text:
    REPRESENTATIONS TO MORTGAGEE AS TO THE VALUE OF PROPERTY.
    [Circuit Court of Lucas County.]
    George H. McMullen, Receiver, v. Britton W. Griggs et al.
    Decided, February 7, 1902.

      Mortgage — Representation by Mortgagor — As to Value and as to Title —Agency—Liens of Mechanics and Material Men — Interest Thereon.

    1. The rule applies to real as well as to personal property that a statement by the seller or mortgagor exaggerating' the value of the property is not a fraudulent representation, or one that will avoid the contract, where the purchaser has full opportunity to examine the property and is competent to judge of its value.
    2. A representation by a mortgagor that he is the sole owner of the property upon which he is contracting the loan, whereas in fact he is the legal owner with an equitable interest outstanding upon which the holder asserts no claim, is not such a false representation as to title as to relieve the mortgagee from advancing the full amount stipulated in the mortgage contract.
    3. The representative of a mortgage loan company who has authority to solicit subscriptions to its capital stock, collect dues and fines, solicit loans and cause property to be appraised upon which loans are to be made, is an agent of the loan company, notwithstanding his compensation is derived from commissions paid by those borrowing money from the company.
    4. In decreeing that a loan company shall advance the balance due under the mortgage contract for the payment of liens of mechanics and material men, interest will be allowed on the liens from the date of the completion of the mortgaged premises, less arrearages due to the loan company.
    Hull, J.; Parker, J., and Haynes, J., concur.
    Heard on appeal.
   This action grew out of the building of a certain building in the city of Toledo, and the loan that was made to the owner of the building by The Southern Ohio Loan & Trust Company, as secured by mortgage, and the rights and claims of certain mechanics and material men who furnished material and performed labor in the construction of the building.

The question in the ease presented to us is, whether The Southern Ohio Loan & Trust Company, called the loan company for convenience, should be required to advance a balance of $1,500 still remaining unpaid on the mortgage of $4,500 which was given by Britton W. Griggs to the loan company to secure a loan for that amount. The claim of the loan company is that they were defrauded by Mr. Griggs at the time of the loan; that he misrepresented the value of the property, the title to the property, and, further, that the building was not completed according to contract; that they advanced $3,000 and that that is all that they should be required to advance upon this mortgage by reason of these misrepresentations.

The claim of the mechanics and material men — for the controversy is between the loan company and the mechanics and material men — is, that under the equities of the case, the loan company should be required and are required to advance the full amount of the mortgage; and further, that after the building was partially completed, it being apparent that there was not sufficient on hand of the money advanced under this loan to finish the building and to pay for the work and labor, that the loan company agreed with the mechanics and material men, in consideration of their releasing their mechanics’ liens, that the loan company would advance the balance of the mortgage, then about $1,500 — it was in fact $1,700, but there is only $1,500 in controversy- — and that the balance of the mortgage should be distributed among the mechanics and material men; and the mechanics and material men claim that by reason of that contract, which they claim was made with the agent of the company, Mr. II. H. Barber, they proceeded with the construction of this building and finished it. Having finished it, the loan company refused to advance the balance of the money, and action was commenced by Mr. McMullen, as receiver for Iiyter & Company, the holder of one of the liens, to foreclose the liens, and all the interested persons were made parties.

The general office of the loan company was in Cincinnati, and H. H. Barber was the agent of the company, at least for certain purposes, in the city of Toledo. He had admitted authority to solicit loans, and to collect assessments, fines,- dues, examine property, appoint appraisers of property, and exercise some other authority. His appointment was in writing and makes him the agent of the company. It reads:

“This is to certify that H. H. Barber, the bearer hereof, has this 26th day of June, 1899, been appointed local agent of The Southern Ohio Loan & Trust Company, for Toledo, Ohio, and is hereby duly empowered to solicit subscriptions to the capital stock and collect the membership fee therefor.”

Signed by the president and M. S. Todd, secretary.

Britton W. Griggs was the owner, as has been said, of this property. He had negotiated a loan with Irish & Company for $2,500. In fact, he purchased the lot through Irish & Company for a consideration of $1,500 and executed a mortgage thereon for $2,500. They loaned him $1,000 above the purchase price with which he began the construction of this building.

This money being insufficient, in November, 1899, he called upon Mr. Barber, the agent of the loan company in Toledo, and finally made written application to the loan company for a loan of $5,000. This application was rejected; or, at least, one was sent on in its place for $4,500, which he filled out. In that application he represented that the cash value of the lot was $1,600, and that with the improvements when they were completed, the value would be $9,000, and signed answers to various other questions which were printed in the application. This was sent on, and his loan for $4,500 was allowed, and a mortgage was executed pursuant thereto, and sent on to the company. As a part of this application, there was an appraisers’ report which was made by appraisers appointed by Mr. Barber, and sworn by him as notary. The appraisers appraised the lot at $900 instead of $1,600, and the buildings and improvements, when completed, at $5,000 instead of $7,400, the amount named ■ in the application, which preceded this appraisement, and was on the same piece of paper. All of this went to the company, the owner’s estimate of the property and the estimate put on it by the appraisers. It is claimed that this was such a misrepresentation on the part of Mr. Griggs as would invalidate the mortgage contract or relieve the company at least from advancing the amount they had agreed to advance. It was forther claimed that Griggs represented he was the owner of the property and sole owner; but that in fact Mr. Swinehart had an equity in the property and that that representation was therefore false, and that the company relied upon these representations in making the loan, and that therefore they are relieved from advancing the full amount of the mortgage, and it is claimed that the mechanics and material men who did work upon the building and furnished the material can have no greater rights than Griggs.

If the company had relied entirely upon the representations of Mr. Griggs, the case would stand differently from what it does. But it appears, instead of relying upon his statement, they required Mr. Barber to appoint three appraisers, who, in his judgment, would be competent to appraise this property; and that they did appraise it, and placed a value upon it considerably lower than the value fixed upon it by Mr. Griggs; that Barber himself examined the property at the time the company agreed to make this loan of $4,500; they had before them the information afforded by this appraisement by appraisers that were appointed by their own agent in the city of Toledo. So it is very clear that they did not rely and did not intend to rely wholly upon the representations that were made by Mr, Griggs. If they did not rely upon them, but sought information elsewhere, they were not prejudiced by the value that he might put upon his property. And more than that, the testimony shows that before this loan was made, which was in February, Mr. Todd, the secretary and treasurer of the company, was in Toledo, and he also, seems to have acted in the capacity of general manager of the company. He went out to this property and examined it himself, examined the lot; and the building at that time was well along toward completion, and he examined that; and after an examination by this officer of the company the loan was made. So that the company not only had the judgment of the appraisers, but also the benefit of an examination by one of its officers.

The law is well settled that in matters of value, which are always to a great extent matters of opinion, if the purchaser, as you may call the mortgagee here, examines the property himself and has full opportunity to examine it, and is competent and capable of judging of its value, so that no advantage of him is taken, that a statement by the seller that the property is worth more than it really is is not a fraudulent representation, or such a representation as would avoid a contract. The rule is often applied to personal property, and there is no reason why it should not be applied to real estate in a case where the facts are such as to admit of its application.

Here was a transaction where each party had an opportunity to examine and had sufficient knowledge and experience to form an opinion of his own. So that, so far as these representations, if there were any, as to value, are concerned, we think that they were not of such a character, uuder all of the circumstances, as would amount to a fraud or would vitiate or affect this mortgage. It appears that Griggs did probably put a high estimate on this property. He paid $1,500 for it however; but the agent through whom he bought it (there is some intimation at least of this) paid only $800, and that was regarded by the agent and his principal, perhaps, as the real value of the property. But Griggs had no knowledge of this arrangement, and he paid $1,500 for the property, and perhaps honestly thought it was worth about $1,500, At any rate, we find, under all the circumstances, there was no representation here that would affect this mortgage.

As to the title, Griggs represented that he was the sole owner of it. It appears by the testimony that Swinehart, his partner, had an equity in it. They were partners in the building business. But Griggs did have the sole legal title to the property, and so far the record disclosed, he was the sole owner. Swine-hart makes no claim of any interest in it. So that if these representations of Griggs were not exactly true, it worked no prejudice to the loan company.

The mortgage was sent on, and on February 6, 1900, the loan company, through Mr. Todd, forwarded $3,000 to Mr. Barber, and with it a blank waiver of liens to be signed by all persons having liens upon the property. This waiver of liens apparently was filled out in the office of the company before being sent here. It is a printed blank filled out. And with the check for $3,000 was sent a letter of instructions to Barber to have the enclosed waiver of liens signed by the persons having furnished labor or material. It was apparent that $3,000 would not finish the building. The material men and mechanics concluded they were liable to lose at least a portion of what they had put in the building. They had various meetings and discussed matters and talked of discounting their claims, and finally, on February 17, they met Mr. Barber at his office, and all of them signed a waiver' of liens that had been sent on by the company, in consideration of the company agreeing that the balance still coming upon the mortgage, $1,724.50, would be advanced — the amount in dispute, as stated, really being only $1,500, there being no controversy that the rest was advanced, bringing it up to $3,000. And in the waiver which they signed they postponed their claims to that of the loan company, and their priority to the mortgage of the loan company. The waiver contained this language :

“In consideration of one dollar paid to each of them severally by The Southern Ohio Loan & Trust Company, the receipt whereof is hereby acknowledged, and in further consideration of a loan of $4,500 granted by the said The Southern Ohio Loan & Trust Company to the said Barton W. Griggs, and secured by mortgage upon said premises, do hereby respectively postpone to the said The Southern Ohio Loan & Trust Company any priority which they may have or might otherwise obtain by mechanics’ lien, or other similar liens upon said premises.”

