author: Bentley, J.

text:
    (Sixth Circuit—Lucas Co.. O., Circuit Court
    Sept. Term. 1893.)
    Before Bentley, Haynes and Scribner, JJ.
    THE TOLEDO ELECTRIC STREET RAILWAY CO. v. THE TOLEDO CONSOLIDATED STREET RAILWAY CO. ET AL.
    1. The gist of a civil action for damages for the wrongful act of many, is not the combination or conspiracy to do the act, but the damage done to the plaintiff.
    3. In such case, the petition must allege the fact that the plaintiff suffered damage from the wrongful act, or it must allege such facts as would justify a presumption of damage.
    3. The allegation in such case, that the defendants “did maliciously . delay the construction of the plaintiff’s railroad for four months” does not, of itself, state a cause of action, though followed by the statement, “to the plaintiff’s damages” in a certain sum.
    4. Where the petition in such case charges that the defendants maliciously and without probable cause instigated others to institute suits in the courts against the plaintiff, it is demurrable, unless it alleges the termination of such suits.
    Error to the'Court of Common Pleas of Lucas Comity.
   Bentley, J.

(orally).

This is a petition to reverse the judgment of the court of common pleas which was rendered against the plaintiff below — the plaintiff in error here — the court finding that its petition was fatally defective; it being attacked, first, by a motion to strike out a large portion of the amended petition. That motion being allowed, and a part stricken out, the court found that there was not then sufficient facts averred in the ¡petition to constitute any cause of action; and the plaintiff not amending, final judgment was rendered in the action .against it.

The qustion presented upon the record involves a matter of pleading, and consideration of the sufficiency of the plaintiff’s petition. Practically it is to be considered as if a demurrer had been filed to it. The petition seeks to charge in general terms a conspiracy entered into by the defendants to further their own interests in sustaining a monopoly of a street railroad business in this city, and to injure the plaintiff and its business in constructing, maintaining and operating a street railway in certain streets of this city. It is alleged that this conspiracy was entered into by the defendants for these purposes, and also that in furtherance of that conspiracy, in endeavoring to carry it out and execute it, the defendants maliciously did certain things mentioned in the petition,-which it is claimed were injurious to the plaintiff, detrimental to the plaintiff’s interests, and an injury to its particular rights; and it is said in general terms at the close of the petition: “Plaintiff says that by means of the interference with its business and property as herein set forth, by the malicious conspiracy carried out by defendants as aforesaid, it has been subjected to great loss and damage, to-wit: $250,000, for which it asks judgment against defendants.”

There are various objections urged to this petition, but the one of the most considerable importance is the question as to the allegation of damages, as we understand it; defendants claiming that there is no such allegation of damages in the petition, or of facts which would give rise, legally considered, to damages, as would sustain the action. The plaintiff, of course, contends that there is no such defect; that the pleading is sufficient in this regard, as in all others; and that in an action for conspiracy such as it is claimed this action is, there is no necessity for a more succinct statement of damages, or of facts constituting damage, than is embodied in this petition. It may be well, first, to state briefly what we consider is the correct view of the law as to conspiracy, and as fundamental to that we call attention to a case decided by tlie Supreme Court of Minnesota, and reported in the last number of the Weekly Law Bulletin, of this state. Page 242 of the Bulletin, the fourth paragraph, contains this language:

"What one man may lawfully do singly, two or more may lawfully agree to do jointly. The number who unite to do the act can not change its character from lawful to unlawful. The gist of a private action for the wrongful act of many is not the combination or conspiracy, but the damage done or thereatened to the plaintiff by the acts of the defendants. If the act be unlawful, the combination of many to commit i^may aggravate the injury, but cannot change the character of the act. In a few cases there may be some loose remarks apparently to the contrary, but they evidently have their origin in a confused and inaccurate idea of the law of criminal conspiracy, and in failing to distinguish between an unlawful act and a criminal one.. It can never be a crime to combine to commit a lawful act, but it may be a crime for several to conspire to commit an unlawful act, which if done by one individual alone, although unlawful, would not be criminal. Hence, the fact that the defendants associated themselves together to do the act complained of is .wholly.inimaterial in this case. We have referred to this for the reason that counsel has laid great stress upon the fact of the combination of a large number of persons, as if that rendered their conduct actionable.”

The court cites in that paragraph, Bowen v. Matheson, 14 Allen, 499; Steamship Co. v. McGregor, 23 Q. B. Div, 598, 1892 App. Cas. 25; Parker v. Huntington, 2 Gray, 124; Wellington v. Small, 3 Cush. 145; Payne v. Ry. Co. 13 Lea. 507.

Quite-a number of text books were cited by counsel as bearing upon this general question, and among them was the chapter in Bishop on Non-Contract Law, beginning with sec. 353, and ending with 367 — being chap. 19 under the head of "Conspiracy.” I will read but a comparatively small portion of this.

‘"Sec. 355. Is there a civil wrong properly termed conspiracy ? In the criminal law, there are wrongs against the public, whereof a part are as incorrectly called conspiracy, as are the civil ones just mentioned; but, at the same time, another part justly bear this name.”

And further down:

"So that there is a crime of conspiracy, consisting of the combining of will and endeavor, whereof one cannot be guilty unless his fellows are guilty also. And it is a principle of our civil jurisprudence that,whenever one suffers specially from a crime, he may have his civil action of tort against the wrong-doer,; or, as expressed in an English court, applj'iug the principle specifically to conspiracy, if the parties are liable to indictment for conspiracy, ‘then an action for conspiracy would lie. ’ Therefore, the conclusion seems inevitable that there are circumstances in which conspiracy proper is actionable; in other words, in which one commits a civil wrong when, and only when, another or others participate with him.
"'See. 350. The rule in civil jurisprudence, that one cannot maintain a suit for another’s wrong until lie had been injured thereby, greatly reduces the number of actions for what is truly conspiracy. The mere criminal combining is at the common law indictable, but no wrongful combination is actionable until the party complaining has suffered a damage; * * * in an action at law, therefore, the material thing is to show an injury, and it would at the first impression seem to be unimportant whether one defendant or more did it. Probably from this reason, but it is of little consequence from what, some text writers and judges have expressed the opinion that there is n<j such thing as conspiracy proper in our civil jurisprudence. The question could not be matter of judicial decision, for it would be impossible to make up a record involving it. Nor would it in any case be absolutely necessary that a verdict should be rendered against more than a single conspirator; for it is so even in the criminal law. But it is simple fact that there are actionable injuries which two or more can inflict on another, not within the power of one alone. Therefore, it is fact, however we may reason, that there is a civil wrong properly termed conspiracy.
“Sec, 857. Conspiracy, in the proper restricted meaning of the word, and viewed as a tort, is a malicious combination of two or more persons to injure another, in person, or property, in a way not competent for one alone, resulting in actual damage to him.”

We think this chapter of this book very clearly and succinctly states the whole law“fupon this subject; but the question still is, under those rules, does this present amended petition sufficiently allege the wrongs and injuries and damage that are claimed? Without elaboration at length, it is our understanding that pleadings generally which seek damages for a tort, for a wrong or injury, must contain an averment of fact which the law recognizes as being injurious, as indicating that damages must have been suffered in some form, or there must be a specific averment of damages suffered in the particular instance in order that the pleading be sufficient. There are a large class of injuries from the mere statement of which the court would take notice that injurious consequences would naturally, if not necessarily, follow. And we suppose that the rule is that in such cases, having stated the facts, it is sufficient for the pleader to state in general terms at the close of his petition, or at some appropriate place, “to the damage of the plaintiff” so much: this averment not being made mainly for the purpose of alleging the fact of damages, but simply for the purpose of stating the limit of the amount of damages claimed. Where facts are not so stated — that is, facts of the character that would necessarily give rise to damage — it is necessary for the pleader to show in the petition that damages in the particular case have in fact resulted. It may not be necessary always to go into the minutia, to state in detail all of the circumstances which would bear upon the question of damages; but there must be a direct averment of fact showing that damages did result, or some equivalent averment, in cases of that kind. Now, having considered this petition in the light of these rules, we will indicate our views with respect to it.

The plaintiff says, that the Toledo Consolidated Street Railway Company is, and was, at the time of the happening of the events narrated in the petition, a corporation organized under the laws of the state of Ohio, and operating a street railroad in the city of Toledo. The next paragraph charges, that, “After the said, The Toledo Consolidated Street Railway Company, had commenced the operation of its street railway system as aforesaid, to-wit: upon the 5th day of April, 1889, the plaintiff, The Toledo Electric Street Railway Company, was duly incorporated to operate a street railway system in the said city of Toledo, and duly obtained permission from the common council, of said city, by ordinance, to operate all its street railroad system, on and along the folloAving streets, to-wit.” Then follows a long list of streets and parts of streets along which it is said that the plaintiff has obtained the permission of the common council to operate its system of railroad. (I would say, in passing, that it does not contain the averment that any of these streets are the same streets or parts of streets along which the defendant corporation is operating its system of railroad. Perhaps this is of no special moment.) Then follows this paragraph:

“Plaintiff further says, that before the permission of said council to operate said street railroad could be obtained, it was necessary for this plaintiff, through itself or others, to obtain the written consent of a majority of the property holders upon each street above named, represented by the, foot front of the property abutting thereon, and to agree -to carry passengers on said railroad at the lowest rate of fare. Before the incorporation of the plaintiff aforesaid, David Robison, Jr., Trustee, began the work of obtaining the consents of the property holders on the various streets above named for the construction of a street railroad thereon, and duly-obtained the permission of the common council of the city of Toledo to construct a street railroad in and along said streets,-as aforesaid.”

