text:
    EMBEZZLEMENT.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    Austin W. Tidd v. State.
    jL. INCONSISTENCY AS TO TIME LAID FOB EMBEZZLEMENT HELD NOT MATERIAL.
    The time laid in an indictment for embezzlement of the funds of a certain corporation by its treasurer and manager, in that no such corporation ■existed, is not material, it appearing that at the time the money was ■delivered to accused the formation of the corporation was proposed and ¡.soon afterwards duly incorporated. '

      2. Agent Receiving Money cannot Deny Agency aeter His Embezzlement.
    One receiving money under a claim of agency cannot, after having embezzled it, claim he was the agent in taking it.
    ERROR to Hamilton common pleas court.
    T. L. Micfaie, for plaintiff in error.
    Froome Morris, for defendant in error.
   SMITH, J.

The plaintiff in error was convicted of embezzlement in the common pleas court of this county and sentenced to the penitentiary, to reverse-which judgment this suit in error is brought.

The only ground of error complained of is, that while the indictment charges Tidd with embezzling money, the property of the Smith Envelope Company, a corporation, on March 14, 1907, which money came into his possession and care as treasurer and manager of such corporation at the time of the embezzlement, yet he cannot be held under the indictment, for the reason that at the time the embezzlement is alleged to have occurred no such corporation existed, and therefore he should be discharged.

We do not think the time laid in the indictment as to the embezzling of the money is material.

The record shows that at the time of the delivery of the money from Ellerhorst to Tidd, there was talked over the formation of the corporation to be known as the Smith Envelope Company; that soon afterward such a company was duly incorporated; that certificates of stock were issued by the company, signed by Ellerhorst, as president, and Tidd, as treasurer; that Tidd expended a part of the money entrusted to him in fitting up the office of the company, and for sundry necessary expenses, and when the jury found him guilty of embezzlement, it was for the embezzlement of money after the incorporation of the company, and necessarily found that this money belonged to the-Smith Envelope Company.

The record further discloses that the defense made to the jury at the trial of the case was that the money alleged to have been embezzled was not the money of the Smith Envelope Company, but belonged to the Standard Pay Envelope Company. The jury were called to pass-upon this question of fact, and found in their verdict that the money entrusted to him, for which he was convicted, was the money of the Smith Envelope Company. As has been said in cases cited by counsel for state, if a man has received a thing of another under a claim of agency, he should not be allowed to turn around, after having embezzled? it or any part of it, and claim that he was not the agent in taking it.

From all the evidence in the case we are of the opinion that the-verdict of the jury is sustained, and believe that the plaintiff in error had a fair trial.

We find no errors in the record, and the judgment will be affirmed.

Swing and Qiffen, JJ., concur.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    PRINCIPAL AND SURETY.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    George Sauer et al. v. Madisonville (Vil.).
    Sueeties op Village Clebk Held sot Liable fob His Embezzlement of Assess-1 ment ’ Funds. ,
    Collecting and disbursing assessment funds under an improvement ordinance are not duties imposed by, nor pertaining to, the office of village-clerk under Sec. 1762 (Lan. 3720; B. 1536-663) Rev. Stat. for the embezzle-, ment of which his sureties on his official bond, conditioned that he “shalL faithfully perform the duties of the office of clerk,” are liable.
    Error to Hamilton common pleas court.
    W. A. Hicks and W. F. North, for plaintiffs in error.
    L. A. Ireton and W. M. Schoenle, for defendant in error.
   SMITH, J.

The condition of the bond sued upon in this ease is:

“Now, if the said Bennett Carter shall faithfully perform the duties of the office of clerk of said village during his continuance in said office for said term, then this obligation shall be void, otherwise it will and remain in full force and effect.”

In State v. Griffith, 74 Ohio St. 80 [77 N. E. Rep. 686], it is decided:

“A public officer is personally, and may be even criminally, liable for malfeasance in office; but the sureties on his official bond are answerable only within the letter of their contract for the unfaithful performance of his official duties and not for dereliction outside of the limits of his official duties.”

The question is, does or' does not the bond in this case come within the terms of this decision? We are of opinion that it does.

In State v. Carter, 67 Ohio St. 422 [66 N. E. Rep. 537], while the Supreme Court of Ohio holds that Carter was legally chargeable with the funds collected by him under the ordinances passed by the village council of Madisonville, and if he fraudulently converted them to his own use he was guilty of embezzlement under the provisions of Sec. 6841 Rev. Stat., yet, in their opinion the court say, page 432, “the moneys which came into the possession and custody and keeping of Carter, while he was village clerk, were moneys which he had collected and received under the provisions of the ordinances above set out, and not in the discharge of any purely statutory duty imposed upon him.” Further on in its opinion the court say, page 434, “the clerk was an -officer of the village and not' of the state, and while his general duties are defined by statute, it is within the legitimate exercise of municipal authority to add other duties, which are not inconsistent with the statutory duties, and which relate .solely to the local affairs of the corporation. ’ ’

We do not think this new duty imposed upon Carter was one pertaining to his office as clerk that might be prescribed by council as provided in Sec. 1762 (Lan. 3270; B. 1536-653)Rev. Stat. In holding -Carter guilty of embezzlement the court say, page 437:

That he “availed himself of the provisions of the ordinance so far as to receive from the village taxpayers sums of money which they were required to pay within a certain period to avoid certification of the same by him to the county auditor. ’ ’

In becoming surety for Carter, the bondsmen were only liable in case Carter “failed to faithfully perform the duties of the office of clerk of said village. ’ ’ And this no doubt would include such other duties “pertaining” to his office as council might prescribe. The duty of ■collecting and disbursing the assessments set out in the ordinance was not a duty imposed upon him by statute, or one pertaining to his office as village clerk. His appointment and selection for this purpose was as though the village council had selected any other individual, and under •the terms of the bond such duties were not included.

We are of opinion, therefore, that the court erred at the close of the ■defendant in error’s testimony below to grant the motion of the plaintiffs in error to arrest the testimony from the jury and instruct a verdict for the plaintiffs in error.

Judgment reversed.

Swing and Giffen, JJ., concur.


text:
    EXECUTORS AND ADMINISTRATORS — LIMITATIONS OF ACTIONS.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, G-iffen and Smith, JJ.
    James A. Bray v. Thomas H. Darby, Admr. Henrietta Bray v. Thomas H. Darby, Admr.
    Statutory Notice of Appointment of Administrator not Required to One Having Actual Knowledge Thereof.
    Claims accruing during lifetime of decedent on which no proceedings to enforce are instituted within two years of the appointment of his administrator are barred under Sec. 6113 Rev. Stat., notwithstanding statutory notice of issue letters of administration is not given, if claimants have actual knowledge of such appointment.
    Error to Hamilton common pleas court.
    C. C. Benedict, for plaintiff in error.
    T. H. Darby, for defendant in error.
   SMITH, J.

We are of tbe opinion that the court of common pleas committed no error in overruling the demurrers to the answers filed in the above cases.

Both claims sued upon accrued before the death of George Schwartz, and while notice of the appointment of the administrator as said George Schwartz was not given as required by statute, yet, so far as the two plaintiffs in error are concerned, such notice would avail them nothing as they had actual knowledge of such appointment. James Bray presented his claim to the administrator, and the same was allowed; Henrietta Bray having actual knowledge of such appointment failed to present her claim to the administrator for allowance.

We therefore conclude both parties waived the formal notice of said appointment as administrator.

The two claims having accrued during the lifetime of decedent, we are of the opinion that this fact brings them within the ruling of Granger v. Granger, 6 Ohio 35, where it was held that when the statute of limitations begins to run against an intestate in his lifetime, it will run to its completion without interruption by death. This of itself would seem to bar plaintiffs in error from recovery under the allegations of the answer.

• In addition, however, we think that the plaintiffs in error are barredi under Sec. 6113 Rev. Stat., as the notice required by that section would avail neither of the parties as they had actual knowledge-of the appointment of the administrator. It was the duty of James-Bray and Henrietta Bray to have proceeded to enforce their claims-against the administrator within the statutory time.

These statutes are intended to produce a speedy settlement of estates, and persons holding claims against deceased persons should move-with promptness, and not suffer heirs to be harrassed years after a final settlement of the estate is had. Callamore v. Wilder, 19 Kan. 67.

The judgments therefore will be affirmed.

Swing and Giffen, JJ., concur.


author: GIFFEN, J.

text:
    ACCOUNTING — APPEAL—TRUSTS AND TRUSTEES.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.

      James Storey v. M. W. Knapp et al.
    1. PUBLICATION Declared in Trust by Its Founder Held Property of Trustees and Accounting Denied. ,
    Where, in response to a declaration by the founder of a religious publication that he has given it in trust to a religious society, large sums of money are contributed by devotees to aid in its establishment and increase its circulation, the trustees of such society will not be required, on the death of the founder, to render an accounting of profits and deliver the publication and rights incident thereto, to his administrator.
    2. Appeal Does not Lie in Action to Declare a Trust upon Claims of an Administrator for Money Only.
    Claims of an administrator to money on deposit in a bank in the name of his decedent in an action brought by contributors to have it declared a religious trust fund are for the recovery of money only and not ap-pealable. Nor will an averment that he does not know the exact amounts and prayer for an accounting make the action equitable in the absence of allegations that the accounts are complicated, that the banks refuse to disclose the amounts, or averments in his petition, or answer of the. trustees requiring equitable relief as to such deposits.
    3. Action for Specific Personal Property not Appealable.
    An action for the recovery of bookplates and electrotypes is one for recovery of specific personal property and cannot be determined by the circuit court on appeal.

      Roettinger & Gorman and P. M. Pogue, for the ancillary trustees .and creditors.
    J. W. Sparrow, C. A. J. Walker, C. W. Baker and David Davis, for the Knapp estate.
    Peck, Schaffer & Peck and W. A. Hicks, for the Bible school.

       Affirming Storey v. Knapp, 17 Dec. 461.

   GIFFEN, J.

