author: Meals, J.

text:
    REGULATIONS AS TO WHAT SHALL CONSTITUTE A DAY’S LABOR. ON PUBLIC WORKS.
    Court of Appeals for Cuyahoga County.
    Otto Stange v. City of Cleveland.
    Decided, November 15, 1915.

      Municipal Corporations — Validity of an Ordinance by a Charter City-Limiting a Day’s Labor on Public Work — Does Not Impair Contracts, or Conflict with the State Statute on the Same Subject.

    A contract entered into by the charter city of Cleveland is subject to the provisions of an ordinance, subsequently adopted, limiting a day’s labor on all public work to eight hours; and neither the defense of impairment of the obligation of contracts, or that the ordinance is in conflict with the state statute on the same subject, is available to a . contractor prosecuted for violation of said ordinance.

      Squire, Sanders & Dempsey, for plaintiff in error.

      John N. Stockwell, City Solicitor, and Arthur F. Young, Assistant City Solicitor, contra.
   Meals, J.

The plaintiff in error was convicted in the municipal court of violating an ordinance of the city of Cleveland providing for an eight hour day on public work. The judgment of the municipal court was affirmed by the court of common pleas. Error is prosecuted to the latter judgment.

The affidavit filed in the municipal court against the plaintiff in error charges the latter as follows: That on December 1,1914, Otto Stange then and there being the superintendent and person in charge and control of a certain plant known and designated as “Casey & Company,” at which said plant work of a public nature was then being conducted, to-wit, work on the installation of. a water filtration plant for the city of Cleveland, a municipal corporation, unlawfully did then and there permit the workmen in his employ and under his control at said place as aforesaid to labor more than eight hours per day; that said labor so performed as aforesaid not being then necessary as an extraordinary emergency and said laborers so mentioned as aforesaid not then and there being policemen or firemen.

To this affidavit a demurrer was interposed on the ground that it did not state facts sufficient to constitute an offense against the laws of the state of Ohio, which demurrer was overruled.

The principal question presented to us relates to the action of the court in overruling the defendant’s demurrer. Other questions are made by the record, but they are of secondary importance.

It is contended by the plaintiff in-error that the ordinance for the violation of which he was convicted, is void.

Section 37, Article II of the Constitution of Ohio, as amended in 1912, provides:

“Except in cases of extraordinary emergencies, not to exceed eight hours shall constitute a day’s work, and not to exceed forty-eight hours a week’s work, for workmen engaged on any public work carried on or aided by the state, or any political subdivision thereof, whether done by contract, or otherwise.”

It will be observed that no penalty is provided for the violation of this section. Therefore, to enforce its mandate, an act was passed by the General Assembly on April 13, 1913, entitled, “An act to provide for an eight-hour day on public work in the state, or any political subdivision thereof, or by contractors or subcontractors on behalf of the state or any political subdivision thereof, and penalties for violation of same. ’ ’ This act provides as folloivs:

“Section 1. Except in eases of extraordinary emergency, not to exceed eight hours shall constitute a day’s work and not to exceed forty-eight hours a week’s work, for workmen engaged on any public work carried on or aided by the state, or any political subdivision thereof, whether done by contract or otherwise; and.it shall be unlawful for any person, corporation or association, whose duty it shall be to employ or to direct and control the services of such woi’kmen to require or permit any of them to labor more than eight hours in any calendar day ór more than forty-eight' hours in any week, except in cases of extraordinary emergency. This section- shall not be -construed to.'inelude policemen' or' firemen.
“Section 2. Any person who shal] violate any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction be fined not to exceed five hundred dollars or be imprisoned not more than six months or both:
“Section 3. This act shall be in force and applicable to all contracts let on and after July 1, 1915.” ■

Section 3, Article XVIII of the Constitution, as amended in 1912, provides:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws.”

Section 7, Article XVIII of the Constitution reads as follows:

■“Any municipality may frame, adopt or amend a charter for its 'governmént, and may, subject to the provisions of' Section 3 of this article, exercise thereunder all powers of local self-government. ”

The court will take judicial notice that on July 1, 1913; in pursuance of the authority given by the latter section, the city of Cleveland, by a vote of its people, adopted a charter for its government. Section 196 of this charter provides as follows:

“Hours of Labor. Except in case of extraordinary emergency, not to exceed eight hours shall constitute a day’s work, and not to exceed forty-eight hours a week’s work for workmen engaged in any public work carried on or aided by the municipality, whether done by contract or otherwise. The council shall by ordinance provide for enforcement of the provisions of this section.”

As in the ease of the constitutional provision on the same subject, no penalty is provided in the charter for the violation of this section. Therefore, to enforce compliance with Section 196 of the charter, the city of Cleveland, on October 13, 1911, passed the following ordinance:

“Section 1. Be it ordained by the council of the city of Cleveland, state of Ohio: That. except in cases of extraordinary emergency not to exceed eight hours shall constitute, a day’s work and not to exceed forty-eight hours a week’s work, for workmen engaged on any public work carried on or aided by the city of Cleveland, whether done by contract or otherwise, and it shall be unlawful for any person, corporation, or association who shall employ or direct and control the services of such workmen to require or permit any of them to labor more than eight hours in any calendar day or more than forty-eight hours in any week except in cases of extraordinary emergency.
“Section 2. Any person who shall violate any of the provisions of this ordinance shall be guilty of a misdemeanor, and upon conviction, be fined in any sum not to exceed $500, or be imprisoned not more than six months, or both.
“Section 3. This ordinance shall take effect and be in force from and after the earliest period allowed bylaw.”

The plaintiff in error was convicted of violating this ordinance.

Counsel for the plaintiff in error contend that the ordinance is in conflict with the general law and therefore void.

Section 3, Article XVIII of the Constitution, as amended in 1912, is a grant of powers from the people of the state to the municipalities of the state. Fitzgerald v. Cleveland, 88 Ohio St., 338; State v. Lynch, 88 Ohio St., 71; State v. Edwards, 90 Ohio St., 305.

Until the adoption of this amendment the municipalities of the state, “in their public capacity, possessed such powers and such only as (were) expressly granted by statute and such as (were) implied as essential to carry into effect those which (were) expressly granted.” Ravenna v. Pennsylvania Co., 45 Ohio St., 118.

By the adoption of this amendment municipalities were empowered “to adopt- and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws.” That the ordinance under consideration is an exercise of local police power seems plain. Is it in conflict with the act of the General Assembly of April 28, 1913, entitled “An act to provide an eight-hour day on public work?” While the operation of this act was suspended until July 1, 1915, we shall assume for the purposes of this case that it embodied the law and the policy of the state on the subject to which it related from and after its passage.

By its terms the act of the General Assembly was applicable to contracts only which were “let on and after July 1, 1915.”

The provisions of the ordinance of the city were substantially similar to those of the state enactment, except that they became applicable to “all workmen' engaged on any public work” from and after November 22, 1914. Thus the state denounced and penalized the act of employing workmen on public work for a longer period than eight hours in any one day or forty-eight hours in any one week, after July 1, 1915, while the city provided a penalty for the commission of a similar act prior to July 1, 1915.

But it is claimed that inasmuch as the statute was in effect from and after April 28, 1913, and that the policy of the state was declared therein, the ordinance penalizing such act committed prior to July 1, 1915, was in conflict with the general law and void.

The fallacy of this argument seems apparent. The case is not similar, as argued by counsel, to one wherein the Congress of the United States, in the exercise of its exclusive power to legislate upon a subject, “manifests its purpose to call that power into effect and at once remove that subject from the sphere of state action.” Here the power of the state is not exclusive. It is concurrent; the municipality being granted like power by the Constitution “to adopt and enforce within its limits local police, sanitary and other similar regulations,” subject only to the limitation that such regulations shall not be in conflict with state law.

Municipal police regulations, therefore, are valid unless inconsistent with state law; for it is only when they come in conflict with each other that the ordinance must yield to the paramount law. “Indeed,” said Judge Cooley in his work on Constitutional Limitations, page 279, “an act may be a penal offense under the laws of the state and further penalties, under proper legislative authority, be imposed for its commission by municipal by-laws, and the enforcement of one would not preclude the enforcement of the other.”

An ordinance or municipal by-law and a state law are not necessarily in conflict merely because they relate to the same subject. If they are consistent both may stand and the penalties- imposed by both may be enforced. This seems to be the uniform holding.

