text:
    CONTRIBUTIONS TO MAKE UP A SHORTAGE.
    [Circuit Court of Lucas County.]
    Henry Richter v. Phoenix Building & Loan Co.
    Decided, February 25, 1905.

      Embezzlement■ — Compounding a Felony — Criminal Distinguished from Civil Liability — Contributions to make up Defalcation — Not Illegal, When — Executed Illegal Contracts — Court Assumes Function of Jury, When — Trial.
    1. Where at the close oí the evidence each party by motion asks for a directed verdict in his favor, the court assumes the place of the jury, and the question thereafter presented is not whether there was a scintilla of evidence either way, but whether the court was authorized on the evidence to take the action which was taken.
    2. Contributions for the purpose of making good a defalcation are not illegal so far as the making good of the civil liability of the defaulter is. concerned; and where such contributions' are made by members, of a building association acting in their individual capacity, such action is not in the nature of compounding a felony, in the absence of any promise or agreement on the part of the building association not to' .institute or cause to be instituted criminal proceedings against its secretary, whose shortage has thus been made good.
    3. Where a member of a building association, at the solicitation of other members of the association and acting in common with them, cancels the credit which he has in the association with the direction that the amount thereof be used to make good the shortage of the secretary of the association, he can not thereafter maintain a suit to set aside the cancellation of his credit on the ground that the contract which he thereby entered into was illegal because compounding a felony.
    4. Were it true that such action amounted to compounding a felony, still no relief could be granted, for' the reason that where an illegal contract has been executed the court will leave the parties where it finds them.
    PIull, J.; Haynes, J., and Parker, J., concur.
   This action was brought by the plaintiff to recover $1,160 from the defendant, the building and loan company, which amount the plaintiff claims it owes him. The plaintiff was a member of the defendant company, a corporation of the state of Ohio, and on April 4, 1904, he was, by the boobs, and in fact, entitled to a credit in the way of deposits and otherwise, in the company. In September following he withdrew, as was his right under the rules of the company, and demanded his money, which was refused, on the ground that* he had canceled and receipted for it for a good and valuable consideration, and in that way has received his money. This was denied by Richter; the case went to trial before the court and a jury, and at the conclusion of the testimony a motion was made by éach party to direct a verdict in its favor. The finding of the court upon that motion was the same as the finding of a jury would be upon the evidence; and the question is, whether the court was authorized by the evidence to take the action that was taken — not whether there was a scintilla of evidence either way, but, each party having made this request, the court then stands as a jury. The court sustained the motion of the defendant and directed the jury to return a verdict in its favor. The controversy here is about a certain contract or contracts — papers—which Richter signed. It is claimed by Richter that he receipted for this- money — canceled his claim against the bank — by virtue of an illegal contract, one contrary to law and public policy, therefore he is not bound by it; that it was null and void and of no effect legally, that he had a right to recover his money.

This contract grew out of a defalcation by one Mensing, who had been secretary of the company and was a defaulter to the amount of 30,177, and after it was discovered Richter with some nineteen others entered into an agreement whereby they were to subscribe and pay enough money to make up this defalcation; this was done and Richter was approached on April 4 by two persons and notified of the condition of affairs in the bank, requested to sign this paper which I have referred to, which he did, and it is claimed that this was in furtherance of an arrangement to compound a felony to save Mensing from a criminal prosecution and from being sent to the penitentiary, and therefore, was contrary to public policy and void.

On the other hand, defendant in error claims that the purpose was, not to compound a felony; that if there was any such purpose on the part of the parties who signed this paper, including Richter, that the bank itself was not a party to it, therefore, not affected by it.

It is claimed by plaintiff in error further, that there were certain errors committed at the trial of the case, and especially in the exclusion of testimony, and it is also claimed that the court erred in directing the verdict as it did.

As I have said, Richter was a stockholder in the bank — a member of the organization, perhaps, would be the better term- - and he had to his credit in the bank at the time this paper was signed $1,162. He was approached by the two men who requested him to sign this contract, which recites that:

“Whereas, It is represented that H. R. Mensing, as secretary of the Phoenix Building & Loan Company, is short in his accounts with said company in approximately the sum of $30,000; and
“Whereas, Said H. R. Mensing has agreed to assign and transfer unto Herman R. Klauser, as trustee for the benefit of all the undersigned, all of his property of every kind and character whatsoever, giving unto the said Herman R. Klauser full authority to sell the same for the best price that can be obtained therefor and pay over unto the assigned the proceeds of said sale, less the amount of his other indebtedness, pro rala upon the amounts herein subscribed.
“Now, Therefore, We, the undersigned, in consideration of the conveyance by the said IT: R. Mensing unto the said Herman R. Klauser, trustee, his property as above provided, and in order to raise the amount of his defalcation for the purpose of reimbursing the Phoenix Building & Loan Company, agree to pay the amount set opposite our names. It being understood, however, that the sums hereby subscribed are not to be paid unless the total amount of said defalcations are raised.”

The most of these parties had signed this paper before it was presented to Richter, and he signed it and enough other stockholders of the association subscribed sufficient to raise the' amount of the defalcation, and as it seems „to us from the evidence, in pursuance of this agreement which, was entered into on April 4, 1904, Richter, on the evening of that day went to the association building, or bank building as it is called in the record sometimes, and turned over to the association his book in which he kept the record of his transactions with the bank and which showed that it was indebted to him $1,162, and there was written in the book, which he signed, a cancellation of his account and the writing recited that the book was turned over and surrendered to the association for the purpose of having it canceled; everything was done in this writing that could be done to receipt to the bank for this money and constituting a payment of it on the part of the bank to him.

It does not appear that the banking association, as such, had any knowledge of this transaction as between Richter and the other parties who signed this paper — none of the officers of the bank said anything to him about it, did_ not approach him; did not request him to sign it; no action was taken by the association providing for anything of this kind, and so far as the evidence discloses, it seems to have been a voluntary act on the part of these parties who signed it, they having the purpose in view, probably, of saving Mensing, the defaulting secretary, from any criminal prosecution. He was an acquaintance of theirs and apparently a friend. The writing recites that he is “short” this $30,000. .

Another purpose that they had in view was to save the association from disaster and bankruptcy. They were all stockholders in the association and interested in its property, all except Klauser, the trustee, and he also subscribed; and as appears, if this defalcation had not been made up the association would have been bankrupt or gone into the hands of a receiver with the usual result. I say these parties who subscribed were all interested. Klauser himself was not a stockholder. The man who had been acting as trustee and to whom Mensing conveyed his property also subscribed $5,000, and the other subscriptions run in various amounts, enough to make up the whole amount of the defalcation.

In rebuttal, the plaintiff, Richter, sought to show that another paper writing was drawn up about the same time, perhaps the same day, which recited that Mensing was a defaulter and short in his accounts $30,177. This evidence the court excluded, and that is one of the errors complained of. And it recites further:

“And, Whereas, Certain, persons have loaned nnto the said Herman R. Mensing said amount of $30,177, in order to enable him to make good such shortage and to repay and reimburse the said The Phoenix Building & Loan Company to the amount of his said indebtedness thereto, so that the said Herman R. Mensing may escape prosecution therefor.
“And, Whereas, The said Herman R. Mensing has this day, together with his wife, Minnie C. Mensing, executed and delivered unto the said PÍerman R. Klauser their promissory note for said sum of $30,177 as evidence of their indebtedness unto the said persons who loaned said sum as above mentioned, it is agreed,” etc.

This is signed by Klauser and Mensing. It further recites that in order to partially repay the amount of money so loaned and to secure the payment of said indebtedness Mensing agrees to personally convey and deliver unto Klauser as trustee all of his property, both real and personal, and Klauser agrees to take the property and sell it for the best price he can obtain therefor and after -taking out of the proceeds the $13,000 that Mensing owes, to apply the balance towards the payment of this-defalcation or debt to the bank. That is the substance of that writing, making Klauser a trustee for that purpose, and this is the agreement referred to in the other paper which Richter signed.

Now, there is no evidence that the bank had anything to do with this paper or that the officers of the bank took any part in it, officially at least, or that the association as such had anything to do with it. There were stockholders of the association present when it was drawn and perhaps some directors; but stockholders or directors, meeting in that unofficial way, would have no power to make a legal contract which would bind the association and certainly would have no power to make an illegal contract, if there was anything illegal about this contract. This paper creating this trusteeship was excluded by the court. There was no evidence that the association was connected with the drafting of this paper in any way. In order to bind it-— in order to make that contract legal so far as they were concerned — it must appear that the association was a party to it in some way; and this not appearing, we think the court was correct in holding that it was immaterial. What it. was that influenced Richter to sign the paper that he did sign, was not material so far as the bank was concerned. Neither was it material so far as the association was concerned, or from a legal point of view, that he signed it with a hope of saving Mensing from a criminal prosecution.

