author: Shohl, P. J.

text:
    ALLEGED NEGLIGENCE WHEREBY BARGES*WERE DAMAGED DURING HIGH WATER.
    Court of Appeals for Hamilton County.
    Edward T. Slider v. The Winifrede Coal Co.
    Decided, May 19, 1919.

      Action on Note and Account — Defendant Sets up a Counter-claim, for ■ Damages Based on Plaintiff’s Negligence — Charge of Court with Reference to Right of Plaintiff to Recover — Good Faith in Setting up a Groundless Goimter-claim.

    1. In an action on a note and account to which a counter-claim ha3 ■been set up based on damages suffered through the alleged negligence of the plaintiff, a claim of error on the part of the trial judge in so charging the jury as in effect to deny defendant relief on his cross-petition, unless the note and account sued on were first satisfied, becomes immaterial on review where the jury found that the plaintiff was free from negligence.
    2. Good faith by a defendant in the setting up of a groundless counterclaim does not excuse failure on his part to.perform the contract by which he is bound and which forms the basis of the suit in which the counter-claim is asserted.

      Cobb, Howard & Bailey and Henry L. Bockel, for plaintiffs in error.

      Stephens, Lincoln & Stephens, contra.
   Shohl, P. J.

Edward T. Slider entered into a written contract with the Winifrede Coal Company for his requirements of coal, estimated at 75 barges, for the year beginning April 1, 1916. Slider was to furnish his own barges and was to deliver them to the Winifrede Coal Company at Cincinnati, to be towed to the mines on the Kanawha River in West Virginia and there loaded, and returned to Cincinnati. Slider would then, receive them and take them to Louisville. Delivery was to be in as nearly equal monthly installments as possible from April 1, 1916, to April 1, 1917, subject to river conditions. Tbe parties entered upon the performance of the contract ■ and for the first three months deliveries of coal were made. On July 16,1916, the Winifrede Coal Company had five barges belonging to Slider, one of which was loaded, and the other four were empty. That night there was a rise in the river and a swift current. All the barges at the coal company’s landing, including those of Slider and others, were swept down the river and lost or damaged. A controversy arose and a series of letters was interchanged, Slider claiming that the coal company was liable for the loss and damage to his barges, and the coal company denying liability on the ground that the loss was due to an unavoidable accident.

During the controversy the company held Slider’s note for $1,175 due August 11, 1916. He also owed them for other coal delivered under the contract and on an open account for towing and repairs. On August 10, 1916, Slider wrote stating:

“My note which you hold that is due tomorrow will not be paid until this controversy between you and I is settled.”

He had previously sent an itemized bill for approximately $3,200 which he claimed was part of his loss. He made clear his position that he would not pay for the coal that he had received under the contract until the Winifrede Coal Company would pay or allow his claim for damages for loss and injury to his barges. The coal company replied that unless he paid his note and account they would not deliver any more coal. Thereafter, the note went to protest and the Winifrede Coal Company brought suit, setting up the note, the amount due on the open account for coal and for towing and for repairs, and also claiming damages for breach of contract.

The defendant filed an answer and cross-petition admitting the indebtedness to the plaintiff in substantially the amount claimed, excepting the claim for damages for breach of contract and a few minor items of the account. The counter-claim consisted of two causes of action. First: damages to his barges in the flood and the expenses incident thereto;’ and, second, damages for breach of contract for refusing to furnish coal after August 11th.

There was a jury trial, at the end of which the jury rendered a unanimous verdict for the plaintiff, the Winifrede Coal Company, in the sum of $4,794, substantially the amount claimed, and finding:

‘ ‘ That there is nothing due to the defendant, Edward T. Slider, on the claim set forth in his cross-petition. ’ ’

Judgment was rendered in favor of the plaintiff and defendant prosecutes error. Error is predicated upon the charge of the court in several respects. The defendant contended that he did not commit a breach of contract by refusing to pay his note and refusing to pay for the other coal delivered, if at the time of such refusal he had a valid claim against the plaintiff for the loss of his barges. The court took the opposite view and refused to give defendant’s special charge No. 2, which is as follows:—

“You are instructed that the omission or refusal of the defendant to pay his note for the sum of $1,175.72 given to the plaintiff for barges of coal delivered under the contract in this case or to pay or give his note for other coal delivered under said contract was not a breach of the contract which would justify the plaintiff in refusing to make further deliveries thereunder, if you find that such omission or refusal was due to the fact that prior’ thereto, plaintiff negligently permitted certain of the defendant’s barges to be lost and damaged while in plaintiff’s possession and control for the purpose of being loaded by plaintiff with coal in the performance of the contract between the plaintiff and defendant for the sale and purchase of said coal; that by reason of such loss and damage, the plaintiff was then liable to the defendant in an amount in excess of the amount which defendant owed plaintiff under said contract; and that defendant notified plaintiff that his refusal or omission to pay for such previous deliveries was because of plaintiff’s said liability to him, and that he would pay for any further deliveries of coal under said contract and would adjust and pay any difference that might be found to be owing by him for the previous deliveries when the matter of plaintiff’s liability to him for the loss of and damage to said barges was adjusted, and that this was all done by the defendant in good faith.”

Instead the court gave plaintiff’s special charge No. 2, which is:—

‘ ‘ If the jury find that the defendant failed to pay at maturity his note for coal already delivered under the contract, and failed to pay for the other barges of coal which he had received, and indicated his intention to not pay therefor, according to the terms of the contract, until the plaintiff would pay or allow his claim against the plaintiff for the loss of his barges in the flood, then I charge you that under the contract the plaintiff had the right to refuse to make further deliveries of coal and is not liable for breach of contract by reason of such refusal. ’ ’

These rulings in substance denied defendant relief on his counter-claim, if he refused to pay his note and account, even though he may have had a valid claim against the plaintiff in in an amount equal to such note and account. It is not necessary to pass upon the correctness of the court’s position in this regard. The question of negligence of the plaintiff in caring for defendant’s barges was left to the jury on the evidence under instructions that are not complained of, and the jury found that there never was any liability on the part of plaintiff for the loss of Slider’s barges. Since it is now established that he had no valid claim, what his rights would have been had his claim been valid are immaterial. Even if the trial court was in error as to the rights of the parties in ease the plaintiff was guilty of negligence in the care of defendant’s barges, such error was. not prejudicial to defendant because there was no negligence. Contractors’ & Builder’s Supply Co. v. Alta Portland Cement Co., 4 C.C.(N.S.), 225, 230 (affirmed without report 72 O. S., 655).

