author: DONAHUE, J.

text:
    BANKS — EMBEZZLEMENT—HABEAS CORPUS.
    [Stark (5th) Circuit Court,
    June 18, 1905.]
    McCarty, Taggart and Donahue, JJ.

      Corwin D. Bachtel, In re.
    1. Habeas Corpus Lies to . Determine Jurisdiction of Committing Court.
    A writ of habeas corpus lies to determine the jurisdiction of a court unlawfully restraining petitioner of his liberty,' but errors of the trial court cannot be reviewed in such proceedings.
    z. Act 76 O. L. 74 Held Constitutional.
    Act 76 O. L. 74, amending and supplementing acts 49 O. L. 41 (Lan. Rev. Stat. 6199; B. 3821-85), the free banking act, comprises only banks created under this act, and is not unconstitutional as being a law of general nature without uniform operation. But even if such amendatory act were unconstitutional, the corresponding section of the original act would not be repealed thereby and would remain a valid and constitutional act under the provisions of which one offending may be prosecuted.
    [Syllabus approved by the court.]
    Quo Warranto.
    C. C. Upham and J. W. Craine, for the state.
    C. D. Bachtel, V. P. Kline, W. A. Lynch and Webber & Turner, for defendant.

       Affirmed by the Supreme Court of Ohio, without report, Bachtel v. Wilson, 74 Ohio St. 524; leave to file a petition in error in the United States Supreme Court refused, Bachtel v. Wilson, 15 O. F. D. 457 [204 U. S. 36; 27 Sup. Ct. Rep. 243; 51 L. Ed. 357].

   DONAHUE, J.

The petitioner, Corwin D. Bachtel, in his petition in habeas corpus presented to the judges of this court claims that he is unlawfully restrained of his liberty by the sheriff of Stark county, Ohio, and prays an order discharging him from such imprisonment. It appears by the sheriff’s return that the petitioner was indicted by "a grand jury of Stark county for a violation of Sec. 30, 76 O. L. 74 (Lan. Rev. Stat. 6199; B. 3821-85), and in default of bail was committed to the jail of said county until trial could be had upon said indictment.

The petitioner claims that the indictment is invalid and that the court of common pleas of Stark county has no jurisdiction thereof, for the reason that the section, under favor of which the state is attempting to prosecute the petitioner, is unconstitutional and void, because it is in violation of Art. 1, Sees. 1 and 2 of the bill of rights, and of Art. 2, ‘Sec. 26, of the constitution of Ohio, and of Sec. 1 of the fourteenth ■amendment to the constitution of the United States.

It is contended by the state that this court ought not to entertain this petition in habeas corpus at this time, for the reason that it appears by the return of the sheriff that the prisoner is in the custody of the •common pleas court of Stark county in which court said criminal prosecution is pending; that he has already filed a demurrer to said indictment, raising the. constitutionality of said sections,'upon which •demurrer that court has held adversely to his claim, and that he ought to be required to follow in the regular course and prosecute error to this court, when it would appear, if it should ever appear, that the holding of the common pleas court upon this demurrer was prejudicial to the rights of- the petitioner. With this contention in the abstract 'we are in accord. We think this is the better practice, and one that ought to be insisted upon by all reviewing courts, for it is not the purpose of habeas corpus to bring before a reviewing court errors of the trial court. There is another plain and adequate remedy at law provided for that purpose. But when a petitioner files his petition in habeas corpus, averring that he is unlawfully restrained of his liberty and attacks the .jurisdiction of the court issuing the warrant or order for his commitment, we think it is the policy of our law that the question of jurisdiction should be heard, although all questions of mere error or irregularity will not be heard upon such petition, but solely and alone the question of jurisdiction of the court issuing the writ or order of •commitment.

In determining the question raised, then, upon this petition in habeas corpus, to wit, the constitutionality of the act under which prosecution is brought, it is necessary to determine whether the language of the law itself raises any doubt as to its constitutionality. The three objections urged to the constitutionality of this act are kindred in their nature, and many of the reasons urged by the petitioner why it is in violation of Art. 2, Sec. 26 of the constitution of Ohio are practically the same -reasons urged by him as to why it is in violation of Art. 1, Secs. 1 and 2 of the bill of rights, and also Sec. 1 of the fourteenth amendment to the constitution of the United States. In fact the questions raised here by counsel for the petitioner are comprised in the contention that the law is not of uniform operation throughout the state, and for that reason violates all of these constitutional provisions.