The claim of Jackson W. Sparrow as administrator de bonis non •of the estate of Martin W. Knapp, deceased, to the money on deposit in the Second National Bank and the Cincinnati Savings Society in the name of Martin W. Knapp at his death is based upon the wrongful conversion of the same by the defendant trustees and does not arise from "the same transaction, nor transactions connected with the same subject of action as the equitable claims stated in his petition. The averment that he does not know the exact amounts and therefore asks an accounting does not make it an equitable cause of action. There is no averment that the accounts are complicated or involved, or that the banks refuse do disclose the amounts, nor is there any other averment in his petition or in the answer of the trustees requiring a decree granting equitable relief in relation to such deposits.

The causes of action thus stated are for the recovery of money only •and therefore not appealable. Wellston (City) v. Morgan, 59 Ohio St. 147 [52 N. E. Rep. 127]; Lange v. Lange, 69 Ohio St. 346 [69 N. E. Rep. 611].

Although the publication known as the Revivalist was originally the property of Martin W- Knapp, we find that by the declaration of •June 21, 1900, he gave the same in trust to the society known as “God’s Bible School, ’ ’ and by subsequent declarations ratified such gift. Large ¡sums of money were contributed evidently upon the faith of such -declarations and the trust thereby created, and materially aided in •establishing the paper and increasing its circulation. It would therefore be contrary to every principle of equity* to now require the trustees of “the society to account to the administrator for the profits and to deliver to him the publication and the rights incident -thereto.

This conclusion applies as well to thq publication known as Sparkling Waters. The demand for an account of the profits arising from the publication and sale of certain .books written by Martin W. Knapp-has no foundation unless the books were copyrighted by the author, and in that event, the validity of the copyright being involved, the state •courts are without jurisdiction.

The cause of action stated in the petition of the administrator for the recovery of the bookplates and electrotypes existing at the death of Martin W. Knapp is one for the recovery of specific personal property and cannot be heard and determined by this eonrt on appeal, and the judgment of the common pleas court as to the right of possession and the title to such property as well as the money in bank is final. The appeal of such causes0of action should therefore be dismissed for the want of jurisdiction, and petition of the administrator as to all other causes of action be dismissed. We are of opinion that $2,000 is a reasonable compensation for services rendered by counsel who represented the trustees in the common pleas court and that $200 is a reasonable compensation for the services rendered by the master. There being no dispute as to claims of creditors such finding and decree as counsel shall agree upon may be entered, and the cause will be remanded to the common pleas for execution.

Swing and Smith, JJ., concur.


author: SCRIBNER, J.

text:
    STREET RAILWAYS.
    [Lucas (6th) Circuit Court,
    October 24, 1891.]
    Scribner, Bentley and Haynes, JJ.
    John Mulhenny v. Toledo Central St. Ry. Dennis Coughlin v. Toledo Consol. St. Ry. et al.
    CONSTRUCTION OF STREET RAILWAY GRANT ORDINANCE AVOIDING MONOPOLY OF Franchise.
    An ordinance granting a franchise to electric street railway, providing that “only one set of wires and poles shall be erected upon any one street” cannot be construed to give the first company erecting its poles and stringing its wires the exclusive right to operate its line of street railway on a given street, but rather stipulate that such company can only erect one set of poles and wires thereon.
    Motion for preliminary injunction.
    O. S. Brumback, for plaintiff.
    Barton Smith, for defendant.
   SCRIBNER, J.

We have given such consideration as time would permit to the questions presented in the eases submitted to us today upon applications for temporary injunctions.

1. The ordinance of November 25, 1889, should have such reasonable construction as will, if possible, give force and effect to all its material provisions, and harmonize it with existing ordinances conferring rights and privileges upon street railway companies. A construction which will materially impair or substantially destroy such existing rights, should, if possible, be avoided.

2. The ordinance of March 27, 1889, entitled, “An ordinance to grant to David Robinson, Jr., trustee, the right to construct and operate an electric street railroad on and over certain streets in the city of Toledo,” embraced — in the streets therein enumerated, the portions of Summit and Monroe streets involved in this controversy.

By See. 4 of that ordinance it was provided that “the cars of said' street railroad shall be propelled and lighted by electric power, and shall be properly heated in cold weather; and for these purposes the-said David Robinson, Jr., trustee, his successors or assigns, are authorized to construct, operate and maintain along the line, of said street-railroad, such necessary structures, appliances and equipments as may be necessary to successfully operate the same.” This section further requires that no wires shall be maintained at a height of less than-eighteen feet above the surface of the street, and that upon the streets: here in controversy, among others, iron poles only should be erected; also that all poles placed in any of the streets named should conform to-the provisions of any and all general ordinances of the city of Toledo* then in force, regulating the erection of poles in the streets of the city of Toledo, so far as the same might be applicable. By Sec. 6 it was-, further provided that “the said David Robinson, Jr., trustee, his successors or assigns, shall, in the construction, management and operation of said railroad, in all respects comply with, and conform to, all general ordinances of the city of Toledo, now or hereafter in force or amendments thereto, regulating the mode of constructing and operating street, railroads, so far as the same are not inconsistent with the provisions, of this ordinance.”

By See. 2, authority was granted said Robinson, trustee, or his assigns, “to occupy, according to law and ordinance, so much of the existing street railroad tracks upon the above named streets as is necessary for the operation of said electric street railroads therein.”

3. The ordinance of November, 1889, upon the true ■ construction-of which this controversy largely depends, contains the following provisions :

“For the purpose of dispensing with as many poles in' the streets as possible, all existing poles therein are authorized to be used for electric street railway purposes, upon reasonable’ compensation being made for the use thereof to the persons or company owning the same. Pro--vided, that only one set of wires and poles shall be erected upon any ■one street.”

By tbe terms of this ordinance street railway companies were required to file their written acceptance of the,terms of the ordinance, and also a bond with approved surety, before they should be entitled to its benefits. Both street railway companies complied with these requirements: the Consolidated Company, December 11, 1889, and the Toledo Electric Company, July 14, 1890. The Electric Company placed its poles and wires in place, November 17, 1889.

4. It is now contended by the plaintiffs, who sue under the statute, ■See. 1778 Rev. Stat., in behalf of the city, that inasmuch as the poles and wires of the Electric Company were placed in position at the date named, the Consolidated Company is prevented, under the terms above mentioned in the ordinance of November 25, 1889, from placing a second set of poles and wires to operate its lines of railway upon and along the streets so occupied. It is claimed on behalf of the plaintiffs, that by force and effect of the provisions of that ordinance above quoted, the company which first succeeds in erecting its poles and stringing its wires, thereby acquires the exclusive right to operate with electricity lines of street railway upon the streets so occupied. Should the ordinance of November 25, 1889, receive the construction so contended for?

(a) Had the Consolidated Company succeeded in getting its poles and wires in place in advance of the Electric Company, it would, under the construction contended for by the plaintiffs, have acquired the exclusive right to use such parts of its lines as are so equipped, and would therefore have bisected the system or line of railway provided for in the ordinance of March 27, 1889, and materially impaired or substantially destroyed the franchise conferred by that ordinance.

(b) A construction leading to these results would have invited a race between the two rival companies, and tended to provoke breaches of the peace and other disturbances in the public streets of the city.

(c) Such a construction also results in conferring a monopoly in the use of electric appliances upon the company which shall first succeed in placing such appliances in the street. A monopoly of this ■charcter may not, in our opinion, be conferred by the city council. And we will not so construe the provisions in question, unless compelled to do so, as to impute to the council an intention to do a thing which they are forbidden to do. We have already held in another case that under this ordinance, no provision is made for compelling either company to furnish power to the other.

5. If the provision in question be a mere exercise of the police power, we are clearly of opinion that it cannot be enforced by bill in equity, or by injunction.

6. As at present advised, we are of opinion that when the Con•solidated Company, December 11, 1889, filed its acceptance and bond with the city authorities, as required by the ordinance of November 25, 1889, it thereby stipulated that it would erect but one set of wires and poles upon the streets in question; it did not bind itself that no other company acquiring from the city the right so to do, should not erect for itself a second set of wires and poles. We think the same rule applies to the Electric Company, under its acceptance.filed in July, 1890. Neither company could be deprived of the right, under the ordinances then existing, by the action of the other party, from providing and placing in the streets the appliances necessary for the operation of their respective systems.'

We do not determine the question now pending before us in another ease, as to what may be the respective rights and remedies of the two street railway companies, in case it shall be hereafter found that two independent lines of trolley wire over the same track cannot be successfully maintained and operated. ,

It follows that the injunctions prayed for must be refused.

Bentley and Haynes, JJ., concur.


text:
    JURY — TRIAL.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smitli, JJ.
    Franciska Rau, Exrx. v. L. Risiden.
    Mebe Request -to Dischaeoe Jury and Continue Case not Sufficient.
    Under Secs. 6195, 5196 Rev. Stat., the power to discharge a jury during trial or after the cause is submitted and before verdict is not discretionary in the trial court but must be based upon a finding of necessity or consent of the -parties, a bare request by the plaintiff in a personal injury case to discharge the jury and continue the case is insufficient.
    ERROR to Hamilton common pleas court.
    Cormany & Corm'any and J. J. Gasser, for plaintiff in error.

      Stanley Matthews and Burch, Peters & Matthews, for defendant in error.
   GIFFEN, J.

It is apparent from Sees. 5195, 5196 Bev. Stat., that the power to discharge a jury during the trial or after the cause is submitted and before verdict is not discretionary in the court, but must be based upon a finding of some necessity for such action or upon the consent of both parties. In the case of Dobbins v. State, 14 Ohio St. 493, the third proposition of the syllabus is as follows:

“To justify holding the accused to a further trial, after such discharge, the record must show, that an obstacle which the law will recognize as a necessity, did in fact exist, that it engaged the attention of the court, and that the order was based thereon, and was the result of consideration and decision; but it need not show all the facts and circum•stances which influenced the decision, unless made part thereof by bill ■of exceptions.” •

Although that was a criminal case the same rule would seem to apply here in a civil action. In the case of the State v. Behimer, 20 Ohio St. 572, in discussing the constitutional provision that no person shall “be twice put in jeopardy for the same offense, ” it is said on page 576:

“The constitutional provision extends the common law maxim, which was limited to felonies, to all grades of offenses; and it is but the application, to the administration of criminal justice, of a more general maxim of jurisprudence, that no one shall be twice vexed for one and the same cause. On this maxim rests the whole doctrine of res judicata. The object of incorporating it into the fundamental law, was to render it, as respects criminal causes, inviolable by any department of the government.”

