author: Adams, J.

text:
    (Fifth Circuit — Holmes Co., O., Circuit Court
    May Term, 1897.)
    Before Pomerene, Adams and Douglass, JJ.
    PETER SCHAMP v. PATRICK KENNEDY.

      Ditches — From upper into lower county — Commissioners’ authority to construct ditches confined to their own county—
    Under our ditch laws the authority of county commissioners to construct ditches is confined to their own county, and in a proceeding for the construction of a ditch from an upper to a lower county, the commissioners of each county have the exclusive ■ jurisdiction and authority in the construction of the ditch in their own county.
   Adams, J.

This case of Peter Sehamp v. Patrick Kennedy is here on appeal. This was an action brought in the court of common pleas to enjoin the defendant from constructing a lateral to a certain outlet ditch, or change of water course in Holmes county. The pleadings as well as the agreed statement of facts show that the plaintiff owns certain real estate in Holmes county, that he ownes no real estate in Wayne county; and that he is a non-resident of Wayne county, and a resident of Holmes county; that except as to one matter,all the proceedings had looking towards the construction of the ditch and outlet of which this lateral is a part, were had by and before the commissioners of Wayne county; that the only action taken by the commissioners of Holmes county, in regard to any part of this ditch, outlet or lateral, was that they met with the commissioners of Wayne county in joint session, agreed upon the amount of money that should be paid by Wayne county to Holmes county for the use and benefit of the outlet in Holmes county; that the same was $3189.00, and that the sum has been paid by Wayne county to Holmes county. As 1 said, the facts being agreed upon, there are two matters which counsel for defendant claim play anjimportant part in this case; one of these facts is that this man Schamp, the plaintiff here, was served with a notice — the same notice with which all of the other interested parties here served, when the proceedings were commenced before the commissioners of Wayne county; and that he filed a protest or at least he filed a paper with the commissioners of Wayne county, protesting against the construction of this outlet, The. plaintiff was also present at the meeting of the two boards where this sum of money was agreed upon.

This lateral to this outlet was intended to change the course of Rush run. As it flowed formerly from the point where this lateral changes its course to its old mouth in Killbuck creek, Rush run ran to a very small extent upon the lands of plaintiff. According to the plat, the lateral is twenty-eight hundred and some odd feet long, entirely through the lands of the plaintiff. Kennedy is the contractor under the commissioners of Wayne county for the construction of this lateral, and he was about to enter upon the premises of the plaintiff to make this lateral ditch, a ditch of considerable size as to depth and width,and of the length that I have indicated. The claim of the plaintiff is that this is a taking of plaintiff’s property for the public use without due process of law. The contention is made on the other side that the commissioners of Wayne county are authorized by law to construct this outlet ditch and the lateral thereto, and that all these proceedings are regular; that the plaintiff Schamp having failed to file his claim for damages with the commissioners of Wayne county and his claim for compensation, has waived his right to compensation and damages. These facts having been agreed upon, bring before this court as we think, but two questions of law.

It is claimed here that Schamp,by the service of this notice upon him, and at least by the filing of his protest with the commissioners of Wayne county, and by the fact that he was present at the joint sessions of the two boards, entered his voluntary appearance before the commissioners of Wayne county and thereby conferred jurisdiction upon them not only of his person but of bis real estate situate in Holmes county. If the jurisdiction of the commissioners of Wayne county depended alone upon the waiver or consent of Schamp, then it is clear, it is beyond question, that, while a party may confer jurisdiction of his person upon a court or board, neither consent nor Waiver of a party will confer jurisdiction either upon a court or board, of the subject matter of the suit or proceeding.

For instance, it would be absurd to claim that one of the circuit courts of Ohio could entertain original jurisdiction to foreclose a mortgage, simply because the parties entered their appearance in the circuit court, and it would be equally absurd to claim that the common pleas court of Wayne county would have jurisdiction in & foreclosure suit of lands lying wholly in Holmes county,simply because the defendant living in Holmes county, and owning the real estate in Holmes county entered his appearance in the common pleas court of Wayne county. We think it is equally plain that if the commissioners had not the jurisdiction conferred upon them by law to construct a ditch or outlet in Holmes county, that the mere waiver or entering of appearance by Schamp in Wayne county would confer no jurisdiction upon the commissioners of Wayne county on lands lying in Holmes county. It is stated in 19 Ohio St., on page 184, that the construction of a ditch is a proceeding in rem. It affects property as well as persons. The other question is, does the law confer jurisdiction upon the commissioners of Wayne county V It would seem at first blush that there ought to be some constitutional prohibition against the commissioners of one county going into another county to construct a public improvement. We do not find any such constitutional prohibition. So far as the constitution is concerned, the legislature has the authority and is competent to authorize the commissioners of Wayne county to construct a ditch in another county. The question is: Has the legislature done so. Section 4447 of the Revised Statutes provides that the commissioners of any county may construct a ditch within such county, meaning within the county of which they are the county commissioners. Section 4448 provides that the petition for the ditch includes all spurs, laterals or branch ditches, whether specifically mentioned in the petition for the ditch or not. Section 4451a, as found in 91 Ohio Laws, 159, provides how proceedings shall be commenced, and it is to be noticed there that there is no provision for personal service on non-residents of the county. We think that by a fair construction of that act it provides for a personal service on the resident land owners of the county and for service by publication on non-resident land owners of the county. Schamp was neither a resident of Wayne county, nor a non-resident land owner of Wayne county. And section 4448 and 4448a, as found in 89 Ohio Laws,289, provides that in proceedings for joint ditches the application for them shall be made in each county. Section 8 of the act that is really before us for construction provides that the funds which shall be paid by the upper county to the lower county shall be used in a certain way, and says that the fund so paid shall be used in the enlargement of said outlet ditch, if any enlargement thereof be necessary, on the account of the additional water emptying into it from the upper county; or for the construction of the outlet ditch into the lower county if none, exists. These being the plain terms of that act, then the $3,189.00 which the law required Wayne county to pay Holme county after they had agreed upon the amount, having been paid to Holmes county, that sum could be used either in the enlargement of the Outlet ditch if that be necessary, where the outlet ditch already exists; or if none exists, that, it shall be,used for the construction of the outlet ditch. And it is claimed on behalf of this plaintiff that it clearly appears that the money having been paid to the county commissioners of Holmes county to be expended in the construction of the outlet ditch, that it must be expended by the commissioners of Holmes county. But counsel for defendant rely upon section 1 and 10 of the act as found in 91 Ohio Laws, page 261. Section 1 says: “That in all cases-where the commissioners of any county in this state shall cause to be constructed or enlarged, or cleaned out or repaired, any ditch, drain, or watercourse the water from which flows into an adjoining county,” That is the first paragraph. That is where the commissioners of the upper county are about to construct or enlarge a ditch which flows-into an adjoining county . Now what does that mean, “Being constructed in an adjoining county by the upper county,” or being constructed in an upper county by the proper officials of that upper county, And the second paragraph: “And in all cases where the commissioners of any county in this state shall cause to be constructed, enlarged, cleaned out or repaired, any ditch, drain cr watercourse which is or may be an outlet for any ditch, drain, watercourse of lands in an upper county.” The second case is where the lower county is constructing or about to construct a ditch in the lower county which will be an outlet for the waters of the upper county, or an outlet for the ditch of the upper county. In either of these cases it says,“the commissioners of such upper county shall pay to the commissioners of such lower county, such sum of money as may be agreed upon by the commissioners of both counties for the use and benefit of such outlet. ” And the third paragraph provides that “ the commissioners of said upper county shall apportion that sum to lands benefited in their county.” And in the case at bar that amount has been agreed upon. It says; “The sum which the commissioners of said upper county shall pay to the commissioners of said lower county, shall be determined at a joint meeting of the commissioners of the said upper and lower counties upon the line of said ditch, drain or water course, and a refusal of a majority of the board of commissioners of the said upper county to agree, or failure by them to meet, act or take part in the meeting with the commissioners of said lower county upon ten days notice by the commissioners of said lower county upon the commissioners of said upper county, to determine what sum the commissioners of said upper county should pay the commissioners of said lower county, shall be prima facis eivdence of their failure to agree or pay.” It will be noticed that there is no provision by which the commissionEers of the upper county can force the commissioners of the ower county either to attend a meeting of that kind or to efuse to attend, The provisions of the act are that the notce of such meeting shall be by the commissioners of the lower county upon the commissioners of the upper county.' And then it says;: “and ditches, drains or water courses which provide drainage, or when constructed will provide Irainage for land in more than one county, may be contracted, enlarged, cleaned or repaired, as provided in this ict and the laws prescribed for the constructing, enlarging, ileaning out or repairing single county ditches, drains or watercourses.

So far in this act we have discovered no scheme or plan y which these ditches which will drain lands in two coun. ,ies shall be constructed. Here it says: “May be constructed as provided in this act.” We will have to look elsewhere for the provisions of this act which provide for their construction, and for the law for constructing or repairing single county ditches, Then we come to section 10. “All proceedings for the construction, cleaning put, repairing or enlarging either of said ditches, in either the upper or lower counties, whether or not the same have been originally constructed as joint ditches, or whether or not the ditch to be constructed might be a joint ditch, may be commenced and constructed in the manner prescribed in this act and the law prescribed for single county ditches.”