The waiver itself contained a recital and statement that this was done in consideration of this loan of $4,500, and the original agreement and arrangement between the loan company and Griggs was that this money was to be used in the construction of this building; and upon a.written order signed by Mr. Griggs, it was all to be sent to Mr. Barber, who was to distribute it among the persons entitled to it; the loan company accepting this order, which is as follows:

“The Southern Ohio Loan & Trust Company:
£ £ I hereby authorize you’ to pay the proceeds of my loan of $4,500 made in accordance with my application, bearing date the---day of----, 189 — , as stated below, and this shall be your receipt therefor.
“$4,500 to H. H. Barber.
“ (Signed) Britton W. Griggs.
“Witness: A. F. Swinehart.”

So that the arrangement and understanding between Griggs and the loan company was that this money was to be used to complete this building, and that it was to be held by the company, or by its agent, and distributed by him to those who performed labor or furnished material for the building. It was not to' go into Griggs’ hands at all unless there was some' surplus. And the $1,500 being held back, in consideration of the company loaning the full amount of $4,500, the lienholders, the mechanics and material men who were entitled to liens signed this waiver, and the company accepted it.

But besides that, Mr. Barber signed the following paper on the same day, and as a part of the same transaction:

“Toledo, Ohio, February 17, 1900.
‘ ‘ The Southern Ohio Loan & Trust Company, in consideration of the waiver of certain rights and priorities on the part of certain persons and firms who have performed labor and furnished materials for the erection of a building upon the following real estate, viz., the west twenty-four feet of lot 2 and the east twelve feet of lot 8 in Spaulding’s addition to Toledo, Lucas county, Ohio, hereby undertakes and agrees that after the payment of claims and liens which have priority over the claims and liens of such persons and firms signing such waivers, it will retain in the hands of its agent the balance of the fund arising from its loan and mortgage upon said real estate to be paid out from time to time upon and for construction and completion of said building, insurance upon 'the same and at least one month’s dues. Said company represents that said balance will be the sum of $1,724.50, provided that the claims as presented and included in this settlement include all the claims that can become a lien upon said real estate.
“(Signed) H. EL Barber,
“Agent and Local Treasurer of The Southern 'Ohio Loan & Trust Co.”

So that if Mr. Barber was authorized to act for the company in this matter, here was beyond question a contract between the company and the lien holders that could be enforced; that on the one hand, the company would advance the balance of $4,500, and on the other hand, the lien holders would waive their liens, the money to be held by the company or its agent and paid to the lien holders according to their rights and claims. But it is claimed that Mr. Barber had no authority to make this contract, and therefore that it was not binding upon the company. He had theretofore been appointed the agent of the company. He had authority to solicit loans for the company, collect fines and dues, and appraise property, and to do everything neeessary to make a loan for the advantage and purposes of the company. He received his compensation, or most of it, at least, in the way of commissions from those who borrowed money from the loan company, but so far as is disclosed here, he was not the representative of the borrower in any respect. It was not his duty to protect the borrower or his interest in any manner. He did nothing for the borrower except to take his application and send it to the company, and take the necessary steps to protect the company if a loan was to be made. At the time this contract was made, there had been no intimation on the part of the company that the full amount of $4,500 would not be advanced. The amount spoken of in the waiver of liens which was sent on by the company to Mr. Barber to have the lien holders sign is $4,500, and no question was made by them or by any one but that the full amount would be advanced. In sending on the $3,000, in their letter, they say: “We enclose check for the sum of $3,000 on account of loan 4364, Britton W. Griggs.” It is on account of that loan. It was usual for them to withhold a portion of the amount until the building was finished. After these contracts had been signed, in the following April, Mr. Barber wrote the company quite a long letter, going somewhat into details as'to the matter of the waiver of liens. The date of the letter is April 24, 1900. He says, among other things:

“As claims for labor and material were brought in, it became evident that your loan, even the whole $4,500, would not be sufficient to pay the bills, and Hyter & Co. having the largest unsecured claim, and having confidence in the property, desired to see the property completed and the loan made as contemplated. They called a meeting of the creditors and obtained from all some concessions on their claims, • and then took the title from Mr. Griggs and undertook to finish the building according to the plans and specifications. Mr. McMullen, who holds the legal title, is the manager of The Hyter Lumber Company. When everything was adjusted and first liens would be paid and waivers of liens obtained, I paid first liens and labor claims on the basis agreed upon among the creditors, and I have distributed all of the $3,000 that you sent.”

Then he says further along:

“Before sending my report I went to Mr. McMullen and presented the bill for arrearages. He said it was all right and would be paid, but remarked that the building was just about finished, and that, considering what they already had in the building, they would like to get their share of the $1,500 before paying the bill for arrearages. I told him you were anxious to have the account paid, and he made the remark that you ought not to feel very bad about it, as you then had in your possession $1,500, most of which, with the building so near completion, belongs to the Hyter Co.”

On the same day Mr. McMullen •wrote to the loan company, among other things:

“The building in question is only this day finished. Delayed by bad weather, etc. You have $1,500 yet in your hands, and out of this amount Mr. Barber, your agent, advised me you would hold your first and probably second payment.”

The company previous to that had written to Mr. McMullen to pay the dues on the loan as follows:

“We are advised that you are the owner of the property securing loan No. 4364, Britton W. Griggs, and beg to advise you that unless arrearages on this loan are paid by the 26th inst., suit in foreclosure of the mortgage will be filed.”

That bears date of April 23, 1900, and in the letter by Mr. McMullen of April 24 he refers to the receipt of this letter.

After receiving McMullen’s letter of April 24, the company, through Mr. Todd, under date of April 26, wrote McMullen:

“If you are the owner of property securing loan No. 4364, Britton W. Griggs, it would be proper for you to pay up arrearages on the loan, which for this month amounts to $85.16. Another payment will be due May 5. The matter of closing -the loan will receive due attention when arrearages have been paid on amounts already advanced.”

This was the answer to his letter of April 24, in which he stated to the company there was $1,500 coming, and they say “the matter of closing the loan will receive due attention when arrearages have been paid.”

McMullen then sent on his cheek for $85.16, and subsequently sent on a check for one month’s dues, $32.50, which latter was the full amount due on the loan of $4,500. This was accepted by the company, and they requested him to pay all arrearages as they became due.

It appears from this correspondence that the company were fully advised of what had been done by Mr. Barber and of the arrangement that had been made as to the liens that had been waived, and of the agreement that had been made, and the understanding there was that the company would advance the balance of this amount, and we think that what Barber did was fully ratified in any event by the loan company.

But we are of the opinion that the arrangement that Mr. Barber made was within the scope of his agent and authority. He had power and authority to negotiate this loan, and to make collections, and power to protect the interests of the company in all proper matters pertaining to the loan. At the time this arrangement was made, there had been no suggestion on the part of the company that the full amount would not be advanced. And in making this arrangement he was simply protecting the interests of the company and making arrangements whereby this loan could be made, which was the company’s business— their business being to make loans, and whereby their interests would be protected, and their mortgage claim put ahead of the claims of the mechanics and material men — and by virtue of this arrangement, and relying upon the action of the agent of this company, the mechanics and material men waived their liens, and it seems to us that it would be unjust and inequitable for the court to hold,, under these circumstances, that the mortgage of the loan company should have priority over the claims of the mechanics and material men who finished this building. We are of the opinion, as already stated, that the representations of Mr. Griggs as to the value of this property were not of such á character as to vitiate or affect the mortgage. But if they were, they would not affect the rights of the mechanics and the material men. If there were any fraudulent or false representations on the part of Griggs, in his application for the loan, they were not a party to them, had no hand in them and no knowledge of them, and therefore were not affected by them; but the loan company, after they had examined the property, and after a month or more had gone by from the time that the loan was agreed upon, and with full knowledge of all the material facts or with opportunity to secure full knowledge, through its agent, made this contract with the mechanics and material men, and by virtue of the agreement of the loan company, and by reason of its agreement that it would advance the balance of the money due upon this mortgage, they released their liens for their labor and their material. We are of the opinion that they would not be deprived of their rights under this contract made with the company even if Griggs’ representations were false and fraudulent in law to the extent claimed by the company.

We have reached the same conclusion in this ease that was reached by the judge who tried the case in the common pleas court. We think that the mechanics and material men are entitled to priority over the loan company to the extent of $1,500, the balance due upon the mortgage, if that amount is necessary to satisfy their claims. The same decree should be entered here that was entered in the court below.

