author: RICHARDS, J.

text:
    APPEAL — EXEMPTIONS—JUDGMENTS—-PLEADING.
    [Lucas (6th) Circuit Court,
    March 23, 1912.]
    Wildman, Kinkade and Richards, JJ.
    Samuel C. Swigerd et al. v. Fred W. Deck.
    1. Entry Construed Personal Judgment Upon Sustaining Allegations Of Cross Petition Praying Personal Judgment.
    Where the only thing sought by a cross petitioner is a personal judgment, and the court finds the allegations thereof to be true and determines that the defendant should recover from the plaintiff a specified sum on his cross petition with interest and costs, the entry will be construed to be a personal judgment.
    2. Plaintiff on Appeal from Justice Court Permitting Final Judgment Cannot Set up Claim Against Proceeding to Enforce Judgment.
    It is the duty of a plaintiff whose case has been appealed from a justice of the peace to file a petition setting forth his claim, and where he fails so to do and permits final judgment to be entered upon the claim set forth in the cross petition, it is too late for the plaintiff to set up his claim in an action thereafter brought to enforce payment of the judgment entered upon the cross petition.
    3. Property not Occupied by Parties not Subject to Homestead Exemption.
    The claim can not be maintained that property which it is sought to subject to payment of a debt is a family homestead, where it appears that the debtor and his family have not occupied the property for three or four years and during a portion of that time a cbntract was in existence wherein they agreed to sell the premises.
    [Syllabus by the court.]
    Error.

      Kolm, Nortkwp é Morgan, for plaintiffs in error.

      Eugene Bheinfrank, for defendant in error.
   RICHARDS, J.

In the court of common peas, Fred W. Deck sued for the purpose of enforcing the payment of a judgment rendered in his favor in that court against Samuel S. Swigerd, the object of the action being to -compel the sale of a house and lot and the adjustment of liens thereon.

The answer of Samuel S. Swigerd denied the allegation o'f the petition that Deck had obtained a judgment against him and set up by way of cross petition a claim against Deck. The case was tried to the court and resulted in a finding and decree in favor of Deck, and to that finding and judgment this proceeding in error is prosecuted.

It appears from the record that Swigerd had sued Deck before a justice of the peace upon an account, and that Deck had filed a claim by way of set-off which, on trial to a jury in the justice court, resulted in a verdict in favor of Swigerd for a small sum. Deck appealed from the judgment rendered in the justice’s court, the transcript and papers being filed and the case docketed in common pleas court on March 11, 1908. Swigerd filed no petition in the court of common pleas and upon May 21, 1909, Deck filed, no leave of court first being granted so to do, a cross petition setting up the claim which he had theretofore filed before the justice of the peace. No pleading was filed by Swigerd and the case was submitted to the court of common pleas and a judgment rendered by default in favor of Deck and against Swigerd on June 14, 1909; the journal entry reciting that the same was heard upon evidence.

The first contention of the plaintiff in error in this case is that the finding of the court, as entered in the court of common pleas, is not in fact a judgment. The entire entry, omitting the title of the ease, is as follows:

“This day this cause coming on to be heard upon the cross petition of the defendant, Fred W. Deck, and the evidence, and the plaintiff being in default for answer or appearance, the court does find that the allegations of said cross petition are true and the defendant should recover from the plaintiff thereon the sum of $161.67 together with interest from the first day of this term of court and costs.”

It is insisted that the court only found, the amount which the plaintiff should recover, and did not, in fact, enter judgment upon such finding. Authorities are cited which hold under language somewhat similar to that of the above finding, that the language did not amount to a judgment, but they were cases in which equitable relief was demanded by way of foreclosure of mortgage or otherwise, and that fact aided in construing the language used, and would in such cases justify a conclusion that the only effect was to make a finding of the amount which should be a lien upon the premises. In this case, however, nothing was sought in the pleadings: except a personal judgment, and the court clearly finds the allegations of the cross petition to be true, and determines that the defendant should recover from the plaintiff, the amount of $161.67. We hold in this kind of a case the language amounts to the rendition of a judgment.

It is further urged by counsel for plaintiff in error that the court of common pleas erred in rejecting evidence. Under the statutes of this state, it was the duty of Swigerd, when his case, which had been tried before a justice of the peace, was appealed, to file a petition setting forth his claim. Having omitted to do so and having allowed final judgment to be entered upon the claim set forth in the cross petition of Deck, it was too late to set up his claim in the action thereafter brought by Deck to enforce the collection of the judgment rendered in his favor, and we therefore find no error in the rulings olf the court of common pleas in the rejection of evidence relating to such claim.

The premises sought to be subjected were claimed by Maude Swigerd, the wife of Samuel S. Swigerd, as a family homestead. The evidence showed that she and her husband had not lived upon the property for somp three or four years, and that there had been, daring a portion of that time, a contract in existence by which they agreed to sell the premises, and that the premises were worth the sum of $1,650.

We think the court of common pleas was justified in finding that the homestead had not been abandoned for a temporary purpose, and that she was not entitled to hold the same as a homestead. The property being of the value stated, it would seem apparent that, in any event, Deck would be entitled to an order for the sale of the premises, and that the' mortgage lien should be satisfied therefrom in order that it m-ight be ascertained whether a balance would be left applicable to the payment of this judgment.

Finding no prejudicial error, the judgment of the court of common pleas will be affirmed.

Wildman and Kinkade, JJ., concur.


source: Caselaw Access Project

author: JONES, O. B., J.

license: Public Domain

text:
    RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    June 30, 1914.]
    Jones and Jones, JJ.
    (Swing, J., not sitting.)
    Cincinnati, H. & D. Ry. v. Edmund Buxton, Admr.
    1. Recovery for Death at Railway Crossing Where View of Tracks was Hidden Sustained.
    Where at the intersection of a street and railway tracks at grade there is a high board fence enclosing a coal yard, which completely obstructs the view of tracks from, the south until within a few feet of the tracks, and the testimony is conflicting as to whether the electric bell giving warning of approaching trains was ringing or was out of order, a verdict in favor of the administrator of a driver, whose wagon was struck by a train coming from the south at the rate of forty-five or fifty miles an hour, will not he disturbed by a reviewing court.
    2. Verdict not Excessive.
    A verdict of $5,400 on account of the wrongful death of a man thirty-eight years of age, who left a wife and two small children, and who was in perfect health and earning $20 a month and hoard as a driver on a milk route, is not excessive.
    Error.

      Waite (& Schindel, for plaintiff in error.

      Schorr & Wesselmann and Thos. L. Michie, for defendant in error.
   JONES, O. B., J.

Plaintiff below recovered a judgment for damages for tbe death of his intestate, Leo Ilerppicb, who was struck and killed by a train operated by the plaintiff in error in the village of Lockland, Hamilton county, Ohio, on December 22, 1909.

The decedent was driving a covered milk wagon of the usual type, which was open in front and had open doorways on each side, the driver’s seat being in the rear and between these two doorways. He was driving westwardly along Worthington avenue, which is a much traveled highway crossing the C., H. & D. Railway, practically at right angles, just south of its Lockland-Wyoming depot.- The line between the adjoining villages of Lockland and Wyoming at that time was along tin-railroad, the tracks of same being located in the village of Lock-land. On the south side of Worthington avenue just east o-f the railroad was a coal yard being operated by Henry Priessmann, which stood four or five feet above the level of Worthington avenue, and which was surrounded on its north and west sides by a tight board fence so high that a person driving westward on Worthington avenue could not see to the south along the railroad until he was very close to the tracks.