In Rogers v. Jones, 1 Wend. (N. Y.), 237, 261, the court said:

“But it is said that the by-law of a town or corporation is void if the Legislature has regulated the subject by law. If the Legislature has passed a law regulating as to certain things in a city, I apprehend the corporation is not thereby restricted from making further regulations.”

Perhaps it is not necessary to multiply' cases on this subject, but a reference to two or three will probably not be amiss.

In the case of Hong Shen, Ex parte, 98 Cal., 681, the statute of the state of California provided that no opium should be sold until the seller had labelled the opium “poison” and had ascertained that the person purchasing knew its poisonous character and that it was to be used for a legitimate purpose. The city ordinance absolutely prohibited the sale except upon the prescription of a physician, yet the court held there was no conflict in the two regulations. In the opinion in the ease the court said:

“While the regulation is different from that of the state there is no conflict, and therefore it is not in violation of the constitutional provision quoted above. There’are the very best of reasons why cities should be authorized to impose penalties in addition to those inflicted by the laws of the state. Particular acts may be far more injurious, while the temptation to commit them may be much greater in a crowded city than in the state generally. They consequently require more severe measures for prevention. State laws are, of course, for the general good and can not always answer the peculiar wants of particular localities.”

In Re Hoffman, 155 Cal., 114, the statute of the state provided a certain penalty for the adulteration of milk, and that all milk which did not conform to a certain standard should be deemed adulterated. The city of Los Angeles passed an ordinance fixing the standard much higher than that fixed by statute. The statute fixed the standard at 3 per cent, of butter' fat, while the ordinance fixed it at three and five-tenths per cent. It was insisted that the state having thus provided a standard for pure milk, the attempt of the city ordinánce to vary this standard created a conflict in the law, with the necessary result that the ordinance must fall. In that case the court held in the syllabus that:

“The mere fact that the state, in the exercise of the police power, has established certain regulations ;by statute, does not prohibit a municipality from exacting additional requirements so long as there be no conflict between the two, and so long as the requirements of the municipal ordinances are not in themselves pernicious as- being unreasonable and discriminatory both will stand, nor is it any objection to the validity of the, ordinance than its regulatory provisions ■ and the .penalty for its violation differ from those of the state law. ”

In the course of the opinion the court say:

“If the state should pass a law declaring it unlawful to erect a chimney of a height exceeding 150 feet, would any one seriously contend that a city of the state within the earthquake zone might not, by ordinance, in the clear exercise of the police power, for the benefit of its citizens still further restrict the height of chimneys? Such, in principle, is the present-case. The Legislature has in effect declared that it shall be unlawful to sell milk containing less than eleven and five-tenths per cent, solids, three per cent, of which solids shall be milk fat. An ordinance of a municipality requiring of the milk vended therein a larger percentage of solids, if not in its exactions unreasonable, does no violence to the law of the state. The state declaration merely is that milk shall not be sold containing less than eleven and five-tenths per cent, of solids, three per cent, of which shall be milk fat. If the city of Los Angeles had provided that milk might be vended which contained less per cent, of milk. fat than that exacted by the state law, there would be a plain case of conflict. The municipality would be endeavoring to legalize that which the state had declared to be unlawful, but what the city has in fact done has been to impose n ot fewer, but additional qualifications upon the milk- which may be vended to its consumers. The state, in its law, deals with all of its territory and all of its people. The exactions which it prescribes operate (except in municipal affairs) upon the people of the state, urban and rural, but it may often and does often happen that the requirements which the state sees fit to impose may not be adequate to meet the demands of densely populated municipalities so that it becomes proper and even necessary for municipalities to add to state regulations provisions adapted to their special requirements. Such is the nature of the regulation here questioned.”

A similar question arose in Bellingham v. Cissna, 44 Wash., 397. There the charter of the city granted to the city of Belling-ham full power to regulate and control the use of its streets. A state law was passed making it a misdemeanor to drive an automobile in the streets of any city faster than twelve miles an hour. Later the city of Bellingham passed an ordinance fixing the maximum speed at which a machine could be driven, in the same parts of the city, at six miles per hour. It was insisted that the ordinance must fall because in conflict with the state law, but the court decided upon the soundest principles that there was no conflict and that it was competent for the authorities of Bellingham to prescribe a rate of speed less than that which the state law permitted.

The plaintiff in error was a member of the firm of Casey & Company, a partnership, which entered into a contract with the city on April 30, 1914, for the construction of a part of the filtration plant at the Division Street Pumping Station. This was prior to the adoption of the ordinance but subsequent to the adoption of the city charter. It is claimed that the passage of the ordinance impaired the obligation of his contract and that it is inapplicable thereto.

Without regard to the provision of the contract "that the contractor agrees that he will comply with the provisions of the labor laws of the city of Cleveland and the state of Ohio, particularly as outlined in Section 196 of the city charter,” we think it is a sufficient answer to this claim to state that the police power granted by the Constitution to the municipalities of the state is a power which may not be alienated or surrendered by contract or otherwise. Butcher’s Union Slaughter House Co. v. Live-stock Landing Co., Ill U. S., 746.

After a careful review of the record we find no error therein, and the judgment is affirmed.

Grant, J., and Carpenter, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    INJUNCTION AGAINST ENCROACHMENT ON STREET.
    Court of Appeals for Hamilton County.
    Peter Dreidame, a Tax-Payer, v. the City of Cincinnati, Frederick S. Spiegel, Christian R. Holmes, Harry L. Laws and Louis S. Levi, Constituting the Board of Hospital Commissioners of Said City.

    Decided, February 14, 1916.

      Vacation of Part of Street — For Use of Municipal Hospital — Enjoined on Petition of Tax-Payer — On the Ground that No Public Necessity for the Vacation Exists.

    The benefit which would result to the lawn and grounds of a municipal hospital by enclosing therein a part of a public street does not afford a sufficient reason for vacation of the street and consequent injury to the public, and such use of the street will be enjoined upon the petition of a tax-payer.

      Wm. Thorndylce, for plaintiff.

      Walter M. Schoenle, City Solicitor, and Saul Zielonka, Assistant City Solicitor, contra.
    Jones (E. H.), P. J.
    This case comes into this court on appeal from the court of common pleas.

       Motion for an order directing the Court of Appeals to certify its record overruled by the Supreme Court, June 6, 1916.

   The plaintiff, Peter Dreidame, first asked the city solicitor of Cincinnati to bring the action, and upon the refusal of that official brought the action in his own name as a tax-payer. He seeks to enjoin the maintaining of an iron fence on the north curb line of Goodman street in the city of Cincinnati, between Burnét and Eden avenues.'

At the request of the trustees of the new city hospital the portion of Goodman street, between the north line of the street and the north curb line thereof and extending from Burnet avenue to Eden avenue, was vacated by the ordinance of the city council. This was clone at the instance and request of the trustees of said hospital, so as to permit them to enclose the strip so vacated and make it a part of the grounds or lawn of the hospital.

The case was submitted to us upon an agreed statement of facts. The ordinance vacating the portion of the street above described was repealed by the city council after the iron fence was built and the strip vacated was enclosed. ’ Later this action -was brought for injunction.

There was no showing made that there is any pubic necessity for the.vacation of said portion of the street or for the taking of this ground by the hospital authorities. By the ereetion of the fence the street at this point has been considerably narrowed and obstructed.

We are inclined to the opinion that under the circumstances as shown to the court an injury has thus been caused the general public here represented by plaintiff, for which there is no corresponding public necessity or demand for' the ground taken which had been dedicated to1 the general public for street purposes.' A permanent injunction will therefore be allowed against the maintenance of the iron fence and against the encroachment upon, and the obstruction of the street -caused thereby.

•Jones (Oliver B.), J., and Gorman, J., concur.


author: Gorman, J. Jones (Oliver B.), J.,

text:
    CHILD KILLED BY HEAVY BOX FALLING UPON IT.
    Court of Appeals for Hamilton County.
    David H. Scott, Administrator of the Estate of Edward George Naas, Deceased, v. George Wingenberg.
    Decided, July 6, 1916.

      Negligence Per Se — Where an Accident Results from, Violation of a Municipal Ordinance — Doctrine of Res Ipsa Loquitur Applied to Case of a Child Killed by Fall of Mortar Box on the Sidewalk-Error in Attempting to Show Contributory Negligence by Cross-Examination of Plaintiff’s Witness.