The court also refused defendant’s special charge No. 1 to the effect that if the defendant in good faith claimed that plaintiff was liable to him for loss and damage to the barges, and notified plaintiff that this was his reason for not paying, the omission or refusal to pay the note did not constitute a breach of contract which would justify plaintiff in refusing -further deliveries. The assertion of a groundless counter-claim will not excuse a defendant from the performance of his obligation under a contract merely because the counter-claim is asserted in good faith. Contractors’ & Builders’ Supply Co. v. Alta Portland Cement Co., 4 C.C.(N.S.), 225, 230; Creswell Ranch & Cattle Co., v. Martindale, 63 Fed., 84.

The contract contained the following stipulation:—

"The terms of payment being an essential part of this agreement, failure on the part of the purchaser to comply with the above terms shall give the Winifrede Coal Company the right, at its option to either cancel any unfilled part of this or any other order or contract for the sale of coal between the parties hereto, or to suspend shipments until, the arrearages shall have been made good.”

Such stipulation was usual in contracts in the Sixth Federal Circuit since the decisions in the cases of Cherry Valley Iron Works v. Florence Iron River Co., 64 Fed., 569, and Monarch Cycle Co. v. Royer Wheel Co., 105 Fed., 324. In the absence of such a stipulation, the federal courts for this circuit held that the failure to pay for an installment unaccompanied by a renunciation of the agreement did not justify the seller in refusing to deliver, but held that the express provision of the contract changed the rights of the parties in this respect. Such a stipulation as that contained in the agreement under consideration is in substance an agreement that failure to pay for goods delivered shall constitute a material breach. But it is something more. It is a condition of the obligation of the seller to make deliveries. By its terms the seller is relieved from continuing to deliver goods when the buyer fails to make payment. Southern Coal & Coke Co. v. Bowling Green Coal Co., 161 Ky., 477, 480; Winchell v. Scott, 114 N. Y., 640.

There is nothing in Section 8425 of the Code that prohibits such a stipulation. Indeed, its terms must be construed as giving it effect. The failure of Slider to comply with the contract was intentional and deliberate. It constituted a material breach of the agreement on the part of the defendant. See Williston on Sales, Section 467, page 810. The court, therefore, was right in refusing to submit to the jury the question of good faith of the defendant in making his contention. The judgment will be affirmed.

Hamilton and Cushing, JJ., concur.


source: Caselaw Access Project

author: Farr, J.

license: Public Domain

text:
    DEGREE OF CARE REQUIRED AT A RAILWAY CROSSING.
    Court of Appeals for Richland County.
    (Heard by Judges Powell, Houck and Farr, Judge Farr of the Seventh District sitting in the place of Judge Shields.)
    The Baltimore & Ohio Railroad Company v. Anna B. Kately.
    Decided, February 17, 1919.

      Action to Recover for Injury at Railroad Grossing — Duty of Locomotive Engineer Approaching Grossing with Train — Effect of Want of Knowledge as to Location of Grossing — Effect of Objects at Roadside Obstructing View but Not on Railroad Lands.

    1. In an action to recover for personal injuries sustained in a collision between a railroad train and an automobile at a railroad crossing, the trial court instructed the jury as follows:
    “The defendant had the right to run its train over said crossing at any speed consistent with safety which was necessary in the conduct of its business in the usual and ordinary manner, taking into consideration however all the circumstances surrounding that crossing affecting the traveling public and having a due regard for the safety of the public using the crossing.”

      Held — Error on Authority of Railroad Go. v. Kistler, 66 O. S., 341.
    2. A traveler on a public highway approaching a railroad crossing is not excused from looking and listening for trains or the exercise of. ordinary care, even though he is not aware of such crossing, if the railroad is obvious to anyone reasonably exercising his ordinary powers of observation.
    3. It is error for a trial court to instruct the jury that in determining whether or not a plaintiff exercised ordinary care in approaching and going upon a crossing, that they might take into consideration the fact that the plaintiff was a stranger in that locality and was not familiar with the location and position of things and objects thereabout, if the railroad and the sign giving notice of such railroad are so obvious that a person in the exercise of ordinary care would observe the same.

      4. In an action to recover for personal injuries sustained in a collision between an automobile and a train upon a railroad crossing, where there is testimony tending to show that trees, weeds, brush or other objects obstructed the view of such railroad, it is error for the trial court to refuse to charge that a railroad company has no control over the trees, weeds, brush and other objects not on its right of way or own land, although they may obstruct the view of its lines, and that a company is not required to take such things into consideration in approaching a crossing with one of its trains.

      McBride c& Wolfe, for plaintiff in error.

      Brucker, Voegele ds Henkel, contra.
   Farr, J.

The action in the court below was to recover for personal injuries sustained by the defendant in error at what is known as the Park avenue west crossing of the Baltimore & Ohio Railroad Company’s lines by the Lincoln Highway, immediately west of the city of Mansfield, on or about the first day of May, A. D. 1917.

The amended petition alleges that on or about the above date, defendant in error was riding with her husband, Edward S. Kately, and their four-year-old child, in an automobile belonging to said husband, who was the driver thereof; that they were 'making a trip from their home in the city of Chicago, Illinois, to the city of New York, over the Lincoln Highway, and in the course of said journey eastward reached the crossing of said highway and railroad company’s tracks, at what is known .as Park avenue west near the city of Mansfield; that she was in the exercise of ordinary care, maintaining a lookout and observed a railroad crossing ahead, and seated in the front seat of said auto and when about thirty feet from said crossing, she looked both north and south; that the- view to the south was obstructed by trees, underbrush and growth, and an embankment along the defendant’s right-of-way, but that she continued to look until she reached said crossing; that she did not, in the exercise of ordinary care, see the train of the defendant company approaching; that at that time the automobile was being operated in a careful and proper manner, and was under the full control and management of the husband, and was being operated at a speed of not more than ten miles per hour; that there is a sharp curve in the line of said railroad a short distance south of said crossing, rendering the same dangerous and unsafe, all of which was unknown to plaintiff, but which was well known to defendant company, and that said company continued to maintain said crossing in such dangerous condition and to operate its trains over the same in a careless, negligent and wanton manner; that at the time of the accident and injury to plaintiff, defendant carelessly, negligently and wantonly operated a freight train on and over said crossing at not less than twenty-five miles per hour, without any signal by bell, whistle or otherwise; that there was no flagman or watchman at said crossing, and that the electric signal bell there maintained did not give any alarm or warning of the approach of said train; that the defendant company, through its servants and emplo3res, in the exercise of ordinary care, could, or should have seen the dangerous position of plaintiff, but that it operated its said locomotive and cars wantonly and recklessly on to said crossing, without any decrease of speed, and without warning, striking said automobile, breaking and overturning the same and injuring plaintiff by pinning her underneath, by which she was severely cut, lacerated and bruised on and over her face and head, shoulders, back, chest, abdomen and limbs, injuring her nervous system, fracturing her right arm, permanently impairing its movement, fracturing the right clavicle, and resulting in numerous other injuries of a lasting and permanent character, for which damages are asked in a substantial sum.