Counsel for plaintiff in error have undertaken, by means of photographs' which were introduced in evidence and measurements taken by a civil engineer who testified in the case, to demonstrate the fact that the decedent might have been able to see an engine on the northbound track a distance of from 750 to more than 2,000 feet south of Worthington avenue. The difficulty with these photographs is that counsel failed to fix the location of the camera in the center of Worthington avenue where the decedent was driving, but has evidently fixed it at a point some distance north of the center, and the photographer admitted that the distances appearing in the foreground of the picture were deceptive; and the evidence of the photographs and the engineer was opposed to that of a number of plaintiff’s witnesses who had been upon the ground and were familiar with the surroundings, and while not undertaking to give exact distances their testimony convinced the jury that decedent could not have seen, by the most careful looking, the approaching train in time to have avoided the injury.

There is no question, from the evidence, that the train was running at least forty-five to fifty miles per hour, and that the decedent was driving at a very low rate of-speed. There is conflict in the testimony as to whether the whistle and bell were sounded as required by Sec. 8853 G. C. There was an electric signal bell at the crossing, and testimony was introduced to show that at periods shortly before and after the accident this bell was out of order, and there is conflicting testimony as to whether or not this bell was ringing at the time of the accident.

In this state of the record, we do not. believe that the reviewing court should invade the province of the jury, and say that it was not justified in finding negligence on the part of the defendant and finding that plaintiff was not guilty of contributory negligence.

It is claimed that the court erred in admitting in evidence an ordinance of the village of Lockland which undertook to regulate the speed of trains within the limits of the village at not more than eight miles per hour. Such an ordinance is authorized by See. 3781 G-. C. and we think it was properly admitted, limited as it was by the charge of the court.

Plaintiff in error urged as another ground of error the refusal of the court to send the jury back to their jury room to agree upon and return a more complete answer to the second interrogatory which had been submitted to them. This interrogatory was as follows:

“Did the deceased, Leo Herppich, as he was about to cross the tracks of the defendant, look to the south?” This was answered by the jury as follows: “We assume he did.”

We think that in the absence of any direct proof to the contrary, the jury were justified in arriving at such an answer. Especially when, as we have stated above, we do not feel justified in disturbing their answer to the first interrogatory, which was as follows:

“Do you find from the evidence that the deceased, Leo Herppich, as he was about to cross the tracks of the defendant, could have looked to the south and seen the train by which he was struck in time to have avoided being struck? Answer No.”

True, there is testimony by the engineer and at least -one pedestrian on the street that they saw the wagon but did not see the driver look out of the wagon. Such testimony is, however, .perfectly consistent with the decedent’s performing his full duty to look before undertaking to cross, because one seated in such a wagon could no doubt look out through the openings at the sides, down the track, without changing his position, as effectually as he might by thrusting his head out of the wagon; and the engineer’s testimony showed that he had paid so little attention to the details of the wagon that he thought its sides were covered solidly with no openings or doorways in them.

It is urged that the amount of the judgment, $5,400, is excessive. Decedent was 38 years old, in perfect health, and left a wife and two young children aged six and four years respectively. At the time of his death he was living and working with his family, on his father-in-law’s farm, driving a milk route, and received twenty dollars per month and board. We can not, therefore, say that the amount found by the jury is excessive.

Other errors in the admission of evidence and in the charge of the court are urged by counsel for plaintiff in error, but on careful consideration of same the court fail to find any prejudicial error, and the judgment is therefore affirmed.

Jones, E. H., J., concurs,


author: NORRIS. J.

text:
    GAS AND OIL — INSPECTION.
    [Columbiana (7th) Court of Appeals,
    April 8, 1914.]
    Pollock, Metcalfe and Norris, JJ.
    Marion Cooper v. Tri State Gas Co.
    1. Gas Company has no Continuing Liability to Keep Service Pipes in Safe Condition Inside Curb Line.
    A gas company engaged in furnishing natural gas to the inhabitants of a municipality for consumption by means of lines of pipe laid in the streets and to the curbs thereof, where such pipes aré connected with pipes conveying such gas over the premises and into the dwellinghouses of consumers thereof, such pipes from the curb into the dwellinghouses having been installed v . and being now maintained and controlled by such property owners and consumers, the same having been properly inspected before gas was turned in, is not thereafter required to inspect the same, nor is there a continuing liability on the part of such company to see that such piping is kept in safe and proper condition for the transportation of such gas.
    2. Notice of Defects in Service Pipes or Duty to Inspect Must be Aleged to Render Gas Company Liable from Leaks.
    In order to constitute a cause of action against a gas company by reason of failure to inspect gas pipes installed, owned, maintained and controlled by a consumer of gas leading from the curb into the dwellinghouse of such consumer, where damage to such consumer was caused by leaks in such pipes owing to natural decay or other faulty condition arising after a number of years of use thereof, there must be sufficient facts alleged to show notice to the company of such defective condition, or facts from which an inference of duty to inspect such pipes arises either from contract, custom or franchise.
    [Syllabus by the court.]
    Error.
    W. F. Lones, for plaintiff! in error.

      Brookes & Thompson and W. C. O’Neill, for deiendant in error.
   NORRIS. J.

Plaintiff in error was plaintiff below and filed an amended petition in tbe lower court, to which the defendant demurred on the ground that the petition did not state facts sufficient to constitute a cause of action.

The court sustained the demurrer, and the plaintiff, not desiring to plead further,. entered up a judgment dismissing the ease. Error is assigned in this court to sustaining that demurrer.

The petition, in substance, states:

The defendant is a corporation engaged in the business of supplying natural gas to the citizens> of the city of Wellsville and other cities for heating and lighting purposes, and has gas pipes laid in the streets of said city from which gas is supplied to the individual houses by service lines extending from such pipes in the street to the houses of the inhabitants; that the plaintiff was the owner of a lot or tract of land upon which her dwellinghouse was situated in the city of Wellsville, and that the defendant had been supplying her with natural gas for use in such dwellinghouse for a number of years; that the gas was conducted from the lines in the street over her land to her house, and her house was about eight feet from the line of the street, she paying for the gas a certain rate per thousand feet; that the defendant maintained and owned such of the pipe line as wére constructed in the street up to the curb in front of plaintiff’s property, and the plaintiff installed, maintained and owned the service pipe line leading from the curb to and upon - the lot upon which her dwelling was located, and through said lot into her said dwellinghouse; that on or about January 17, 1912, owing either to natural decay or other faulty condition, said service pipe so installed by plaintiff, began to leak at a point on plaintiff’s said lot, about one foot from her said dwellinghouse, and between the meter and her said dwellinghouse, and the gas escaping therefrom percolated through the ground into plaintiff’s dwellinghouse, where it exploded and caused the damages complained of.

The plaintiff further says that as far as she knows the defendant had no actual knowledge of the faulty condition of said service pipe or that said gas was escaping from the same; but alleges that it was the duty of said defendant to have inspected said service pipe at the time the same was installed on her said premises; and to have inspected the same from time to time thereafter, and by the exercise of ordinary care in inspecting said service pipe, said defendant would have discovered the faulty condition of the same in time to replace said service pipe and prevent said explosion. And she says that the defendant negligently and carelessly failed and neglected to so inspect said service pipe on said plaintiff’s said premises at any time, and^ negligently and carelessly continued to deliver its gas through the same to plaintiff’s.said premises; and by reason of the said negligence the gas was permitted to escape through said pipe and caused the damages aforesaid.