The record in this case discloses no reason for the action of the-court, nor that anything engaged the attention of the court other than a bare request by the plaintiff that the jury be discharged and the ease-continued. If the unauthorized discharge of the jury in a criminal case-legally ends the prosecution, there seems good reason to hold that such discharge in a civil action works, under the maxim above referred to,, a like termination. We are of opinion, therefore, that the court had no jurisdiction to further try the case and the motion to dismiss the action should have been sustained.

Judgment reversed and cause remanded to be dismissed for want, of jurisdiction.

Swing and Smith, JJ„, concur.


author: SMITH, j:

text:
    INNKEEPERS — STATUTES.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    Joseph S. Thomas v. Remington Typewriter Co.
    Typeweiter Left at Hotel by a Gtjest upon His Departure, Without Paying his Bill, is Subject to Innkeeper’s Lien.
    Section 4427b Rev. Stat., providing for the lien of an innkeeper, is merely declaratory of the commoij and does not enlarge or extend an innkeeper’s lien, so far as it relates to the property of a third person in the possession of a guest, nor does it violate any constitutional right. Hence, the lien attaches to a typewriter left at a hotel by a guest who departed without paying his bill, notwithstanding he had no title to the machine and had obtained possession thereof by false pretenses.
    Error to Hamilton common pleas court.
    Geoffrey Goldsmith, for plaintiff in error.
    Burch & Johnson, for defendant in error.
   SMITH, j:

The undisputed facts in the evidence disclose, that on or about April 21, 1905, the defendant company delivered to one B. L. Wendel-born a certain typewriter, belonging to defendant in error, upon said Wendelbom’s statement that he was acting as agent for an amusement company; that said company desired to rent a typewriter from the Remington Typewriter Company, and that said amusement company had authorized him to rent the typewriter for it. Thereupon said typewriter was delivered to said Wendelbom on the agreement that for each and every month said typewriter was so rented, said amusement company was to pay therefor a rental of five dollars per month, but no rent was ever paid for the use of the same.

Upon the delivery of the typewriter to said Wendelbom, the latter brought the same to the Newmarket Hotel, at which hotel he was and had been a guest since February 1, 1905, stating to the proprietor of the hotel that the typewriter belonged to him. A few days later said Wendelbom left said hotel without paying his account of $40 for board and lodging, leaving said typewriter in- the possession of the proprietor of the hotel, who claims a lien upon the same for the unpaid bill incurred by said Wendelbom.

Thereupon an action in replevin was brought by the defendant in error to recover possession of the typewriter. The undisputed facts further disclose that tbe statement made by Wendelbom to the Remington Typewriter Company that he was authorized by the amusement company to rent said typewriter for it, and also his statement to the proprietor of the hotel that he was owner of said typewriter, were false. The value of the typewriter was placed at $75.

Upon a hearing of the case in the court of common pleas, at close of all the testimony, the court instructed the jury to return a verdict for the defendant in error, and entered judgment thereon, and this case is now brought to reverse the action of said court.

Under these facts the relation between the plaintiff in error and Wendelbom at the time of the above transaction was that of innkeeper and guest. This being the relation, the plaintiff in error was entitled at common law to a lien upon the baggage and other property of the guest brought by him into the hotel, and said plaintiff in error was entitled to detain any property brought into his hotel by the guest as security for the payment of an amount due by the guest for lodging, board and accommodations furnished. This lien became a part of the law of this state, as our courts administer the common law of England in so far as its principles are not inconsistent with our own institutions, or opposed to the habits, customs and policies of the people of our state. Clev. C. & C. Ry. v. Keary, 3 Ohio St. 201.

This being so the plaintiff in error could retain the typewriter in question for the unpaid amount of his guest’s bill, unless Sec. 4427b Rev. Stat. would deprive said innkeeper of his lien. The section in question provides, that the keeper of any inn shall have a lien on the baggage and other property in and about said inn belonging to or under the control of his guest for the proper charges due him from said guest, for the accommodation, board and lodging furnished said guest, and said innkeeper shall have the right to retain said baggage and other property until tie amount of such charges is paid.

It is urged in argument, that while the possession of the typewriter passed to Wendelbom, the title to the same did not pass, and therefore said typewriter did not belong to, and was not under the control of said Wendelbom, and consequently the innkeeper’s lien would not attach thereon.

We believe that this section is declaratory of the common law and does not enlarge or extend an innkeeper’s lien, so far as it relates to the property of a third person in the possession of the guest, and that said section is not in violation of any constitutional right. Under the facts in this case, Wendelbom was possessed of the typewriter in question, and it was under his control. The words “under the control of the guest” we think, should be construed in the light of the common law decisions, and while the title to the typewriter in question may not have passed to "Wendelborn, yet the innkeeper had a lien on the typewriter superior to the right of the defendant in error- to retake possession of the same.

A very full and able discussion of this matter is set out in the case of Waters v. Gerard, 189 N. Y. 302 [82 N. E. Rep. 143].

The judgment of the court below will be reversed, and upon the undisputed facts in the ease, judgment for plaintiff will be entered in this court.

Swing and Giffen, JJ., concur.


text:
    CHARGE TO JURY — VERDICTS.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    Cincinnati, H. & D. Ry. v. John H. Tangeman.
    General Vebdict Prevails over Inconsistent Special Findings.
    In an action for damages for injuries sustained by a fireman caused by a cut of. freight cars being allowed to run against the engine while he was under it cleaning out the ash pan, special findings that he was hurt through the (1) negligence of one or more fellow servants, and (2) by that of the engineer, his superior, neglecting to place a flag or other warning signal, etc., are inconsistent; and, hence, a general verdict for plaintiff will be affirmed.
    Error to Hamilton common pleas court.
    Plaintiff, a fireman, was injured while under his engine cleaning out the ash pan, by a cut of freight cars being alloyved to run against the engine. He recovered a verdict below of $7,500.
    Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error,
    F. H. Kunkel and T. L. Michie, for defendant in error.
   GIFFEN, J.

The omission to close the switch after the engine passed onto the siding is neither charged nor proved as an act of negligence by the defendant company, and does not support the general verdict for plaintiff.

The special finding of the jury that the negligence of the defendant consisted in part of “the word from engineer Dumphy to fireman Tangeman i. e., ‘alright John,’ ” supports the averment in the petition that “the defendant neglected to place a flag or some other signal of warning to other engines and cars in the said yard for the protection of the plaintiff while under the said engine” because it shows not only a positive notice of safety to the fireman, but also the absence of any precaution by the engineer to protect him.

The finding of the jury that the plaintiff was hurt through the ¡negligence of one or more fellow-servants is inconsistent with the finding that he was hurt through the negligence of the engineer, who must, in the absence of proof to the contrary, be regarded as a superior jservant.

The finding of the jury that the injury was the result of an accident, was intended merely to negative the charge in the petition of malice or wilfulness.

There was no error in overruling the motion of defendant for judgment upon the special findings of the jury, and the judgment will be .affirmed.

Swing and Smith, JJ., concur.


author: PER CURIAM.

text:
    ASSESSMENTS.
    [Hamilton (1st) Circuit Court,
    February 16, 1908.]
    Swing, Giffen and Smith, JJ.

      Fifth Nat. Bank of Cincinnati v. Cincinnati et al.
    Illegality oe Assessment Excess Does not Attach to Petitioned Impbovement.
    The limitations of original See. 2271 Rev. Stat. and Sec. 53 of the new municipal code (Lan. 3604; B. 1536-213), making assessments for municipal improvements in excess of 33 1-3 per cent in five years illegal, does not apply to assessments for the cost of a particular improvement made upon petition of abutting owners therefor. But if other assessments for improvements later added to those for the petitioned improvement, exceed in the five year period the statutory limitation, the illegality attaches to the later assessments and the collection of the excess will be enjoined.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 442, 446, 447, 583, 587. — Ed.] .

      W. F. Chambers, for plaintiff.
    E. M. Ballard, for defendants.

      This decision overrules Punshon v. Cincinnati, 11 Dec. Re. 490 (27 Bull. 155).

   PER CURIAM.

In 1899 Henry Moemke was the owner of lot 89 situate at the ■corner of Mansion place and Myrtle place in Price Hill, being 37.50 feet on Myrtle avenue, 135 feet on Mansion place, and signed a petition for the improvement of Mansion place and for the assessment of the whole cost of such improvement, except 2 per cent and cost of intersection. The amount of the assessment, including interest, is •$400.90.

An ordinance to improve Myrtle place was passed August 8, 1904, ■and the assessing ordinance was passed July 17, 1904; this assessment with interest amounts to $389.99. On September 12, 1904, the lot was •assessed for a sidewalk in Mansion place in the sum of $64.45, which has been paid.

On June 3, 1907, the lot was assessed for a sewer in Mansion place in the sum of $99.88, which has been paid. It is agreed that the property is worth $1,725. The plaintiff is now the owner of the lot and prays that the assessments be reduced to the amount allowed by statute and for an injunction.

The lot owner having signed a petition for the improvement of Mansion place and for an assessment of the cost thereof is not entitled under original See. 2272 (see Lan. 3613; B. 1536-222) Eev. Stat., then in force, to the benefit of any statutory limitation upon the power ■of assessment for that improvement, although such petition was not subscribed by three-fourths in interest of the owners and although legislation similar to original Sec. 2272 Rev. Stat. has since been held by the .Supreme Court to be unconstitutional. Shoemaker v. Cincinnati, 68 Ohio St. 603 [68 N. E. Rep. 1]. It does not follow, however, that the owner of the lot, by signing the petition, waived his right (1) to have such assessment added to later assessments, levied upon the same lot within a period of five years, and (2) to ascertain whether the total ■exceeds 331-3 per cent of the actual value thereof after improvement is made, as provided in See. 53 of the municipal code as amended April 2, 1904 (97 O. L. 126; Lan. Rev. Stat. 3604; B. 1536-213).

