author: NIMAN, J.

text:
    ATTORNEY AND CLIENT — CONTEMPT OP COURT.
    [Cuyahoga (8th) Circuit,
    January 22, 1912.]
    Winch, Marvin and Niman, JJ.
    J. A. C. Golner et al. v. State of Ohio.
    1. Contempt in Enticing Juror in Criminal Case to Visit Prosecuting Attorney.
    To entice a juror in a criminal case from his home late at night and by falsehood induce him to put himself in a position which would appear compromising both to him and to the prosecuting attorney, with witnesses placed in such position that they could see the unsuspecting juror and be able to testify to his apparent, but not real, wrong-doing, is an interference with the due administration of justice and a contempt of court, punishable as such.
    2. Privilege of Counsel Does not Extend to Discussion of Future Wrongdoing of Client.
    A lawyer is not privileged from testifying in a case against his client, as to a conference between him and his client in which future wrong-doing of his client was discussed.
    P. L. A. Leighley and F. A. Henry, for plaintiff in error. ■

      John A. Cline and W. D. Meals, for defendant in error.
   NIMAN, J.

The plaintiffs in error, in an action in the court of common pleas of Cuyahoga county, in which they were defendants, and the defendant in error was plaintiff, were found guilty of contempt of court. The plaintiffs in error, J. A. C. Golner and Charles Woodward, were each sentenced to serve ninety days in jail, and the plaintiffs in error, Ed. S. Goldstein and Frank Noonan, were each sentenced to serve sixty days in jail, and the costs of prosecution were adjudged against said parties.

A reversal of the judgment of the court of common pleas is sought by the plaintiffs in error. A consideration of the errors assigned requires, first, a determination of the question whether the information, on which the plaintiffs in error were attached and brought to trial, charges facts sufficient to constitute contempt of court. Demurrers to the information were filed on behalf of the various parties charged with contempt, which were overruled, and the overruling of these demurrers is one of the errors- assigned.

The information is in the following language:

“Now comes John A. Cline, the duly elected, qualified and acting prosecuting attorney of Cuyahoga county, Ohio, and informs the court as follows, to wit:
“That at the September term, 1911, of said court, the grand jury of said county and state duly returned to said court an indictment against the defendant, J. A. Golner, duly charging the said defendant Golner with having obtained by false pretenses, certain property belonging to one E. Q. Keeves; that on the 17th day of November, 1911, said indictment was duly filed in said court in the case of the state of Ohio v. J. A. C. Golner et al., being case No. 313 on the criminal docket of said court. ' • •
“That the said defendant Golner was duly arraigned and entered a plea of not guilty to said indictment; that thereupon, said ease against the said defendant Golner was set for trial at the September term, 1911, of said court to wit: on the 27th day of November, 1911; that on the 27th day of November, 1911, a jury was duly summoned, impaneled and sworn in said case; .that thereupon, a trial of said ease against the defendant Golner was duly had, which trial commenced on the 27th day of November, 1911, and ended on the 11th day of December, 1911, when the jury in said case, as aforesaid, returned a verdict to said court finding the defendant, Golner, guilty as charged in said indictment.
“That John A. Cline, prosecuting attorney, as aforesaid, participated as one of counsel for the state in the trial of said case, and that one Samuel Glass was duly summoned, impaneled and sworn as one of the jurors in said case, and sat as such juror on the trial of said case, as aforesaid.
“That on the 10th day of December, 1911, and while said case against the said defendant Golner was pending and on trial, the said defendants, J. A. C. Golner, Ed. S. Goldstein, Frank Noonan and Charles Woodward, agreed and conspired together •with the intent then and there to interfere with, obstruct and defeat the administration of justice in said case; that on the said 10th day of December, 1911, the said defendants, J. A. C. Golner, Ed. S. Goldstein, Frank Noonan and Charles Woodward, in furtherance of said unlawful design, did then and there falsely pretend and represent to the said Samuel Glass, one of the jurors in said ease, as aforesaid, that the said John A. Cline, prosecuting attorney and counsel in said case, as aforesaid, wanted to see him, the said Samuel Glass, at his, the said John A. Cline’s residence, for the purpose of having a personal interview with him and that the said John A. Cline had sent them to convey him, the said Samuel Glass, by automobile to his, the said John A. Cline’s, residence.
“That said representations made by said defendants to the said Samuel Glass, as aforesaid, were all and singular false and untrue, which the said defendants then and there well knew.
‘ ‘ That thereupon, to wit, on the said 3 Oth day of December, 1911, the said Samuel Glass, believing that said representations made to him by said defendants, as aforesaid, were true, accompanied said defendants in an automobile to the residence of the said John A. Cline, at No. 2276 Murray Hill avenue, S. E., in the city of Cleveland, said county and state.
“That said defendants, J. A. C. Golner and Ed. S. Gold-stein, Prank Noonan and Charles Woodward, in furtherance of said conspiracy to obstruct the administration of justice in said ease through fraud and deception, procured four men, who were without knowledge of said conspiracy, to be present at or near the said residence of the said John A. Cline, so as to be able to see the said Samuel Glass enter and leave said residence and give testimony thereof in said case for the purpose of causing a mistrial of said case, or in the event that a verdict of guilty were returned by the jury in the case, for the purpose of obtaining a new trial thereof.
“That by reason of the premises, as aforesaid, said defendants, J. A. C. Golner, Ed. S. Goldstein, Frank Noonan and Charles Woodward were then and thereby guilty of obstructing the administration of justice, and of contempt of this court, contrary to the statute in such case made and provided.
“John A. Cline,
“Prosecuting Attorney.”

Section 12136 G. C. provides:

“A court or judge at chambers summarily may punish a person guilty of misbehavior in the presence of, or so near the court or judge, as to obstruct the administration of justice. ’ ’

In Oswald, Contempt of Court, p. 8, it is said:

“To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authority and. administration of the law into disrepute or disregard, or to interfere with or prejudice parties litigant or their witnesses during the litigation.”

In Hale v. State, 55 Ohio St. 210, 213 [45 N. E. 199; 36 L. R. A. 254; 60 Am. St. 691], it was held that removing a witness from the county of his residence where he was under subpoena to attend upon the trial of a cause pending, with the purpose and effect of preventing his appearance upon the day of trial, was a wrongful act which obstructed the administration of justice, and was a contempt of court.

The information here charged facts constituting a conspiracy on the part of the plaintiffs in error to interfere with and obstruct the administration of justice and a carrying out of that conspiracy. The necessary result of the acts attributed to the plaintiffs in error would be to bring the authority and administration of the law into disrespect and disregard and hamper and cripple the agencies through which it acts. The information, therefore, states facts which constitute a contempt of court.

Another error assigned by the plaintiffs in error makes it necessary to consider the evidence on which the conviction in the eourt below was based. It is claimed by the plaintiffs in error that the evidence did not establish their guilt as charged in the infonnation, but on the contrary, proved an innocent and laudable course of conduct on their part.

The evidence shows that while the plaintiff in error J. A. C. Golner was on trial in the criminal branch of the common pleas eourt of Cuyahoga county, charged with obtaining property under false pretenses, he, with the other plaintiffs in error, entered into an arrangement whereby a juror in that ease was to be induced by a fictitious message to go to the house of the prosecuting attorney engaged in trying the ease on behalf of the state. The plan contemplated the presence of witnesses who should see the juror enter the prosecutor’s house. The plaintiff in error, Charles Woodward, seems to have been the author of this program. Sunday night, December 10, 1911, was the time chosen for its execution. On the evening of that day a meeting was held by the plaintiffs in error at Woodward’s office, at which Horace Neff, an attorney at law, was present. Mr. Neff had previously been retained by the plaintiff in error, J; C. A. Golner, in connection, it appears, with the criminal case then on trial, and at this meeting the plan was unfolded and his advice sought on the legality of the transaction. He testifies that in substance his opinion, as given, was that no statute would be violated. Later that evening, the plaintiff in error, Frank Noonan, in an automobile hired for that purpose, and operated by one who had no knowledge of the plan being carried out, went to the house of the juror, told him that Prosecutor Cline wanted, to see him on important business, and taking the juror into the car, drove across the city to the home of Mr. Cline, where the juror was directed by Noonan to go to the door and eall for the prosecutor. In the meantime the plaintiff in error, Ed. S. Goldstein, in another automobile and accompanied by Mr. Neff and four other men, who knew nothing of what was to happen, until later at least, had driven to the vicinity of Mr. Cline’s house and were waiting the arrival of the other ear. As soon as the prosecutor came to the door in answer to the call of the juror, all the other parties rapidly disappeared from the neighborhood.