    1. Where injury results from the leaving of a heavy movable article on or over the sidewalk, in violation of a municipal ordinance, a case is presented of negligence per se.

    2. Moreover, where a child two years old is killed by the falling upon it of a heavy mortor box, which had been left leaning against a ■ building, with the lower end resting on the sidewalk and at such an angle as to probably create a condition of unstable equilibrium, •the doctrine of res. ipsa loquitur is applicable, and in the absence of any explanation as to how the box happened to fall, it is error, in' an action for death of the child, to direct a verdict for the defendant.

      3. Inasmuch as it is not incumbent upon plaintiff to show contributory negligence, it is error to permit counsel for the defendant to cross-examine plaintiffs' witness in such a manner as to tend to establish such negligence, but in a case where the court arrested the case from the jury the error was without prejudice.

      Gasser & Scott,, for plaintiff in error.

      Coleman Avery, Constant Soutluoorth and Hwrry L. Linch, for defendant in error.
   Gorman, J.

The action below was one to recover damages by the plaintiff, as administrator of the estate of Edgard George Naas, deceased, a minor child two years of age, for the alleged wrongful death of said child by reason of the negligence of the defendant.

The record discloses that on the 13th day of March, 1915, at .ten o’clock in the morning, the decedent, Edward George Naas, was killed by the overturning of a .heavy mortar box belonging to the defendant, George "Wingenberg, which had been left on the sidewalk of Campbell alley, or Campbell street, in the rear of his premises, 1618 Logan street. The box had been left there the night before by .an employee in the usual course of his employment. Campbell street, or alley, where the mortar box was placed, was one of the public streets of the city of Cincinnati, about twenty feet wide, with a thirty-four inch sidewalk upon the side towards the defendant’s property. This street was paved, and so was the sidewalk. The record of the evidence showed that a great number of children were accustomed to congregate in the alley, or street, and play there, and this fact was known to the defendant. The mortar box was slanting up against the wall of his stable, or barn, and was about six feet long and thirty-nine inches in width and about twelve inches ip depth. The box was found overturned in the alley, and the child with a crushed skull was found under it. There was no evidence as to how the box fell; whether it fell of its own weight or was pushed over by someone or by the child doe's not appear. There was evidence tending to show that this box was leaning up against the wall, one witness testifying that the angle made by tbe box was 85 degrees, wbicb would make tbe box stand almost parallel with the wall of the stable. There was also evidence tending to show that the box was in a state of unstable equilibrium. It weighed in the neighborhood of two hundred pounds. The child was found under this box within a very few minutes after it had been killed.

There is an ordinance of the city of Cincinnati prohibiting any person from keeping or permitting to remain any box, barrel, crate, etc., or other movable article on or over any street, sidewalk or thoroughfare in the city, longer than a reasonable time necessary in the transaction of business loading and unloading, to remove said articles. This ordinance was passed under the grant of power given to the councils of municipalities by Section 3714, Gf. C., which imposes the duty upon municipalities and the councils thereof to have the care, supervision and control of public streets, avenues, alleys, sidewalks, etc., and shall cause them to be kept open, in repair and free from nuisance. This ordinance was passed manifestly for the protection and safety of the public in using the streets and sidewalks.

At the close of plaintiff’s evidence, upon motion of defendant, the court instructed the jury to return a verdict for the defendant, which was accordingly done.

Several errors are complained of by the plaintiff in error as a reason for asking this court to reverse the judgment of the superior court.

It is claimed that the court erred in arresting the case from the jury and in instructing a verdict for the defendant. We are of the opinion that the evidence in this case discloses a case of res ipsa loquitur. The evidence discloses that this box fell; but whether it fell of its own weight because it was in a state of unstable equilibrium, or was pushed over by the child or someone else does not appear. The rule of res ipsa loquitur invoked is stated as follows in Jones’ Commentaries on Evidence, Blue Book, Volume 1, Section 15a:

'‘There is another class of cases in which it is held that where the thing is shown to be under the management of the defendant or his agent, and where an accident in the ordinary course of events does not happen when the business is properly conducted, the accident itself raises a presumption of negligence in the absence of any explanation. The English case where a passer-by in a street was hurt by a barrel of flour falling from a warehouse window is an illustration of this group of eases. (See Byrne & Boadle, 2 Hurl & C., 722.) The same principle is illustrated by a New York case, in which it was held that since the owner of a building adjoining a street is under obligation to take reasonable care that the same shall not fall upon the passers-by, if such an accident happens without any proof of explanatory circumstances, negligence will be presumed. (Mullen v. St. John, 57 N. Y., 567.) In such eases the facts are said to speak for themselves res ipsa loquitur. But in all such cases the cause of the .accident-must be clearly connected with the defendant, as being by his act or under his control, before negligence can be presumed.”

Now in the case under consideration the evidence discloses that this box belonged to the defendant and that it was under his control and management, and was placed by him or his servant in the' street on the sidewalk the night before it fell upon this child. It is manifest to us that this box could not have fallen on this child unless it were either pushed over upon him by someone, or was in a state of unstable equilibrium; and it appears to us that the fact that it fell upon the child raised a presumption of negligence which was encumbent on the defendant Wingenberg to rebut and to show that he was not guilty of any negligence which proximately caused the death of this child.

This court, in the case of Roth Packing Co. v. Williams, 20 C.C.(N.S.), 362, held that the fact that an automobile truck came out of the garage or premises of the Roth Packing Co. and ran over and killed, a boy, without showing what caused the truck to move out upon the street, presented a case in which the rule of res ipsa loquitur should be applied. This court in that case approved the following language embodied in the charge of the lower court:

“No direct evidence has been offered of any particular and specific act of negligence of the defendant that caused the automobile to come out of the building * * * but it is claimed by the plaintiff in this ease that the fact that the automobile came out in the way it did is itself evidence of negligence, and I will state to you that it is the law that when a thing which causes the injury is shown to be under the management of the defendant and the accident is such that in the ordinary course of things does not happen if those who have the management use proper care, it affords evidence in the absence of explanation that the accident arose from want of care. ’ ’

We are of the opinion, therefore, that when the plaintiff in this case established the fact, as it did, that this mortar box had fallen upon this child and billed it in the street, a case was presented which required the defendant to explain how it happened and to show that it did not fall becase of any negligence on the part of the defendant. Furthermore, we think the evidence in this case tended to show that the box was in a state of unstable equilibrium and likely to fall. The fact that it might fall upon a person in the street was a circumstance which should have been taken into consideration by the defendant when he placed the box in this street. We are of the opinion that the falling of this box, whether by reason of the fact that it was in a state of unstable equilibrium or because it was pushed over by some one in the ordinary course of things was an event which should have been contemplated as not entirely improbable, and that the defendant who placed the box in the street should have anticipated the reasonable and probable consequences which might arise from the falling of this box either of its own weight or from being pushed over.

In Earl v. Crouch, 40 N. Y. St., 847, a case is presented where plaintiff’s administrator brought an action to recover damages for the death of the deceased by the negligent act of the defendant. The defendant caused to be placed near the sidewalk upon one of the streets of the city of Rochester a pile of lumber five feet wide and three feet six inches high. The lumber was piled by placing one piece over another in tiers. Nothing was used to bind the tiers together. The tier nearest the sidewalk leaned about two inches from a perpendicular away from the remainder of the pile. The deceased was a child four years and eleven months old, residing upon the street near the pile. He went from his home and was found dead under the lumber which composed the tier next the sidewalk. All this tier except the three lower pieces had fallen out towards the sidewalk upon the child. The position of the deceased’s body and arms indicated that he had taken hold of the lumber with his hands with a view probably of climbing upon the pile, and thereby caused the lumber to fall. There was a recovery had in the case, and the Appellate Division of the Supreme Court in passing upon the case, said:

‘ ‘ The appellant does not claim that the child was sui juris, or that its parents were guilty of negligence contributing to its death. At the close of the testimony defendant’s counsel asked the court to direct a verdict for the defendant.
“The request was refused, and defendant duly excepted. There was abundant evidence that the lumber was piled in a negligent careless manner instead of piling it so that the tiers would rest against and support each other; the tier that fell was so piled that the slight force applied to it by the child toppled it over. Fixing such a trap upon a street in an inhabited part of a city, with the strong probability that children would be playing about it at all hours of the day was reckless, culpable negligence.”