In order to make a contract illegal on the ground that it is compounding a felony, it must appear that there was some kind of an agreement on the part of the party or parties who had been injured by the commission of the crime. The mere hope that it may result in preventing a criminal prosecution is not sufficient. It is not a crime for friends of a man to raise money to pay up a loss of this kind. Mensing owed this debt to the bank. Although there was a criminal liability, there was a civil liability and there was no law against his friends raising the money, if they could, and making up the defalcation, any more than there was a law against Mensing going to the bank with the hope of paying the amount of his defalcation; if there was no promise on the part of the injured party that they would not prosecute him in consideration of such payment.'

■ After this agreement had been made, Richter went voluntarily to the building of the association and, pursuant to this contract canceled the indebtedness of the bank to him. The contract recites that the money is to be paid by these parties subscribing — presumably to the association, the injured party— and as each subscribed the amount that was coming to him from the association, the ordinary way to pay it would be to cancel the amount that the association owed each of them, which would work a payment.

There is another reason why Richter can not recover this amount back from the bank. The agreement and contract, so far as he is concerned, has been executed. It is well established that courts will not aid in the execution of an illegal contract— if this was an illegal one — -but where an illegal contract has been made, or one made for an illegal consideration, and is fully executed, the courts will not assist a party in recovering back what he has paid, but will leave the parties where it finds them. The second paragraph of the syllabus in the case of Hooker v. DePalos, 28 Ohio St., 251, reads as follows:

J. P. Mantón and J. P. Hanley, for plaintiff in error.

A. B. Capel and Southard <& Southard, for defendant in error.

“The law will not aid a party to such contract, either in its enforcement whilst executory, or in its rescission when executed. ’ ’

Referring to an illegal contract — and this seems to be the general law of the land, both in this state and elsewhere' — that if parties have entered into an illegal contract and carried it out', have paid the money or given whatever consideration, was to be given in such contract, they will not be aided by the court in rescinding the contract or in recovering back whatever may have been paid. The courts refuse to recognize such contracts as a basis for execution or for rescission or any recovery. But, as I have suggested, it seems to me that there was nothing illegal or contrary to public policy in the contract or paper writing that Richter signed. There was no promise made to him of an illegal character; he was interested in the bank; he was interested in Mensing, and he, along with these other gentlemen, raised the money to make up this defalcation, raised the money to pay this debt that Mensing owed the association, and it seems to us in any view of it that the fact that it does not appear that the association as such was a party to this arrangement, must be fatal to Richter’s claim.

Quite a large amount of testimony was excluded by the court. It was all in the line of showing that this was done for the purpose of preventing a criminal prosecution. Offers to prove were made by counsel showing that this was the object, but there was no offer to prove facts that tended to show that the association was a party to prevent a criminal prosecution or a party to these arrangements which were made. It seems to us that the action of the court of common pleas in directing a verdict was correct and we agree with the court in the opinion, pronounced at that time by the trial judge in his charge to the jury. The judgment of the court of common pleas will therefore be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    PRESUMPTION AS TO HOLDER. OF NEGOTIABLE INSTRUMENT.
    [Circuit Court of Hamilton County.]
    Theresa J. Wehrmann, as Executrix, etc., v. Paul W. Beech et al.
    Decided, January 20, 1906.

      Pleading — Presumption as to Ownership of Promissory Notes — Defense of Payment — Testimony under Section 5242 of a Nominal Party — Operation of the Section, how Limited — Charge of Court— Section 3172, Relating ~io Endorsements.

    1. The operation of Section 5242, relating to the competency of party to testify, is not limited to transactions with the decedent, but to facts which occurred prior to his death; and testimony as to transactions with the agent of the decedent is therefore incompetent.
    2. The presumption as to a holder of negotiable paper, that he is the owner of it, that he took it for value before maturity, and that he took it in the usual course of trade, is supported by statute as well as by the law merchant.
    Gieeen, J.; Swing, J., and Jelke, P. J., concur.
   Three separate actions were consolidated and tried under the above title, each being founded upon a promissory note or notes. In two of the cases, the only issue well pleaded was whether the notes were duly assigned and transferred to the plaintiff in due course of business for valuable consideration before maturity.

The allegation in the answers, that defendants paid to J. Fred Woltz, the holder and owner of the promissory notes, stated no defense of payment unless he was the holder and owner of the notes, in which case that of itself would be á com- ■ píete defense.

If the jury, in returning a verdict for the defendants, based it upon a finding that the notes were not transferred to Mr. Wehrmann in due 'course, it is not sustained by sufficient evidence, and if, on the other hand, it was based upon a finding that the notes were paid to Mr. Wehrmann, or his agent, it is not supported by any pleading in the case.

In the third case, the defense is that the note was an accommodation paper, and was not assigned or transferred to Mr. Wehrmann before maturity, nor' for any consideration. The testimony is clear that the defendant executed the note as an accommodation, and if Mr. Wehrmann took it after it became due, the defendant would not be liable. The evidence probably sustained the verdict of the jury as to this note, provided the testimony of the witness, Woltz, is competent and was relied on by the jury. It is contended that his testimony was incompetent under Section 5242, Revised Statutes, but he was not a party to any of the original actions, and although made such after the consolidation, no relief was asked against him, nor did he file • any answer. lie was merely a nominal party without any interest in the result, and clearly comes within the case of Bell v. Wilson, 17 O. S., 640, and Baker v. Kellogg, 29 O. S., 663.

The court also admitted over the objection of the plaintiff, the testimony of the defendant, Beech, concerning facts that occurred prior to the death of the testator. It is claimed by counsel for the defendants that this testimony was competent, because he testified to no transactions with Mr. Wehrmann, but only concerning transactions with Adam T. Yoll, his alleged agent, but the operation of the section is not limited to transactions with the party, but to facts which occurred prior to the death of the testator. It seems clear, therefore, that the court erred in receiving his testimony.

The court refused to give the following special charge, which the plaintiff requested be given before the argument to the jury:

“I charge you as a matter of law that the law presumes prima facie in favor of every holder of negotiable paper:
■ “First. That he is the owner of it;
“Second. That he took it for value before maturity; ■
“Third. That he took it in the usual course of trade; and the plaintiff is entitled to recover unless these presumptions of law aré overcome by proof in the case, and the burden of proof is on the defendants. ’ ’

In II Daniels on Negotiable Instruments, 608, it is said:

Joseph B. Kelley, for plaintiff in error.

Cobb, Howard & Bailey, contra.

“The mere possession of a negotiable instrument, produced in evidence by the endorsee, or by the assignee where no indorsement is necessary, imports prima facie that he acquired it bona fide for full value, in the usual course of business, before maturity, and without notice of any circumstance impeaching its validity; and that he is the owner thereof, entitled to recover the full amount against all prior parties. In other words, the production of the instrument and proof that it is genuine (where indeed such proof is necessary), prima facie establishes his case; and he may there rest it. ’ ’
Section 3172q, Revised Statutes, provides as follows:
‘! Except where an endorsement bears t date after the maturity of the instrument, every negotiation is deemed prima facie to have been effected before the instrument was overdue.”

•It appears, therefore, that by statute as well as by the law merchant the presumption embraced within the special charge prevails in favor of the holder of a negotiable instrument.

The court erred in refusing to give the instruction as requested.

Judgment reversed and cause remanded for a new trial.


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    PARTIALLY EXECUTED CONTRACT FOR. PURCHASE AND SALE.
    [Circuit Court of Wood County.]
    The Toledo, St. Louis & Western Railway Company v. Lafayette M. Turney.

    Decided, December 19, 1904.

      Grantor and Grantee — Failure of Former to Deliver Deed — And of Latter to Complete Payment — Ejectment not Available to Grantor.

    T purchased a parcel qf land from a railway company for $250. He paid $50 down, gave notes and a mortgage for the balance, and went into possession. The- railway company never gave him a deed, and he never paid the notes and mortgage or any of the taxes. After more than twenty years the railway company brought suit in ejectment. Held: That the railway company had no right to dispossess T, for the reason that it had never performed the contract which it had agreed to perform as to the execution and delivery of the deed.
    Haynes, J. (orally); Parker, J., and Hull, J., concur.

      Affirmed by the Supreme Court, without report, 73 O. S., —.

