carnegie made a proposition to the village of Lebanon in the following letter:

“2 East 91st Street, New York.

“20th February, 1903.

“W. Chester Maple, Esq.,

“Lebanon, Ohio.

“Dear Sir:

“Responding to your communication in behalf of Lebanon. If the city agree, by resolution of council, to maintain a free public library at a cost of not less than one thousand dollars a year and provide a suitable site for the building, Mr. Carnegie will be pleased to furnish ten thousand dollars to erect a free public library building for Lebanon.

“Respectfully yours,

“Jas. Bartram,

“Private Secretary.”

Which dffer is met by action of the Lebanon council on July 7, 1903, by the following resolution:

“Resolved, By the Council of the Tillage of Lebanon, State of Ohio, that the offer of Mr. Andrew Carnegie, made February 20, 1903, to furnish ten thousand dollars to erect a free public library building for Lebanon is hereby accepted; and
“Resolved, Further, that the council agrees for and on behalf of said village to maintain said free public library at a cost of not less than one thousand dollars a year, and to provide a suitable site for the same; be it further
“Resolved, That we express to Andrew Carnegie the sincere gratitude of the village for this beneficent gift, and that the clerk is .directed to transmit to said donor a copy of these resolutions, wih a request for . directions to this council for further mode of procedure.”

R. S., 1536, 205, M. C., provides:

“No contract, agreement, or other obligation involving the ex-petoditure of money shall be entered into; nor shall any ordinance, resolution, or order for the expenditure of money be passed by the council, or by any board or officer of a municipal corporation, unless the auditor of the corporation, and if there is no auditor, the clerk thereof shall first certify to council that the money required for the contract, agreement or other obligation, or to pay the appropriation or expenditure, is in the treasury to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose, which certificate shall be filed and immediately recorded.”

It is contended on behalf of the library trustees, and it was decided by the court below, that the resolution did not contravene the inhibition of this section of the statutes for two reasons: First, That it did not create an enforeible legal obligation against the village of Lebanon; and, second, that it was not an expenditure of money. It is admitted that the resolution of July 7 has not the binding force and effect of a contract, and it is said that it merely expresses the municipal sense or policy and has no binding effect upon subsequent councils; that it is only binding upon the moral sense and civic conscience of the citizens of Lebanon. This view of the resolution is taken by both sides of the controversy, and that its provisions will be religiously kept, is asserted by both sides.

We do not yield to counsel or to anybody, in high ’appreciation of the conscience and sense of moral responsibility of the good citizens of Lebanon, but we take a view a little different from that entertained by the trustees and their counsel as to the time for its exercise

There is no doubt but that, were it not for Revised Statutes, 1536 (205 M. C.), the letter of Mr. Carnegie and the resolution of council would constitute an enforeible bilateral legal agreement, and it is only because of this section of the statutes that it does not become such. The action of council purports to do that which the law says it can not do, and it is because the law says that it can not do this that council should not go through the form of doing, in good faith, a thing which is empty and vain. It is because such action, on its face, is committing the village' of Lebanon to an unlawful position that council should not do it. Would it not be fairer and juster if the village of Lebanon said to Mr. Carnegie: -“We appreciate your kind offer and desire to avail ourselves of its beneficent provisions, and feel sure that the people of Lebanon, through their municipal officers, hereafter will keep the conditions imposed, but under the law we are powerless to commit the village to .the conditions asked; but to the extent that it is declaratory of the public sense and policy of this municipality, we are willing to do so. We can, lawfully, go no farther.” To say that this action of council does not contravene this provision of the statutes, because such action bf council is made invalid by this same section, is reasoning in a circle. And if this were sufficient answer to the objection, it would be a universal answer to all objections to actions by municipal councils not in accordance with this statutory provision, the very object of which statutory provision is to prevent such action by councils. It is to restrain municipal councils from purporting or pretending to do that which they are powerless to do, that such actions are enjoined.

It was held in the case of The Elyria Gas & Water Co. v. The City of Elyria, 57 O. S., 375:

“Where the proceedings of a municipal corporation are unauthorized and void, either for want of power or its. unlawful exercise, and are designed to raise a fund by the sale of its bonds or by taxation to be applied to the object contemplated by the proceedings, a suit to enjoin them may be brought by .a taxpayer, under Sections 1777, 1778, of the Revised Statutes, without waiting until the fund is raised ready for expenditure. The abuse of corporate powers, within the purview.of Section 1777, includes the unlawful exercise of powers possessed by the corporation, as well as the assumption of power not conferred.”

Further, it will not do to say that this action does not involve the expenditure of money. If it does not do that, it does nothing else, and is meaningless. That is all that Mr. Carnegie asks. It is not in itself the expending of money, like an ordinance to pay, but the statute goes further, it provides against “a resolution involving the expenditure of money.” It is the initial step, which, if logically and consistently followed up, will inevitably result in the expending of public funds. It was held by the Sixth Circuit, in the case of Rhodes v. The City of Toledo, 6th C. C., p. 9:

“A municipal ordinance, providing for the condemnation of private property for street purposes is an ordinance for the expenditure of money within the meaning of Section 2702 of the Revised Statutes, and it is essential to the validity of such ordinance that the city auditor duly make and file the certificate required by said section.”

This decision in based upon the case of Ryan v. Hoffmann, 26 O. S., 123:

“The ordinance condemning the land in question, is an ordinance for the expenditure of money.”

The Circuit Court for the Second Circuit, in the case of Tyler v. The City of Columbus, 6 C. C., 224, takes a somewhat different view, for two reasons: First. That the money expended was to be assessed back on the property, and therefore was not an expenditure of public money, and, second, that the sum was uncertain and indeterminate until after condemnation proceedings were had before a jury, neither of which criticisms apply to the expenditure contemplated, and the initial step of which has already been taken in the ease at bar. It is idle and not frank ■to say that this resolution does anything other than involve the expenditure of money, and this is admitted by everybody when they talk about a moral obligation.

There is, however, an objection to the maintenance of this tax-payer’s suit which has not been raised by counsel for the defendants, and that is, that the suit is not brought under Section 1536-667 by the duly appointed legal officer of the municipality, nor is there an allegation that request had been made upon such officer, and that he has failed so to do as provided by Revised Statutes, 1536-668.

Nothwithstanding this defect in the proceedings, which is probably fatal, and will necessitate a new suit if the objection is urged, we have thought it best to decide the questions submitted as, after all, that is what counsel and the citizens of Lebanon want.

Runyan & Stanley, for plaintiff.

John E. Smith and'Jfr. Morrill, contra.

We are of opinion that the action by the council of the village of Lebanon is invalid and void, and that the trustees of the said library can not proceed in reliance thereupon, and therefore should be enjoined.

We trust and believe that if this matter is put to the donor in its right light/ that his gift may still be secured to the village of Lebanon. As it is, the matter can not proceed further on its present basis.