In the case just cited there was no evidence to show how or why the lumber pile had fallen upon this child. The court evidently held that the accident itself furnished evidence of negligence.

In the case of Holly v. Bennett, 46 Minn., 386, a child was injured by the falling of lumber from a pile while it was in the street. A recovery was had in the case. The Supreme Court of Minnesota in passing upon the case, p. 387, says:

“Upon a careful examination of the record we find that the only other assignment of error of sufficient importance to merit attention is as to the sufficiency of the evidence to establish the alleged negligence of the defendants. Upon this issue the evidence is not strong or persuasive, but we think there was enough to go to the jury. It was the duty of the defendants to exercise reasonable care in erecting their lumber piles along a street where children or others were likely to pass or congregate, and the measure of their responsibility was the extent of danger to be apprehended, under the circumstances of the case. The evidence tends to show that the boy was found between two lumber piles (which were built over into the street) under a stick of timber which had fallen on him and broken his leg.. Witnesses familiar with the locality stated that the top timbers were carelessly piled, and that the ‘inside pile was piled very carelessly.’ ”

In the ease at bar the defendant knew many children were accustomed to pass along this street and to make it a playground. He should, in the exercise of ordinary care, have anticipated, when placing this box on the public street in violation of the ordinance and in the manner in which it was placed, that it was likely to result in injury to some one passing along the street. Of course, in this case there-can be" no negligence imputed to this two-year-old child, and while contributory negligence of the parents was pleaded in this case, this was a matter of substantive defense which could not be made out or evidence tending to establish it produced until after the plaintiff had rested his case.

Another error complained of is that the trial court refused to admit in evidence the ordinance of the city of Cincinnati prohibiting the piling of boxes and materials upon the sidewalk. Upon what ground the court refused to admit this ordinance we are unable to learn from the record.- We are of the opinion that it was admissible for the purpose of showing that the defendant in this case violated an ordinance of the city passed manifestly for the safety of the public traveling upon the streets, when he left this box upon this street and sidewalk without any reasonable excuse for leaving it there. But aside from the question as to whether or not the court should have admitted this ordinance in evidence, we are of the opinion that the trial court should have taken judicial notice of this ordinance. The Superior Court of Cincinnati is a court of the city of Cincinnati, and it has been held that that court, as well as every other court of the city of Cincinnati, will and should take judicial notice of the ordinances of Cincinnati. The court of common pleas does not take judicial notice of the ordinances of the city of Cincinnati because it is not a court of the city, and therefore in trials before that court ordinances of the city of Cincinnati must be offered and admitted in evidence.

We think that the violation of the ordinance by the defendant in this case established a case of negligence per se, as was held in the case of Schell v. Dubois, decided February 29, 1916, by the Supreme Court, in which the court says in the syllabus:

“The violation of a municipal ordinance passed in the proper exercise of the police power in the interest of the public safety, and not in conflict with general laws, is negligence in itself, and where such act of negligence by a defendant is the direct and proximate cause of an injury, not contributed to by want of due care on the part of the injured person, the defendant is liable.”

The question of whether or not the violation of this ordinance by the defendant in leaving this box upon the sidewalk was the proximate cause of the death of this child, is one which should have been submitted to the jury under the evidence and proper instructions from the court. There was evidence tending to show that the falling of this box upon this child was the proximate cause of this child’s death, and as we have said that the accident itself raises a presumption of negligence, it was for the defendant to explain and show that the box did not fall through his negligence. Where there is a scintilla of evidence in support of the plaintiff’s claim the cause must be submitted to the jury, and a motion to arrest the case from the jury should be overruled.

Furthermore, it is claimed that the court erred in permitting counsel for the defendant on cross-examination of two of the plaintiff’s witnesses to go into the question of the contributory negligence of the parents of this dead child in permitting it to run out on this street, in view of the fact that it is a dangerous place. It is claimed that the rule laid down in Legg v. Drake, 1 O. S., 286, was violated when the court permitted counsel for defendant by his cross-examination of plaintiff’s witnesses to go into the substantive defense to show contributory negligence. Many of the questions asked by counsel for defendant were proper. As we understand the rule laid down in the case of Legg v. Drake, supra, it is that counsel on cross-examination may not only interrogate the witness on matters which have been brought out on direct examination, but may go further and interrogate the witness upon all matters which the party who called the witness might have gone into in order to establish his ease or defense. Now it was not incumbent on the plaintiff to show contributory negligence, and we think that in so far as the court permitted counsel for defendant to ask questions which tended to show that the parents of this boy were guilty of contributory negligence, the court erred. But this error was not prejudicial to the plaintiff in error, because the jury were not permitted to pass upon the evidence, to weigh or consider it, or to consider the question of negligence or contributory negligence. The jury were instructed to return a verdict in favor of the defendant, and under such circumstances it was not material what the rulings of the court were with reference to the admission or exclusion of evidence, unless it be that the court arrested the case from the jury under the belief that the plaintiff’s own evidence tended to show contributory negligence upon the part of the child’s parents which he had failed to remove when he rested his ease.

We find no other errors in the record prejudicial to the plaintiff in error.

But for the reasons stated we are of the opinion that the judgment of the court below must be reversed and the cause remanded for a new trial.

Jones (E. H.), P. J., concurs; Jones (Oliver B.), J., dissents in a separate opinion.

Jones (Oliver B.), J.,

dissenting.

In my opinion the judgment below should be affirmed. The body of Edward George Naas, a two-year-old child, was found in the middle of Campbell alley under a mortar box belonging to the defendant in error. There is no evidence whatever of how this unfortunate condition was brought about. In the absence of proof, there can be no guessing by either the court or jury to supply missing evidence. Connelton v. Loeb, 22 C.C. (N.S.), 15; Ry. Co. v. Andrews, 58 O. S., 426; Ry. Co. v. March, 63 O. S., 236.

There is no question but that the mortar box which was found upon the child was the property of the defendant and that it had been left out in the alley by his employee, but no negligence on his part is shown by the record, nor is there any evidence to show that he violated any duty with respect to said child walking or playing upon said alley.

The opinion of the majority of the court is based upon the idea that the box was placed upon the sidewalk of the alley in an unstable condition and for that reason fell upon the child, or that it was pushed over by some one. Eh the latter case, the defendant clearly could not be held, unless it was so placed that as a natural consequence of its position defendant might reasonably apprehend that some one would push it over.

This finding by the majority of the court, however, in my mind is not supported by the evidence. The evidence shows that the box was five or six feet long, about thirty-nine inches in width and from eight to twelve inches in depth; that it was used for hauling mortar in a wagon from defendant’s stable to places where he might use it in his trade of plastering. James Malley, the only witness who testified as to the position of the box before the accident, and who was in the employ of the defendant, described its position as lying lengthwise on the narrow sidewalk of the alley and leaning against the stable, the lower part fitting into the curb of the alley, which the evidence shows was one or two inehes-higher than the brick pavement of the sidewalk. This eui’b is clearly shown in the photographs which are exhibits in the case. The defendant, George Wingenberg, and George Klug, who was the father of the child who found the body, both testify as to the position of the box after it had been taken off of the child and replaced at the side of the alley. James Malley testifies that this latter position was the same as the position in which he left it before the death of the child. Wingenberg and Klug both say that the box lay lengthwise with its bottom up, its lower edge resting inside against the curb of the narrow sidewalk and its upper edge resting against the stable.

Taking the dimensions of the sidewalk and of the box as given, a mathematical calculation will show that the box would practically reach a point between two and three feet above the level of the sidewalk upon the side of the-stable, and that the angle of the box made both with the sidewalk and with the side of the stable would be in the neighborhood of forty-five degrees, depending upon the exact width of the sidewalk and of the box. These dimensions vary in the testimony of different witnesses. Taking any given dimensions, having the hypothenuse and the base of the triangle known, it requires a simple mathematical calculation to determine the length of its third side — which would be the distance from the sidewalk up the side of the stable to the point at which the upper edge of the box rested. When this is determined, the angle at which the box lay can also.be found. Just what each of these dimensions may be is not material, but taking any testimony that is given by the witnesses, they fail to show any position of unstable equilibrium on the part of the box, but instead show, that the box was firmly placed, whichever witness is relied upon.