The law prescribed for single county ditches provides that the commissioners of any county may construct the ditch within their county, and so far as we have come, this act only adds to that showing how they may get together in certain cases and agree upon the sum that is to be paid by the one county to the other. But in addition to the manner of procedure prescribed in this act for the construction, enlarging, cleaning out or repairing of any ditch, which furnishes or may furnish drainage for more than one county, proceedings shall be commenced and conducted in the manner prescribed by law for the construction of joint ditches, whenever a majority of each board of commissioners of such counties shall sc agree.” In the case at bar, there was no agreement and no attempt for agreement in the construction of a joint ditch. The commissioners of Holmes county took no action in relation to this ditch except that they took the money agreed upon. “But in all cases where such commissioners do not agree or determine to proceed under the laws for the construction of joint ditches, and the board of commissioners of said lower county unanimously agree that such improvement is necessary or will be conducive to the public health, convenience, or welfare, and the line described is the best route, then all such proceedings in reference thereto, 'shall be conducted as provided in this act and the laws for single county ditches.” There has never been any unanimous agreement by the board of commissioners of this lower county that this ditch is conducive to the public health, convenience or welfare, They have taken no action, This section winds up as follows: “Such proceedings to be conducted by the commissioners of said lower county. ” It is claimed in argument here that the ditch law is intended to be a system; that the legislature has intended to provide a system for the construction of single ditches and joint ditches that drain both counties. But like so much of our legislation on the subject of ditches, roads and schools and things of that sort, instead of being a systematic codification of the law, one legislature taking up the subject and dealing with it as a whole, the different legislatures have amended and repealed and enlarged, so that instead of being a system of laws,it is a patchwork,and the meaning and intent of the legislature is in very many instances anything but clear. But we are confronted with this question: “Are the commissioners of Wayne county in this case authorized tc construct a ditch in Holmes county?” If they can construct a ditch 100 yards long in Holmes county, they can construct a ditch of any length and of any size that they in their wisdom think is necessary for a sufficient outlet for the ditch in Wayne county.

Reed & Hanna, Attorneys for Plaintiff.

B. Eason, and W, Stilwell, Attorneys for Defendant.

£ We think that the doctrine of Home Buie ought to apply somewhat in this case; that the people of Holmes county ought to have some choice by electing the men to act as their county commissioners by whose judgment and discretion they are to be governed in county affairs,and that they ought not to be governed by the judgment and discretion of the commissioners of Wayne county, in whose choice and election they had no vote. That ought to be the law, and it is the law unless the legislature has clearly and unmistakably given the county commissioners of the upper county the right to come into the lower county and construct an improvement of this kind.

We have given these various statutes careful consideration. This matter was argued at length last summer before two members of the court as now constituted, at Newark, and it was argued at length at this term, and on careful consideration of all these sections of the statute we find nothing in the law that authorizes such a procedure on the part of the commissioners of the upper county outside of the bounds of their county. So that in this case there will be a decree for the plaintiff to the full extent prayed for enjoining any entry upon his lands for the purpose of constructing this ditch.


source: Caselaw Access Project

author: Douglass, J,

license: Public Domain

text:
    (Fifth Circuit — Licking Co., O., Circuit Court
    Mar. Term, 1898.)
    Before Adams, Douglass and Smyser, JJ,
    WYLIE SMOOTS v. JAMES W. FOSTER et al.

      Warranty of harvesting machine — Loss of crop — What damages attainable—
    Where a harvesting machine is warranted, and during the term of the warranty breaks down through a defect in the machine, or even when there was an implied warranty that the machine was fit for the purpose for which it was sold,and when the hired hands had been collected, and no other machine could be procured on account of the harvest going on generally in the neigh • borhood, in consequence whereof the crop of ripening grain was injured and there was loss of wages of the hands assembled, in determining the damages the court will not permit proof of the depreciation of the crop,etc., but will only allow the actual expenses of getting notice to the warrantor and of repairing the machine to put it in working order.

      Sealed verdict — Opened by counsel before being handed to court— Where a sealed verdict is handed in by the jury to be opened by the court on Monday, but counsel for the parties from curiosity opened the verdict and ascertained its contents, whereupon, on Monday, it was read by the court as if it had never before been opened, while this is an irregularity, yet the verdict would not be set aside on the motion of the party who has been guilty thereof.
    Error to the Court of Common Pleas of Licking county.
   Douglass, J,

This action was originally brought before a justice of the peace. On appeal it was tried in the court of common pleas, and resulted in a verdict for the defendants; and, to reverse this, error is prosecuted to this court. It grows out of the fact that the defendants, in 1.890, purchased a binder or harvester’ from the William N. Whitely Company. The purchase was made through an agent, W. T. Alward. The company was then in the hands of a receiver, and some cash was probably paid. At any rate, three notes were given, and this action is brought upon the third note. The original amount was $36 with accumulated interest. This third note of the series was transferred by the company. The receivership was raised,and the company, after the discharge of the receiver, transferred the note in controversy to the plaintiff Wylie Smoots, after due, for value. The defense is that this machine was warranted by a special warranty; and this warranty, qualified as it was, is in evidence in the record. It extended over a period of three years.

A question, however, quite apart from the real merits of the case, is submitted here. That is, that when the verdict was rendered on a certain Friday, it was sealed and placed in the hands of the clerk. On the incoming of the jury on Monday, the verdict was to be, as is usual, read in open court. Counsel,however, on account of curiosity or interest, concluded that they would open the verdict. They did so, and nothing further was done. It was ascertained, however, what the verdict -was, and on the incoming of the court the verdict was read as if it had not been opened, and it appeared that the verdict was for fifty-one dollars and odd cents in favor of the defendants on their warranty. The court then, doing what he would have done had the verdict not been opened, but had been opened there as a sealed verdict, and as, we think,properly, instructed the'jury that they did not follow his instructions, and re-instracted them on the proposition as to how the damage on the warranty should be regarded. The jury were sent out, and they returned a verdict in accordance with what we think was a proper instruction and the law upon that proposition. Now it is sought to reverse this case because of the simple fact that the attorneys in this case, representing their clients of course, opened this verdict. We think that this is net well taken. We think there is really nothing in this claim; there was no prejudice at any rate. Everything was done as it would have been done; and it does not lie in the mouth of the party who did, if anything, an impropriety, if it could be called that, to come in and ask to have this case reversed. Therefore, there is nothing in that contention.

Objections are raised to the evidence admitted; to the charge of the court respecting this- warranty, and as to the measure of damages. The substance of the warranty was that if there should be any defective construction in any part or parts of the machine, those would be at once supplied on notice to the company, covering a period of three years. Counsel for plaintiff claims that the court has not followed the rule which the authorities say should govern a case of this kind, as to the measure of damages. Counsel contend that it should be confined strictly to the value of this machine with the defect,and what would be the value of the machine as warranted to be. We are cited to a number of authorities which we have examined. Wood’s Mayneon Damages, section 224: “When article has not been returned. Where the article has not been returned, the measure of damage will be the difference between its value, with the defect warranted against, and the value which it would have borne without that defect.” That rule is the one that is contended for here as controlling this case, and as being the proper one,

Before the expiration of the time that this machine was warranted for, they began their harvest, and the drive-wheel was broken; the record discloses fairly that it was not by the fault of the defendants, it was covered by this warranty. Counsel sought to show the time of the parties in getting notice to the company; their delay, and even tried to show the injury to the crop of ripened grain in view of the fact that other machines could not be had at that time of year. The court, however,did not permit them to go into evidence on the subject of depreciation,the ripening of the crop and its consequent destruction by reason of that.

The court instructed the jury as follows on this point:

“And if you find that they did give notice in proper time to the company, and that the company did not repair the same, then the defendants had the right either to abandon the machine at that time, and bring their action on the warranty, or they could retain it and procure the repairs themselves; and the cost of repairs,' — their time and labor in serving the notice and going after the machine under the instructions and directions of the agent of the company, and all they did in the matter, necessary to be done by them to properly repair the machine, are proper amounts to recoup against the note. The court instructs you that whatever was necessary to be done, and the fair value of all these matters that the court has enumerated, — the purchasing of the wheel, if you find they did, and what it cost the defendants, — the cost price at the machine shop is not to be your guide — what did it cost these defendants, and the expense they were put to in and about procuring it, and hauling it to the farm, and putting it on the machine. For, it was the duty of the company .to have done this work for them, and if it did not do so, it is responsible to the defendants, for what it cost these defendants.”

Thus the court did permit them to show the time in getting notice to the company, and all the necessary and direct incidents that grew out cf the loss and delay.