Turning first to the law itself we find this comprehensive language used, Sec. 30: “Every president, director, cashier, teller, clerk or agent of any banking company,” etc. It is insisted by petitioner that this language does not include many other individuals similarly situated in their business relations to the public, because the words “any banking company” can only refer to banks organized under what is known as the free banking act of this state, passed in 1851, and that such officers of all other banks are not amenable to this law, notwithstanding their occupation and duties are identical with the occupation and duties of the officers of such banks, and that by reason thereof the law is not uniform in its operation. The presumption, of course, is that this law is constitutional, and it must clearly appear that it is not before a court is authorized to declare it unconstitutional.

In the case of Slingluff v. Weaver, 66 Ohio St. 621 [64 N. E. Rep. 574], the Supreme Court say:

“But the intent of the lawmakers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the lawmaking body, there is no occasion to resort to other means of interpretation. The question is not what did the general assembly intend to enact, but what is the meaning of that which it did enact. That body should be held to mean what it has plainly expressed, and hence no room is left for construction. ’ ’

If that doctrine is to be applied to the question here presented it is an end to this contention, for taking this section alone, without reference to its position in the chapter in which it is found and without reference to its history, it clearly appears that it comprises all banking companies in the state of Ohio, and, therefore, the objections urged by the petitioner do not obtain.

But upon the theory that each section of the law must be construed in pari materia with other sections applying to the same subject-matter, then it might fairly be said, in contemplation of the whole chapter, that there is a doubt appearing as to whether it includes all banking companies, or simply the banking companies organized under the free banking act, and, therefore, it may become necessary to investigate the history of this legislation for the purpose of determining to what character of banks the act does apply.

Coming, then, to these considerations, we find that on April 24, 1879, there was in force and effect what was then known as the free banking act, passed March 21, 1851, Sec. 30 of which was substantially in the language of Secs. 3821-85 Rev. Stat., except as to the omission in the later act of various provisions of that section relating to putting in circulation notes and circulating bills of such banks provided for in this act; and upon said date the legislature of Ohio passed an act entitled “An act further to amend the act entitled an act to authorize-free banking, passed March 21, 1851 (49 O. L. 41), and the acts, amendatory and supplementary thereto.” And See. 6 of this amendatory act is an amendment of Sec. 30 of the original act and such amendment is now Sec. 3821-85 Rev. Stat. Counsel, however, insist that these-sections relating to the free banking act never became a part of the-Revised Statutes of Ohio, and we use that term for convenience at this, time, and for the further purpose of designating where they can be found conveniently, and not intending to determine whether they area part of the Revised Statutes or not. They are at least part and parcel of the statute law of Ohio and as such we are now dealing with-them.

To determine whether the phrase in the amended Sec. 30, “any banking company,” applies to all banking companies of the state, or only banking companies organized under the free banking act, it is. necessary to refer only to the title, to this act, which. distinctly avers, that it is an act further to amend the act entitled an act to authorize free banking, passed March 21, 1851 (49 O. L. 41), and the acts, amendatory and supplementary thereto; so that the conclusion necessarily follows that the legislature at this time' had not in contemplation any other kind or character of a banking institution except those contemplated in the act of March 21, 1851, and that nothing contained in this amendatory act was intended by the legislature, or by any fair construction thereof, could be held to include any other banking company, except the ones provided for in the original act, including those in existence or any that might come into existence under the-provisions thereof during the time that said act might remain the law of Ohio.

It appearing then that Sec. 6 of this amendatory act, 76 O. L. 74, which is now found under the sectional numbering 3821-85, must beheld to include only banking companies organized under the provisions, of the original act which this act amended, or sought to amend, the next question arises as to whether or not the classification therein attempted is imperfect, false or unnatural, and that such classification is resorted to by the legislature for the purpose of giving a special law the appearance of a general law, to evade these constitutional limitations of the power of the legislature.