It will be observed that there are no facts alleged in this petition from which the duty of the defendant company to inspect these lines arises. Plaintiff alleges that the company did not inspect, but alleges no facts by way of contract or custom, or other facts from which it might be said that a duty arose to inspect the service lines in her dwellinghouse, or other dwelling-houses in the city of Wellsville. Then the question arises whether, from the situation and from the facts set out in this petition, it can be said that a duty arose on the part of the gas company to inspect the lines in the dwellinghouse, and on the private premises of the owners of these lines inside the curb.

We have been cited to a number of cases which we have examined, but there is no reported case in this state, so far as we have been able to find, or have been referred to upon this question.

The first case upon which counsel for plaintiff in error rely, is the case of Washington Gaslight Co. v. District of Columbia, 161 U. S. 316 [16 Sup. Ct. Rep. 564; 40 L. Ed. 712]. The first proposition of the syllabus in that case is as follows:

“It is the duty of a gas company to supervise and keep in repair a gas box which is part of the apparatus of the company, and is placed in a sidewalk to afford means for turning on or off the gas from a house, when it has entire control of the box to the exclusion of the property owner, although the latter is required to pay for the gas box and connection.”

In this case it appears that a deep and dangerous hole was at this place where the gas box was, and that a resident of the District of Columbia fell into this hole through its not being properly guarded or covered, and recovered damages against the city of Washington. Then the city, under its arrangement, the franchise under which the gas company had a right in the. city, brought suit to recover over the amount that had been allowed to the plaintiff in the first ease.

Justice White, in stating the opinion says:

“It was proved on the trial of her ease to have been an open gas box placed and maintained in the sidewalk by the gas company for its own use and benefit and which it was its duty to repair; that this duty had been grossly neglected by allowing the box to remain unrepaired, thus causing the injury for which the city had been held liable. The declaration, moreover, averred notice to the gas company, and the fact that adequate opportunity was given it to defend, and the failure of the gas company to act in defense of the suit, ’ ’ and so on.

It seems to us there is a vast difference between that case and the one we have set forth in this petition. The court says in the opinion:

“It would be unreasonable to infer that congress when it authorized the use of the streets or sidewalks for the purpose of the gas company’s business, contemplated that the city of Washington or its successor, the District of Columbia, should keep in repair such apparatus, the continued location of which in the sidewalks of the city was permitted, not only as an incident to the right to make and sell gas, but also for the pecuniary benefit of the gas company.”

The next case referred to is the ease of Memphis Consol. Gas & Elec. Co. v. Creighton, 183 Fed. Rep. 552], and the point in that is stated in the first proposition of the syllabus in the circuit court of appeals of the sixth circuit:

“A gas company, which through its pipes supplies gas to a house and has control of the apparatus for cutting it off, when notified that gas is escaping in the house and informed of injury and danger to inmates therefrom, owes a duty to the occupants of the house to exercise reasonable diligence in shutting off the gas therefrom, and it is immaterial that the pipes where the leak occurred were owned by the owner of the house.”

And that rule would apply here if the gas company had been notified by the owner of the house of this defective pipe, and that gas was escaping therefrom; but it does not seem to us to touch the question of the duty of the gas company, in the first instance, to inspect it from time to time for the purpose of ascertaining the condition of the pipes without any information from the property owner. Another case cited is that of Schmeer v. Gaslight Co. 147 N. Y. 529 [42 N. E. Rep. 202; 30 L. R. A. 653], by the court of appeals of New York. Without taking time to read the syllabus, 1 read from the opinion of Justice Peckham, on page 203:

“While this gas remained on the premises of the manufacturer, or while it was being conducted through its own pipes to different parts of the city, there can be no doubt that the company was bound to exercise vigilance to prevent injury to third parties from the dangerous qualities of the gas. The question is where its responsibility ended. The claim is made on its behalf here that such responsibility had certainly determined before this explosion occurred. It is urged that it had no responsibility for putting the piping into the house, as it was done by third parties under the employment of the owner; that it had no charge of such piping after it was fitted in the building; that the gas was turned on by third parties, without consultation with, or knowledge on the part of, the officers of the company, which simply was accustomed to, and in this case did, permit any one to turn on the gas after plans had been submitted to it, and a meter had been provided by it upon application. ’ ’

In this case the other parties put the lines in the building, and without any inspection on the part of the gas company, it turned on its gas and it resulted in an explosion and injury. Then they further say on the question, after holding that under these circumstances it was a question for the jury and the gas company might be liable, speaking of the delivery of the gas:

“In making that dlelivery it is not an insurer, but is simply bound, in such a case as this, to that degree of care which the nature of the article it deals in, and the consequences to be apprehended from an accident, reasonably call for. Nor do we assume to say that when once the piping, in cases similar to this, has been fairly and properly examined previous to turning on the gas (if such examination by defendant’s servants is called for at all), that thereafter there is a ■continuing liability on the part of the company to see to it that such piping is kept in proper condition. An the company has no control over the piping, does not put it in, and is not consulted about it, the principle upon which it might be held liable, in cases olf this character, at the time of first delivery of gas, if no precaution were taken at all, is simply that it would have the right to refuse to turn on, or permit others to turn on, the gas for the supply of the applicants until properly' assured of the condition of the piping in other portions of the building. Having become assured of it and the gas being on, it would not seem that the company ought further to be regarded as liable for the continuous good condition of the piping. Here we may justly say that to impose such a liability upon the defendant would clearly be unreasonable. It would render necessary the examination at frequent intervals, of all the buildings in the city in which gas was used. This would be so onerous as to be practically impossible of execution, because of the expense to the company. The law ought not to and does not, exact an unreasonable amount of care from anyone. Under the restrictions, however, as above stated, we think the question of defendant’s negligence was for the jury.”

There are two other cases that still more firmly affirm the d’octrine announced last in this ease. I will read a portion of the opinion in the case of State v. Gas Co. 85 Md. 637 [37 Atl. Rep. 264]:

“All the cases agree that, to constitute a good cause of action, there should be stated and proved, a right on the part of the plaintiff, and a duty on the part of the defendant in respect to that right, and a breach of that duty by..the defendant, whereby the negligence and the injury there must be the relation of cause and effect.’’

In this case there are no facts alleged in this petition upon which a duty upon the part of the gas company apparently arises. But it is alleged as a conclusion of law that there was negligence in not inspecting these premises without any facts alleged upon which it might be said such duty was imposed upon the gas company.

But the case of Smith v. Gas Co. 24 R. I. 292 [52 Atl. Rep. 1078; 96 Am. St. Rep. 733], is still stronger:

“The failure of a gas company on introducing gas into a dwelling, to inspect pipes therein, which have long been out of use, but which were placed therein by the owner, and over which the company has no control, is not negligence, in the absence of any showing of a duty in such respect from contract, custom or charter.”

And the court in the opinion say the same thing in stronger language:

“In the absence of any facts upon which to base an inference of duty, a court can not infer a general obligation to inspect pipes in a private house, which are not under the control of the company, and as to which it has no apparent relation other than the fact that its gas is to be used through pipes placed therein by the owner, as it has suited them to have them. ’ ’

We have found no authorities, and none have been cited to us, in conflict with the principle announced in these cases, and none under the facts in this case as set out in this petition where a recovery was permitted against the gas company. It would seem a very onerous duty to impose upon gas companies, with their lines through the streets of a city, that from time to time, without notice, they should be called upon to inspect the service lines in the dwellinghouses and on premises of the parties'who take gas from them, but we do think such duty is imposed on the property owner in reference to the use of this substance, owing to its somewhat dangerous quality, to exercise constant vigilance in tbe use of it to see that their own appliances are in proper condition for the safe use of it. That is the holding in substance, in the case of Bartlett v. Gas Co. 117 Mass. 533, 539 [19 Am. Rep. 421].