It is claimed by plaintiffs in error that their only purpose in conceiving and executing this affair was to test the juror whom they believed, on reasonable grounds, to be subservient to the prosecuting attorney to such an extent that he would come at any time and to any place that official might summon him, and thereby demonstrate that he was disqualified. They assert that they acted only after they had obtained legal advice, and point to the fact that no use was made in the criminal case of the visit of the juror to the home of Mr. Cline as evidence that no improper motives animated them.

In a case like this the character of the acts of the parties involved, and the apparent purposes to be accomplished, indicate more accurately the motives of the actors than their own protestations. The whole scheme as conceived and executed, was wrongful, and there is no room for doubt that the parties who engaged in it were well aware of its doubtful character. A juror was enticed from his home late at night and by falsehood induced to put himself in a position which would, on its face, appear aampromising both to him and to the prosecuting attorney. Witnesses were placed in such a position that they could see the unsuspecting juror and be able to testify to his apparent, but not real, wrongdoing.

If this elaborate scheme had no other- purpose than to demonstrate the juror’s subserviency to the prosecutor, it is difficult to see the need of so many witnesses as were engaged for the occasion. The evidence shows that some other motive than the mere testing of the juror, of whose allegiance to the prosecutor they seemed satisfied, was back of their plan.

In our opinion, the conviction was justified by the evidence, unless the court erred in permitting the witness, Horace Neff, to testify against the objection of the plaintiffs in error. It is claimed that Mr. Neff was, at the time of the meeting in Woodward’s office, acting as attorney for the plaintiff in error, that he was consulted by them upon this occasion as their legal adviser with respect to the whole transaction, and that he is disqualified from testifying.

Under Sec. 11493 G. C. an attorney is prevented from testifying concerning a communication made to him by his elient in that relation, or his advice to his elient.

The principles of law decisive of the question involved in the action of the trial court in permitting Mr. Neff to testify, are thoroughly and learnedly discussed in 4 Wigmore, Evidencé Sec. 2298.

“It has been agreed from the beginning that the privilege can not avail to protect the client in connecting with the attorney a crime or other evil enterprise; and for the logically sufficient reason that no such enterprise falls within the just scope of the relation between legal adviser and elient.”

Again, after discussing the reasons for the rule protecting confidences of persons who have already committed crimes or wrongs, imparted to their attorneys, the author says:

“But these reasons all cease to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing. From that point onward, no protection is called for by any of these considerations. ’ ’

In Matthews v. Hoagland, 48 N. J. Eq. 455 [21 Atl. 1054], the rule is stated as follows:

“If the client consults the lawyer with reference to the perpetration of a crime, and they co-operate in effecting it, there is no privilege, for it is no part of an attorney’s duty to assist in crime; he ceases to be counsel and becomes a criminal. If he refuses to be a party to the act, still there is no privilege, because he can not properly be consulted professionally for advice to aid in the perpetration of a crime. In the case of fraud, if it is affected by the co-operation of the attorney, it falls within the rule as to crime, for their consultation to carry it out is a conspiracy which, on its accomplishment by the commission of the overt act, becomes criminal and an indictable offense.”

In view of the inherently wrongful enterprise concerning which Mr. Neff was consulted, and his own participation in its execution, the claim of the plaintiffs in error that he was improperly permitted to testify over their objection is not well founded. Another assignment of error is based on the claim that the punishment is excessive. The punishment in contempt proceedings of this character rests within the discretion of the court. As was said in Myers v. State, 46 Ohio St. 473, 491 [22 N. E. 43; 15 Am. St. 638]: ‘ ‘ The discretion here given is a sound, reasonable discretion, and its exercise in a case of this kind is reviewable.” The punishment inflicted by the trial court was undoubtedly severe, but the offense was of such a character as to merit severity, and it cannot be said there was any abuse of discretion by the court. "We find no error prejudicial to the plaintiffs in error in any of the matters assigned for error, and the judgment of the court of common pleas is affirmed.

Winch and Marvin, JJ., concur.


source: Caselaw Access Project

author: BY THE COURT.

license: Public Domain

text:
    TELEPHONES AND TELEGRAPHS.
    [Franklin (2nd) Court of Appeals,
    July 2, 1917.]
    Kunkle, Allread and Ferneding, JJ.
    Columbus (City) v. Ohio State Telephone Co.
    L Telephone Franchise Ordinance Fixing Rates for Overhead and Conduit System Valid and Enforcibie by Municipality.
    A municipal ordinance granting a twenty-five year franchise to a telephone company to operate an overhead and conduit system and providing for an extension of its conduit system after five years from the completion of its exchange, and fixing a maximum charge for business phones is valid and may be enforced by the municipality in its own behalf and in behalf of customers located within the corporate limits.
    2. Telephone Franchise Fixing Rates for Definite Period not controlled by Public Utilities Commission.
    The public utilities act does not apply-to a municipal ordinance granting a twenty-five year franchise to a telephone company to operate an overhead and conduit system and fixing the rates to private customers. The rates having been fixed for a definite period are not required to be filed with the public utilities commission.
    3. Construction of Conduits at Notice and Request of City Officials Cause for Increasing Rates under Ordinance.
    In an action by a city to enjoin a telephone company from increasing its rates under an ordinance granting the franchise fixing the rates and prescribing the construction, and further providing for an equitable increase in rates upon the city’s requiring the placing of additional wires in conduit, it is a good defense that more than seven miles of conduit have been constructed at the request and under the direction of city officials, and when it appears from the affidavits of both parties that the question of whether such construction was done pursuant to notice or request of the city, the question will be remanded for final determination and trial.
    4. Telephone Company Denied Right to Accept Favorable Provisions of Franchise and Disregard Provision as to Rates.
    A telephone company having accepted a franchise to maintain • an overhead and conduit system cannot disregard the provision as to rates and retain the favorable provisions of the ordinance granting it. Neither is a defense in relation to unanticipated cost and extension of service good.
    [Syllabus approved by the court.]
    Appeal.

      H. L. Scarlett, City Solicitor and J. B. King, Asst. Sol. for plaintiff.

      Daugherty, Todd & Rarey and Geo. H. Jones, for defendant.
   BY THE COURT.

The city of Columbus brought this action against the Ohio State Telephone Company to enjoin the telephone company from putting into effect a proposed increase of its annual charge upon business phones from $40.00 to $54.00 per annum, less a discount of $3.00 for payment in advance.

The petition alleges that the telephone company is operating under a franchise, ordinance and contract dated and taking effect in the year 1899 and continuing for a definite period of twenty-five years. The ordinance provides for the construction and maintenance of at least five miles of conduits and such extension of the conduit system as might be required by the city after five years from the completion of the exchange.

Under the ordinance and contract, the original telephone company, to whose rights the defendant succeeds, agreed that its charge for business phones should not exceed $42.00 per annum, but provided that if the city at any time after five years from the installation of the exchange required the company to place additional wires under ground that the charges for rentals above set forth might be equitably increased, but not exceeding one dollar per month per phone in excess of the charges above stipulated.

The petition alleges that the defendant entered upon and constructed its plant in the streets, alleys and avenues of the city and has constructed and now maintains more than twelve and one-half miles of underground conduits and that the city at no time required or demanded that , the telephone company lay additional conduits over and above the five miles originally' provided for in the ordinance. The city, therefore, contends that the telephone company has no authority to increase its telephone charges upon business phones above the $42.00 per annum provided for in the ordinance.

An answer was filed in whieh the defendant, among other things, admits the terms and provisions of the ordinance and that it is operating under said ordinance. It admits that it has constructed approximately ten miles of additional conduit, which it is now maintaining as a part of its telephone system and that it proposes to raise the schedule of rates on business phones to the sum of $54.00 per annum, less a discount of $3.00 for payment in advance and denies each and every other allegation.

The defendant sets out four additional defenses.

By the first defense it is claimed that the city of Columbus had no legal right to fix the telephone rates to subscribers and that such provision in the ordinance and contract were without consideration.

The second defense alleges, in substance, that the only authority to fix telephone rates is vested in the public utilities commission, under Sec. 614-2 G. C. et seg.; that the telephone company January 1, 1917, filed this proposed schedule of rates with the utilities commission to become effective February 1,1917, and that no objections, protest or complaint having been filed with the public utilities commission to said rates, the same are now the only lawful rates which the defendant is authorized or permitted to charge.