Mr. Brumbaek: “May I inquire if your honors considered the question of subrogation?”

Judge Hull: “Yes, we considered the question of subrogation; $2,500 of this $3,000 advanced having been used to pay off the Irish mortgage, the loan company would be entitled to be subrogated to that amount; but the $1,500, which was the balance of the mortgage, and which the loan company agreed to advance, but did not, was a matter that came after and in addition to the paying off of the Irish mortgage. If the loan company had put into Mr. Barber’s hands the $1,500, which was agreed to be distributed among the mechanics and material men, then you would be entitled to be subrogated to the amount of the Irish mortgage and would be entitled to the first lien to the amount of $3,000. The mechanics and material men have the first lien then to the amount of $1,500, the balance due upon the mortgage. But the result is the same, whether it is figured out in that way, or whether the court decrees that the mechanics and material men have the first lien for $1,500 as against the mortgage loan for $3,000, which the loan company now holds. Carrying out the views of the court in your way simply requires the loan company to pay into Mr. Barber’s hands $1,500 to be distributed according to the agreement and arrangement which we hold was made.”

Ralph Emery and B. F. Brough, for plaintiff.

O. S. Brumbach, for Southern Ohio Loan & Trust Company.

Fluckey & Garver, for Jacob Cook and Ruth A. Arnold, executrix.

T. L. Gifford, for Wolf & Warnke.

Mr. Emery: “Will your honor dispose of the interest om

this $1,500 from the time the building was finished and it should have been paid ? ’ ’

Judge Hull: We had not considered that, but the money, not having been paid when the building was finished, you are entitled to interest upon it from that time.”

Mr. Brumback: “There should be some consideration paid to these dues and premiums which should have been kept up all the time. ’ ’

Judge Hull: “Yes, up to the time the building was completed when the money was due, you can compute that and arrive at the difference. You should have credit for the dues and arrearages, which should have been paid up to that time.”


source: Caselaw Access Project

license: Public Domain

text:
    RIPARIAN OWNERSHIP.
    [Circuit Court of Lucas County.]
    Abram M. Chesbrough v. Annie M. Head.

    Decided, February 14, 1902.

      Riparian Rights — Are Conveyed to Abutting Purchaser — Without Being Included in Boundary Lines — Meander Line Not a Boundary Line.

    1. Unless excluded by apt and proper words, riparian rights pass to a purchaser of land abutting upon a navigable stream, or of a platted lot so abutting, without measurement of the bed of the stream and without payment for the land so included, except as it is covered by the purchase price of the land on shore.
    2. A meander line bordering upon a navigable stream does not make a boundary, but is run for the purpose of determining the quantity of the land.
    Hull, J.; Haynes, J., and Parker, J., concur.
    Heard on appeal.

       Affirmed by tke Supreme Court without report, October 20, 1903.

   This case was tried in this court on appeal from the common. pleas court and is an action to quiet title; the plaintiff claiming ¡ to be the owner and in actual possession of “All that part of the bed of the Maumee river lying between the surveyed portion of lots thirteen (13), fourteen (14), fifteen (15), and sixteen (16), of Ironville, on the southeast and the center of the channel of the Maumee river on the northwest, and being a part of the Wasayon tract, in town nine (9) south, range eight (8) east, Michigan meridian in Lucas county, Ohio.” As appears from this description, the land in question is a portion of the bed of the Maumee rver, and the whole of it is usually covered by water and lies opposite the surveyed portions of the lots mentioned.

The question in the case is, whether the deed which conveyed to the plaintiff said lots 13, 14, 15 and 16 of Ironville, conveyed with it the right and title to the land under the water, subject to the public right of navigation, or whether the deed only conveyed the surveyed portions of those lots as described and indicated by the lines on the plat of the village of Ironville, which plat was made and recorded by the proprietor, David Weaver, in January, 1870.

Weaver mortgaged these lots to Valentine Ketcham; they were sold on foreclosure and bid in by Mr. Ketcham, and he afterwards made a conveyance to plaintiff of those lots, describing them by numbers, according to the plat. This occurred during the lifetime of Weaver. Subsequent to this deed by Ketcham to Chesbrough, Weaver made a deed of the bed of the river, opposite these lots, to the defendant. After Weaver’s death his heirs made a deed to the plaintiff of this property; but that was subsequent to this deed, so that, after all, it comes back to the question of whether by the deed from Ketcham to plaintiff of these lots, by number, the title to this land under the water, so far as it is susceptible of private ownership, was conveyed to the plaintiff; whether the whole riparian rights appurtenant to and incident to the land bounding and abutting upon the river at the foot of these lots was conveyed by that deed, or not.

A ease involving a similar question, Annie M. Head v. Abram Chesbrough, the same parties, some years ago went to the Supreme Court from this county. The land in that case was that lying in front of the surveyed portions of lots 11 and 12, immediately adjoining the lots in question here. That case was decided in favor of Chesbrough in the circuit court and affirmed by the Supreme Court without report. The case below was fully reported and the decision of Judge Pugsley of the common pleas court is found in Head v. Chesbrough, 4 N. P., 73, and the decision of the circuit court in Head v. Chesbrough, 13 C. C., 354. It is claimed that the facts in this case are somewhat different from those in that ease.

The principle of law that a conveyance of lots bounding and abutting upon a navigable stream carries with it the riparian rights and the title to the land under the water, unless there are express words in the conveyance excluding from the conveyance such rights, seems to be well established by all the authorities in this state. It is not my purpose in this opinion to review these authorities at great length. They were fully discussed in the other case, in the briefs of counsel and in the opinion of Judge Pugsley. The ease where this doctrine was first clearly announced in this state is that of Gavit v. Chambers, 3 Ohio, 495, 496, where the syllabus says:

“In Ohio, owners of lands situate on the banks of navigable streams running through the -state, are also owners of the beds of the rivers to the middle of the stream, as at common law. ’ ’

This was a case that went up from Sandusky county and involved the rights of abutting owners in the land under the waters of Sandusky river. The court say, at page 498 of the opinion:

“We do not believe that it was the intention of the United States to reserve an interest in the bed, banks or water of the rivers in the state, other than the use for navigation to the public, which is distinctly in the nature of an easement, and all grants of land upon such waters we hold to have been made subject to the rule of the common law, which, in this case, is the plain rule of common sense. And it is this: He who owns the lands upon both banks owns the entire river, subject only to the easement of navigation, and he who owns the land upon one bank only, owns to the middle of the river, subject to the same easement. This is the rule recognized not only in England, but in our sister states.”

This case has never been overruled or criticized, but has been cited with approval by the Supreme Court in two or three subsequent decisions.

Day v. Railroad Co., 44 Ohio St., 406, is in point and cites with approval the case of Gavit v. Chambers, supra. The first paragraph of the syllabus is:

“A general deed of premises lying upon the bank of a river, In which is constructed a canal, conveys the grantor’s rights to the center of the stream bounding the property. And to reserve or exclude from the grant any such rights, the conveyance should contain proper words of such reservation or exclusion. ’ ’

On pages 419 and 420 of the opinion several of the .Ohio- cases are considered and quoted from, and among them Gavit v. Chambers, supra, and quoting from Lamb v. Rickets, 11 Ohio, 311, as follows:

“Where the owner of land is bounded by a stream, he owns to the center of the stream, subject to the easement of navigation. ’ ’

In the comparatively recent case of Railroad Co. v. Platt, 53 Ohio St., 254, this question was considered by the Supreme Court. The facts in that case were somewhat different from, the ease here, that being an action in ejectment. The law, as laid down by the syllabus of the case, is this:

“A conveyance of lands situated upon a navigable stream, the description being by courses and distances from a fixed monument and establishing a boundary line coincident with the line of navigation, conveys the grantor’s title as far as the central thread of the stream.”

And on page 266 of the opinion, the court, through Judge Shauek, say:

“These considerations would seem to justify the presumption that a grant of this character is to the central thread of the stream unless apt terms are employed to limit it. ’ ’

And such appears to be the settled view of the courts of the country.

“To the application of this doctrine it is quite immaterial whether the stream be named as a boundary of the lands granted or there be a description by courses and distances from a fixed monument whereby a line is established coincident with the stream. The doctrine regards the substance of the grant and not its form.”

Counsel for defendant cites as an authority in this ease and rely upon Lembeck v. Nye, 47 Ohio St., 336. In our judgment, however, this case is not applicable to the case at bar. The water in question in that case was the water of a small non-navigable lake in Medina county, and the rule as to such waters is different from that in the case of a navigable stream like the Maumfie river. The first paragraph of the syllabus in that ease is as follows:

“A non-navigable inland lake is the subject of private ownership; and where it is so owned, neither the public, nor an owner of adjacent lands, whose title extends only to the margin thereof, have a right to boat upon or take fish from its waters. ’ ’

Judge Bradbury delivered the opinion, and discusses the difficulty of applying the rule relating to navigable streams to such a body of water as a small inland lake.

