author: Day, J.

text:
    (Third Circuit, Seneca Co., O., Circuit Court
    Dec. Term, 1896.)
    Before Day, Price and Norris, JJ.
    JOHN A. HALL v. IDA GEYER.

      Oral statement of clonor of real estate tending to discredit the title, inadmissible—
    Oral statements or declarations of an alleged donor are not competent, as against innocent third persons, to prove a gift of real estate, or of an appurtenance to real estate; nor, are such declarations admissible in evidence where they have a tendency to discredit the title to real estate theretofore conveyed, in due form, by such alleged donor.

      Party wall— Verbal eontraet as to. when not within the statute of frauds — Buns with the land — Party wall becomes part of real estate.—

    W..intending to erect a three story brick building on his lot, entered into a parol agreement with FI., the owner of the adjoining lot, for the construction of a party wall, upon the terms and conditions : that the wall was to be located and constructed one-half on each side of the division line between said lots; was to be completed, and the entire cost of construction borne by W., and H. was not to be liable for any portion of such cost until he used it in the construction of an adjoining building on his lot, when he became liable for the payment of one-half such cost. The wall was completed by W. in 1874, in accordance with the stipulations of said agreement, and in 1894, H. made use of the wall in the construction of a building on his adjoining lot. Held :
    1. There was such performance of the agreement as relieved it from the operation of the statute of frauds.
    2. The stipulations and conditions of the agreement, all together, constituted an entire contract, and the burden of showing that one provision thereof became severed, so as to become independent and personal, rested on the party asserting such claim.
    3. The wall was, and is, real estate; so the contract had reference to, and was for and concerning an interest in real estate, and its covenants were of such character and import as to run with the land.
    4. Upon -the completion of the wall, the stipulation for Hall to become liable "for one-half the cost of it when used for the purpose of a building on the adjoining lot,unless severed from its context and made independent, became an appurtenance of the said rea estate, and passed to the assignee thereof.
    Error to the Court of Common Pleas of Seneca county.
   Day, J.

The action in the lower court, was by Ida Geyer against John A. Hall, and was to recover one-half the cost of building a party wall, erected on the division line of lots 104 and 105, in the city of Tiffin. Geyer asserted a right of recovery by reason of her ownership of lot 105 and the building thereon, including the wall in question, the right and title of which she acquired directly, by proper conveyances,from different persons in line from Lewis Wisler, who was the owner of lot 105, and constructed the building -thereon in 1874-5. She asserts in her petition that before the construction of the building and wall in question, Wisler first obtained an easement- or right to construct the party wall irom John A. Hall, who was then and now the owner of lot 104, with the understanding and agreement that Hall was not to incur any present liability on account of the wall, or until he used the same for purposes •of an adjoining building; at which time and not before, he was to pay one-half the expense of constructing it. She shows that in 1894, Hall did make use of the wall for his adjoining building, as a party wall, and that he refuses to -pay for the same although requested to do so.

Hall’s answer is first, in effect, a general denial of plaintiff’s claim; denial of the alleged agreement between Wisler and himself, by which he agreed to pay one-half the cost ■of the wall to the owner of the building, and a denial of all liability in the premises. Pleading further, Hall assets that Lewis Wisler, the owner of lot 105, and the builder of the wall, while such owner, released and discharged him of ■all liability on account of the said wall. There is another ■defense set up — that of res adjudicate, that the identical ■question made in this case was litigated in a former case and determined upon a hearing on the merits, by a court ■having jurisdiction of the subject matter, so it cannot with propriety be further litigated. A reply denies a release =and discharge of Hall from liability, by Wisler, and denies ■former adjudication.

The issues thus joined were tried to the court, the parties waiving a jury,resulting in a finding and judgment in favor ■of Mrs. Geyer,for $592.20, after the overruling of a motion for new trial. Hall excepted to all this, secured a proper bill of exceptions containing all the evidence had on the trial and showing the ruling of the court on the admission of evidence,and filed it in this court with a petition in error, seeking a reversal of the jxxdgment and a new trial of the case, because of errors, said to be apparent on the face of the-record.

It is said in the petition in error that the court of common pleas erred: 1. In admitting and in rejecting evidence-on the trial, to which exception was taken and noted at the-time. 2. ' That the finding and judgment is not supported by sufficient evidence, and is contrary to law.

The assignments 'of error in the. petition are nine as. therein numbered, two of which I have stated, viz: Errors in. the matter of ruling as to the admissibility of evidence, and that the finding is not supported by sufficient evidence.

As to the errors claimed in the ruling on the admissibility of evidence: Dr. H. C. Wells was offered as a witness in behalf of defendant and asekd the question, in substance: “What, if anything, did Lewis Wisler tell you, in> 1880, as to any amount due him from Hall for this party wall?” On objection by counsel for plaintiff, the court-ruled the witness should not answer the question. It was. said, “If the witness was allowed to testify, that in 1880, Lewis Wisler told him, that he had donated one-half of the wall of the building to John A. Hall.” There was no error-in this. The answer was properly ruled on, at least, two-grounds: 1. It was not competent to show the oral declarations of Wisler discrediting, in some degree, the title of' property which he, before that time, had owned, and under general covenants of warranty, conveyed away. 2. It was not competent to show a donation of real estate, which this-wall is, by the oral declarations of the alleged donor; especially where the alleged donor has before that time, by a proper deed, solemnly executed, conveyed the same real estate to another person.

Again, John A, Hall was produced as a witness in his own behalf, and asked the question:

“State if Harry Wisler was present at any time when you and his father, Lewis Wisler, made any arrangement or-agreement respecting this party wall?”

The question was objected to and the answer excluded, to which ruling an exception was noted. It was stated that Mr. Hall, if permitted, would testify “that he had but one conversation with Lewis Wisler as to the building of this-party wall; that Harry Wisler was not present at that one;, and that witness would state the whole contract and agreement between Lewis Wisler and himself; that the agreement was, that Hall was not to pay anything for the stone part of the wall, at any time; that all Hall was to pay, was-to be paid to Lewis Wisler, and was to be one-half the-cost of the brick part of the wall, and only of so much of said brick as Hall might thereafter use,to be paid for when used.” The question itself was a very innocent one, and very likely proper; yet, the information likely to be elicited by it,could not be important as bearing on any of the issues-in the case, and therefore, its exclusion could not be prejudicial. It would seem, from the statement of .counsel, as-to what the answer would be, that counsel was expecting-under cover of a very innocent question, to prove a great deal more than the law of evidence would allow, and very much of which testimony the statute expressly incapacitates-Mr. Hall to give. Hall was a party, and plaintiff was claiming as an assignee of a deceased person, and sec. 5242,Rev. Stats., precludes him from testifying at all, unless he first brings himself within some one of the exceptions stated in that section, which was not done or attempted. In view of the fact that the information called for by the question was-not important, had been given by the witness before that, and its exclusion non-prejudicial to plaintiff in error, we cannot find or say the lower court was in error. Hall was-further asked, see page 15 of the bill of exceptions, whether Mr. Lewis Wisler at any time released him from the obligation to pay for one-half of the wall. This was also properly-excluded. Sec. 5242, as we have seen, made him incompetent. Death had closed the mouth of Lewis Wisler, and! the law put a seal on that of Hall.

Was he finding and judgment not supported by sufficient evidence, and therefore contrary to law? is the remaining question.

Most of the material facts are agreed upon by the parties, and stated in the bill of exceptions. These facts are,in substance: That Mrs. Geyer owns the lot 105 with the appurtenances; that it came to her by proper conveyances from Lewis Wisler,now deceased; that Hall, then and now, owned lot 104; in 1874, Lewis Wisler built, on lot 105, a three story brick building, now, and for years, used as a hotel; lire south wall of said building stands one-half on and along ■the south line of lot 105, and one-half on the north line of lot 104. One-half the value of the wall is 1592.20. It is destiHed by Henry Wisler, a son of Lewis, that before the building was undertaken by his father, there was a conference and- transaction between his father and Hall,with reference to the building of a party wall; that Hall assented to the.placing of the wall, one-half of it, on the lot line of lot 104; gave permission to occupy sufficient space on his lot 104, for that purpose, but stipulated that Wisler was to be at the entire expense of building the wall, and that he, Hall, was not to be liable for an'y portion of such expense, and was not to pay any part of it, until such time as he desired •to use the said wall for his own building, when he was to pay one-half of the original cost of it. It is undisputed •that Hall, in 1894, erected a building on lot 104, and used the said wall as one of the walls of is said buliding, and Ire has paid nothing for the wall to any person. The testimony of Henry M. Wisler is not controverted, otherwise than by Hall,who says Henry M. was not present when the ■contract was made. These facts, admitted, and proven by the weight of evidence, abundantly show a contract, concerning real estate — a party wall — in which some title or (right in the nature of an easement, was acquired in Hall’s lot 104, upon which to rest one-half of a division wall, and for lateral support, so long as the -wall should endure; and Hall acquired a title or right in the entire wall, upon certain stipulated conditions, to use the wall for his own proper purposes. The contract, it is true, in the begining, rested only in parol; but there was a good consideration passing, and it was subsequently so far executed as to relieve it from the imputation of the statute of frauds and perjuries; SO’ that, as a matter of law, it constituted a valid, enforceable contract for tille and interest in real estate — a contract having reference to land and concerning title and rights in land, and of such nature and import, as readily indicates its character, and fixes its place in the classification of contracts, as one of those which, in legal parlance and in consonance, with the great weight of the decisions on the subject, are denominated “Contracts or Covenants running with the land.” The portion of the agreement on the part of Hall,in which it is stipulated, that he was to be free of liability for any part of the cost of constructing the wall until he used it, at which rime he was to pay his portion of the expense of constructing it, was part of the contract;— one of the stipulations of it, and with the other stipulations and conditions, all together, constituted an entire contract or covenant,all of which would have’reference to an interest in, and would follow the land; unless there was something in the contract itself which would separate that part of the contract from its context, and make it independen and personal between the contracting parties; or, unless the contracting parties subsequently and before Wisler parted' with his title, by contract, duly made, and based upon a good consideration, released Hall from the obligation to pay. Both of these claims are asserted for Mr. Hall, the one of release from the obligation to pay, in his answer; and the one that the obligation to pay became and was personal, by counsel in argument; and the correctness, or otherwise, of these claims, or either of them, was the prob-lorn the court'below was called upon to solve, from a consideration of all the evidence before it.