Third defense alleges, in substance, that the city through its duly authorized officers and agents subsequent to the passage of the franchise, ordinance from time to time, notified this defendant to remove its poles and fixtures from certain streets, alleys and public ways and to place the same in conduits beneath the surface of said streets and that in obedience to said orders and notices, the defendant from time to time constructed more than ten trench miles of conduits in addition to the five miles originally provided for in the ordinance and has leased approximately three trench miles of conduits, in all of which it has placed and maintained its telephone wires in the operation of its plant. The defendant, therefore, claims the right to increase the charges upon business phones up to the maximum of fifty-four dollars per annum, as provided in the ordinance.

The fourth defense, in substance, avers that the telephone plant in the city of Columbus has increased in cost and expense far beyond what was contemplated by the parties at the time the franchise ordinance and contract became effective, making the operation of the plant under the franchise rates unprofitable and causing a loss to the company of substantially $60,000.00 per annum and that by reason of such umantiaipated situation, the telephone company is entitled to have the ordinance rates disregarded and equitable rates established in view of existing conditions.

The plaintiff demurred separately to the defenses marked one, two, three and four of the answer and also to all of the answer, for the reason that the facts stated thereon do not separately or jointly constitute a defense.

The demurrer was presented in the common pleas. The common pleas, in searching the record, found that the petition was defective and sustained the demurrer to the petition and dismissed the action. From this final judgment appeal was taken to this court.

The case is submitted here upon the demurrer to the answer and also upon a motion for a temporary injunction.

In support of the claim that the petition is insufficient to constitute a cause of action, it is claimed that the council of the city of Columbus had no authority to fix the rates and that the acceptance of such franchise including the rates was not binding as a contract because there was no consideration.

It must be observed that as a controlling feature, the City of Columbus by the franchise ordinance in controversy granted not only the right to maintain an overhead telephone system but to maintain conduits in the streets, alleys and public places.

The latter feature, we think, constitutes such a grant as would afford a consideration for the fixing of rates in the franchise ordinance.

In the case of Zanesville v. Gas Light Co., 47 Ohio St. 1 [23 N. E. 55], it was held that the fixing of rates by a gas company in the franchise ordinance was valid. That a right to the use of the streets furnished a valid consideration for the agreement of the company fixing prices at which a commodity was to be furnished to the city and to its inhabitants.

This doctrine was followed in the case of Columbus v. Gas Co., 76 Ohio St. 309 [81 N. E. 440], and was extended so as to include a stipulated sum to be paid to the city as compensation for the use of the streets.

In the recent case, of the Columbus Citizens Tel. Co. v. Columbus, 88 Ohio St. 466 [104 N. E. 534], the principle of the gas company case was extended to the case of a telephone company' which obtained in the franchise the right to the use of the streets for conduit purposes.

The case of Farmer v. Telephone Co., 72 Ohio St. 526 [74 N. E. 1078], is limited to the case of a telephone company which obtains its franchise to operate merely an overhead telephone ¡System and does not apply to the case of a telephone company obtaining the use of the streets and alleys for a conduit system.

The right of a municipality to require a telephone or other public utilities company to fix rates in consideration of a franchise to use the streets especially the subsurface, is amply sustained by the weight of authority in other jurisdictions.

Dillon, Municipal Corporations (5 Ed.) page 1952.

Pond, Public Utilities Sec. 431.

McQuillan, Municipal Corporation, Sec. 1741 and cases cited.

We are therefore of the opinion that under the facts stated in the petition the provisions of the franchise ordinance fixing the telephone rates is valid and may be enforced by the city in its own behalf and in the behalf of the consumers located within its corporate limits.

We therefore proceed to consider the sufficiency of the defenses numbered one, two, three and four of the answer.

Defense number one challenges the consideration of a franchise provision fixing rates upon the ground that there is no consideration. This proposition has already been discussed. That defense, in our opinion, is unsuffieient.

Defense number two relates to the filing of the rates with the public utilities commission. Upon consideration of this defense, we have reached the conclusion that the public utilities act does not apply to the ordinance under consideration, for the reason that this ordinance grants a franchise fixing the rates for a definite period. See Sec. 614-19 G. C. Lexington v. Fuel Supply Co., 37 O. C. C. 678 (24 N. S. 537); Taylor v. Niles, 35 O. C. C. 445 (21 N. S. 391).

We think this is also in harmony with the opinion of the Supreme Court in the case of Cincinnati v. Public Utilities Com., decided May 15, 1917.

We think the third defense alleging the extension of the condnit system under notices and orders from the superintendent of fire and police telegraph of the city of Columbus constitutes a good defense and if true, would authorize the company to increase its rates equitably above the $42.00 per annum provided in the franchise ordinance and not exceeding $12.00 per year.

We think the fourth defense in relation to the unanticipated cost and extension of the service is not a good defense.

The company accepted the ordinance and its right to maintain this system, including conduits is based thereon. Whether the company might under the situation set forth in this defense surrender its entire franchise we are not called upon to consider, but having accepted the franchise including the provision as to the rates, we think that they are not now justified in disregarding the provision as to rates and retain the favorable provisions of the ordinance.

We are therefore of the opinion that demurrer should be sustained to so much of the answer as is embraced under numbers one, two and four, and overruled as to so much of the answer as is embraced under number three.

In respect to the motion for a temporary injunction, we have considered the affidavits filed by the city in connection with those filed by the defendant in the court below. We have reached the conclusion that the question as to whether all or a part of the extension of the conduit system over and above the five miles provided for in the ordinance was made by notice or request of the city is considerably involved, and we do not deem it advisable to pass upon this question of fact upon these affidavits, but feel that as matter of public convenience no interference should be made by a temporary injunction at this time, but the case should be put at issue and finally tried and determined.

The motion for a temporary injunction is therefore overruled and the demurrer to the first, second and fourth defenses of the answer sustained and a.s to the third defense overruled.

Kuhkle, AUread and Femedin^, JJ., concur.


author: ALLREAD, 3.

text:
    APPEAL — CIVIL SERVICE — OFFICE AND OFFICERS.
    [Miami (2nd) Court of Appeals,
    April 26, 1916.]
    Ferneding, Kunkle and Allread, JJ.
    Landrey v. Harmon, Mayor, et al. Weddle v. Harmon, Mayor, et al.
    1. Common Pleas on Appeal from Municipal Civil Service Commission Determines De Novo Question of Removal of Police or Fire Chief.
    Act 106 O. L. 412 (Sec. 486-17a G. C.), providing for an appeal from the municipal civil service commission to the court of common pleas in case of removal of the chief of police or the chief of the fire department, gives jurisdiction to the court of common pleas to try the question of removal de novo.
    2. Appeal from Civil Service Commission to Common Pleas Perfected.
    The appeal is perfected when the necessary papers and transcript are filed in the office of the clerk of the court of common pleas within the prescribed time.
    [Syllabus by the court.]
    Error.

      G. T. Thomas and William IT. Gilbert, for plaintiffs in error.

      J. G. Fullerton, Jr., W. A.. Haines and Kenneth Little, for defendants in error.
   ALLREAD, 3.

George Landrey, as chief of the fire department, and John W. Weddle, as chief of police, of the city of Troy, were removed from office by the mayor, Clay E. Harmon.

They each appealed to the municipal civil service commission, where the orders of the mayor were affirmed.

Appeals were then taken to the court of common pleas, where the proceedings were dismissed upon the ground that the court had no jurisdiction to review the evidence before the commission or to try the questions of removal de novo.

These proceedings in error are brought to obtain reversals of the judgments of the court of common pleas with Instructions to try de novo the questions of removal.

The right of appeal depends upon the following portion of Sec. 486-3 7<i G. 0. (106 O. L. 412) :

“Provided, however, that in the case of the removal of a chief of police or chief of the fire department of a municipality an appeal may he had from, the decision of the municipal commission of the court of common pleas of the county in which such municipality is situated to determine the sufficiency of the cause of removal. Such appeal shall be taken within ten days from the finding of the commission.”

Counsel for defendants in error contend that the absence of a provision fixing the details as to the transfer of such case renders the appeal provision ineffective and invalid.

We think there is sufficient in the statute to make the appeal effective.