Judge Shauck, in Railroad Co. v. Platt, 53 Ohio St., 254, at page 268 of the opinion, refers to the case of Lembeck v. Nye, supra, as follows:

“The views expressed in Lembeck v. Nye, 47 Ohio St., 336, were not intended to have, and can not have, any application to a case of this character. The lands there in controversy lay under water that was not navigable. By the clear terms of the syllabus the case was limited to lands thus situated; and in the principal opinion prominence is given to the consideration that the lake there in controversy was susceptible of private ownership, and the views here expressed were recognized as controlling in cases of navigable streams.”

So that it appears both from the syllabus of Lembeck v. Nye, supra, and from the expression of Judge Shauck in Railroad Co. v. Platt, supra, that the law as laid down in Lembeck v. Nye, supra, was limited and intended to be limited to lands bounding upon non-navigable inland lakes.

The plat in this case shows a line not exactly coincident with the water line of the river as shown upon the plat, the surveyor running the line near the water line, according to the evidence ■from three to five feet from the water line at the time the survey was made, this line running from corner to corner of the lots practically, but not exactly, the line angling with the curves of the river and not following the sinuous line of the water itself, or the “sinuosities of the river,” as some authorities express it, but turning at angles to correspond as near as possible to the curves of the river and so as to leave a strip of from three to five feet between the line and the water line of the river. The lots were sold by numbers according to the plat, and it is argued by defendant that no more land would be conveyed than that contained within the line of the lots as shown by the plat and that the title conveyed, therefore, would stop with the lines run by the surveyor a short distance from the water line.

We find, however, from the evidence, that this line shown upon the plat near the water line was not intended as a boundary line of the lots, but what is known as a meandering line run by the surveyor, as near as practicable or convenient coincident with the water line, and that it is not to be regarded as the bounding line of the lots; that the lots were intended to be and in fact do bound and abut upon the Maumee river.

As to the effect of this meandering line, June v. Purcell, 36 Ohio St., 396, is in point, where the court say, on page 407:

“That the meander lines run in surveying portions of the public lands bordering upon navigable rivers, are run, not as boundaries of the tract, but as a means of ascertaining the quantity of land to be paid for by the purchaser, was decided in Railroad Co. v. Schurmier, supra. The meander line, therefore, in the present instance, not being a boundary line, the only boundary line was the river; and the question is, when the boundary line of a riparian owner is thus described, where is it to be located? Gavit v. Chambers answers at the middle of the stream, as at common law.”

This case is also a Sandusky county case, and the river was the Sandusky river. The case cited there is a decision of the Supreme Court of the United States found in Railroad Co. v. Schurmier, 74 U. S., 272; the court say, in the first paragraph of the syllabus:

“The meander lines run in surveying fractional portions of the public lands bordering upon navigable rivers, are run, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, and as the means of ascertaining the quantity of the land in the fraction, and which is to be paid for by the purchaser.”

The amount of land in each one of these lots was ascertained by the surveyor, and that is indicated and marked upon the plat, and the meandering line, in our judgment, was intended to mark what was to be included in the measurement of the lot. The land under the water of a navigable stream is not included in the measurement of the abutting lot, but title to it passes to the center of the stream with the conveyance of -the lot, and it is not necessary to include it in the measurement. Unless excluded by apt and proper words, the riparian rights will pass without any measurement of the bed of the stream and without any payment for it by the acre or otherwise, except as it is included in the price paid for the land on the shore.

It appears from this plat, and it is one of the agreed facts in the case, that by the making of it and the recording of it, a street, called Lee street, was dedicated, and, according to the plat, the side lines of the street run down to the river between lot No. 12 and lot No. 13 of this tract of land, and this inner line of the surveyor runs across the street as well as across the lots, and the strip of land left there is as wide, apparently, as that across any one of the lots.

We think it very clear that Mr. Weaver did not intend to stop this street by the line inside of the water line of the river; it clearly was his intention to run this street to the river, and the surveyor did not intend, by running this line across the street, to reserve in Weaver a strip of land three or four feet in width across the street and separate it from the water of the river; the same line is run across the government lighthouse reservation in lots 200 and 201; where there is no such line, the acreage of the lots is not given upon this plat.

We therefore hold that it was the intention of Mr. Wteaver to bound and abut these lots upon the river, and that they do in fact bound and abut upon the river and are to be so regarded, and the rights of these parties are to be determined according to that, and that being our holding, the rights of the parties are clearly and fully established by the law of the land. The deed from Mr. Ketcham to the plaintiff conveyed the whole of these lots, which we hold abutted upon the river, and there being in the deed no exclusion, no reservation of riparian rights, they were carried by that conveyance to the plaintiff.

This rule applies where the lots are conveyed by number as well as where they are conveyed by metes and bounds. This is so held in Watson v. Peters, 26 Mich., 508. The opinion in the case is by Judge Cooley, and the court say in the syllabus:

“The grant of a city lot bounded on a navigable stream, with the water as a boundary, in the absence of any express reservation, conveys to the grantee the land under the water to the center of the stream; and the fact that the grantor before conveying, platted the lands into lots and blocks, with distinct lines and distances marking the boundaries of each lot, and with the water boundary of the river lots indicated by a line representing the shore line, and conveyéd by such plat, will not limit the grant to such shore line, or operate to reserve to him proprietary rights in front of the lots conveyed.
“The privileges and conveniences which appertain to the shore of navigable streams constitute a part, and often the principal part, of the value of the grant, and this is especially true of city lots, and therefore the reason of the rule which infers the intent to convey the land under the water is, in the ease of such lots, most apparent and forcible.”

We are unable to see any appreciable or material difference between the facts of this case and those of the former case of Head v. Chesbrough, supra, which went to the Supreme Court. There is this difference pointed out, as shown by the finding of facts in the other case: Upon the three adjoining lots in that case docks had been built and extended out into the river, and the court also found in that ease that the purchase price was so great that it would be presumed that the purchaser supposed he was acquiring with the main land the riparian rights and .the right to the land under the water of the river. The briefs of counsel, however, which were filed in the Supreme Court, did not discuss this, but the case was presented to the court upon the general principles of law affecting and controlling the rights of the owners of lands bounding and abutting upon a navigable stream, and authorities along that line were cited by counsel at considerable length upon both sides, and the ease was affirmed without report.

These two considerations referred to are mentioned in the opinion delivered by Judge King in the circuit court in Head v. Chesbrough, supra, but the syllabus of the case bases the decision upon the general principles of law, and is as follows:

‘ ‘ Conveyance of platted lots which are situated upon the banks of a navigable stream, no part of the bed of the stream being platted, includes all the riparian rights of the grantor in front of said lots to the center of the stream, although such stream is not mentioned in the conveyance. To exclude such rights they should be reserved or excepted in the deed.”

And on page 357, Judge King, in rendering the opinion, says:

“We think the law is well settled that when one party conveys land adjoining a navigable river of the state of Ohio, and the land in fact abounds and abuts upon the water which flows in front of the premises, and conveys by a conveyance which does not except or reserve the land in front of the premises, although they may be marked with boundary lines, that the grantee takes to the center of the navigable stream — to the center of the current.”

The two lots involved in that case are shown upon the same plat and adjoin the lots in question here, and the line run by the surveyor at the end of the lot toward the river, or the end abutting upon the river, appears in front of the two lots in the former case as well as in this case, and we think the questions in that case, as decided by the common pleas and circuit courts and by the Supreme Court, are substantially the same as those involved' here.

The decision of Judge Pugsley of the common pleas court in the former case is found in Head v. Chesbrough, 4 N. P., 73, and contains a full discussion of the rights of riparian owners, citing authorities at length and considering them, and the question is discussed by the judge along general lines and the general principles controlling the rights of the owners of riparian lands are stated, and there is no discussion of and no attention is paid to these two points — the price which was given for the land and the fact that there was a dock upon the adjoining lots projecting into the river. The syllabus of that ease states the law as we understand and hold it to be:

“A conveyance of platted lots which are situated upon the bank of a navigable stream, no part of the bed of the stream being platted, includes all the riparian rights of the grantor in front of said lots to the center of the stream, although such stream is not mentioned in the conveyance. To exclude such rights they should be reserved or excepted in the deed.”

Judge King, in delivering the opinion in the circuit court, did not undertake to review the authorities, but they are fully reviewed in Judge Pugsley’s opinion and the decision covers the ground and we cite it as an authority in this case.

C. W. Everett, for plaintiff.

King & Tracey, for defendant.

The decree, therefore, will be for the plaintiff, quieting his title to this property.


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    NEGLIGENCE IN CROSSING A RAILWAY.
    [Circuit Court of Cuyahoga County.]
    Lake Shore & Michigan Southern Railway Co. v. Katherine Landphair, Administratrix.
    Decided, February 10, 1902.

      Negligence — Failure to Take Precautions at Railway Grossing — Will Defeat Recovery — Notwithstanding Negligent Running of the Train.