On the question of the release of Hall from liability by Wisler, there was an absolute, total failure of proof; and there was a dearth of evidence as to the other proposition. The only particles of evidence that would seem, in any degree, to warraut a belief that the contract to pay for the wall when used was, or became, personal, was the statement of Henry M. Wisler, that Hall agreed to pay his father •one-half the cost when he came to make use of the wall. We think that statement supplies a base, entirely too attenuated, upon which to rest the claim cf personal contract-, •or personal liability, and does not warrant it. It must be borne in mind the contract was oral, no part of it was in writing, and made more than twenty years before the wit_ •ness stated his recollection of it, and the details of the talk must necessarily have faded from memory and became vague and indefinite, so that the witness could not only, in the very nature of things, recall the more prominent or salient propositions of the transaction. In this view the transaction and the testimony of the witness must be reasonably construed and interpreted, in the light of the attending and •surrounding circumstances, and keeping in.mind the attitude, •object and conduct of the parties at the time of the contract, and what was done, and their conduct subsequently. Interpreted in this'way, beyond the fact that the persons making the agreement were Lewis Wisler and John Á. Hall,there is absolutely no fact, or circumstance, or suggestion ■even, that the obligation of Hall to pay, sometime in the future, was intended to be personal to Wisler, or that the parties were intending to do other than make an entire contract concerning real estate by which the one party was to ■construct a party wall, and the other was to pay his just portion of its cost when he used it for his own benefit^ We think the court below was justified in finding, as we think :it must have found, that the decided weight of the evidence was'to the effect that the contract to pay one-half the cost of the wall was not severed from the balance of the contract, and so became a personal claim in favor of Wisler, but that it remained a part of the entire contract with respect to land, running with it, and becoming an appurtenance to the land, and so passing to the assignee thereof.

Seney <& Sayler, for Plaintiff in Error.

McCauley & Weller, for Defendant in Error.

We do not ground our approval of the finding of the lower court upon the rule, that there being a conflict of evidence as to the issues involved, which that court could the better weigh, and having done so, we -could not find its findings manifestly wrong, and so approve it; but we distinctly want to place our approval of the lower court’s action upon the ground that the finding is precisely right and in accord with the clear weight of the evidence.

- We find no error,and the judgment is affirmed, with costs.


source: Caselaw Access Project

author: Norris, J.

license: Public Domain

text:
    (Third Circuit, Hancock Co., O., Circuit Court,
    May Term, 1897.)
    Before Day,.Price and Norris, JJ.
    IN RE CALVIN L. MOORE, HABEAS CORPUS.

      Imprisonment — Legal although defendant upon sentence goes to sheriff voluntarily without being taken into custody—
    Where the defendant in a criminal case is present under bail at the time the sentence is pronounced, and without being in custody of an officer, repaired to the office of the sheriff and was there taken in charge by the sheriff and imprisoned in accordance with the sentence, the imprisonment is legal although the defendant was not .turned over to the sheriff in open court, and the sheriff had no written authority to imprison the defendant.

      Discharge of indigent prisoner unable to pay fine not to be refused because relatives are able to pay — Sec.. 1028, Rev. Slat.—

    Where the sentence is for imprisonment and payment of a fine and costs, the defendant to stand committed until'line and costs are paid, and at the expiration of the term of imprisonment the defendant is without any means to pay the fine and costs and makes application to the county auditor,under sec. 1028, Rev. Stat., for his discharge on that account,and the auditor finds that the term of the sentence has expired and that the fine and costs can not be collected from him, and that a refusal to discharge until the penalty is paid, will not render the collection probable or possible, the auditor should not refuse to discharge him on the ground that some of the defendant’s friends are able to help him, and may at some indefinite time do so if the defendant is kept in prison.

      Same — Proper remedy—
    Sec 1028 Rev. Stat., is not mandatory and does not specially enjoin upon the auditor the duty to release the defendant under such circumstances, and the proper remedy of the defendant to secure his discharge is not by mandaums. but by habeas corpus.

      Pine payable to state can not be released by county commissioners—
    A fine imposed by a court on a defendant in a state case, although payable into the county treasury to the credit of the general county fund, is not a debt due the county, and is not a subject for compounding or releasing by the county commissioners.

      Sentence must be complete—
    A sentence in a criminal case must be so complete as to need no construction of a court to ascertain its import, so' that the offender may not have to look between the lines for its meaning, and it cannot be supplemented by a non-judicial or ministerial officer.
   Norris, J.

The relator, Calvin L. Moore, was, at the March Term, 1897, of the court of common pleas of this county, convicted of assault and battery. His motion for anew trial having been overruled, he came before the court for sentence.

He had been admitted to bail, and up to that time was appearing upon his recognizance.

For his sentence, it was considered by the court that he “be imprisoned in the jail of Hancock county for the term of twenty days, and that he pay a fine of twenty-five dollars to the state of Ohio, and the costs of this proceeding,and to stand committed until said fine and costs are paid.’’ Such is the judgment and sentence of the court, and no further order is made in the case. The prisoner, not in the custody of an officer, repaired to the office of the sheriff of this ■county, and that officer took him in. charge. No order placing him in the custody of the sheriff was made by the court, and the sheriff received no record of conviction, and at no time has had in his hands any written authority ■emanating from said court for his detention.

The time of the sentence commenced on the 27th of April, 1897,the duration of the sentence was twenty days. This term ■he has served in the county jail,and the period has expired. The fine of $25.00 assessed against him and the costs of prosecution all remain unpaid. Upon the judgment no execution has been issued. He is still under the custody of the sheriff, imprisoned in the jail of this county; he is a boy eighteen years old, indigent, with no property or means *of any kind wherewith to discharge this penalty.

On the 20th day of May, or immediately before that date, 'this petitioner made application to the auditor of this county, ■seeking discharge from imprisonment under the provisions ■of section 1028 of the Revised Statutes Upon that application, such representations were made by him as that the auditor found that the term of his sentence had expired that it is clear that the fine and costs imposed by the court ■can not be collected from him personally, and that a refusal to discharge until this penalty is paid, in no wise will render ■collection from the petitioner probable or possible.

Conceding this, the auditor refused to discharge him, with the remark that the prisoner has relations who are able and should be willing to help him in this emergency, ■and with the further consideraton, that justice to the tax payers and people demanded that he be imprisoned such •time in jail as will serve to compensate in punishment the amount of this fine and costs How long the auditor wills this to continue, or by what measurement of time its period ds to be computed, he does not say. It is, however, certain, that whatever remedy the petitioner may have hope for, under section 1028, is for the present time, at least, exhausted. And though relator is not estopped from again appealing to the officer when the auditor may feel less like Brutus and more like the Divine Master, he institutes this proceeding in habeas corpus that inquiry be made as to the cause of his restraint and detention.

It is urged, that by reason of having no written authority, and not having been turned over to the sheriff in open court, the custody of the sheriff over the person of relator is illegal.

This position does not bear analysis. The sheriff is the executive officer; he is the physical force,the right hand, of the court; when the court pronounced sentence upon the defendant, the sheriff was his rightful custodian, and when he obtained custody of him, in whatever manner, his authority to restrain him evidenced by the sentence of the court, was complete.

When it is made clearly to appear to him that a fine or amercement can not be collected by imprisonment, the auditor of the county may discharge from imprisonment any person who is confined in the county jail, for non-payment for such fine or amercement.