The only testimony that in any way supports the finding of the majority of the court that the box was in a state of unstable equilibrium is that of J. T. Scanlon, in the following words:

“Q. Show the jury how that box stood there on the sidewalk, use this pencil and show us. A. Well, it stood about that way (illustrating) about 85 degrees leaning against the wall, and the sidewalk was only about three and a half feet wide, so that there would not be room to pass outside of it at all.”

From the use of the words ‘ ‘ 85 degrees, ’ ’ the majority of the court have reached the conclusion that the box was almost perpendicular and nearly parallel with the side of the stable. It will be observed that it is not stated whether the 85 degrees is the angle with the level of the sidewalk or with the side of the building, but the rest of the sentence stating that the box was leaning against the wall (not upright, parallel to it) and that there would not be- room to pass outside of it at all, shows that the witness intended to convey the idea that the box practically covered the entire width of the sidewalk — for, as he states, the sidewalk was three and a half feet wide and the box only one foot deep. To rely entirely upon a statement that the box was at an angle of 85'degrees and put it nearly parallel with the stable wall, would leave about two feet of the sidewalk free, which would be inconsistent with the rest of the sentence. An examination of the testimony of this witness will show that he was not accurate in his statements, and in my opinion this statement does not conflict with that of the other witnesses that the box covered practically the entire sidewalk and was placed in a firm and stable position and not in a position of unstable equilibrium.

Such being my conclusion drawn from the record, as to the position of the box, it could not have fallen upon the child merely by its own weight, nor could the young child have pulled the box over upon itself, but the interposition of some other considerable force was necessary in order to bring the box into the position in the alley on top of the child. "What that force was is not disclosed by the record.

I can not agree that this record shows a case of res ipsa loquitur. It is not a case of a box moving or falling out of a building of defendant which would require an explanation from him, as the electric truck in Roth Packing Co. v. Williams, 20 C.C.(N.S.), 362, or the falling of the trolley pole in the case of Traction Co. v. Holzenkamp, 74 O. S., 386.

While it is admitted that the box was the property of the defendant, it was not at the time of the accident either on his premises or under his direct management and control, but had been left by his servant on the public street. This was a violation of the city ordinance, but was not the proximate cause of the injury to the plaintiff’s intestate. The purpose of the ordinance was to prevent the obstruction of the street, as stated in its own terms, "so as to prevent citizens from passing along such sidewalk.” The accident was not caused because of the fact that the box obstructed tbe street, but because through some unknown agency the box was thrown upon the child.

To my mind, this does not make a case of negligence per se under the rule laid down in- the recent case of Schell v. Dubois, referred to by the court in the majority opinion. It should be controlled rather by the case of Wilde, Jr., v. Ohio Knife Co., 18 N.P.(N.S.), 373, which was recently affirmed by this court without opinion.

This question of liability for injuries to a child arising from a nuisance is fully discussed and the authorities reviewed in the two cases of R. R. Co. v. Harvey and Swarts v. Akron W. W. Co., reported together in 77 O. S., 235, in which attention is called to Friedman v. Snare & Triest Co., 71 N. J. L., 605, where a child was injured while playing upon iron girders left piled upon the street.

The rejection of the ordinance by the court below, when offered in evidence, did not constitute prejudicial error for the reasons stated in the majority opinion that the Superior Court of Cincinnati takes judicial notice of general ordinances of the- same city, and for the further reason, as I think, that the violation of the ordinance in this case was not negligence per se.


author: Powell, J.

text:
    OWNERSHIP OF RENTS.
    Court of Appeals for Licking County.
    John L. Hughes et al v. Samuel Forsythe et al.

    Decided, March Term, 1916.

      Rents — Belonging to the Owner of the Reversion at the' Time the Rent' Becomes Due — Purchaser Not Entitled Thereto until Title- Passes.

    Rent payable in advance, which accrues after, a contract for sale of. the premises has been entered into but before the execution and delivery of the deed, belongs to the grantor and can not be recovered from him by the grantee after consummation of the sale.

      8. L. James and Flory & Flory, for plaintiffs in error.

      Smythe & Smythe,. contra.

      Motion to require the .Court of Appeals to certify its record in this case overruled by the Supreme Court, July 1, 1916.

   Powell, J.

The parties to this ease stand in the same relative position in tliis court that they did in the court of common pleas. Plaintiffs filed their petition in the court of common pleas setting out that on the 14th day of January, 1909, they entered into a contract with the defendants in error for the purchase of certain real estate, which is described in the petition, by the terms of which they were to pay to the said defendants the sum of $12,500 for the land described, and that the defendants were to convey the same to them on or before the 1st day of April, 1909, by a good and sufficient deed of gneral warranty, free from encumbrances, except as against a gas'lease mentioned and described in said contract of purchase. The sum of $2,000 was paid at the time of the making of said contract, in January, 1909, and the balance of the purchase money to be paid was paid at the time of the- delivery of the deed, which was April 1, 1909.

It is further alleged that 'by the terms of the gas and oil lease, which by the contract was to be conveyed to plaintiffs at the time the deed for said premises was to be delivered, the Columbus Natural Gas & Fuel Co. had obligated itself to pay, as rental for said farm, the sum of $200 per annum, in advance, payable semi-annually. The first payment, by the terms of said gas and oil lease, became due and payable in advance on March 3. 1909, and which payment was in satisfaction of the rent under said gas and oil lease from the 3d day of March, 1909, to the 3d day of September, 1909; and it is then alleged that said sum, .under the terms of said contract, and the deed from defendants to plaintiffs, was payable to the said plaintiffs, but in violation of the terms of said contract, the defendants, without authority of law, and without authority from the plaintiffs, and without their knowledge and consent, drew the sum of one hundred dollars from the said Columbus Natural Gas & Fuel Co., and converted the same to their own use, and refused to pay the same to these plaintiffs, and thereby kept an incumbrance upon said land, in violation of the covenants of warranty in their deed, from the 3d day of March, 1909, until the 3d day of September, 1909. By reason of the premises, they ask judgment against the defendants for said sum of $100, with interest from the 3d day of March, 1909.

A second cause of action is set out in the petition, in which it is alleged that a certain wire fence had been removed from the posts to which it was attached, and that the same was taken away by the defendants without the knowledge or consent of plaintiffs, and to their damage in the sum of $20, for which they ask judgment.

A demurrer was filed to the amended petition on the ground that there was no cause of action stated in the first cause of action set forth in such amended petition, and that by reason of the insufficiency of said first cause of action, the court was without jurisdiction over the second cause of action, the amount not being sufficient to give jurisdiction to the common pleas court.

The question for determination is as to whether or not the defendants were entitled to receive as their own the installment of rent due on the gas lease March 3, 1909, a contract for the sale of the premises covered by said lease having been executed by them prior to that date, but the deed for which was not to be delivered until the first day of April following the date on which such installment of rent fell due.

It is contended on the part of the plaintiffs that by the terms of the contract of sale entered into in January they became entitled to such rents; that otherwise it would be a violation of the covenants of warranty contained in their deed, which was after-wards executed by said defendants on the 1st day of April, but which had been agreed to be executed in said contract of sale. The defendants claim that they are entitled to such rent because the same accrued before said contract of sale was consummated.

The payment of rent under this lease, as alleged in the amended petition, was in advance of the term during which the same accrued. An installment became due and payable on the 3d day oí March, 1909, but the term for the accrual thereof extended from March 3, 1909, to September 3, 1909. Defendants claim that because the same became due before the contract entered into by them with the plaintiffs for the sale of said land was to be carried into effect, such rent thereby became their property, and was not due and payable to the plaintiffs.

It is a general principle of law that rents are .not apportionable as to time except by virtue of a contract to that effect, and that rents are the property of the owner of the reversion in the lands for which rent is due.

Under this rule, we think that until the contract was carried into effect the real estate was the property of the defendants, and that by reason of such rule, the rents falling due prior to the execution of such contract of sale were also the property of the said- defendants. For .this reason, the court is of the opinion that the demurrer to said first cause of action was well taken, and that there was no error on the part of the court in sustaining the same, and that the judgment of that court should be affirmed.

The first cause of action having failed for want of sufficient averments, it follows that the court was without jurisdiction over the second cause of action; and the judgment of the court of common pleas sustaining the demurrer to each of said causes of action will be affirmed.