The statute is quite as definite as Sec. 2461 6. C., in relation to appeals from the board of county commissioners to the court of common pleas, the validity of which has been repeatedly affirmed by cur Supreme Court.

The appeals in the court of common pleas in the eases at bar were complete when the appellants caused to be filed in the court of common pleas the papers, or copies thereof, upon which the cases were heard before the municipal commission, and transcripts of the decisions of such commission.

It is next contended by counsel for defendants in error that the appeals invoke the jurisdiction of the court of common pleas merely to review the sufficiency of the charges or reasons for removal, but do not confer jurisdiction to try the questions of removal de novo.

This question is not free from difficulty. Counsel for defendants in error in support of their view cite the case of State v. Hawkins, 44 Ohio St. 98, 116 [5 N. E. 228]; State v. Hoglan et al. 64 Ohio St. 532, 545 [60 N. E. 627], and State v. ClenDening, 93 Ohio St. 264.

It must be kept in mind, however, in considering the Hawkins, Hoglan and GlenDening cases, that they were not under statutes providing for appeals.

They were quo warranto, mandamus or prohibition cases in which the court determined only as to the jurisdiction of the tribunal to hear and determine the charges presented.

The legislature by the appeal provision above quoted evidently intended to change the rule represented by the Hawkins, Moglan and ClenDening cases and to confer a more extensive jurisdiction upon the court of common pleas, as the court of final appeal where the grounds of removal might be tried and considered as a judicial question.

An “appeal” from the “decision of the municipal commission” would imply that the case be heard de novo.

The legislature is presumed to have used the word “appeal” in view of its accepted and established meaning.

In the case of Zanesville v. Telegraph & Tel. Co. 64 Ohio St. 67 [59 N. E. 781; 52 L. R. A. 150; 83 Am. St. 725], on page 83, Williams, J., says:

“An appeal is the removal of a cause or matter from an inferior jurisdiction after its decision, to a superior jurisdiction for retrial on its merits.”’

- In Ault man, Miller & Co. v. Seiberling, 31 Ohio St. 201, 204, it is said:

“The effect of an appeal, under our system, is to vacate the order, decision, or decree appealed from, and to carry the cause into the appellate court, both upon the law and facts, the same as if no decision had been made.”

The same definition is found in other reported eases.

It is contended that the appeal clause conferring jurisdiction upon the court of common pleas “to determine the sufficiency of the cause of removal” is a limitation of the jurisdiction of the court of common pleas to a determination of the sufficiency of the reasons for removal or of the written charges upon which the case was heard before the municipal commission.

We think, however, upon careful consideration, that this clause does not confine the jurisdiction of the court of common pleas to a mere review of the sufficiency of the written charge filed or the reason assigned as a ground for removal.

The “cause of removal” referred to in the statute lies back of the writen charge and is the act or conduct of the official upon which the removal was founded.

There are many pertinent definitions given by jurists and text-writers, but we find it unnecessary to go further than to quote from Judge Spear iu the case of Baltimore & O. Ry. v. Larwill, 83 Ohio St. 108 [93 N. E. 619; 34 L. R. A. (N. S.) 1195], on page 115, as follows:

“A cause of action is the fact or combination of facts Avhich gives rise to a right of action, the existence of which affords a party a right to judicial interference in his behalf.”

So, in each of the eases at bar, the cause of removal must necessarily antedate the proceedings for removal and consist of the fact or combination of facts upon which the order of removal was made. '

The fact that the appeal is the second appeal in the same proceeding goes only to the construction of doubtful terms, if any, in the statute authorizing it. If. the statute is sufficiently clear, as we think this statute is, the scope of the appeal should not be unduly limited.

We have considered the sufficiency of the reasons for removal, which with the explanations would probably constitute the issues, and are of opinion the same are sufficient.

The judgments of the court of common pleas in the above cases should be reversed and the causes remanded with instructions to proceed to trials de novo.

Judgments reversed.

Ferneding and Kunkle, JJ., concur.


author: POWELL, J.

text:
    LIMITATIONS — QUIET TITLE.
    [Licking (5th) Court of Appeals,
    October Term, 1916.]
    Shields, Powell and Houck, JJ.
    David Swisher v. Edward W. Swisher.
    Statute of Limitations does not Run against Grantor of Deed Retaining Possession to Bring Action to Quiet Title.
    Where a property owner executes a deed and places it in the hands of a third party for safe-keeping, but retains possession of the property, and the custodian subsequently places the deed on record, the defense of the statute of limitations does not lie to an action by the grantor to quiet his title against the party named in the deed,
    [Syllabus approved by the court.]
    Appeal.
    J. M. Swartz, for plaintiff.
    W. D. Fulton and Powell <& Powell, for defendant.
   POWELL, J.

This case has been submitted to this court upon a demurrer to the second defense in the amended answer.

The basis of the action, as set forth in the petition, is to quiet the title to certain real estate claimed to be owned by the plaintiff herein.

The petition avers that plaintiff executed two deeds for certain real estate described therein, making the defendant, Edward W. Swisher, the grantee; that he placed said deeds, in the iron safe of Dan S. Ambaek in the city of Columbus, Ohio, for safe-keeping, and that afterwards said Ambaek, without any authority from plaintiff, and without his knowledge or consent, took both of said deeds from said safe and left them with the recorder of Licking county, Ohio, for record, and that they were recorded in the records of said recorder’s office in said Licking county, Ohio; that said deeds were never delivered by plaintiff to any one, nor were they intended to be delivered, and said premises were never legally conveyed to said Edward W. Swisher; that plaintiff has always been in possession of said premises, and now has full control over the same, and has spent large sums of money thereon for improvements, believing thát he was still the owner thereof; that he has frequently demanded of the said defendant, Edward W. Swisher, to reconvey said premises to him, but he refused to do so and the defendant claims to be the owner of same. The deeds were executed in 1894 and 1896 and were left for record by said Amback in May, 1897. The petition of plaintiff was filed August 11, 1914. Said petition prays that the claim of defendant in and to said premises be declared null and void and that said deeds be set aside and plaintiff’s title to said real estate be quieted, etc.

The second defense of the amended answer avers that plaintiff’s cause of action, as set out in his petition, did not accrue within four years prior to the commencement of said action and is, therefore, barred by the statute of limitations.

The demurrer to the second defense searches the record and, from an examination of the allegations in the petition, it will be observed that the defendant- is not now and never was in possession of the premises in question. It will further be observed from the allegations in the petition that the defendant never had possession of said deeds and never had title to the real estate in question either actually or constructively and, never having had the title or possession of and to said premises, we do not understand how the defendant can properly claim that the statute of limitations has run against the plaintiff, because the defendant never having had either possession or title of and to said premises, so far as the averments in the petition disclose, it is not within the power of the defendant to set up as a proper defense the statute of limitations.

Upon the issue raised by the allegations of the petition and the defense of the statute of limitations, as set out in the second defense of the amended answer, we feel that the demurrer is well taken and should be sustained.

The demurrer is sustained.

Shields and Houck, JJ., concur.


author: HOUCK, J.

text:
    AUTOMOBILES — NEGLIGENCE.
    Licking (5th) Court of Appeals,
    April 21, 1917.]
    Powell and Houck, JJ.
    Shields, J., not sitting.
    Ellis Beeson v. David Criss et al.
    1. Competency of Testimony of Expert as to Whether an Automobile Was Under Control at Time of Collision with Another.
    Where the plaintiff has alleged that the automobile which collided with his own was being driven at a furious, unlawful and reckless rate of speed, contrary to the laws of the state, and that the driver had no control over said machine at the time of the collision, it is prejudicial error to sustain an objection to the testimony of an expert who, if permitted, would have testified-that in his opinion the defendant driver did not have his machine under control.
    2. Driver of Automobile on Right Side of Road Turning to Left and Colliding with Another Automobile Fearing Latter Would not Turn not Absolved from Negligence.
    Where the driver of an automobile traveling east on the south side of the road sees another machine coming from the opposite direction on the same side of the road, and fearing that the approaching machine will not turn out of his way the driver of the first machine himself turns to the north and in so doing causes a collision, the question whether he was negligent in so doing was for the jury, and a charge is erroneous which instructs them that if the driver of the first named car in the exercise of ordinary care believed it was dangerous for him to continue on the side where he belonged, his judgment in that matter controlled and he is relieved of negligence, notwithstanding his action in turning to the north was a mistake.
    [Syllabus by the court.]
    Error.