The Supreme Court has repeatedly held that the legislature has the power to classify, and that the legislative authority of this state is. vested in the general assembly in the broadest terms, by Art. 1, See. 1 of the constitution, subject only to the limitations elsewhere found in the constitution. It is, therefore, not within th§ province of any court to declare Void,’ and annul, a statute by reason of a supposed violation of the principles of justice and common reason, if it be within the bounds of • constitutional power. The courts have nothing whatever to do with the policy, the justice, or the wisdom of a statute so long as it cannot be said that it contravenes' some constitutional provision.

Again our Supreme Court has said in the case of Cincinnati St. Ry. v. Horstman, 72 Ohio St. 93, at page 107:

“"We do not accept without qualification the postulate of the court below, that ‘classification cannot be made arbitrarily by the general assembly by seizing upon any incident or characteristic that may suit its purpose.’ And again at the bottom of the same page, 'where a false and unnatural classification has been resorted to’ ” that courts will interfere.

As a premise to the petitioner’s contention here we are asked to take judicial notice of the fact that there are only a very few such banks in Ohio that come within the contemplation of this section, but it is very doubtful to us whether this contention is correct or not. Certain it is not of universal knowledge, for it is doubtful if one man in a hundred or even in a thousand of the population of Ohio has such knowledge. But though it may not be of common knowledge, yet if it is a matter that may be of common knowledge by reason of authorized statistics within the reach of every man who cares to investigate, then it is a matter of which courts will take judicial notice. That does not so clearly appear in this ease; yet conceding all that counsel claim for it in that behalf, what is the result? That there are some such banks existing is admitted. That there may be tomorrow, next year or the year after a great many more is also within the contemplation of this statute, and was necessarily and properly within the contemplation of the legislature at the time it passed this act and, therefore, having conferred privileges in this very banking act it had a right to impose penalties and restrictions and to classify them as a distinct and separate organization, distinguished from other banks and differing' from other banks in their relation to the state and to the public at large. The first inquiry is whether or not there is such a class existing in Ohio. The number within that class is to our minds of little or no importance. If there is such a class, that is sufficient for the purposes of this ease. If there are banks organized under this particular act, if other banks . may be organized under it, if the: privilege of organizing banks thereunder is and has been open to the people of the state, and there is an entire chapter of opr laws devoted to the rights, liabilities and obligations of this character of bank and penal statutes in reference to misconduct of officers thereof, how can it be said that such a bank and such officers are not a distinct and -separate class of banking institutions? There are undoubtedly a great many reasons that may be urged why all banking companies in Ohio should be included within the provisions of this section. In fact, to our minds, there is no valid objection thereto and every.argument that presents itself to our consideration is in favor thereof, but we are not the legislature, and as has been said by the Supreme Court in State v. Nelson, 52 Ohio St. 88, 99 [39 N. E. Rep. 22; 26 L. R. A. 317], “that if the legislature has erred in not including what has been excepted from the operation of the law, it is simply an error of judgment in the exercise of its authority and cannot be reviewed by the courts.” So that the remedy must be sought in the legislature itself. In order that :a law of a general nature shall have uniform operation throughout the state, it must apply, first, territorially to the entire state; second, to all individuals coming within the class designated by the legislature. And the power to make this classification is not only expressly but of necessity lodged in the general assembly of the state, for there are few laws upon our statute books that necessarily affect every individual, but rather the great majority of our laws applies to individuals of a certain class.

Again on page 99 in the case of State v. Nelson, supra, Judge Burket, who announced the opinion in that case, says .-

“Very few statutes apply equally to every person in the state. Some apply only to males, some to females, some to minors, some to persons of unsound mind, some to office holders and some to criminals. As pointed out by Minshall, J., in Adler v. Whitbeck, 44 Ohio St. 539 [9 N. E. Rep. 672], such classes are-arbitrarily formed by the general assembly, and ‘if the legislature has erred in not including what has been expected from the operation of the law, it is simply an error of judgment in the exercise of its authority, and cannot be reviewed by the courts.’ ”

Further, on page 100, quoting New York Elevated Ry. In re, 70 N. Y. 327, 351, Judge Burket says:

“And does the validity of a law which is required to be general, ;and which’ is general in its terms; depend upon the number of subjects -upon which it can operate, or upon the size of a class to which it applies? These questions must be answered in the negative.”