Shields, J., and Houck, J., concur.


author: Jones (Oliver B.), J.

text:
    LIABILITY OF CORPORATION IN HANDS OF A RECEIVER. FOR. THE EXCISE TAX.
    Court of Appeals for Hamilton County.
    The Gerke Brewing Company et al v. Edward J. Kuerze et al.
    Decided, June 5, 1916.

      Taxation — Corporation in Hands of a Receiver — Liable for the Excise Tax, Unless.

    1. A receiver of a corporation is liable for the excise tax, unless there is an entire cessation of the business and the work of the receiver is confined to mere liquidation of the assets and distribution of the proceeds among the creditors.
    2. In cases of prolonged liquidation made necessary by court proceedings, the hardship upon creditors and stockholders of an excise tax may be minimized by a surrender of the charter or dissolution of the corporation and the filing of a certificate thereof by virtue of the provisions of Section 11974-5,' G-. C.

      Peck, Shaffer & Peck, for plaintiffs in error.

      Edward C. Turner, Attorney-General, and Froome Morris, contra.
   Jones (Oliver B.), J.

The question to be determined in this ease is whether the excise tax upon the capital stock of the Gerke Brewing Company, under the terms of Section 5498 of the General Code, during the period when a receiver was in control of its corporate assets and conducting its corporate business, must be paid by the receiver and are a prior lien upon the corporate assets or their proceeds now in his hands.

The record shows that the so-called franchise taxes of the Gerke Brewing Company are delinquent and unpaid for the years 1908, 1909, 1910, 1911 and 1912; that during this time the corporate business was conducted by the officers of said company until June 20, 1911, at which, time under court proceedings the company was placed in the hands of a receiver and under the orders of the court the business of the company was conducted by two successive receivers until December 1, 1912, at which time further operations of the business ceased and the receiver then in charge converted the corporate property into money by sale for purposes of liquidation, which proceeded until November 5, 1913, when the entire liquidation was completed. On May 12, 1913, the company reduced its capital stock from $600,000 to $6,000, and the receiver paid the taxes for that year.

A finding of facts was made by the trial court, in which the court found that the corporate franchise tax due and payable to the state of Ohio upon the subscribed, issued and outstanding capital stock of the Gerke Brewing Company, as provided by Section 5498, General Code of Ohio, due and payable in the years 1908, 1909, 1910, 1911 and 1912 had not been paid, or any part thereof, and that there is due and payable to the state of Ohio for each of the years 1908, 1909 and 1910 the sum of $600 tax and $60 penalty, being one-tenth of one per cent, of the capital stock of $600,000 and a penalty of ten per cent, thereon; and for each of the years 1911 and 1912, the sum of $900 tax and $135 penalty, being three-twentieths of one per cent; of the capital stock of $600,000, and a penalty of fifteen per cent, thereon. And the court further find, (1) that so much of the aforesaid franchise tax due the state of Ohio as accrued prior to June 20, 1911, the date of the appointment of the receiver, is a valid claim against the defendant, and a first lien upon the assets now in the hands of the receiver; (2) that so much of the corporate franchise tax as accrued between June 20, 1911, the date of the appointment of the receiver, and October 22, 1912, the date of the general order of liquidation of the assets for the payment of the creditors above referred to, is also a valid and first lien; and (3) that so much of the aforesaid corporate franchise tax as accrued subsequent to October022, 1912, is also a valid and first lien. And the court entered a judgment upon such finding for the total amount of said finding — amounting to $4,050.

The franchise tax under consideration is provided for by Sections 5495, 5496, 5497, 5498 and 5506, General Code of Ohio.

Section 5498 is as follows:

‘ ‘ Upon the filing of the report provided for in the last three preceding sections, the commission, after finding snch report to be correct, shall, on the first Monday of July, determine the amount of the subscribed or issued and outstanding capital stock cf each such corporation. On the first Monday in August, the commission shall certify the amount so determined by it to the auditor of state, who shall charge for collection, on or before August fifteenth, as herein provided, from such corporation, a fee of three-twentieths of one per cent, upon its subscribed or issued and outstanding capital stock, which fee shall not be less than ten dollars in any ease. Such fee shall be payable to the treasurer of state on or before the first day of the following October. ’1

Section 5506 is as follows:

‘ ‘ The fees, taxes and penalties required to be paid by this act, shall be the first and best lien on all property of the public utility or corporation, whether such property is employed by the public utility or corporation in the prosecution of its business or is in the hands of an assignee, trustee or receiver for the benefit of the creditors and stockholders thereof. ’ ’

Although in form the taxes for all of these years is in dispute, counsel for plaintiff in error make practically no contention that up to the time of the appointment of the receiver the accrued and unpaid tax was a lien upon the assets of the corporation coming into his hands. As the receiver was appointed June 20, 1911, the taxes for the three years prior to 1911 can not be questioned. The taxes for the year 1913 under the reduced capitalization were paid. So the real question to be determined is whether or not the taxes should be paid for the years 1911 and 1912.

The report of the corporation upon which s\ieh tax is based is required to be filed each year with the state tax commission, between the first day of May and the first day of July, and the commission upon this report, under provisions of Section 5498, determines the amount of the outstanding capital stock upon which the tax is calculated, and certifies it to the Auditor of State on the first Monday in August, who malíes the charge for collection on or before August 15th, and the fee thereon is payable to the Treasurer of State on or before the first day of October. This franchise tax is chargeable and payable annually. The statute does not definitely fix the beginning and end of the year for w'hich the charge is made, and it might be a question' as to whether the year commences with the date of the certification, or whether the year for which payment is made is the calendar year. For the purposes of this case it is immaterial, because it sufficiently appears that at the date fixed for payment, to-wit, the first day of October, in both the years 1911 and 1912, the receiver was in possession of the assets of the corporation and was operating the business of the company.

Under the distinct letter of the provisions found in Section 5506 these fees, taxes and penalties are the first and best lien on all the property of the corporation, whether employed by the corporation in the transaction of its business or in the hands of a receiver for the benefit of its creditors and stockholders.

The validity of this franchise or excise tax has been upheld by our Supreme Court in Southern Gum Co. v. Laylin, 66 O. S., 578. In'the opinion in that case, at page 596, the court held that—

‘! the exaction of one-tenth of one per cent, is not a property tax on property owmed by the corporation, but is an excise tax the amount of which is fixed and measured by the amount of subscribed or issued and outstanding capital stock.”

No argument has been advanced why this franchise tax should not continue to operate at least so long as the receiver is in control of the corporate assets and conducting its corporate business. As we have seen, that was the situation in this ease for both the years 1911 and 1912. The Court of Appeals of Cuyahoga County in Morley v. Cleveland Hippodrome Co., 23 C.C. (N.S.), 295, has sustained the validity of such a tax accruing after the appointment of a receiver. We regard this as a correct decision, and therefore follow it in this case.

Our attention has been called to two recent eases decided together by the United States Circuit Court of Appeals of the Sixth Circuit, 14 O. L. R., 95, the title of one of which is State of Ohio v. Ferris, Receiver of the Dominion Coal Co. We have read the able and exhaustive opinion in this case by Warrington, J., but do not feel that it is decisive of the question before us, for the reason that in the instant case we do not have the question of the entire cessation of business and the mere liquidation of assets during the period for which the taxes are chargeable. As we have seen, during the years 1911 and 1912 when these franchise taxes became a charge the business was in operation, and the period of liquidation during which no other business was transacted commenced after December 1, 1912, lasting until November 5,1913, and that the franchise tax for 1913 was paid without question by the receiver.

In the opinion of the United States Court, referred to above, Judge Warrington makes use of the following language:

“When we thus treat the'interventions alike for purposes of the tax in dispute, we appreciate the fact that we could not do so if the receiver had during the tax years in question conducted the corporation business in the regular way; for he then would have been chargeable with having exercised the franchises (citing eases). As we understand the facts of the present case, however, the receiver was during those years no more engaged in exercising the corporate franchises than the trustees in bankruptcy were during the tax years for which recoveries are sought against them. The corporations were, and so far as appears still are, to all intents and purposes extinct, and so could not then any more than they can now exercise their franchises. ’ ’

This opinion, therefore, refers rather to periods when no operation of business of the company was had but merely an actual winding up and dissolution was being enforced by the liquidation of the assets, and therefore that decision can not be controlling upon the conditions here.