The rule is not an iron-clad one, and the facts and circumstances in each case must be the criterion by which this matter can be determined in order to do justice between the parties. When a wheat-crop is ready to cut and an absolute warranty has been made, or even if it was an implied warranty that the machine was reasonably fit for the purposes for which it was intended, the hands had collected, and the machine, as against this warranty, broke down, and there was delay, loss of the time of hands, loss of crops, the rule would be pretty broad as to the measure of damage that would do justice between the parties. But, however, the court limited that, as we think, within the proper sphere in this case. We can see how this rule is varie.d under the circumstances. In Wood’s Mayne on Damages, some veiy radical cases are given:

“In another case, where a link in a chain cable, which had been sold with warranty, broke, it was held that the value of the anchor which was lost along with it might be recovered. But this case was treated as of no authority in Hadley v, Baxendale. And Alderson, B., said that on the same principle the jury might have given the value of the ship, if it had been lost. ' No doubt the enormity of the damages which would be recoverable in such a case is very startling, But if a chain cable is sold for the express purpose of holding a ship to its anchor, and if, through some defect in it, the ship drifts on shore, it is difficult to see why the damages should stop at any smaller amount. Where the pole of a carriage broke, in consequence of which the horses became frightened and were injured, the court held that the sale of the pole carried with it an implied warranty that it was reasonably fit for its purpose; and that as to damages, the proper question to leave to the jury was,'whether the injury to the horses was or was not a natural consequence of the defect in the pole.”

I simply read that to show that in cases of this kind the real measure of damages is always governed by the subject matter in hand, and the surroundings and situation of the parties, and that there is no iron-clad rule that can be laid down that will fit all these cases.

W. T. Alward was agent for the'company at the time of the purchase of the machine; there was a receiver appointed for the company; the receivership was abandoned and raised; the company got possession again, and he went out of employment.' When this breakage occurred they came to W. T. Alward, from whom they had purchased the machine. He had a right to make this warranty, and did make it. They sought advice from him, and he corresponded with the company. It is said that there was error here in showing that he had been resorted to, and what he did. It is very apparent that it was perfectly proper to have as a witness W. T. Alward from whom this purchase was made and who made the warranty,at the time when he had authority to bind the company,as far as he did not transcend his authority. This testimony was simply introduced to show the diligence of these parties in seeking to give notice to the company; and not only that, but it was the reasonable and proper thing for ihem to do, to seek out the man and have a hearing within the shortes ttime. They did communicate with this company, and they sought out the means that was the most available. And looking this record through, there isn’t anything that we see that prejudiced the plaintiff in any way in reference to the testimony of Alward, The question of the declarations hereof the discharged agent to bind the company does not operate in this case to the prejudice of the plaintiff.

J. E. Davis, on behalf of Plaintiff in Error.

J. M. Swartz, on behalf of Defendant in Error.

Three specific requests were asked, which we think were too narrowly limited. We think the court did not travel beyond what he ought to have charged the jury respecting what the real measure of damages in this case was, and these requests were properly refused. One of these requests was as to this man Alward,and it is answered by what I have said: “That if A. T. Alward was no longer the agent of the company when the machine failed to work properly, but his authority to act for the company had been revoked, notice to the agent would not be notice to the company, and his acts and declarations are not admissible against the company.”

That would be true as an abstract proposition of law,but it does not apply to this case in the way in which his services were used. He was a competent witness as to proving this warranty. As to his communicating with the company,there is no question about the fact that the letter was written,and whether he did it or anybody else, it simply reflected upon their diligence, and the best means to get notice to the company, and could not,in any way,have mislead the jury. We think the charge in this case was right. Judgment affiimed.


author: Bentley, J.

text:
    (Sixth Circuit — Huron Co., O., Circuit Court
    May Term, 1894.)
    Before Bentley, Scribner and Haynes, JJ.
    WM. S. ROOT v. THE INCORPORATED VILLAGE OF MONROEVILLE, OHIO.

      Injury from, defective sidewalk — Proof of like defective condition of walk on other side—
    (1) . Where plaintiff’s action is for personal injury through a defective sidewalk, he can not be permitted, in his evidence in chief, after showing the defective condition of the sidewalk where he was injured, to further show that the walk on the other side of the street was in just as defective condition, although such evidence would be proper in rebuttal, if the city attempted to show that there was the sidewalk on the other side of the street which the plaintiff might have used.

      Same — Repairs after accident—
    (2) . Evidence that the city repaired the sidewalk after the accident, is not admissible where there is no question of the duty of the city to keep the sidewalk in repair.

      Conversations with councilman—
    (3) . Conversations of plantiff with one of the councilmen of the city after the accident, are incompetent, as admissions by the city.

      Testimony competent in part and incompetent in part, given as a whole—
    (4) . Testimony competent in part and incompetent in part, but offered as a whole, should not be admitted.

      Damages — “Probable” effects of injury—
    (5) . Plaintiff is not entitled to damages for probable suffering, or for the probable effect of the injury in the future, but only for such effects as would follow with reasonable certainty.

      Instructions after testimony and before argument — Duty of court —Sec. 5190, R S.—

    (6) . Under sec. 5190, Revised Statutes,a party has a right to ask the court at the close of the evidence and before arguments by counsel, to give instructions to the jury on matters of law. Where the instructions asked to be given are proper, it is the duty of the court to give them then, from wihch duty the court is not relieved by giving these instructions after argument0 of counsel, in his general charge.

      (Judgment of circuit court 'reversed, and that of common pleas affirmed, 54 Ohio St., 523, on the only point that while the ruling of the circuit court is to the 6th point of the syllabus was correct, yet the record does not show that counsel requested the court to give the instructions before argument of counsel, and that it is necessary such request by counsel and refusal by the court and proper exception should appear in the record.) •
   Bentley, J.

This is a proceeding in error to reverse the judgment of the court of common pleas, against Mr. Root, rendered in an action commenced by him in that court against the Incorporated Village of Monroeville, Ohio, to recover damages for a certain alleged injury received by him while walking along one of the sidewalks in that village, and which he claimed the village should have kept in repair, but which they had negligently allowed to become and remain out of repair, whereby he was injured.

As the terms of the petition may be important in considering some of the alleged errors, I will read a portion of it. After making some general allegations in regard to the duty resting upon the village, the petition proceeds

“On the 15th day of October, 1889, said street and sidewalks were, by the negligence of said defendant, allowed to be- and remain out of repair; and the sidewalk along the north side there, in front of in-lots numbers 121 and 123, on the plat of said village, which walk was originally constructed of stone, was broken, with many dangerous holes and sharp and jagged projections. By the negligence of the defendant, on the evening of that day, said holes were allowed to remain open, and broken pieces of stone were not removed, but were exposed to contact without lights or guards. The defendant had, by its proper officers and agents, full knowledge and notice of the dangerous condition of said walk in time to remedy it and to prevent all injury therefrom, and it then and there became the duty of said defendant to so remedy it a to prevent such resulting injury. On said evening of the 15th day of October, 1889, this plaintiff was lawfully passing along said street upon said sidewalk wholly unaware of its dangerous condition, and accidentally, without any fault or negligence on his part, while walking there, was precipitated into one of said holes in said sidewalk, his foot striking on one of said , sharp, rough and jagged pieces of stone, and his said foot and person were thereby cut, torn and severely bruised and wounded, whereby he. was greatly and permanently injured.”

He further makes some allegations regarding the accident, the permanency of his injury, and that he was put to great expense in endeavoring to be cured of it.

The village, in its answer, admits its character, as; charged, and admits its control over this particular street-in question, and its general duty to keep the sidewalks in-repair on this street, but denied in general all the other averments of the petition, and also alleges that if the plaintiff received any injury, it was on account of his own negli-i g’ence contributing thereto. The reply of the plaintiff denies this affirmative allegation of contributory negligence.

The case came on for trial, and was tried to a jury. The plaintiff gave evidence, as recited by the bill of exceptions, tending to prove all of the material averments of his petition. The defendant produced its testimony, and at the close of the evidence and before the argument began,certain written charges, requesting that they be given to the jury as the law of the case. This was refused, and after tbeargument to the jury had closed, the court gave to the jury its general charge, and the jury, after retirement, brought’ in a verdict in favor of the village against the plaintiff. A motion for a new trial was made and overruled, and judgment was rendered upon the verdict, and a bill of exceptions was allowed and filed in the case. The bill of exceptions does not purport to exhibit all of the testimony that-was given in the case. It states the giving of certain testimony tending to prove certain facts. It states certain questions which were asked of the witness,and the ruling of the court upon them. It recites and gives, in haec verba, certain requests of the plaintiff and the charge of the court, 1 and contains the recitation that it embodies all of the charge given by the court; but the recitation and the other matters were simply to exhibit what is claimed to be errors of the > court in its rulings upon the trial of the case.

■ In the bill, after reciting the giving of evidence by the plaintiff to sustain the material allegations of his petition, that is, the facts which the-plaintiff’s evidence tended to: prove, this occurs: :

‘■‘Among the witnesses called by the plaintiff were Peter.. Seymour and Jacob Hammel, who were asked by plaintiff’s counsel as to the condition of the sidewalks on both sides of Monroe street at the time when said accident occurred. To this question,defendant’s counsel objected, and plaintiff’s counsel stated-that he proposed to show by the witnesses that the sidewalk on the opposite side — on- the side of the street opposite the place where plaintiff was injured, was also then out of repair and in an unsafe condition generally, and that there could be no choice for a person passing along said street between the sidewalks on the two sides of it, for both were bad and unsafe; but the court sustained the objection and excluded said evidence, and the same was not given to or considered by the jury, to which ruling the plaintiff by his counsel then had there excepted.”

■ That is one of the errors which is urged here as a ground for setting aside the verdict and reversing the judgment.