Now, counsel for relator argue, and not without some degree of reason, that this section of the statutes is mandatory upon the auditor; that having in contemplation the highest rights of the citizen, the word “may'’ as here used, means “must,’’ and that when the auditor sees that longer restraint is futile, he is commanded to set at liberty the person so imprisoned.

If this be true, habeas corpus is not the petitioner’s remedy.

If it be specially enjoined upon the auditor, as a duty resulting from his position and office, upon the existence of certain facts, then the course of relator is by mandamus, and not by habeas corpus.

B.ut it can scarcely be reconciled with consistency and common sense that the law would impose a solemn duty upon a court to pronounce judgment and sentence, and at the same time, station an officer at the other end of the line, whose duty it is, just as obligatory, and just as solemn,- to undo and make ineffectual, without any discretion in the premises, the very act the law most specifically enjoins upon the court to perform. I hardly think this can be intended, and so hold that section 1028 is not mandatory upon the auditor.

The county commissioners may compound or release any fine, or debt, or judgment due the county.

This fine is, by the terms of this sentence, made payable to the state of Ohio, and though fines are to be paid into the county treasury to the credit of the general county fund, yet the commissioners might well consider afine payable as this sentence indicates, not a subject of compound and release by them.

A commissioner of insolvents may, under certain conditions, afford, in a measure, relief from imprisonment for non-paymennt of fine and costs. There is 'no commissioner of insolvents in Hanncock county, and if there were, when the prisoner is under sentence, such as the law contemplates this to be, he is specifically excepted from the benefits of those provisions and from the jurisdiction of the commissioners of insolvents.

Where the sentence of a court is erroneous in part, error may be prosecuted to the part which is erroneous, and- this to the exclusion of relief by habeas corpus.

The prosecution of error contemplates the correction of that part of a proceeding which is wrongful and illegal.

The prosecution of error is the pursuit of a remedy which restores the aggrieved party to a position where the rights that have been denied him, may be accorded to him in the re-trial of his case.

But here is an instance where the reversal of the judgment and further proceedings in the court below never can restore him. He has served out the penalty of imprisonment which the law inflicted upon him, and after having done this, he has so far complied with the order which the court made against him, for the purpose of rendering the further punishment effective, as to convince the only authority whose attention he could call to the subject, the county auditor, that further compliance upon his part, is not necessary to establish the fact that it is not within his power to perform the further penalty inflicted. In an instance like this, error can afford no remedy, and the law does not drive a man to do an idle thing. So here is a citizen in jail for life, or at the will of a fellow citizen who fills a public office, for this sentence — as the California courts would call it, is a “coin sentence,” — he is there until he pays. The imprisonment which he is now undergoing, is no longer penalty. It is not punishment for a crime; it is the means used to compel him to acquit himself of the balance of the sentence, viz: To pay the fine and the costs which the auditor says he can not do, and has no prospect of being able to do. The law-making power never intended a man to be placed in a situation like this, and the law does not accord to a citizen a right without the means of securing it to him. The statute says, that when it comes to pronouncing judgment, the court shall pronounce the judgment provided by law. The judgment which the law provides upon the verdict in the relator’s case,is a fine and imprisonment, and payment of costs, with the further order, ■at the court’s discretion, “that he remain confined in the •county jail until the fine and costs are paid, or secured to be paid, or he be otherwise legally discharged.” When the court seeks to enforce a penalty by commitment, the •conditions of release are here laid down, and the defendant .has the right not to any one of these conditions alone, but .to all of them. The order in this case is, “that he stand committed until the fine and costs are paid,” with no further conditions and no further terms.

Neither of these conditions are included in this' sentence —unintentionally,no doubt,for I know the trial judge to be painstaking and conscientious, and learned.

The auditor says he will not discharge defendant because some of his friends are able to help him, and may at some indefinite period do so. His friends might, if they saw fit, secure the payment of this fine, but this sentence, on its face, precludes his friends from securing the payment of this fine,

The kind and extent of security is not defined, but it must, no doubt,be to the satisfaction of the officer accepting it. The relator might, himself, have some means of satisfying the officer that his fine and costs would be paid; but this sentence, on its face, precludes the officer from acling upon that belief or conviction; so he might be able to comply with the law, but it does not. He might otherwise, than by payment or security, be legally discharged, but that is just what this sentence on its face precludes. ■ And indeed,the auditor — and I simply quote him to illustrate,— considers that, in the face of this sentence, his duty is to refuse relief.

It may be deemed that a court, before which this sentence might be brought for construction, should the petitioner offer security, would construe the sentence so as to include these conditions. The import and meaning of a judgment is determined by the light which the record affords. You must look to the record for its terms.

A sentence in a criminal case must be so complete as that the offender, while suffering the penalty of the law, may still have preserved to him any contemplated rights or conditions. It must be so complete as to need no construction of a court to ascertain its import. It must beso compíete, as that he may not have to look between the lines for its meaning, and it cannot be supplemented by a nonjudicial or ministerial officer. In other words, a man who is compelled to have a law-suit to get into jail, ought not, by reason of uncertainty of his sentence, be compelled to have another law-suit to get out. It may be that the term of this defendant’s imprisonment was not adequate to the gravity of his offense; but the court below who heard the testimony and who knows the facts, has placed that point beyond controversy; but, whatever be a man’s merits, or demerits, his punishment must be always legal, and when not so, a crime, bowevevr unintentional, is being committed in the name of the law against every citizen, because if one man can be thus imprisoned, so can another, and no one can say whose turn will come next.

To deny this writ, would he to enforce this incomplete order; to return this boy to jail, would be to inflict upon him imprisonment which it is conceded, can avail nothing in collecting this fine and costs. To remand him tn the custody of the sheriff, would be to start him in search of a remedy which he would never find, while to discharge him from custody, does not set aside -the penalty,nor forgive the debt which will still confront him, and will continue so to do until it is paid. The relator is discharged, and the costs of these proceedings is adjudged against .the state.


author: Hale, J.

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    Jan’y Term, 1897.)
    Before Caldwell, Hale and Marvin, JJ.
    THE STATE OF OHIO EX REL. THEODORE L. STRIMPLE, PROSECUTING ATTORNEY, v. WILLIAM BINGHAM et al. THE STATE OF OHIO EX REL. THEODORE L. STRIMPLE, PROSECUTING ATTORNEY v. J. H. McBRIDE et al.

      Quo Warranto against municipal corporation—
    Whatever may be the rule in other states, jurisdiction in quo warranto does exist in Ohio to oust a municipal corporation assuming to exercise a franchise not conferred on it by law.

      Sec. 6789 — Limitation as to time applies to the state, also provided, in sec. 6789. Rev. Stat.

    The limitation provided in sec. 6789, Rev. Stat., as to the time within which such proceeding may be instituted, applies to the state also.

      Same — Limitation applies to officers elected or appointed under unconstitutional laxo—
    Where a municipal corporation can not be ousted from the exercise of a franchise which it is exercising under an alleged unconstitutional act, on account of the limitation of time within which the proceeding in quo warranto to that effect can be brought under the provisions of sec. 7689,Rev. Stat.,officers elected or appointed under such act to perform the duties imposed thereby can neither be ousted, and the official acts of such officers can not be attacked in a proceeding of quo warranto.

      Officers under unconstitutional law—
    The official acts of officers acting in an office created by an unconstitutional law, are acts of de facto officers until the statute has been declared unconstitutional by competent judicial authority.
    Quo Warranto,
   Hale, J.

These cases are proceedings in quo warranto commenced in this court, the object of the first action being to oust the members of the Sinking Fund Commissioners of this city from the offices which they are now filling; and in the second case, to oust from the office which they are now enjoying, the members of the Board of Bark Commissioners of this city.

As the ground for the judgment asked in the first case, it is claimed that the act of the General Assembly of 1862, by which the office of Sinking Fund Commissioners was created and the incumbents appointed, is wholly unconstitutional and void, and therefore the different members of that commission hold their office without any warrant of law.

In the second case, the members of the Board o.f Park Commissioners, whom it is sought to oust from their office,were under a statute of the state appointed by the Sinking Fund Commissioners; and the claim is, that the latter, having no legal existence, had no power to act in the premises; and, therefore,the appointment of the members of that board is wholly illegal and void.

Answers have been interposed in each case, by each of the defendants, to which demurrers have been filed by the plaintiff; and the question submitted is, whether any of the defenses contained in these answers state facts sufficient to constitute a defense to the cause of action or information alleged in the petition to which answer is filed.