He did not then know and could not anticipate what improvements would be made or what assessments would be levied within the ■statutory period. Besides Sec. 53 of the municipal code expressly provides that “in no ease shall there be levied upon any lot or parcel of land in the corporation any assessment or assessments for any or all purposes, within a period of five years, exceeding 331-3 per cent of the actual value thereof,” which provision admits of no exception, other than when a petition is signed and presented, and then only to be applied to the particular improvement asked for, or when otherwise waived; but he could not escape payment for the improvement in accordance with the petition even though the assessment exceeded the limitation then in force (Sec. 2271 Rev. Stat.), or that now in force (Sec. 53 of the municipal code; Lan. 3604; B. 1536-213). The illegality attaches to the later assessments levied within a period of' five years, and not to the original assessment authorized by petition. The Myrtle place assessment was legal to the extent of $174.10, which together with the assessment for improvement of Mansion place equals 331-3 per cent of the actual "Value of the lot. The collection of the excess of the Myrtle place assessment, amounting to $215.89, will be enjoined. Such illegal assessments as were voluntarily paid cannot be recovered, nor set off against those that remain unpaid. Wilson v. Pelton, 40 Ohio St. 306; Brooks v. Norwood, 4 Circ. Dec. 271 (12 R. 257).


text:
    DAMAGES — NUISANCE.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    Belle M. Johnson v. Cincinnati (City).
    Damages foe a Continuing Nuisance Cannot Follow Damages for a Permanent Injury to the Same Property.
    The measure of damages to property “completely destroyed and rendered worthless and unmarketable” by reason of a nuisance occasioned by the negligence of a city, is the difference in values of the property before and after the injury. Having recovered for a permanent injury,, the owner cannot recover for a continuing puisance also.
    ERROR to Hamilton common pleas court.
    Clyde Johnson, for plaintiff.
    E. M. Ballard, city solicitor, for defendant.
   SMITH, J.

Upon examination of the record we cannot say that the verdict is. against the weight of the testimony.

As to the alleged errors of law complained of in the charge of the court, relative to the property being permanently injured, the contributory negligence on behalf of the plaintiff in error, and the refusal of the. court to give charge No. 3 asked by plaintiff in error, .we do not think' objection to these portions of the charge is well founded.

In the amended and supplemental petition in case No. 100927, common pleas court, plaintiff in error distinctly says that the negligence complained of completely destroyed her property and rendered it absolutely worthless and unmarketable. This being her claim, she went to trial upon the theory of the nuisance beiiig permanent and not a continuous, one, and the amount of the verdict would seem to bear out this conten- ■ tion.

The rule as to the measure of damages in actions of this kind is set out in Cincinnati v. Wright, 14 Dec. 600, and affirmed by the Supreme-Court in Wright v. Cincinnati, 74 Ohio St. 479.

If, as claimed in plaintiff in error’s amended and supplemental petition in said case, that her property was completely destroyed and rendered absolutely.worthless and unmarketable, then her measure in damages was the difference in values of the property before and after the-injury. This being so, she recovered as for a permanent damage. The record in this case, therefore, showing that she did recover such measure-of damages for a permanent injury, she cannot later recover for a continuing one. The jury having found that no further injuries had been done to the property already permanently damaged, and for which the: plaintiff in error has been paid, the judgment will be affirmed.

Giffen and Swing, JJ., concur.


author: 4IIFFEN, J.

text:
    INTOXICATING LIQUORS.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    In re Jones Law Petition.
    Petition for Residence Local Option Held not Prima Facie Proof of its-Sufficiency.
    A petition under Jones residence local option law, 98 O, L. 68 (Lan. Rev. Stat. 7283a ef seq.; B. 4364-30a et seq.), requiring a public hearing by a mayor or judge, is not prima facie evidence of its sufficiency except upon failure of any electors of the district to contest it, and the burden of proof rests upon the petitioners to prove such facts; but if an elector seeks to withdraw his own or authorized signature from the petition he has . the burden of establishing fraud or misrepresentation by which, it was secured.
    Error to Hamilton common pleas court.

      W. M. Yeatman and W. Yeatman, for the petition.
    J. D. Creed and F. P. Muhlhauser, contra.
   4IIFFEN, J.

Under the act of March 22, 1906 (98 O. L. 68; Lan. Rev. Stat. 7283a et seq.; B. 4364-30a et seq.), the provision that “the mayor or judge shall examine the petition at a public hearing” requires a trial or investigation of the facts necessary to decide upon the sufficiency of the petition and in no event shall the petition be taken as prima facie evidence of such facts, except upon failure of any person or persons, who are electors of the district, to ask to be heard thereon.

The burden of proving such facts rests upon the petitioners; but if any elector wishes to withdraw his own or authorized signature from the petition, the burden falls upon him to prove to the mayor or judge that it was secured through fraud or misrepresentation.

The petition must be signed or authorized to be signed by as many qualified electors as equal a majority of the votes east at the last regular municipal election in such residence district.

It is common knowledge in this jurisdiction that the two newspapers known as “The Cincinnati Daily Enquirer” and “The Cincinnati Daily Commercial Tribune ’ ’ are of opposite party polities, hence the court will take judicial notice of that fact.

Of the thirty-eight petitioners who sought to withdraw their names from the petition upon the ground of misrepresentation that the liquor dealers intended to establish a saloon upon a lot near a church in such residence district, only fifteen were induced, according to their own testimony, to sign such petition by any misrepresentation of a present intention on the part of such dealers to locate a saloon near a church.

The statements made to the other twenty-three petitioners related to facts, the truth or falsity of which could be ascertained by reading the petition. Many of the petitioners did not, according to their own testimony, rely upon such statements, and none had a right to so rely.

We deem it unnecessary to weigh the evidence in rebuttal on the question of misrepresentations, because if we should find that the fifteen names were improperly counted,' there were still enough remaining to equal a majority of the votes cast at the last regular municipal election.

The fifteen names above referred to are as follows:

Isaac J. Fifeler, W. J. Williams, Chris. Seibert, James Finn, Adolph Lukens, Fred Schillins, George Maffey, Harry E. Shaffer, Peter Heuel, John Doberrer, John Doberrer, Jr., Fred Goetz, Clifford Campbell, George Huber and Philip Kuntz.

While tbe depositions taken during tbe progress of tbe trial were not and could not be filed in accordance with See. 5282 Rev. Stat., yet it appears from tbe whole record which is before us that no prejudice resulted to the plaintiff in error on that account.

The judgment will therefore be affirmed.

Swing and Smith, JJ., concur.


text:
    PLEADING — STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    February 15, 1908.]
    Swing, Giffen and Smith, JJ.
    Cincinnati, Georgetown & Portsmouth Ry. v. Augustus Burkhardt et al.
    1. Injury from Unintentionally Projecting Arm from Car.
    A petition in an action for injuries to tbe arm of plaintiff while it was projected from a window of the car in which he was a passenger, alleging that while he “was sitting in said car with his arm on the window sill, it was thrown out of the window by a sudden jerk or movement of the car,” states a good cause of action, when taken in connection with allegations as to the dangerous construction of parallel tracks and the proximity of the cars to each other.
    2. Error to Instruct Jury as to Matters not in Evidence.
    In the absence of allegations or evidence as to faulty construction or improper rate of speed of the car, it is error to instruct the jury with reference to those matters.
    3. Test as to Knowledge of Danger.
    The proper test as to knowledge of danger under such circumstances is not that possessed by plaintiff, but that of persons of ordinary care and prudence when placed under like circumstances.
    Error to Hamilton common pleas court.
    F. F. Dinsmore, for plaintiff in error.
    Murray Seasongood and H. C. Busch, for defendants in error.
   SMITH, J.

The first error urged by the plaintiff in error is that the verdict is against the weight of the evidence; but upon an examination of the record we cannot so hold.

We do not think there was any error in the court in allowing the plaintiff to amend his petition by inserting the words thereih, “while plaintiff was sitting in said car with his arm upon the window sill, it was thrown out of the window by a sudden jerk or movement of the-ear.” In other words, by this amendment the plaintiff states that his arm was not "intentionally and needlessly projected out of the window of the ear.” The amended petition, therefore, alleges a good cause of action.

The negligence complained.of is that "by reason of the dangerous construction of the tracks of the company” at the point where the' accident occurred, "and the dangerous proximity of the cars to each other” at that point, the arm of the defendant in error was injured without any fault on his part, the same being projected "unintentionally and needlessly out of the window of the car.”

This was the issue, and the case was tried upon that theory. This, being so, it was error for the court to charge the jury relative to the operation of the ears at an improper rate of speed, or as to the construction of the ears, as there was no evidence upon these points to-show improper speed or faulty construction.

We think charge No. 1 is too broad and includes in it matters, not set up in the petition or claimed by the evidence.

Charge No. 2 is erroneous in that the "knowledge of the plaintiff” is not the test, but the knowledge possessed by a person of ordinary care and prudence under the same circumstances.

Charge No. 6 is opposed to the rule laid down in Interurlan Ry. & Term. Co. v. Hancock, 75 Ohio St. 88 [78 N. E. Rep. 964]. We see no. objection to charges 4 and 5.

For above reasons the judgment below is reversed.

Swing and Giffen, JJ., concur.


text:
    ESTOPPEL —EXECUTORS AND ADMINISTRATORS — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.