   The ease of the Toledo, St. Louis & Western Railway Company against Lafayette M. Turney is brought in this court for the purpose of reversing the judgment of the court of common pleas. The original act was brought by the railway company against Turney for the purpose of ejectment to dispossess him of a certain lot in the village of Grand Rapids, Wood county; and it appears to us on an examination of the record of the case and from the facts that were stated, that Turney purchased at one time the lot in question from a railway company; that railway company was afterwards merged in the Toledo, St. Louis & Western Railway Company. The property had been originally deeded to the president of the railway company, Ballou by name, who held it as trustee, and at the time -it was sold to Turney by the then company, there was a contract in writing. That contract is not in existence so far as we can learn; a copy that was held by Mr. Turney having been burned at the time the Chamber of Commerce building in Toledo burned, it being in the possession of Turney’s attorney, Mr. Eckert, whose office and its contents were destroyed by .the fire. But the evidence tends to show that the sale was made upon a contract in writing whereby Turney was to pay a certain sum of money for the lot, two hundred and fifty dollars, I think. He was to pay fifty dollars down and the balance in payments of six months and a year apart, to be secured by a mortgage, and the railway company was to execute at the same time a deed of the premises. He paid the fifty dollars down on the execution of the contract. The railway company, sometime afterwards, sent him a deed; it was a quit-claim deed and he refused to take it, and returned it. He executed at the time he made the payment, the note and mortgage that were required, and delivered them to the officers of the railway company, and they held them, and have produced them here in court in the trial of the case. Turney testified that he had from time to time written to the railway demanding that they send him a deed, and he shows a letter written by the general manager of the railway company to him in which he says that the deed has gone forward to be signed by the president and will be returned, but this, in fact, was never done.

This transaction occurred in the year 1882. Turney testified that he had written to the company one or more times that the amount of money that was due had been deposited by him with a merchant in Grand Rapids who was a well known man, to be kept for the railway company, and they could have it any time they executed the deed. Subsequently, .however, he withdrew that money. Turney never paid any taxes, or any part of the purchase money, while he stood upon his rights as he claimed, saying that he would do nothing towards paying the amount and paying the taxes until the deed was executed to him according to the contract. A deed was made by Ballou to the present plaintiff, the Toledo, St. Louis & Western Railway Company, after some time, and they brought this suit.

The defendant sets up these various facts in his answer and he claims that he was put into possession by the contract and has held possession of the premises from that time to this, and that the railway company has never performed the obligations on its part to be performed. He claims his possession is lawful and that the railway company has no right to take posses-’’ sion of the property against him, because it has failed on its part to perform the agreement to make and deliver to him a good and sufficient warranty deed at the time -that the notes and mortgage were made, and at the time the fifty dollars was paid.

James O. Troup, for plaintiff in error.

A. W. Eckert, B. F. James, for defendant in error.

Around that defense hangs the principal question in the case. The statute provides that the defendant may make any defense, legal or equitable, and this is a contest for the possession of this property, the question for the court to determine being whether or not the possession of the defendant was unlawful and whether the plaintiff had the right to dispossess him in an action in ejectment; and after mature consideration we are of the opinion that the contention of the- defendant, Turney, is right and that this plaintiff had no right to dispossess him for the reason that it has failed on its part to perform the part of the contract that it agreed to perform. The railway company never tendered to him a good and sufficient deed and demanded payment of the purchase money, and without discussing the matter to any great length, and holding this view, we find that the judgment of the court of common pleas was erroneous, and it will be reversed and sent back for further proceedings according to law.


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    PAY OF PUBLIC SCHOOL TEACHERS WHILE ATTENDING TEACHERS’ INSTITUTES.
    [Circuit Court of Wood County.]
    The Board of Education of The Bowling Green City School District et al v. Edward Beverstock.
    Decided, November 25, 1905.

      Schools — Teachers Attending Institutes — Entitled to Pay Therefor, When — Section 4091 Construed — Liberal Policy of State with Reference to Schools.

    The provision of Section 4091, Revised Statutes, for the payment of teachers in the public schools of any county, in which a county institute is held, their regular salary for the week they are in attendance at the institute, applies alike to those who have been engaged to teach for the ensuing school year but whose schools do not open until after the holding of the institute, and to those who have not yet been employed but are thereafter employed for a term beginning within three months after the close of the institute.
    Haynes, J. (orally); Parker, J., and Wildman, J., concur.
   A petition in error is filed by the Board of Education of the Bowling Green City School District, which was defendant below, against Edward Beverstock, a tax-payer, who was plaintiff below, to reverse a judgment of -the Court of Common Pleas of Wood County. The case was heard in that court upon a demurrer to the petition, and the defendant not desiring to plead further, final judgment was entered upon the overruling of the demurrer. The points of error cited in the petition here are that the court erred in overruling the demurrer, and erred in rendering judgment in favor of the plaintiff in said cause.

The action grojvs out of the fact that the board of education of the city of Bowling Green was about to pay the teachers of the schools of the district for the time that they spent in attending the Teachers’ Institute of Wood County, which was held somé time in August of the current year, I believe.

Teachers’ institutes, as it is known, are conducted under an act of the state of Ohio, and are county institutions, and are held for the purpose of instructing persons who expect to become, or are already teachers of schools, the purpose being to make a more efficient corps of teachers. Section 4091 of the Revised Statutes recognizes those institutions and provides for teachers of the schools attending the same; the language of the statute being as follows:

“All teachers of the public schools within any county in which a county institute is held may dismiss their schools for one week for the purpose of attending such institute, and when such institute is held while the schools are in session the boards of education of all school districts are required to pay the teachers of their districts their regular salary for the week they attend the institute, upon the teachers presenting a certificate of full regular daily attendance at said institute, signed by the president and secretary thereof; the same to be paid as an addition to the first month’s salary after said institute, by the board of education by which said teacher is then employed, or in case he is unemployed at the time of the institute, then by the board next employing said teacher, provided the term of said employment begins within three months after said institute closes. ’ ’

The petition in this case, to which we are to look for the facts, sets forth that the city of Bowling Green is a school district, and that it has a board of education, created and acting under and by virtue of the laws of Ohio. That annually in the month of August of each year there is held in Wood.county a county institute at which a great many of the teachers employed throughout the county, and throughout the city, attend for the purpose of more efficiently preparing thems,elves for the occupation of a teacher; that said county institutes are usually held from the 20th day of August to the 25th day of August of each year. That prior to the 20th day of August of each year the Board of Education of the Bowling Green City School District of Wood County, Ohio, employs and hires all teachers, superintendents and principals necessary for the instruction of the pupils in the schools in said district for the year beginning the first Monday in September, following the holding of said county institute in August. That on August 21, 1905, the Board of Education of the Bowling Green City School District authorized the defendant, Newton R. Harrington, as clerk of said board, to issue an order to all teachers who presented certificates of attendance at the institute held August 21, 1905, for the payment of such sum due them for one week’s pay according to the rate for which said board hired them for the ensuing year, and also authorized the clerk to issue orders to such of the teachers as presented certificates for attendance at the institute held in August, 1904. That at the time of the holding of said county institute the schools of the Bowling Green City School District were not in session and had not been in session for more than two months prior thereto,, and for the year 1904 did not convene for about two weeks thereafter; and that said schools within said district were not dismissed for the purpose of attending such institute, and that all the teachers who are proposed to be paid by the order of the board of education so passed on August 21, 1905, were at the time of attending such institute duly and regularly employed as teachers by the Board of Education of the Bowling Green City School District, both during the time of the institute held in August, 1904, and during the time of the institute held in August, 1905. That the payment of said teachers so authorized by the said board of education is illegal.and contrary to law and is a diversion and misappropriation of the funds raised by taxation for the purpose of conducting the schools of said district, and that unless restrained by this court, said funds will be so unlawfully withdrawn from the treasury and so diverted and misappropriated, to the irreparable damage, loss and injury to this tax-payer and the other tax-payers of'said district. That this action is brought on behalf of plaintiff as a tax-payer of said district and of the other tax-payers of said Bowling Green City School District of Wood County, Ohio. That by the action of said board of education there will be paid out of the funds so raised by taxation, unlawfully and without authority of law, about eight hundred dollars. Wherefore, the plaintiff prays that the clerk may be enjoined from issuing any order or paying any moneys out of the treasury upon the order of said board, and that upon final hearing the injunction may be made perpetual.

This Section 4091, as has been stated by counsel, it not very clearly drawn, but- we think we may fairly and easily deduce certain facts from it in regard to this matter that will be governing in the decision of the case.

We think that in the classification of this statute, there are two classes of persons designated. There are teachers in schools that are teaching at the time the institute is to be in session, and in order to attend the sessions of the institute it becomes necessary for them to dismiss their schools for the period of a week; and there are another class who are unemployed at the time of attending the institute, and who are to be paid by the school district that may thereafter employ them; the statute reading:

“All teachers of the public schools within any county in which a county institute is held may dismiss their schools for one week for the purpose of attending such institute, and when such institute is held while the schools are in session the boards of education of all school districts are required to pay the teachers of their districts their regular salary for the week they attend the institute upon the teachers presenting a certificate of full regular daily attendance at said institute signed by the president and secretary thereof; [that relates, of course, to persons who are actually employed in teaching at the time] the same to be paid as an addition to the first month’s salary after said institute by the board of education by which said teacher is then employed, or in case he is unemployed at the time of the institute [certainly that relates to another class of persons], then by the next board employing said teacher, provided the term of said employment begins within three months after said institute closes.”