The second and third defenses in the several answers of the members of the Sinking Fund Commissioners, as appears in the answer of William Bingham to which we refer, interposes the limitations to the authority to bring the action in quo warranto contained in section 6789 of the Revised Statutes of Ohio. That section reads:

“Section 6789.- — Nothing in this chapter contained shall authorize an action against a corporation for forfeiture of charter, unless the same be commenced within five years after the act complained of was done and committed; nor shall an action be brought against a corporation for the exercise of a power or franchise under its charter, which it has used and exercised for a term of twenty years; nor shall an action be brought against an officer to oust him from his office, unless within three years after the cause of such ouster, or the right to hold the office, arose,”

It is asserted by counsel for the plaintiff, that this statute has no application to the case at bar. It was claimed on the hearing, as we understood it, that there is no jurisdiction in quo warranto to proceed against a' municipal corporation exercising a franchise not conferred upon it by law. This jurisdiction, however, has been twice, at least, exercised by the supreme court of the state: The State on the relation of Attorney General v. The City of Cincinnati, 20 Ohio St., page 18; and 52 Ohio St., page 419. In the first case, the information was filed in the supreme court on the relation of the Attorney General, to test the right of the city of Cincinnati to use and enjoy certain privileges and franchises assumed to be conferred upon that city by an act passed April 16th, 1870, and entitled, “An act to prescribe the corporate limits of Cincinnati.” The court found the act to be unconstitutional, and entered a judgment of ouster.

The case in the 52nd Ohio State Reports referred to, was a proceeding to test the constitutionally of an act auihoming a city of the first grade, of th-e first class, to annex contiguous territory to the city, The court took jurisdiction of the case, sustained the law, dismissed the petition, and refused the judgment of ouster.

It would hardly do, then, for this court to adjudge that the supreme court in the cases acted without jurisdiction. Whatever may be the law elsewhere, certainly in this state,, jurisdiction in quo warranto does exist to oust a municipal corporation assuming to exercise a franchise not conferred on it by law.

It-is claimed, however, even if the action may be maintained against a municipal corporation for the purposes named, there is no limitation to such action when brought by the state.

That the statute above quoted does apply to actions brought by the state against corporations other than municipal, has been adjudged by the supreme court, 49 Ohio St., page 158.

It is said, however, that in the case of Ohio v. Railroad Company, 53 Ohio St., 189, it has been determined otherwise, It is true that the court held that the statute, sec. 6789, did not apply to the facts in that case. The holding was, that the city of Cincinnati was occupying lands belonging to the state, without any color of right whatever; that the action was not to oust the city from the exercise of a power or franchise, but from the privilege to occupy land belonging to the state.

On page 241, in a discussion of the case by Judge Bradbury, he clearly states the distinction:

“In this connection, it may prove profitable to refer to the difference between the language this statute used to authorize a proceeding in quo warranto, and that employed to limit the time within which to bring the proceeding. The action may be brought whenever a corporation exercises a ‘franchise or privilege not conferred upon it by law.’ The limitation of time is made to apply to the exercise of a ‘power or franchise’ under its charter. The phrase ‘franchise or privilege not conferred * * * by law,’ is more comprehensive than the words ‘power or franchise * * * under its charter. ’ The former phrase, according to the sense it ordinarily bears, doubtless includes many things not embraced by the latter. This marked difference of phraseology should not, needlessly, be attributed to accident. If the General Assembly intended that where a corporation merely exercised a power or franchise under, that is, by virtue of its charter, this power or franchise should not be challenged by the state after twenty years’ user, and also intended that an action in quo warranto might be brought against a corporation, and that,too, without limitation of time, whenever it claimed, or exercised an unwarranted right or privilege respecting the property of the state, it chose, in the language just quoted, ‘an appropriate medium to express such intention. ’

We think this case clearly recognizes the fact that the statute of limitations does apply in an action brought by the state, where the purpose and object of the action is simply to oust a corporation from the exercise of a franchise or power; but where it is to oust a corporation from the privilege of occupying lands belonging to the state, the statute does not apply. There is no apparent reason why the statute should apply in the one case and not in the other. The reason for denying the application of the statute to a case in which the state is a party, does not rest on any peculiarity of the defendant, but on the supposed sovereignty of the state. If the right of the defendant is to be at all considered, the reasons will be quite as strong for applying the limitation of the statute to a case in which a municipal corporation is a party, as to a case in which the rights of a corporation other than municipal are challenged.

Article 13, sec. 1 of the constitution provides: “The General Assembly shall pass no special act conferring corporate power.” This applies to municipal as well as to all other corporations. It is so held in the case I have referred to in the 20th Ohio St., page 18.

The remedy by quo warranto should equally apply to both classes of corporations; and the limitations, in our judgment, should be equally available in actions brought against either corporation. The language of the statute authorizing proceedings in quo warranto, sec. 6761, reads: (4th clause.)

“When it has misused a franchise, privilege, or right conferred upon it by law, or when it claims or holds by contract, or otherwise, or has exercised a franchise, privilege or right in contravention of law.”

Clearly, the right to maintain the action is given by the last clause of this section to question the franchise of the municipal corporation equally with that of corporations other than municipal. The limitation provided by section 6789, therefore, in our judgment, should apply to the one as well as to the other.

The language of the second clause of that section is:

“Nor shall an action be brought against the corporation for the exercise of a power or franchise under its charter, which it has used and exercised for a term of twenty years.’’

By section 6761, the right to bring the action is given. Were it not for this limitation, it could be brought, perhaps, at any time; but this limitation was intended to-operate, in our judgment, upon the right to bring the action. Such action can be brought against the corporation within the time limited. After the time limited, it can not be brought. At the time when this action was instituted against the members of the Sinking Fund Commissioners, no action could have been maintained against the city to-oust it from the exercise of a franchise conferred upon, or attempted to be conferred upon it, by the act of 1862. It. is true the action is instituted not against the city, but against the officers holding under an act, the constitutionality of which cannot be questioned by the state in an action against the city. The only ground upon which it is. sought to oust the members if the Sinking Fund Commissioners is the alleged unconstitutionality of the act of 1862; and we hold that it is a good answer to such claim, that more' than twenty years has elapsed since the right of action has. accrued. If the city cannot now be ousted from the exercise of the franchise which it is exercising under this alleged unconstitutional act, neither can be officers appointed' or elected to perform the duties imposed by such act, be' ousted. It would certainly be a very extraordinary proposition to claim that the act can stand against a direct assault, and yet, officers elected, or appointed, under the act, ousted because of the invalidity of the act. The argument' seems to come to this: That the act must stand because no-proceeding in quo warranto can be brought to test the right of the city to exercise and enjoy the franchise; but the officers necessary to this enjoyment and enforcement can be ousted as fast as elected or appointed; and in that way the enjoyment of the franchise prevented; doing indirectly what cannot be done directly. We therefore hold that the act creating the office of Sinking Fund Commissoners, was not, at the time this action was instituted, open to an attack on the ground of its unconstitutionality in proceedings in quo warranto, either against the city, or as a reason for ousting' the Commissioners exercising authority under the act.

The latter clause of section 6789 reads: “Nor shall an action be brought against an officer to oust him from his office, unless within ■ three years after the cause of such ouster, or the right to hold the office, arose.” My associates are of the opinion that the case might well be put upon that clause of the statute, and are of the opinion that the limitation provided in that clause of the statute is available in the action brought against the Commissioners. I should have no doubt upon that proposition if it was sought to oust the Commissioners upon any other ground than the unconstitutionality of the act creating the office, and under which the Commissioners were' appointed. As it is, I prefer to put the case 'upon the proposition that I have discussed.

The result of this reasoning and holding, without further discussion of the question, leads to the overruling of the demurrer as to the first, second and third defenses in the answer.

As to the fourth defense, we are inclined to sustain the demurrer, which sets up certain facts from which it is' claimed the act originally was a constitutional act.

As to the fifth defense, which relies upon the recognition of this act and certain changes that have been made' in it by the General Assembly from time to time, the acts relied upon are referred to simply by title; and we prefer, without committing us very strongly to any proposition contained in that defense, to overrule the demurrer and deal with the law applicable to the defense there attempted to be made. If this case shall be tried, the facts are fully before the court, and we will overrule the demurrer to that defense.

Now, as to the second defense, the conclusions in the case against the Sinking Fund Commissioners renders it unnecessary to consider many of the questions discussed in the case of the Board of Park Commissioners. If the Sinking Fund Commissioners hold their office by a title unassailable, then their official acts cannot be challenged in this proceeding. The appointment of the members of the Board of Park Commissioners by the Sinking Fund Commissioners, was an official act which the latter board was authorized to perform, and the appointment a valid one. But the official standing of the members of the Park Board is unassailable on other grounds. It is conceded that if the Sinking Fund Commissioners are officers de facto, the appointment of the members of the Park Board cannot be challenged in this proceeding. That proposition is conceded, and as has been determined by our supreme court, We are of the opinion that they are.officers de facto. It is said that there can be no officer de facto unless there is a de jure office to fill; that an unconstitutional act, being void, creates no office; and that one holding an office thus crated, cannot be a de facto officer. The weight of authority, possibly, is in support of this proposition. Certainly one holding an office, the existence of which is supported by no color or law, is not an officer de facto; but one holding an office created or attempted to be created by an act unconstitutional, may be an officer de facto, Such, we think, is the holding in Gardner v. The State, 54 Ohio St., page 24. Judge Bradbury,.speaking for the court in the discussion of the case, says (page 31):

“If the official acts of officers-, acting in an office created by an unconstitutional statute, should be regarded as falling within the principle, that sustains the acts of de facto officers, until the statute has been held unconstitutional by competent judicial authority in a proceeding appropriate to that end, all difficulty vanishes.”