To this amended petition an amended answer was filed, admitting in the first defense the non-essential allegations and tendering a general denial.

As a second and alternative defense it is averred that if the defendant, its officers, agents or employees, were negligent, that through neglect and want of care, the said Anna B. Kately at the time contributed to whatever injury she received by not looking or listening for the approaching train, and in not calling the attention of the driver to said crossing or train, and was negligent in the manner in which she attempted to cross defendant’s tracks, and that she took no precaution in looking to her own safety.

To this answer a reply, making, in substance, a general denial was filed, and the issues then being joined, trial to jury was had, which resulted in -a verdict and judgment for plaintiff, from which error is prosecuted in this court.

There are a number of assignments for error to the admission and rejection of testimony, all of which have been carefully examined and which it is not necessary to discuss here in detail; it is, therefore, sufficient to say that no error sufficiently prejudical to the substantial rights of the plaintiff in error is disclosed which would authorize or warrant a reversal of the judgment.

A number of assignments for error are urged to the charge of the trial court to the jury, and the first is as follows:

“In the use of the crossing their rights are'co-ordinate and equal; reasonable care and prudence must be used and exercised by each in the use of same; each must use his own right to cross that he shall not unreasonably interfere with the rights of others to pass over, having in view the nature, necessities of the method of locomotion and power of control of the locomotion peculiar to each. Both are bound to exercise such prudence as an ordinarily prudent person would exercise under the same or similar circumstances.”

In the case of Railroad Co. v. Kistler, 66 O. S . 335, Burket, J., in discussing the charge of the court, criticizes the following:

“The jury are instructed that the defendant railroad company had, at the time of the collision complained of, the same right to use that portion of the public highway over which its track passed at the point of collision that the public had. Its rights and those of the plaintiff were mutual and reciprocal, and the railroad company and the plaintiff were bound to have due regard each for the safety of the other.”

And then observes as follows:

“This charge was too strongly in her favor. While in law she had the same right to use the crossing that the railroad company had, the different modes of such use constitute a difference in right. As she could stop with her team within a few feet, and the train could not stop short of many rods, it follows of necessity that when both were approaching the crossing at the same time, the train had the right of way, and it was her duty to stop and let the train pass before attempting to cross. Commentaries on Law of Negligence by Thompson, Section 1611. Continental Improvement Company v. Stead, 95 U. S., 161, 163. Such would be the conduct of all men of ordinary care under such circumstances. To rush ahead and attempt to pass, knowing the train to be close at hand, is not the conduct of ordinarily prudent persons, but is gross negligence.”

The above instruction as given in the instant case is subject to criticism when compared with the principle announced in the above case of Railroad Co. v. Kistler; however, since the court adds:

“Having in view the nature, necessities of locomotion and power of control of the locomotion peculiar to each, both are bound to exercise such prudence as an ordinarily prudent person would exercise under the same or similar circumstances — ” the instruction is not considered sufficiently erroneous to authorize a reversal, in view of that which follows on that subject. However, it would have been far preferable for the corut to have followed the course so clearly indicated in the above case. It is indeed a serious question whether the jury sufficiently comprehended what is here permitted to become the “saving clause” of the instruction. The danger was that the jury might conceive that it was just as much the duty of the defendant to stop its train as for the auto to stop until the train would pass; however, the doubt will be resolved in favor of a presumption that the jury properly understood the instruction.

The court further instructed the jury that it would be negligence for the railroad company to permit or suffer shrubbery, trees or embankments to exist on its right-of-way, so as to materially obstruct the view of the track or approaching trains by persons about to cross the track at a public crossing

The jury should have been instructed that such trees, shrubbery and embankments, if upon the right-of-way, might be considered by them as a circumstance in determining whether or not the company was guilty of negligence in approaching the crossing at the rate of speed and in the manner in which it approached the same with its train in the instant ease.

The charge on the subject of wanton negligence is objected to, but it fairly states the law, and is not therefore objectionable.

Plaintiff’s third request to charge is criticised because it is claimed that it prescribes a rule of conduct for one approaching a crossing, but does nothing more; that is, Mrs. Kately may have been ever so careful in her approach, but extremely negligent in going upon the crossing before a rapidly approaching train. If she was negligent in going upon the crossing in front of such train, believing that she could cross in safety, and the engineer, after seeing her, was negligent in not lessening the speed or stopping his train, believing that she would cross in safety, then the proximate cause of the injury was the miscalculation and negligence of both, and there could be no recovery, unless the enginer after he saw and realized her danger had time to slacken the speed or stop his train and prevent the injury;. however the request, while incomplete, is not substantially prejudicial.

Again, objection is urged to that part of the charge which reads as follows:

‘ ‘ The defendant had the right to run its train over said crossing at any speed consistent with safety which was necessary in the conduct of its business in the usual and ordinary manner, taking into consideration however all the circumstances surrounding that crossing, affecting the traveling public and having a due regard for the safety of the public using the crossing.

It is contended that this instruction makes it the paramount duty of the engineer to safeguard persons and property upon the crossing, while it is declared as the law in the Kistler case that his first duty is to take proper care for the persons and property in his charge. The above instruction given in the instant ease is practically verbatim with the one criticised and held to be erroneous in above case of Railroad Co. v. Kistler, 66 O. S., 341, as follows:

“ ‘The defendant had the right to run the train at the time and place of this collision at any speed consistent with the safety which was necessary in the conduct of its business in the usual and ordinary manner, taking into consideration, however, all the circumstances surrounding that crossing, affecting the traveling public and haying a due regard for the safety of the public using the crossing.’
“From what has already been said as to the speed of trains, it will readily be seem that the latter part of this charge, all after word ‘manner,’ is erroneous.”

Therefore, measured by the rule fixed in the Kistler case, the foregoing instruction in the instant case was absolutely erroneous and prejudicial because it imposes a higher duty upon the defendant company than is required by law.