    There is no liability on the part of a railway company for the death of one who attempted in broad daylight, without looking for the approach of a train, to cross its tracks at a point where a train could be seen a mile distant, there being nothing to show the accident could have been avoided by the trainmen after discovering the peril of the decedent. The fact that the train was running at an unlawful rate of speed, or that there was a failure to give a warning signal by whistle or bell is without - avail in such a case.
    Marvin, J.; Caldwell, J., and Hale, J., concur.
    Heard on error.
   The plaintiff in error owns a railroad which passes through the city of Cleveland in Cuyahoga county, running east and west. Near the west line of the city and within the city limits, there is a place of resort called Edgewater Park. The tracks of the railway company run along the south side of this park. In this immediate vicinity there are public streets beginning on the south side of the right of way -of said railway company and extending to the south. One of these streets is known as Ramsey street.

It is claimed on the part of the defendant in error, that immediately north of the north end of Ramsey street a crossing of planks, lying between the rails, was laid, and was in existence on June 27, 1899, extending from the north end of Ramsey street to the north line of the right of way of the railway company, the same being the south line of said Edgewater Park. That this crossing was a general passageway used extensively by the public, to the knowledge and with the consent of the railway company, for going to and from said park; that on the date last named the said Peter Daugherty, while somewhere on the right of way of the railway company at or near this crossing, was struck by an engine of the railway company, drawing a passenger train to the east, at about five o’clock in the afternoon, and was -instantly killed.

The defendant in error, having been appointed administrator of the estate of said Daugherty, brought suit against the railroad company, charging that the death of her decedent was caused by the wrongful act of the plaintiff in error. The cause was tried in the court of common pleas, resulting in a verdict for $500 in favor of the administrator; judgment was entered upon this verdict; a motion for a new trial was filed and overruled, and the present proceeding is prosecuted to reverse said judgment. A bill of exceptions is filed, containing all the evidence introduced upon the trial.

The negligence complained of in the petition of the plaintiff below, is that the train, at the time of this accident, was running at a much higher rate of speed than is allowed under an ordinance of the city of Cleveland; that no warning, either by the ringing of a bell, or the sounding of a whistle, was given as the train approached this crossing; that the train was not stopped, or its speed slackened, after said Dáugherty was in a place of danger; and that no flagman was at this crossing for the purpose of warning people of on-coming trains.

The railway company admits that Daugherty was killed by reason of being struck by its engine; but denies that it was guilty of any negligence in the premises, and avers that the deceased was himself negligent at the time of the accident; and that but for his negligence he would not have been struck by the engine.

It is plainly shown by the evidence that the train at the time of the accident was running at a rate of speed much greater, ( several times greater, than was allowed by the city ordinance.

The jury might well have believed, from the evidence, that the crossing at the north end of Ramsey street was so generally used by the public as that the railway company should be held to have recognized it as a licensed crossing. There was no one employed by the railway company at this crossing to warn people of on-coming trains.

We are not prepared to say that the finding by the jury that the whistle was not sounded or’ the bell not rung in time to have loeen of any avail to one making use of this crossing, though it is extremely doubtful whether, under the evidence, such is a fact, would have been erroneous. We do not undertake to say that a finding by the jury that Daugherty was killed at this crossing would have been erroneous, though that is far from being made clear by the evidence.

If he was struck at this crossing, he was thrown or carried a long distance from it, because his dead body, when the train had passed it, was near the foot of Barrett street, which is about four hundred feet east of Ramsey street.

There is no evidence that would justify a finding that, after Daugherty was in a place of danger such as would indicate that he was likely to be struck by the engine, anything could have been done by the engineer to have saved him.

The evidence is clear, that at the time of the accident it was broad daylight; that there is an unobstructed view of the track for a mile to the west of where this accident happened; and that, if Daugherty had exercised any of that vigilance which is required of one to protect himself when in, or about to go in, a place of danger, he must have seen this on-coming train; there was nothing to prevent him from stepping upon either side of the track. ,

If then, every contention of the defendant in error as to the negligence of the plaintiff in error is found to be true, still the judgment of the court of common pleas must be reversed. To hold otherwise, would be to say that one is not required, when in or about to enter into a place of danger, to exercise that care which our Supreme Court has again and again said he is required to exercise. See Pennsylvania Co. v. Rathgeb, 32 Ohio St., 66; Cleveland, C., C. & I. Ry. Co. v. Elliott, 28 Ohio St., 340, 341; Railroad Co. v. Depew, 40 Ohio St., 121.

Brewer, Cook & McGowan, for plaintiff in error.

Hart, Canfield & Callahan, for defendant in error.

The .judgment of the court of common pleas is reversed, for the evidence clearly shows negligence on the part of the deceased which either caused or directly contributed to the accident.


text:
    FEES — BANKRUPTCY.
    [Circuit Court of Cuyahoga County.]
    John Rodgers & Son v. George Forbes and Jacob Schoen, Receiver.
    Decided, February 10, 1902.

      Compensation and Costs — Allowance of, May be Made — Where by Pro- ' ceedings in Aid of Execution— Possession is Obtained of Assets of a Judgment Debtor — Who Thereafter Coes into Bankruptcy.

    1. The claim of a trustee in bankruptcy is superior to that of a judgment creditor of the bankrupt, who brought into court a fund by proceedings in aid of execution against the bankrupt within four months of his going into bankruptcy.
    2. But the receiver of this fund is entitled to reasonable compensation for his services and expenses in bringing the fund into court, and an order for the payment thereof will be made by the state court before directing that the fund be turned over to the trustee in bankruptcy.
    Marvin, J.; Caldwell, J., and Hale, J., concur.
    Heard on appeal.
   Rodgers & Son had a judgment against George Forbes. Failing to obtain satisfaction of such judgment by execution, they commenced a proceeding on May 6,1901, before one of the judges of the court of common pleas of this county by filing the proper affidavit with such judge, under Section 5475, Revised Statutes, and the judge thereupon appointed Jacob H. Schoen, referee, as authorized by Section 5477, Revised Statutes. ‘ "

The referee, upon the examination of a debtor of the judgment debtor, found and reported to the court that there was in the hands of such debtor of the judgment debtor the sum of $431.45 belonging to such judgment debtor, George Forbes.

Thereupon, on May 9, 1901, the said Jacob EL Schoen was appointed by such judge of the court of common pleas a receiver to take possession of the sum. so found due of the said George Forbes, and this the receiver did.

On May 15, 1901, the said George Forbes filed his petition in bankruptcy in the District Court of the United States for the Northern District of Ohio, and on May 16, 1901, he was duly adjudged a bankrupt by said court; and on May 27, 1901, H. L. Snyder was duly elected trustee in bankruptcy of the estate of the said George Forbes, and on May 30, 1901, he duly qualified as such trustee.

On June 11, 1901, the said receiver made his report to the court of common pleas of this county, showing the receipt by him of said $431.54, and claiming to be allowed for his services and expenses the sum of $175.

The trustee in bankruptcy filed exceptions to the report of the receiver, and makes the claim that the entire amount which came to the receiver’s hands shall be paid to him. An order having been made in the court of common pleas, an appeal is taken to this court, and we are now called upon to say what the receiver shall do with this money.

On the part of the plaintiff it is urged that it should be applied, first, to the payment of the costs and expenses in connection with the proceedings in aid of execution, and, next, toward the payment of the plaintiff’s claim.

On the part of the defendant it is said that it is clear that no part of it can be applied to the payment of the plaintiff’s claim, and in support of this we are cited to Section 67f of the bankrupt act of 1898. This sub-section reads:

“That all levies, "judgments, attachments or other liens obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment or other lien shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt, unless the court shall, on due notice, order that the right under such levy, judgment, attachment or other lien shall be preserved for the benefit of the estate; and thereupon the same may pass to and shall be preserved by the trustee for the benefit of the estate as aforesaid. ’ ’

It seems clear from the language of the statute that the plaintiffs can not hold this fund, or have any part of it applied upon the payment of their claim by reason of any lien created by the proceedings in aid of execution if any such lien ever was created. But, on the part of the plaintiffs, it is said that no lien ever was created in favor of the plaintiffs, but that without any such lien, the plaintiffs should be entitled to have paid the whole or some part of this by reason of their diligence in discovering this fund.

It would surely seem an anomaly to hold that if these plaintiffs had a lien by virtue of the proceedings in aid of execution they could not have any part of this money paid to them by the receiver; and yet to hold that having no lien they may have it so paid. Surely the rights of one with a lien upon the fund are not inferior to those of one having no lien upon it. And we hold that no part of the fund is to be paid to the plaintiffs.

We come, then, to consider the question of whether the receiver may retain out of the fund his proper compensation and expenses. He was acting as the officer of the court in his capacity as referee and also in his capacity as receiver. The funds are now in his hands as such officer of the court. The trustee in bankruptcy can take this money from him only by an order of this court.

It would seem the proper province of this court to pay its officer for his -services and expenses, and we find authority for holding that it should so pay in Lesser Brothers, 5 Am. Bank Rep., 320. In the decision by the circuit court of appeals of the second circuit,, the opinion being delivered by Judge Shipman, the last clause of the syllabus reads:

“Where certain creditors have by much diligence and litigation obtained a fund for the benefit of all the other creditors, and they are stayed from proceeding to enforce their judgment against such fund, it is proper to permit them to become parties in the proceedings by the trustee in bankruptcy instituted in the state court to obtain the money in the hands of the receivers belonging to the bankrupt’s estate, and for such creditors to make an application for an allowance to them from said fund as a reasonable compensation for their costs, expenses and disbursements in the litigation in the state court, and obtain such allowance, if in the opinion of the state court it is proper and within its power to grant.”