And then, as we understand his reasoning, he proceeds to vanish the difficulties by holding that to be the law.

Judge Spear, who also delivered the opinion in the case, (page 49) says:

“It is sought to dispose of this case by use of the phrase that there can be no officer de facto unless there is an office to fill. The proposition begs the question. The obvious answer is that there is an office to fill whenever our law-making power, exercising its authority to create a constitutional office, by a duly enacted and promulgated statute, ordains there shall be such office, and remains in office until the act is repealed, or held unconstitutional by a court of competent authority.”

Each of the judges delivering an opinion in the case, reviews extensively the authorities bearing upon this proposition; and, as we read these opinions, decline to follow cases cited in support of plaintiff’s contention. We think the court in that case intended to, and does hold, that the official acts of officers acting in an office created by an unconstitutioal act, are acts of de facto officers until the statute has been held unconstitutional by competent judicial authority. Certainly the discussion and reasoning of that court is such that we would not feel justified in holding otherwise. The authorities supporting the proposition are fully reviewed in that case, and we will not stop to cite them.

Again, we are of the opinion that the action to oust the members of the Park Board, because of the unconstitutionality of the statute creating the appointing board, is a collateral attack upon^the validity of that statute, that cannot ■be made in this proceeding.

We had intended to discuss somewhat further the last two propositions named; but as they are not essential to the ■conclusions reached, I will not spend any time in the case, The demurrers interposed in the second case against the Park Board, will be overruled as to all defenses.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    January Term, 1897)
    Before Cox, Swing and Smith, JJ.
    CORNELIA AUTENRIETH v. OTTO F. AUTENRIETH.

      Vacation or modification of judgment or order as meant under ■see. 5394, Rev. Stat. — Order sending case to jury on default of defend•ant for plea.—
    Where m an action for the recovery of specific personal property and for damages, the defendant is in default for pleading,and the court thereupon finds, that the allegations of the petition are therefore confessed to be true,and orders the case to a jury to assess the damages; and afterwards, after the term, th6 court, on motion of defendant, sets this entry and order aside, and grants leave to defendant to file an answer, there being no judgment for the recovery of the debt or anything, such an order is not of such character as can only be vacated or modified after the term by a proceeding under sec. 5354, Rev. Stat.
   Smith, J.

The plaintiff in error claims that the court of common pleas at the April term, 1894, of that court, on a motion filed at that term, set aside a judgment rendered in her favor against the defendant at the preceding January term, and that this was not done under the sections of our code which authorize courts to vacate or modify their own judgments or orders after the term at which they were made, ■sec. 5354 and post.

The transcript of the journal entries shows that the defendant .below, the defendant in error, was in default for answer in the original action, which was one for the recovery of specific personal property and for $1000.00 damages for its detention, on March 3, 1894. On March 10, 1894, an entry was made that the defendant being in default for answer or demurrer, the court finds that the allegations of the petition are confessed by him to be true, and that the plaintiff is entitled by reason of the premises to recover her damages from the said defendant, and on motion of the plaintiff it is ordered that the case be sent to a jury to ascertain and assess the same. On March 29, at the same term, an answer was filed by the defendant denying all the allegations of the petition. On April 24, 1894,' at the April term, a motion was filed to strike this answer from the files, and on May 9, of that term, the court found that it was filed after a judgment by default and an order to assess damages had been rendered, and was filed without leave of the court, and it was ordered to be stricken from the files. On May 9, the defendant filed a motion to set the judgment aside and to allow him to file his answer, and on June 5, the court found that the entry of judgment on March 10 was irregular, and set it aside, and the defendant was allowed to file his answer, to which ruling plaintiff excepted and moved to set aside said last order, which the court, on September 29, overruled, and plaintiff again excepted. Nothing further appears to have been done in the case in the common pleas court.

If the order or judgment of March 10, 1894, was such a final order or judgment as must be vacated or modified by the court which rendered it only under the provisions of section 5354 and post, it would seem that in this case the requirements of the sections were not complied with, and the contention of plaintiff in error would be well founded, viz: that the court at a subsequent term, on a motion filed at that term, and the proceedings in which did not conform to the provisions of the statute, could not properly set aside a judgment rendered at a previous term. But we greatly doubt whether this entry of March 10, ’94, was such a judgment or order as is contemplated by those sections. It simply stated that the defendant was in default for answer or demurrer, and that by reason thereof the plaintiff is entitled to recover damages from debt, to be ascertained by a jury, and orders it sent to a jury for this purpose. But there is no judgment rendered in favor of plaintiff against the debt, for anything. It is not adjudged that she is entitled to the possession of he properly sued for, or that she shall have judgment for any amount of damages, or for costs. It seems to be merely a mode of sending the case to a jury for trial. If it had been so tried, and a judgment entered on the verdict at the March term, it could not have been vacated or modified as was done in this case at the succeeding term. But we think the words “judgment or order,” as used in sec. 5354, should have the same meaning as when used in secs. 6707 and 6708 Rev. Stats., when it is provided in what cases error will lie to reverse a judgment or final order.

D. 8. Hounshell, for Plaintiff in Error.

Shay & Cogcm, for Defendant in Error.

But however this may be, it appears that no final judgment or order has ever been entered in this case. So far as appears from the transcript, it is still pending in that court, undisposed of. The plaintiff at the trial may get all the relief she claims in her original petition; but whether she will of not, does not justify her in bringing the case into this court, before it is finally determined, or a final judgment or order made in the common pleas. The proceeding in error is prematurely brought, and will be stricken from the files.


author: King, J.

text:
    (Sixth Circuit — Lucas Co., Ohio, Circuit Court
    Jan. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    THE WABASH RAILROAD COMPANY v. TERRY E. HEETER.
    . Locomotive operated by engineer alone in absence of fireman— Injury of brakeman by falling before moving train on side other than from where engineer is looking out. —Negligence of R. R. Go. in operating engine insufficiently manned.—

    1. Where a brakeman on a freight train, whose duty it was to attend to the coupling of cars, accidently fell on one side of the track in front of the engine which was slowly moving at the time, and by reason of the fact that the fireman had left the engine to take his dinner, the engineer was alone on the engine and, from the side of the engine on which he was looking out, could not see '■ the accident,and therefore did not stop the engine intime to save the brakeman from injury which he could have done if he or the fireman had been looking out on the other side of the engine where the brakeman fell, a special verdict by the jury, that the proximate cause of the accident was not the negligence • of the engineer, but the negligence of the R. R. Company in having the engine operated without being properly manned, will not be set aside.

      Stepping on pilot of slowly moving engine to couple it to a car— When not contributory negligence—
    2. It is not contributory negligence for a brakeman of a freight train engaged in coupling cars, to get on the pilot of a slowly moving engine to do coupling where this has been the usual and necessary way of doing it, and has been invariably done in that way, to the knowledge of the company.

      'Engine operated by engineer only, in absence of fireman —Not contributory negligence for brakeman to continue to work—
    3. It is not contriDutory negligence for the brakeman to continue ip his work.although he is aware that the engine is operated by the engineer alone, in the absence of the fireman, especially where no accident was ever known to have happened from that cause.
   King, J.

■ This is a proceeding in error. The action was begun in the common pleas by the defendant in error, Terry E. Heeter, to recover damages of the "Wabash Railroad Company, for the consequences of an injury which he alleges he received while in their employ, about the 8th of September, 1893, which injury resulted to him in severe pain and suffering,and the bad bruising of his leg,requiring it to be amputated, and afterwards requiring him to submit to a second operation and course of treatment in the hospital, covering a period of more than a year before there was a healing of the amputated limb. He claims damages to a considerable amount — named in the petition- — and on the trial in the court of common pleas, he recovered a verdict upon which a judgment was rendered for $8,900. The Wabash Railroad Company seek to have the judgment set aside, for a number of reasons. These are, however, mainly confined to alleged errors in the charge of the court, excepted to at the time of its delivery, and to the refusal of the court to give requests made by its counsel at the trial, and upon the ground that the judgment was contrary to law and against the weight of the evidence. That is the real controversy submitted to us, and it resolves itself, perhaps, into three questions arising in this case, and which I will notice later.