      Frank H. Kemper, Admr. v. Apollo Bldg. & L. Co. et al.
    Gross Laches of Mortgagee in Asserting Claim against Estate of Deceased Mortgagor, Estops Suit against Bona Fide Purchasers of Deceased’s Heirs.
    Laches is such neglect or omission to assert a right as, taken in conjunction with lapse of time and other circumstances, causes prejudice to the adverse party, and operates as a har in equity. Hence, failure of a mortgagee, having ample security in one tract of land for his loan at the death of the mortgagor, and at the time of filing the account of his administrator showing distribution to the creditors then existing, to make any effort to enforce payment on his claim until nearly eight years thereafter, when the mortgaged tract had greatly decreased in value and the remaining unencumbered tracts had been sold by the heirs to bona fide purchasers for value, and valuable improvements made thereon, constitutes gross laches in the assertion of his rights which will estop the mortgagee and his assignee from asserting any claim against the holders of the unencumbered lands.
    W. A. Nicks and D. F. Cash, for plaintiff.
    W. M. Kemper, Pogue & Pogue, Roettinger & Gorman, David Davis, C. M. Leslie, W. W. Smith, Jr., and J. H. Charles Smith, for defendants. ! .

      For common pleas decision appealed from and comprehensive statement of facts, see Kemper v. Building & L. Co. 18 Dec. 484.

   SMITH, J.

In onr view of this case, we are of opinion that the defendants, Thomas C. Welch, or T. J. Conden, assignor of the claim of Welch, have been guilty of such laches that they are estopped from asserting any •claim against the other defendants herein, the innocent purchasers for value and mortgagees of the Kemper real estate.

The account of the administrator of Parke F. Kemper was filed in the probate court showing distribution to the creditors then existing. ■Couden,. having a mortgage upon a certain piece 'of property, relied upon this security, no doubt, believing it would be.sufficient to pay his mortgage debt.

Some eight years passed without any effort being made to enforce the payment of his claim. When the claim accrued the security was regarded as worth considerably more than the claim, and it was not until .years after the various tracts of land were sold and valuable improvements made thereon, that, finding on a sale of the mortgaged premises, that the same was not sufficient to pay his debt in full, he undertook to enforce his claim for the balance against the property held by the present owners who paid value for the tracts and were innocent purchasers thereof.

To determine whether a party is guilty of laches, each case must be ■decided according to its own particular circumstances, taking into consideration- all the elements which affect the question. Laches is such neglect or omission to assert a right as, taken in conjunction with lapse •of time and other circumstances, causes prejudice to the adverse party, and therefore operates as a bar in a court of equity. We are of the opinion that the time allowed to pass and the circumstances in, this case are such that, in the hands of innocent purchasers, the claim of Couden or Welch cannot be asserted against the property now held by them. The doctrine of laches proceeds upon the question of the iniquity of permitting a claim to be enforced, which iniquity is founded upon some change in the condition or relations of the property or the parties interested.

Having reached this conclusion, and basing it upon the doctrine of laches, it is unnecessary for us to consider whether or not the enforcement of the claim of Welch or Couden is barred by the statute of limitations. The petition therefore of the appellant will be dismissed.

Swing and Giffen, JJ., concur.


text:
    CHARGE TO JURY — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    January 4, 1908.]
    Swing, Giffen and Smith, JJ.
    Cincinnati Traction Co. v. Amasa Johnson.
    INSTRUCTION IN NEGLIGENCE CASE IMPOSING LIABILITY IE MOTORMAN MIGHT HAVE Known oe Plaintief’s Peril, in Absence oe Such Averment, is Erroneous.
    In the absence of an averment that the motorman of a street car which caused the injury complained of, knew or should have known of the plaintiff’s peril, a charge of court which makes the defendant company liable for the resulting injury, if the jury find from the evidence that the motorman might have stopped the car after he became aware, or by the exercise of reasonable care might have become aware, of the danger to which plaintiff was exposed, is erroneous and prejudicial.
    Error to Hamilton common pleas court.
    Kittredge & Wilby, for plaintiff in error.
    C. T. Dumont and Coppock & Hertenstein, for defendant in error.
   GIFFEN, J.

The court charged the jury as follows:

“If you should find that the plaintiff did place himself in a position of danger through some remote negligence of his own, and yet notwithstanding this the motorman in charge of the car became aware of his danger in time to stop the ear by using the means at hand, and failed to do so, then the plaintiff may recover notwithstanding- the negligence of the plaintiff; but it is for you to say gentlemen whether this exception applies to this case.”

No such negligence was charged in the petition, and hence the instruction was erroneous and prejudicial. Drown v. Traction Co. 76 Ohio St. 234 [81 N. E. Rep. 326; 10 L. R. A. (N. S.) 421].

There is indeed no real negligence stated in such pleading. The-only allegation on that subject is as follows:

“The agents of the defendant in-charge of said car carelessly and negligently turned on the electricity in such quantity that defendant’s car was driven against plaintiff’s wagon with such force that plaintiff was violently thrown from his wagon upon the curbing of the street.”'

The defect in the pleading consists in the omission of any averment that the agents of the defendant in charge of the car knew, or by the exercise of ordinary care would have known, at the time the-electricity was so turned on, that the plaintiff’s wagon was upon or so near the track that it would be struck.

Judgment reversed and cause remanded for further proceedings according to law.

Swing and Smith, JJ., concur.


text:
    MASTER AND SERVANT.
    [Hamilton (1st) Circuit Court,
    February 15, 1908.]
    Swing, Giffen and Smith, JJ.
    J. Q. Martin, Admr. v. Cincinnati Traction Co.
    MOMENTARY FORGETFULNESS IN PLACE OF DANGER OF RISKS ASSUMED.
    In an action for negligence for a street car conductor’s death caused by his projecting his head beyond the line of his ear, in response to his superior’s warning, “look out,” and in momentary forgetfulness of danger from a shed roof extending oyer the track, the absence of any averment that deceased did not know the dangerous condition of the place and there being evidence indicating that he must have known of it if he had exercised ordinary care, justify the trial court in taking the case from the jury on the ground of assumed risk.
    Error to Hamilton common pleas court.
    C. L. Swain and T. L. Michie, for plaintiff in error.
    Outcalt & Hickenlooper, for defendant in error.
   GIFFEN, J.

The negligence charged in the petition is as follows:

‘ ‘ Said building or shed was negligently- and carelessly constructed and maintained by said defendant in this, that the roof of said building or shed was so negligently and carelessly constructed that said roof extended or projected over the building or shed to the danger of the lives of those who were ordered, and of the intestate, to take cars into the barn or car shops of the defendant over the tracks adjoining said building or shed, all of which was known to the defendant. That on said day while said building or shed was so maintained plaintiff’s intestate was directed and ordered by the defendant to take, as a conductor, a disabled car to the Chester Park shops, * * * and while placing said car where directed by the defendant, and without fault or negligence on his part, * * * was crushed between a Cincinnati traction 'car and the extended or projecting roof.”

The testimony shows that the car would pass the projecting roof, and could be operated in safety by the employes, if they remained within the outer lines of the car; and that both the motorman and the deceased conductor were looking forward when the car barn boss, who was directing them where to place the car hallooed “look out,” and “he put his head out. ”

The sudden call of the boss to “look out” seems to have been the only occasion for the conductor putting his head out beyond the line of the ear. In his effort to obey the warning and ascertain the cause of it, he momentarily forgot the existence of the obstruction and looked out on the side of the car where the boss was standing on the running board. Under such circumstances he was not guilty of contributory negligence, nor was the conduct of the boss negligent; but if it was, there is no such •charge in the petition.

It may be observed, however, that the conductor was probably dangerously near the obstruction when the warning was given, as there appears no other reason for it. In that event the question of contributory negligence would be one for the jury, but in neither event ■could the court determine the question as matter of law. If the negligence of the defendant in constructing the projecting roof be admitted (and we are not prepared to say that it would be), then the only ground upon which the court was justified in arresting the case from the jury was the assumed risk. ,

While the plaintiff avers in his petition that the defendant knew ■of the dangerous condition of the place where the work was done, he fails to aver that it was unknown to his intestate. The evidence also showed that it was obvious and must have been known to the intestate, if he exercised ordinary care. It appears therefore from the pleadings as well as the evidence that he assumed the risk. Chicago & O. Coal & Car Co. v. Norman, 49 Ohio St. 598 [32 N. E. Rep. 857]; Pennsylvania Co. v. McCurdy, 66 Ohio St. 118 [63 N. E. Rep. 585].

Tbe evidence of tbe plaintiff presented one of those unfortunate ■cases for wbicb tbe law affords no relief, and tbe court properly instructed tbe jury to return a verdict for tbe defendant.

Judgment affirmed.

Swing and Smith, JJ., concur.


author: GIFFEN, J. SWING, J.,

text:
    COURTS — ERROR—INTOXICATING LIQUORS.
    [Hamilton (1st) Circuit Court,
    February 15, 1908.]
    Swing, Giffen and Smith, JJ.
    In Re Jones Law (Hyde Park Petition).
    1. Jones Law Petition Hearing is Judicial Proceeding Requiring Compulsory Process por Attendance oe Witnesses.
    The hearing before a justice of the peace or judge of the common pleas, to determine the sufficiency of a petition' for the establishment of dry territory within a residence district, provided by Sec. 4 of act 98 O. L. 68 (Lan. Rev. Stat. 7283d; B. 4364-30d), is judicial in character; it comprehends the filing of the petition, process for bringing in the proper parties and a judicial inquiry according to established rules and practice. Hence, it is prejudicial error for a mayor or judge to refuse to compel attendance of witnesses, duly served and failing to appear, where request is made therefor in good faith and within reasonable bounds.
    '2. Circuit Court may Grant New Trial -upon Reversing Decision on Jones Law Petition.
    The final jurisdiction given to circuit courts by Sec. 12 of act 98 O. L. 68 (Lan. Rev. Stat. 7293a; B. 4364-301) prevents further proceedings to higher courts but does not interfere with right to grant a new trial in the court below.
    J. D. Creed, for contestant.
    E. R. James, contra.
   GIFFEN, J.