We do not thnk that the amended petition states a cause of action against the gas company. It follows that the judgment of the court of common pleas will be affirmed.

Metcalfe and Pollock, JJ., concur.


author: HOUCK, J.

text:
    SCHOOLS — OFFICE AND OFFICERS.
    [Holmes (5th) Court of Appeals,
    December 11, 1915.]
    Shields, Powell and Houck, JJ.
    Albert E. Cline v. Oath Martin et al.
    L Discretion of County Board of Education in Attaching Subdistricts to Village Districts not Interfered with.
    What is known as the rural school code confers a broad discretion on the county board of education in the matter of the establishment of new school districts, and when this is done by attaching four subdistricts to a village school district a court will not grant relief to a complaining taxpayer in the absence of a showing of fraud or an intentional abuse of discretion.
    2. Abuse of Discretion not Shown.
    There is nothing in the evidence submitted in the case under consideration which would indicate an abuse of discretion on the part of the county board, and the court would not be justified in limiting by construction the discretion so exercised.
    3. Members of County Board of Education not Coun,ty Officers Requiring Election.
    Failure of the rural school act to provide for the election of the members of the county board of education by the people does not render the act invalid, for the reason that the jurisdiction of members of the county board is exclusive of territory embraced in any city school district and they are, therefore, not county officers.
    4. Rural School Code within Constitutional Restrictions Relating to Organization, Administration and Control of Schools,
    Full power is vested in the general assembly,, under Art. VI, Sec. 3, of the amended constitution of September, 1912, to provide for the organization, administration and control of the public school system of the state, and the act in question is within the limits of this power.
    [Syllabus by the court.]

      Carl Schuler, Pros. Atty., Weygandt é Boss and W. F. Garver, for plaintiff.

      C. H. Workman, George W. Sharp and C. J. Fisher, for . defendants.
   HOUCK, J.

This cause is here on appeal from the -common pleas court of Holmes county. The petition in substance avers:

That the plaintiff is an elector and taxpayer in the school district in question, and that the defendants claim to be the members of the'board of education of said district, which is known as the Nashville School District; that the county board of education of Holmes county, Ohio, on December 3, 1914, attempted to pass a resolution adding certain territory, amounting to four “subdistricts,” to the Nashville Village School District; that the same was done under a pretended authority given under See. 4736 G. C. (104 O. L. 138); that four organized “subdistrict” schools with an attendance of more than twelve pupils each were thereby discontinued; that said children as a result were transported in wagons to said Nashville School, and which was a great imconvenience to said pupils so transported; that the defendants are about to issue and sell bonds in the sum of $18,000 for the erection of a school building in the said Nashville Village School District; that said county board of education is without authority to change the lines of said district; that said Sec. 4736 G. C. and related sections thereto are in contravention of and repugnant to Art. 10 of Secs. 1 and 2 of the constitution of Ohio. Wherefore plaintiff prays for an injunction, and that said sections of the “New School Law of Ohio” be declared unconstitutional and null and void.

The defendants filed an answer, making certain admissions therein, but in substance being a general denial. -

The plaintiff relies upon the following grounds for the relief prayed for in his petition:

First. That the resolution passed by the county board of education was not sufficient to give to it jurisdiction, if it had jurisdiction over the subject-matter.

Second. That said county board o-f education was without authority to do what it attempted to do, and had no jurisdiction to do so, and its acts therefore are null and void.

Third. That there was an abuse of discretion on the part of said county board of education, because the schools were not arranged so as to.be most easily accessible to the pupils.

Fourth. That Sec. 4736 G. C., and kindred sections thereto (104 O. L. 138) are unconstitutional;

We are aware of the importance of the present case, and that several of the questions here presented are now, for the first time, before an appellate court in Ohio. What is denominated the “Rural School Code,” being the act of February 5, 1914, and which is a radical departure in many respects, so far as school legislation is concerned, is now attacked, The sections of the act involved in this proceeding are found in 104 0. L. 136 and 138, and are as follows:

“Section 4728. Each county school district shall be under the supervision and control of a county board of education composed of five members who shall be elected by the presidents of the various village and rural boards of education in such county school district. Each district shall have one vote in the election of members of the county board of education except as is provided in Sec. 4728-1. At least one member of the county board of education shall be a resident of a village school district if such district is located in the county school district and at least three members of such board shall be residents of rural school districts, but not more than one member of the county board of education shall reside in any one village or rural school district within the county school district.
“Section 4728-1. All school districts other than village and city school districts within a civil township shall be jointly entitled to one vote in the election of members of the county board of education. The presidents of the board of education of all such districts in a civil township shall meet for the purpose of choosing one from their number to east the vote for members of the county board of education. * * * .
‘ ‘ Section 4729. On the second Saturday in June, 1914, the presidents of the boards of education of the various village and rural school districts in each county school district shall meet and elect the five members of the county board of education, one for one year, one for two years, one for three years, one for four years and one for five years, and until their successors are elected and qualified. * * * .”
“Section 4735. The present existing township and special school districts shall constitute rural school districts until changed by the county board of education, and all officers and members of boards of education of such existing districts shall continue to hold and exercise their respective offices and powers until their terms expire and until'their successors are elected and qualified.”
“Section 4736. The county board of education shall as soon as possible after organizing mate a survey of its district. The board shall arrange the schools according to topography and population in order tha^t they may be most easily accessible to pupils. To this end the county board shall have power by resolution at any regular or special -meeting to change school district lines, and transfer territory from one rural or village school district to another. A map designating such changes shall be entered on the records of the board and a copy of the resolution and map shall be filed with the county auditor. In-changing boundary lines the board may proceed without regard to township lines and shall provide that adjoining rural districts are as nearly equal as possible in property valuation. In no case shall any rural district be created containing less than fifteen square miles. * * . ”

Coming now to the first claim of plaintiff, Was the resolution fixing the lines of the district in question sufficient, and did it fully comply with the requirements of Sec. 4736 G. CJ We have examined the resolution, and we are of the opinion that it fully complies with the requirements and provisions of said statute, and that said county board of education had jurisdiction of the subject-matter, and that it was fully authorized to adopt the resolution, and that it contains, in substance and in fact, all the necessary things required by said statute.

As to the second claim of the plaintiff, that the county board of education was without authority to create the new district, let us examine the language of the statute as found in See. 4736 G. C.: “To-this end the county hoard shall have power hy resolution at any regular or special meeting to change school district lines and transfer territory from one rural or village school district to another.”

In the present case four “subdistricts” as they originally existed were attached to the Nashville Village School District. Could any language be more plain and explicit than the above in giving the board authority to do just what it did in the premises ? Certainly not. It provides for the changing of lines and the transfer of territory from one rural or village district to another — just what was done by the county board in this ease, when it transferred the four “subdistricts” as they originally existed to the Nashville Village School District. Sub-districts not being provided for in the act of February 5, 1914, do not now exist, and it was only the territory that was bounded by the “subdistricts” as they formerly were that was annexed.

We do not think that the county board is limited in its right to arrange districts, by simply taking the territory from one rural district and adding to another. We feel that the statute is broad enough and gives to the county board authority to take territory from a rural district and attach it to a village district.