The petition alleged as a ground of negligence, that it was the duty of the defendant company to provide a safe and proper engine, and also the duty of the company to have two persons upon its engine, while in motion, for the purpose of properly operating the same, one of them to act as fireman, and the other as engineer. That at the time he was injured, the defendant did not have a fireman ■and engineer upon its said engine, “but, on the contrary, carelessly and wrongfully allowed and permitted the fireman; without the knowledge of plaintiff, to leave the cab of said engine to go to his dinner, and negligently, carelessly and wrongfully allowed and permitted the engineer to remain alone upon said engine to perform all the duties in the operation thereof. And so it was, that when the plaintiff fell from the pilot of said engine, the engineer not being in his place upon the said engine, ready and able to perform the duties incumbent upon him .under such circumstances, but being otherwise occupied in the cab thereof, was not looking ahead upon said track, or keeping a look thereon, as it was his duty to do, so as to see the dangerous position of the plaintiff, or to hear his loud cries for help.” By reason of which the plaintiff was dragged for a great distance along said track in front of the locomotive, and received these injuries to his leg of which I have spoken.

There was another ground of negligence mentioned in the petition, and that was, that this engine was not properly equipped or constructed, in that it had no step upon the pilot thereof, as was customary and usual and necessary; but, upon the trial of the case, the plaintiff disclaimed that as a ground of negligence; I presume finding that it would be impossible to show that that was the usual, customary, and proper method of construction of a locomotive — ■ but at any rate, he abandoned that as a ground of negligence. Some complaint was made here, in argument, by counsel for the plaintiff in error because this was allowed to be done; but that certainly by no amount of reasoning could be resolved into anything prejudicial to the plaintiff in error.

The ground of negligence then, upon which the plaintiff sought to recover was, that the defendant, had insufficiently equipped this engine with hands to work the engine, and had sent it to work short-handed, in consequence of which he had been injured. The particular facts of his injury were substantially these: This was a regular freight train, starting from Ft. Wayne, and coming in an easterly direction down to Defiance, Ohio. It left Ft. Wayne at 6 A. M., and reached Defiance — its schedule time being 9:45; but it was usually behind time, and arrived there on the day in question about 11 o’clock. It did some work around the depot; and then the fireman left the engine and went to a lunch-counter, or restaurant, to get some dinner.

He was accustomed to do that at that point, provided the train arrived there in the neighborhood of noon, and it happened on the day in question that he did go to his dinner, and that the conductor, having been informed that .there was a car west of the depot about half a mile, which .it was necessary to secure, directed the engineer to go and .get it. The list of cars was furnished by the agent of the company at that point, to the bead brakeman, a man by the name of Day, and he, thereupon, told the plaintiff — ■ ,\vho was a brakeman — to accompany the engineer to the point mentioned and get this car. Day and another person .also, got upon the engine. It was customary and usual, when going a short distance in the yard, at Defiance and at other points, for the purpose of pulling out cars from a string, for the brakemen, who were to make the coupling, to climb upon the pilot of the engine and ride back. They did this upon this occasion, at least two of them did. They .rode back to a point in Defiance which is the crossing o,f the Baltimore & Ohio Railroad and the Wabash, located about a half mile west of the Wabash city-depot. Before they reached the crossing, Day and the other man who was on the engine got off the engine, about four to six hundred feet east of the crossing, and Day went and looked up the car that was to be pulled out of the string of cars standing on the side track, and the other man went to hunt up a pin for the purpose of making the same coupling, and the engine, with the engineer on only, and the plaintiff on the pilot, went back to the crossing. The engine stood upon the crossing, with its pilot projecting a little bit east of the crossing of the tracks — not more, I take it, than two or .three feet — and the plaintiff got off from the pilot on the right hand side of the engine, which was headed east, and on the right hand side of the track. He then crossed the track in front of the pilot to the switch-stand, which stood on the north side of the Wabash track, and threw the switch,, ',so that the engine might go over from the main track to the side track on which the train of cars was located. He threw the switch, and he testifies, that he then stepped to the right and side of the track — or to the south side of the track — and then gave a signal to the engineer, who was in his^place on the right hand side of the engine looking easterly,to come ahead,giving the usual and ordinary signal.

If the plats and evidence are to be relied on in the case, he stood then within twenty feet of the pilot of the engine —mot exceeding that distance — easterly of it. The engine moved up from a standstill, to the point where he stood, about twenty feet from it,and he then attempted to board the pilot of the engine, by stepping upon the lower rail of the pilot-beam which runs around the pilot, and taking hold, with his left hand, probably — of the short staff that is fastened into the pilot-beam, and to thus assist himself up on the beam for the purpose of riding back to where the cars were which it would be necessary for him to couple. It is claimed by him, that it was necessary for him to be upon the pilot in order to make the coupling involved; for the coupling was made with a coupling bar — shown in evidence — which weighed about 120 pounds, and was quite a heavy load for a man to lift, and hold, and steer, in order to make the coupling with one hand, and it was said that it could not be done by a man standing upon the ground, but that it was necessary for him to stand upon the lower sill of the pilot in order to hold the coupling-bar and enter it into the draw-bar of the car. And it was said that it was proper for him to do it in that manner, because it was a customary thing — that it was always done in that way, not only in that yard, but in other yards. It is claimed, on the part of defendant as to that, that there was a rule upon the subject; and that the rule goes to the extent of prohibiting persons from getting upon the pilot from a position between the tracks, — that is as far as the rule goes- — -and the evidence upon that subject was to the effect, that it was the invariable custom to let them get upon the pilot from the outside of the track, with the knowledge of the engineer and of the railway company. On the day in question, this plaintiff attempted to step upon the engine ¡which, he testifies, was running a mile an hour. There is seme other evidence which gives it at two miles an hour; but we think it is clear that it could not have been at a greater speed than that, since it only went twenty feet. It seems he stepped upon the sill of the pilot and undertook to take hold of the flagstaff, and in some manner his right foot slipped, and the foot and leg went under the pilot suddenly, and the engine moved along, pushing him upon the track as I have stated. He made an outcry, and other men at work near the crossing of the B. & O. Company, called out very loudly, several of them. The testimony is practically undisputed in the case- — except so far as the engineer might have disputed it — that after Heeter had given the signal to go ahead, he stepped from the right side of the engine to the left side — into the fireman’s pace — to look ahead, and was looking ahead when Heeter fell and was caught under the pilot, and was being pushed along for about 65 feet; until finally the engineer’s attention being attracted to the other side, he saw what was being done, instantly reversed his engine, and it is said, that as soon as he took hold of the lever, it stopped, that is, within four feet from the time he commenced to stop it; but the injury to the plaintiff had already been accomplished. Now, that is the way in which this injury happened.

It is claimed that the verdict rendered was contrary to the evidence, and contrary to the law, and that is urged to us here upon three grounds: First, that the plaintiff below was negligent in getting upon the pilot of a moving engine; Second, that if he knew that the engine was at that time being operated' without a fireman, he was negligent in continuing to work around it, or continuing, perhaps, in the employ of the company; Third, that the proximate cause of the injury was the negligence of the engineer in leaving the proper side of the engine and going to the othér side, and not in the failure of the company to supply a fireman — in other words, that the proximate cause was the negligence of a fellow servant — for such it is conceded the engineer was — and not that of the master,

I shall only briefly notice these three grounds of negligence,

As to the first, it is claimed that plaintiff was negligent in getting upon the pilot of a moving engine. I have already stated what the fact was as to the custom and usage, and also as to the necessity for his being upon the pilot. I should say, in that connection, that the parties upon the trial submitted certain questions to the jury, to be answered, and one that was submitted by the railroad company was this: “Was it necessary for the plaintiff, in the proper discharge of his duties, to get on the pilot of the engine at the time and place he did get onV”

And that was answered, “Yes,” It is probably not quite true that it was necessary for the plaintiff below to get upon this pilot of this engine at that particular spot; it is true that he could have accomplished his work without doing that; it is true that he could have climed upon some other part of the engine — could have climed into the cab, and rode back to where these cars were, in company with the engineer; it is true that he could have walked the distance — for it was not a great distance- — -probably not over five or six hundred feet at the outside; He could have walked or have ridden upon some other part of the engine —so that it was hardly true, as stated by the jury in answer to this question which was framed by the attorney for the railroad company and submitted to them, that it was “necessary'’for the plaintiff below to climb upon the pilot of the engine at this particular time and place. But, we think it is true, from the evidence in the case, that the jury might have found, had they been asked to so find here, that it was, not negligence for the plaintiff below to climb upon the pilot at the time and place he did so climb upon it. It is conceded all the way through this record- — -substantially conceded, that it would be necessary for him to be upon the pilot at the ti,me of coupling the engine to the car. It is also true that the company expected him to- be there at the car when the engine arrived. It is also true that he pould not make the coupling with the engine standing perfectly still, since there must.be a movoment of the engine forward in order to enter the coupling bar into the draw-bar of the standing car, and the car, with which he was going to make the coupling, was at a standstill-. Now, that being true, it matters not as to whether he waited until the engine approached nearer to the car and then climbed upon it. The fact of this engine’s moving, seems to us to be a very immaterial matter. This man was an experienced brakeman; he had been working for this company ten months; he had been coing this same work every day that he had been in their employ. It had been done under the eye of his superior officers, and was conceded all around to be a proper method of doing that work, and was the method employed by every one without exception; and, in order to facilitate business, it was expected that a man in the employ of the company should take a little risk — that which seemed to be safe to him from observation and from his .experience, and the speed at which this engine was then moving was so slow that no great danger could have been anticipated in stepping upon this pilot at that time. So then we think, that the claim made by the plaintiff in error, that this was against the evidence upon that point is not substantiated.