      Fitzgibbon, Montgomery <& Black, for plaintiff in error.
    PM. B. Smythe, for defendant in error.
   HOUCK, J.

The plaintiff in error was the plaintiff below and the defendants in error were the defendants below.

Plaintiff in his suit in the court of common pleas sought to recover damages in the sum of $7000 from the defendants for personal injuries, which he claimed as the result of a collision between a Ford automobile driven by him and a motor ambulance driven by an employee of the defendants.

In the common pleas court the cause ivas' submitted to a jury and a verdict returned for the defendants. A motion for a new trial was filed, heard and overruled, and a judgment catered on the verdict.

Plaintiff in error seeks a reversal of the judgment below and in his petition in error sets forth numerous grounds of alleged prejudicial error.

After a careful reading of the bill of exceptions and the record here presented we find errors in the record prejudicial to the rights of the plaintiff in error as hereinafter set forth.

A. P. Hess was sworn and examined as a witness on behalf of plaintiff, and on pages 88, 89, 90 and 91 we find the following:

“Q. What is your name? A. My name is A. P. Hess.
“Q. What business are you in, Mr. Hess? A. P am In the automobile business.
“Q. How long have you been engaged in the automobile business? A. About ten years.
“Q. . Do you remember the time of the collision on the Oranville road near Sixteenth street some time in March, 1915?. A. I do; yes, sir. * * *
‘ ‘ Q. About how far were you behind these machines at the time of the collision? A. About one block.
“Q. At what speed was it coming? A. Well, I couldn’t judge the speed from wdiere I was, but it ivas coming fast.
‘ ‘ Q. What did you hear ? A. I heard them strike.
“Q. How much experience have you had in handling automobiles ? A. About ten years.
“Q I will ask you to state from your experience as an automobile salesmam or driver whether the driver of the ambulance when this collision occurred, just from the way he was coming and the way the collision occurred or happened, whether or not in your opinion he had his car under control ?
“By Phil. B. Smythe: I object.
“The Court: I think you may show the facts. I don’t think it is subject to an expert opinion. The objection is sustained.
“By J. R. Fitzgibbon: Note an exception; and we offer to prove that the witness will say that in his judgment at the time of this accident the driver of the ambulance did not have the ambulance under control, and we wish an exception.
“The court refused to permit the plaintiff to so prove, to which refusal of the court counsel for plaintiff then and there excepted. ’

We think that this testimony should have gone to the jury and that its exclusion by the court was clearly prejudicial to the rights of the plaintiff below. The plaintiff alleges in his petition that “the employee of the defendants, driving said motor ambulance, was driving the same at a furious, unlawful and reckless rate of speed, which rate of speed was in violation of the laws of the state of Ohio, and so reckless that the driver of said motor ambulance had no control over the machine.”

This testimony tended to prove one of the matérial allegations in the petition and to establish negligence on the part of the defendants, as claimed by plaintiff, and it seems to us that it being necessary for the plaintiff to prove the essential allegations in his petition, that it was clearly competent to show by the witness, Hess, who qualified as an expert, just what plaintiff attempted to prove by this testimony; and therefore we hold that it was improperly excluded by the court.

Before counsel argued the ease to the jury, and at the request of counsel for the defendants, the court instructed the jury as follows:

(a) “If you find from the evidence that the plaintiff’s car approached the scene or point at which the collision took place on the south side of Granville street traveling westwardly, and you find from the evidence that the defendants’ ambulance approached the scene or point where the collision occurred on the south side of Granville street or road traveling eastwardly, and plaintiff’s car approached said point on the south side of said Granville street so close that in the exercise of reasonable care it appeared to the driver of defendant’s ambulance that the plaintiff intended to continue on the south side of Granville street or road, and you find that the driver of defendants’ ambulance turned the same to the left to avoid a collision, and you further find that at the same time plaintiff turned his car to the right, thereby causing the collision, the court charges you that in so doing the driver of defendants’ ambulance was not negligent in the operation and driving of said ambulance by turning to the left, even if you find that the driver of said ambulance erred in his judgment upon being confronted by said state of facts, and that defendant in the exercise of due care was not bound to bring his ambulance to a stand-still. ’ ’

(b) “Every person has a right in governing his own conduct to assume that others will perform their duty, and also act accordingly, until he sees, or by the exercise of ordinary care might see that it is dangerous to do so. Therefore, if you find from the evidence that the defendants’ ambulance approached the scene of the accident on the south side of the road', travelling eastwardly, he had a right to assume that the plaintiff would bear to the right and. pass him on the north side of the road. That if in the exercise of ordinary care it appeared to him that it was dangerous to continue driving on the south side of said road, the defendant was not negligent in attempting to avoid such threatened danger by attempting to pass plaintiff’s car on the north side of the road, if you find from the evidence that he did so attempt to pass the plaintiff’s car; and the defendant would not be guilty of negligence in so doing, even though you find that his judgment was bad in said respect, if you find that he had reasonable grounds for believing that the course he pursued would be the safest. A person in a place of danger is not to be held to such a course as would seem most judicious on deliberate survey of the situation after the accident. The question is not what a careful person would do, but what he might reasonably be expected to do in the presence of the peril, and this is for the jury. ’ ’

It is the duty of a trial court to submit to the jury propositions of law before argument, if they are correct propositions and applicable to the issues in the case.

The language used in the above charges, as we construe it, simply left it with the driver of the motor ambulance to determine the fact as to whether or not he believed, or had a right so to do, that the plaintiff intended to continue on the south side of Granville street, and whether or not he could have avoided the collision. These were questions of fact to be submitted to the jury to be passed upon and determined by it, and not by the driver of the motor ambulance. These questions were for the jury to decide under all the circumstances of the case, taking into consideration the rapidity with which both cars were travel-ling at the time, their relative position to each other, and whether the driver of the car of the defendants had it under proper control, all of which must be determined by the jury under the evidence submitted.

These propositions of law, as given to the jury, left nothing for it to pass upon as to whether the driver of the car of the defendants was negligent or not, because the force and effect of the instruction was that this question was to be determined by the driver, and if he so believed, then the plaintiff could not recover.

It necessarily follows from what we have already said that the judgment of the court of common pleas should be reversed.

Judgment reversed and cause remanded for a new trial.

Powell, J., concurs


author: JONES, (E. H.), J.

text:
    ERROR — VERDICTS.
    [Hamilton (1st) Court of Appeals,
    March 15, 1913.]
    Swing, Jones and Jones, JJ.
    Aaron Strauss v. Nathan Friedman et al.
    1. Duty of Trial Judge to Make on Request Separate Findings of Fact and Law Held Mandatory.
    It is mandatory upon a trial judge to make, when so requested, a special finding of fact separately from the conclusions of law, and his refusal so to do constitutes prejudicial error.
    2. Silence of Counsel when Court Announces Consent to Try Case without Jury if Separate Findings not Made not Binding.
    The statutory rights of a party to such a finding is in no way affected by .the fact that his counsel sat silent at the opening of the trial, when the judge announced that he would consent to proceed with the trial of the case without a jury only on condition that he should not he asked to prepare a finding of fact and conclusions of law.
    Error.

      Louis P. Pink and W. A. Hicks, for plaintiff in error.

      Gloss & Luebbert, for defendant in error.
   JONES, (E. H.), J.

The controversy between parties to this action arose over a building contract.

"When the case was reached for trial in the common pleas court the parties consented to trial without a jury.

The judgment entry of May 29, 1912, describes the action of the trial judge, of which plaintiff in error complains, as follows:

“Such parties requested the court to determine the issues raised by such pleadings without intervention of a jury. The court consented so to do, provided such parties asked for no separate findings of fact and conclusions of law. Neither party at such time asked for such separate findings, and the court upon the pleadings and upon the evidence offered on the seventh day of May, 1912, found for the plaintiff, and that there was due to said plaintiff from the defendant, Aaron Strauss, the sum of $651. Thereupon within three days the defendant filed his motion for a new trial, which was overruled ; and thereupon the defendant having requested separate findings of fact and conclusions of law, which request the court refused.”

In another entry made May 29, 1912, the court said:

“This cause coming on to be heard on the request of the defendant, Aaron Strauss, for a separate finding of fact and law filed herein, on consideration thereof the court overrules and refuses the same for the reason that at the beginning of the hearing of the action the court stated that it would try and determine the ease as between plaintiff and defendant, Aaron Strauss, and render a verdict the same as a jury without any separate findings- of fact or law and counsel for neither party made any objection thereto. ’ ’

It is urged, as the sole ground of reversal, that the refusal of the court to make a special finding of fact separately from conclusions of law was without authority in law and prejudicial to the rights of plaintiff in error.