We are of the opinion, from the reading of these authorities, that the legislature has a right to make such classification, and it is oniy when it appears that the classification attempted by the legislature is false and unnatural that courts ought to interfere, and if there is doubt in this behalf it must be resolved in favor of the constitutionality of the act. We are, therefore, of the opinion that the act in question does not violate any of the provisions contended for by the petitioner.

But even if we are mistaken about that, if this Sec. 6 of the amendatory act of April 24, 1879, is unconstitutional, it does not necessarily follow that the petitioner is entitled to a discharge. The original act of March 21, 1851, was passed before the adoption of the constitution of 1851, and, therefore, at' the time of the adoption of such constitution was a valid and subsisting law of the state of Ohio, and it remained the law of Ohio and is still the law of Ohio, unless it has been repealed by a valid act of the legislature. This original Sec. 30 prohibited the acts complained of in this indictment, and but for Sec. 6 of the amendatory act an indictment could be returned and prosecuted under the original act for the commission of acts therein charged. So that if the contention of the petitioner that this Sec. 6 of this amendatory act is unconstitutional, then it follows as a corollary that original Sec. 30 is still in force, having never been repealed by a valid act of the legislature. We think the question is no longer an open one in Ohio, that where the legislature have enacted an unconstitutional amendment and in the same act repealed the original constitutional law, but the repealing clause must fall with the attempted amendment, and to all intents and purposes the law remains the same as if no such amendment had been attempted by the legislature.

In the case of State v. Hall, 67 Ohio St. 303 [65 N. E. Rep. 1019]. the Supreme Court in the second paragraph of the- syllabus declares,. “The repealing section of said act is also void," and on page 306 the-court say, and this opinion is rendered by the court: “The amending act of April 30, 1902, including its repealing section, is wholly void, and Sec. 1240 Rev. Stat., stands as though such amendment had not been attempted." This is but following a long line of decisions in Ohio upon this subject.

In State v. Jones, 66 Ohio St. 453, 482 and 483 [64 N. E. Rep. 424; 90 Am. St. 592], Judge Shauek announcing the opinion of the court, says:

“Applying to the case a doctrine with which the lawyers of the state are quite familiar, the repealing section of the present act is inoperative unless its provisions for reorganization of the board are valid. The system provided by the former legislation being still in full operation, it should continue, unless, by a valid act, a- system to succeed it has been provided.”

In State v. Buckley, 60 Ohio St. 273 [54 N. E. Rep. 272], the court say:

“The said section being inoperative, the repealing section contained in/the same act is also inoperative, and this leaves said Sec. '2926b, as amended April 28, 1890, 87 O. L. 359, in force.”

In State v. Smith, 48 Ohio St. 211, 219 [26 N. E. Rep. 1069], in the opinion of the court we find the following language:

“We see no other valid objection to the law. And as the act itself is invalid, the repealing clause must also be held inoperative, as we ■cannot suppose that the legislature would have repealed the act creating the board of city improvements, without providing any substitute therefor. ’ ’

Counsel for petitioner make the contention that, under this -doctrine announced in State v. Smith, supra, there would be no reason for reinstating an act, when the old law in all material respects is just like the new one; that there would be neither sense nor justice in reinstating old Sec. 30 with its archaic provisions as to paper money after the power to issue it had been taken away. There is, no doubt, much logic in this reasoning, but it does not apply to the principle involved here. The question is not as to the reasons and purposes for reinstating such law, but the principle underlying this question is that the invalid act did not affect the valid one that it attempted to repeal, and the court is not now reinstating this act, but would be simply finding that there was no valid act that effected its repeal and that it remains the law of Ohio, because it has not been repealed by any valid enactment of the repealing power of the state. So that we are not concerned as to the reasons why it should or should not be reinstated, for we are not reinstating it, but merely determining that no law of the state is repealed by an unconstitutional enactment of the legislature of Ohio purporting to repeal the same. For this reason, even though all the other contentions of counsel for petitioner be correct, the common pleas -court has jurisdiction of the cause, and there is a valid constitutional law under which this prosecution is proceeding, and the petitioner is not unlawfully deprived of his liberty, and must be remanded to the custody of the sheriff, and such order is accordingly made at the costs of the petitioner and his exceptions are here noted.