' , A great many authorities have been cited .to show that this was contributory negligence. The court say, in the case of Wright v. Southern Pacific Co., found in 46 Pacific Reporter, 377:

■ “Whether, under the circumstances disclosed by the evidence, the plaintiff, at the precise time of the accident, was exercising such care as a reasonable and prudent man, having due regard of his own safety, would have exercised, under similar circumstances, or whether he was guilty of contributory negligence in disobeying the rule referred to, and attempting to uncouple the cars while in motion, were questions of fact for the jury to determine. The plaintiff’s disóbedience of the rule, under the state of facts shown by the record, did not, as a matter of law, preclude his recovery. Stepping between cars while in motion to uncouple them is not, as a matter of law, negligence, but the question is one for the jury.” (Here many authorities are cited.) “Nor do we think the court erred in admitting evidence to show that it was the custom of the switchmen, in the yard at Carlin, to couple and uncouple cars while .in motion.”

• And they discuss that to quite an extent, and cite the case of Hunn v. Railway Co., 78 Mich. 513, where the court said:

“We think it was competent to show what was usually and habitually done in the running of trains, because, if the company permitted or had so framed the rulés as to require the employe to exercise some discretion in the matter of strict obedience, it ought not to be permitted to hold its employes to the very letter of the rule, in order to shield the company from liability for what it had tacitly permitted.”

And that was where there was a plain and distinct rule of the company, that the cars should not be coupled or uncoupled while they were in motion. But here there was no violation of any rule; the rule only provided that persons should not step upon the pilot of a moving engine from the track of the company, impliedly sanctioning the stepping upon the pilot of a moving engine from the outside of the track, and that is exactly what the plaintiff below did..

Second. It is said that if the plaintiff knew that this, engine was operated without a fireman, it was his duty then to not work with it any longer. That would seem to be a very impracticable rule of law to be laid down in the form it is claimed. It is true that when one becomes aware of defects which he, in the exercise of ordinary care, might reasonably know would bring accident or injury to him, or which he knew were dangerous, it is his duty then to inform his employer of these facts, and then he is. only authorized to continue longer in the particular employment or service upon the promise of his employer, within a reasonable time to remedy or repair these defects..

But then, in that case, it has been said that the question, whether he knew or ought to have known that the defect in-question, although he knew that it was a dangerous one, was one which would probably injure him, is a question for the jury, and a court has said that in a well considered case, in 115 Mo. Rep., 205. That was a case where the plaintiff stepped upon a foot-board running across the front of a switching engine, which was slanting and from which his foot slipped off. He knew of the fact, and the court say:

“Knowledge by the switchman of the slanting and dangerous condition of the footboard by reason of which he was killed, will preclude a recovery for his death, unless the footboard was not so dangerous as to threaten immediate injury, or the deceased might have reasonably supposed that he could, with care and caution, have safely used it.
“Whether the footboard was unsafe because of its slanting condition, was, under the evidence, a question for the jury.”

And in the case of Wright v. Southern Pacific (46 Pac. Rep. at page 375). which was an injury received from the operation of an engine without a fireman, and in that respect about like this, the court say:

“We do not think that the plaintiff’s knowledge of the fact that the defendant operated its engine without a fireman, was of itself sufficient to preclude a recovery. Such ■a result would not follow unless the want of a fireman caused the operation of the engine in the yard in question, to be •so obviously dangerous that a man of ordinary care and reasonable prudence would refuse to act as a switchman. The ■evidence fails to show that there was any such obvious dan.ger, and it may rightly be assumed that the agents of the defendant, who had charge of its operations in that yard, •deemed it safe for the engineer to perform the work of fireman in addition to his duties as engineer; and, under the ■circumstances of this case, the plaintiff had the right to rely, at least to some degree, upon the judgment of those ■agents. Under the evidence shown by the record, we would not be warranted to hold that the plaintiff was bound to rely entirely upon his own judgment and, in opposition to that of the officers of defendant, determine that it was absolutely unsafe to operate the engine without a fireman and abandon his employment as switchman.’’

Now that is like this case. But, in the case at bar the plaintiff denies that he knew there was no fireman in the cab of this locomotive; but, admitting that he did know; he also knew that the company had been almost always — or at least on some occasions, permitting the engine to be operated by the engineer alone in the absence of the fireman for a long course of time, and without injury to anybody, and can it be said, as matter of law, that the plaintiff was bound to know that that was negligence from which he might receive an injury? The company represented by its agents and its workmen, had seen fit to send this engine out alone with the engineer. Was their judgment to be disregarded and the judgment of a brakeman substituted for the judgment of the company ? We think not. And it may be said that even if he knew there was no fireman, still that of itself alone, would not make him negligent — especially as no injury had ever occurred in consequence of the absence of a fireman.

Third. It is said, and argued somewhat strenuously that the proximate cause was the negligence of the engineer, and was not the failure of the company to supply a fireman. In this connection I should say that the defendant below submitted these interrogatories to the jury, and which were answered:

“1. Was the engineer, Casper Smith, a fellow servant of the plaintiff at the time the plaintiff was injured?
“Answer. Yes.”

And in the arguments and in the charge of the court to the jury he was treated as a fellow servant.

“2. Was the negligence of the engineer the proximate cause of plaintiff’s injury.
“Answer. No.”
“3. Was it necessary for the plaintiff, in the proper discharge of his duties, to get on the pilot of the engine at the time and place he did get on?
“Answer. Yes.”

Also the plaintiff submitted some intérrogatories, which were these:

“Was the railroad company negligent in not having two men on the engine when plaintiff was hurt?.
“Answer. Yes.
“Was the absence of the fireman the proximate cause of the injury?
“Answer. Yes.”

So the jury had found that the absence of the fireman was the proximate cause, and that the company was negligent in not having him upon the engine, and also that the negligence of the engineer' — the way the question is framed • — 'Was not the proximate cause of the injury. Now the jury have not said, by this special verdict, that the engineer was negligent; they have answered the question as put to them. It is argued that this answer assumes the engineer was negligent; but, whether it does or not, the jury have answered that the engineer, wnether negligent or not, was not the proximate cause of the injury, and that the proximate cause of the injury was the absence of the fireman, or the failure of the company to furnish two men on this engine. As we view this evidence, we think it sustains that finding. It is true that a superficial view of this subject might lead one to say that it was the fault of this engineer that this accident happened- — that it was his fault in leaving his own side of the engine. But, can it.be said seriously, that if this company sees fit to send out its engine in the control of one engineer — putting only one person in the cab to manipulate it, to give signals and to watch out ahead for obstructions upon the track — that it is not his duty to look as well upon the one side as upon the other, of the engine? Can it be said that he should give his attention altogether to the side upon which the lever is on. and that he should not look out ahead? It is clear from the testimony, that one of these men got off from the engine five or six hundred feet away from and went up there to the vicinity of this car which was to be pulled out. They were to attach the engine to the first car,and that was attached to a string, and, at the east end of the string, was the car they wanted to get. They then pulled out this string of cars,and ran back over the switch,and pushed this car — which was an oil car — ahead upon the main track, having uncoupled it before pushing it, and then came back upon the side track with the balance of the string of ears, and left them. That was to be the course of doing the work, and this brakeman had gone back to the end of this string to see that this oil car was securely coupled to the balance of the train, and that the rest of the cars were all coupled, so that all the cars could be moved, and I think it can not be said that it was not the duty of the engineer to look out on both sides of the engine. It can not be said, as a matter of law, that the jury would not have been justified in finding that the engineer was in the performance of his duty although he left the right hand side of the engine and was engaged in looking out to the left at the particular instant of time when the plaintiff fell and was caught. Now, I do not think I need to extend observations upon that subject further We think, from the evidence, that the plaintiff was entitled to the verdict which he recovered here. It was the duty of the engineer, while he was at this point, to look out ahead; it would be necessary for him to see along the track on which these cars were standing on the left hand side of the engine. There is a distinct and plainly marked curve upon the cross-track which runs from the main track to the siding, and if the engineer intended to look out ahead before his engine reached the straight part of the siding, we cannot say that be was actually negligent in leaving one side and in going to the other side to look.

A good deal has been said about the charge. The most of those objections can be disposed of by saying, that the jury have found, in answer to the few interrogatories which were submitted to them, the questions of fact upon which they say the plaintiff is entitled to recover, so that much of that which was submitted to the court by defendant below is taken out of the case. There were nineteen requests to charge made by defendant below, most of which were refused by the court; but I will not undertake to go over each one and give the reason why the court would have been justified in refusing them. Some of these, it'may be said, it would have been as well for the court to give, but they are no longer of importance, since the jury have determined the particular questions of fact which they refer to.