It seems to us that the question thus presented must be determined from an examination of the Ohio statutes on the subject and rules of practice not inconsistent therewith.

Sections 11469 and 11470 (t. C. provide as follows:

11469. "In actions arising on contract the trial by jury may be waived by the parties and in other actions with the assent of the court,” etc. * * *

11470. "When questions of fact are tried by the court, its finding may be general for the plaintiff or defendant, unless with a view of excepting to the court’s decision upon questions of law involved in the trial one of the parties so requests, in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law.”

The latter section fixes no time at which the request for a separate finding is to be made. It is mandatory upon the court and the right conferred upon the parties is an important and substantial one.

The trial judge was powerless to impose any condition upon the parties as, under Sec. 11469, his consent to try the case was not necessary. Such being the law we do not see that the silence of counsel when the proposition of the judge was made can weigh against the statutory right of the parties.

It is said that the decision of the court was indorsed on the petition, on May 7th. There is nothing on the appearance docket to show this fact. Motion for a new trial was filed on, May 9th and on May 14th, five days after, the request for separate findings was made. This was fifteen days before the overruling of the motion for a new trial.

While it was not claimed by the lower court as a ground of refusal that the request was too late, we refer to these dates because it is claimed in argument here, that the request should have been made at the commencement of, or during the trial. This claim is not supported by law, by practice or by rules, in force at the time, of the court in which the cause was tried.

Decisions of courts in other states are cited which do not aid in the interpretation of our statutes and which, so far as we have examined them, are based upon different statutory provisions or established rules differing from those in vogue here.

It is argued by counsel for defendant in error that we can not reverse the judgment on the error assigned, there being no bill of exceptions containing the evidence from which to find that the plaintiff in error was prejudiced by the judgment.

In support of this contention the case of Oxford Tp. v. Columbia, 38 Ohio St. 87, is cited. In that case the court held that it was error to refuse the request for a finding of fact but affirmed the judgment nevertheless, on the ground that the bill of exceptions in the case showed that the judgment was right, based upon the facts as therein disclosed.

But, there is no transcript of the evidence in this case. The chief purpose of a finding of fact is to avoid a long bill of exceptions. To say that when a party to a cause is denied a right given by statute to avoid a bill of exceptions, he must then prepare a bill in order to show prejudice by such denial, seems to us unreasonable if not absurd.

Were there a bill of exceptions in the case under consideration the case cited would require that we examine it to see if the error committed were prejudicial, but nothing in the opinion in that case can possibly be construed to hold or even intimate that before a party can be heard to complain of a court’s refusal of a substantial right he must cause á record of all the evidence in order to show prejudice.

As well might it be claimed that if the court had refused a request for a jury by a party to this action, such party would have to sit through the trial, produce his evidence and go to the expense of transcribing it in order to get redress in a reviewing court.

For the reason stated the judgment is reversed and cause remanded for a new trial.

Jones, (O. B.), J., concurs.

Swing, J., dissents.


author: ALLREAD, J.

text:
    GAS AND OIL — MINES AND MINING.
    [Franklin (2nd) Court of Appeals,
    March 21, 1916.]
    Ferneding, Kimble and Allread, JJ.
    Rock Run Coal Co. v. Chartiers Oil Co.
    OH Company Permitting Oil to Escape and Damage Coal Mine Operated Beyond to Limits Liable Notwithstanding Trespass by Mine Owner.
    An Oil company, holding an oil and gas lease covering lands upon which a coal company operates a coal mine and also operating wells on lands contiguous thereto, by permitting oil to escape from its wells on contiguous land and percolate into such coal mine causing explosions and fire therein, violates Sec. 945 G. C., prohibiting the escape of oil and gas into coal mines and is liable for damages notwithstanding the coal mine was operated beyond the limits of its lease and on land on which neither the coal mine owners nor the oil company have any mining rights.
    Error.

      G. M. Addison, for plaintiff in error.

      D. N. Postleivaite, for defendant in error.
   ALLREAD, J.

The coal company brought an action against the oil company to recover damages in the amount of fifty thousand dollars based upon the alleged negligence of the oil company in allowing oil to escape from its well and percolate into the mine operated by the coal company, whereby in the ordinary operation of the mine a fire was started and still rages in plaintiff’s coal mine.

The coal company owns certain coal lands and holds,a lease from The Hocking Valley Products Company of certain contiguous coal lands upon which the coal company was operating a coal mine.

The oil company has an oil and gas lease from the same lessor covering the lands leased by the coal company, together with other contiguous lands and has certain oil wells in operation.

It is charged in the petition that the oil company, so carelessly and negligently operated its oil wells particularly well No. 19 as to permit the escape of oil and its percolation into the strata of coal forming the facing of the coal company’s mines and that in the operation of said mines an ordinary and usual explosion occurred, starting the fire, above referred to.

One issue tendered in the answer was to the effect that the coal company has extended its mining operations beyond the limits of its lease and into territory upon which it had no mining rights.

There was evidence tending to prove that well No. 19 of the oil company was not located upon the territory included in the coal company’s lease.

There was also evidence tending to show that the coal company’s employes had extended its mining operations beyond the limits of its lease in the direction of well No. 19.

There is also evidence tending to prove that in mining operations it is difficult for operators to determine when the exact boundary line of the lease was reached; that the lessor had been asked to furnish a surveyor, but that the agent of the lessor had stated that it made no difference whether the exact line was passed or not, as the coal could not be mined by anyone else.

There was testimony on behalf of the oil company tending to contradict the statement that it would consent to the extension of the mining operations beyond the exact boundary line of the lease.

The court charged the jury in substance that the oil company owed the coal company no duty in respect to confining its oil if the coal company was at the time and place of the explosion mining coal upon the land beyond its own premises and thereby closer to the defendant’s oil well.

There are several paragraphs in the charge upon this subject, all of which are consistent and to the effect that the coal company could not recover if defendant's operations at the time and place of the explosion were upon the land which it had no rights under the lease or license.

There was a verdict and judgment in the trial court for the defendant. The case is brought here upon petition in error and the chief, if not the only error assigned is in relation to' the charge of the court in respeet to the right of plaintiff to recover in case his operations had extended beyond the limits of its lease or license.

It must be remembered that the oil company had no coal rights, but only the right to drill and operate oil and gas wells. The coal company by extending across the line of its lease on the other lands of the lessor was violating no property right of the oil company.

Defendant in error relies largely upon the case of Wheeling & L. E. Ry. v. Harvey, 77 Ohio St., 240 [83 N. E. 66; 19 L. R. A. (N. S.) 1136; 11 Ann. Cas. 981; 122 Am. St. 503]. We think, however, there are two very important distinctions between that case and the one at bar, first, the plaintiff here is not a trespasser against any of the defendant’s rights and, second, a statutory obligation which can not be limited merely to the owner of the land adjacent as claimed to have been violated.

In respect to the first definition, we think that the court is not entitled to say as a matter of law that the mere fact that the coal company has extended its operations beyond the territory included in its lease or license prevents recovery.

If the coal company was in fact a trespasser, it was between the coal company and its lessor. It is no defense in favor of' the oil company.

In 29 Cyc., 443, it is said:

“To relieve one from liability on the ground that the injured person is a trespasser, the premises must belong to the person whose negligence is complained of.”

A number of cases are cited in support of that proposition and we think it is sustained by the great weight of authority.

Upon the second proposition the statute (Sec. 945 G. C.) fixed the duty of the oil company in drilling and maintaining wells through coal mines.

The duty so imposed by statute does not depend upon the legal title to the coal in the neighborhood of the oil well.

The statute was intended not only to fix the respective duties of the operator of the oil well and of the owner of the coal mine, but to make the operation of the coal mine safe and to prevent the starting of destructive fires.

It would be too narrow a construction of this remedial statute to hold that the duties so prescribed does not extend to a coal mine operator who accidentally or even intentionally goes beyond the limits of his lease.

The error in the court’s charge was vital and substantial and must be presumed to have influenced the jury in the rendition of the verdict.

The judgment of the court of common pleas, should, therefore be reversed and cause remanded for a new trial.