Taggart and McCarty, JJ., concur.


source: Caselaw Access Project

author: COOK, J.

license: Public Domain

text:
    NEGLIGENCE — STREET RAILWAYS.
    [Lake (7th) Circuit Court,
    February Term, 1909.]
    Laubie, Cook and Metcalfe, JJ.
    Cleveland, P. & E. Ry. v. Jessie Sites.
    Negligent Speed of Electric Car.
    Where an electric railway company operates its road on the public highway, and runs its cars in the nighttime upon a straight level track, although in the open country, at such a rate of speed that a cow cannot be discovered standing upon the track by the light of the headlight in time to stop the car, and a passenger is injured by reason of the car striking the animal, such facts will justify a jury in rendering a verdict in favor of the passenger for the injuries sustained.
    [Syllabus approved by the court.]
    Error to Lake common pleas court.
    H. E. Hammar, for plaintiff in error.
    .Homer Harper and Harry Nolan, for defendant in error.
   COOK, J.

Jessie Sites, while a passenger on one of the cars of the Cleveland, Painesville & Eastern Ry. Co., was seriously injured, as she claims, through the negligence of the employes of the railway company. She obtained a verdict for $500 upon which judgment was rendered by the court; and the company now prosecutes error in this court.

A number of errors are assigned but the principal one relied upon, •and the only one which we deem important, is that the verdict was not supported by sufficient evidence. There is little conflict in the evidence. The injury occurred by reason of the car running into a cow standing ■on the track. The track of the company is upon the south side of the public highway and the driveway for the public is on the north side. The highway and track were practically uninclosed, there being no fence on the north side of the highway and very little on the south side ■of the track.

The track where the injury occurred was in the open country and for a long distance east and .west thereof was straight and nearly level. The time was in the evening but after dark. The ear went over the cow, throwing off the rear truck, and ran, as the evidence tends strongly to-show, some two or three hundred feet after striking the cow. The car was equipped with all the necessary appliances for stopping it, and the headlight was burning.

The motorman testified he did not see the cow until he was within two hundred feet of it, and that he immediately put on the emergency brake, reversed his motor and did all in his power to stop the car. By the testimony of the employes on the car and others, the car was running from thirty-five to forty miles an hour. The car was a heavy express car. The company proved that an object such as a cow standing upon the track could not be seen by the light of the headlight more than three hundred feet, and that it was impossible to stop such a car running at a speed of from thirty-five to forty miles an hour, by proper use of all the appliances for that purpose, in a less distance than four hundred feet.

Counsel for plaintiff in error seem to admit that the fact of the injury under circumstances of this character raises a presumption of negligence upon the part of the company, which presumption must be met by evidence of equal amount and weight; that the maxim of res ipsa loquitur applies. Leaving that maxim out of consideration, as there may be some doubt about its applicability, the question arises: Do the facts show such negligence upon the part of the employes of the company as justified the jury in returning a verdict for the plaintiff? The question must be largely, if not entirely, determined upon the fact as to whether or not the ear was being run at such a high rate of- speed as to constitute negligence.

This car was running in the open country, and the claim of plaintiff in error is, that in analogy to steam railways, the company had the right to run its cars at any speed that it might deem necessary in the operation of its road. We do not think so. There is little analogy between the running of a train of cars on a steam railway in the open country and the circumstances of this ease. In the former the company owns its roadbed absolutely and has exclusive control over it. It is fenced on either side, and persons or animals being upon the track, except at crossings, are trespassers. Here the roadbed was on the public highway and the rights of the public and the company were equal. The highway and track being unfenced, the company might reasonably have anticipated that animals might go upon the track; yet it ran its car at such a rate of speed that if such obstruction should be upon the track it could not see it by the light of the headlight in time to' stop its car although the track was straight and level.