In this case, one Metcalf, a creditor of the bankrupt, had brought an action in the nature of a creditor’s bill against Lesser Brothers, who afterward were adjudged bankrupts. By this proceeding a large amount of property belonging to the bankrupts was found to have been transferred by them to others in fraud of the rights of their creditors; and this property was táken possession of by a receiver appointed in the state court. By the adjudication in bankruptcy, it was held that Metcalf was not entitled to receive anything in payment of his claim out of these assets, but was remitted to the proof of his claim in bankruptcy as a creditor like the other creditors.

On page 325, the court, in its opinion, uses this language:

“Inasmuch as the fund was in the custody of the state court and had been in such custody prior to the institution of the proceedings in bankruptcy, it was proper to make no order in regard to the action of that court, but to direct the trustee in bankruptcy to apply to it for its order upon the receiver to make payment to him.” .

Here, in the present ease, the trustee is here asking for such order of this court.

The court, in the case last quoted from, then holds that the trustee in bankruptcy, coming into the state court, should “present to that court such considerations and facts as may bear upon an application for an allowance to them (the plaintiffs) from the fund, in the nature of a reasonable compensation for their costs, expenses and disbursements in the litigation which resulted in the defeating of the fraudulent attempts of the bankrupts in wresting the funds from the hands of the receivers applied for in fraud of creditors and in its preservation for their, actual benefit.”

W. E. Slabaugh, for plaintiffs.

And the court further says, on page 326:

“The said appellants (Metcalf Bros. & Co.) are allowed to appear in said court, make an application for an allowance to them from said fund, at a reasonable compensation for their costs, expenses and disbursements in the litigation in the state court, and obtain such allowance if in the opinion of the state court it is proper and within its power to grant.”

No question is made here that the claim made by the receiver of an allowance of $175 is unreasonable, and the order of the court will be that such receiver out of the funds in his hands, pay—

First. The costs of this proceeding.

Second. That after retaining for expenses of himself and attorneys the sum of $175, he pay the balance of said sum of $431.54 to the trustee in bankruptcy, H. L. Snyder.


text:
    NEGLIGENCE IN LEAVING AN UNPROTECTED EXCAVATION IN THE STREET.
    [Circuit Court of Lucas County.]
    City of Toledo v. Michael Nitz.

    Decided, February 1, 1902.

      Negligence — On the Part of a Municipality — In Ordering Public Scales Removed and Leaving the Excavation Unprotected — Injury to One Who Fell therein — Verdict Exceeding Earning Capacity Sustained —Charge of the Court — Meaning of the Words “His Own Testimony.”

    1. Where the platform of a set of wagon scales, situated in the middle of a market space, is used by vehicles and pedestrians as a part of the street with knowledge of t.he city for many years, such platform will be regarded as a part of the street, and those passing over it are entitled to the protection due to one using any public street.
    2. An order by the city for the removal of the scales platform is notice to the city of the unprotected excavation thereby created in the street, and liability arises in favor of a pedestrian who is injured by falling into the excavation while attempting to walk over the platform at night without notice of its removal.
    3. A verdict assessing damages for such an injury in excess of the earning power of the plaintiff, figured from his expectancy of life, is not excessive where it appears that his health was wrecked by the injury, and he was incapacitated from ever again following his usual vocation, and suffers pain and inconvenience continually.
    4. It is not error in the charge to the jury to read in such a case from the statute which prescribes that a municipal corporation shall keep its streets open, in repair and free from nuisance; nor to say to the jury with reference to the protection of the public from , injury while using the streets that “what does not protect is not sufficient;” nor to say to the jury that they can not assume the city was negligent, or that the plaintiff was negligent — “the same rule applies to both * * * but the burden is on the one who brings the suit; not to charge that contributory negligence to defeat recovery must be negligence which constitutes a proximate cause of the injury complained of.
    5. The expression “his own testimony” means, when used with reference to the plaintiff in the charge to the jury, all testimony offered on behalf of the plaintiff, and not merely the testimony given by the plaintiff himself.
    Hull, J.; Haynes, J., and Parker, J., concur.
    Heard on error.

      Settled and dismissed in the Supreme Court. For a prior holding in . same case, see 22 C. C., 454.

   This case was before this court at a former term, Nitz then being the plaintiff in error. The ease is reported in 22 C. C., 454. As the facts were quite fully stated in that opinion, it will not be necessary to go into them very fully now. The case was reversed at that time, chiefly on the ground of error in the charge of the court, the judgment below having been in favor of the city. The case was afterwards tried in the court of common pleas, and a verdict returned in favor of Nitz and judgment entered upon that verdict. It is to reverse this judgment that the city of Toledo filed a petition in error in this court.

Nitz brought his action to recover for personal injuries, caused, as he claimed, by the negligence of the city of Toledo, and recovered a verdict for $6,350. A judgment was entered in his favor for that amount. The plaintiff’s injury was sustained at what is known as the “Market Space,” in Superior street, in the city of Toledo, lying between Monroe and Washington streets. There is here a platform some twenty-two feet wide, in the middle of the street, and which runs from Monroe to Washington street, except a space in the middle about fifteen feet wide, where there was a wagon scale that was used for market purposes. The platform, which was used for market purposes, was entirely open at the sides and at the ends, so that people might walk on it at any time, either day or night, if 'they saw fit. The privilege of the use of the scales was let by the city to private individuals. On the day of Nitz’ injury the scales had been taken out by order of the city, a new lease having been made to another party than the one who had been renting and conducting the scales theretofore. This left an excavation from four to five feet deep; that is, from four to five feet below the level of the street, and from seven to eight feet below the level of the market space platform. Early in the evening Nitz was walking along, either on Superior street proper, west of the market space platform, as he claims, or upon the platform itself, as some of the witnesses testified he was doing, and having no knowledge that the scales had been removed, as he claims, he fell into this excavation, and three of his ribs were broken, according to the testimony of a physician who attended him, and others, including his own testimony. In consequence of his injuries he was confined to his house for many months. The testimony of his own physician shows that his injury produced pneumonia, which lasted for several weeks, and perhaps some months, and that he has since that time been unable to perform manual labor, in fact, not able to leave his house but very little of the time.

The claims of the plaintiff in error are that the verdict is against the weight of the evidence, and that the court erred in its charge to the jury.

'When the case was here before, we held that the fact that the city itself ordered these scales to be moved, and that such removal of the scales caused the excavation, was in fact an order by the city for the excavation to be made,- and that it was not necessary to show any further notice to the city or its authorities; that the city having ordered the excavation to be made, that would be notice and knowledge. And we held then, as we do now, that no guards had been placed about this excavation by the city, either by way of rails or lights. There is some testimony tending to show that there was some earth on the west side of the opening; some rubbish, perhaps, that had been thrown out when the scales were removed. The testimony of the plaintiff is that there was very little of this, not enough to attract attention. Whatever was there, it was because it happened to have been thrown out of this excavation, but was not put there by the city for the purpose of notifying any one that the scales had been removed or that there was an excavation into which one might fall.

Nitz claims that he was walking along Superior street, just west of the market platform, and that when he came to the opening in the platform where the scales had been, he walked across Superior street at that point, with the intention of walking through on the scales to the other side of - Superior street, and then going east through an alley to St. Clair street. The evidence shows that there was a sidewalk extending from the west side of Superior street up to the scale opening, and that on the east side of the platform was a building occupied as a city prison and police court, and alongside that was the alley; and the evidence shows that the scales located in this place were and had been used for a very long period of time as a street, people passing back and forth, both on foot and in vehicles day and night. We think the jury were warranted in finding that the scales and platform were to be regarded as a street, and that one using them was entitled to that protection which the law gives him in using a street of a municipal corporation.

Upon this trial of the case no evidence was offered to show that the market platform itself, extending form Monroe to Washington streets, was used as a part of the street by people generally in traveling back and forth. That brings us to the first claim of counsel for plaintiff in error, to-wit, that the weight of the evidence is that Nitz was walking on the platform and fell off that into the scale excavation, and was not walking on the street, as he claims; and it is claimed that if he was walking on the platform, there being no evidence that that was or had been used as a street, and fell from that into this excavation, that he could not recover. There was nothing said to the jury in the charge of the court upon this question. No special attention seems to have been given to it by counsel on either side at the trial, and no request was made along that line.

It is claimed that Nitz is within the rule laid down by the Supreme Court in certain cases, that a traveler can not recover against a municipal corporation where he is out of the limits of the highway, and has gone onto other property of the city for purposes of his own and is thus injured, as in Kelley v. Columbus, 41 Ohio St., 263, where a person was walking along the street, and left the highway and went onto a vacant piece of property near the city hall for purposes of his own, and was injured by reason of the condition of this lot upon which he walked. The Supreme Court held that he could not complain.