It is contended that Nashville is not a village district, and therefore the territory in the “subdistricts” could not legally be attached. We do not think it necessary for the proper solution of this question to determine whether it was or was not a village district, because under the provisions of Sec. 4736 it is immaterial, for the reason that it was territory that could be attached as provided and contemplated therein.

The third contention of plaintiff is that the county board of education did not arrange the schools as to topography and population so as to make them, most easily accessible to the pupils in said territory, and thereby abused its discretion.

A county board is required to make a survey and prepare a map of the district, and to arrange the schools according to topography and population, and in such a manner as that they be most accessible to pupils in the district, in order that they miay reach the schools with as little inconvenience as possible; yet the legislature certainly intended that a broad discretion be given the county board in this particular. The statute nowhere limits the authority of the county board in this matter, and there is nothing in the evidence submitted to the court that would indicate an abuse of authority on the part of the county board, and we do not think that a court would be justified in imposing a limitation by construction, or in any way interfering with the acts of such board in arranging the lines of the district and otherwise acting under said provisions of the statute, in the absence of proof clearly establishing fraud or gross and intentional abuse of discretion. And not finding in the present case, on the part of the county board, any equitable grounds of fraud or mistake, and not finding its acts wrongful, fraudulent, collusive or arbitrary, we do not feel that the board abused its discretion. We come now to- the fourth and last claim made by the plaintiff, that said sections hereinbefore referred to of the "New School Law” are unconstitutional, being in conflict with Art. 10, Secs. 1 and 2; also Art. 2, Sec. 26 of the constitution of Ohio.

We may now inquire, when is a law in conflict with the constitution, and under what circumstances and state of facts should it be declared unconstitutional?

The legislature is a co-ordinate department of the government, and as such is invested with certain duties and responsibilities, and wé think in the enactment of laws it is only fair to presume that it has considered and discussed the constitutionality of all measures passed by it, and therefore the unconstitutionality of the act must be clear or courts will sustain it. Courts may resort to an implication to sustain a statute, but not to destroy it; and courts cannot go beyond the province of legitimate construction in an attempt to save a statute. In other words, where the language used is clear, and the meaning plain, words cannot be read into it or out of it for that purpose. A statute cannot be declared invalid for the reason that it is unwise, unjust, unreasonable, or opposed to tbe spirit of the constitution; and unless it violates some express constitutional provision it must be held valid. While we change, while we alter, while we improve in our material and social life, yet these principles of construction now exist and will continue so until time shall be no more.

We think this doctrine is well established in this state, and we need only to cite the case of Probasco v. Raine, 50 Ohio St. 378, 390 [34 N. E. Rep. 536], where Judge Burket says:

“Whatever may be the rule elsewhere, it is clear that in this state the validity of an act passed by the legislature must be tested alone by the constitution, and that the courts have no right or power to nullify a statute upon the ground that it is against natural justice or public policy.
“V/hen the legislature is silent, the courts may declare the public policy, and mark out the lines of natural justice; but when the legislature has spoken, within its powers conferred by the constitution, its duly enacted statutes form the public policy, and prescribe the rights of the people, and such statutes must be enforced and not nullified, by the judicial and executive departments of the state.
“When the legislature, within the powers conferred by the constitution, has declared the public policy, and fixed the rights of the people by statute, the courts cannot declare a different policy, or fix different rights. In this regard the legislature is supreme, and the presumption is that it will do no wrong, and will pass no unjust laws. The remedy, if any is needed, is with the people and not with the courts.”

Article 2, Sec. 26, of the constitution of Ohio provides:

“All laws, of a general nature, shall have a uniform operation throughout the state; nor, shall any act, except such as relates to public schools, be passed, to take effect upon the approval of any other authority than the general assembly, except, as otherwise provided in this constitution.”

Article 10 provides:

“Sec. 1. The general assembly shall provide, by law, for the election of such county and township officers as, may be necessary.
“Sec. 2. County officers shall be elected on the first Tuesday after the first Monday in November, by the electors of . each county, in such manner, and for such term, not exceeding three years, as may be provided by law.”

Counsel for plaintiff urge th'at members of a county board of education are county officers, and must be elected by the people, and therefore the sections of the act hereinbefore referred to contravene the above sections of the constitution of Ohio. We have now reached the place in the present case where we are called upon to pass upon, as well as to determine, who are county officers. We are pleased to cite, upon this branch of the case, the ease of State v. Hunt, 84 Ohio St. 149, where Judge Spear says:

“We have not undertaken to enter the field of definition of the term ‘office’ or ‘officer.’ As given in the books they are multitudinous, not to say multifarious. Indeed, so varied are they, scattered through the books, that the ingenious barrister may find support for almost any proposition relating to the general subject which the necessities of his case may seem to demand. But, like maxims of the law, when used indiscriminately and without judgment, they are apt to mislead. One which ' seems to have met with most favor, perhaps, is that an office is a public position to which a portion of the sovereignty of the country attaches, and which is exercised for the benefit of the public. And yet, without a satisfactory definition of what is and what is not ‘the sovereignty of the country’ this definition seems to fail to adequately define. Manifestly, however, each case should be decided on its peculiar facts, and involves necessarily a consideration of the legislative intent in framing the particular statute by which the position, whatever it may be, is created.”

Tn view of the statement made by the learned judge in the above opinion, we will proceed in the light of the facts and the statute under consideration, and say — that a county officer is one whose right, authority, and duties are created and conferred by law, and whose jurisdiction is co-extensive with the county. If our definition is correct, then a member of a county board of education is not a county officer, from the fact that his jurisdiction does not extend over the entire county, for the reason that city school districts are not included in county school districts, but are especially exempted therefrom under favor of See. 4684 G-. C., which provides: “Each county, exclusive of the territory embraced in any city school district * * * , shall constitute a county school district * * * . ” The jurisdiction being a limited one — to a county school district — which does not include the county as a whole, it necessarily follows that such position is not within our definition of a county officer.

In addition to what we have already said concerning the constitutional question involved in the case at bar, we think that the entire matter is disposed of by Art. 6, Sec. 3 of our amended constitution of Ohio, as adopted September 3, 1912, which provides:

“Provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds: provided, that each school district embraced wholly or in part within any city shall have the power by referendum vote to determine for itself the number of members and the organization of the district board of education, and provision shall be made by law for the exercise of this power by such districts.”

If we give to the language used in the above amendment that plain meaning which the words and sentences certainly convey, we can reach but one conclusion, and that is that the legislature had power and authority to pass an act providing for a school system in our state, and that the said constitutional provision so authorizes. The language is clear, plain, and in no way ambiguous: “Provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds. ’ ’

This certainly delegated to and gave full and complete authority and power to the legislature to pass the school act now under consideration, and to provide for its organization, administration and control. If will further be observed that said amendment especially provides for legislation with reference to city school districts, and that the legislature so provided in the school act by exempting city school districts from the supervision and control of county school districts, which is in accord with our theory that a member of a county school board is not a county officer, and that neither the framers of the constitution nor the legislature so intended.

The court is therefore unanimously of the opinion that said sections of the statute under consideration herein are not unconstitutional, and are not in conflict with or repugnat • to the constitution of Ohio, or any article or section thereof.

We further find that none of the claims of plaintiff is well taken, and that he is not entitled to the relief prayed for in his petition, and the petition is dismissed at the costs of plaintiff.

Judgment accordingly.