Any hardship that might be worked by this law, upon creditors and stockholders by a necessarily long continued liquidation of the assets of a corporation through court proceedings, could be minimized by a surrender of the charter or dissolution of the corporation, and filing certificates thereof under Sections 11974 and 11975, or by the reduction of the capital stock of such insolvent corporation, as was accomplished in this case for the year 1913. Where that is not done, it is too late, after the tax has accrued and been charged against the property, to complain, because'of such charges.

The judgment below is therefore affirmed.

Jones (E. II.), P. J., and Gorman, J., concur.


author: Aulread, J.

text:
    EVIDENCE OF AN'OLD DEED AS TO POWER. OF EXECUTRIX TO SELL.
    Court of Appeals for Clark County.
    Anna Lanham v. E. O. Bowman et al.
    Decided, December 28, 1915.

      Ancient Documents — Action by an Heir to Recover Property Sold by the Executrix — Records Destroyed by Court House Fire — Recital of Old Deed as to Power of Executrix to Sell to Pay Legacies-r-Competent Evidence of Such Power — Running of the Statute of Limitations Against Assertion of an Interest in Land Under a Devise.

    1. Where an interest in realty vests upon the death of the life tenant, the running of the statute of limitations against the assertion thereof is not stopped by the transfer of the property by an ancestor.
    2. A deed made by an executrix almost fifty years ago, containing the recital that the executrix was given full power to convey, but without a specific statement of such power as contained in the will, is competent as evidence of such power, where the original records have been destroyed and the possession of the property has been ' consistent with the terms of the deed; and such proof is sufficient to sustain a title depending upon the existence of such power and casts the burden upon those seeking to impeach it.
    3. The evidence in this case creates a strong inference that a necessity arose to sell real estate belonging to the testator in order to pay pecuniary legacies and prevents a reversal of the judgment by a reviewing court as against the weight of the evidence.

      Charles Broadwell and William H. Cowguill, for plaintiff in _ error.

      J. JE. Bowman, contra.
   Aulread, J.

Anna Lanham brought suit in the court of common pleas to recover an interest in certain real estate.

The will of .William Honroth, probated in Hamilton county, November 6th, 1868, is the common source of title.

The plaintiff, as daughter of Louisa Schmidt, claims as devisee in remainder under the following item:

“Ninth. After the decease of my said wife the' property then unconsumed by her shall be equally divided into two parts, the one part or half I give and devise unto my daughter Louisa Schmidt during her natural life and after her decease to her child or children forever. The other half. I give and devise to the Trustees for the time being of Zions Society (Zions Ger-mania) corner of Bremen and Fifteenth street in said city of Cincinnati,” etc.

The defendant claims through mesne conveyance under a fee simple deed, dated July 1st, 1869, from Christina Honroth, as executrix of William Honroth, deceased, to' J. B. Seegar.

The authority supporting the latter deed is found in item twelfth of the Honroth will, which is as follows:

“Twelfth. My executor hereinafter named is hereby authorized and empowered in case there should not be a sufficient amount of personal property to pay the leg-acies above named to sell at public or private sale at not less than two-thirds of its value so much of my real estate as may be sufficient for that purpose and give a good and sufficient deed or deeds therefor and reinvest any surplus and enjoy the income thereof as above stated to the benefit of my said wife.”

Christina Honroth, who held the first life estate, died in February, 1877.

Upon her death the devises in item ninth in favor of Louisa Schmidt and the Zion’s Society became available.

Louisa Schmidt died on December 23d, 1908, and thereupon the devise in remainder to her children ripened into an estate in possession.

J. B. Seegar was joint owner with William Honroth of the real estate in controversy, and the deed of the executrix therefor only purported to” convey the undivided half thereof, subject to an existing mortgage which was assumed by J. B. Seegar.

Since July, 1869, J. B. Seegar and his successors in title have held open, peaceable and undisputed possession of the real estate conveyed until about August 4th, 1913, when this action was begun.

Upon the death of Christina Honroth in 1877, the cause of action in favor of the Zion’s Society under the devise in item ninth arose and the statute of limitations began to run. Such claim is therefore barred by the statute of limitations and the fact of the transfer to plaintiff’s ancestor does not affect the running of the statute.

The remaining question therefore relates to the direct devise to plaintiff as to which the cause of action arose upon the death ofUier mother, December 23d, 1908. The plaintiff’s title under the devise to her in item ninth not being barred by the statute of limitations would be valid, unless superseded and overthrown by the deed of the executrix.

Practically, therefore, the case turns upon the validity of the last named deed.

The twelfth item of the Honroth will conferred upon the executrix the power of sale upon condition that the personalty was insufficient to pay the pecuniary legacies, amounting to $13,600. The testator had specially provided for the payment of his debts. The debts and costs of administration, under the will as well as the law, would be a charge upon the personalty. The personalty not required to'pay debts and other necessary legal charges would next be chargeable with the pecuniary legacies. The will evidently intended to confer upon the executrix the power of sale in case the personalty remaining after the payment of debts and other legal charges was insufficient to pay the legacies referred to.

The validity of the deed therefore rested upon the question as to the sufficiency of the net personalty to pay such legacies.

Preliminarily, the competency of the deed without extrinsic proof as to insufficiency of the personalty is raised.

The deed recites that the executrix had full power to convey; and this, we think, is sufficient without a more specific recital of the power contained in the will. Bishop v. Tiemple, 11 O. S., 277.

The trial court admitted the deed as an ancient document and as prima facie proof of title. There is a contention as to whether the common law rule in respect to ancient documents is in full force in Ohio. We think the recent ease of Wright v. Hull, 83 Ohio State, 385, upholds the common law rule in this respect, except that such ancient documents are subject to preliminary proof;

(1) of genuineness of signature; and

(2) of lawful custody.

Both of these preliminary facts are conceded in the case 'at bar and we are therefore at liberty to apply the common law rule as to ancient documents.

The deed offered in evidence is clearly proven

(1) genuine;

(2) ancient;

(3) to have been in lawful custody;

(4) to have been recognized as a muniment of title;

(5) the grantees and successors'have been in peaceable possession for more than thirty years; and

(6) the records presumably containing material evidence as to the validity of the deed have been destroyed.

Subject to the modification in Ohio of the common law rule as to ancient documents, the following from the case of Wilson v. Snow, 228 U. S., 217, is applicable:

“The rule that an ancient deed to property in continuous possession of the person producing it proves itself, on the theory that the witnesses are dead and it is impossible to produce testimony showing execution by the grantor, is broad enough to admit without production of power of attorney ancient deeds purporting to have been signed by agents.
‘ ‘ The other necessary facts being present and the possession of the property being consistent with its terms and the original records having been lost, a deed, over forty years old, containing recitals that it was executed by an administrator under power of sale given by order of the court, will be presumed to have been executed in accordance with such recitals.” See also, Reuter v. Stuckart, 181 Ill., 529.

In the case of Haren v. Block, 9 C.C.(N.S.), 328, it was held that a conveyance by an executrix under a power in the will somewhat similar to the one at bar was prima facie valid, and that the burden of proof rested upon those assailing the deed.

This case did not involve an ancient document, and if followed would lead to the conclusion that independent of the rule of ancient documents, the deed would be admissible. We are clearly of the opinion that the court properly admitted the deed of the executrix in the case at bar as evidence, and that without other proof it was sufficient to sustain the defendants’ title and to cast the burden of impeaching it upon the plaintiff.

This brings us to the evidence tending to impeach the power of the executrix to make the deed. The court house records wrere burned in the year 1884. The devise in favor of Louisa Schmidt, plaintiff’s mother, and of the Zion’s Society, under item ninth, became available in 1877. This was at least seven years before the records were destroyed.. No step to recover the property in controversy was ever taken by Louisa Schmidt, or the Zion Society.

Upon the death of Louisa Schmidt, the plaintiff in 1908 consulted counsel, but did not determine to bring suit until the year 1913. The inventory in the Honroth estate miraculously escaped the fire, and a certified copy is produced. This inventory shows personalty to the amount of about $26,000. There is no showing of record of the debts and costs of administration, nor is there any showing of record of the amount of personalty actually collected. These facts would naturally appear more definitely in the accounts current, which are not available. From the record evidence alone the court would not be justified in impeaching the deed of the executrix.