It seems to be the custom to have these institutes held during the vacation of the schools. We gather from this petition that the terms of the schools are from a period in September until the school term closes the next year, usually in May or June, and that there is a period between the termination of the preceding year and the commencement of the next school year in which there are no school sessions, and in which the teachers are not hired or paid; it is a period of vacation, so to speak. Now, the claim is as to these teachers who have been employed prior to the 20th of August, that they are not employed within the meaning of the statute as teachers of a school district, and the sessions of the institute being held during vacation they did not dismiss, nor could they dismiss their schools, for the reason that their schools were not in session. '

We think a fair and liberal construction is to be given to the statute. The matter of education in the state of Ohio is one that has always met with favorable consideration. In the very organization of the state a large amount of property was sold and the money received therefor placed in the treasury, and the state of Ohio has been paying interest on it ever since for the support of the schools, and liberal provision of money has been made to improve the standing and efficiency of teachers. And in furtherance of this idea, institutes have been established and the teachers encouraged to attend them, the provision being that the teachers may dismiss their schools for that purpose, if necessary.

In regard to the other class I have referred to, it is claimed that because they are hired that they were employed at the time, and were in the employ of the school board, but as they did not dismiss their schools at that time they are not entitled to recover anything for institute attendance. We are unable to take that view of the case. We think that these teachers, although they are named to teach on terms to commence in a future time, they are not employed as teachers in -the school until the 2d of September, when they actually go to work, and when their pay commences. There is no school. These teachers who have been appointed to places are employed during the vacation in other ways; their time is their own; they are following their own business matters and own interests and are employed in that way, and they are not employed at actual teaching; they are unemployed as teachers; they are not engaged in teaching, hence they come under that class who are unemployed and are to be paid by the board next employing them, provided the term of said employment begins within three months after said institute closes.

James O. Troup and J. W. Gabriel, for plaintiff in error.

Edward Beverstovfr, pro se.

If the teachers who are employed or named by the board prior to the 20th, the date of the institute, had been employed or named by the board as teachers after institute closed on the 25th they certainly would have been unemployed teachers at the time of the institute, and, as we hold, entitled to be paid for the time they attended the institute. Why should their claims for payment be better than those named or employed prior to the 20th. Their situation in reality is the same. They are named during vacation to teach upon the opening of the schools. They are, in fact, teachers not employed or engaged in teaching, and will not be so employed or engaged until school opens. They are unemployed because their term has not commenced and they are not engaged in teaching — their terms have not commenced.

The time of payment is not a matter material here. The question is whether they are entitled to be paid and we think clearly that they are so entitled and that the board of education in this city had a right to pay the teachers whom they employ who go into the schools subsequently, at the time the schools go into session, and the teachers attend the institute during vacation. We think that is a just and fair construction of the statute, and carries out the idea of the Legislature in enacting it; that it was their purpose to get teachers who are competent and efficient in carrying on the profession of teaching schools.

The petition of. the plaintiff will be dismissed. We think we may reverse this judgment and proceed to render the judgment that the court of common pleas ought to have rendered dismissing the petition, and it is so ordered.


text:
    INJURY TO ONE AT WORK ABOUT A SWINGING BRIDGE.
    [Circuit Court of Richland County.]
    John L. Haun, Administrator, v. The C., C., C. & St. L. Railway Co.

    Decided, 1903.

      negligence — Master and Servant — Vice-Principal and Fellow-Servant— Assumed Risk — Peril of Servant — Against which, Master can Alone Provide Protection.

    1. Where a servant in the prosecution of the work of his employer is obliged to take a position which is not necessarily dangerous, but may be rendered dangerous by the employer putting in motion a force or machine, it is the duty of the employer to notify the servant of his intention in time for him to avoid the consequences; and this must be done each and every time such machine or force, against which the servant can not protect himself, is put in motion.
    2. The duty which a master owes to his servant under such circumstances is one which he must perform or cause to be performed with reasonable care and diligence, and where the master causes this duty to be performed by another, the person so performing it is not a fellow-servant within the meaning of that term, as it is understood in negligence cases; but he is the vice-principal, and his negligence in that behalf is the negligence of the master, and not of a fellow-servant.
    Donahue, J.; Douglass, J., and Voorhbes, J., concur.

      Affirmed by the Supreme Court without report, G., O., G. cG St. L. Ry. v. Haun, Administrator, 73 Ohio State,-.

   This action is brought by the administrator of James "W. Haun, deceased, against the defendant railway company, to reverse the judgment of the common pleas court, in an action in which such administrator was plaintiff and the defendant in error defendant.

The plaintiff in that case sought to recover from the defendant for negligently causing the death of plaintiff’s intestate, who was a workman in the employ of defendant company and was engaged in and about the repairs of a certain bridge owned and operated by said company across the Cuyahoga river in Cleveland, Ohio.

Prom the pleadings and the evidence it appears that this was a swinging bridge operated by steam power, and was swung out fifteen to twenty-five times a day to allow boats to pass through. It further appears from the evidence that the plaintiff’s intestate was required, with other laborers, to occupy a place between the parapet wall and that portion of the bridge resting on the abutments, at about seven feet below the level of the tracks; when said bridge was in its ordinary position, there was a space between this parapet wall and the bridge of about twenty inches; that when the bridge was swung clear of the abutments there was a" space of from three to four feet or more and when it was swung so that the diagonal of the bridge stood at right angles with the river, this space of twenty inches was almost entirely closed, and there was no room there for workmen to stay with safety, and it was necessary, before swinging said bridge, for said workmen to leave their working place and climb to the tracks or parapet wall, where they could remain in safety until the bridge was swung.

It further appears from the evidence that when the boats approached the bridge and desired passage, they would signal their request by a whistle. This signal would be answered by the engineer of the bridge, who occupied a position in the tower above the center of the bridge, and this signal would either indicate that he would swing the bridge immediately, or, if delay was necessary, that the boat must wait until he could give it passage. These signals were known to the workmen, including the plaintiff’s intestate, and they had been governing their conduct according thereto.

It farther appears that the foreman in charge of said workmen would also give a verbal warning to the workmen to enable them to escape from their dangerous position before the bridge was moved. These warnings were given a sufficient length of time before moving the bridge to enable the workmen to reach a place of safety, and until the time of the accident to plaintiff’s intestate, the workmen had been able, by these signals, to protect themselves from the dangers incident thereto. It further appears from the evidence that signals were given at this particular time, and that the workmen understood and started to reach a place of safety, but it also further appears that after giving the signal, no delay whatever intervened between these signals and the moving of the bridge. In fact, the workmen were apprised by the movements of the bridge almost simultaneously with the giving of the signal that it was about to swing. At least, so the evidence stands in this record. This sufficiently appears from the direct evidence of the witnesses, but certain circumstances are testified to by the witnesses that strengthens the direct evidence very much.

Mr. Douglass, one of the workmen, and the one nearest to the avenue of .escape, was barely able to reach a place of safety. Haun, the deceased, started at once to escape from the danger, and almost, but not quite, succeeded. There were two other men who also made an effort to escape, but, realizing the impossibility of their being able to do so in the ordinary way, attached themselves to the projecting parts of the bridge and swung out with it.

If all the other workmen had been able to reach a place of safety in the ordinary and usual way, and Haun alone had failed, such circumstances would weaken plaintiff’s claim that sufficient time was. not given. But, as the record now stands, the evidence is undisputed.that only the workman who was nearest this avenue of escape was able to reach safety in the ordinary and usual way; all the others, who had been able, therefore, from fifteen to twenty-five times a day to escape this danger, were this time unable to do so, and this would certainly add somewhat to the direct evidence.

Upon this state of the record a motion was made to direct a verdict for the defendant and the motion sustained, and this proceeding is prosecuted to reverse that judgment.

There is at least some evidence going to prove that these signals were not given a sufficient length of time before the moving of the bridge to enable the workmen to escape, and that would be sufficient for the purpose of this ease. But we do not think that it ends there. There was not only some evidence, but sufficient evidence uncontradicted and unexplained, for the jury to find that fact to be true.

If it was the duty of the defendant company to protect these workmen by giving them time enough after the signal until the bridge' moved, to enable them to escape the danger, then the court erred in directing a verdict for the defendant.

This case does not present the same question that the ordinary action for damages presents. These men accepted the dangers incident to their employment. They deliberately and voluntarily entered into a place of danger. But the danger did not exist when the bridge remained in its place, and it was evident to' them and evident to their employer, that this bridge could not be moved while they were in their place of working, without killing or injuring them. Therefore, they had a right to expect that their employer would not move this bridge without warning, and crush out their lives, without giving them an opportunity to reach a place of safety — and the duty was upon the master, by every rule of right and justice, to see to it that these men had a chance to escape, not possible danger, but certain injury before undertaking to move that bridge, and we think a failure to do so was negligence upon the part o'f the master that would entitle the injured servant or his legal representative to recover.