Femeding and Kimble, JJ., concur.


author: JONES, (O. B.), J.

text:
    INJUNCTION — SEWERS.
    [Butler (1st) Court of Appeals,
    May, 1914.]
    Swing, Jones and Jones, JJ.
    Robert A. Bradley v. Jacob Schwab.
    Connection by Abutting Owner with a Private Sewer not Enjoinabl®.
    Connection with, a private sewer' will not he enjoined on the claim that the sewer will be overloaded thereby, unsupported by evidence that plaintiff has suffered damage or that such a result as that complained of will follow.

      M. 0. Burns, for plaintiff.

      Clinton Egbert, for defendant.
   JONES, (O. B.), J.

This case was brought in this court on appeal. It is an action by Robert A. Bradley seeking to enjoin Jacob Schwab from maintaining a sewer connection with a line of sewer pipe built by plaintiff’s predecessor upon a ten foot strip of land in the rear of the lots of both parties, which connects with the pipe sewer the premises of plaintiff and also the premises of defendant which lie north of plaintiff. Defendant owns property which lies north of plaintiff’s and also property south of plaintiff, which latter is a corner lot and abuts upon the alley in which is placed the public sewer to which the connection is made.

The fee of this ten foot strip is vested in the defendant, but it is subject to an easement for ingress and egress appurtenant to the property of plaintiff. This five inch private. sewer was built by plaintiff’s predecessor in title to drain his premises, and plaintiff is entitled to its use and to have it maintained in its present position. The sewer connection to the lot on the north has also existed for some time, and defendant is entitled to maintain it.

The question presented to the court arose at the time defendant undertook to connect a watercloset constructed in a shop in the rear part of his lot lying south of plaintiff. Plaintiff contends that such connection would overburden the private sewer and therefore interfere with his right' of drainage, and, the connection having been made in spite of his protest, he seeks to enjoin its further maintenance.

We are unable to find, from the testimony, that the tap which has been made by defendant has resulted in overburdening the pipe, or has in any way obstructed or interfered with plaintiff’s rights, and as the exercise of the right of injunction requires clear proof of the existence of the injury complained of, the court should not exercise its prerogative of interference so long as no injury has been suffered by plaintiff.

The petition will therefore be dismissed at plaintiff’s costs.

Swing and Jones, (O. B.), JJ., concur.


author: CARPENTER, J.

text:
    BILL OF EXCEPTIONS — MANDAMUS.
    [Cuyahoga (8th) Court of Appeals,
    December 24, 1917.]
    Carpenter, Grant and Leighley, JJ.
    State ex rel. John Gill & Sons Co. v. George P. Baer, Judge.
    Mandamus to Compel Judge to Sign or Prepare Bill of Exceptions Denied.
    Mandamus does not lie to compel a judge before whom trial is had to sign or prepare a bill of exceptions which was judicially decided by the judge and admitted by counsel to be “not a true bill,” nor is this rule affected by the fact that there was a change of counsel during such trial or that it was impossible to procure all of the testimony from the memory of counsel.
    [Syllabus approved by the court.]

      Hoyt, Dustin, Kelley, McKeehan <& Andrews, for plaintiff.

      George Spooner and Samuel Honvitz, for defendant.
   CARPENTER, J.

The relator alleges that he had duly presented to the trial judge a “true” bill of exceptions of all the evidence produced at the trial in the case of the John Gill & Sons Co. v. J. Ablisky, at which trial the said Hon. George P. Baer presided, and asked him to sign and to correct the same, if necessary, and to allow and sign such bill as provided in Sec. 11566 G. C.; that said defendant refused arbitrarily and unjustly and for the sole purpose of defeating relator’s right to proceed in error in said cause; to settle, allow or correct and sign said “true” bill of exceptions, etc. An alternative writ was allowed to issue.

The defendant in his answer says in substance that the trial consumed two full days, during which time much testimony was required and that he advised counsel then to secure a stenographer so that a record might be made, but that said counsel did not so do; that the relator, after the rendition of the verdict, changed counsel; that the said bill of exceptions which said counsel had so prepared and presented to him for signature was not a “true” bill and did not and does not truthfully set forth the testimony nor evidence; that it does not properly or fully report, even in substance, the testimony of the witnesses at said trial; that it charges and accredits testimony to the defendant that was obtained from relator’s superintendent on cross-examination, does not give the charge of the court correctly or fairly, and untruthfully states that said bill contains “all the evidence offered and given at said trial.”

Defendant further alleges that all the matters regarding said bill of exceptions were fully presented to him at a hearing at which both plaintiff’s and defendant’s counsel were present and arguments made, and at which hearing the court held that the bill presented to him was not a “true” bill of the testimony nor evidence in said case; that then and there he offered to help relator’s counsel to prepare a suitable bill to raise any questions of law involved in the trial and now offers to sign any “true” bill that is presented.

In the argument of counsel at the hearing it was substantially admitted that the bill did not contain “all the evidence” and that it was not a “true” bill. Excuse was made that by reason of change of counsel and the circumstances connected therewith that it was impossible to procure from the memory of counsel who was present and conducted the trial all of the evidence and charge of court, the intimation being that the court should furnish from his memory such evidence and charge and prepare for relators an entire and true bill.

That a judge who has presided at a trial is not required by law to prepare a bill of exceptions for counsel and that he is only obligated to sign a “true” bill, and when the adverse party files an. objection or amendment to correct the same, is fully established in the case of State v. Todd, 4 Ohio 351. As said by the court:

“The bill of exceptions, is in practice, and by law, to be signed and sealed only, not to be prepared by the judges; the only obligation upon the judges, is to sign and seal a true bill of exceptions.” But the object of the Relator is not to compel the judges to sign a correct bill of exceptions, but to sign the bill offered by Relator. The power of determining whether a bill of exceptions is true, or not, is vested in the judges, to whom it is presented for signature. * # * If the court had granted a rule to sign a bill of exceptions, the judge could have returned that he had performed that duty. But the object of the rule is to oblige the judge to sign a particular bill of exceptions, which had been offered to him. The court granted the rule to show cause, and the judge has shown cause, by saying that he has done all that can be required of him; and that the bill is not such a one as he can sign. Nothing is more manifest, than that the court cannot order him to sign such a bill of exceptions. See Bradstreet, Ex parte, 29 U. S. (4 Pet.) 105, 106 [7 L. Ed. 798].

It will be remembered that in the present case the court refused to sign the bill of exceptions because it was not a “true” bill; that he had suggested to counsel to have the testimony taken down as given; that thereafter he offered his assistance in preparing a correct bill and that he offers to sign any “true” bill that is presented to him; but it is insisted upon by counsel that he sign the particular bill presented to him.

In the case of Creager v. Meeker, 22 Ohio St. 207, it is said in the syllabus that:

“An application for a mandamus to compel a judge to sign a bill of exceptions, should be accompanied by the bill that was tendered to him for his allowance. Where the answer in such case shows that the defendant is willing to sign a true bill, but denies that the bill presented is true, the writ must be refused, as the right to determine as .to the truth of a bill of exceptions is vested in the judge to whom it is presented. ’ ’

And in the case of Shephard v. Payton, 12 Kans. 616, the syllabus is:

“That the decision of the trial judge that a bill of exceptions tendered to him for signature is untrue is conclusive and final and the Supreme Court will not, upon mandamus, hear testimony, or compel him to sign it. ”

The court has judicially decided that the bill which was presented to him was not a true bill, and under the authorities above cited the court was acting within its proper jurisdiction. It being conceded that the bill was not a true bill which counsel had presented to the judge to sign, it is clearly evident that this court would not have the power in this proceeding to command him either to prepare a bill of exceptions for counsel nor to sign the bill which was presented to him.

The writ is, therefore, refused and judgment is rendered for the defendant.

Grant and Leighley, JJ., concur.


text:
    ELECTRICITY — NEGLIGENCE.
    [Richland (5th) Court of Appeals,
    April 2, 1917]
    Houck and Shields, JJ.
    Powell, J., not participating.

      John Wolf, Admr. v. S. N. Ford, Recvr.
    1. Boy Climbing Tree Outside of Sidewalk Not Trespasser.
    A boy who, while at play, climbs a tree standing between the sidewalk and the curb of the street is not a trespasser as against an electric railway company, one of whose wires passes between the branches of the tree.
    2. High Voltage Uninsulated Electric Wire in Tree in Street Proximate Cause of Death of Boy Electrocuted While Climbing Tree.
    The maintenance of a wire of high voltage, uninsulated at the point where it passes through a tree standing on the edge of the sidewalk, must be regarded as the proximate cause of the death of a boy who was electrocuted by coming in contact with it in climbing the tree while at play.
    [Syllabus by the court.]
    Error.