Adopting the definition of a proceeding in court and wbat it comprehends as set forth in the case of Zanesville v. Telegraph & Tel. Co. 64 Ohio St. 67 [59 N. E. Rep. 781; 52 L. R. A. 150; 83 Am. St. Rep. 725], it is manifest that tbe bearing provided for in the act of March 15, 1906 (98 O. L. 68; Lan. Rev. Stat. 7283a; B. 4364-30a), is judicial in character and comprehends the filing of the petition, process for bringing in tbe proper parties, and a judicial inquiry according to established' rules and practice. The plaintiff in error or contestant was entitled upon application to require the clerk of the court of common pleas to issue a subpoena for witnesses under the seal of the court, the sheriff to serve them, and the. process of the court to en-* force obedience thereto. The court therefore erred in refusing to compel attendance of the witnesses who were duly served and failed to appear, there being about twenty-one in all. It is claimed, however, that no proper exception was reserved; but it appears on page 326 of the bill of exceptions that counsel for contestant made a request for a ruling by the court as to whether it would compel the attendance of such witnesses; but without then ruling thereon and apparently without fault of- counsel, a discussion arose concerning a particular witness, Wenzel, then again as to four other witnesses; and thereupon the court said, as appears on pages 329 and 330: “If those gentlemen come in, Glenn and Daniel, by half-past two o’clock I will hear from them, and also hear Mr. gackhoff and Mr. Kraemer; and the case is closed, subject to the coming in of those four parties.” To Which counsel for the contestant excepted.

While this was not a direct and positive ruling upon the request made by counsel, it was significant and broad enough to overrule any request made and not already passed upon. The statute itself contemplates attempts at bribery, boycott, and intimidation of electors and the discharge of an employe; but it would be difficult, if not impossible, to defeat such attempts or such acts if the court refused to compel the attendance and testimony of witnesses. It also suggests the impossibility of advising the court in advance what the witnesses will’ testify, as they are at the time under restraint, or believed to be so. There seems therefore no good reason to deny a party in a proceeding of this kind the ordinary process of the court, provided his demands are made in good faith and within reasonable bounds. The court erred to the prejudice of the contestant.

The burden of proof was upon the petitioners to show that the territory described in the petition was a residence district; and while the evidence tending to prove such fact was slight, yet in the absence of any rebutting testimony it was sufficient to support the finding made.

The petition is composed of eleven different papers, each containing a description of the territory, and it is claimed that three of them contain a different description from that in the other eight, the discrepancy if any, consisting in a reference to the east boundary line of precinct H, instead of precinct B as a part of the east boundary line of the district. We deem it immaterial whether the reference be to precinct H or B, because the northern terminus of the east boundary line is fixed as the northeast corner of precinct M, and if the course southwardly and the monuments other than precinct B are-followed, the same point in the center of Linwood avenue will be-reached for the southern terminus, and the same territory included.

The final jurisdiction given by statute to this court only prevente" further proceedings in a higher court, and does not interfere with the right to grant a new trial in the court of common pleas.

Judgment reversed and cause remanded for a new trial.

Smith, J., concurs:

SWING, J.,

dissenting.

I do not concur in the judgment of reversal for the reason that?the errors committed by the court do not appear to be prejudicial. There was no claim in the argument in this ease but that a majority of the resident electors of the district had signed the petition, and there is no intimation in the record that any one of these electors, were induced to sign the petition through intimidation or bribery, or that counsel proposed to show by any of the witnesses subpoenaed, and: which the court refused to bring into court, that bribery or intimidation had been resorted to.

Counsel said to the court as to three of the witnesses, he proposed to prove that they were not proper petitioners. One of them not being a resident, and two that they had not in fact signed the petition. Admitting that these three were not proper petitioners, there is still a large majority in its favor. As to the other witnesses, counsel' made no statement to the court as to what he expected to prove1 by/’ them; possibly he was not bound to state explicitly what he expected - to prove by each witness, but having stated what he expected to prove ■ by three of them, and making the statément to the court that his object. ■ was to get a ruling of the circuit court on the question of compelling the attendance of witnesses, I conclude that he had limited’ himself as to these three witnesses, and if there is still left a majority in favor ©£ the petition after granting all he claims, I fail to see the error that is/ prejudicial and which would warrant a reversal of the proceedings-.'

As to the law of the case I fully concur in what the court say and • state further—

It must be apparent to the most casual observer that this -law ass ■ to the procedure of the courts in its determination and the enforcement of its provisions is very crude, and in order t® give, to it.th® evident intention of the legislature, the courts must supply what has been omitted.

The law provides that there shall be a public hearing before the judge, and he shall decide upon the sufficiency of the petition and all other questions involved in the law. And such a hearing and decision must be in accordance with established rules and practice in judicial hearings and decisions.

If it is not judicial in its nature, the courts should have nothing ■to do with it. In Gordon v. United States, 117 U. S. 697, 706, Taney, J., says:

“And while it executes firmly all judicial processes entrusted to it, the court will carefully abstain from exercising any power that is not strictly judicial in its character, and which is not clearly confided to it by the constitution. ’ ’

And further on page 702, he says:

“And congress cannot extend the appellate power of this court ^beyond the limits prescribed by the constitution, and can neither .confer or impose on it the authority or duty of hearing and determining an appeal from a commissioner, or auditor, or any other tribunal .exercising only special powers under an act of congress. Nor can con.gress authorize or require this court to express an opinion on a case, when its judicial power cannot be exercised and when its judgment would not be final and conclusive upon the rights of the parties and ■process of execution awarded to carry it into effect.”

In line with the above is the law as announced in the first three propositions of the syllabus in the case of Zanesville v. Telegraph & Tel. Co. 64 Ohio St. 67 [59 N. E. Rep. 781; 52 L. R. A. 150; 83 Am. St. Rep. 725], referred to in the opinion of the court in this case. These propositions are as follows:

‘ ‘ 1. The distribution of the powers of the state, by the constitution, to the legislative, executive, and judicial departments, operates, by implication, as an inhibition against the imposition upon either, of those powers which distinctively belong to one of the other departments.
“2. The fact that a power is conferred by statute on a court of justice, to be exercised by it in the first instance in a proceeding instituted therein, is, itself, of controlling importance as fixing the judicial character of the power, and is decisive in that respect unless it is reasonably certain that the power belongs exclusively to the legislative or executive department.
“3. The institution and prosecution of a proceeding in a court, -comprehends the filing of a proper complaint, process for bringing in the proper parties, and a judicial inquiry according to established-rules and practice.

The powers and duties of courts are clearly set forth in these decisions. Only such duties as are judicial in their nature can be imposed on the courts, and such duties must, of necessity, embrace the hearing and determination of some judicial question with the power to' render judgment, and the further power to enforce the judgment when rendered.

To hear and determine a question in a judicial way, the court must have power to bring before it all proper evidence which bears on the question for determination. One of these necessary powers-is that of compelling the attendance of witnesses within the jurisdiction of the court. Without such power there could be no trial.

When the court in this ease refused to compel the attendance of witnesses, it denied to the parties the opportunity to have a fair trial and denied to itself the right to hear all the evidence it should have' had in order to get at the right of the case.


text:
    INNKEEPERS.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.

      Herman Roeckers v. Joseph Hart.
    Guest oe Innkeeper oe Boarding House Keeper May Recover Money Deposite» with Host and Misappropriated by Servant oe Latter.
    One receiving a stipulated sum of money for hoarding and lodging and agreeing to safely keep over night money of his guest, is liable for its misappropriation by a servant of the former, whether regarded, as an innkeeper or boarding house keeper.
    ERROR to Hamilton common pleas court.
    W. C. McLean, for plaintiff in error.
    W. A. Rinckhoff, for defendant in error.

       Affirming, Hart v. Roeckers, 19 Dec. 331.

   GIFFEN, J.

The defendant in error paid the plaintiff in error a stipulated sum of money for his'board and lodging, and the latter agreed to safely keep over night the sum of $152, belonging to the former. The next morning the plaintiff in error gave the money to his servant for redelivery to the defendant in error, but the servant appropriated the •same to bis own use. The plaintiff in error was liable for the money so taken whether he be regarded as an innkeeper or a boarding house keeper. The defendant in error was his guest in either event. Beale, .Innkeepers & Hotels Sees. 188, 293.

Swing and Smith, JJ., concur.


text:
    COVENANTS — LANDLORD AND TENANT.
    [Hamilton (1st) Circuit Court,
    February 15, 1908.]
    Swing, Giffen and Smith, JJ.
    Apollo Cigar Co. v. Robert J. O’Brien et al.
    ■^Covenants op Restriction op Doubtful Meaning Resolved Adversely to Re- . STRICTION.
    A- covenant in a lease of a storeroom of a hotel building for a cigar and tobacco business restricting the lessee from renting any other of the storerooms for such business excepting certain cigar privileges in the hotel office, bar and restaurant, is controlled by the rule of construction, that where there is doubt as to the meaning of a covenant of restriction it must be resolved adversely to the restriction without any extension or enlargement by implication in the language used, and hence, the erection and maintenance of a cigar stand in the hotel lobby is not a breach of such covenant.
    F. J. Dorger, and D. F. Cash, for plaintiff.
    K. H. Cadwell, for defendants.
   GIFFEN, J.

It appears from the petition that the plaintiff leased from the ■defendant, O’Brien, “the first floor and basement of the four-story brick building known as No. 11 East Sixth street, and forming a part •of the Hotel Savoy building, from Nos. 5 to 15 inclusive, East Sixth ■street, Cincinnati, Ohio,” and that in the lease he agreed for himself and his assigns—

“That he will not rent any of the storerooms connected with the Hotel Savoy building, numbered 5 to 15 inclusive, East Sixth street, for a cigar and tobacco business, during the occupancy of this plaintiff herein, excepting that the defendant, Robert J. O’Brien, expressly reserved the right to sell cigars, tobacco, smoker’s articles, magazines and periodicals at a stand not to exceed eight feet in length in the hotel ■office, at the bar connected with the said hotel, and from a stand in a restaurant, if one should be established and a cigar stand desired, which latter stand was also not to exceed eight feet in length, the said stands to be located at the hotel office desk, and the restaurant cashier’s desk. ’ ’

The first part of the above allegation sets up a restriction of the right of the lessor to rent any of the other store rooms for a cigar and tobacco business. It does not in terms nor by implication refer to or apply to the hotel office or lobby. The rest of the allegation states an apparent exception to or reservation in the restrictive clause, but can have no application as such unless the lessor or his assigns should conclude to establish a restaurant in one of the aforesaid storerooms. In other words, the lessor had conveyed no right pertaining to the hotel office nor restricted the use thereof in any way that would require or permit an exception or reservation. It may be said, however, that from the designation of a specific location and size of the cigar ;stand in the hotel office, an intention to so restrict it may be inferred;' ■but it seems well settled in cases of this kind all doubts must be resolved in favor of natural rights and against restrictions thereon. If dhere is doubt as to the meaning of the covenant, it must be resolved adversely to the restriction, but in determining its meaning, that must •be found from the language used, which is not to be extended or enlarged by implication.. Postal Telegraph-Cable Co. v. Telegraph Co. 155 Ill. 335 [40 N. E. Rep. 587].