Indeed this is the defense made by the company. We do not think such defense tenable. There may be some doubt as to how far the headlight would light up the track and the distance at which the car could have been stopped; but adopting the claim of the company, we are of opinion that it was negligence to run the car at such a rate of speed upon a straight level track that an obstruction could not be seen in time to stop the car. Of what use would be a headlight if the car could not be stopped on a level, straight track within the distance lighted by it?

In the case of Cincinnati Street Ry. v. Lewis, 13-23 O. C. C. 127 (3 N. S. 115), it is held:

“In the absence of a regulative ordinance, the rule as to speed of electric cars is that of reasonable stafety in view of all the facts and surrounding conditions. ’ ’

The case, as shown by the opinion, was determined upon a case that went to the Supreme Court from the same circuit, where the same doctrine was held, and was affirmed.

Cleveland City Ry. v. Osborn, 66 Ohio St. 45 [63 N. E. Rep. 604], is relied upon by counsel for plaintiff in error. In that case, it was held:

“Where a passenger on a street railway car was thrown from the car and injured by the sudden stopping of the car in the effort to avoid a collision, and by the shock of a collision which was not brought about by the negligence of the defendant, it is damnum absque injuria.”

In that case there could be no claim of negligence upon the part of the gripman. The collision occurred in a street within the city; the bakery wagon was proceeding in the same direction as the car which was going at a speed not to exceed ten or twelve miles an hour, and suddenly the wagon turned across the track. In this emergency which unexpectedly occurred it was the duty of the gripman to use every effort to avoid the collision. His duty, not only to the driver of the wagon but also to his passengers, was to avoid a collision if possible. We do not think that case governs the case we have under consideration.

The judgment of the court of common pleas will be affirmed.

Laubie and Metcalfe, JJ., concur.


author: SWING, J.

text:
    BILLS OF EXCEPTIONS — EVIDENCE—WRONGFUL DEATH.
    [Hamilton (1st) Circuit Court,
    December 19, 1908.]
    Swing, Giffen and Smith, JJ.
    Cincinnati Traction Co. v. Fred Kettler, Admr.
    1. Failure to Attach Letters op Administration to Bill op Exceptions not Fatal.
    Failure to attach letters of administration to a hill of exceptions does not render the bill incomplete, where the administrator testified as to his appointment and to his acting as administrator, and no objection was taken thereto.
    2. Improper Manner of Introducing Evidence.
    Statements by counsel without objection, as to facts contained in a pamphlet not offered in evidence, is not the proper way to introduce evidence, but in this case was not prejudicial.
    3. Judgment of $2,000 Reasonable Compensation for Death op Market Woman.
    For the wrongful death of a widow fifty-seven years of age, engaged in market gardening, whose income with the aid of two sons and one daughter amounted to only $500 a year, is liberal compensation to the children for their loss.
    Joseph Wilby, for plaintiff in error.
    Hoffman, Bode & LeBlond, for defendant in error.
   SWING, J.

"We think the bill of exceptions contains all the evidence offered by the parties on the trial of the case. It is true that the letters of administration were offered in evidence and are not attached, but the witness testified that he was appointed administrator by the probate court and was then acting as such, and no exception was taken to the competency of this evidence, and it is further shown that the letters introduced added nothing to what had been shown, and that in fact the letters of administration showed the appointment of Kettler by the probate court.

As to the omission to attach the almanac to the bill, it does not appear to have been introduced, but without objection counsel was permitted to state what it contained as to a particular matter. This was not a proper way to introduce evidence, but it was done and is not prejudicial.

The jury had a right to conclude from the evidence that Mrs. Reehmann was driving her wagon on the morning in question on the track of the company in the street of the city; that the car of the company approached the wagon from the rear; that the wagon was in plain view •of the motorman when he was more than two hundred feet away; that .he did not sound his gong, nor slacken his speed until the car struck the wagon and killed Mrs. Rechmann, and that there was nothing to .show that he could not have sounded his gong or stopped his car so as to have avoided the injury; that the collision was caused by the company, to which Mrs. Rechmann did not contribute.