There-'wece exceptions to the charge of the court which I will speak of. The court charged the jury this:

“But,gentlemen,further and in this connection,you must regard this further rule of law — the rule that the negligence of an injured party which proximately contributes to the injury, precludes from recovery — has no application where the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him.
“The plaintiff in this case, if otherwise and upon the evidence and under the rules of law, entitled to recover, is not precluded from such recovery even if he was himself negligent in attempting to get upon the pilot of the engine, if you so find — that the engineer, after he became aware, or ought to have become aware of the plaintiff’s danger, failed to use ordinary care to avoid injuring him and he was thereby injured.’’

Now then, the court had told the jury — not perhaps exactly, but in language that bears that construction — that the engineer was the fellow servant of the plaintiff. Counsel for plaintiff below, when the court was submitting this verdict to him, said — ns appears by the record — that they would not object — or that they could find no fault with the jury finding, if they should find, that the plaintiff and the engineer were fellow servants. They did so find that they were fellow servants. Now, the court charges the jury in this connection — assuming, now, that they were fellow servants, that if they found that the engineer, after he became aware, or ought to have become aware of the plaintiff’s danger, failed to use ordinary care to avoid injuring him, and he was thereby injured, that the company would be responsible for that.

I don’t understand how the court came to give that proposition of law. It was entirely irrelevant, and covers no issue. There is not a particle of evidence in this case, to indicate that the engineer was negligent after he became aware of the plaintiff’s peril. The evidence shows that he acted promptly, and stopped the engine within four feet of the place where he first learned of the plaintiff’s dangerous situation, and there was no charge, no ground, upon which the court could saddle the burden of that upon the engineer. There don't seem to be very much reason for the court giving the proposition, if it were confined to the company; but the court, if it gave it at all, should have confined it to the defendant’s action; for, the defendant, or its responsible agents, after it learned of the dangerous situation of the plaintiff, if.it could have avoided injuring him and did not, the company, of course, would be responsible for that injury although the plaintiff himself were negligent. But we think the whole proposition was irrelevant in this case, and for that reason it was not error in the court to submit it — it had no bearing upon the case either way.- The jury found that this man was a fellow servant, and that the sole proximate cause of the injury was the negligence of the company in not furnishing two men to run the engine, and in sending it out there with only one.

Alexander Smith,' for Plaintiff in . Error.

'i ::Hurd, Brumbaclc & Thatcher, for Defendant in Error.

For these reasons, we think that the charge of the court wR3 correct; that is, that there was no error to the prejudice of the plaintiff in error, and that the verdict was sustained by the evidence. Nothing was said in argument about the amount of it. It is a large sum, but we can not say from the evidence that he was not entitled to receive that sum. The man has suffered much; there was more than a year of severe suffering, and a great deal of trouble afterwards. He was earning $70 per month a.t the time he was injured, and he was twenty-eight years old. He has lost his limb,and we will not say that the amount given by the jury was too large. The judgment will have to' be affirmed.


author: Shearer, C. J.

text:
    (Second Circuit, Montgomery Co., O., Cir. Court
    May Term, 1897.)
    Before Shearer, C. .1., Summers and Wilson, JJ.
    THE STATE EX REL. MATTHEWS v. THE CENTRAL UNION TELEPHONE CO.

      Telephone Co. — Conditions for use of street — Delay in applying to prohate court to determine condition—
    Where an agreement between a city and Telephone Company as to the mode of use of its streets has expired by limitation, the city cannot oust the company from the use and occupancy of the streets until it is made to appear that no agree-' ment can be made, and that the company, after such failure to agree, delays unreasonably to apply to the probate court to fix the mode of use as prescribed by law.

      Same — City, as condition, can not fix rates — •
    A city cannot, in making an agreement as to the mode of use of its streets, fix the rentals to be charged the patrons of a telephone company for the use of its instruments; and a refusal by the telephone company to assent to such agreement is justifiable; such an illegal exaction the city cannot lawfully insist upon; therefore the refusal of the telephone company to assent thereto, is not a failure to agree within the intent of Rev. Stat., Sec. 3461.
    Quo Warranto.
    On the 16th day of December, 1895, the city of Dayton, Ohio, brought this action in the circuit court for the purpose of ousting the Central Union Telephone Company from the streets of the city, upon the ground that, as its agreement with the city by ordinance had expired, it was “exercising, a franchise, privilege and right in contravention of law and without authority.”
    No objection to the filing of the petition was made by the defendant, but a general demurrer was immediately filed and argued.
    The court overruled the demurrer, and gave the defendant leave to answer.
    On the 7 h day of December, 1896, the defendant filed its answer, and the city demurred thereto. After argument the court overruled the same.
    Thereupon the city filed its reply, and at the June term, 1897, of said court the cause was tried on the merits, each side presenting its evidence and law and arguing the same.
   Shearer, C. J.

This cause is submitted to us upon the pleadings and the evidence, and we are asked to grant the writ prayed for, ousting the defendant from using the streets, avenues, lanes, alleys and highways, and from maintaining and operating its poles, wires, lines and cables on the streets of the city of Dayton.

Without stating the issues which are sufficiently familiar to counsel, we proceed at once to the question whether, under the testimony herein, the relator is entitled to the relief sought.

• Section 3461, Rev. Stat., provides that, “the mode of use'5 (of streets, etc., in a municipal corporation for telephone purposes) shall be such as shall be agreed upon between the municipal authorities of the city or village, and the company; and if they cannot agree, the probate court of the county, in a proceeding instituted for that purpose, shall direct the mode of construction so as not to incommode the public in the use of the same.

The contract under which the company has occupied and used the streets, etc., of the city, has expired; and for two years past, negotiations have, been pending between the city and the company, looking to an extension or renewal of the franchise; but thus far no agreement has been reached.

An ordinance renewing the franchise was submitted to the council by the board of city affairs, with the recommendation that it be passed. It was referred to the committee on law in conjunction with a special committee. This joint committee reported back the ordinance recommending certain amendments. Subsequently said ordinance was recommitted. The joint committee again reported back the ordinance with certain amendments, and said report was adopted. Subsequently said amendments were agreed to, and the ordinance as amended was passed and referred to the board of city affairs for approval, This was on the 14th day of April, 1896, four months after the commencement of this action.

No action having been taken by the board of city affairs, that body, on June 26, 1896, was requested by the council to “either concur in the telephone ordinance, or return the same to council;” and again, on November 18th, 1896, a resolution was adopted by the council requesting the board of city affairs to return said ordinance “for consideration by this body before any final action is taken by the board.”

November 27,1896, said ordinance (having been returned to council on the 25th of November),was referred again to said committee on law and said special committee, where, so far as we know, it still reposes.

The testimony shows that, pending these negotiations, interviews were had between members of the council and representatives of the telephone company, in which the latter declared that the company would not assent to the ordinance proposed; the objection being the fixing therein of the rentals to be charged the patrons of the company for the use of its instruments, and this is urged as evidence of the refusal of the company to come to an agreement in the premises.

This provision was a violation of the last clause of section 3461 above quoted, which declares that, “nothing in this section shall be so construed as to authorize any municipal corporation to demand or receive any compensation for the use of a street, alley or public way, beyond what may be necessary to restore the pavement to its former state of usefulness. ” This was an attempt to secure indirectly a benefit which it cannot directly demand or receive. The company was justified in refusing to assent to this. It was not bound to submit to an illegal exaction, and the city could not lawfully insist upon it,

E. P. Matthews, City Solicitor, and Charles Kumler, Pros. Atty., for the City.

L. G. Richardson, General Solicitor, Chicago, and Gilbert H. Stewart, Columbus, for the Telephone Company,

The company asserts that it is,and always has been, ready to accept and agree to a lawful ordinance, but says that none has ever been presented to it. It also avers that the city authorities have never been able to agree among themselves as to a mode of use of the streets, etc., of the city by said company; that so far as the mode of use is concerned, said company'always has agreed, and now agrees with the city. It also avers that the city authorities are now formulating an agreement. And we find from the evidence that this is true, and that the company is not in default.

Again, it is shown that during the period covered by the contract, the city used, and still uses a large number of the company’s poles for its police and fire department wires, and that it has in use, free of charge for rental or service, about eighty of the company’s instruments.

Is the city in a position, under such a showing, to demand that the company shall be ousted from the use and occupancy of the streets, and that it shall remove its plant, representing an enormous investment, and thus deprive the public of the advantage of telephone service, merely because the company declines to assent to an illegal condition?

Certainly no relief should be granted until it is made to appear that no agreement can be made, and that the company, after such failure to agree, delays unreasonably to apply to the probate court to fix the mode of use as prescribed by law.

Writ refused and petition dismissed,