It will be noticed that it says the plaintiff, the Toledo Electric Street Railway Company, obtained a permission of the common council to operate a street railway along these designated streets, and this last paragraph alleges that before that David Robison, Jr., Trustee, had also duly obtained permission of the council to do that same thing, and on the said streets.

“And therafter, said David Robison, Jr., Trustee, duly sold, transferred and assigned to this plaintiff all his right and interest in the ordinance granting said permission aforesaid.”

That would be the ordinance granting to David Robison, Jr., of course — “together with all claims he had against the defendants for maliciously conspiring to interfere and ruin his said enterprise as hereinafter set forth.”

Therefore it would seem that after the incorporation of the plaintiff it obtained an ordinance and permission to operate its railroad along these designated streets upon which before that said David Robison had obtained permission to operate upon, as if there were two separate permissions of the council to operate a street railway along these identical streets; but that after the incorporation, Robison had assigned his interest, under his permission, to the plaintiff. The petition proceeds:

“Plaintiff further avers that said defendants, Albion E. Lang, William E. Hale and Norman B. Ream, are all connected with and personally interested as officers and stockholders in the said The Toledo Consolidated Street Railway Company, which said company had by divers purchases, and conveyances obtained the entire control of, and during the time of the transactions herein set forth was operating, all the street railways lines in the city of Toledo, except those of this plaintiff.
"For canse of action against said defendants and each and all of them, plaintiff says that defendants, maliciously and wickedly contriving and conspiring how they might perpetuate the said monopoly of street railway carrying business in the said The Toledo Consolidated Street Railway Company, and prevent and destroy the inauguration of any competing street railway enterprise in the said city of Toledo. And further, maliciously contriving and intending to injure plaintiff in its business of constructing and operating its street railway in said city, impair its credit, and involve its whole property .rights and franchises in ruin; did, to-wit: on the first day of January, 1889, wickedly, and maliciously, among themselves conspire, confederate and agree, together as follows, to-wit: to delay and if possible prevent the plaintiff and the said David Robison Jr., Trustee, constructing said railroad.”

(That is, that some time before the actual incorporation of the plaintiff company this conspiracy was entered into for this purpose.)

"To disable them from selling or otherwise disposing of the bonds and other securities issued for raising the means to construct said railroad, to prevent manufacturers and dealers in iron and railroad and electrical supplies, from selling the same to plaintiff, and to prevent them from being used for said railroad, and further to prevent plaintiff and David Robison, Jr., Trustee, from placing said railroad in condition to be operated as they were authorized by law to do, and to destroy all opportunity and possibilty of any profit being made out of the operation of the said street railroad. The defendants so maliciously contriving, on or about the first day of January, 1.889, and at various other times prior to the commencement of this action in pursanee of and according to the combination and conspiracy, aforesaid, and in order to carry the same into effect, did maliciously, by misrepresentation, persuade abutting property owners, etc.”

So it appears from the petition that the conspiracy was entered into, before the incorporation of the plaintiff company. There is no allegation that the organization of the plaintiff company was then contemplated, or anything being done with a view to that; and, of course, whatever is said here in the petition as happening before the 5th of April, when this company was incorporated, must, although the plaintiff’s name is used, be assumed to apply to David Robison, Jr., Trustee; and if the plaintiff has anything from that, it gets it by assignment from David Robison, Jr.,Trustee. The petition proceeds to state what was done in carrying out this malicious conspiracy:

‘‘They did maliciously, by misrepresentation, persuade abutting property owners on the streets through which the proposed railroad was run to withhold their consents from the said David Robinson, Jr., Trustee for the construction of said road. ”

That is one part of the sentence We must take notice of course, that the law is as stated in this petition regarding the necessity of getting consents before a street railway can be built. It is alleged that they persuaded property owners on the streets to -withhold their consent. ' Perhaps that is sufficient allegation that property owners did, in fact, -withhold their consent; but it cannot mean, it cannot be construed fairly as meaning, that all of the property holders withheld their consent, or that a sufficient number of property holders withheld their consent, to defeat the enterprise. Not only is there a failure of allegation in that respect, but the affirmative allegations of the petition contain the showing that whatever difficulties were encountered along this line were obviated, because permission was obtained, and the road was built; so that if it were true that certain property owners were persuaded, it apparently made no difference. And there is no averment that any delay resulted from the act of these property owners in withholding their consents, or that there was any expense incurred on that account. It may have been one, it may have been two, but the number didn’t affect anything.

‘‘Did maliciously induce by pecuniary and other improper considerations, some property owners who had given their consents for said railroad to withdraw the same from the said David Robison, J., Trustee.”

The same remark will apply to that. That may be all so, and not result in the least injury; that is, there is an absence of averment that a sufficient number of those did withdrawn on this account to make any difference in obtaining the ulitimate object of the plaintiff or David Robison, Jr.

“Did maliciously oppose by false statements in the common council of the city of Toledo, the ordinances by which David Robison, Jr., Trustee, and this plaintiff was granted permission to construct a street railroad in the streets of said city.”

Whatever they did, however willful and malicious the defendants may have been in that regard, however they may have bitten the air in their malice, yet they accomplished-nothing; that is, there is no averment that they accomplished anything; but, on the contrary, the permissions were obtained.

“Did maliciously delay-the construction of said railroad for more than four months.”

To this averment we will recur hereafter.

"Did make bids in the name of others for the construction of said road in competition with the said David Robison, Trustee, falsely claiming that such bids were made in good faith by those who had submitted them to the council.”

There is an absence of averment here that this false representation and false bidding made any difference at all with the bid of the plaintiff or Mr. Robison. There is no averment that by reason of these false bids the council were misled with the idea that they were made,in fact, in good faith, or that the council regarded them as made in good faith, or that Robison or the plaintiff, were compelled to make more favorable terms for the city and worse for themselves than, they otherwise would; but, so far as the averments go, they had as little effect as the other matters in question.

“Did maliciously stir up and instigate owners of property abutting on said streets to bring suits without probable cause in the state and United States courts, to restrain plaintiff from proceeding with the work of constructing its road, in some of which suits injunctions were obtained, restraining plaintiff, to its great loss and damage.”

Whatever may be said in other respects regarding this averment, it does not appear by it or in the petition but that these same suits are still pending in the court. If this cause were tried upon the facts, this court, or whatever court tried the facts of the case, would be asked to find that these suits were without probable cause; but its conclusion upon that subject might be contrary to the judgment of other courts, trying these same actions, and according to the well known rules, the averment that said suits were terminated, should be in this petition in order to count upon this particular clause.

“Did cause and instigate the Attorney-General of the state of Ohio, to institute proceedings, without probable cause, in the Supreme Court of Ohio, to oust and exclude plaintiff from the use and enjoyment of its franchises and property; the expense of said suits being paid by the defendants, and the attorneys for their prosecution being employed by them. ”

The same consideration would apply to that as to the last clause; that is, from the petition, we do not know how that matter terminated, or that it has terminated at all. Perhaps it may be said that it was fairly inferible that it has not yet terminated against the plaintiff, because it says it is a corporation and is a going concern.

“Did maliciously and falsely represent, verbally and in writing, to various capitalists in different parts of the country, that the street railroad of plaintiff was not one intended to be constructed, was a paper road, and not adequately backed financially; that investments in its securities would be unsafe. ”

This is another paragraph 'by itself. The same things might be said about that as were said about the other áverments, that however wrongful and malicious such conduct might have been, it does not appear that it accomplished anything; that it delayed the plaintiff or Mr. Robison a moment, or that it subjected him to any expense, or precluded them from obtaining the advantages which they otherwise might have obtained.

“Did maliciously and falsely charge, in verbal and written communications, that the plaintiff would not be able to build its road; that it would be sold out in a few months; that plaintiff was insolvent; and in divers other similar expressions did defame and injure plaintiff’s said street railroad enterprise, its reputation and its property, in public estimation,and did maliciously make false statements regarding the financial standing or plaintiff and said Robison, Jr. Trustee, to the effect that they were not responsible, to munufacturers and dealers in railroad and electrical supplies with whom plaintiff was negotiating for purchases.”