The erection and maintenance'in the hotel lobby of a cigar stand ■sixteen feet in length by the Hotel Savory Co., one of the lessor’s assigns, is not therefore a breach of the covenant in the lease, and the demurrer to the petition will be sustained.

Swing and Smith, JJ., concur.


text:
    CONTRACTS — PRINCIPAL AND AGENT.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Gifien and Smith, JJ.
    John Pfanz v. Magdalena Humberg et al.
    'Tendering Deed of Property Refused for Defect in Title does not Entitle Agent to Compensation for Sale thereof.
    A contract to pay an agent for his “services when the property was sold” does not entitle him to compensation until either a sale is had or at least an enforceable contract is made that would enable the seller to compel the purchaser to take the property if he refused to do so. Tendering a deed of the property which is refused for an alleged defect in title does not afiect either requirement.

      Error to Lucas common pleas court.
    Renner & Renner and Eugene Heim, for plaintiff in error.
    A. L. Herrlinger and A. T. Fulford, for defendants in error.
   SMITH, J.

The contract of agency sued upon in this case distinctly sets out that the agreement entered into between the parties was that defendants, in error were to pay Pfanz for his “services when the property was. sold.”

This being so, the agent was not entitled to compensation until either a sale was had, or at least an enforceable contract made, signed; by the sellers and purchaser, that would enable the sellers to compel the-purchaser to take the property if he refused to do so.

Neither of these elements were present. A deed was offered by the defendants in error for the property in question to the purchaser, Ohlin-ger, who declined to accept it, for the reason of an alleged defect in-title.

The defendants were never in a position to enforce their rights-against him; therefore, under the contract, no sale having been made, or there being no means of enforcing one, the plaintiff in error under the terms of his contract was not entitled to compensation.

There was no error in the trial court granting the motion of defendants at the close of plaintiff’s testimony to arrest the evidence from the jury and direct a verdict for the defendants.

Judgment affirmed.

Swing and Giffin, JJ., concur.


author: GIFFEN, J,

text:
    TRUSTS AND TRUSTEES.
    [Hamilton (1st) Circuit Court,
    March 7, 1908.]
    Swing, Giffen and Smith, JJ.
    Carrie E. Bonnell et al. v. Frank W. Brown.
    Accounting foe Corporate Stock Held in Trust.
    A transfer of corporate stock, not then paying dividends, by sisters to their brother to enable him to be elected to a salaried position in the corporation, may, in an action for an accounting many years later, when the stock has become valuable, be declared an assignment in trust by parol for the sisters, and in the absence of evidence of express disclaimer of the trust by the brother, or acts necessarily implying disclaimer for ai period equal to that prescribed in the statute of limitations, laches of the sisters or running of the statute cannot he interposed as a bar to the accounting.
    C. W. Baker, for plaintiffs.
    Horstman & Horstman, for defendant.
   GIFFEN, J,

This ease [Carrie E. Bonnell and Allie L. Morris v. Frank W. Brown] involves the title to 2006 shares of stock in the Reading Turnpike Company which originally belonged to the estate of Lloyd S. Brown, deceased, father of plaintiffs and defendant. The plaintiffs claim that they assigned their interest therein to the defendant in trust to enable him to be elected as secretary and treasurer of the company, and that he agreed to account to them for all dividends declared and the proceeds of any sale that might be made of the turnpike; on the other hand the defendant claims that the transfer was absolute upon consideration that he agreed to and did assume the payment of a debt of $4,613.88, owing by the estate of Lloyd S. Brown, deceased, to the turnpike company, which consisted of unpaid and unclaimed dividends to sundry stockholders and held by Brown as treasurer of the company.

The plaintiffs testify positively that on account of their youth and inexperience in business they requested delay in making the transfer in order to obtain the independent advice by their counsel, Judge Conner, but being assured by defendant that he would account to them for all dividends and-proceeds of sale received by him, and relying upon such promise and having implicit confidence in him as their brother, they joined with their mother, as administratrix of the estate, in a transfer of the stock,to the defendant. He testifies on pages 235 and 236 of the transcript of the evidence that negotiations were had with his mother and Mr. John Cooper, president of the company, and that he finally accepted the stock and agreed to assume the debt of the estate. He denies that he had any conversation with his sisters, and it nowhere appears that the mother was authorized or assumed to act for them, or that they were informed of the result of the .negotiations, except as may be inferred from the act of signing the transfer, which is not by them denied and is entirely consistent with their version of the transaction.

The defendant’s own testimony therefore fails to show that the contract with the mother was binding upon the sisters unless after-wards ratified by them, and in the absence of other contradictory •evidence we must bold the proof offered by plaintiffs to be of that clear and convincing character necessary to fasten a trust by parol evidence upon a conveyance absolute.

The defendant pleads laches and the statute of limitations; but lapse of time as between trustee and cestui que trust is no bar, unless the trustee disclaims the trust either expressly or by acts that necessarily imply a disclaimer for a period equal to that prescribed in the act of limitations. Williams v. Presbyterian Soc. 1 Ohio St. 478; Sec. 4974 Rev. Stat.

The turnpike stock was transferred in 1881, and about ten or twelve years thereafter one of the plaintiffs, according to their testimony, made demand of defendant for her share of the dividends, and he replied “you will never get it” and at another time he made no reply to the demand, but took his hat and walked out of the house in a petulent mood, or as the witness expressed it “got mad.” This and •other like testimony of the plaintiffs does not necessarily imply a disclaimer of the trust, and the testimony of the defendant excludes any thought or opportunity of disclaiming as appears on page 237, to wit:

“Q. When did you see your sisters to talk anything about that transaction after it occurred ? A. Well I never had any talk with them, except they would twit me in a sarcastic manner for years after-wards; they knew I wasn’t making any money for years afterwards ■out of it; didn’t until after Mr. Cooper’s death.”

Again at page 240:

“Q. Did either of them at any time until shortly prior to the commencement of this suit ask for any part of the dividends or of the pike' proceeds? A. Never have asked me. The first intimation I ever had that they thought they were entitled to anything out of this pike was a letter I received from Judge Ferris asking me to come to his consultation room in the city. I received that letter during the first week of September, 1904, about three months before they brought this suit.”

The plaintiffs aver in their amended petiton that their brother ■promised that if they would transfer their stock to his name, so that he would appear as the owner of the same, he would pay out of his ■salary any dividends as their father’s estate might be liable for, and that he was then drawing a large salary.

They testify that they understood at that time that he was receiving ■a salary of $1,200 per annum.

We are of opinion therefore that he is entitled to credit himself with such amount as will together with the salary received make an allowance of $1,200 per annum from tbe date of the transfer until demand made in 1893 for an account; and thereafter, having rendered valuable services in the interest of the trust, he should be allowed a credit of such sum as will together with the salary received amount to $600 per annum until 1904, when a portion of the pike was sold; all such amounts to bear interest. He should also account for all dividends and proceeds of sale received by him on account of such stock together with interest on the several amounts from the time received. ¥e find' the amount in the hands of defendant to be accounted for October 3, 1907, $9,904.18, subject to verification by counsel.

Decree accordingly.


text:
    REPLEVIN — SALES.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    H. J. Good v. A. Bender et al.
    Delivery Order for Grain Sold on Floor of Chamber of Commerce Subject to Defenses of Nonpayment.
    A delivery order for grain sold on the floor of a chamber of commerce, the rules of which in the absence of stipulations to the contrary require payment when the grain is weighed, not being a bill of lading, nor negotiable, puts subsequent purchasers upon inquiry as to title, and payment not having been made, the vendor may replevin the property even from an innocent subvendee for value.
    ERROR to Hamilton common pleas court.
    Kelley & Hauck, for plaintiff in error:
    Harmon, Colston, Goldsmith and Hoadly, for defendant in error.
   GIFFEN, J.

The plaintiff as consignee and owner of a car load of oats held by the carrier, the C. IT. & D. By. Co., on September 22, 1905, sold the same to the defendant, A. Bender, for cash on delivery and on weighing, and gave him an order of delivery. The same day Bender sold the ' oats to Maguire & Co. and endorsed the delivery order to them receiving therefor a cheek for $400, or more. The same day Maguire & Co. sold to the Gale Brothers & Co. the ear of oats, and the next day delivered to them the delivery order receiving a check for $250. Thereupon thei Gale Brothers Co. surrendered the delivery order to the C. H. & D. By. Co. and directed the car to be delivered in the yard of the B. & O. S. W. By. Co., which was done. On September 26, 1905, the plaintiff, H. J. Good, commenced an action in replevin upon the ground that Bender did not pay for the oats upon delivery; that he was at the time of purchase insolvent and had no reasonable expectation of being able to pay for them. It is clear that the constructive delivery to Bender was conditional on payment for the oats when received and weighed, and did not as between themselves prevent the plaintiff from reclaiming the oats upon failure to pay on such delivery. Wabash Elevator Co. v. Bank, 23 Ohio St. 311.

But the chief question is whether he can retake them from the Gale Brothers Co., an innocent subvendee, for value.

A delivery order is not a negotiable instrument, nor does it have the same effect as a bill of lading, and even the latter conveys no better title to the assignee than his assignor had at the time of the assignment. Emery v. Bank, 25 Ohio St. 360 [18 Am. Rep. 299].