The issues, as they were presented by the pleadings, are to be considered here. The plaintiff alleged that this dangerous defect existed in a certain sidewalk of the public street along which he had occasion to pass, and did pass. The village, not denying that was one of the streets of which it had charge, or that this was a sidewalk which it was bound to keep in repair, admits both of those facts. Presumably then, the plaintiff below, without some averment or showing otherwise, had a right to pass along that public sidewalk. This evidence was offered by him in chief, and he claims that it was proper because it would negative the idea that he ought to have avoided this dangerous condition which he claimed to be in the sidewalk, by showing that he substantially had no choice in the matter, or, at least, that he had no opportunity of avoiding that by going on the other side of the street.

Had this testimony been offered in rebuttal, and after the defendant village had offered testimony tending to show that this defect was noticeable, and that another way existed there which the plaintiff could well have taken, then this testimony would have been proper; but to have anticipated the evidence which might have been given on the part of" the defense without anything, up to this time, suggesting, as .appears in the-record, any necessity for such testimony, would, we think, have been subject to the objection, mentioned by the counsel for the village, that it would tend tq introduce immaterial issues, and possibly prejudice the village by showing that not only had it suffered this particular defect to exist, but that it was also negligent regarding other sidewalks and streets.

Upon this view of the matter, the action of the court in excluding it was correct, It does not appear that it was afterwards offered in rebuttal.

The next objection appears as stated in the bill, in this way:

“Among plaintiff's witnesses was Frank Egle, who was asked by plaintiff’s counsel as to the repair of the sidewalk at the place where plaintiff was injured, by the authorities of said village, soon after the accident. To which question defendant’s counsel objected, and the court said that if the repairing was done after tbe injury, it was not competent in any way, and though plaintiff’s counsel offered to show that fact by the witness, the court sustained defendant’s objection, and the same was excluded from the jury, to which ruling of-the court, the plaintiff by his counsel then and there excepted.’’

As against the claim of the plaintiff, that this exhibits error, counsel for the village says that the bill does not ex-hibit the particular question asked, and that therefore, this court cannot determine but that the ruling upon the particular question may have been correct. But without regarding now that argument of the counsel for the village, we think the ruling of the court was correct any how, That is, in order to show, under the allegations and issues here, that this defect existed or that the village knew that it existed, it was not competent to show that shortly after the village made a repair of the particular defect.

A case was cited from vol. 3 Ohio Circuit Court Reports, page 640, Village of Ashtabula v. Bartram. The plaintiff in that case was precipitated dowD an embankment along a certain street, and the fence which tbe village theretofore erected, had become out of repair at that point, so that there was no barrier to keep parties from being precipitated down the bank, and the court in that case held thaj¡ the'fact that the village shortly after this accident repaired that fence was competent. But it appears very clearly from the report and the circumstances, that that ruling is not applicable here. In that case, the principal issue was as to whether or not this place was of such a nature and in such a condition, that the defendant in that case was charged with any duty to provide a barrier there, and the circuit court held that from the fact that they had built the fence, and even after this, repaired the fence at that particular point, it involved an admission upon the part of the defendant that it was bound to keep up some barrier there; that it recognized it as a dangerous place, and as against accident there it ought to provide.

It would have been a parallel case if, in this action here at bar, the village had in its answer denied that it had any duty to perform respecting the sidewalk in question; and the fact were shown that shortly after this accident it had made repairs upon this very walk. That would have im-. plied an admission that it was a walk as to which it owed some duty; but it would not follow that by repairing a walk confessedly under the charge of the village, there was an admission by them that it was out of repair at the time of the accident. So there was no error in that respect.

■ Next, without taking the time to read the exact wording of the bill, evidence offered by plaintiff was rejected tending to show a conversation between plaintiff and. one of the members of the council of the village after this accident occurred. He was not competent to bind the village by an admission of a past fact. That would warrant its exclusion so far as it simply tended to show that, and the other fact that is involved in the conversation; that is, the statement by the plaintiff of his suffering — of his being injured at that time, is coupled with other statements which would not be competent, being a recitation as to how he was injured, or how his injury occurred, etc.; and as the whole matter’was offered together,though possibly a small portion qf it is competent for a particular purpose; yet the main portion of it being incompetent, it was properly, when thus offered, excluded entirely.

The same may be said of the ruling of the court in excluding certain evidence of Charles J. Hoyt, who stated that the plaintiff “was a brick layer and mason by profesSion, but at that time, — that is, the tic@i after the accident, —'he was unable to do anything on account of the injury to his left foot, I believe.”

■We think this does not come under the rules which admit the statement of a witness that he observed that another person was disabled or sick or suffering pain, or something' of that kind. It was a general statement which involved something more than the statement of a mere fact within' the personal knowledge of the witness.

Objection was made to certain other testimony offered by the plaintiff in the deposition of Mr. Hoyt — another conversation with the plaintiff after the injury. The answer and question which was excluded was this: “During April and May, 1891, he was a foreman for me in building a brick building for the electric light plant at Bellevue, Ohio, and during that time, saw him almost daily, and during that time his foot hurt him so that he could hardly attend to his work, and on several occasions he asked permission to leave his work and go for treatment to a doctor, and did .go and see a doctor about it, and as he said to me, he complained about it hurting a great deal and gave him a great deal of pain, so much so that it interfered with his work. His foot troubled him all through the work, and he was not able at any time to wear a shoe upon it during the time he was working for me.”

It will be noticed that in that answer there is some hearsay. It was all offered together. Although a portion of it may be competent, we think the plaintiff should only have offered such portion of it as could be deemed competent; but offering it altogether — the whole answer, the general exclusion was correct. It is also noticed regarding that answer, that there is much in it that is not a very close' statement of the facts within the observation of the witness, ' but facts that he would be as apt to gather generally, as from present indication of pain on the part of the plaintiff.

The witness states this also, which was excluded, — being' a part of the Hoyt deposition:

“My first visit to him, (plaintiff), at Monroeville, Ohio, was to get him to superintend the construction of the brick' electric light building at Bellevue, Ohio, and he then told me about his foot, and showed it to me, and said that he hesitated to take nm work on account of the condition of his foot. He stated t<T me, at that time, that he stepped or broke through the sidewalk and injured it.”

Some remarks that I have already made will apply to that. It is a mere recitation of the plaintiff as to how this accident occurred, and was not proper.

There was an objection to another portion of the deposition of the said Hoyt in which he said that, prior to this accident, “Have never known him to be sick, and having bodily strength to do his woik; believed him to be in good health during that time;” that is, for a long period.

The exclusion of that comes pretty close to the line. While we think it would not be error to have admitted it, in view of the condition of the testimony generally, we would not be willing to say that the exclusion of that was of so prejudicial a character as would warrant the disturbance of the verdict or judgment in that respect.

Among the plaintiff’s requests to charge- is this one— number 3, (these are requests which the plaintiff, at the" close of the testimony and before argument, requested the court to give to the jury):

“The burden of the proof is on the defendant to proveto you that the plaintiff contributed to his injury by his own negligence, and plaintiff cannot be legally found to so have contributed unless he is shown to have been at fault in so doing.”

If we had all the testimony before us, we could determine whether,on the trial, the refusal of that was, or was not error. We must dispose of it in view of this rule, that there may be cases where the plaintiff, in the introduction of his own testimony, may afford some presumption of such contributory negligence as would prevent his recovery. In such a case that a charge of this kind would be erroneous, that is to say: in such particular case, the burden would be upon the plaintiff to introduce testimony to show that he was not guilty of contributory negligence, because the jury might regard his own testimony as showing that he was so guilty; and the burden in such a case would be upon him to remove the suggestion or presumption which would arise against him from his own testimony; but as to the testimony here, we cannot say judicially that there may not have been testimony offered by him that would make this request inapplicable to the particular case, and therefore are not able to say that the refusal to give this charge was error.

“Tenth request: If you find for the plaintiff, in assessing his damages, you should award him full compensation for the injury received. In this,you may consider the pain suffered, and which naturally and probably will be suffered; the extent of the injury itself, and the effect it has had and' probably will have on his bodily comfort and his ability to labor; the permanent character of the injury, if it is permanent; the expenses, if any, which plaintiff has incurred in doctoring the injury, and any and all other facts bearing on the question, and from them all, what would be fair and reasonable compensation.”

We are inclined to think that, under the investigation we have given to similar subjects heretofore, there is involved in this request an erroneous proposition. Instead of damages for probable suffering, for the probable effect of the injury, in the future, plaintiff would not be entitled to damages, but rather for those effects that would, with reasonable certainty, follow. The mere probability which might happen in the future would not be proper ground for the assessment of damages, and thinking thus, we fail to find error in the refusal of the court to charge that proposition.