Shields and Powell, JJ., concur.


author: POLLOCK, J.

text:
    INSURANCE.
    [Mahoning (7th) Court of Appeals,
    1914.]
    Pollock, Metcalfe and Norris, JJ.
    H. E. Muskovitz v. Sun Underwriters’ Agency of Sun Ins. Co.
    1. Foreigner not Absolved by Ignorance from Conditions of Contract Signed.
    Ignorance of the contents of a contract signed, though a foreigner and not understanding the language, will not relieve a party from its effect.
    2. Entire Policy Void Clause not Rendered Severable Contract by Classification of Losses.
    A policy of insurance containing the clause “this entire policy shall be void” on certain named conditions is' not a severable risk, although the amount of insurance is distributed among different classes of property.
    3. Unconditional and Sole Ownership Provisions Reasonable.
    An insurance policy provided that the entire policy should be void if the interest of the insured was otherwise than the unconditional and sole ownership of the property, or if it was encumbered by a chattel mortgage. These were reasonable provisions.

      4. Policy Voided by Failure to Disclose Liens.
    A conditional sale contract and a chattel mortgage were in force upon certain insured personal property, without the knowledge of the insurance company. Held: That the insured could not recover upon said policy in case of loss.
    Error.

      Livingstone, George & Livingstone, for plaintiff in error.

      W. T. Porter, for the defendant in error.
   POLLOCK, J.

The plaintiff in error brought this suit in the court below on a policy of fire insurance which he claims the defendant issued to him in the sum of $700 on certain personal property He says that he performed all the conditions on his part to be performed, and that during the life of this policy the property insured was totally destroyed by fire, and he asks judgment for that amount. The policy shows that this insurance was issued on several articles of plaintiff’s personal property, to wit: $200 on an ice chest; $200 on blocks, saws, knives and butcher’s tools; $200 on scales and counter, and $100 on shelving.

To this petition there was an answer filed which admits that' the defendant issued the policy and admits that the property insured was destroyed as alleged in the petition; and then answering says that the policy contained a provision that:

“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject-matter thereof, or if the interest of the insured in the property be not truly stated thereon.”

And another provision that:

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the interest of the insured by other than unconditional and sole ownership, or, if personal property and be or become encumbered by a chattel mortgage.”

The defendant further states that the plaintiff was not the sole owner of this property; that the scales had been purchased from the Toledo Computing Seale Company, and they held a conditional sale contract upon that part of this property, and that there was a chattel mortgage on the property at the time the policy was issued, probably on the ice chest, and that these facts were unknown to the defendant.

There was a reply filed and the case went to trial. The testimony shows that these allegations of the answer were true, that there was a contract of conditional sale on the scales, and that there was a chattel mortgage on the ice chest. It further shows that neither the agent nor the .company had any knowledge at the time the insurance was issued, or at any time prior to the fire, of these encumbrances. The first knowledge they had was when a party holding one of these liens brought suit, against the defendant setting up this insurance, and alleging their interest in the property and asking to be protected.

The plaintiff admits that these liens were on the property, but he seeks to avoid the enforcement of the conditions of the policy by showing that he was a foreigner, not understanding the English language, and that when he purchased these scales he says that the agent of the company presented some contract to him to sign; that he did not understand or know anything about it except that he would have to pay so much a month on the property, but that he signed that paper and about the same thing occurred as to the mortgage, and because he did not know these provisions were in the policy he seeks to avoid the conditions of the policy.

It is a well-known rule that ignorance of the contents of a contract signed, will not relieve a party from its effect. The mere fact that the plaintiff, because he was a foreigner, did not understand the conditions of the paper he signed for the scale company, and did not know that he had encumbered the property by a chattel mortgage, can not affect in any way the rights of the insurance company.

The policy of insurance provided that the entire policy should be void, if the interest of the plaintiff was otherwise than the unconditional and sole ownership of the property, or if it-was encumbered by a chattel mortgage. This, we think, was a reasonable provision. The company might well refuse to insure property, where the party asking for the insurance was not the sole owner, or it was encumbered. No claim is made that the company, or its agents, at the time it issued this policy, had any knowledge of the conditional sale, or the chattel mortgage that was then on part of the property, and it had a right to stand on this condition of the policy and refuse to pay the loss.

But it is claimed that if it does prevent the recovery of the insurance on the items that were covered by the conditional sale and mortgage, that it will not prevent a recovery upon the other items of property insured. This is claimed on the authority of Coleman v. Insurance Co. 49 Ohio St. 310 [31 N. E. Rep. 279; 16 L. R. A. 174; 34 Am. St. Rep. 565], The trouble with that claim is that the ease in Coleman v. Insurance Co. is distinguished by the case of Germania Fire Ins. Co. v. Schild, 69 Ohio St. 136 [68 N. E. Rep. 706; 100 Am. St. Rep. 663], where the Supreme Court says:

“An insurance policy which contains a stipulation that this entire policy shall be void on certain named conditions, is not a severable risk, although the amount of insurance is distributed among different classes or articles of property. Coleman v. Insurance Co. distinguished.”

The conditions of the policy in the action at bar are identical with the conditions of the policy in Germania Fire Ins. Co. v. Schild, supra. In Coleman v. Insurance Co. supra, the policy provided that “this policy shall be void” while in the policy in the later ease and the case at bar, the language is, “this entire policy shall be void.” And for this reason the Supreme Court holds that it avoids every item insured in the policy.

For this reason the judgment of the court below is affirmed.

Metcalfe and Norris, JJ., concur.


text:
    JUDGMENTS AND DECREES.
    [Licking (5th) Court of Appeals,
    October Term, 1915.]
    Shields, Powell and Houck, JJ.
    Perry Feazel v. Jacob Feazel.
    Conclusiveness of Former Judgment as to Matters Determined and that Might have been Litigaied in Same Action.
    Where testimony as to the claim now in suit was offered and went to the jury in a former trial, in which the present plaintiff was defendant and the present defendant was plaintiff, a reviewing court must assume there was a determination as to that claimed and the principle of res adj.udicata applies, notwithstanding the answer in the former suit was a general denial and no affirmative relief was sought and no claim presented, with reference to the account on which recovery is sought in the case at bar.
    [Syllabus by the court.]

      Kibler & Eibler, for plaintiff in error.

      Fitzgibbon, Montgomery & Black, for defendant in error.
   HOUCK, J.

This is a proceeding in error prosecuted from the common pleas court of licking county, Ohio; the.parties stand here in the same position as in the court below.

The cause was submitted to the common pleas court upon the question made by the pleadings in the case as to whether or not the plaintiff is estopped, and whether the claim in the petition is res adjuddcata by reason of the allegations and matter set forth.in the answer of the defendant. Said cause being submitted to the common pleas court upon the following stipulation and agreement between the parties hereto:

“That the question of res ad judicata and of estoppel shall be submitted to the court upon the pleadings in the case of Jacob Feazel v. Perry Feazel, heretofore tried in the court of common pleas of Delaware county, Ohio, being ease No. 6821, the pleadings in this ease and the bill of exceptions in said Delaware county ease.”

The common pleas court rendered a judgment in favor of the defendant, and a reversal of this judgment is sought by plaintiff in error.

The plaintiff brought suit in the common pleas court against the defendant asking for a judgment against him in the sum of $1,061.25, alleged to be due him for board and lodging, etc., furnished by plaintiff to the defendant between August 17, 1910, and July 10, 1912, being the time defendant lived in the home of plaintiff in Delaware county, Ohio.

An answer was filed to the petition, pleading, among other things, the defense of estoppel and res adjudicata in this, to-wit: that all of the matters, things and questions involved in said suit had been fully tried, determined and adjudicated between the parties hereto in a suit which was tried in the com-mon pleas court of Delaware county, Ohio, on October 17, 1915, and a final judgment rendered therein.