This is obnoxious to the same criticism. That any manufacturers or dealers in supplies refused them credit, or refused to deal with them, or that they lost in fact any custom by it, is not averred. I say as yet it is not averred except that it is averred, as I have already read, “they did maliciously delay the construction of said railroad for more than four months.” As I have already read in the beginning, the plaintiff does state in his petition: i,!By means of the interference with its business and property as herein set forth, by the malicious conspiracy carried out by defendants as aforesaid, it has been subjected to great loss and damage, to-wit: $250,000.” We think that from the acts complained of here, if they or any of them occurred, injury may have resulted, whether they were done by one or more of the defendants; if in fact a single defendant had gone to a person with whom these parties were about to deal or were dealing, and by false and malicious representations actually deprived the plaintiff, or Mr. Robison, of an advantage which legally he, or it, had a right to, that person would have been liable for damages; and if he had associated one, two or more persons or corporations, with him, it would make no dfference, except that it would involve them in the liabilty which he himself had incurred as well. The fact that is alleged here,is that they did maliciously delay the construction of said railroad for more than four months. Supposing that had simply stood alone in the petition, without averring a conspiracy as it is averred here, and it had been said that the defendants did maliciously delay the construction of said ralroad for more than four months, to the damage of the plaintiff, $250,000, would that be a sufficient pleading to show a cause of action? I cannot give authorities at length here. I happen simply to have this statement in sec. 838 of^Bishop on Non-Contract Law,speaking of another matter, however, he says:

“A false representation made with the view to cheat a person does not injure him unless or until he is cheated.”

While there may be better expressions to illustrate what I am dealing with, that will afford a basis. Supposing the plaintiff had put in his petition simply the statement that false representations were made to him whereby he was deceived and cheated, to his damage in the sain of $250,000, oí- any other sum, could it for a moment be regarded as sufficient, without setting forth the situation of the parties and the facts, from which the court could see that if the allegations of the plaintiff’s petition were true, the natural consequence would be damage? Similarly in a case for negligence. it is not sufficient simply to allege that the defendant was guilty of negligence respecting his duty to the plaintiff to his damage in any particular sum; that is not a sufficient allegation of damage, but the facts must be recitdd so that upon the face of the petition it can be seen by the court, or any person judging it properly, that if the facts are true as stated, they necessarily or probably indicate negligence and involve damage. And unless such facts are shown, other facts must be pleaded to show that in the particular case, as a matter of fact, damage did result; and the facts must be alleged, so that reasonably and practically, in the ordinary course of matters such as are stated in the petition, damages would result.

We think the plaintiff would scarcely expect to sustain its petition here upon that sort of an averment, viz. that the defendant maliciously delayed the construction of said railroad more than four months; we think it would be necessary to allege the acts which caused the delay. They have specified certain things; for instance, an opposition before the council to the granting of the permission to maintain the railroad or to construct it. Such opposition might or might not be actionable; and the delay occasioned by it might or might, not result in legal damages such as the plaintiff ought to recover against the defendants. It might be that the opposition was proper,although it might tend to delay the plaintiff or Mr. Robison, and might result in actual delay; yet the acts done or the words spoken may have been of such a character that the party had a perfect right to do them or speak them. And in such matters courts frequently draw the line very closely, as our own Supreme Court did in a case in 12 Ohio St., that of Frazier v. Brown, page 294. The plaintiff in that case charged that his neighbor injured him by maliciously digging in his own ground a hole, whereby water was cut off from the plaintiff’s ground. In the petition, after averring that there was a never failing rivulet or stiearn of water, to the great benefit and convenience of plaintiff; “and which said spring and the stream or rivulet of water issuing therefrom, had from time immemorial, been in the open, interrupted and continous oecupancjr of the plaintiff and his grantors. Nevertheless, the plaintiff 'says that the defendant being then and ther3 an adjacent proprietor, and well knowing the premises, but contriving and wickedly intending to injure the plaintiff and to destroy said spring and the stream of water issuing thereform, and to deprive the plaintiff of the use and benefit of them, did, on or about the 80th day of October, A. D. 1856, at the county aforesaid, by means of a certain hole, wickedly and maliciously dug for the purpose of destroying said spring, and diverting-the stream or rivulet issuing therefrom running across, through and over the aforesaid premises of the plaintiff, upon the adjoining lands of him, the said defendant, near to and adjoining to the place where said spring issued or oozed out of the earth upon the premises of him, the said plaintiff, as aforesaid, whereby and by means of said hole, so dug as aforesaid, plaintiff says the defendant wickedly, wilfully and maliciously sunk and destroyed said spring of wafer and diverted the stream issuing therefrom, from running through, over and across the premises of the plaintiff, as aforesaid. Whereby, and by reason of the committing of the grievances aforesaid, by the defendant, plaintiff says he is damaged, etc. The court in construing a case of that kind, said, in the second paragraph of the syllabus, this: “The act, to-wit: the use of his own property— being lawful in itself, the motive with which the act was done is, in law, a matter of indifference. Whether it would have made any difference in law if the ‘hole’ had been dug from motives of unmixed malice, and was designed for no purpose of ornament or use--query.’’ The plaintiff in that case had alleged this malicious intent to injure, the wickedness with which the thing was conceived, and that he was injured by it; nevertheless, the court say, that as he was digging upon his own ground, and it might have been that what he did was for his own benefit, although he at the same time maliciously designed to injure his neighbor, yet, as there was a chance to suppose that it might not have been after all unmixed malice- — that the hole might have been of some benefit to liim as well as injury to tlie other- — -the action could not be maintained. That is not analagous to this case, for many purposes, but it illustrates the necessity of setting forth the facts which would in and of themselves, if true as alleged,indicate the character of the transaction and its necessarily injurious consequences; so that, when the petition simply states that they delayed the construction of this road for four months, we think it is insufficient to show that they used any means that were so improper and unlawful under the circumstances, although they may have had improper motives in what they did, to constitute a sufficient pleading of the facts from which injury and damage might be said to flow.

Our general view of this petition here is already indicated, perhaps, that we think that the general averment “to the plaintiff’s damage,” or that, "the acts have resulted in damage’’generally “to the plaintiff $250,000,” is insufficient, and does not sufficiently supply the place of the averment that should liavé been given under these various paragraphs to which I have called attention, showing that actual injury did result from these acts, or some of them. Plaintiff’s attorneys and defendant’s are agreed as to this rule, viz: that in such a class of cases damages is the gist, or, as it is sometimes put, the gravamen of the charge in the action. If damages are the gist of the action, it is not sufficient simply to*state that damages did in fact result, but to allege and state the facts from which the'court could see, if the facts were true, that damages would naturally or possibly flow from the acts stated.

The petition is somewhat confused as to what rights Mr. Robison had at any time undertaken to assign — how much of it is sought to be based upon conspiracy as against Mr. Robison and his enterprise, and how much is directed against the plaintiff after its incorporaton; but we find it unnecessary to determine whether there would be anything in such a case that Mr. Robison could assign; or, perhaps, more correctly, that the plaintiff could lawfully buy. The petition is faulty in these other respects which we regard as fatal; and the judgment of the court of common pleas in the action will, therefore, be affirmed by this court.

E. H. Hurd, O. S. Brumback. John E. Kvmlei-, for plaintiff in error.

Baker, Smith & Baker, for defendants in error.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan’y Term
    Before Swing- and Smith, JJ.
    CHARLES DONALDSON v. THE STATE OF OHIO
    1. Under the provisions of secs. 731G and 6835, Rev. Stat. ,a person indicted for the crime of burglary, may properly be found not guilty of burglary, but guilty of an attempt to commit burglary. Sec. 6835 makes an attempt to commit a burglary a substantive offense, and sec. 7316 expressly warrants this, if such attempt is an offense. And such provision is not in conflict with any provision of the constitution.
    2. The charge given by the trial judge to the jury in this case, as to the consideration to be given by it to the evidence offered by the defendant as to his good character, was erroneous and calculated to mislead the jury.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

The plaintiff in error was charged by an indictment, containing but one count, with the crime of burglary. At the trial the jury returned a verdict finding him “not guilty of burglary as he stands charged in the indictment, but guilty of an attempt to commit burglary as charged therein. ” A motion for a new trial was thereupon filed by the defendant, based on the grounds that no indictment had ever been presented against him, charging him with an attempt to commit burglary, and that the court had erred in the charge given to the jury. This motion was overruled by the court, and the defendant sentenced to imprisonment in the penitentiary for one year — to all of which exception was duly taken, and a bill of exceptions allowed, presenting the points, and this petition in error is filed to reverse such judgment.

Bee. 6835, Rev. Stat., defines the crime of burglary thus: “Where one in the night season, maliciously and forcibly breaks and enters,or attempts to break and enter, any dwelling house, * * * with intent to commit a felony, or with intent to steal property of any value, shall be imprisoned,” etc. Thus making an attempt to commit the criminal act described, an offense.

Bee. 7316, Rev. Stat., provides that “upon any indictment the jury may find the defendant'not guilty of the offense charged, but guilty of an attempt to commit the same, if such attempt is an offense.”' If therefore this provision of the statute is constitutional, it would seem clear that the finding of the jury in this case, should not be interfered with on the ground urged that the defendant in the indictment was not specifically charged with an attempt to commit the offense of burglary. We see no reason to doubt the constitutionality of the provision. The same reasons which uphold the law as administered without question, time out of mind, and which have received the sanction of our courts, and are questioned by no one, that a person indicted for murder in the first degree, may be acquitted of the principal offense, and found guilty of murder in the second degree, manslaughter or assault and battery, or assault only, apply equally here, so far as this question ‘is concerned, and the judgment should not be interferíed wdth on this ground.