The charge of the court is excepted to for three particur lar reasons set out in the bill of exceptions. It will require too long a time to read them now, and I will point out the particular reasons why we think it was not erroneous in the charge of the court, itself. We think there was no prejudicial error in the charge of the court itself. The main clause, which seems now to be the most important question, is as to the effect of the late amendment to the section 5190, providing for proceedings upon the trial of a case. The initial paragraph is as follows: “When the jury is sworn the trial shall proceed, except as provided in the next section, in the following order, unless the court for special reasons otherwise direct. ”

Then follows that the plaintiff — without quoting the exact language — the plaintiff may make a brief statement, and the defendant a statement,and the party who would be' defeated if "no evidence were offered on either side, must first produce his evidence; then the other party. And the* parties will then be confined to rebutting evidence, and then-comes the 5th sub-division of the section. As it stood; originally before the act of 1892, 89(h Ohio Laws, pages 59 and 60, it provided: “When the evidence is concluded,' either party may request instructions to' the jury on matters of law, which shall be given or refused by the court.” But under that section, certain courts held that it was a matter* of discretion with the court whether or not it would charge the jury or give any instruction before the argument, and the said amendment of 1892 now provides in the 5th paragraph :

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

- The next sub-divisiom — *6, provides for the submission of’ the case, or the making of the argument. After that, the' 7th, begins the statement: “The court, after the argument is concluded, shall, before proceeding with other business,charge the jury; any charge shall be reduced to writing by the court, if either party, before the argument to the jury’ is commenced, request it.” There are other provisions in' the 7th paragraph which I need not take time to read. • :

The question is, whether the legislature intended by the amendment to make it the duty of the court to give the jury: written requests applicable to the case and proper in form,' after the conclusion of the testimony and before the beginning of the argument; whether or not it has provided a'statutory right of a party to that action by the court. >

Tt is contended that, notwithstanding that amendment,' the first section provides that the court may otherwise-direct, and that that leaves it still as a mere matter of dis-' cretion as under the former holdings of some of the courts.

On the other hand, it is contended that this amendment' was evidently designed to effect 'this particular purpose,' and was possibly made in view of similar rulings- that had' been made under the old section as it stood. The first section, and the first part of the section, provides, as I have; stated, that the trial shall proceed in the following order — ■ • “.unless the court for special reasons otherwise direct.” '■>

This would evidently regard simply the mere order of proceeding, that in a certain case it might be- proper for-one party to begin his evidence instead of the other, and it-may be that it would be proper to vary the mere order of'some of those proceedings upon the trial; but it will be observed that in this section are various positive regulations which have always been regarded as binding upon the courts, and which they are bound to follow. This section provides something else besides the mere order of business,as for instance: the reducing of the charge to writing, or-not modifying it or explaining it thereafter orally, etc.

As to the particular matter here, this strikes us as significant and important. At the close of the evidence, of-course, there is a division of the case. It is an epoch, so-to speak,in the case — in all cases. This statute, then, provides that at that stage of the proceedings a party is entitled to have pertinent and proper propositions which he' may present, given to the jury, and before he shall be •called upon to submit his argument to the jury. • •

We can well see that that might, in certain cases, be exceedingly important. It might be a question what view the court might take of the law,and its resolution would have a great effect upon the argument which the counsel might-make to the jury. He might, upon a certain view of the law1 which the court would not take afterwards, waste his entire argument to the jury, and leave unguarded material facts which, if he had assumed the other view, he would have' been glad to discuss.

So it would seem that there is an underlying reason-which might have been present in the mind of the legisla^ tors when they framed the.statute. '

There is another consideration, and that is, it is provid-'' ed that at this juncture of the trial, there may be a request’ to the court to charge upon certain propositions, then,1 after another well known part of the trial has taken place, namely, the argument. The statute directly provides the'1 court shall then proceed, before going to other business, to charge the jury. By the provisions of this law, the charge' may, at the instance of the party, be divided into two sections,1 and between the giving of these two sections, the statute' specifically provides that the counsel may be allowed to argue,! the case to the jury,

We think, as the law now stands, that it was evidently the intention of the legislature to give the party that right, and that refusing it is error, unless, as in all oases, there shall be an application of tne general provision of the code that no error which is not in effect apparently prejudicial to the party, shall work a reversal of the judgment.

It is argued that there may have been special reasons in this case why the court should otherwise direct, than to follow this particular order; and in connection with that it íb said that he did, in fact, give the material part of these propositions to the jury in his general charge, and that this eourt must presume, in favor of sustaining this judgment, that there was, in fact, special reasons for the action of the court. But the section provides that it shall proceed as follows, “unless the court shall otherwise direct.’3

There is nothing upon his record showing that the court directed the order of.proceedings in any way to interfere with the statutory order, except the mere bald statement that he refused to give these charges, and we think this is not sufficient to warrant the presumption that he did give-the direction interfering with his plain, statutory order, but the inference is that he refused it upon the idea that it was a matter of discretion on his part which he could freely exercise; or possibly, that from his view of the law, these-propositions were erroneous.

The propositions other than the two already mentioned we think were all proper, and such as should have been given. They were carefully prepared, properly framed and properly presented, and there is no reason to think, no proper reason, why they should not have been given before the argument To be sure, there are certain of them that appear, perhaps, sufficiently, in the general charge of the court; but it would be a grave question whether, if they all did appear in the charge of the court, it would relieve the-record of the error in not giving them at the time the statute gave the party the right to have them given. Besides, we think there are quite a number of these requests that were not even substantially, at least not fairly and fully comprehended in the charge as given, and for the error in refusing to give these charges, except the two that I have-named, when requested, the judgment will be reversed and the cause remanded to the court of common pleas for a new trial, and the costs will be assessed against the defendant in error.

Stewart & Rowley, and Horace Andrews, Attorneys for Plaintiff in Error.

Hon. G. P. Wickham, and L. W. Wickham, Attorneys for Defendant in Error.


author: Smith, J.;

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Swing and Smith, JJ.
    CHARLES J. PUERRUNG et al. v. THE CARTER-CRUME COMPANY.
    Section 148c, R. S., providing that foreign corporations complying therewith shall not he subject to process of attachment on the ground of non-residence, held to be constitutional and valid.
    Error to the Court of Common Pleas of Hamilton county.
    The plaintiffs brought suit for $750 against the CarterOrume Company, and garnished funds in the hands of Diem & Wing, the attachment being secured on the ground that the defendant company was a foreign corporation and a non-resident of the state. At the trial below Judge Sayler dissolved the attachment.

      G. W. Baker, for Plaintiff in Error.

      Kittredge & Wilby, contra.
   Smith, J.;

Cox and Swing, JJ., concur.

We are of the opinion that the judgment in this case should be affirmed; that section 148c, Revised Statutes, which in effect provides that in actions brought in this state against foreign corporations which have complied with the provisions of said statute they shall not be subject to process of attachment, under section 5521, Revised Statutes, or any law of Ohio, on the ground that it is a foreign corporation or a non-resident of the state, is a valid and constitutional law.


author: By the Court.

text:
    (First Circuit — Hamilton Co., O., Circuit Court —
    Jan. Term. 1898.
    Before Cox, Swing and Smith, JJ.
    FRANK BROKAMP and NELLIE BROKAMP v. THE METROPOLITAN LIFE INSURANCE COMPANY.
    Life Insurance. Company npt liable for premiums paid upon a void ‘ ' policy issued by one of’its agents without the knowledge of the insured and under false representations by the agent.
    Error to the Court of Common Pleas of Hamilton county- . .............
    . The plaintiffs sued for recovery of $65, paid to the defendant company by one of them as premiums on a- policy of insurance on the life of the other, her husband. The petition alleged that the policy, which was for more than. $200, was null and void for the reason that it was issued without the knowledge or consent of the insured, and without his having been examined by á physician, and that théapplication was filled out by an agent of the defendant company, who represented to the wife that the matter was regular in every way, and that relying upon these representations she paid in as premiums on the said void policy the sum here sued for. A demurrer to the petition was" sustained below.

      O’Hara & Hojfmeister, for Plaintiff in Error,

      C. D. Robertson, and Robert O. Pugh, for the Insurance Company.
   By the Court.

This judgment is affirmed upon the reasoning and authority of the case reported in 25 Insurance Law Journal, page-103, and upon the provisions of section 3626, Revised Statutes.


author: ..Parker, J.;

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Parker, Marvin and Wilson, JJ.
    CATHARINE HEINTZ v. FRANK CALDWELL et al.

      Testimony of witness contradictory of outside statements—
    (1.) It is error to exclude statements of a witness which are contradictory to his previous testimony, when such statements carry with them an affirmance of facts.

      Personal injury — Choice of competent physician by person injured— ‘ ' ......
    (2.) A person injured through the fault of another is bound to use only ordinary care in the choice of a physician.

      Dog-bite — Fears of hydrophobia and lockjaw as element for damages—
    (8.) One .bitten by dogs may testify as to mental suffering through; fear of hydrophobia and lockjaw; and instruction to, the jury, that recovery may be had on this account does dot cure the' error in excluding the evidence.
    .Error to the Oourt of Common Pleas of Hamilton county..
   ..Parker, J.;

Marvin and Wilson, JJ., concur.

- It appears from the record in this case that the plaintiff in error brought a several action against the defendants in, error in the court of common pleas of this county on ac-cpunt of injuries which she alleged she had received from: being bitten by dogs owned and harbored by the defends ants in error; and that the case was duly tried to a jury, which returned a verdict in her favor for one hundred dol-. lars, upon which judgment was entered. ■ .