Charles Schmidt, surviving husband of Louisa Schmidt, was examined as a witness. He testifies that he was familiar with the financial affairs of William Honroth; that said Honroth paid cash for all supplies, was sick but a short time, and left practically no debts. There are circumstances, however, brought out in cross-examination, and also by evidence of the records of the Zion Society which raise a serious question of credibility, and the fact that the witness’ wife, Louisa Schmidt, with whom he lived, made no attempt to impeach the deed, nor did the witness himself appear to. have ever urged her to recover the property, are quite important circumstances to be considered as to whether in his testimony in the present case, Schmidt is not mistaken. The records of the Zion Society of the payments made upon the pecuniary legacy of $8,000 is quite important. This was the chief pecuniary legacy for which the real property might be sold. But $3,000 had been paid upon this pecuniary legacy at the time of the execution of this deed, and it appears that only $7,500 of the $8,000 has, in fact, been paid. This raises a strong inference that the personalty was not sufficient to pay the pecuniary legacies.

Upon the question of fact as to the credibility of the witness, Charles Schmidt, and as to the finding of the court upon all the evidence, as to whether there was a deficiency of the personal estate, the court of common pleas, as the trial court, was charged with the first responsibility, and the findings of such court will not be disturbed unless manifestly against the weight of the evidence. Dean v. King, 22 O. S., 134.

We are not convinced that the judgment of the court of common pleas is contrary to the manifest weight of evidence. .It therefore follows that the judgment of the common pleas court should be affirmed.

Kunkle, J., concurs; Ferneding, J., not sitting.


text:
    PRIORBTY UNDER. A BUILDING CONTRACT.
    Court of Appeals for Hamilton County.
    Louis Moesser v. Enterprise Lumber Co. et al.

    Decided, October, 1915.

      Mechanic’s Liens — Legality of Payments to Sub-Gontr actors and Material-Men on the Lay of the Filing of a Lien — Right to Pro Rate Lost by Failure to File Statements With Owner.

    An owner is not required to stop payment of checks mailed to subcontractors and material-men on the same day a mechanic’s lien was filed by a creditor not included among those to whom checks were sent, where the amount remaining due from the owner is more than the total amount of the checks and the lien; but subcontractors and material-men who failed to file with the owner itemized statements of the amounts due them within ten days after the filing of the lien are not entitled to pro rate with the lien-holder and the payees of the checks.

      Chas. M. Leslie, for plaintiff in error.

      W. F. Ckambeps, Hunt, Bennett & Utter, Miller & Foster, W. A. Rinckhoff, Wolf & Bailey, Tuttle & Ross and Hackett, Teatman & Harris, contra.
   Jones (Oliver B.), J.

The proceeding below was brought by the Enterprise Lumber Company seeking to recover the amount due to it for materials furnished for the construction of a house by the Louis Belmont Company as head contractor for Louis Moesser, plaintiff in error herein.

The Enterprise Lumber Company filed a claim as material man, in accordance with Section 8324, General Code. There is no dispute but that it followed the statute and perfected a material-man’s or sub-contractor’s lien upon the balance due from the owner for the construction of said house. This affidavit and. notice to the owner thereunder were filed April 10, 1913, and the amount found due to the Enterprise Lumber Company thereunder was $483.24, with interest.

On the day previous to the filing of this notice plaintiff in error claims to have drawn checks .to certain sub-contractors and material-men amounting to $550.15 which were put in the mail on the morning of April 10, 1913. If this were done as claimed, before receipt of notice from the Enterprise Lumber Company, it was still within the power of plaintiff in error to have stopped payment upon these checks if the amounts covered by them would reduce the amount due for the construction of said house to a sum less than the amount claimed by the subcontractor’s lien. The question is raised between the parties as to whether these checks were actually mailed before the notice was filed, but as the amount found to be due in addition to the amount of these checks is laz’ger than that due the Enterprise Lumber Company, it becomes immaterial as to it, whether they were beyond the control of plaintiff in error before the receipt of the notice served upon him for said Enterprise Lumber Company’s lien. ,;

Under the terms of Section 8328, General Code, in order that other sub-contractors znight be permitted to pro-rate with the Enterprise Lumber Company it was necessary for them, within ten days from the date of the filing of the lien by the Enterprise Lumber Company with the county recorder, to file sworn and itemized statements of their several accounts with the owner. The record shows that no such statement was filed by any of the sub-contractors who are parties herein, earlier than April 30, 1913. Therefore, under the terzns of the statute, which has been so construed in the ease of Hayden Saddlery Hardware Co. v. State, 3 C. C., 67, the Enterprise Lumber Company was entitled to be first paid out of the fund; and as the checks of the owner aggregating $550.15, which were mailed April 10, 1913, were then due and were paid before any statements as to other claims were filed, in aecordazzce with the terms of Section 8328, General Code, these paymezzts made by these checks must be treated as proper payments as far as all other sub-contractors and material-men are concerned.

The judgment of the lower court was, therefore, erroneous in finding that the owner must be deemed as having in his hands $1,103.40 subject to the payment of claims. The payments made by the owner’s cheeks of April 10, 1913, should have been deducted from this amount and the balance with interest, only, would be available for the claims of all sub-contractors and material-men, out of which the Enterprise Lumber Company must first be paid and the balance pro-rated among other claims.

The judgment of thev lower court is therefore reversed and the cause remanded for further proceedings.

Gorman, J., concurs. Jones (E. IT.), P. J., not sitting.


author: By the Court.

text:
    DEVISE OF “ THE INCOME ” HELD TO MEAN THE WHOLE INCOME OF THE ESTATE.
    Court of Appeals for Hamilton County.
    Mayme Kolb Schinkal and Daniel Kolb v. Cynthia Kolb, Caroline Kolb Shropshire, Naomi Kolb Sheridan et al.

    Decided, January 17, 1916.

      Wills — Devise to Widow of “the Income,” together with Certain Specific Bequests — Words “the Income” Construed to Mean all the Income from the Testator’s Estate.

    The bequest “the income hereinafter devised to my said wife in lieu of her dower and all other interests in my estate as widow.” in the absence of any reference to any income to accrue to the trustees or any direction as to its investment or disposal, is construed as importing an intention to give all the income to the widow during her lifetime.

      Henry T. Hunt, for Caroline Kolb Shropshire and Naomi Kolb Sheridan.

      John J. Acoinb and Frank li. Gusweilér, for Cynthia Kolb, as widow and as executrix, and for Joseph Kolb, individually and as trustee. .

      Matthews & Klein, for Josephine Kolb Schell.

      C. IV. Baker, for Mlayme Kolb Schinkal and Daniel Kolb.

       Motion to require the Court of Appeals to certify its- record in this case overruled by the Supreme Court, February 15, 1916.

   By the Court.

After much discussion of this case, and delay caused by doubt and prolonged deliberation, we have concluded that there is an implied bequest to the widow, of the income during her lifetime, as held by the court below.

In the second item of the will the widow is given household furniture, books, etc., and following that bequest the testator says:

“This bequest and the income hereinafter devised to my said wife in lieu of her dower and all other interests in my estate as widow,” etc.

The words “the income hereinafter devised” import an intention to give to the wife all the income. The word “all” is not necessary. Where no word of restriction or limitation is used, the words “my income,” “the income” and the like include the entire income. If it had been intended to later give to Mrs. Kolb a portion of the income, or the income from specific property or securities, it must be presumed that in this item the testator would have used the words “the' portion of the income,” or some other words of like import.

It is contended that Kolb died intestate as to the income during the lifetime of his wife. With this contention we can not agree. If there were no implied bequest of the income, it would go to the trustees named to take charge of the property from which the income was to be derived and would accumulate and remain in their hands. Such being the case, the fact that the will contains no reference to any income to accrue to the trustees, nor any discretion as to its investment or disposal, coupled with the disposition of the income after the wife’s death, as found in item five of the will, makes all but irresistible the conclusion that at the time the will was made testator intended to and thought he had bequeathed all the income to his wife.

We deem further comment useless. There will never be another will like this one. The peculiar provisions of this will and the rules of construction applicable thereto are ably discussed in the briefs. There-is no new question involved, and a long opinion could benefit neither litigants nor counsel in future cases. The general rules on construction of wills are so familiar and so universal in application and operation as to forbid elaboration here. Applying these rules we are convinced that taking the will as a whole, an intention is manifest to give all the income to Mrs. Kolb during her natural life.

The judgment of the common pleas court is therefore affirmed.