Any other rule of law would shock the intelligence of civilized man. The law regards life as too sacred to be trifled with, and while the necessity of things requires that men should incur dangers and assume many risks, in order to accomplish necessary work, yet when the danger is so patent, and it appears it can only be avoided in one reasonable way, the law requires that if that way be open to the servant, he shall avail himself of it; or, if that way depends upon the master, and the servant is helpless without such protection from the master, the master must protect him at his peril.

We think that if the servant go into a place of danger to do the work of the master, and by so doing, places it beyond his power to protect himself, where he can not watch and care for =his own safety, that it becomes the duty of the master to provide such reasonable care for the safety of the servant as may be commensurate with, the danger threatened. And particularly is this true if the position in which the servant has placed himself to do his master’s work is one not necessarily dangerous, but becomes dangerous by reason of the master putting in motion a machine or force that will certainly injure the servant, unless he is advised of the master’s intention to put such machine or force in motion in time to avoid its consequences; and it is, in such case, the duty of the master, not only to provide for the safety of his servant, but to see to it that such servant has a reasonable opportunity to avail himself of such provision. And this must be done each and every time such dangerous machine or force, against which the servant can not protect himself, is put in motion by the master.

Mansfield c& Long, for plaintiff in error.

Cummings, McBride & Wolfe, for defendants in error.

This master owed such a duty to the deceased. He was required not only to give these signals, but to give them in sufficient time to accomplish the purposes for which they were given. The mere giving of the warning when too late to be of any avail would not discharge the duty of the master, nor can the master escape responsibility for the failure to perform this -duty upon the theory that the failure to do so was the negligence of a fellow-servant. The duty that an employer owes to his servant in such a case as the one at bar is one that he must perform or cause to be performed with reasonable care and diligence, and though the master may procure some one else to perform this duty for him, the person so procured, while performing this master’s duty, is not a fellow-servant within the meaning of that term as understood in negligence cases, but he is, on the contrary, the vice-principal, and his negligence in that behalf is the negligence of the master, and not the negligence of a fellow-servant.

The record in this case fairly shows a failure on the part of the master to perform this duty, and the court erred in directing a verdict for the defendant. The cause should have been submitted to the jury. Judgment reversed and cause remanded.


author: Per Curiam.

text:
    COLLECTION OF UNPAID TAXES BY SUIT.
    [Circuit Court of Hamilton County.]
    John H. Gibson, Treasurer of Hamilton County, Ohio, v. Griffin T. Miller et al.
    Decided, February 3, 1906.

      County Treasurer — Action Vy, for Collection of Unpaid Taxes — Act of April 25, 1904 — Pleading.
    1. An action by a county treasurer for tbe collection of unpaid taxes, which was pending at the time of the amendment of Section 1104, on April 25, 1904, is subject to the provisions thereof.
    2. An allegation that taxes and assessments stand charged on the forfeited duplicate is mere surplusage so far as the right to maintain the action is concerned, but if it appear that the property was improperly advertised and offered for sale on the delinquent list, the defendant is entitled to an allowance for costs and interest expended on that account.
   Per Curiam.

The act of April 25th, 1904 (97 O. L., 403), in so far as it amended, the act of April 4th, 1902, is remedial, and under Section 3 of the act applies to this action, which was pending at the time. Section 79, R. S.; Railroad Company v. Commissioners, 35 O. S., 1.

The act of April éth, 1902 (95 O. L., 93), and the act of April 5th, 1904 (97 O. L., 403), each amending Section 1104, Revised Statutes, contain substantially the same provision, to-wit:

“And it is sufficient, having made the proper parties, for the treasurer to allege in his petition that the taxes and assessments, or either, stand charged on the duplicate or duplicates against said premises, the amount thereof, and that the same are unpaid.”

The allegation, therefore, that the taxes and assessments stand charged on the “forfeited duplicate” will, so far as plaintiff’s right to maintain the action is concerned, be deemed surplusage, although the proof shows that they appeared on the delinquent duplicate. It appears that this property in fact was improperly advertised and offered for sale on a delinquent list, and if defendant has illegally been subjected to any penalties, costs or interest, on this account, due allowance could be made in this action, but we do not find that any illegal charges are made against him on this account.

W. F. Chambers, for plaintiff.

É. R. Donohue, contra.

The costs incurred in making unnecessary parties will be taxed against the plaintiff. Decree in favor of the plaintiff.


text:
    DAMAGES FROM CHANGE OF GRADE.
    [Circuit Court of Wood County.]
    Celeste Taber v. The City of Bowling Green, Ohio.
    Decided, December 17, 1904.

      Street — Property Improved to Natural Grade — Damaged by Change of Grade — No Right of Recovery, When — Necessity for Filing a Claim for Damages.

    1. The fact that a street has been open and used for many years, and property owners have built thereon with reference to the natural grade, does not afford ground for recovery of damages because of a subsequent change to an established grade, where it appears that the change was a reasonable one.
    2. The presentation of a claim for damages on account of a change of grade, as required by Section 2315 as it stood at the time the improvement in this case was made, is a pre-requisite to the right to recover damages because of such change.
    Hull, J. (orally); Parker, J., and Haynes, J., concur.
   This action was brought by Mrs. Celeste Taber to recover judgment against the city of Bowling Green, Ohio, for damages which she claims she suffered on account of the change of the grade of Church street in said city, on which her house was situated. It seems that this street was opened a great many years ago and used by the people residing thereon, who built their houses upon it. A few years ago the city decided to improve and grade'the street, and pave it, which was done, and in front of Mrs. Taber’s house, there being a sort of hollow, it was filled, and the ground raised there to the height of eighteen inches or two feet probably, so that while her house before the improvement sat some eighteen inches, or two feet above the level of the surface of the ground, after the improvement, the lot being filled in at the sidewalk even with the surface of the ground, the water ran in some, and this, it is claimed, was a damage to her property in some hundreds of dollars, as shown by the evidence in the ease.

In the court below after the evidence of the plaintiff was in, the judge directed the jury to return a verdict in favor of the city, and it is to reverse the judgment entered upon this verdict that the proceedings in error were commenced in this court.

I have practically stated the facts in the case as they appear from the bill of exceptions. Under the law of this state Mrs. Taber’s right to recover depends upon whether she had the right to rely upon the natural grade of the street as it existed before this improvement was made; whether the circumstances were such that she had any reasonable right to anticipate or suppose that no material change would ever be made in the grade of the street. Streets of a city áre of course under the care, control and custody of the city, which has a right to improve them— grade and pave them, and the general right to change the grade if necessary.

Prior to the improvement of Church street no grade had been established for that street; there was nothing but the natural grade as it was called, _ and those who built thereon built in reference to this natural grade. Mrs. Taber’s house was built with reference to it, having a foundation of eighteen inches or two feet, and now it is practically level with the ground.

In our judgment the court did not err in taking this case from the jury and directing a verdict. After reading the record in the case it seems to us that those who built upon that street, including the plaintiff, did so at their own risk. The city had established no grade; the character of the territory there was such, it being higher in some places than others in this street, that it might be reasonably anticipated that when the city came to improve-this street, the grade, of the street would be changed; it would be necessary to do this to make this improvement in the proper way. The low place or depression at or near Mrs. Taber’s bouse was about two feet, and that would necessarily make the fill about the same depth. This question has been before the Supreme Court and other courts of this state. The law is laid down in The City of Akron v. The Chamberlain Co., 34 O. S., 328, the syllabus reading:

4 4 The owner of a lot abutting on an unimproved street of a city or village in erecting buildings thereon, assumes the risk of all damage which may result from the subsequent grading and improvement of the street by the municipal authorities, if made within the reasonable exercise of their power.
“The liability of a municipality for injury to buildings on abutting lots exists only where such buildings were erected with reference to a grade actually established, either by ordinance or such improvement of the street as fairly indicated that the grade was permanently fixed, and the damage resulted from a change of such grade, or, where the buildings, if erected before a grade was so established, were injured by the subsequent establishment of an unreasonable grade. ’ ’

The case of The City of Cincinnati v. Penny, in 21 O. S., 499, is also in point, and a decision by this court, Neubert v. The City of Toledo, found in 9 C. C., 462, is upon this very question, and reviews the decision of the Supreme Court in the case in the 34th O. S., supra. The court in this case says:

“The fact that a city has left a street for many years with its natural grade, that the public had used the street at that grade for all that time, and that the city has even had sewers laid and sidewalks constructed in such street in that condition, does not preclude the city from afterwards finally adopting a different grade for such street, and a property owner has no right to assume that the city has adopted such original grade for the street. ’ ’

Those authorities seem to settle this question. There was no evidence in this case that anything has been done maliciously on the part of the city for the purpose of injuring Mrs. Taber s property; no evidence in the case that she had no right to suppose that the grade of this street would not be at some time changed; no grade had been established there; the street had never been improved; there was nothing but the natural grade, and, as I have said, from the topography of the street and the character of the territory it was apparent that when the street was improved, it would be necessary to make some slight changes in the grade.