Being dissatisfied with the amount of this judgment, she made a motion for a new trial, in due time, which was over-' ruled. She now prosecutes error in this court to reverse-that judgment. >

Without undertaking to recite fully the facts and circum-:;, stances appearing in evidence, we content ourselves with briefly stating our conclusions. We are of the opinion that ■ the trial court erred in the following particulars:

First, in not permitting witnesses on behalf of the plain-. tiff to testify to declarations made by William Glazer, a wit-, ness on behalf of the defendants, which were inconsistent-with and contradictory to his testimony in chief, as well as-, upon cross-examination while testifying as a witness on behalf of the defendants. It is stated that the trial court refused to allow the witnesses to testify to these contradictory statements of Glazer because it appeared to him that they, were mere expressions of opinion upon the part of Glazer, • and were, therefore, incompetent and immaterial. It ,-ap-., pears to us that these declarations of Glazer carried with them an affirmance of facts which were not at all in harmony . with his statement of facts material to the issue upon his examination in chief.

-Secondly, we are of the opinion that the trial court erred in its charge to the jury with' respect to the plaintiff’s right., to recover on account of increase of pain which might have ? been occasioned by improper treatment upon the. part of her physician. We are/of the opinion that.the .pei/son injüred is bound to use only ordinary care in the choice of a physician, and it does not appear in this record that the plaintiff did not exercise such care in the premises.

Mortimer Matthews, for Plaintiff in Error,

Levy &"Johnson, for Defendants in Error.

Having exercised such care in endeavoring to be healed, we are of the opinion that she was entitled to recover the damages resulting from the injury received by the bites'of the dogs, and also for the increase of suffering which may have resulted from the physician failing to apply the best or most approved treatment or remedies; and that this view* is sustained by the case of Loeser v. Humphrey, 41 Ohio St., 878, as well as by a great many other cases cited in the brief of counsel for plaintiff in error.

Thirdly, we hold that the court also erred in not' permitting the plaintiff to testify to the mental suffering consequent upon her apprehensions of hydrophobia and lockjaw resulting from the dogs’ biting her. When Hhe learned judge came to charge the jury, he seems to have concluded that plaintiff was entitled to recover on this account; but his charge in that respect could not cure the error occurring upon the exclusion of the evidence.

We find no other errors in the record prejudicial to the plaintiff in errr; that is to say, one which bears directly upon the amount her recovery. The views of counsel for plaintiff in error as to the competency of testimony of non-expert witnesses as to the condition of the plaintiff resulting from the injury which they personally observed, we subscribe to, but we think, nevertheless, that as the question was presented to the trial court, his rulings upon the evidence were correct.

As to the evidence of the actuary or mathematician which plaintiff undertook to introduce, we are of the opinion that it should have been admitted; that the problem being one that required skill in computation, the testimony of the results attained by one so skilled might properly be received; but believing that this was largely in the discretion of the trial judge, we do not find that there was error in his ruling to justify a reversal of the judgment.

For the reasons stated, the judgment of the court of common pleas will be reversed, and the cause remanded to that court for further proceedings according to law.


author: Swing, J. Cox, J.

text:
    (First Circuit — Hamilton Co.,O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Swing ond Smith, JJ.
    CHARLES B. SNELL v. THE CINCINNATI STREET RAILWAY COMPANY.

      Change of venue — Application under sec. 5033, R. 8. — Error to he prosecuted in six months—
    (1.) An application,under sec. 5033, R. S.,for a change of venue to an adioining county, on the ground that the opposite party is a corporation having more than fifty stockholders in the county, is a special proceeding, and a refusal to grant such an order affects a substantial right, and error thereto must be prosecuted within six months.

      Constitutionality of see. 5033, R. S.

    (2.) In the opinion of a minority of the court, section 5033, providing for a change of venue in a suit against a corporation having more than fifty stocknolders in the county, is unconstitutional.
    Error to the Court of Common Pleas of Hamilton county-
    The plaintiff in error in this case asked that the judgment of the common pleas court in favor of the defendant in error be reversed for error in refusing a change of venue to an adjoining county, pursuant to the provisions of section 5033 of the Revised Satutes of Ohio. At the first trial of the case in the common pleas there was an instructed verdict for the defendant. Error was prosecuted, and the circuit court reversed the common pleas, and the supreme court affirmed the circuit court. At the second trial in the common pleas there was a hung jury, and the plaintiff thereupon filed his motion and affidavits, under section 5033, for a change of venue, which motion was denied. The trial again proceeded, and there was a verdict for the defendant. From the final judgment thus obtained by the defendant, error was prosecuted by the plaintiff on the sole ground that the common pleas court erred in denying the plaintiff in erorr a change of venue.
   Swing, J.

Judges Cox and Swing are of the opinion that the provision of the statute by which it was sought to change the venue ,in this case, is a special proceeding within the meaning of section 6707, R. S., and that the judgment or order of the court in refusing to grant the change of venue was an order affecting a substantial right in said special proceedings, and therefore proceedings in error could only be prosecuted within six months from the rendition of said judgment, and the proceedings in this court having been brought long after six months from the rendition of the judgment, this court is without jurisdiction, and therefore the petition in error must be stricken from the docket.

John W. Wolfe and Thomas L, Michie, for Plaintiff in. Error.

Paxton, Warrington & Boutet, contra.

Cox, J.

1. The first motion having been overruled,and no exception taken or filed within the time allowed by law, was decisive of the case, and the second motion being for substantially the same reasons as the first, should have been stricken from the docket.

2. Said law is in my opinion unconstitutional in that it does not afford equal protection to all, as required by 2d section, Bill of Rights, and 1st section, 14th Amendment to United States constitution. I think it comes within the principle laid down in the case of State ex rel. v. Ferris, 53^ Ohio St., 814. It provides that the venue can be changed on application of the opposite side when the corporation has fifty stockholders resident in the county. But if a corporation has only forty-nine stockholders,- it is not subject to the law. There seems to me to be no reason for this-discrimination.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Swing-and Smith, JJ.
    JOHN B. BOBE v. JOHN RANKIN et al.

      Correction of a real estate mortgage "defectively executed, as -against general creditors—
    Appeal from the Court of Common ' Pleas of Hamilton county.
   The plaintiff loaned to Mary A. Rankin $2,400, taking-a mortgage on real estate as security. The mortgage was-recorded, but proved to be defective in execution, in that the grantee, who was the agent of the plaintiff and afterward transferred the mortgage to him, was one of the witneses, and also took and certified the acknowledgment as a notary public. Mrs. Rankin died leaving insufficient property to pay her debts. The present suit was brought for correction of the mortgage, which is resisted by the general creditors. At the hearing below Judge Wilson granted a decree making the correction. The circuit court held:

A. B. Benedict, for the Plaintiff.

Marsh & Ritchie, Wm. Hartley Pugh, Borman & Thompson, and Shay & Cogan, for the General Creditors,

‘‘A majority of the court is of the opinion that the plaintiff is entitled to the relief asked.”


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Cilcuit Court
    Jan. Term, 1898.)
    Before Cox, Smith and Swing, JJ,
    H. P. WHITTAKER v. KENSEA STONE and DUDLEY ALLEN.
    No merger where judgment is taken against one of the two parties on a joint claim, the other being returned, “not found,” but being afterward brought in on an alias summons.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

We are of the opinion, on the authority of Yoho v. McGovern, 42 Ohio St., 11, that where a plaintiff commences an action on a joint claim against two defendants, who are non-residents of the state, and sues out an attachment which is levied upon property as the property of one or both of them* and summons issues against both of the defendants which is duly served on one of them and returned ‘‘not found” as to the other defendant, and on the day fixed for the trial, judgment is rendered against the party served, and on the following day an alias summons is issued against the other defendant, and he is personally served, and on the day fixed for the hearing, trial is had and judgment is rendered against him, from which judgment he appeals, that an answer setting up such facts does not constitute á good defense; that under such circumstances the taking of the judgment against the defendant first served does not merge the debt against the other into the judgment against the first, but that he is authorized afterwards to sue the person not served on the original debt, and if he can obtain service upon him, recover a judgment thereon, notwithstanding the former judgment against the other joint debtor. If he can do so in a new action, we think he can do so in the same action if the justice has not lost jurisdiction of the action, as we think he had pot in this case. We think the demurrer (to the answer setting up these facts) was improperly overruleu and the action dismissed, and the judgment will be reversed and the cause remanded to the court of common pleas for further proceedings.

W. J. Davidson, for Plaintiff in Error.

Charles J. Hunt, contra.


author: Swing, J.

text:
    (First Circuit — Hamilton Co., O. ,Circuit Court
    Jan. Term, 1898.)
    Before Cox, Swing and Smith, JJ.
    THE C., H. & D. RY. CO. v. JOHN SHRODER and THE CINCINNATI STREET RAILWAY CO.

      Liability for injury by a steam, railway to a street railway passenger—
    . Error to the Court of Common Pleas of Hamilton county*
    This is the case where an electric car was obstructed and stopped cn the C.,H. & D. tracks at Brighton,by the balking directly in front of it of a team of horses, which belonged to the street railway company and were hitched to a wagon. Before the horses could be gotten out of the way so as permit the car to be moved, a train came round the curve and crashed into the street car. Schroder was a passenger on the car, and sued both companies for $5,000 for injuries. It was claimed on the part of the street railway company that the accident was unavoidable on their part, having been brought about by an uncontrolable agency, to-wit, the two balky horses. The jury accepted this view,and returned a verdict against the steam railroad company for $225.
   Swing, J.