The verdict was for $3,000. Mrs. Rechmann was fifty-seven years •old at the time of the killing. She was a market gardener and stood in Sixth street market. She had raised a family and her husband had died .some three years before. The estate inventoried some $6,500. It was in evidence that with the help of two sons and one daughter she had made about $500 per year, the sons doing the garden work, the daughter the household work and she managing the garden and marketing the product. It seems to us that the judgment is excessive; her earning power was not great; it must soon cease altogether, and instead of supporting her children they would before long have to support her. We think $2,000 would be a most liberal estimate to be placed on the pecuniary loss to the children, and a remittitur should be made to this extent.

Giffen and Smith, JJ., concur.


author: SULLIVAN, J.

text:
    LANDLORD AND TENANT.
    [Franklin (2nd) Circuit Court,
    February, 1909.]
    Sullivan, Dustin and Allread, JJ.
    Owen Smith v. Henry Miller et al.
    Landlord not Liable for Injuries from Tenant’s Sign Falling.
    A landlord in the absence of a contract restraining the use of signs by a tenant is not liable for injuries resulting from the falling thereof. Hence, in an action against the landlord for injuries to a pedestrian on the sidewalk in front of the building, in the absence of evidence that defendant owned or controlled the building or was bound for repairs, directing a verdict for defendant is not error.
    [Syllabus approved by the court.]
    Error to Franklin common pleas court.
    Several years ago Samuel Huston owned a business building at No. 80 N. High street, Columbus, Ohio. He rented certain front rooms, on the second floor of said building, to E. C. Orebaugh for the purpose •of a real estate office, reserving no control over these rooms. Orebaugh sublet desk room in his office to one, D. B. Hills, an insurance agent, who had a sign erected on the front part of his office under the window, and on the sign was printed the word, “Insurance.” This sign board was several feet long and twelve or fifteen inches wide. On January 11, 1903, Samuel Huston sold this building to James T. Miller. The-sign was on the building at that time and was fastened to the wall. Mr. Orebaugh continued as a tenant of said rooms under an annual lease..
    On or about December 25, 1904, during a heavy wind storm, this sign belonging to Hills, was torn lose from its fastening and fell to the-street. In falling it struck Owen Smith.
    Afterwards, on March 15, 1905, Smith brought an action against Henry Miller to recover $10,000 damage for injuries reviewed from the-falling of the sign. On March 13, 1907, he filed an amended petition and brought into the case James T. Miller.
    On October 18, 1907, the case came on for trial, and at the close-of the plaintiff’s testimony the court, on motion, directed the jury to-bring in a verdict for defendants, dismissed plaintiff’s petition at his-costs, and the cause is here on petition in error, to reverse that judgment.
    Earnhart & Bates, for plaintiff in error:
    Cited and commented upon the following authorities: Dillon, Mun. Corp. Sec. 1032; First Nat. Bank v. Gillen, 17 Circ. Dee. 609’ (7 N. S. 33) ; affirmed, no report, First Nat. Bank v. Gillen, 73 Ohio St. 394; Gray v. Gas-Light Co. 114 Mass. 149 [19 Am. Rep. 324]; Salisbury v. Tlerchenroder, 106 Mass. 458 [8 Am. Rep. 354]; Wharton, Negligence 633, Sec. 817.
    M. E. Thraiíkill, for defendants in error:
    Cited and commented upon the following authorities: Shindelbeck v. Moon, 32 Ohio St. 264 [30 Am. Rep. 584]; Edwards v. B/issler, 16 Circ. Dec. 428 (5 N. S. 44) ; Burdick v. Cheadle, 26 Ohio St. 393-[20 Am. Rep. 767] ; Bailey v. Gas Co. 2 Circ. Dec. 656 (4 R. 471) Schwalbach v. Shinkle, 42 Bull. 170; Percell v. English, 10 Bull. 143; 18 Am. & Eng. Enc. Law 240; Thomas, Negligence 710.
   SULLIVAN, J.