Again, error is predicated upon plaintiff’s seventh request given before argument, and found -at page 151. It reads as follows:

“7th: In determining whether or not the plaintiff exercised ordinary care in approaching and going on to said crossing, you may take into consideration the fact that the plaintiff was a stranger in that locality and was not familiar with the location and position of things and objects thereabout.”

The foregoing is obviously erroneous, because whether a stranger or not, and whether familiar with the crossing or not, still the plaintiff was bound to exercise ordinary care for her own safety. The fact that her husband was driving the auto did not excuse her from making reasonable and prudent effort to see for herself that the crossing was safe.

Hoag v. Ry. Co., 111 N. Y., 199; Brickel v. Ry. Co., 120 N. Y., 290; Bronner v. R. R. Co., 179 Fed., 577, 3 syl. Here was a large sign, on the bank near by on plaintiff’s side of the road. “Banger, Rail Road Grossing 500 Feet,” and the white cross arms at the crossing in the distance. If she could see these warnings — and she certainly could had she looked— and did not see them, she is chargeable with knowledge just the same. R. R. Co. v. O’Riles, 65 O. S., 458; Ry. Co. v. Swartout, 14 C. C., 582; R. R. Co. v. Dump, Admx., 21 C.C.(N.S.), 300.

In the case of Allen v. Ry. Co., 105 Mass., 77, Morton, J., at page 79, observes as follows:

“The fact that the plaintiff did not know that there was a railroad there is no admissible excuse, because it is obvious that any man who had his sight, and used it must have seen that he was approaching a railroad crossing. If the plaintiff did not see it, it shows conclusively that he was not using the circumspection and care which every prudent man does and is required to use in traveling. It is absurd to suppose that a traveler using ordinary care could, in the daytime and with-nothing to interfere with his vision, get upon this railroad crossing without seeing it.”

And again, in Herandt v. Ry. Co., 78 N. J. L., 190, 4th syllabus, it is held:

“A traveler on the highway approaching a railroad crossing is not relieved from the responsibility of looking and listening for trains by reason of his ignorance of the existence, of such crossing, if the presence of the railroad is obvious to any one reasonably using his ordinary powers of observation.”

Therefore the plaintiff though a stranger, was bound to exercise ordinary care for her own welfare, and the jury might well have understood that a less degree of care was required of plaintiff, because she was a stranger and if a less degree, how much less? The danger of the instruction becomes readily apparent; it was therefore erroneous and prejudicial. Some other objections were made to the charge which it is not considered necessary here to discuss, nor the question of “joint enterprise.” Neither will any opinion be expressed at this time on the weight of evidence, which issue was not pressed in argument.

The last assignment of error which it is considered necessary to discuss here is the refusal of the trial court to give the defendant’s first request to charge. It reads as follows:

“As a railroad company, has no control over the trees, weeds, brush, shrubbery and the like not on its right-of-way, it is not required to take such things into consideration when approaching a crossing.”

The foregoing is assuredly the law of Ohio as announced in Railroad Co. v. Kistler, 7th paragraph of the syllabus, which reads as follows:

“As a railroad company has no control over the trees, weeds, brush, shrubbery and the like, not on its right-of-way, it is not required to take such things into consideration when approaching á crossing.”

■ Why the foregoing was not given is not apparent. However, it was not, and its refusal was prejudicial error in view of the testimony disclosed by the record.

It follows, therefore, that the judgment must be reversed for error in the charge of the court below, and it is so ordered.

Powell and Houck, JJ., concur.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, April 15, 1919.


author: Gorman, J.

text:
    TAXABILITY OF MONEY ON DEPOSIT IN£ANOTHER STATE.
    Court of Appeals for Cuyahoga County.
    Judges Jones, Gorman and Hamilton of the First District sitting in place of the judges of the Eighth District.
    The Cleveland & Western Coal Company v. O’Brien, Treasurer.

    Decided, July 2, 1917.

      Taxation — Money Belonging to an Ohio Corporation Deposited in Another State — Such Funds are Credits With Their Situs in Ohio and Subject to Taxation in Ohio.

    1. Ordinarily money deposited in bank to credit of a corporation or individual and subject to check by the depositor creates the relation of debtor and creditor between the bank and the depositor, and moneys deposited in a bank subject to check' are credits or intangible property.
    2. It is proper for the Legislature to provide what things shall be money and what shall not be money for the purpose of taxation.
    3. Section 5326, General Code, does not provide that deposits in a bank subject to be withdrawn in money on demand by a depositor are 0 tangible property.
    4. All credits have their situs at the residence of the owner, and not at the place where the credit is carried on the books held by the person entitled to hold the credits.
    5. Moneys of an Ohio corporation deposited in a bank in another state, and subject to be withdrawn on demand, are to be considered for the purposes of taxation as money; but nevertheless are intangible property and have their situs for the purposes of taxation at the place of the principal office of the company in Ohio.
    6. Section 5406-3, General Code, has no application to property located outside the state of Ohio, and does not affect moneys and credits held outside of the state, but belonging to individuals or corporations in the state.
    Appeal to the Court of Appeals for Cuyahoga County.
    Error to the Court of Appeals for Cuyahoga Coounty.

      G. F. Taplin, for the coal company.

      Samuel Doerfler, Prosecuting Attorney, and T. S. Dunlap, Assistant Prosecuting Attorney, for 0 ’Brien, county treasurer.

       Affirmed by the Supreme Court, 98 Ohio State, 14.

   Gorman, J.

Judgment was rendered in favor of the treasurer of Cuyahoga county in the court below. A demurrer to the petition was sustained in the court of common pleas, and the matter comes up both on error and appeal to this court.