We think the judgment in-this-case should be affirmed,op the ground that there was evidence sufficient before tbe jury to authorize it in finding that the railway company could have avoided the accident if proper care had been used, even after the street railway car had been placed in its perilous position. And we think the jury had a right to find that the street railway company was not negligent in going on the track of the O., H. & D. R’y. Co.

Thos. L. Michie, and Wm. Schmidt, Jr. for, Schroder.

Poraker, Outcalt, Granger & Prior, for the Street Railway Company.

Ramsey, Maxwell & Ramsey, for C., H. & D. R’y. Co.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Swing and Smith, JJ.
    L. W. RICHTER v. A. W. THORNTON et al.
    Where, in an action before a J. P., service of summons is had less than three days before the day of appearance, the judgment is void.
    Error to the Court of Common Pleas of Hamilton county.

      Scott Bonham, for Plaintiff.

      Wm. L. Avery, and Herbert Jenney, contra.
   Smith, J.

Section 6476, Revised Statutes, provides that unless accompanied with an order to arrest, the summons, in an action pending before a Justice of the Peace, must be. served at least three day3 before the time of appearance. This was not done in this case.

It is clear that the decisions of the courts of the country on the question whether a judgment so rendered is absolutely void or only erroneous are in direct conflict. We are of the opinion, however, that the weight of authority is that such a judgment is absolutely void, and that such is the tendency of the decisions iu Ohio, though there is none on the exact question, We think that the decision of the common pleas so holding was right, and the action of the plaintiff will be dismissed.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Swing and Smith, JJ.
    ANDREWS et al. v. SETTLES et al.

      The Hide Park Cement Sidewalk Act unconstitutional — No estoppel against property owners resisting the assessment—
    This is a suit on the part of owners of property abutting on Michigan avenue, Hyde Park, to enjoin the collection of a cement sidewalk assessment.
   Swing, J.

We are of the opinion that the act of May 19, 1894. (91 O. L., p. 808), is unconstitutional! and therefore invalid for the reason that it is an act of a general nature, and does not have a uniform operation throughout the state. (Section 26, Article 2, of the constitution.) The act reads as follows:

“An act to authorize the trustees of Columbia township, Hamilton county, Ohio, to construct sidewalks on certain roads and avenues in Columbia township.
■ “Section 1. Be it enacted by the general assembly of the state of Ohio, that the trustees of Columbia township, Hamilton county, Ohio, be and they are hereby authorized to construct sidewalks on both sides of Columbian avenue, from its intersection with Montecello avenue, northeastwardly to the Brotherton road, and also on both sides of the Brotherton road from Columbian avenue northeastwardly to the corporation line of the village of Madisonville, and also on both sides of Michigan and Shaw avenues from Erie avenue to the Wassan road, and also on both sides of Andrew avenue from Erie avenue to the Madison pike, or upon any or all of the same, as said trustees may determine.”

As to the second defense set up in the answer of the defendants, that the plaintiffs should be estopped by reason of their conduct, the only allegations relied on constituting an estoppel are: That the plaintiffs knew that said improvement was being made under said act; that the bonds of the township were to be issued to raise money to pay for the improvement and expenses, and that the said bonds were to be paid by a uniform assessment per front foot on the lots and lands abutting on the improvement, and that the plaintiffs made no objection or protest until the township had incurred a large liability.

Coppock, Hammel & Coppock, and Frank M. Coppock, for the property owners.

J. T. DeMar, for the Township Trustees.

There is no allegation that the plaintiffs took any active part in encouraging or bringing about the improvement, or that they knew the law was unconstitutional, or that the improvement in any way benefited the property of the plaintiffs.

' According to the decision of Tone v. Oolumbus, 89 Ohio St., 281, the allegations in this answer are not sufficient to ■make out a cause of estoppel.

The demurrer to the answer must therefore be sus|ained, and the prayer of the petition will be granted unless the defendants desire to plead further.


author: Scribner, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Scribner, Haynes and Smith, JJ,
    PAUL RAYMOND v. THE TOLEDO, ST. LOUIS & KANSAS CITY RAILROAD COMPANY et al.

      '' Land appropriated by railroad without compensating owner — Action for possession of the land—
    The owner of lands which have been invaded by a railroad company may bring a proceeding to compel the defendants to condemn, •''' ■ and upon a failure of the railroad company to proceed to con- .• . demn, the owner himself may take proceedings to have ascer- . , tained the amount of compensation to which he is entitled and " judgment rendered foi it, and to obtain an injunction to re- ■ strain the railroad company from using the land until the judg- -,- ment has been paid. But where the owner brings an action claiming title; that-he was in possession and was unlawfully -evicted by the defendant; that the defendant wrongfully claims ' ', title, and he prays that he may have judgment restoring posi session to him, and that the defendant may be enjoined from interfering with the lands until the railroad company has paid compensation, the action is under secs. 6448, 6449 and 6450,
    ■ >■ Rev. Stat., to recover possession of the premises.
    .Error to the Court of Common Pleas of Lucas county.
   Scribner, J.

This is. a proceeding in error to reverse a judgment rendered by the court of common pleas against the plaintiff in ..error in a case in which the plaintiff in error was plaintiff below and the defendant in error was defendant. The original petition in this case was filed April 22, 1892, for the purpose of establishing the right and title of the plaintiff, Raymond, to a certain parcel of real estate specifically described in his petition, the plaintiff alleging therein that he was the owner in fee simple, of the lands described,and had been in possession thereof for a considerable period of time prior to the bringing of the action. The plaintiff further alleged, in his petition,that the defendant railroad company had interfered with the free use and enjoyment of the property and the possession thereof, and was claiming to be the owner of the premises, and to be entitled to use and occupy the same.

To this petition an answer was filed and a reply, and then amendments were filed with other pleadings on both sides, all proceeding substantially upon the same claim of the plaintiff in error — that he was the owner in fee simple of the premises and in possession, and that the defendant was interfering with his possession and claiming some right, title and interest in the premises, inconsistent with the rights of the plaintiff, and asking that the defendant might be enjoined — that the right of the plaintiff to the land might be established and the defendant railroad company enjoined from interfering with his possession; in short,,it was the old action to quiet title.

Before anything was done in the way of a trial by the court of common pleas, the plaintiff here, and upon leave, filed a petition, which it would seem, entirely changed the character of this proceeding. I will read the material portions of this petition,which is very brief. It is entitled “In the court of common pleas of Lucas county, Ohio. Paul Raymond v. Toledo, St. Louis & Kansas City Railroad Co. and R. B. F. Pierce, Receiver of the Toledo, St. Louis and Kansas City Railroad Co. Amended and supplemental petition. Now comes the plaintiff, and for amended and supplemental petition herein says that the Toledo, St. Louis and Kansas City Railorad Co. is a corporation created by the laws of the state of Ohio, and the owner of a line of railway extending from the city of Toledo, Ohio, to the city of St. Louis, Missouri. In the said city of Toledo said defendant now is, and for a long time heretofore has been the owner o£ certain yards and tracks used and operated by it in connection with its said line of railway.”

Then follows the allegation that the defendant, Pierce, is the duly appointed and qualified receiver of this railroad “and as such is now in the possession and control of and operating said The Toledo, St. Louis & Kansas City Railroad. ”

Now, coming to the material allegations of this petition and those out of which the principal claim arises, he says:

“Plaintiff further says that he claims to have an estate in, and is the owner in fee simple of the following described real estate, to-wit:” (And here he describes certain lots) “in the city of Toledo, Ohio. ” It will be observed that the plaintiff claims to be the owner, and that he has an estate in these lots. And then the petition proceeds:
“This defendant further alleges that for a long time said defendant railroad company, its predecessors and grantors, did acquiesce in the ownership and possession of said premises by this plaintiff, until up to about the time of the commencement of this action, at which time the said railroad company, well knowing of the rights and ownership of this plaintiff in said property, unlawfully and forcibly entered upon the said lots and improvements, against the protests of plaintiff, and took possession of and fenced in a large portion thereof, and laid its railroad tracks thereon, to-wit: a strip of land off said lots from fifteen to thirty-five feet in width, next to and adjoining the property owned by said defendant railroad company, beiDg formerly the canal bed of what was known as The Miami & Erie Canal, extend ing through the said city of Toledo. And notwithstanding the protests of this plaintiff, the said railroad company and' the said receiver have thence hitherto continued to hold possession of a large portion of his said premises, and interfering with therights and privileges of this plaintiff therein, as well as casting a cloud upon plaintiff’s title to said lands, to his great and irreparable damage.”

Now, here is a direct averment that at a certain date the railroad company, knowing the rights and ownership of the plaintiff, unlawfully and forcibly entered upon the property against the protests of the plaintiff, and took possession of a large portion thereof and laid its railroad tracks thereon, “and have thence hitherto continued to hold possession of a large portion of his said premises, and interfering with the rights and privileges of this plaintiff herein, as well as casting a cloud upon plaintiff s title to said lands.”