Did the court err to the prejudice of the defendant below in the charge given to the jury in regard to the'weight and effect to be given to the evidence offered by hiin as to his previous good character?

It appears from the bill of exceptions that the whole of the charge given to the jury by the trial judge on this subject was this: “Evidence of good character is to be taken into account by you like all other evidence introduced into the .case. If the evidence leaves it doubful in your mind as to whether the defendant is guilty, the fact that he is a man of good character should turn the scale in his favor; but if the evidence, outside of the evidence as to character, satisfies you beyond a reasonable doubt that the defendant is guilty, you should not acquit him simply because he is a man of good character.”

To this charge the defendant excepted, and it is urged by his counsel that what was said on this point was erroneous, and that it did not fully and properly state the law upon the subject.

We have had some doubt on the question whether what was thus said by the trial judge was erroneous. He first instructed the jury that evidence of the good character of the defendant was to be taken into account by them like all the other evidence introduced, and this was right and would have been sufficient on this point, unless the effect of it is limited by what was afterwards said. He next told them that "if the evidence left it doubtful in their minds whether the defendant was guilty, the fact that he was a man of good character should turn the scale in his favor.” This language seems to imply that there was to be a consideration by them first, of the evidence other than that as to character, and that if on that, there was doubt of the defendant’s guilt, that evidence of good character ought to decide it in favor of the defendant. But if on this other evidence the jury had reasonable doubt of the guilt of defendant, evidence of good character was not necessary to his acquittal, and what was said to the jury, rather leads to the conclusion that it was the idea of the trial judge that it was only when this other evidence raised a reasonable doubt, that the evidence as to good character should be considered to turn the scales in his favor.

This we think is not accurate or correct. It was held in 5th Jones N. C. 66, and approved by our Supreme Court in Harrington v. State, 19 Ohio St. 269, “that it is error for the court in a criminal case to charge the jury, that in a plain case a good character would not help the prisoner; but in a doubtful case he had a right to have it cast into the scales and weighed in his behalf.” And in the same case the true rule was said to be that the testimony is to go to the jury and be considered by them in connection with all the other facts and circumstances. And if they believe the accused to be guilty, they must so find, notwithstanding his good character. And these rules are approved in Stewart v. Ohio, 22 Ohio St. 485. The next paragraph of the charge given in this case, as it seems to us, still seems to go upon the idea that the evidence as to good character is to be considered as separate and apart from the other evidence-in the case, for the judge says, “if the evidence, outside of the evidence as to character,satisfies you beyond a reasonable doubt that the defendant is guilty, you should not acquit him simply because he is a man of good character.” But the evidence outside of' that as to character, should not be considered .alone. The whole testimony should be looked at together, and if on a fair consideration of the whole of it. a reasonable doubt of the defendant’s guilt exists, it should go to his acquittal. But if on the whole evidence, there is no such reasonable doubt of his guilt, the jury should so find, notwithstanding the proof as to good character.

Thos. F. Shay, for plaintiff in error.

Prosecuting Attorney, for defendant in error.

It seems to us that this is not the law as given by the trial court to the jury; but that the idea naturally conveyed by the language used, is, that such evidence is valuable only in an otherwise doubtful case, andjbeing of the opinion that it was not accurate or strictly correct, and thereby being calculated to mislead the jury, we think for this reason the judgment should be reversed and a new trial awarded to the defendant below.


author: Shearer, J.

text:
    (Second Circuit—Greene Co., O., Circuit Court
    Oct. Term, 1895.)
    Before Shearer, Summers and Allread, JJ.
    BOARD OF EDUCATION v. BOARD OF EDUCATION.

      Right of children to attend school in other than the district of their residence more conveniently located — Sec. 4022a {89 O.L. 233) construed — Permission of school board of district of their residence not required — Liability of school board of district inhere such, children reside to pay per capita to the school board of the district where the same attend school. '
   Shearer, J.

(orally, memorandum report).

The original action was brought before a justice of the peace, and by appeal taken to the court of common pleas where the plaintiff in error filed a petition, claiming judgment against the defendant in error upon a demand for the tuition of certain school children residents of the school district under the jurisdiction of the defendant in error, alleging that the said children were permitted by the plaintiff, with the full knowledge, consent and acquiescence of the defendant, to attend the school in Bellbrook Special District, being the school under the jurisdiction of the plaintiff board; that this was with the knowledge of the plaintiff board; that said children were non-residents of plaintiff’s district, were of school age, and resided more than one and one-half miles from the school-house in the district of their residence; also the presentment and rejection of said claim, and praying judgment. The defendant board by its answer denies that it granted permission to said children to attend said Bellbrook school; alleged that they were legal residents of the district under its jurisdiction known as Sugar Creek Township District No. 2; that no application was made on behalf of said children for permission for them to attend said Bellbrook school, nor was any such permission or authority granted; that if they attended another school, they were admitted without the authority or permission of the defendant board, etc.

A demurrer to this defense was overruled, and this is assigned as error. The determination of this question depends upon the construction of section 4022a Rev. Stat. as amended and supplemented April 25, 1893, (91 O. L. 295), which is to be arrived at by a consideration of the old law, the mischief and the remedy.

It is not necessary to discuss the objects to be attained by the school la-ws,nor the history of these laws farther than they are concerned here.

Original section 4022, as found in the Revised Statutes provided that one board of education might contract with another for the admission of pupils into any school in such district upon such terms as might be agreed upon, and that the expenses should be paid out of the school funds of the sending board. Then the whole matter of the education of pupils in schools outside of the district of their residence was the subject of contract between the boards. If there was no contract, no rights or liabilities arose. But in April, 1892, (89 O. L. 233) said original section was supplemented by section 4022a, w'hicli provides that boards of education shall permit children of school age who reside more than one and one-half miles from the school where they have a legal residence, to attend the nearest sub-district, special district or joint sub-district school, and that the tax paid into the district where they .have a legal residence shall, upon demand by the board of the district where such children attend school, be paid per capita to such board by the board of the district wherejsaid children have a legal residence, which per capita shall be ascertained by dividing the total amount of money received by any such district by the number of scholars of school age in that district; and all acts, etc, inconsistent with this amendment, are repealed so far as inconsistent, etc. The present act, (90 O. L. 295) differs from the foregoing only in the method of ascertaining the amount to be paid on behalf of the non-resident pupils.

It seems clear that the object of the supplementary section was to obviate a well known' inconvenience clue to the arrangement of sub-districts and the location of school houses in many parts of the state,it being the purpose of the legislature to provide for school children, who if confined to their own "districts, would be required to travel an inconvenient and burdensome distance, by giving them the right to attend a more convenient school in an adjoining district, independently of any contract between the, respective boards of education.

If this permission provided for is to proceed from the board of education of the district where the children reside, how is it to avail? If the other board is unwilling to receive the children, what is to be done? It seems to us that such permission would be but an empty ceremony.

But if the permission is to be given by the receiving board, then there is no obstacle to the children attending school. They cannot be deprived of school privileges; for they must be admitted if they fall within the class entitled to attend outside the district of their residence; and the sending board is not concerned in the matter beyond paying for the tuition, which it was entirely competent to the general assembly to require of them.

A large portion of the school fund is derived from the state, and the legislature may direct, as they always have done, how it may be expended.

We see no difficulty in a board of education to which application is made for thé admission of a non-resident pupil, ascertaining whether such pupil is entitled to the benefit secured to it by the act in question. That done, the" board must permit the pupils to attend; and the board of the district where the pupils reside must pay for it.

But as we have said before, if we hold that permission is to emanate from the board of the district where the pupil resides, and no duty, is imposed upon the other board, the permission woirld be futile and ineffectual.

Marcus Slump, for plaintiff.

M. T. Hartley, for defendant.

The views we indicate, somewhat crudely for want of time to be more perspicuous, are, we think, the more reasonable, and will undoubtedly effect the object of the statute, without any of the many difficulties which counsel seem to anticipate.

The argument of learned counsel for the defendant in error, and the reasoning of the learned judge below, seem to us more specious and ingenious, than sound. “Permit” —“allow”'—“suffer'” are synonymous in popular speech. Statutes should be construed with reference to convenience, and the object sought, rather than nice philological distinctions, which probably never entered, the mind of the general assembly.

Reversed. Demurrer sustained, and remanded for further proceedings.


author: Caldwell, J.

text:
    (Sixth Circuit—Summit Co. O., Circuit Court
    Sept. Term, 1895.)
    Before Caldwell, Hale and Marvin, JJ.
    THE AKRON WATER WORKS COMPANY v. AUGUSTUS T. BROWNLESS et al.

      Liability of oily for damages by fire, caused by insufficient water supply-—

    1. Certain municipal corporations in this state are given power by the state to erect and maintain water works for supplying water, etc., and such power is, in its nature, legislative and governmental, and a city is not liable to individuals for damages to their property by fire caused by a want of supply of water in the pipes or by reason of too low a pressure.

      Same — Water-works company operating under contract with city—
    2. When a city contracts with a company to supply the water, there is no contract relation between such company and the private consumer that will enable the consumer to sue the company for a núncompliance with the contract between the city and the company.'