Benj. F. James, for plaintiff.

P. J. Chase, City Solicitor, for defendant.

We are inclined further to the opinion that Mrs. Taber could not recover for the reason that she presented no claim for damages to her property as required by Section 2315, Revised Statutes, as it then stood. It is said that the driveway part of the street was first made, and that she did not comprehend the damage that this improvement would be to her property until her sidewalk was built; but the whole improvement was covered by one piece of legislation, and the grade fixed at the same time that the sidewalk grade was, and it seems to us that she might have anticipated what damage it might be to her before the sidewalk was laid, so that it would not be sufficient to excuse her from presenting her claim for damages, and we think that the presentation of her claim was a part of her case rather than a defense to be plead by the city-. The statute makes it one of the prerequisites in her right to recover that she should present this claim the same as one should present a claim to an administrator. For. these reasons given, the judgment of the court of common pleas will be affirmed.


text:
    LITERAL CONSTRUCTION OF A FORCIBLE DETAINER. STATUTE.
    [Circuit Court of Fulton County.]
    Isabelle Laver v. E. T. Canfield.
    Decided, January, 1905.

      Forcible Entry and Detainer — Construction of Section 6601 — Literal Application of the Provision — Malcing the Statute not a Bar — Its Constitutionality — Long Acquiescence.

    Section 6601, providing tliat judgments either before a justice of the peace or in the court of common pleas under the forcible entry and detainer chapter, “shall not be a bar to any further action brought by either party,” is not class legislation and unconstitutional because in the interest of landlords, and should be literally construed.
    Wildman, J.; Parker, J., and Haynes, ¿L, concur.
   The present plaintiff in error, Isabelle Laver, brought suit before Esquire A. S. Bloomer, a justice of the peace, under the statute in forcible detainer, alleging that the defendant, E. T. Canfield, her tenant, was holding over his term from and after April 1, 1905.

The defendant in that case, while acknowledging that he was the tenant of the plaintiff and that the original tenancy had been for a period anterior to April 1, 1905, and would expire at that date, claimed that there had been a new arrangement for a subsequent period, entered into between himself and his landlady, by which he remained in possession. The case was tried before the justice of the peace and the judgment in the case was in favor of the tenant, the justice holding that he did not unlawfully and forcibly detain the premises from the plaintiff. Thereafter, the same plaintiff, Isabelle Laver, brought an action before one A. P. Biddle, another justice of the peace, against the same defendant, seeking to recover possession of the same land. Upon the trial of this second ease, .the plaintiff having introduced her evidence and rested, the defendant read and offered in evidence a transcript from Esquire Bloomer’s docket, showing the proceedings in the case to which I have before referred and in which the defendant had recovered a judgment. The claim was made by the tenant, Canfield, that the former decision was an adjudication in his favor and that it was a bar to her proceeding before. Justice Biddle. The magistrate, however, held otherwise, construing literally the provision -of the statute that a judgment in a proceeding in forcible detainer shall not be a bar to another action. Thereupon, the case was carried on error to the court of common pleas. . The court of common pleas reversed the judgment of the Justice Biddle and a petition in error was filed in this court to reverse the judgment of the court of common pleas. The case involves the construction of the section of the statute to which I have referred (Section 6601, Revised Statutes) :

“Judgments either before the justice, or in the court of common pleas, under this chapter, shall not be a bar to any a Eter action brought by either party.”

The defendant in error has filed an answer in the case in the present court, alleging, substantially, matter of claimed estoppel against the plaintiff in error. He says, in substance, that the plaintiff, Isabelle Laver, has demanded and received from him rent for the premises during the pendency of this proceeding in error and after the judgment in the court of common pleas; but while this is conceded, a reply interposed by the plaintiff denies that it has the effect claimed for it by defendant. Without pausing very long upon this branch of the case, we are of the opinion that the contention of the defendant in error, that the proceeding in error is barred and that Isabelle Laver is estopped from proceeding with her case in this court, can not be maintained. Estoppel should be based upon an action of a party with knowledge substantially of its consequences. It does not appear to us that in the receiving of any of this rent it was intended or understood by Isabelle Laver that she was waiving any of her rights to proceed in error. It is contended that it was so intended by the defendant, Canfield, but whether this latter fact is or is not true, the estoppel to bind her should be her conduct in view of its known effect, We do nqt think that she is estopped in this proceeding in error.. We understand from evidence submitted on this issue, that the payment and receipt of rent was rather in the nature of payment for the use and occupation of the land pending the proceeding in error and in view of some requirement of the judge of the court of common pleas. Proceeding then to the substantial contention which is involved and the one upon which all the emphasis has been placed by counsel in argument, we have the very interesting question, never expressly decided, so far as we know, by our Supreme Court, as to whether this Section 6601 of the Revised Statutes is to be literally construed. The judge below held, as we understand his decision, that the provision that it should not be a bar to any after action brought by either party had no reference to other like proceedings before justices of the peace or courts of common pleas of the same nature and between the same parties as the case in which the first judgment was rendered. It is claimed that this is not a civil action, but a summary proceeding, and that the only design of the section is that the judgment shall not affect actions in which the title to land is drawn in question — ejectment suits or other suits in which the title may be involved. It is true that Section 6601 relates only to possessory rights; it does not involve the title to the land; it goes only to the right of possession. But that is not decisive of the question. The language of the statute is that the judgment shall not be a bar to any after action brought by either party, and the first question to be considered is as to whether a forcible detainer proceeding is an action within the meaning of this statute. Referring to Section 6599, the next section but one preceding that under review, defining the jurisdiction of the justice and the nature of a proceeding in forcible entry and detainer, we find the clause which I quote: * ® # “but such action can only be brought within two years after the cause of action shall have accrued.”

It seems a somewhat forced construction, at first thought, to hold that when the word action and the phrase cause of action have just been used in reference to proceedings of this character, thát the section that judgments shall not be a bar to any after action brought by either party is to be qualified by substantially writing into the statute some words defining the kind of action to which it was not designed to be a bar; actions, for instance, not involving possession only, but also the ultimate title.

But it is urged, and with much plausibility, that the statute construed literally may work absurdities or injustice. The court below held, in the opinion which has been transcribed and submitted to us, that it would be unjust to construe the statute literally; and it was urged in oral argument before us that if it should be so construed as the intent of the Legislature, then the law is unconstitutional. We are not disposed to hold for a moment that this section is unconstitutional. We have had the doctrine enunciated by our Supreme Court in a somewhat recent decision — that long acquiescence by the court and bar in the validity of a statute is in itself a recognition of its constitutionality, and the courts, after such long acquiescence, will not readily disturb a statute by holding it unconstitutional and invalid. It is claimed by counsel that it would be unconstitutional in-this: that it would be class legislation; legislation in favor of landlords; that it would give the landlord power to bring repeated actions before justices to oust tenants from land, and no matter how many times defeated to pursue'that course until success was finally attained; and that a defeated tenant, on the other hand, would have no remedy except by going to a higher court, if permitted, in proceedings in error. We are not altogether clear that this contention is well founded. The statute making provision for suits in forcible entry and detainer specifies several cases in which the action or proceeding may be brought.

Section 6600 provides that “proceedings under this chapter may be held” (the word should be “had”) “in all cases against tenants holding over their terms;-in sales of real estate, on executions, orders, or other judicial process, when the judgment debtor was in possession at the time of the rendition of the judgment or decree, by virtue of which such sale was made; in sales by executors, administrators, guardians, and on partition, where any of the parties to the petition were in possession at the commencement of the suit, after such sales, so made on execution or otherwise, shall have been examined by the proper court, and the same by said court adjudged legal; and in cases where the defendant is a settle.r, or occupier of lands or tenements, without color or title, and to which the complainant has the right of possession;” but immediately following is this clause: “This section not to be construed as limiting the provisions of Section 6599.”

On looking back to Section 6599 we find that a person may maintain the action in a case where, after a lawful entry, the lands are held unlawfully. Now, if a tenant claims that the judgment of the justice of the peace, which is no bar to either party under the statute, was erroneous, unjust and illegal, he might, perchance, claim that the other party placed in possession by the court, under the forms of law, was still unlawfully holding. We are not deciding this question, we are only suggesting that it is not altogether free from doubt as to whether or not the tenant might not, if ousted by one suit before a justice of the peace, maintain an action to recover the possession under this very statute or this series of sections, in view of the other provision that a judgment in forcible entry and detainer shall not be a bar to any after action brought by either party.