“Plaintiff further says defendant’s only title to or right in the lands upon and along which said railroad tracks are laid in the vicinity of plaintiff’s said lots, is under and by virtue of a claimed purchase of the bed of the said Miami & Erie Canal.”

Then it proceeds to aver what the width of the canal is, and what the railroad company did in fact acquire, and the plaintiff proceeds to say that under the claim made by the company, they have forcibly entered upon and taken possession of the lots they now claim.

“Plaintiff further says that the defendant’s said claim in the premises so occupied and wrongfully possessed by them is adverse to this plaintiff’s rights.

“Wherefore plaintiff prays that the said defendants may be compelled to show what,ir any,interest they may have in said property, that the same may be adjudged null and void, and that judgment for the possession of said property may be awarded to this plaintiff, and the defendants enjoined from interfering therewith until compensation has been made for said premises, and for all other proper relief.” .Now, here is a clear statement of the plaintiff that he is the owner of certain premises, which he describes, in fee sirnple; that the defendant railroad company forcibly took possession of a portion of the premises described, and laid their tracks upon it, and claim to exercise the rights of an o.wner over this property, denying any right or title of the plaintiff in the property; and then there is.a prayer that the plaintiff may have judgment .for the detention of the property, and that the defendants may be enjoined Nom interfering therewith, or make compensation to the parties. This petition, as it occurs to us, makes a clear case of an action in ejectment at law for the recovery of the possession of the property by the plaintiff, upon the ground that he is the owner and that the defendant has unlawfully evicted him from possession of the premises.

'.The defendants filed an answer in the case, in which they admitjthat they have taken possession of and claim to have, title to the property and they not only claim the property but they aver that: “Continuously, for more than twenty-one years prior to the commencement of this action, the defendant company and its grantors have been in the open, notorious, exclusive, adverse possession of the several strips of land in plaintiff’s petition and the amendments thereto described, and to which plaintiff now claims title.”

There are denials of many of the material allegations of the petition.

There is a reply to this answer denying the claim by the defendants that it is the owner of the lands, or that it had been in adverse possession for more than twenty-one years.

Upon these pleadings the case went to trial in the court of common pleas, with this result: “And thereupon the case ■came on to be heard and was submitted upon the pleadings and the evidence. And the court being now fully advised in the premises, and having heard the arguments of counsel, finds for the defendants. It is therefore ordered, adjudged and decreed that the petition and the amended and supplemental petitions of the plaintiff be dismissed; that the defendants go hence without day, and recover their costs herein, taxed at $ — ■—■—•, for which execution is awarded. Thereupon the plaintiff gave notice of appeal to the circuit court of Lucas county, Ohio;” and a bond was filed and the papers filed in this court.

This is a motion to dismiss the appeal, on the ground that the action of the plaintiff was a simple action at law; that it has possession of the property, and no action lies in its behalf. It is claimed on the part of the defendant below that it is a clear case of an action at law — a case of an action in ejectment to recover the possession of the premises, and that the issue is made as to which of them is entitled to the possession of the premises. It is claimed on the part of the plaintiff in error here that the action is brought under the statute providing that the owner of lands which have been invaded by a railroad company may bring a proceeding to compel the defendants to condemn, and that upon a failure of the railroad company to take possession and proceed to condemn, the owner himself may take proceedings, to have ascertained the amount of compensation to which he is entitled and judgment rendered for it, and that upon a failure to pay the judgment, the owner may file his petition for and obtain an injunction to restrain the railroad company from using the land until the judgment has been paid. This action is not under that statute; it is an action in which the plaintiff claims title; claims that he was in possession;, •that he was unlawfully evicted by the defendant; that the defendant wrongfully claims title, and he prays that he may have judgment restoring possession to him, and that the defendant may be enjoined from interfering with the lands until the railroad company has paid compensation. This-statute is found in vol.II.of Smith & Benedict’s edition,and is contained in sec’s.6448, 6449 and 6450,Revised Statutes.. The provisions as to the costs and expenses are contained in subsequent sections. Now, in brief, the main and controlling provisions of this statute, as to the rights of the parties, authorize the owner, where land is in possession of a railroad company without any agreement, or without there-having been any appropriation, to take proceedings in the probate court against the corporation requiring the corporation to proceed to appropriate the lands, and on the failure of the corporation to so proceed, “such owner or owners, or either of them, or said trustees or school officers may file a petition in the probate court of the proper county” for the purpose of having possession ascertained and adjudged.

This statute has received the construction of the supreme court, in Railroad Co. v. Robbins, 35 Ohio St., 531, and the conclusion of the court there expressed is against the claim made by the plaintiff.

The statute is again considered in Longworth v. Cincinnati, 48 Ohio St., 637 to 643; and again in Railroad Co v. Perkins, 49 Ohio St., 326; but the court declare in Railroad Co. v. Robbins, supra, which is somewhat explained1 or modified in Longworth v. Cincinnati, and Railroad Co. v. Perkins, supra, that the principle declared is still applicable. In the case of Railroad v. Robbins, supra, the court on page 540, says:

“Our conclusion,therefore,is,that the unlawful and wrongful conversion and use of land, against the will of the owner, and under such circumstances that he is not prevented or estopped from recovering possession, will entitle such owner, while the title still remains in him, to maintain an action to recover a judgment for the value of the land, and to an order of sale of the same to pay the judgment; and that, in such case, the owner has his election to proceed under the 21st section of the act of 1872, (69 O. L., 95),” and that is the statute which I have just read, “to recover the compensation and damages to which he is entitled under the constitution, or by action for the unlawful entry and possession to recover the possession, and damages for use and occupation.”

Here, this owner, from the statements made in his petition, as amended, is entitled to his election tc pursue the statute and take his proceedings in the probate court and have compensation awarded to him, and then to enjoin the use of the land until that compensation is paid; or he may do, as I understand he has done here — bring his action to recover possession of the premises. He did this, and the issue was made as to whether he was the owner of. the premises, or whether the railroad company was the owner; and th.e court having found against him on that proposition in a pure proceeding at law, we think, under these facts, that the motion of the defendant in error to dismiss this petition, should be allowed, and it is allowed.


author: Swing, J.;

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Smith and Swing, JJ.
    HUGHES ET AL. v. DALE, ASSIGNEE OF E. E. EVANS & CO., ET AL.

      Priority of liens as between an attaching creditor prior to an as - signment and the claims of operatives employed by the assignors—
    Error to the Court of Common Pleas of Hamilton county.
    The City Hall Bank obtained a magistrate’s judgment against E. E. Evans & Co. for $288.40 and costs, and made a levy thereunder upon machinery in the defendant’s factory previous to the making of the assignment. Thereafter an agreement was entered into between the bank and Ben B. Dale, assignee, that the property thus levied upon should be sold by the assignee, and the fund so derived should be held by the asignee for the bank to the ■ extent of its judgment with costs, the lien of the bank being thu's recognized to be the first and best against said property. At^the hearing below Judge Sayler held that the lien of the bank as obtained was first and best, and was prior to the claims of the operatives who, subsequent to the assignment, filed with the county recorder itemized statements of the amount, kind and value of the work performed by them in the said factory within a period of three months preceding the assignment, with all credits and off-sets, and the amounts severally due therefor.

      Oliver B. Jones and Scott Bonham, for the Operatives.

      Schwab & Schultz, for the Bank.
   Swing, J.;

Cox, J., concurs; Smith, J., dissents.

A majority of the court are of the opinion that the judgment of the court of common pleas in this case should be affirmed, on the ground that the property levied upon by the bank did not pass to the assignee and become part of the assets of this trust by virtue of the assignment, but passed by virtue of an agreement between the bank and the assignee, and therefore did not become assets in his hands as such assignee, to be distributed according to law.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Smith and Swing, JJ.
    FRANK EARLY v. THE STATE.

      Time necessary for premeditation and deliberation in murder-cases—
    The plaintiff in error was convicted of murder in the first degree in the killing of his wife, and is under sentence of electrocution.
   Swing, J.;

Cox and Smith, JJ, concur.

The only ground of error relied on in this case, is that the court erred in its charge to the jury on the question of deliberation and premeditation. The court in its charge on this subject among other things said:

“The time will vary as the minds and temperaments of men and circumstances under which they are placed will vary. Deliberation and premeditation for a moment as well as for a week or longer will render an intentional killing murder in the first degree, ”

' M. F. Wilson, for Plaintiff in Error.

John O, Schwartz,and Thomas H. Darby, for the State.

It is claimed that this comes within the ruling in the Burns case (3d Weekly Law Gazette, 323). In that case the judge charged the jury that “deliberation and premeditation may be accomplished in a very short time — in a moment — so swift it thought,” and this the district court, through Judge Brinkeihoff, said was error. It seems to us that there is a marked distinction between the two charges. The court here says that if there was deliberation and premeditation, even for a moment, it will render an intentional killing murder in the first degree. The jury were told that if they found that deliberation and premeditation took place even for a moment, it was sufficient to constitute murder. The judge did not tell the jury in what time it might take place. But in the Burns case the judge told the jury that premeditation and deliberation might take place in a moment. This was clearly error, and the court so held. But the court here did not attempt to tell the jury how long a time it would take for one to deliberate and premeditate.

We think the charge as given was correct, and the judgment will be affirmed. .