      Sarnie — Extent of liability of water-works company — -
    3. Under such a contract the city is acting m its legislative and governmental capacity, and the water works company is the agent of the city so far as consumers are concerned, and is liable to the consumer by reason of such contract only, to the extent the city would be liable if it furnished the water directly to the consumer.

      Charge, to jury — Abstract propositions of laic, when error justifying reversal of judgment—
    4. It is misleading for the court to charge abstract propositions of law to the jury where there are no facts to which such a proposition of law can apply; and if it is apparent form the record that the plaintiff in error was prejudiced by such charge, the case will be reversed.
    Error to the Court of Common Pleas of Summit County.
   Caldwell, J.

(orally).

Augustus T. Brownless et al. were the owners of a house and lot in the city of Akron, which property was supplied with water the same as residences generally are, only perhaps in a more limited way than many of them, and the property caught fire and burned down, and they brought this action against the Akron Water Works Company, and ásk to be compensated for the building, claiming that the Water Works Company failed to have a supply of water at the time of the fire, and that while they attempted to use a hydrant that was in the yard, such a hydrant as was used for law-n sprinkling and other purposes, and undertook to use it with a garden hose, and claimed that the hose would have been ample and sufficient to have extinguished the fire at the time that it was sought to be used, yet on account of there being no supply of water and no pressure, they could get no water, and the fire made such headway before any other means could be used, by calling the fire department of the city, that the property was destroyed.

There was some question in this case as to whether or not there was contributory negligence on the part of the plaintiffs below, in the way in which the building took fire, and we think that question was satisfactorily disposed of by the court. It was a question where a jury might have found either way, and we hardly feel justified in saying that the conclusion the jury came to was incorrect. But the main question in this case, and the only one to which I shall devote any time, is whether or not the Water Works Company can be sued by an individual who has lost his property for the want of the ordinary pressure in the pipes, or for any other defect in the system of water works, as contemplated by the city when the water works were put in.

It seems that the city of Akron has a contract with the Water Works Company for supplying water, and among other requirements the city has placed, upon the company in that contract, is that a sufficient quantity of water shall be supplied with a sufficient pressure for the extinguishing of fires.

It is claimed by these parties, the plaintiffs below, that this was a contract made for their benefit; that it was within the contemplation of these negotiations between the Water Works Company and the city that private individuals would use the water in and about their premises, and that the requirements made on behalf of the city, of the Water Works Company, were not merely for the purposes that the city might require, but that those requirements were made and placed in the contract for the benefit of the private consumer of water.

In addition to that, it was claimed before us, that when an individual goes to the office of the Water Works Company and pays his water rent,and the city turns the water on to give him a supply upon his premises, that there is a contract, if not alone a contract with him that they will supply, at least a contract that they wdll comply with the terms of the contract between the Water Works Company and the city, so far as his private premises are concerned; and that in this case, these two contracts taken together, gave the plaintiffs in this case a right of action against the Water Works Company.

Then, upon the trial of this case, the court held and charged the jury that the contract between the city and the Water Works Company,of itself alone, did not make such a -contract that the individual who loses his property can make that the basis of an action against the Water Works Company.

The court further charged, that the doing of certain acts, viz., a private citizen going to the WaterWorks Company’s office, paying the water rent and obtaining a receipt therefor, in and of itself would not form the basis of an action of the individual against the company,' and that neither doing it separately, combined they have not that power.

But the court after thus charging the jury, used this language: “And we leave it to you to say from the evidence submitted to you, taking the location, size and capacity of the pipes leading from the main in the street into plaintiffs’ premises into consideration; that is, the capacity of the pipes leading into the premises of the plaintiffs from the mains in the street, the character of the hydrant on the plaintiffs’ premises, and the manner of getting water from this hydrant into said dwelling house, the size and character of the house included, and the use to which the water had been utilized by the plaintiffs in said premises, whether it was contemplated by the Water Works Company and the plaintiffs, that the company did or did not in fact promise and agree to supply plaintiffs with an adequate supply of water to protect plaintiffs’ said dwelling house from destruction and damage by fire.”

That is equivalent to saying to the jury, “That if you find from all the circumstances surrounding the manner in which the water was put in, the manner in which it was contemplated to be handled upon the premises, the objects and purposes for which the premises were used, if you find from those circumstances that the Water Works Company must have understood when it put the water into these premises that it was. undertaking to protect the premises from fire, that then from that such an implied contract arises between these parties, that this action could be maintained in the court. This is the part of the charge that is complained of. Not because in the abstract it may not be good law. If the Water Works Company of this city should go to some factory,or to any private premises in the city, and place in there an apparatus intended for use in case of fire, and agree to supply the water to such apparatus, and knowing that it was thus intended to be used,and that it would be thus used in case of fire, that there might arise under such circumstances an implied contract between the company and the individual. That is not denied but what that might be good law; but it is claimed that this was error, giving the jury a charge to awTard damages upon the theory here advanced in this charge, when there are no facts placed in evidence before the jury that would warrant the jury in this case to give damages, any more than there would to any and all private dwellings in the city of Akron; and because of the giving of that charge, without facts for the jury to act upon, that it was erroneous and prejudicial to the company.

As to its being prejudicial, it is clear from what I have already stated, that this jury could not have awarded damáges at all, unless it was awarded under this part of the charge. This was an action upon contract, not for negligence, but for a breaeh of contract, and the court held that the only two contracts that were in writing, or that any one could have pretended to have made, the terms of -which were determined and fixed, were the two contracts I have already named; and hence there was no way to have awarded damages under the pleadings in this case, but after the jury had determined that there was an implied contract.

The question as to whether there was any contract, or whether the contract between the city and the Water Works Company, inures to the benefit, of an individual to that extent that he may bring an action in case of loss of his property by reason of the Water Works Company not fully complying with its contract with the city; whether or not that may be clone, is entirely immaterial in this case, except as determining what the law is if the case shall be re-tried, for no one complains of the charge of the court upon that ground; and as to the duties and obligations of the Water Works Company, by reason of a person paying water rent to the company and having the water turned on to be used upon the-premises —so far as that proposition is concerned, whether it gives a right of action on contract, that was properly determined by the court, and hence is immaterial, except as looking to the future — the way the court charged is not complained of here.

But if the right of action cannot be founded upon either of these, it is very difficult to see how an implied contract can arise between the consumer of water in a dwelling house and the Water Works Company, or between the consumer and the city; because it is pretty thoroughly established by the law that there is no contract relation between these persons by reason of all that has been done; but the argument before the court by counsel, can only be applied to this part of the charge, and that raises this question: Can there, under any circumstances, or did there under the circumstances of this case, arise a contract relation between the plaintiffs who owned the property, and the Water Works Company? We think not.

There is authority upon this proposition both ways. Kentucky stands nearly, if not quite, alone in holding that such a relation does exist that will enable the action to be brought. On the other hand, the courts quite uniformly hold, so far as this matter has been before them, — and there are a large number of states,' — that this relation does not arise; and although this contract is in some measure between the city and the Water Works Company, made for the benefit of the individual, yet it is not every contract that is thus made, that will enable the individual to sue upon it.

We are veil aware tbat this state has held with many other states, that certain kinds of contracts made for the benefit of a third person, may be sued upon by that third person, and the rights and privileges anticipated by the contract to flow to that third person, may be enforced by him in the courts. But there is a limit to those cases, by all the courts except Kentucky, as I have said, in regard to this kind of a case, and there are very many exceptions to that rule, and there are,'we think, good reasons assigned for them.

Another reason is assigned, that a contract of the nature of this, between a city and Water Works Company, is not a compulsory contract on behalf of the city. It is not like a contract where a city is compelled to keep its streets in order, and if it lets the contract to some individuals or some company to keep those streets in order, that -is for the benefit of every person in the community, the entire public, and it is compulsory upon the city as one of the essential things in the very existence of a city or a village, that there be streets.

Then on the other hand, in supplying water to a city, or supplying fire aparatus to extinguish fire, or providing hospitals for the sick and the maimed, and in various other matters of this" class, there is a discretion in the city how far it will go, to what extent it will provide fire apparatus; what kind of fire apparatus, what kind of water supply, what kind of pressure, and it is not compulsory as in the other case, and is not for the benefit of the entire public; it is for the benefit of those who have property in a city; it is for the benefit of those who may consume, but not for every individual, not for every person. And the courts have gone to the extent to say that by reason of this distinction, the latter class of cases falls more under the discretionary powers of a city, and hence into that line of power called the legislative power, and hence that a city cannot be held responsible for what it does when acting in that line; and while acting, on the other hand, in the other line, they are acting in a compulsory matter where they are obliged to act: and when obliged to act, as one oí the essential acts of the existence of a city, that then' they act on behalf of the entire public, and acting in that way, they are not so much in their legislative capacity, but the more important thing is, how have they fulfilled the duty that they must perform, and the law imposes upon them such duty and such obligation as will protect every individual of the public; and hence a distinction has arisen in which some courts have said that this falls more under the line of legislative power, more under that class, and therefore the city is not liable for those acts. (Wheeler v. The City of Cincinnati, 19 Ohio St. 19: Western College v. City of Cleveland, 12 Ohio St. 373.