The plaintiff, a corporation under the laws of Ohio, filed its petition in the common pleas court of Cuyahoga county, setting out that it is a corporation organized under the laws of Ohio and having its principal place of business in the city of Cleveland in said county, and that the defendant was the duly elected, qualified and acting treasurer of the county of Cuyahoga and state of Ohio. Plaintiff says that in its business of buying and selling coal it has acquired and operated a dock in the city of Milwaukee, county of Milwaukee and state of Wisconsin; that said dock is operated as a distinct department of the plaintiff’s business and that all dealings connected therewith are kept separate and distinct from the other business of the plaintiff; that all coal put upon said dock by the plaintiff is charged up to said dock as though it were a separate entity from the plaintiff and that its operating costs and all expenses in connection with its operation are kept separately, regular boobs being kept to cover all purchases and sales in connection therewith, said boobs being kept in the Milwaukee office; that all remittances to the plaintiff arising from the sale of dock coal are made to the Milwaukee office, endorsed by the manager of said office, and deposited to the credit of the plaintiff in the account carried in the First National Bank of the city of Milwaukee; and that said dock business has its own profit and loss account and in every way is operated as a distinct and separate business transacted by the plaintiff in the city of Milwaukee, Wisconsin. The plaintiff further says that it duly made and filed its tax return with the proper authorities of Cuyahoga county, Ohio, covering the property owned and held by it, on the day preceding the second Monday in April, 1916, which according to the statute it should list in Cuyahoga county; that the statement accompanying the tax return so filed by plaintiff showed that the plaintiff had on deposit in the First National Bank of Milwaukee, Wisconsin, on said tax-listing day the sum of $43,850.98; and that the auditor of Cuyahoga county, without the consent and over the protest of plaintiff has placed said sum of money on the duplicate as being taxable property of the plaintiff in Cuyahoga -county, and the defendant herein, as treasurer of Cuyahoga county, has entered upon his books as due from plaintiff by way of tax on said sum of money the sum of $681.86, which sum he threatens to and will collect of this plaintiff unless he is enjoined from doing so. Plaintiff further says that under and by virtue of Sections 5404 and 5406-3, General Code of Ohio, the county auditor is without right or authority to list as the property of this plaintiff as taxable in Cuyahoga county said sum of $43,850.98 on deposit in Milwaukee on tax-listing day, and the county treasurer is without right or authority to assess or collect any tax thereon. The petition further avers that said officers maintain that said bank deposit is taxable under Section 5328, General Code of Ohio, but plaintiff avers that said section of the code is not applicable to the Milwaukee deposit, and plaintiff says further, that, if said section should be held applicable, it is unconstitutional and void, being contrary to the provisions of the Ohio and Federal Constitutions and amendments thereto. Plainiff further says that it has tendered to the defendant the sum of $723.39, being the amount of tax lawfully and admittedly due from this plaintiff on the property returned by it, and upon which it is lawfully liable to be taxed, but that the defendant herein has refused to accept said sum, claiming that the plaintiff should pay said additional sum of $681.86, the tax assessed upon the Milwaukee bank deposit, which amount of tax plaintiff claims is 'assessed without right or legal authority. Plaintiff further says that it is now able, ready and willing and now offers to pay said amount of $723.39, or any other sum that may be claimed as the tax lawfully due on the property returned for taxation of the value of $46,520. It prays for a temporary restraining order enjoining the defendant as treasurer of the county of Cuyahoga, state of Ohio, from enforcing the collection from it of said tax on said Milwaukee bank deposit, and from adding any penalty thereto; and that upon a final hearing said order may be made permanent, and for such other and further relief as plaintiff is in equity entitled to.

As before stated, the demurrer to this petition was sustained by the common pleas court, and the plaintiff not desiring to plead further the plaintiff’s petition was dismissed, and it was “considered that the defendant go hence without day and recover of the plaintiff his costs,” to all of which the plaintiff excepted, and appealed the case to this court.

It is immaterial whether the question raised be decided upon appeal or error proceedings, inasmuch as there are no facts stated in the record to be considered by the court except those pleaded in the petition.

The question to be determined is whether or not the money of the plaintiff company deposited at Milwaukee is subject to taxation in Cuyahoga county, Ohio. We are of the opinion that it is subject to taxation and that the court of common pleas did not err in sustaining the demurrer to the petition.

Ordinarily money deposited in a bank to the credit of a corporation or individual and subject to check by the depositor creates the relation of debtor and creditor between the bank and the depositor, and moneys deposited in a bank subject to check are credits of intangible property. By the provisions of Section 5326, General Code, the term “money” or “moneys” for the purposes of taxation, ‘ ‘ includes any surplus or undivided profits held by societies for savings or banks having no capital stock, gold and silver coin, bank notes of solvent banks, in actual possession, and every deposit which the person owning, holding in trust, or having the beneficial interest therein, is entitled to withdraw in money on demand. ’ ’

Now it is perfectly proper and legitimate for the Legislature to provide by legislation what things shall be money and what shall not be money for the purpose of taxation, but it will be noted that this Section 5326 does not provide that deposits in a bank subject to be withdrawn in money on demand by a depositor are tangible property. It needs no citation of authorities to support the proposition that all intangible properties — credits— have their situs at the residence of the owner, and not at the place where the credit is carried on the books held by the person entitled to hold the credits.

Notwithstanding the fact that for the purposes of taxation these funds of the plaintiff at Milwaukee are to be considered as money, they nevertheless are intangible property, and have their situs in Cleveland, the residence of the plaintiff company. Every corporation in Ohio for the purpose of taxation is as much a person as an individual person, and its residence is fixed by statute as the place where its principal office is located in the state.

Under the provisions of Section 5328, General Code, “All real or personal property in this state, belonging to individuals or corporations, and all moneys, credits, investments in bonds, stocks, or otherwise, of persons residing in this state, shall be subject to taxation, except only such property as may be expressly exempted therefrom. Such property, - moneys, credits, and investments shall be entered on the list of taxable property as prescribed in this title.”

It is not claimed in this case that the moneys on deposit in Milwaukee are exempt by virtue of any law in Ohio which exempts them. The claim made by council for plaintiff is that under Section 5404, General Code, a corporation is required to list for taxation moneys and credits of the corporation within the state at the true value in money. This Section 5404 is found in Chapter 4 of Title I, Part Second, relating to taxation, and it prescribes the method whereby the officers of a corporation shall make their returns for taxation to the proper officer of the county. In substance it provides:

"The president, secretary, and principal accounting officer of every incorporated company, except banking or other corporations whose taxation is specifically provided for, for whatever purpose they may have been created, whether incorporated by a law of this state or not, shall list for taxation, verified by the oath of the person so listing, all the personal property thereof, and all real estate necessary to the daily operations of the company, moneys and credits of such company or corporation within the state, at the true value in money.”

The construction to be placéd on this section we think is that all real estate and all personal property, all moneys and all credits belonging to a corporation within the state of Ohio, shall be listed for taxation at their true money value. Of course tangible property located outside of the state of Ohio can not be taxed in the state of Ohio: but intangible properties, such as credits and moneys on deposit in a bank located outside of the state and owned by individuals or corporations in this state, we hold have their situs in the state at the place of residence of the owner, and are to be there taxed.