The rules of the chamber of commerce where the sale was made require, in the absence of a stipulation to the contrary, payment when the grain is weighed, and the subsequent purchasers being members were therefore put upon inquiry as to the title.

In the case of the National Bank of Commerce v. Railway, 44 Minn. 224 [46 N. W. Rep. 342; 9 L. R. A. 263; 20 Am. St. Rep. 566], the second proposition of the syllabus.is as follows:

“Where goods are sold for cash on delivery, and payment is made by the purchaser by check on his banker, such payment is only conditional,, and the delivery of the goods also only conditional; and if the check on due presentation is dishonored, the vendor may retake the goods, even from an innocent sub-vendee for value, unless he has been guilty of such negligence or laches as would equitably estop him from so doing.”

That case which cites with approval the case of Hodgson v. Barrett, 33 Ohio St. 63 [31 Am. Rep. 527], is decisive of this ease, as the testimony discloses no negligence or laches on the part of plaintiff. The delivery order upon which the purchasers seem to have relied was not such evidence or ownership as calls for the application of the rule stated in the case of Eaton v. Davidson, 46 Ohio St. 355, 362 [21 N. E. Rep. 442] : “That of two innocent persons, he must suffer who has placed the other in the power of the wrongdoer;” but on the contrary under the rules of the chamber of commerce it called for an investigation, if there was any doubt concerning the terms of the original contract or of the solvency of the purchaser. The court erred in its charge to the-jury by calling the delivery order and giving it the effect of a bill of lading, and overruling the motion for a new trial upon the ground that the verdict was contrary to the evidence and the law.

Judgment reversed and judgment for plaintiff in error on the undisputed facts.

Swing and Smith, JJ., concur.


text:
    ASSAULT AND BATTERY — DAMAGES.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    Gus W. Menninger v. James Taylor.
    'PBOVOCATION NOT GBOUND BOB AWARDING PUNITIVE DAMAGES.
    In an action for assault and battery, an instruction that if “the conduct of the defendant * * * was the result of provocation * * * the jury may go beyond compensation * * * and add any sum * * * by way of punishment of defendant- and an example to the public”, is erroneous; and notwithstanding the evidence discloses an unprovoked and malicious assault for which the jury under proper instructions could not award less damages, the judgment is reversible.
    Error to Hamilton common pleas court.
    Cogan & Williams, for plaintiff in error.
    Phares, Gusweiler & Rosenberg, for defendant in error.
   GIFFEN, J.

In an action for damages for assault and battery, the following instruction is erroneous:

“If you find from the evidence that the conduct ,of the defendant was not the result of fear of injury to himself, nor such excitement as the circumstances of the case might arouse in the mind of a man of •ordinary good temper, but was the result of provocation or sudden anger brought into action by the occasion, the jury may go beyond compensation for loss and suffering, and may add any sum you may think reasonable by way of punishment of the defendant and an example to the public.”

Provocation may be considered in mitigation of punitive damages, but not as a ground for awarding such damages. Mahoning Val. Ry. v. De Pascale, 70 Ohio St. 179 [71 N. E. Rep. 633].

The condition, of sudden anger may bave been the result of some-unlawful’ act of the plaintiff, and yet under this charge would warrant exemplary damages. The evidence, however, which is all before us,;discloses an- unprovoked and malicious assault, and the jury under proper instructions could hardly award less damages; but the error;seems to be, under the ruling of our Supreme Court, reversible, Globe Ins. Co. v. Sherlock, 25 Ohio St. 50.

Judgment reversed and cause remanded for a new trial.

Swing and Smith, JJ., concur.


text:
    INJUNCTION — MUNICIPAL CORPORATIONS — NUISANCE.
    [Hamilton (1st) Circuit Court,
    February 29, 1908.]
    Swing, Giffen and Smith, JJ.
    Thomas J. Hall v. Pittsburg, C. C. & St. L. Ry.
    1. Remedy op Abutter not Adjacent to Steeet Obstruction but Injuring His, Basement is Condemnation.
    The remedy of one injured in his business by the construction of railway tracks in a street, such damages not being personal in character but resulting from a taking or impairment of his easement therein, is under Sec. 6448 Rev. Stat. to compel condemnation and not under Sec. 3283 Rev. Stat.
    2. Inconvenience Common to General Public not Bnjoinable.
    The construction of railway tracks in, and consequent raising of, the grade of a street, not impairing the immediate access to the lot of a dealer in coal and sand, will not be enjoined because of his being compelled to haul heavy loads over the obstruction thus created, the inconvenience being, of the same kind, though different in degree, from that suffered by the general public.
    3. Continuing Nuisance in Street may be Enjoined.
    The mode of construction of railway tracks in a street, causing the mouth of a sewer to be closed up, the gutters filled in and water turned into the middle of the street, and causing gulleys in front of plaintiff’s lot, materially interfering with his access thereto, constitutes a continuing nuisance for which he has no adequate remedy at law, and injunction will, issue.
    Appeal from Hamilton common pleas court.
    Stephens, Lincoln & Stephens, for plaintiff.
    Maxwell & Ramsey, for defendant.
   GIFFEN, J.

The plaintiff who is lessee with the privilege of purchase of a certain lot of land abutting on Ludlow street in the • city of Cincinnati,, seeks to enjoin tbe defendant from constructing and maintaining certain railroad switches across Ludlow street at the intersection of Front street, and avers in substance that Ludlow street has a descending grade from Front street to the Ohio river and that the tracks already laid, and others to be laid, being considerably above the grade of the street,, will cut off his ingress and egress to and from his lot with teams and wagons loaded with coal, sand and gravel in which he deals.

It is manifest that the damages he would sustain are not 'personal in character, but result from a taking or impairment of his easement in the street; hence he could not, as claimed by counsel- for defendant, bring an action under Sec. 3283 Rev. Stat., but the remedy would, if damages were asked, be under See. 6448 Rev. Stat., to compel condemnation. Lawrence Ry. v. O’Harra, 50 Ohio St. 667 [36 N. E. Rep. 14]; Cincinnati & R. Ry. v. Campbell, 51 Ohio St. 328 [37 N. E. Rep. 266].

Until private property thus threatened with injury is appropriated according to law the remedy may be by injunction. Scioto Val. Ry. v. Lawrence, 38 Ohio St. 41 [43 Am. Rep. 419].

The difficulty arises in determining whether the inconvenience the-plaintiff will suffer differs in kind from that of the general public, and not only in degree.

The proposed construction is not adjacent to his lot, but about 150-feet north of it, and he also has access to his lot through Lawrence street. The evidence shows that the tracks will inconvenience him, not by impairing immediate access to his lot, but in hauling heavy loads up the-grade of Ludlow street and over the obstruction; but the same inconvenience, though less in degree, will be suffered by the public using the-street for a like purpose. So far therefore as the tracks themselves as located will constitute an interference with his hauling on Ludlow street, the plaintiff would not be entitled to an injunction. Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264 [62 N. E. Rep. 341; 87 Am. St. Rep. 600].

1 But it appears also from the testimony that, by the mode of construction, the mouth of the sewer has been closed up, the gutters filled in, whereby the water is allowed to flow in the middle of the street, causing gullies therein in front of plaintiff’s lot. That the west side of' the street adjacent to such lot has been filled in about two feet,' by all of which the access to the plaintiff’s lot is materially impaired. These acts of the defendant are, not wholly unnecessary to a proper laying-of- the tracks, but are specifically forbidden by the city ordinance under-which it is acting, and constitute a continuing nuisance to plaintiff for which he has no adequate remedy at law. The defendant will therefore be enjoined from so constructing and maintaining the tracks as to divert the flow of surface water from the gutters into the middle of the •street, and from maintaining the fill and change of grade of the street in front of plaintiff’s lot. Permission is granted to the plaintiff to file the amendment to the petition heretofore submitted.

Swing and Smith, JJ., concur.


author: SUMMERS, J. ,

text:
    EXECUTORS AND ADMINISTRATORS — PRINCIPAL AND SURETY.
    [Madison (2nd) Circuit Court.]
    Shearer, Summers and Wilson, JJ.

      Butt, Exr. v. Worthington.
    ¡Evidence as to Relation or a Decedent to a Note.
    Where one of the four makers of a note, claiming to be a surety, having ¡paid the balance due after the death of two of such makers, both of whom he alleges were principals as to him, brings an action against the administrator of one of the alleged principals, and issue is joined as to who were principals and who were sureties, the other remaining maker, not being a party to the action, is not incompetent under Sec. 5242 Rev. Stat., to testify as to the relation existing between the deceased and the plaintiff.
    Error to Madison common pleas court.
    Lincoln & Lincoln and Howard Black, for plaintiff in error.
    Durflinger & Emery, for defendant in error.

       Affirmed, without report, Butt v. Worthington, 57 Ohio St. 636.

   SUMMERS, J. ,

The only question presented in this case is as to the competency of Delilah Worthington as a witness. Plaintiff in error claims that she was incompetent under the amendment to See. 5242 Rev. Stat., which provides that if the case is not within the letter, but is plainly within the reason and spirit of the three preceding sections, the principles shall be •applied. We have examined all the cases but think it necessary to notice only two.

In Hubbell v. Hubbell, 22 Ohio St. 208, 221, the court says, “That both the party disqualified and the adverse party referred to must be parties to the record.”

In Cochran v. Almack, 39 Ohio St. 314, 316, tbe court say: Tbe clause of See. 5242 Rev. Stat., under consideration, “calls for tbe application of tbe principles of tbe three preceding sections, only .when the case is not provided for by either of these sections” and “that if a case is provided for, by tbe terms of either of tbe sections, no occasion can arise for invoking tbe spirit and reason of tbe statute to supply tbe omission of its letter or terms.”

Delilah “Worthington is not a party to the record, and being made competent by tbe terms of tbe preceding sections, the latter clause of Sec. 5242 Rev. Stat., has no application.

Finding no error on the record, tbe judgment will be affirmed.

Wilson and Shearer, JJ., concur.