      Brucker, Voegele <& Henkel, for plaintiff in error.

      W. S. Kerr and McBride <& Wolfe, for defendant in error.

       Motion to certify record overruled July 3, 1917, Ford v. Wolf, 62 Bull. 315.

   HOUCK, J.

The material facts necessary for a proper inquiry as to the errors complained of in this case are as follows:

That on August 13, 1915, George Wolf, the plaintiff's decedent, was about eleven years of age; that on the evening of said day, after dark, he was playing with other boys a certain game, and in so doing climbed into a shade tree in front of the property of William Schwier, located at No. 297 East Fourth street, Mansfield, Ohio. Said tree was located between the sidewalk and curbing along said street. Some of the limbs of the tree were within four or five feet of the ground, and on the evening in question there was, and had been for some days prior thereto, a large number of brick piled around the body of said tree within two or three feet of the lower limbs. That on the aforesaid 13th day of August, 1915, and for a long time prior thereto, one of the electric light wires belonging to the defendant company, and carrying a high voltage, was located in said tree about twenty feet from the ground, and about three feet from the body of the tree; that at the particular point where said wire was abQUt three feet from the body of the tree the wire had become uninsulated, and was so on said August 13, 1915, and had been in such condition for a period of more than six weeks prior thereto; that the decedent at no time knew of any impairment in said wire; that on said day and at the time aforesaid the decedent climbed into said tree, and when he had reached the place where said wire passed through the limbs of the tree, about twenty feet from the ground and about three feet from its body, the decedent came in contact with said wire where it was uninsulated, and by reason thereof the electric current from said wire passed through his body causing instant death.

The case before us for review was submitted to a jury upon the evidence offered by the parties to the suit, and under the proven facts and the law, as given to the jury by the trial judge, it returned a verdict for the defendant, and the court, after overruling a motion for a new trial, entered a judgment on the verdict.

From a careful examination of the bill of exceptions in this case with reference to the evidence admitted and rejected by the court below, and from the propositions of law given to the jury, as well as those refused, bearing upon the question as to whether of not the decedent was a trespasser, we are bound to find that from early in the trial in the court of common pleas, and to the end thereof, the learned trial judge was of the opinion that the decedent was a trespasser in fact and in law, and was not entitled to a judgment against the defendant.

The trial court in the general charge to the jury gave the following:

“Then you will further inquire as to.why plaintiff’s intestate was in said tree; and if you further find that the decedent was in said tree without invitation or permission on the part of the defendant company, and that defendant company had no reason to believe or anticipate that children would climb into said tree and come in contact with said wire, and that the decedent knew that the wire running through said tree was the property of the defendant company, and you find that plaintiff’s intestate took hold of said wire, and came in contact with it, knowing it was the property of the defendant company, I charge you that plaintiff’s intestate, George Wolf, by his own act made himself a trespasser against defendant company, and if you so find, plaintiff can not recover.”

From the language thus used it will be seen that the court assumed that the decedent had no right, as a matter of law, to be in said tree, as plainly indicated by the following language: “Then you will further inquire as to why plaintiff’s intestate was in said tree. ’ ’

We think that the decedent had a legal right in the tree; that the tree was not the property of the defendant company, and therefore, so far as the decedent was concerned, he had a clear right to be just where he was at the time he met his death. True, the defendant company was within its rights when it placed the wire in question in the tree, but when it did so the burden of keeping it free from danger, properly insulated, and clear from any defects that the law requires of those who own or operate such dangerous agencies as an electric wire charged with a high voltage of electricity, continued with the company, and this duty vested in it at the time the decedent came in con- - tact with the wire.

The language used in said charge further states that “if the decedent was in said tree without invitation or permission on the part of the company, then no recovery can be had.” This instruction would have been proper if the tree had been on the ' lands of the company and owned or controlled by it, but such is not the fact, as conceded by the parties hereto. We think this instruction is and- was misleading, and not responsive to any issue raised by the pleadings and the facts, especially by the proof in the case, and therefore is prejudicially erroneous to the rights of the plaintiff in error.

The court further charged the jury that “in order to charge defendant company with liability you must further find that defendant company knew that children were in the habit of playing in the streets and climbing into the trees, and had reason to believe or anticipate that children might come in contact with said wire by climbing into the trees, and be injured thereby. If you fail to so find your verdict will be for the defendant.”

We find this part of the charge erroneous and prejudicial to the plaintiff in error, because it casts upon the plaintiff the burden of proving actual knowledge upon the part of the defendant of the fact — if it be a fact — that children were in the habit of playing in the streets and climbing into the trees, and by reason thereof might come in contact with the wire in question. We hold that the degree of proof required by this instruction is greater than the law requires under the proven facts and circumstances in the ease.

The plaintiff below (the plaintiff in error here) requested the court to charge the jury as follows, but it was refused:

“I charge you, as a matter of law, that it was the duty of the Mansfield Railway, Light & Power Company, under the circumstances shown in this case, to have anticipated that boys of tender years would climb into trees of the size of the one in question, and that if the Mansfield Railway, Light & Power Company maintained lines of wires through such trees, and through it they conveyed currents of electricity of high voltage, . dangerous to life, it was the duty of the company to so insulate and otherwise protect said wires so as not to cause injury to others who are not trespassers coming in contact therewith from injury.”

In our judgment the law, as embodied in the above request, is sound, and clearly pertinent to a proper determination of the facts by the jury, as shown by the evidence in the case. Taking this view of it and without further discussing the same we find the trial judge was in error, to the prejudice of the plaintiff in error, when he refused to give to the jury said request.

In the summing up of the case before us on the state of facts as presented by the record, and admitting that plaintiff’s intestate was lawfully in the tree when he met his death, and that defendant had a right to the use of the tree for its electric light wires, yet neither while in the exercise of these rights could escape the legal liability resulting from a failure of one to perform a duty which the law requires and in failing to do so resulted in the injury of the other. Apply this rule, which to us seems sound, to the facts in the present case, how stands the issue ? The defendant company was bound to exercise the highest degree of care in transmitting the electric current through its wire, in order to protect the lives and save from injury those who without negligence. or fault on their part might come in contact with it; and to do this it was necessary that such wire be properly insulated, which in this case was not done, and as a result of such failure on the part of the defendant company plaintiff’s intestate, George Wolf, came to his death..

What negligent act on the part of decedent was done by him that caused his death? We fail to find any. We are bound to conclude from the very nature of the business of an electric company, which in the conduct of its business uses highly charged wires, that it owes a legal duty, outside of and irrespective of any contractual relation, towards all persons who are engaged in a lawful business, or are in a place where they have a lawful right to be, and are liable to come in contact with the wires, to see that they are properly insulated.

It being the duty, and incumbent upon the defendant company to. keep the wire in question properly insulated, we are of the opinion that George Wolf, at the time he climbed into said tree, and at the time he came in contact with said wire, had, as a matter of law, the right to assume and believe that the wire was properly insulated.

This leads us to inquire, what was the proximate cause of the death of George Wolf? Our answer, based upon the facts and the law governing them, is and must be, the failure of the defendant company to have said electric wire properly insulated.

As to the proximate cause of a death, it is not necessary that the exact or precise result which occurred should have been anticipated. It is sufficient if in the light of all the surroundings such a result might have been anticipated or expected.

This brings us to a determination of what seems to us to be the real problem, to be solved, and really the one question here presented under the conceded facts, namely: Was there a breach of duty on the part of the defendant company which it owed to the plaintiff’s intestate? In the face of the facts presented by the record in this case, and in the application of the law governing same, we are bound to answer this question in the affirmative.

The mischief here was caused by the defendant company maintaining an uninsulated electric wire, which was the proximate cause of the death of George Wolf, and who, at the time of his sudden departure, was not a trespasser in fact or in law.

Having pointed out the foregoing errors of law, as they appear to us from an examination of the record here presented, and finding them prejudicial to the legal rights of the plaintiff in error, we must therefore reverse the judgment of the court of common pleas, entered in this case, and remand it to that eourt for a new trial.

Judgment reversed and cause remanded.

Shields, J., concurs.