It would be inequitable and unjust to hold in a ease like this that a corporation which has money on deposit outside of the state will not be liable to list this money for taxation, where as an individual similarly situated — in the state and having money on deposit outside the state — would be required to list this money for taxation. It is immaterial what this money may be called, whether it be designated money or a credit, it belongs to the plaintiff, corporation, and is subject to the order of the plaintiff corporation, and is intangible in its nature by reason of the fact that the moneys deposited in a bank are not kept separate and apart, in trust for the depositor, but these deposits constitute between the bank and its depositor the relation of debtor and creditor and make these deposits a credit, even though the legislature itself for the purpose of taxation classifies moneys in bank subject to be withdrawn as “money.”

It is urged that Section 5406-3, General Code (106 O. L., 249), throws some light upon the question under consideration. That section provides:

‘ ‘ In determining the location of property for the purpose of the two preceding sections (that is, for the purpose of listing the same for taxation) all moneys and credits used in or appertaining especially to a separate business transacted by an incorporated company at a particular place, shall be deemed to be located at such place where the business is transacted, and moneys and credits not used in or appertaining especially to such separate business transacted at any particular place shall be deemed to be located at the principal place of business of such company.”

This statute was enacted for the benefit of the state of Ohio, and the various counties, in order that the various towns, municipalities and other subdivisions of the state might have the benefit of receiving the taxes from property located in the subdivisions of the state. And this rule was made to apply to moneys and credits as well as to tangible property. But this section would have no application to property located outside of the state of Ohio, and was never intended to affect moneys and credits, held outside of the state of Ohio, but belonging to individuals or corporations in the state of Ohio, as will be apparent by a reference to the two preceding sections, 5406-1 and 5406-2, General Code.

For the reasons stated the demurrer will be sustained, and a decree may be entered in favor of the defendant.

The error proceedings will be dismissd.

Judgment for defendant.

Petition in error dismissed.

Jones, P. J., and Hamilton J., concur.


text:
    COPYWRITING A DESIGN DOES NOT SECURE MONOPOLY RIGHTS.
    Court of Appeals for Hamilton County.
    Louis Buob and Theodore Scheu, a Partnership Under the Firm Name of Buob & Scheu, v. The Brown Carriage Company, The Wheel Top & Hardware Company, W. W. Buob, Manager of The Wheel Top & Hardware Company, and Split Hickory and Wheel Top Company.
    Decided, June 23, 1919.

      Unfair Competition — Adoption by a Competitor of Similar Methods— Not Barred by Copyright — Directions to a Purchaser as to how Measurements should be Made — Not the Palming off of Goods as Those of Another.

    1. A manufacturer of unpatented articles who has devised a method of making measurements and who has copyrighted a catalogue, circular or advertisement containing a diagram giving instructions to prospective customers as to the manner of taking such measurements, does not thereby acquire the exclusive right to use the methods set forth in the copyrighted publication.
    2. In an action for unfair competition, one using such method will not be enjoined in the absence of allegations that he was passing off or attempting to pass off on the public his goods or business as the goods or business of the plaintiff.

      Galvin & Bauer, attorneys for plaintiffs.

      Froome Morris, attorney for defendants.
   Shohl, P. J.

This case is heard on appeal and is submitted on demurrer to the petition.

The plaintiffs are manufacturers of buggy tops, automobile tops and automobile supplies and the defendants are carrying on a similar business. . Plaintiffs allege that in the conduct of tlieir business, they devised, invented and prepared a certain method or form for a quick and accurate measurement of an auto top cover,, and caused a drawing thereof to be registered for copyright; they have also invented, prepared and devised a drawing known as “Auto Top Cover-Touring Car” and have registered the same in the registry of copyrights of the United States; they have also prepared a drawing known as an “ order chart,” likewise registered and copyrighted; they have expended large sums of money in the development of the designs and drawings, and by reason thereof they have acquired quite reputation among owners, dealers and repairers of automobiles throughout the United States, Canada and Europe, resulting in large profits. The petition alleges that the defendants are competitors of plaintiffs, and did copy and appropriate the said devices and drawings, and have issued advertising matter containing cuts and drawings which are similar and flagrant imitation of those of plaintiffs, copies of which are attached to the petition as exhibits; defendants have sold and are selling large quantities of goods and merchandise by the use of said device, which it is alleged constitutes an infringement of plaintiff’s trade-marks and copyrighted cuts, to plaintiff’s great damage; defendants have'diverted from the plaintiffs large sources of revenue, which they would otherwise have obtained. Irreparable damage is alleged.

It is admitted that in so far as any action relating to right under the copyright laws of the United States is concerned, the federal courts have exclusive jurisdiction. See 9 Cye., 960. The basis of this action is said to be unfair competition.

Unfair competition, in its essence, consists in passing off, or attempting to pass of, on the public, the goods or business o'f one person as the goods or business of another. 28 A. & E. Encyc., 2nd Ed., 409; 38 Cyc., 780; Lippman v. Martin, 5 O.N.P., 120; Safe-Cabinet Co. v. The Globe Wernicke Co., 19 C.C.(N.S.), 31 — 3 App., 24, modified and affirmed, 92 O. S., 532; Drake v. Glessner, 68 O. S., 337; French Bros. Dairy Co. v. Giacin, 12 O. C. C. (N.S.), 134. Affirmed 84 O. S., 483.

In the case at bar it is not charged that there was anything done which would enable the public to confuse the goods of the plaintiffs with those of the defendants. The design is not used by plaintiffs to identify the goods as those of plaintiffs’ manufacture. The real matter of complaint is not that defendants have copied plaintiffs’ design, but that the defendants in the effort to sell their goods have adopted the same method pursued by plaintiffs to carry out their sales, and to enable purchasers to specify with particularity the goods which they desire. The similarity is one of method. The article which plaintiffs sell is not patented. They have no monopoly in the manufacture of auto tops. The principle involved is well stated by Lacombe, J., in the case of the National Cloak & Suit Co. v. Standard Mail Order Co., 191 Fed., 528, as follows:

“I am entirely in accord with defendant in the proposition that a manufacturer of unpatented articles can not practically monopolize their sale by copyrighting a catalogue containing illustrations of them.' From a comparison of the illustrations upon which complainant relies, the fair inference would seem to be that defendant makes some garments which are identical with complainant’s and offers them -for sale. If this be so, he can not be deprived of the right to issue a catalogue of the garments he offers, with illustrations showing what they look like, provided that his illustrations are drawn from garments themselves, and not copied from complainant’s copyrighted catalogue. ’ ’

In the case of the S. S. White Dental Co. v. Sibley, 38 Fed., 751, plaintiff’s assignor devised and copyrighted a chart showing illustrated sections of teeth in connection with numbers, so arranged as to convey information respecting their character, size and shape and having thereon certain auxiliary lines and figures. This conveyed information that could not be obtained by any old method of illustration. Defendant made a similar chart in which his teeth were illustrated in the same manner as complainant’s. It was held that the plaintiff’s copyright did not cover the plan or arrangement shown by the chart and entitled him to no relief.