Underlying all this, is an element of public good, public necessity. If a city is compelled to make good any loss, by reason of a defective fire apparatus, then no city would dare undertake to extinguish fires, without providing that which is best approved by use generally in fire apparatus, and any defect would make' it liable sometimes for almost the entire town, or for a large block of buildings; it would become so expensive, and all these things would have to be anticipated in looking forward to defraying the expenses of a fire apparatus, that it would be impracticable, almost, for a city to enter into any such enterprise, and yet, an enterprise that is very needful indeed in any city.

The same reasoning is applied by the courts to water works. It may be said, that this is not something the city has to stand, but the Water Works Company; but the same result is reached if the WaterWorks Company must respond to every individual whose property is burned because of some defect in the pipes that might have been cured, or by not having the highest pressure of water that individuals might think there ought to be in the pipes, or the pressure that the contract might,call for, — if the Water Works Company must respond to all these damages, then the courts'say the city is responding, for the Water Works Company must take that into consideration in contracting. In other words, the Water Works Company steps in and takes the work of the city off of is hands,and in doing that, it takes the responsibility of the city to the individual, and no farther. As to third persons the company is the agent of the city.

This seems to leave individuals to hardships some times, and it may lead, to acts of negligence on behalf of the Water Works Company that may seem a great hardship. We do not decide but what carelessness may subject the WaterWorks Company to respond in damages,but that case is not before us at all; the question is, how far are they obligated by reason of contract relation.

If what I said thus far as to the holdings of the courts, and as to our believing that it is the true relation between these parties, and the one that recommends itself to our judgment in this case, if that is true, then there is no contract relation by reason of anything that has been done in this case between these parties.

The court undertakes to give an abstract proposition of law to the jury, by which they may determine an implied obligation on the part of this company, and we will not undertake to say in deciding this question, but what such apparatus might be put upon private premises by this company, as would give rise to such an implied contract; but it is unnecessary in this case, for this property was not equipped in any way different, I mean generally different, from any other resident property in the city of Akron; there was simply a little hydrant in the front yard of that size and nature that almost every dwelling house has somewhere, either in the front yard, or coming through the foundations of the house and on the outside where it would be convenient to attach a hose to it for sprinkling purposes,' — it had only this equipment, and of the ordinary size, and found its way into the mains of the city in the way that all such pipes do; it had no different equipment; and if this obligation could arise in this case, then it might arise in all cases in the city, and when we would reach that conclusion, I can see no way of it but to say that it must necessarily arise out of what the parties have done by way of making contracts, or by way of giving receipts and taking rent, and by the contract between the city and the Water Works Company. But the facts in this case were not such as to warrant the court in leaving this proposition to the jury, and there were no facts for the jury to act upon. That being the case, we think that it was an error on behalf of the court in submitting that proposition under the facts of this case, to the jury, and .as we have already said, it is prejudicial, quite so.

Oviutt, Allen & Cobbs, for plaintiff in error.

R. M. Smith, and G. M. Anderson, for defendants in error.

The case must be reversed and remanded for a new trial.


author: Laubie, J.

text:
    (Seventh Circuit—Portage Co., O., Circuit Court
    Oct. Term, 1895.)
    Before Laubie, Frazier and Burrows, JJ.
    THE VILLAGE OF KENT v. THE DITHRIDGE & SMITH CUT GLASS COMPANY et al.
    Where property and money of a municipality has been diverted under an agreement between the council and municipal authorities, and private parties, to the unlawful use, and for the benefit of such private parties, the municipality may recover such money and property back from such private parties.
    Where he authorities of a municipality, under an agreement with private parties, donate to them a large amount of the money of such municipality and a tract of land owned by it, in consideration of such private parties erecting a factory in such municipality, such transaction is an unlawful diversion of the municipal property, and the same can be recovered back from such private parties at the suit of the municipality.
    Where the officers of a municipality enter into an illegal agreement with private parties whereby municipal property is diverted to the use and benefit of such private parties, and such private parties then form a corporation to which such municipal property thus diverted to their benefit is transferred to the knowledge and with the consent of all the stockholders who accept the benefit of such transaction, such stockholders are not innocent parties, and the municipal property thus diverted may be recovered back from such corporation.
   Laubie, J.

This case comes into this court on appeal. It is brought on the part of the Village of Kent for the purpose of setting aside certain deeds to five acres of land, establish a lien on the premises and have them sold to satisfy the claims which are sought to be recovered against the defendants, E. D. Dithridge, A. J. Smith and the Glass Company. Without undertaking to recite all the allegations of the petition, many of them being superfluous and entirely immaterial to the rights of the parties, it is sufficient to say that the object of the action upon the part of the Village of Kent is to recover lands and money of this corporation diverted by the agreement of all the parties to an unlawful and illegal use, a large amount of it to the private benefit of the defendants.

The plaintiff alleges that it had in its treasury the sum of $85,000 realized from the sale of certain bonds, and that the money was realized and in the* treasury for the purpose of being devoted to public improvements upon streets and for parks and other purposes; that the fhen officers of the village and E. D. Dithridge entered into an unlawful contract and agreement by which the then officers of the village agreed to convey to Dithridge, or to the corporation to be thereafter formed, certain real estate, and to pay to him, or to the corporation to be formed, the sum of $45,000, which real estate was to be and was purchased with a portion of this fund of $85,000, and the $45,000 was to be paid out of that fund, and was so paid; that this agreement was a devotion of the property and moneys of the corporation to private purposes not authorized by law; that Dithridge, in consideration of the property and money, was to form a corporation with a capital stock of $150,000 for the manufacture of cut and other glassware; that on the five acres to be conveyed, and which were conveyed, certain buildings were to be erected as a glass factory; that such company was to run the factory regularly, and permanently to employ 250 hands, most of them to be skilled workmen; that the $45,000 were to be paid as the work progressed; that the - general character of the buildings themselves was described and specified in the contract; that subsequently the defendant, A. J. Smith, became united with him in the contract, and entered into a supplement to it, signed, it is true, by Dithridge and himself only, but executed to the municipality, the Village of Kent; and that it was known, understood and agreed, therefore, between the parties that Smith was to unite, and was united, with Dithridge in the performance of the contract, and was to participate in the receipt of the money; that a deed of the premises was made .to a party,the corporation formed,and a deed of the five acres was made to it, and it now holds the legal title, that is the Dithridge and Smith Cut Glass Company; that buildings were erected in accordance with the contract; the $45,000 paid, Smith receiving most of the money, he having the general management of the affairs. He subsequently formed the company that was organized, and expended the money, being in fact the real organizer of the company, and became its president and general manager.

It seems that two other parties, who are not parties to this suit, Atterholt and McDonald, under an agreement with Dithridge, united in by Smith subsequently, were to receive $10,000 of this fund in payment for their efforts in futherance of the project, and in procuring the Village of Kent to enter into this unlawful combination; and $10,000 out of the fund received by Dithridge and Smith were, as the evidence discloses, in fact paid to Atterholt and McDonald; $35,000 of it was invested in the buildings and starting the plant with the proper machinery and appliances. Smith,as I have said, was the one who really organized the company, and he procured the subscription of the stock principally, if not wholly, aside from himself and Dithridge,in and about Wheeling, West Virginia, and to each stockholder the facts of the case were made known — that the company was to receive a bonus of $dE,000, — $10,000 of which was to be paid to Atterholt and McDonald, and the arrangement with the stockholders generally was that they were to receive from the company stock in double the amount of the money they should pay in; in other words, they should subscribe for stock, and one-half of it was to be paid out of this bonus received of the village. That was the contract with the generality of the stockholders. With some of them the percentage was a little less, probably twenty, twenty-five or fifty per cent, of their subscriptions was to be paid out of this fund; so that all the stockholders — and it is not alleged or shown that there has been any change in the personnel of the stockholders — knew and understood the arrangement; that is, knew and understood what the Village of Kent and Dithridge and Smith had agreed to do.

Now,if this were an unlawful diversion of the funds of the AUllage by the officers thereof, then each and all of the stockholders of this corporation, its officers and organizers, had knowledge of it, and attempted to, and did, participate in the benefits of the diversion of the money and property of the municipality; so that we have no case here of bona fide purchasers, or of any one acting in good faith in ignorance of the circumstances. That this was an illegal diversion of money and property of this municipality cannot be doubted,and is not disputed. It had no authority to use the money in its treasury for any such purpose,nor to devote its property to any such purpose. It could neither use the fund in the purchase of the land for the purpose named, nor devote the money to such purpose in any of the ways in which it was done.