Plaintiff in error contends he yas prejudiced by the courts below in sustaining the motion of the defendants in error to direct a verdict in their favor, at the conclusion of the testimony introduced by him in support of the averments of his petition. Judgment for defendants’ costs was entered up against plaintiff in error, and these proceedings are brought to reverse said judgment.

The action was brought by plaintiff in error to recover damages ior injuries resulting from the defendants’ negligence.

The acts of negligence set forth in the petition are that the defendants, being owners and controlling a. certain building fronting and •abutting upon High street in the city of Columbus, some five years prior to the injuries to plaintiff, caused to be erected upon the front of said building upon the third story and about thirty feet above the sidewalk in front of said premises a wooden sign twenty-four feet long by two wide and one inch in thickness; that during all of said period it remained on said building in the position described; that in its original •construction or by lapse of years it became dangerous and unsafe to persons in the lawful use of the sidewalk immediately thereunder; that the defendants knew or by the exercise of ordinary care could have known of its - dangerous condition, and plaintiff did not have such knowledge; that on or about the twenty-sixth day of December, while plaintiff was walking upon the sidewalk below and immediately in front ■of said building, said sign suddenly gave way and fell upon plaintiff, •causing the injuries of which he complains.

The answer of the defendants is a general denial putting in issue .all averments of the petition necessary to be proven to entitle plaintiff "to recover.

Whether the defendants were the owners or in control of the building when the accident occurred was by this answer made an issuable fact. We do not find any testimony in the bill of exceptions to sustain this averment of the petition.

Neither does the bill contain any testimony showing or tending to •show that the method of attaching the sign to the building was faulty. The fact disclosed by the testimony that it had been there for several years prior to the accident would furnish a fair inference, at least, that there was no negligence on the part of any one in that respect. Aside from the fact of the sign falling, there is no testimony that in course of time the appliances attaching it to the building had become loosened, and no longer able to sustain the weight or that they gave way and the sign fell. This, however, was a mere inference in support of the claim that some one at least was negligent in not seeing that the sign in its position was maintained in a safe condition. Who would be liable for injuries resulting from such negligence as a matter of law, we think fully settled by the law of this state. It is upon the party in possession and control of the building at the time.

In the absence of a contract to that effect the landlord is not bound for repairs. This obligation rests upon the lessee in such a case. If the defect which caused the accident occurred during the occupancy and control <by the lessee then the landlord would not be liable. Here,, in the first place, there is no testimony showing that the defendants were the owners at the time, or had any control over the building, and if either owned it, there is no testimony showing or tending to show they were bound for repairs. This being the state of the record, we are therefore of the opinion that plaintiff in error was not prejudiced by the court below directing a verdict for defendants and entering judgment against plaintiff for costs. The judgment is therefore affirmed at costs of plaintiff in error.

Dustin and Allread, JJ., concur.


text:
    LANDLORD AND TENANT.
    [Hamilton (1st) Circuit Court,
    January 23, 1909.]
    Swing, Giffen and Smith., JJ.
    Grau et al. v. Longworth.
    Deteriobation oe Premises no Cause for Tenant’s Vacation Unless Unfit-fob Occupancy.
    The fact that premises have deteriorated does not afford a tenant sufficient reason for quitting them, unless it appears that they have become unfit for occupancy for the purposes for which they were leased.
    [Syllabus approved by the court.]
    Error .to Hamilton common pleas court.
    Colon Schott, for plaintiff in error.
    Ernst, Cassatt & McDougall, for defendant in error.
   SWING, J.

The evidence in this case does not tend to show that the building leased by Grau from Longworth was destroyed or so injured by the elements or other cause so as to be unfit for occupancy; and the court was right in instructing a verdict for the plaintiff. The evidence tends-to show that the repairs made on the building made the premises less desirable for the business that plaintiff in error was engaged in, but this is not sufficient ground under the statute to authorize the tenant to quit the premises. The premises must be made unfit for occupancy and there was no evidence which tends to show this.

Judgment affirmed.

Giffen and Smith, JJ., concur.