Two questions are presented in this case:

First. Is the cause of action set forth in the petition in this case in any way connected with the case tried in Delaware county wherein Jacob Feazel was plaintiff and Perry Feazel was defendant?

Second. Was the cause of action in plaintiff’s petition in this ease submitted to and passed upon by the jury in the Delaware county case, notwithstanding the charge of the court in said case?

The stipulation and agreement upon which this cause is submitted, among other things, provides that the bill of exceptions in the Delaware county case shall be considered by the court. We have examined the same with some care, with a view of ascertaining the facts that were presented in that case that would be applicable and proper in the determination of the questions involved in this ease and especially with reference to the charge of the court.

The bill of exceptions' discloses that practically all of the items set out in the petition in the case at bar were charges made within the time that the defendant lived in the home of the plaintiff and, speaking from the record, they were submitted to the jury in the trial of the ease, and it is not within the province of a reviewing court to say they were not considered by the jury in arriving at its verdict. The record shows that the plaintiff had no contract of any kind with his father for care, support, board, etc., and therefore the charge of the court was proper and right when the court charged the jury: ‘ ‘ There is no claim made in the answer for any compensation for board or anything else.” This was a correct and proper instruction to give to the jury in the light of the testimony of the plaintiff himself.

We think it is a well settled principle of law in this state that when a matter has been finally determined in an action between the samp parties by a competent and proper tribunal, the judgment is conclusive, not only as to what was determined, but also as to every other question which might properly have beén litigated in the case.

True, the answer in the Delaware county case was a general denial and no affirmative relief was sought, and no claim presented therein with reference to the items set out in the petition in the case at bar, but evidence was offered in the trial of the case upon these items which went to the jury and, so far as a reviewing court is concerned, the jury took these items into consideration in arriving at its verdict.

Our Supreme Court has declared, as a well-settled principle of law, that when the facts which constitute the cause of action or defense have been, between the same parties, submitted to the consideration of the court and passed upon by the court, they can not again be the proper subjects for action or defense, unless the finding and judgment of the court is opened up and set aside by proper authority. This principle of law extends still further in quieting litigation. A party can not relitigate matters which he might have interposed but failed to do in a prior action between the same parties or their privies in reference to the same subject-matter, and if he fails to introduce matters for the consideration of the court that he might have done, he will be presumed to have waived his right to do so.

Relying upon the record in the Delaware county case and pleadings submitted, and applying thereto the well-known principles of law applicable to the questions presented in the ease at bar, a majority of the court is of the opinion that the judgment of the common pleas court is right and should be affirmed.

Shields, J., concurs.

Powell, J., dissents.


text:
    CRIMINAL LAW — EVIDENCE—JURY.
    [Hamilton (1st) Court of Appeals,
    November 8, 1915.]
    Jones, Jones and Gorman, JJ.
    John Petri v. State of Ohio.
    1. Waiver of Jury Trial not Affirmatively Shown by Failure “to Demand Trial by Jury.”
    Waiver of the right to a jury trial does not clearly and affirmatively appear where the record merely states that the “defendant did not demand a trial by jury.”
    2. Evidence of Delinquency of Children Essential to Conviction for Causing and Contributing to Such Delinquency.
    A conviction under Sec. 1651 G. C. of causing, encouraging and contributing to the delinquency and neglect of children must be based on evidence of the delinquency of said children.
    3. Question as to Accused’s Having Something to Say Presumed Propounded.
    Where the record does not distinctly disclose that the defendant was not asked if he had anything to say why sentence should not be passed, it will be presumed that such a question was asked in compliance with the statute.
    Error.

      Cowell & Lamping, for plaintiff in error.

      John Weinig, for defendant in error.
   JONES, O. B., J.

Plaintiff in error was convicted by the judge, of the juvenile court without the intervention of a jury, under Sec. 1651 G. C., of causing, encouraging and contributing to the delinquency and neglect of two girls aged respectively eight and ten years. He seeks a reversal of the judgment in this court on three grounds: 1. That the court had no authority to try plaintiff in error without a jury. 2. That the finding of the court is not supported by any evidence of the delinquency of the minors. 3. That plaintiff in error' was not asked, after being found guilty and before sentence, if he had anything to say why sentence should not be pronounced against him in accordance with the requirements of See. 13694 G. C.

1. The record as presented fails to show distinctly that the defendant below waived his right to a trial by jury but merely that the “defendant did not demand a trial by jury.” It is held in the'case of Simmons v. State, 75 Ohio St. 346 [79 N. E. Rep. 555; 9 Ann. Cas. 260], that the waiver of a right to a jury trial must clearly and affirmatively appear on the record, and can not be assumed or implied by a reviewing court from Ms mere failure to demand a jury.

2. The record fails to show proof of the delinquency of the minor children or record their conviction as such delinquents. In the original Sec. 1651 G. C., in accordance with which the affidavit was drawn, the offense provided contemplated the existence of a delinquency in the child. The section as amended in 103 O. L. 871, provided another offense, to-wit: “acting in a way tending to cause delinquency in a cMld.”

While the record might establish the latter offense, it is not sufficient to establish the offense charged in the affidavit without evidence of the delinquency of the cMldren, and without. such proof the charge must fail, no matter how culpable the acts of the defendant may be. Fisher v. State, 84 Ohio St. 360, 369 [95 N. E. Rep. 908].

3. The record does not distinctly disclose that defendant was not asked if he had anything to say why sentence should not be passed upon him before' the sentence was actually pronounced. It must therefore be presumed that such a question was asked in compliance with Sec. 13694 G. C. Bond v. State, 23 Ohio St. 349; Carper v. State, 27 Ohio St. 572; Bartlett v. State, 28 Ohio St. 669.

For the reasons stated the judgment must be reversed.

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


author: SHIELDS, J.

text:
    CARRIERS — CONTRACTS.
    [Richland (5th) Court of Appeals,
    January Term, 1915.]
    Powell, Voorhees and Shields, JJ.
    Adams Express Co. v. W. O. Starkey.
    Exemption from Liability in a Bill of Lading Issued by Express Company Binding on Shipper, Precluding Recovery of Money Forwarded in Package as Merchandise and Lost in Transit.
    A shipper by express of a package containing money, which fact was not disclosed at the time of shipment, but to cover which he paid a higher rate upon being refused registration, is bound by a clause in the bill of lading which exempts the company from liability for the loss of money in transit not received and carried through its money department, notwithstanding .his denial that he agreed to or had any knowledge of such a condition in the contract of shipment. Remittitur of judgment for plaintiff.
    Error.

      McBride & Wolfe, for plaintiff in error.

      Wm. McE. Weldon, for defendant in error.
   SHIELDS, J.

This case was originally commenced before a justice of the peace, and a default judgment was rendered against the defendant in favor of the plaintiff. The case was appealed to the court of common pleas, where a trial was had and judgment was rendered against the defendant.

It appeared by the petition of the plaintiff filed in the court below, that on December 20, 1910, a box containing certain goods consisting of books, dress goods, pocket knives, toys, including a twenty dollar gold piece and a five dollar gold piece placed in a nickel plated cup in said box, valued at $50, was delivered by the plaintiff to the defendant at its office in the city of Mansfield, Ohio, for transportation and delivery to one W. D. Starkey at Zionsville, Indiana, for which the plaintiff paid to the duly authorized agent of said defendant company the sum of fifty-five cents, áaid goods and money were not delivered by the defendant company to the said W. D. Starkey, but tbe said two pieces of gold coin and nickel plated cup and a certain book were found to have been taken out of said box upon its delivery to the said W. D. Starkey, to his damage in the sum of $32.