But taking the other view of it and considering the argument that the landlord might maintain an unnumbered series of suits to recover the possession until he finally achieved success, thereby harassing and burdening the defendant with costs and trouble and finally depriving him of the possession of the land; still it may be fairly inquired whether it is a condition very different from that which we find in another proceeding — that as to crimes and misdemeanors in examining courts. If the judgment in forcible detainer is no bar to another proceeding it is somewhat analogous to the arrest which may be made before a magistrate under a charge of crime and in which, if the magistrate discharges the defendant, he may be rearrested before another magistrate or the same one, and another examination may be had, the first discharge being no bar to a subsequent arrest and prosecution. It is said by some of the authorities cited by counsel that a proceeding in forcible detainer is quasi criminal — the verdict is “guilty” or “not guilty.” For this reason the illustration which has been given is not, I think, an inapt one.

But is it true in either case, that of the prosecution for alleged crimes or the prosecution for unlawfully holding land, that the person so prosecuted has no redress if by reason of a succession of suits he be unjustly harassed and burdened? Before proceeding to this phase of the matter I desire first to say, that notwithstanding decisions in the courts of some of the other states, cited by counsel in a very able argument manifesting much research among the authorities, and notwithstanding there has been no direct adjudication in our own Supreme Court, we believe that it has been the settled view of the bar and of courts of Ohio that this statute should be literally construed. Indeed, originally in the cases it does not seem-to have occurred to the court or lawyers that it was to be construed in any other way. I need cite in illustration of this but three or four cases in which language is used by the judges indicating this construction of the statute. They may be dicta, and indeed I think in the main, if not entirely, they are, but they none the less evidence the views entertained by the judges who used the expressions.

In 9 C. C., 168, is a case decided by Judge Shauck, then one of the circuit judges of the Franklin circuit and now one of the members of the Supreme Court. On page 169 he says:

“The provision of the statute, Section 6601, is that a judgment under Chapter 9, Title 3, ‘shall not be a bar to an after-action brought by either party.’ But to the bringing of such after-action the provisions of Section 6602 apply as to an original action, and a party desiring to bring such action must give the notice which the section provides.”

Now note that he is speaking of the bringing of an after action in forcible detainer, because he is talking about the giving of the notice which the statute in forcible detainer requires. This case involved the nature of the notice required in the second action in forcible detainer, or proceeding, whichever you choose to call it.

See also, 1 TIandy, page 70, the case of Smith v. Findlay, decided by the Superior Court of Cincinnati in General Term, in 1855, before Judges Spencer, Gholson and Storer. The ease in its syllabus contains a query, “whether repeated actions, 'brought evidently to vex and harass the defendant, and put hiip. to the necessity of prosecuting repeated writs of error, would not afford ground for" the interference of either the court of error, or other competent tribunal.” On page 71, Judge Gholson, who delivers the opinion, uses this language:

“An action for the forcible entry and detention, or the forcible or unlawful detention only, of property, is a summary remedy provided by statute in certain cases, intended to affect only the'question of possession. And so far from any adjudication in such an action being binding and conclusive on the parties even in respect of the right of possession” [and I desire to emphasize these words], “the statute expressly provides that' the judgments, either before the justice or in the court of common pleas, 'shall not be a bar to any after action brought by either party.” .

In other words, the statute is not to be deemed a bar in any contention as to the right of possession, not considering at all the question of title.

We have another ease, however, and a later one, decided by the Supreme Court of the state and more nearly in point. Here a remedy is held available to a party who is harassed by a wrong use of the forcible detainer statute. The case is that of Pope v. Pollock, 46 Ohio St., 367, holding: “An action may be maintained for maliciously, and without probable cause, instituting and prosecuting an action in forcible entry and detainer. ’ ’

It would seem then, not necessary to bring an injunction suit to restrain, as suggested in Smith v. Findlay, supra, because the Supreme Court holds that a party has an adequate remedy at law. It is held that he may bring an action in malicious prosecution, treating this proceeding for forcible entry and detainer precisely as he might treat any criminal prosecution. Judge Spear says, on page 368, speaking for the court:

“Will the prosecution of a suit in forcible entry and detainer, which results in a verdict for the defendant, where the same is prosecuted maliciously, and without probable cause, afford ground for an action in the nature of a suit for malicious prosecution ? — is the question in this ease. ’ ’

The statement of facts in the case cited discloses that on the 11th of May, 1885, the defendant instituted a suit in forcible entry, and detainer, before a justice of the peace, for the recovery of possession of certain premises, which suit terminated in a verdict for the plaintiff of “not guilty”; and afterwards on the 17th of June, 1885, defendant instituted another like suit before another justice of the peace, which also terminated in the same verdict. Each of said actions was claimed to have been prosecuted maliciously and without probable cause. Now near the bottom of page 371 is some language very pertinent to the case which we have here used in the construction of this statute, or rather in recognition of that construction which has obtained ever since the enactment of the section in its original numbering. The judge says:

“In many of its aspects, an action in forcible entry and detainer is an extraordinary proceeding. It is summary in its character, and may become, when prosecuted wrongfully, excessively annoying and harassing. Having given three days’ notice in writing to leave the premises, the plaintiff may conn menee his action by filing a complaint with a justice of the peace, and in three days more the trial may take place. The complaint need not be sworn to. If a continuance is asked by defendant for more than eight days, security for payment of rent is required. The action may involve the possession, by a defendant, of a home for himself and a dependent family. A failure to answer, or unsuccessful defense, may result in immediate and forcible ouster, and this without reference to the condition of the family, or the weather or other surrounding circumstances. No appeal is allowed, nor is one action a bar to subsequent actions. ’ ’

Then he considers some other matters involved in the inquiry between these parties and adds — •

“Then, too, the plaintiff may select from several concurrent jurisdictions within the county. He may commence his action, if he so desire, in the township farthest removed from the residence of the defendant, or the most inaccessible, thus requiring, it may be, his adversary to travel long distances, and to transport his witnesses at large expense. Failing in one action thus brought, he may continue prosecutions until his pocket book, or his malice, or both, become exhausted. Plainly, in the hands of an unscrupulous prosecutor, possessed of abundant means, this kind of action may become grievously oppressive, and it is idle to say that the small bill of costs before a justice is either a sufficient punishment to inflict upon a malicious prosecutor, or constitutes any recompense to a wronged defendant. The statute gives to such plaintiff the right to resort to his action as often as he may choose, and to bring it before any justice within the county, but this implies no right to prosecute maliciously and without probable cause. A groundless action, prosecuted with malice, is never justifiable, and a wrong suffered by such prosecution in forcible entry and detainer should not be without remedy.'”

Sam, Sam & Sam, for plaintiff in error.

Sandy <& Wolf, for defendant in error.

' Our conclusion is that the judgment of the court of common pleas should be reversed and the judgment of the last justice, Biddle, be affirmed.


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    RETURN OF APPLICATION WITH POLICY OF INSURANCE.
    [Circuit Court of Hamilton County.]
    The Prudential Insurance Company v. John J. Gilligan.
    Decided, December 18, 1905.

      Life Insurance — Construction of Section 3623 — With Reference to Return of Application with Policy — Estoppel Against Company under Section 3626.
    1. Section 3623 clearly contemplates that there may be more than one application in connection with a policy of life insurance, and requires that a copy of the application be returned at the time of a renewal, as well as at the time of the original issue.
    2. Having received premiums for more than three years on the policy sued on in this case, the company is estopped; by Section 3626 from making a defense on the 'ground of false statements in the application.
    Jelke, P. J.; Swing, J., and Giffen, J., concur.
   This action was brought by the plaintiff below against defendant on certain policies upon the life of one Mary 'MeGrew, which it alleged had been assigned to him.'

The answer sets up that there were certain false statements iin the application upon which the policies had been renewed at one time after they had lapsed. To this answer is a reply that no copy of the application upon which said policies had been renewed had ever been returned to the insured. This is not controverted on behalf of the company, and it appears from the record that this is so. It is contended on behalf of plaintiff in error that inasmuch as this application was made long after the insurance policy had been issued, that in the nature jof things it could not be returned with and as part of the policy as provided in Section 3623, Revised Statutes, and that therefore said section of the statute is not applicable to it. We are of opinion that this contention is not well taken. Said Section 3623, Revised Statutes, reads as follows:

Denis F. Cash, for plaintiff in error.

Chas. F. Williams, contra.

“Every company doing business in this state shall return with, and as part of any policy issued by it, to any person taking such policy, a full and complete copy of each application or other document held by it which is intended in 'any manner to affect the force or validity of such policy, and any company which neglects so to do shall, so long as it is in default for such copy, be estopped from denying the truth of any such application or other document; and in case such company neglect, for thirty days after demand made therefor, to furnish shell copies, it shall be forever barred from setting up, 'as a defense to any suit on such policy, any incorrectness or want of truth of such application or other document.”

The words of the statute clearly contemplate that there may be more than one application in connection with any policy. It certainly, at the time of renewal, was within the power of said insurance company to have returned to the insured a copy of the application on which said policy was renewed.

We are further of the opinion -that the plaintiff in error was estopped below from making the defense relied on by Section 3626, Revised Statutes, said company having received premiums for more than three years thereon.