Along this line is also Dayton v. Taylor, 62 Ohio St., 11, where a person walked across the street inside the curb in a diagonal direction, and slipped into a catch basin, and it was held that in leaving the sidewalk he assumed the risks which lay in the path which he thus chose. In Kelly v. Columbus, supra, the traveler went outside the street entirely, upon a piece of ground that was not used for street purposes; in Dayton v. Taylor, supra, the traveler walked across the street in a manner not contemplated and was injured.

It is claimed that Nitz is within the principle of these two cases, and that, if he was walking upon the market platform, there being no evidence that that was used as a street, and fell from that into the excavation, he can not recover.

Some three or four witnesses, perhaps, testified that he was walking on the platform. Nitz himself claimed that he was walking on the street, where he fell into the? excavation.

In our judgment this case may be distinguished from Kelley v. Columbus, and Dayton v. Taylor, supra. This is not a case where the person departing from the street, if this would be a departing, was injured on account of any defect in the ground or in the place to which he had gone. There was no defect in the market house platform that caused Nitz’ injury. If the market platform was not a part of the street, and if Nitz had no right to go there, as is claimed, and he went upon it at his own risk, and on account of a board being out of that, or a hole in it, in some way he had fallen down and been hurt, then the case might be within the rule laid down in the above decision; but if, as is claimed by the city, he went upon the platform and walked over that in safety and sustained no injury until he fell into the excavation caused by the removal of the scales, then we have another question.

We find the testimony is practically uncontradicted that the platform scales were and for a long time had been used as a public street, and one walking thereon would therefore be entitled to the protection one is entitled to in using any public street. So that if the contention of the plaintiff in error be true, that when Nitz went upon the market platform he was departing from the street, still, when he undertook to step.upon the scales, or the place where the scales had been, and was injured, the jury were warranted in finding that he was undertaking to walk into and upon a street.

We know of no rule of law and of no decision that holds that under such circumstances he would be deprived of a right to recover. One walking along the street may depart from the highway and walk into a vacant lot or upon city property for some purpose, away from the street, and come back to the street by a different line, and again enter upon it, and if he is not injured when outside the street, but when he comes back to the street he steps into ° a hole which has been left there through negligence, and is injured, he is not barred of the right to recover. A man has a right to step upon the sidewalk at any point that he chooses, and if he exercises ordinary care, he will not be precluded from recovering because he departed from the street, and was going back to it and upon it. So in this ease, if the plaintiff walked upon the platform, and if that was not a part of the street, as the city claims, when he undertook to go where the scale platform had been, and to put his feet upon that, he was entitled to protection, for the scale platform had been used as a public street for many years, and was in fact part of the street.

We therefore hold that whether the market house platform was a street or a part of a street or not, that of itself would not deprive Nitz of the right to recover on. account of walking thereon. Although there is no positive evidence in the case, the circumstantial evidence, the surroundings, as disclosed by the record, indicate very strongly that this platform was in fact used as a part of the street, and that it was as much a part of the street as the two driveways on either side of it, which were used for vehicles. There were steps at each end of it for people to go up and down; it was entirely open at the ends and sides, and there were steps in the middle for people to go upon the scales. The whole place taken together, the platform as well as the driveways, is properly denominated “Market Space,” although all was in fact apparently a part of Superior street. But considering this question in the way in which counsel for the city asks us to view it, that this platform was not in fact a part of the street, we think for the reasons given that this, if true, would not deprive Nitz of the right to recover.

There are many objections taken to the charge of the court. The court read to the jury Section 2640, Revised Statutes, which prescribes the duties of a municipal corporation in regard to streets; that it shall keep them open, in repair, and free from nuisance,' etc. It is objected that this was error, for the reason that it did not distinguish between streets traveled by the public and public grounds and places like the market house, where people were invited only for certain purposes and at certain times of the day, and that it was an abstract proposition of law not applicable to the case.

"Wle think that there was no error in the court reading this statute to the jury. It sets forth the duty prescribed by the Legislature, a duty which was imposed upon municipal corporations by the common law before this statute was passed, giving statutory construction to the common law; and the judge by reading that statute did not intend to say to the jury, and the jury could not have understood, that he meant to refer to any place that was not in fact a street; but the court intended to direct their attention to the place where Nitz claimed he was hurt, and where the practically nncontradieted evidence shows that a street did exist, and had existed for a long period of time.

Objection is taken to the charge of the court as to the duty of the city to protect the public from injury when using streets, and it is objected that what the court said was too emphatic, in stating to the jury that “what does not protect is not sufficient.”

The record does not show that anything had been done by the city to protect or guard this excavation. At the most there was nothing there but a comparatively small pile of dirt and a lot of rubbish, which a footman might see or might not. No care had been taken and nothing had been done to guard or protect this excavation. In view of this, we find no error in this instruction of the court.

This language in the charge is objected to, and argued at some length, and insisted upon as error:

“The same "rule applies to both. The fact must be shown by the evidence in the case, and the burden is on the man who brings the suit in the first place to establish that the city has been negligent; that it has omitted some duty it owed to him. The burden is upon him to prove that to your satisfaction.”

The principal thing objected to is the words “to your satisfaction,” and it is .urged that that is equivalent to telling the jury that they must be satisfied beyond a reasonable doubt. A decision by Judge Laubie, Russell v. Russell, 6 C. C., 294, is cited. If we examine this part of the charge, and read it in connection with what the court said just preceding it, we find that that language only applies to the duty imposed upon the plaintiff below, and does not apply to the city. The paragraph begins:

“When a ease starts in this court, it starts without any assumption of negligence on the part of the city or the plaintiff himself. The jury are obliged to decide the case on evidence that is brought here. You can not assume that the city has been negligent, neither can you assume that the man himself has been negligent. The same rule applies to both. The fact must be shown by the evidence in the case, and the burden is on the man who brings this suit in the first place to establish that the city had been negligent; that it has omitted some duty it owed to him. The burden is upon him to prove that to your satisfaction.”

So that if there was any error in the use of this language, it was against the plaintiff below, and not in his favor. Counsel argue that the expression “the same rule applies to both” should be read in connection with the expression “The burden is upon him to prove that to your satisfaction.” But the statement “the same rule applies to both” relates to what went before, and not to what came after. So that the city surely can not complain of this charge of the court. Personally, I have never been fully satisfied that it was not proper for a court to say to a jury that they must be “satisfied” of the plaintiff’s claims; but this decision of Judge Laubie’s is very full and very able; but all that is necessary to say in regard to this portion of the charge, is that the rule as laid down was applied to Nitz and not to the éity, and therefore the city was not prejudiced, in any event.

It is objected further that the court said to the jury that:

“Pie (the plaintiff) is under no obligation to take upon himself the burden of proving that he is free from negligence himself, except in the event of his own testimony showing that he has been negligent. If he discloses by his own evidence that he has been negligent, then it is his duty to relieve himself of that negligence and excuse himself from the negligence that is shown in the case.”

It is argued that the expression “his own testimony” limits it to the testimony of the plaintiff alone, and not the testimony of the plaintiff and his witnesses. We do not think that such a restricted construction as that should be given to this language, but that the court meant to say to the jury by using the expression “his own testimony,” not only his own individual testimony, but the testimony of the witnesses called by him. In Robison v. Gary, 28 Ohio St., 241, this language was used, and is cited by counsel in his brief:

“The evidence of plaintiff as well as of defendant is to be considered in determining the question of contributory negligence, and a charge seeming to confine the jury to defendant’s evidence is erroneous.”

The Supreme Court use this expression with reference to the testimony of the plaintiff and his witnesses, and not with reference to the plaintiff alone, as it is urged the jury would understand it. Some other expression in addressing a jury might be better, but we do not find it error to use this language.

What the court said to the jury upon the subject of contributory negligence and the rule upon that question is objected to. The court said:

‘ ‘ On the other hand, if the city claims, as they do claim in this case, that the man was injured through his own negligence, the burden is on the city, in the absence of himself making any such showing in his evidence, to establish that he was guilty of contributory negligence in the case; and by contributory negligence is meant precisely the same character of negligence that on the other side makes the city liable. It must be negligence that constitutes a proximate cause of the injury, one of the causes, one of the proximate causes, of the injury. If the plaintiff is guilty of such contributory negligence as that he can not recover. The burden of showing that he is, is on the city.”

It is urged by counsel that this was in effect telling the jury that the plaintiff could recover unless it appeared from the testimony that his negligence caused the injury; that they should have been instructed, that if his negligence in any degree “contributed” to his injury, he could not recover. Counsel in their brief say: “To establish the contributory negligence of plaintiff the city is required by this instruction to show that ‘he was injured by his own negligence,’ that ‘his negligence constituted a proximate cause of the injury — one of the causes, one of the proximate causes,’ that his negligence ‘proximately caused the injury.’ ”

Examining the language of this instruction, however, we find that the court did not say to the jury that it was necessary to show that this plaintiff’s own negligence was the sole cause of the injury, but taking the instruction altogether, it means that if his own negligence was one of the causes of the injury, if combined with other causes it caused his injury, he can not recover. The court say, “It must be negligence that constitutes a proximate cause of the injury, one of the causes, one of the proximate causes of the injury.” Negligence which contributes directly to the plaintiff’s injury is one of the proximate causes of the injury, and we are not sure but the jury would understand this language better and more readily than the expression “negligence which contributes directly to the injury.”