Substantially the only claim made by the defendants before us is that the bonds issued by the Village of Kent from which this fund was realized, were illegal, and of such character that they could not be enforced against the Village; that the money, therefore, is the money of those who purchased the bonds, and they only can follow it into the hands of this company, or these defendants— this in the face of the allegation of their answer that 'these bonds were issued legally and lawfully. But we are unable to agree with counsel for the defendants in this contention. We think it has no basis as a defense herein; that whatever the rights of the holders of these bonds may be against the municipality is a question to be decided between them and the municipality and so far as this case is concerned, we are not called upon to decide whether the holders of the bonds can reach this fund and follow it as a fund belonging to them, or whether the Village of Kent is responsible to them generally on the bonds or not. The money was obtained by the municipality, and was in its treasury, and as between these parties there can be no question as to the ownership of the fund by the village. The only question there can be in the case, as we view it, is whether or not the Village of Kent may maintain this action; and we see no reason why it may not. If the former officers of this municipality illegally diverted its funds, appropriated them to purposes not in accordance with law, but in violation of law, we see no reason why the municipality may not at any time recover it, if upon other considerations it is entitled to recover it; and hence we say in this case that the Village of Kent may properly maintain this action, and have a judgment against these parties for the amount of money and property thus illegally diverted.

This leaves for ns only the consideration of what shall be the relief granted. The plaintiff asks for alternative relief in various forms. It asks to have the deed set aside conveying this land from the Village of Kent; but that cannot be done in this case,because we could not place the parties in statu quo, and it would be a conveyance of the buildings to the village. The only thing to be done so far as the glass company is concerned is to ascertain the amount that should be paid by it,in so far as it is responsible by virtue of the action of all its stockholders, and to declare that amount as a lien upon the lands conveyed, including the buildings, machinery and fixtures attached thereto.

Now, the company received $35,000 of this money. $10,-000 was diverted by Dithridge and Smith to the payment of Atterholt and McDonald; but we do not find it was any part of the agreement between the parties, that is so far as the Village of Kent was concerned; but at all events, we think it is entitled to recover against the Glass Company only such amount of this fund as was appropriated to its use, or went into this plant, and that was the sum of $35,000. So far as the $10,000 is concerned, that went to the benefit of Dithridge and Smith. They are defendants here, and without answer, and a judgment is asked against them as well as against the Glass Company. As against Dithridge and Smith there will be a judgment entered for $10,000, with interest upon it from the filing of this petition, and there will be a judgment entered against the Glass Company for $35,000, and one-half of the amount paid by the Village of Kent for this property, that is $3,000, with interest on all from the filing of the petition, and that these amounts be declared to be a lien upon these premises, and if not paid within twenty days from the rising of the court, that an order be issued for a sale of the property. We say $3,000 for the land, because we cannot set aside the deed. $6,000 was paid for the whole of the land, something near fourteen acres. We have no evidence of what the five acres were worth, save the statement of one of the witnesses perhaps that it was the most valuable part of the land. We therefore think it fair to assess one-half of the consideration paid by the village for it, to-wit: the sum of $3,000, and that will be the entry — a decree against the Glass Company for $38,-000, with interest from the filing of the petition, and a decree and judgment also against Dithridge and Smith generally for $10,000, with interest from the filing of the petition.

M. A. Norris and O. S. JRoclaoeU, for plaintiff.

Squire, Sanders & Dempsey, for defendants.


author: King, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Sept. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    PHOEBE ULRICH v. THE TOLEDO CONSOLIDATED STREET RAILWAY COMPANY.
    1. An ordinance limiting the rate of speed of street cars in running across the public bridges of a city is not admissible in evidence to show negligence in running at a greater rate of speed in approaching a bridge.
    2. In an action brought by a passenger injured while riding with her husband, it is not error to charge that she should exercise reasonable care to learn of the danger and avoid injury.
    3. The circumstances of the case shown by the evidence as recounted in the opinion fairly sustain a verdict in favor of the street railroad company.
    Error to the Court of Common Pleas of Lucas County.
   King, J.

The plaintiff was injured on the loth day of June, 1893, while riding in a carriage with her husband on St. Clair street, in this city, near a bridge over what is called Swan Creek Cut-off, by a car belonging to the defendant company colliding with the carriage in which she was riding.

She was very severely and seriously injured, and brought an action against the street railroad company to recover damages for her injury, claiming that the street railroad company was negligent,particularly in running its car at a high and dangerous rate of speed, alleging also that there was an ordinance of the city of Toledo prescribing a rate faster-than which cars should not run while crossing bridges in the city, excepting only the bridge over the Maumee river, known as the Cherry street bridge. There are also other allegations of negligence; that the motorman did. not look out, didn’t ring his gong or his bell, gave no warning of the approach of his car, and that the bra'ke of his car was somewhat out of repair.

The defendant denied the allegations of negligence, as set forth in the amended petition filed by the plaintiff, and alleged that the plaintiff was guilty of contributory negligence. That was denied by the reply.

The trial in the court of common pleas resulted in a verdict in favor of the railroad company, and it is here sought to set aside the judgment rendered upon that verdict, for the reason that it is against the evidence and the law, because the court erred in ruling out certain evidence offered by the plaintiff below; because the court refused to give the requests asked by the plaintiff; and erred in the charge as given.

In the natural order of things, it seems proper to consider the exceptions to the refusal of the court to admit the evidence complained of. The injury to the plaintiff occurred on St. Clair street, at the south end of the bridge over what is called the Swan Creek Cut-off — either upon the south end of the bridge, or right at the entrance to the bridge from the roadway. The plaintiff and her husband were driving north on St. Clair street, on the east side of it, outside the railway tracks. Her husband owned the horse and carriage, which was a covered buggy, with the back curtain down and the side curtains up.' The husband was driving. The plaintiff was riding with' him. They drove down St. Clair street, which at this point descends towards the bridge, and descends about 10 feet in ‘250 or 300 feet from what is known as Clayton street, which comes into St. Clair from the east. They had come down Clayton street and turned onto St. Clair street, and went northerly, on the right hand side of it to some point near the bridge, and at that point their horse and buggy came upon the railroad track. "Whether they attempted to cross it, or the horse became unmanageable and jumped upon the track and took the buggy with him, or just how the carriage came upon the track, is not certain; at any rate, they came upon the railroad track, and the car, going northerly, struck the rear end of the buggy, either upon the street just as it approached the bridge, or upon the south end of the bridge, and the buggy was thrown to the left hand side of the railway track and crushed, and the occupants were thrown out and injured. The city of Toledo enacted an ordinance providing that street cars should not run at a rate of speed greater than six miles an hour while crossing any of the bridges in the city of Toledo, excepting the Cherry street bridge. The plaintiff offered that ordinance in evidence to sustain the allegations of her petition that the defendant was negligent in running its cars at a high and dangerous rate of speed — it having offered evidence tending to show that the car was going down the hill at a high rate of speed and approaching the bridge at a rate of speed probably greater than six miles an hour. The ordinance was ruled out. The ground assigned by the court was, that it was immaterial. To this an exception was taken. This court is of opinion that the court of common pleas did not err in ruling out that ordinance, upon the ground upon which the ■court placed it. We will not undertake to enter into a discussion of the question whether that ordinance would have been competent under any circumstances to show negligence on the part of the railroad company. That question is somewhat in dispute, and the authorities do not agree. It is not necessary for us to determine what we would do in a case where that question was fairly presented. It is enough, for us to say that the injury to the plaintiff was not caused by crossing this bridge at a rate of speed greater than six miles an hour. If the rate of speed of the railroad company was dangerous and negligent, and from that rate of speed the collision occurred, it was the rate of speed of the car coming down this hill and before it reached the bridge, that caused this injury. The evidence almost unanimously shows that the-car struck this buggy right at the south end of the bridge,and when the car stopped, one of the witnesses says, it was its-length upon the bridge, and three of the witnesses, with equal means of observation,say it was half its length on the bridge and the other half on the street. But whether it was a length or a length and a half or a half length on the bridge-is not material, since it is clear it must have struck the buggy before it struck the bridge, and the force of the blow shoved the carriage along on the bridge against the side partition. The ordinance would be of no account, because the accident might just as well have happened 100 feet away from the bridge as where it did, the speed on the bridge having nothing to do with the collision of the car and the buggy. So we do not think the court erred in not allowing the ordinance to be admitted. It placed its refusal upon the verrf proper ground- — that it was immaterial.