In Burk v. Burial Association, 3 U. S. District Court, Hawaii, 388, complainant, who had devised a plan and scheme for a burial association and had copyrighted the book setting forth his plan, was held not entitled to the exclusive right to use the methods set forth in the copyrighted publication. The decision follows the leading case of Baker v. Selden, 101 U. S., 99, where the distinction is made between patent rights and the rights of a person securing a copyright. The copyright gives no ownership in the process described in the boob, but gives the owner the exclusive right to multiply and dispose of copies. See also Hamilton Mfg. Co. v. Tubbs Mfg. Co., 216 Fed., 401, 411; Ehret v. Pierce, 10 Fed., 553.

The law encourages competition and the up to. date merchant is bound to advertise his goods in such a manner that the public can buy them. If he shows a picture of his goods in an advertisement or circular, he can not prevent others from doing the same with their goods. If he makes clothes for men or women, he has a right to show them by diagram how they can order their clothes so they will fit. The giving of directions to a purchaser how to make his measurements before stating the size automobile top he wishes, does not constitute palming off of his goods as those of another merely because he uses the same method in having the automobile measured.

The allegations of the petition do not state a cause of unfair competition and the demurrer is sustained.

Hamilton, J., concurs. Cushing J., not participating.


author: Powell, J.

text:
    POWER OF APPOINTMENT UNDER A MUNICIPAL CHARTER.
    Court of Appeals for Muskingum County.
    The State of Ohio, ex rel Silas W. Bradshaw, v. Walter R. Culbertson.
    Decided, September Term, 1918.

      Charter Cities — Creation of Municipal Courts Therein — Authority to Appoint a Municipal Court Cleric — Constitutional and Statutory Courts.

    Where a city charter, supplemented by an act of the General Assembly, creates and constitutes a municipal court, such court is not a constitutional but rather a statutory court, and authority to appoint its clerk is vested in such appointing officer or board as is prescribed by the city charter, and not in the appointing officer or board prescribed by the supplementary statute.
   Powell, J.

This is an action in qno warranto originally commenced in this court to determine the right to the office of clerk of the municipal court of the city of Zanesville, this county.

The said city of Zanesville adopted a charter for its local self government under the provisions of the amended constitution of the state of Ohio, making provision for that purpose. Among other things this charter so adopted provides a municipal court for said city and creates the offices of judge and clerk of said court. It also prescribes a'method by which such officers shall be selected. The relator, Bradshaw, claims to be entitled to the office of clerk by selection under the method provided by said city charter.

The defendant, Culbertson, also claims title to said office but upon different grounds from the claim made by the said relator. His claim is that the municipal court of the said city of Zanesville does not derive its existence or its authority from the charter of said city so adopted, but- from an act of the Legislature providing for a municipal court for said city, passed March 21, 1917, after said city charter had been adopted. This act upon which said defendant relies provides that a clerk of said court shall be chosen, but does not prescribe the method.

Defendant was appointed as clerk of said court by the judge thereof, duly elected and qualified in accordance with the provisisions of said charter and said act of the General Assembly. The relator was appointed as such clerk by the Mavor of said City of Zanesville pursuant to the. authority given him for that purpose by the charter of said city, and he was selected from the eligible list of candidates provided for said city under its civil service regulations.

No question is made by either plaintiff or defendant as to the form or manner of either of said appointments. Both seem to have been regularly made under the claim as made by each of said claimants and pursuant to the right to make such appointment as claimed by them respectively. If the municipal court of Zanesville is a charter court, deriving its existence and authority from the city charter so adopted, then the relator’s appointment as such clerk being regular under the provisions of said charter, he would be entitled to exercise the duties and receive the emoluments of such office. But if said court is a legislative or constitutional court and derives its existence and authority solely from the Constitution and the act of the General Assembly creating such court with inherent power to select its own clerk, then the claim of defendant to be entitled to said office is good since such appointment was regularly made under this construction of the power and authority of said municipal court.

The charter of said city was adopted by a vote of the electors of said city in November, 1915. Such charter is authorized by Article XVIII of the Constitution of the State of Ohio as it now exists. By this article of the state Constitution:

“Municipalities shall have authority to exercise all powers of local self government and to adopt and enforce within their limits such local, police, sanitary and other similar regulations as are not in conflict with the general laws.” Section 3, Article XVIII.

This provision of the Constitution would seem to authorize the establishment of a charter court with authority and jurisdiction limited to the exercise of the “powers of local self government,” and if such court is created solely by the charter of said city then the provisions of such charter ought to prevail as against a later act of the General Assembly in conflict with the same.

In case of a conflict between two acts of the General Assembly on the same subject matter, the provisions of the later act prevail as being a later expression of the legislative intent; but in a conflict between a municipal charter legally adopted and an act of the General Assembly on any subject provided for in said charter, the provisions of the charter ought to prevail within the territorial limits of the municipality on all matters within its authority and jurisdiction. Such act may be supplementary to and amendatory of such city charter and construed with the charter form a complete scheme for the exercise of judicial functions within the limits of said city.

We are of the opinion that such should be the rule of construction in eases of this kind. The authority and jurisdiction of the municipality charter should first prevail, then the legislative act creating a municipal court so far as the same is not in conflict with said charter should supplement and complete the judicial scheme in so far as its provisions are in harmony with the charter provisions. In case of conflict the charter provisions should always prevail as being the organic law relating to the' government of said city, adopted by the residents thereof.

Applying these rules to the case in hearing, we find that the city of Zanesville has by its charter supplemented by the act of the General Assembly of March 21, 1918 (107 O. L., 722), a complete scheme for the administration of the judicial functions so far as may be necessary to enforce and carry out the local self government of the city; that such scheme creates and constitutes a municipal court for said city within the authority of said Section 18 of the Constitution; and that the charter of said city creates the office of clerk of said court and provides a method by which such office may be filled; that such municipal court is not a constitutional court authorized by the Constitution itself and is without inherent power to appoint its own clerk, but has only such power and such authority as are expressly given it by the act of the General Assembly creating or attempting to create such municipal court, or such authority as is necessarily implied in order to carry out the purpose for which such charter was adopted and such municipal court created.