Judgment affirmed.


text:
    BONDS OF OFFICERS OF THE OHIO NATIONAL GUARD.
    [Circuit Court of Wood County.]
    The American Bonding Company of Baltimore v. Edward S. Bryant.
    Decided, January 12, 1906.

      Militia — Bonds Required of Officers — Mandatory Character of Section 3104 — Liability of Officer for Premium — Release Obtained, How.

    Where a continuing bond is given by an officer of the Ohio National Guard, as required by Section 3104, he is liable for the premium thereon until release is obtained by the furnishing of another bond, or by returning the property in his possession to the, state, or turning it over to his successor in office after he has been duly qualified.
    Wildman, J. (orally); Parker, J., and ITaynes, J., concur.
   In the ease of the American Bonding Company of Baltimore against Edward S. Bryant, the plaintiff in error, who was also plaintiff below, brought suit in a justice’s court against Edward S. Bryant to recover the sum of $12 as an annual premium upon a contract for an official bond furnished by the plaintiff company to said Bryant.

It appears by the record that Bryant was a colonel in the Ohio National Guard and, as such, was required to furnish an official bond to the state under the provisions of Section 3104 of the Revised Statutes of Ohio.

In the justice’s court, judgment was rendered in favor of the defendant, and a proceeding having been brought in the court of common pleas for a reversal of that judgment, the judgment was affirmed by said court, whereupon a petition in error was filed in this court for a further review of the ■ proceedings. The facts involved in this case were presented in the justice’s court by an agreed statement of facts, certain exhibits and concessions embodied in the bill of exceptions. The statement is brief and I will read it:

“The application of the defendant to the plaintiff to become surety for him as Colonel of the Second Regiment, Ohio National Guard, on the 16th day of June, 1903, which paper is marked ‘Exhibit A’ and made a part hereof; also a certified copy of the bond given by plaintiff to the state of Ohio on behalf of the defendant as Colonel of the Second Regiment Ohio National Guard, which certified copy is marked ‘Exhibit B’ and made a part hereof.
“It is also admitted by the parties that the defendant prior to the 16th day of June, 1904, notified the plaintiff that he did not desire the renewal or continuation of said bond theretofore given by said plaintiff for him.
“ It is also admitted that the defendant was and still is Colonel of the Second Regiment, Ohio National Guard, and that he has given no bond to the state of Ohio since the giving of the bond, a certified copy of which is a part of this evidence and marked ‘Exhibit B,’ and that his term of office has been continuous from the time of giving said bond on June 16th, 1903, and that the defendant herein is required by the laws of the state of Ohio to give a bond to said state for the faithful performance of his duties.
“All objections as to the competency of ‘Exhibit A’ and ‘B’ are waived, and such exhibits are admitted to be the best evidence of the facts therein recited.
“It is agreed between the parties hereto that the above and foregoing evidence and admissions were all the evidence submitted by either party in the trial of this cause. ’ ’

It was on the basis of these concessions and the facts as so shown, that the judgment was rendered in the justice’s court. The bond, which is attached, is -indefinite as to' its duration. The claim of the defendant below is that, having given notice to the bonding company that he did not longer require a bond, he was thereby relieved from any further liability for annual premiums, but the language of the bond discloses no termination to the liability of the bonding company until the responsibility of the colonel for state property for the care and return of which the bond was given, should be ended. The language of the bond is (reads) :

“The condition of the above obligation is such that, whereas, the said Edward S. Bryant, who is Commandant of 2nd Infantry, Ohio National Guard, has, as Commandant of said regiment, been intrusted with property of the state of Ohio, including all ordnance stores, clothing, camp and garrison equipage, in possession of said organization, together with public funds coming into his hands as such officer, and for such state property and funds as may hereafter be issued or placed in his charge as said commanding officer; now if the said property or public funds, or either, shall be delivered to the said Edward S. Bryant, and the same shall be safely kept and at all times in readiness for immediate use, in a place appropriate for that purpose, and no part of said public property permitted to be used or taken from such place of deposit for any other purpose than for the use and benefit of such organization or other lawful public service, and if said property and funds shall be turned over to his successor in office (first causing new bonds to be executed by his successor, to the acceptance of the Adjutant-General), or shall be returned to the state in good condition, and shall at all times be subject to the orders of the governor of Ohio, then this obligation shall be void, otherwise to be and remain” [and I emphasize these words] “in full force and virtue in law.”

The application on the part of Colonel Bryant for the furnishing of this bond by the bonding company does not, in our judgment, vary the character of the bond itself; it does appear in the application that the bond sought was to be of a certain character, but the important inquiry is as to what was the bond which was received and accepted — the bond furnished by the bonding company to Bryant, and by Bryant and his surety furnished to the state. Upon one page of the application we find this question,- after some other preliminary ones: “How long to run?”; and the answer is “Indefinitely, one year at a time, renewed. ’ ’ Possibly this means that it is to run for an indefinite term upon the annual premium which is provided for in another part of the application, and that it is understood in advance that it is tobe renewed so long as Bryant’s liability to the state shall continue. The language, however, is altogether vague in this respect. The bond itself fixes the liability of both principal and surety to the state. The bond itself is the best evidence of the duration of the liability of the surety for the principal; and the bond provides that it is to be and remain in force until the property for which Colonel Bryant shall become responsible shall either be returned, to the state or turned over to his successor in office, who must be duly qualified by the giving of his own bond.

The application promises to pay an “annual premium in advance, of twelve dollars” (using the words of the application). Now it is said that Col. Bryant notified the bonding company before the expiration of the year that he did not wish to renew. Suppose that this bond had been a promissory note upon which he had obtained as surety the signature of the bonding company, surely the surety would not be relieved of liability until the note was discharged in some way, and no notice given by him prior to the payment of the note or its extinguishment in some way would relieve the surety from liability.

It was said in argument before us that before the expiration of the year the Commander-in-Chief, I suppose the Adjutant-General of the state had countermanded the order requiring colonels to furnish bond; but nothing of this kind appears in the record. On the contrary, as already read from the bill of exceptions, it was agreed that the defendant herein is required by the laws of the state of Ohio to give a bond for the faithful performance of his duties, and in another part, that he is still Colonel of the Second Regiment and that he has given no bond to the state of Ohio since the giving of the bond in controversy. But, even if it had appeared upon the record that the Commander-in-Chief had relieved him of any duty to give bond or had attempted to do it, it would seem to us that the Commander-in-Chief had no power to make such an order as that, provided the colonel is still custodian of property of the state, because of this statute that requires the bond to be given. It is true that the amount of the bond, the penalty of the bond, is to be fixed in the case of a colonel of a regiment by the Commander-in-Chief, the language of the statute (Section 3104, Revised Statutes) reading:

“All officers commissioned under this title, in whose hands shall be placed public moneys or other public property, shall give bond in the snm not to exceed four thousand dollars for a company commander, and five thousand dollars for a regimental quartermaster, and all other officers such sums as the Commander-in-Chief may direct, conditioned faithfully to account for all public moneys and property which they may receive. The Commander-in-Chief may at any time increase the sum so prescribed. ’ ’

There is no provision that he may, or may not, require bonds from regimental colonels or other officers. The statute is mandatory in this requirement that bonds shall be given by ali officers in whose hands may be placed public moneys or property.

It is enough, however, so far as this matter is concerned, to base our judgment upon the agreed statement admitting the continued liability of Colonel Bryant to give a bond to the state, and when we consider this admission it seems to us that the liability to pay the annual premiums is substantially admitted with it, because it is said that he has furnished no other bond, and there is nothing in the record to indicate that whatever property was in his hands at the time when the bond was given has been turned over to the state. Manifestly, it has not been turned over to his successor in office, because he has none; he still holds the office which he held when the bond was given.

Did he have any property in his hands? The bond says so; it recites that he has been entrusted with property of the state of Ohio, including all ordnance stores, clothing, etc., and from a consideration of the whole matter we think that until the bonding company is in some way exonerated from further liability on the bond, the bond is to be treated as a continuing basis for the annual premium. He agreed to pay twelve dollars as an annual premium, and it was evidently designed that it was to-be paid so long as the bond should be continued in force.

We know of no way by which the bonding company could get a cancellation of the bond and a release of its liability; but it is entirely in the power of Colonel Bryant to bring about such release, either by furnishing another bond, by returning the property in his hands to the state, or by turning it over to his successor in office after he has been duly qualified. By any one of these three ways he may get a release from the bond under inquiry, but until he does that it is our judgment that his liability for the annual premium continues, and so holding, we must necessarily reverse the judgment of the justice of the peace finding in favor of the defendant, and also of the common pleas court which affirmed the judgment of the justice, and it is so ordered.

Edward Bev&rstock and Earl D. Bloom, for plaintiff.

Geo. H. Jones and G. B. Painter, for defendant.