There were a number of requests submitted to the court, which the court was asked to give and refused, and there are a number of exceptions to portions of the charge as given. We do not find an error in the charge of the court, so far as its refusal to give these requests is concerned. They are in substance all embodied in the charge of the court, which seems to be a very full and fair statement of the law. As to one point I will refer: It is claimed here that the court imposed by its direction to the jury a higher obligation o£ care upon the part of this plaintiff than the law authorized. The court said — and this is excepted to:

“As I have stated, it was her duty, while riding in the buggy upon the street, to use ordinary and reasonable care for her own safety. If she might have avoided the injury that she sustained by the use of what, under the circumstances, was ordinary and reasonable care, then she was guilty of contributory negligence, and cannot recover. Now, it is a question of fact which you must determine from a consideration of the evidence in the case, whether or not the plaintiff was guilty of contributory negligence. She was required to make reasonable use of her senses of sight and hearing to learn of the approach of a car, and generally, to do whatever, under the circumstances, an ordinarily prudent person would do. The question is for you to say from the evidence in the case, whether or not she did anything which she ought not to have done, or whether she omitted to do anything which ordinary prudence, under the circumstances, demanded of her. Her knowledge of the situation or her means of knowledge must be considered. Reasonable care was required of her to do whatever was necessary to avoid the injury — ordinary and reasonable care, and only ordinary and reasonable care. As she cannot recover if her own negligence contributed to the injury, it follows that if the negligence both of plaintiff and defendant contributed to directly cause the injury, the plaintiff cannot recover. This is but another statement of the rule in another form, that if the-plaintiff contributed to the injury, she can not recover, no-matter if the defendant was negligent. ’ ’

There could not be any objection to that part of the charge in an ordinary case of negligence, I take it. It is the rule which the law always imposes upon both parties and never relieves them of, fairly stated to the jury. Negligence is so-much an inference from facts that it is always the duty of the court to leave that question to the jury, where it would be possible,'at least, for any other inference to be drawn;, and the court may leave that question to the jury, even though it appear that no inference could be drawn except that of reasonable care, unless the court should be specially requested to direct the jury that there was no evidence of negligence. Then, of course, if such was the case beyond question, and if no inference could be drawn of negligence, it, I think, would be the duty of the court to direct the jury that there was no negligence. But such a request was not made to the court here, and it was a fair and reasonable proposition to say to the jury that the plaintiff must exercise ordinary care under all the circumstanes. It could not follow from that kind of a charge that the jury would infer that the plaintiff was guilty of negligence. I think the amount of care which the plaintiff was called upon to exercise under these circumstances was very slight. She was not responsible in any respect for the negligence of her husband, the driver, and therefore she might ride with him without, perhaps, exercising any great degree of caution; yet it cannot be said that it was not her duty to use the senses which she had to ascertain that danger was near her. It may be if she had ascertained that danger was coming, she could not have avoided it. It may be that she could not jump from á buggy when it was drawn by a fractious horse. But the rule is, that the same obligation rested upon her as upon her husband and upon all parties. We think the court gave the correct instruction to the jury.

What I have already said discloses the fact that the evidence here was not altogether clear, and the jury might draw aii inference of defendants negligence,or it might not. The testimony of several witnesses called for the plaintiff, and of one of the defendant’s witnesses, was to the effect that the plaintiff and her husband were driving down this hill entirely outside of the street car track. They were driving northerly. There was plenty of room between the streetcar track and the gutter, and so there was between the tracks and the north side of the bridge, the car tracks at that point converging towards the center of the bridge, leaving a driveway on the outside of the car tracks. If the horse and buggy had remained in that driveway,no injury could have happened; but it is very clear from the testimony of the plaintiff and her husband, and of those who saw the injury, that although the plaintiff’s husband didn’t hear the noise of the approaching car, the horse did hear it, and became at once excited and jumped up and down, and the clear weight of the testimony shows that he attempted to run across the track, either perhaps by being pulled in by her husband who was driving, or some other reas'on, and that he ran onto the track within from 50 to 75 feet of the approaching car, and when, as appears from his testimony, the inotorman did not have the slightest intimation that this horse and carriage were going upon the track. There is no reason why he should have supposed that this horse and carriage driving along at a moderate trot, as the evidence shows, would suddenly turn from the track where there was a safe roadway and run upon the railroad track in front of this car. He says he did not suspect it, and there is no reason why he should have suspected it. The horse, as I say, became fractious; and the man who was driving the horse says he don’t know what happened — he has no-idea how it occurred; but in some manner they got upon the track; that is evident. It is also evident that the buggy must have crossed the larger portion of the track,for the car struck upon the right side at a sufficient angle to throw the buggy entirely to the left side of the track. The buggy must have been at least more than half way over the track, for it was hit upon the right wheel first, and then upon the right hand corner of the rear part of the top. In that way it was driven on the bridge and against the iron work that forms the center partition or center truss of the bridge, and ground to pieces. Under all the circumstances — the manner in which the plaintiff herself and her husband tell the story — it was all a question of fact, and it was for the jury to say whether the defendant was negligent under all the circumstances — whether its motorman ought to have anticipated this action of the horse and have stopped his car before there could have been a collision. All those questions were fairly submitted to tbe jury under tbe testimony, and tbe jury considered them, and found against the plaintiff.

A. W. Eckert, for plaintiff in error.

Smith & Backer, for defendant in error.

We recognize the fact that this woman was severely injured, and so far as the evidence discloses, it does not occur to us that there was any negligence upon her part causing that injury; but there was an accident. The horse became frightened and unmanageable, dashed upon the street car track in front of the car, and the car collided with the buggy almost instantly — as one of the witnesses says, there was hardly an instant of time from the time when the buggy .got upon the track until the car struck it, He says that as soon as the motorman saw that the buggy had turned he rang his gong and put on the brake of his car instantly. That is stated by one of the plaintiff’s witnesses who was a passenger in the car, and he observed this horse and buggy, and saw the horse jump. That was evidence which could not have been very favorable to'the plaintiff, but it was evidence which the jury might well apply, and it came from a very reputable and creditable witness. I think we would hardly be justified in ■disturbing the verdict of the jury, and that the jury were well authorized in finding as they did find, that the company was not negligent, and that its negligence did not cause this injury.

The judgment will be affirmed.


author: Haynes, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Sept. Term, 1895.)
    Before Haynes, Scribner and King, J. J.
    THEOPHILUS P. BROWN v. THE CITY OF TOLEDO.

      Suit by taxpayer to restrain illegal act of city — When attorney fees under see. 1779 will not be alloicecl. — Where purchasers of city bonds, to test the validity of the bonds,procure a taxpayer to commence suit under section 1777 and 1778, it being stipulated that such taxpayer should not pay costs and attorney fees, but be protected, no attorney fees under section 1779 Rev. Stat. will be allowed, such suit being in the interest of such party, and not in the. interest of the city.

      Appeal from tbe Court of Common Pleas of Lucas County.
   Haynes, J.

Theophilus P. Brown, in the court of common pleas, filed his petition for the purpose of restraining the city of Toledo from issuing certain bonds, which bonds were intended as renewal bonds for certain bonds which had before that time been issued by the city of Toledo, and were, I believe, bridge bonds, which were about to mature, and the new bonds were either intended to take the place of the old ones, or to raise money for the retiring of the old bonds. The point made was,that there was no authority to issue the new bonds until the old bonds had been paid and retired. A decision was rendered in the court of common pleas in favor of Mr. Brown, and the case was then appealed to the circuit court, and came up upon a motion to suspend that decree and grant a perpetual injunction. It came on for hearing before the judges •of this court, at chambers, last June, and was heard. The judges of this court were of opinion that the city was authorized to issue these bonds — even before the retirement of the other bonds: that is to say, they were authorized to issue these bonds, for the purpose of retiring the already existing bonds; but, for the reason that the ordinance under which proceedings were being had was general and indefinite, and was so broad that the moneys which were raised from the sale of these bonds might be used for other purposes, and not applied to the payment of those former bonds, we refused to suspend the order of injunction, leaving the city to commence a new proceeding to raise the money. The matter stood thus until the meeting of this court at this term, when the court having expressed its opinion, a decree was taken in the court of common pleas in accordance with that opinion. The bonds had been sold — or, at least parties had made a bid for the new bonds, and had deposited, in accordance with the provisions of the ordinance, a certain sum of money as security for the performance of their contract — the amount being in this particular case, I believe, in the sum of $18,000; and the question arising whether the bonds would be valid or not, the parties who had purchased them assumed that they were invalid, and wanted their money back. The city authorities contended that the bonds were valid. Thereupon the parties, as it appears, went to Mr. Brown — who was a client of the attorney of the bidders —and asked him to file this petition. Thereupon he filed the petition without haying it appear,as required by section 1778, that it was instituted on behalf of the corporation. Afterwards, and during the hearing of the case, an amendment instanter was allowed in which that clause was inserted. Mr. Brown went to the city solicitor, and asked that he commence an action, under section 1777, to enjoin the issue of these bonds. He declined to do that, maintaining that the bonds were valid, and saying that he did not propose to discredit the bonds or the action of the city by declaring that they were illegal after the action of the council; and thereupon this suit was prosecuted.

Upon the hearing of this motion an objection was made by counsel for the city of .Toledo, that attorney’s fees in this case should not be allowed,because these proceedings were all had and carried on really for the benefit of the bidders for the bonds,and not for the benefit of the corporation.' The papers show that at the time that Mr. Brown was requested to file this petition, it was stipulated that so far as he was concerned he should not be required to pay costs or attorney’s fees, and- that these other parties would protect him.

We are of’opinion that the contention of the city is true; that this prosecution was carried on for the benefit of these bidders; and we are clearly of opinion, under that state of facts, that no attorney’s fees ought to be allowed.

There are many cases upon this question, but there is one case cited here by counsel for the city — a case arising in Cincinnati, in which there was á very full and very fair discussion of the question, and which it seems to us is a very correct statement of the law. It is found in Law Bulletin 31, page 24. In that case that question was raised on the trial, and the court admitted it as a defense to the action, and dismissed the same. And we are pretty strongly of the opinion that if that fact had appeared on the trial here, that that action would have been h&d in this court. We hold that the bidders ought not to be allowed under this statute to litigate their own private contentions or carry on their suit for their own private interests.

C. F. Watts, for City.

W. H. A. Bead, for plaintiff in error.

Entertaining this view of this case,the application for the allowance of attorney’s fees will be refused.