And we find that this or similar language has been used by the Supreme Court of this state, in the ease of Schweinfurth v. Railway Co., 60 Ohio St., 215. The court say in the syllabus:

“In an action for negligence, it is not error to refuse an instruction that the defendant can not be held liable, though guilty of the negligence charged, if the negligence of the person injured contributed in any degree, or in any way, to the injury of which he complains. Unless the negligence of the person injured contributed directly to, or was a proximate cause of the injury, it does not preclude a recovery.”

On page 222 of the opinion the court cite with approval from 2 Thomp. on Neg., page 1151, as follows:

“The negligence of the plaintiff, in order to bar a recovery, must have been a proximate cause of the injury complained of. If the negligence of the plaintiff was only remotely connected with the injury, the plaintiff may recover damages, if notwithstanding such remote negligence of the plaintiff the defendant might have avoided the injury by the exercise of ordinary care.
“But the negligence of the plaintiff, in order to bar his recovery, must have béen so far an efficient cause of the injury that unless he had been negligent, the injury would not have happened ; or, as the rule is often expressed, although there may have been negligence on the part of the plaintiff, yet unless he could by the exercise of ordinary care have avoided the consequences of the defendant’s negligence, he is entitled to recover.”

So that we find that this expression that “his own negligence must have been one of the causes of the injury,” or “a proximate cause of the injury,” is approved by the Supreme Court; and the court below was substantially following the language of this opinion. We find no error in this.

The further ground on which we are asked to set aside the judgment and reverse the case is, that the damages are excessive. The verdict was for $6,350. This is, to be sure, a large amount of money. The plaintiff at the time of his injury was about fifty-six years of age. He was earning then $1.25 a day, and worked in a lumber yard. Tbe jury were warranted in finding from tbe evidence that he would never be able to perform such manual labor again as he had been in the habit of performing. The evidence shows that for many weeks and months he was confined to his bed, and that he has been unable to perform any work since he was injured. The testimony of his own physician showed that his lungs were lacerated by the broken pieces of ribs, so that his injury was followed by pneumonia in a very short time — some two or three days — and that he was very ill with that for a long time, and that his lungs are permanently injured by the pneumonia. Both have solidified to some extent, the left one to a considerable extent, and the right one not so much; and this, according to the testimony of his physicians, will always continue. On account of it he is unable to draw a full breath, and suffers inconvenience and pain nearly all the time. Three physicians called by the city testified that in their judgment he had tuberculosis; two of them testified that they had examined his sputum, and found tubercular bacilli in the sputum. There is no evidence that he had had tuberculosis before he sustained this injury, or had shown any tendency in that direction.

The court charged the jury fully upon the question as to his right to recover in case he had had tuberculosis before his injury, or in ease there were seeds of the disease in his system that had been aggravated by his injury.

We are of the opinion that his present condition is due to his injuries. The weight of the testimony is that so far as manual labor is concerned, his injury has destroyed his usefulness; that he will suffer from this injury the rest of his life; and that the condition of his lungs is due to the injury which he then sustained. It is true that his earning capacity is not very large. His expectancy of life, according to the tables, at the time of his injury, was about sixteen years. If he were kept constantly employed, he would earn perhaps $250 or $300 a year, which would not amount to as much as this verdict; but in cases of personal injury a party is entitled to recover for more than the mere loss of earning capacity. Where death does not ensue, and the party himself brings his action, he is entitled to recover not only for the loss of earning capacity which he has, sustained, but to recover compensation for all other injuries and losses that he has sustained on account of the personal injury inflicted; his peace and happiness in life, his health, are something to him — are worth a great deal, perhaps more, in many cases, than earning capacity. The law is that the-jury may consider all those things in determining how much, in such a case, the plaintiff is entitled to; they may consider the extent of his injury and its permanence; may consider the pain which he has already endured and which he is likely to endure in the future, iñ connection with his loss of earning capacity. We can not say, taking all these things into consideration, that this verdict is the result of prejudice or passion. If the claims of Nitz are true, if the testimony of his physicians is to be believed, by this injury his health and physical enjoyment have been, to a great extent, destroyed.

M. R. Brailey and John P. Manton, for plaintiff in error.

E. L. Twing and A. G. Bowersox, for defendant in error.

It is hard to put in dollars and cents what ought to be allowed a man who has thus suffered; whose lungs are in such a condition that a full breath, perhaps, can never be drawn by him without pain; who may for the greater part of his life be confined to his house; who from being a Strong, healthy man fifty-six years of age, who had never been sick before but once in his life, has become a wreck. Within certain limits the law submits that question to the jury, and under .proper instructions from the court they apply to it their common sense, and reason and judgment, and give what in their judgment is a fair compensation for the injury sustained.

The charge on the question of damages can not be complained of, and after a careful examination of the testimony on this question, we hold that we can not disturb the verdict upon the ground that the damages are excessive. The verdict may be larger than some other jury would have given; it may be larger than the court would have given; but the injuries which Nitz sustained were of a very serious character, and that they are permanent there is no question.

We find no error in the record, and for that reason the judgment of the court of common pleas will be affirmed.


text:
    ASSUMPTION OF RISK.
    [Circuit Court of Cuyahoga County.]
    Mary Johns, Administratrix, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co.

    Decided, February 1, 1902.

      Master and Servant — Assumed Risk by Railway Employe — Who Knows of the Failure of the Company to Follow the Statutory Provision— Requiring the Blocking of Guard-rails, Switches, etc. — Negligence —Section 3365-18.
    There can be no recovery for the wrongful death of a railway employe, who, knowing of the failure of the company to comply with the statutory requirements as to the blocking of guardrails, switches, frogs, etc., met his death by catching his foot in an unblocked guard-rail and being run down before he could free himself.
    Marvin, J.; Caldwell, J., and Hale, J., concur.

      Affirmed by the Supreme Court without report, September 29, 1903.

   This is a proceeding in error. The case below was brought by the plaintiff in error to recover for the wrongful death óf John Johns, who was an employe of the railroad company, and who on April 27, 1897, came to his death by being run over by a car of the railroad company. At the conclusion of the plaintiff’s evidence, motion was made to direct a verdict for the defendant, which was sustained, and judgment entered upon such verdict. It is sought here to reverse that judgment. ■

The railroad company, it is said, was prosecuting its business at the place where the accident occurred, in violation of the statute then in force, Section 3365-18, Bates’ Revised Statutes, which reads:

‘ ‘ That every railroad corporation operating a railroad or part of a railroad in this state, shall on or before the first day of June, 1889, adjust, fill or block, all angles in frogs, switches and crossings on their roads, in all yards, divisional and terminal stations where trains are made up, with the best known sheet steel spring guard or wrought-iron appliances approved by the commissioner of railroads and telegraphs.”

And then provides a penalty for failing to comply with the provisions of the statute.

It is conceded that at the point where this accident occurred there was a guard rail and it was not blocked. It is said by the defendant in error that it was on a bridge; as a matter of fact, it was on a trestle; but, without determining whether such trestle was a bridge or not, we are able to dispose of this case.

It is urged that if the railroad company was carrying on its business in violation of this statute and the injury resulted from the fact of the man Johns being caught between the guard rail and the other rail, then, in no event, could the railroad company, the defendant, fail to be held responsible; for, it is said, the violation of the statute is such negligence that the employe can not be held to have assumed the risk of such violation, even though he knew all about it.

In Valley Ry. Co. v. Keegan, 40 Bull., 167, Judge Taft, of the federal circuit court, delivers an elaborate opinion, holding that one violating a statute in the prosecution of its business, can not avail himself of his employe assuming the risk that comes from the violation of that statute. Judge Taft makes an argument which, to me, is very satisfactory, but is not so to our Supreme Court, which holds directly opposite.

In Krause v. Morgan, 53 Ohio St., 26, the second clause of the syllabus reads:

“One who voluntarily assumes a risk thereby waives the pro- - visions of a statute made for his protection. And where the statute does not otherwise provide, the rule requiring a plaintiff in an action for negligence to be free from fault contributing to his injury, is the- same, whether the action is brought under a statute or at- common law. ’ ’

The opinion in this case, by Judge Spear, I will not stop to read. It sustains this proposition: That, although the railroad company is in violation of this statute, still one who is in the employ of the company, and knows all about such violation, must be held to have assumed the risk. However hard that doctrine may seem, it seems to be the doctrine of the Supreme Court of Ohio.

John O. Winship, for plaintiff in error.

E. A. Foote, for defendant in error.

It is said, however, that if he did assume the risk and his foot was.- caught, still the evidence was such that it should have been submitted to the jury as to whether the railroad company was negligent.

The examination of the evidence showsi to us that there was no negligence on the part of the railroad company, unless the negligence was in the not blocking at that point.

The judgment of the lower court is affirmed.