By answer the defendant admits that on the date named in said petition certain goods consisting of books', dress goods, nickel plated cup, pocket knives and toys, were delivered to it by the plaintiff at its office in the city of Mansfield, Ohio, for transportation to the party named and at the place named, but it denied all the other allegations of said petition. And further answering it averred that said described goods were delivered to it under and by virtue of the terms of a written contract, -which was assented to by the plaintiff, and which said contract, among other things, contained the following:

“Said property is accepted as merchandise only, and the express company shall not be liable in any event for the loss of money, specie, bonds, coupons, or other negotiable paper which the company does not receive or carry except through its money department, provided for that purpose. ’ ’

That if any money was shipped by the plaintiff it was shipped in violation of the above stipulation in the contract without any knowledge on the part of the defendant that said package contained money, and that said money, if shipped, was not shipped through its money department provided for the purpose of shipping money.

Plaintiff by reply set up that when he delivered said- package to the defendant’s agent, he asked whether said package could be registered to insure safe delivery thereof on account of the special value of its contents, and was told by said agent that the defendant did not have a department in which packages could be registered, but by placing a proper value on the shipment, the company would be responsible to plaintiff for the safe delivery thereof to the consignee, whereupon he placed a value of $50 on said package, and accepted a receipt therefor, quoted in the second’defense of the defendant’s answer; that the plaintiff was ignorant of any such provision or stipulation or custom and never assented thereto, nor did he assent to releasing the defendant- from liability for loss of the money contained in said package. He further set up that the agent of the defendant, by his acts and declarations, and by his failure to call plaintiff’s attention to the defendant’s “money department” misled plaintiff into thinking and believing that the defendant would be responsible for the safe delivery of said package to the consignee up to the full value of $50, regardless of the contents, and that plaintiff relying thereon delivered said package to the defendant for transportation as alleged in said petition.

With the issues thus made by the foregoing pleadings, the case was submitted to a jury resulting in a verdict for the plaintiff. On the overruling of a motion for a new trial judgment was entered on said verdict, and a petition in error with a bill of exceptions was filed in this court for a review of said judigment.

Numerous errors are assigned in said petition in error, but the view we take of this case will not require us to noticé all of them.

In the bill of lading (denominated a contract in the defendant’s answer) issued by the plaintiff in error to the defendant in error, upon the delivery of said box to it at its office in the city of Mansfield, it is averred in said answer that said box containing said property was received by the plaintiff in error to be transported and delivered to Zionsville, Indiana, subject to the said conditions contained in said bill of lading, that is:

“Said property is accepted as merchandise only, and the express company shall not be liable in any event for the loss of money, specie, bonds, coupons or other negotiable paper, which the company does not receive or carry except through its money department provided for that purpose.”

In the reply it is admitted that such bill of lading or receipt was at said time issued by the plaintiff in error and accepted by the defendant in error. Do these recitals constitute a contract between the said parties? True, the bill of lading or receipt is signed by the plaintiff in error only, and not by the defendant in error, but it is held in the case of Cincinnati, H. & D. Ry. v. Berdan, 12 Circ. Dec. 481 (22 R., 326), that:

“ A shipper is bound by the conditions of a bill of lading which he accepts at the time of shipping the goods, although he does not sign such bill of lading or agrees to it in writing, if signed by the railroad company and he accepts it.”

So too in the case of Jackson v. Ely, 57 Ohio St. 459 [49 N. E. Rep. 792], Judge Bradbury in announcing the opinion of the court in that case, when commenting on the case of Stone v. Vance, 6 Ohio 246, says:

“There, only the party that received the property signed the instrument which was in the form of a receipt, but, nevertheless, it was held to embody the terms of a contract binding on all parties. The fact that the party not signing, takes into his possession, control and custody the instrument, establishes his assent to its terms.”

But as stated, while admitting the delivery and acceptance of this bill of lading or receipt, the defendant in error claimed that he was ignorant of the contents thereof and was misled by the representations of the agent of the plaintiff in error into the belief that the plaintiff in error would be liable to the consignee of said box to the full value of $50, without regard to its contents. The fact that the defendant in error made inquiry of the defendant’s agent if the box could not be registered, or that he was led to believe from said agent’s representations that he could recover the full $50, regardless of its contents, if the plaintiff in error made default in making a safe delivery of the box, we regard as immaterial; but it is alleged that the defendant in error was not aware of the contents of the bill of lading or receipt when he accepted it, and that he did not know that it contained the stipulation set out in said answer and heretofore referred to. It is not claimed that said bill of lading or receipt was issued to him through any fraud or mistake, for neither are pleaded, nor does it appear that the defendant in error even read said bill of lading or receipt at the time it was delivered to him and he accepted it without objection. Will the law thus permit a party to a written contract afterwards to take advantage of his own neglect? We think not, nor do we think that a shipper delivering a package or parcel to a carrier with no accompanying representations that it contains articles of special value can recover for such articles of special value.

Judge Ranney in delivering the opinion in the case of Wilson v. Hamilton, 4 Ohio St. 723, says:

“It is but the dictate o'f common honesty that he who delivers property to a carrier, knowing it requires peculiar care and attention to its safe transportation, should make known to him the necessity in order that the proper precaution may be used. ’ ’

Mere notification to the agent of the carrier that a package or parcel is one of importance is no.t sufficient to charge the carrier with knowledge of its value. The carrier is entitled to know if it be claimed that the contents are valuable. In Humphreys v. Perry, 148 U. S. 627 [13 Sup. Ct. Rep. 711; 37 L. Ed. 587], it is held:

“The principle which governs the compensation of carriers is that they are to be paid in proportion to the risk they assume. It is the duty of every person sending goods by a carrier to make use of no fraud or artifice to deceive him whereby his risk is increased or his care and diligence may be lessened.”

Again in American Express Co. v. Perkins, 42 Ill. it is held that:

“In order to charge common carriers as insurers, they must be treated in good faith; and concealment, artifice or suppression of the truth will relieve them of this liability.”

Without pursuing this subject further, we are of the opinion that the box in question was received and accepted by the plaintiff in error for transportation from Mansfield, Ohio, to Zionsville, Indiana, at the time stated, upon the conditions contained in said bill of lading or receipt, that the acceptance of the same by the defendant in error constituted a binding contract between the plaintiff in error and the defendant in error, and that the latter is now estopped from denying that he had agreed to said conditions.

While we think that the defendant in error is concluded by the stipulation contained in said bill of lading or receipt from recovering for the value’of the two gold pieces^ we are likewise of the opinion that he is entitled to recover for the value of the book and silver cup lost in transit and described in the petition of the plaintiff below.

Further quoting from the case of Cincinnati, H. & D. Ry. v. Berdan, supra:

“Common carrier may limit his common law liability by a fair contract, but he can not limit or avoid his liability for his own ■negligence.”

Here it is not denied that said book and silver cup fall within the classification of goods covered by the assumed risk, and the judgment of the court of common pleas will therefore be affirmed, upon condition that the defendant in error accept a remittitur of $25 and interest thereon from the day of

1914, from said judgment, with the costs herein to be taxed against the plaintiff in error; or if the defendant in error shall refuse to accept said remittitur in five days from the rising of this court, the judgment of the court of common pleas will be reversed, and said case will be remanded to said court for further proceedings.

Powell and Voorhees, JJ., concur.