We think that the relator, Bradshaw, was regularly appointed by the proper appointing authority of said city, and that he has the right and title to the office of clerk of said municipal court, and that the defendant, Culbertson, is without any right or title to said office, and so finding and holding, judgment may be entered in favor of the said relator and against the said defendant.

Judgment accordingly.

Houck and Shields, JJ., concur.


author: Hamilton, J.

text:
    ASSESSMENTS ACCORDING TO BENEFITS.
    Court of Appeals for Hamilton County.
    Wilhelmina Cormany, et al. Plaintiffs, v. The City of Cincinnati et al, Defendants. Louisa M. Weimer et al, Plaintiffs, v. The City of Cincinnati et al, Defendants. Anna Young et al, Plaintiffs, v. The City of Cincinnati et al, Defendants.
    Decided, March 24, 1919.

      Streets — Improvement of under the Benefit Plan — Exact Equality in the Matter of Assessment Not Always Attainable — Courts will Not Interfere unless Benefits are Subsantially Exceeded.

    1. Where the evidence as to the necessity of a street improvement is conflicting and fails to show an abuse of discretion on the part of council in ordering the improvement, a court will conclude the improvement was necessary.
    2. An assessment according to benefits, which has been in all respects regularly made and was the cause of no complaint from abutting owners until after it was laid and had become payable, will not be enjoined where the evidence goes no further than to suggest that the special benefits may have been somewhat exceeded.

      E. F. Alexander, and Walter G. MuMhauser, for Plaintiffs. Saul Zielonka, City Solicitor, and Frank E. Bowman, Assistant City Solicitor, contra.
   Hamilton, J.

These actions were brought by plaintiffs seeking to enjoin the” collection of special assessments for- street improvements on Spring Grove avenue, McLean avenue and Division street. The claim is made by plaintiffs that the improvements were of no special benefit to plaintiff’s abutting property, and that the assessments were greatly in excess of any special benefits conferred.

The improvements consisted of repaving the streets with granite blocks, together with the necessary curbs, gutters and drains. Twenty-five per cent of the whole cost of the improvement, less the cost of intersections, was assessed against the abutting property on Spring Grove avenue and McLean avenue; and thirty-three and one-third per cent, of the whole cost, less the cost of intersections, was assessed against the abutting property on Division street.

It will be noted that the three streets were improved under separate proceedings of the city council, and separate suits were brought to enjoin the collection of the assessments, which suits were heard together in this court. The question presented is one of fact as to whether or not the assessments substantially exceed the benefits conferred. We say substantially exceed for the reason that exact equality of taxation is not always attainable and for that reason the excess of the cost over specific benefits, unless it be of a material character, ought not to be regarded by a court of equity when its aid is invoked to restrain the enforcement of special assessments. Walsh v. Barron, Treas., 61 O. S., 15; Norwood v. Baker, 172 U. S., 269.

The undisputed evidence is that the streets improved were wide, busy thoroughfares, with heavy traffic, and the abutting properties were in the main substantial dwellings and business properties; that Spring Grove and McLean avenues prior to the improvements were paved with brick, which brick paving had been in use somewhat in excess of fifteen years; that Division street was prior to the improvement paved with boulders, which had been in use for about twenty years.

Plaintiffs’ evidence was to the effect that the streets were in good or fair condition prior to the improvements and that the improvements were unnecessary. The evidence of the city tended to show the streets to have been bady worn; full of pot holes; and required constant repairs, entailing large expenditures of money, without material, beneficial results. Council, however, determined the improvements to be necessáry and the evidence fails to clearly show an abuse of dicsretion on the part of council in ordering the improvements. We must, therefore, conclude that the improvements .were necessary and consider the case from that view' point. McMaken v. Hays et al, 10 C.C.(N.S.), 38, affirmed in 78 O. S., 412.

Plaintiffs’ witnesses testified that without exception no benefit whatever accrued to any of the abutting property from the improvements and in some instances damage resulted.

The evidence of the city, given in the main by expert real estate brokers and dealers, was that the property was specially benefited by the improvements to the amount of five dollars per front foot on the basis of lots 100 feet in depth. This am mint named was considerably in excess of the assessment.

It is difficult indeed for the court to reconcile the evidence in* the ease. It would be contrary to all human experience to conclude that such an improvement would have no beneficial result whatever to abutting property. Such improvements always tend to specially benefit property in the immediate vicinity of the improvement and is bound to enhance the value of the abutting property as a whole. On the other hand, it would seem that the amount of special benefit fixed by witnesses for the city, to-wit: the sum of five dollars per front foot, is necessarily an arbitrary amount on which to base calculation of benefits. Under this state of the evidence, we are unable to find the assessments to be substantially in excess of the benefits conferred. While the evidence may justify the view that the assessments somewhat exceed the special benefits conferred, it is not clear that they are sufficiently in excess of the special benefits as to warrant interference by the court under the rule of law applicable to the case. The following cases are in point:—

“When the power to tax in any particular case is challenged, the citizen has the right to be heard in court as to the legality of the tax, but when the power to tax is conceded and the complaint is only as to the valuation, a valuation made in good faith and according to the best judgment of the taxing officer will not' be disturbed by the courts in the absence of gross mistake.” Haggerty et al v. Huddleston, Hubbard & Co., 60 O. S., 149, at page 166.
“Where an assessment, according to benefits for a street improvement has been in all respects duly and regularly made, and all the proceedings are complete, and no complaint is made by property owners until an action is commenced to enjoin the collection of such assessment on the ground that it exceeds the benefits, the court will not grant such relief, unless the action of the council or other municipal authorities has been fraudulent or tantamount to fraud or the assessment is so excessive as to clearly and unquestionably exceed the special benefits to said property.
“In such cases the court does not sit as a court of appeal to review the action of the municipal authorities and make a new assessment, upon the evidence, according to its judgment.” Price et al v. City of Toledo et al, 4 C.C.(N.S.), syl. 2 and 3, page 57.
‘ ‘ There is no jurisdiction in a court of equity to reduce a sewer assessment which is not grossly excessive.” King v. City of Dayton, 10 C.C.(N.S.), 522.

Also see Prentice et al, v. City of Toledo, 11 C.C.(N.S.), 299, where the court say in the second paragraph of the syllabus:—

‘ ‘ The potential as well as the present use of property is to be taken into account in making assessments for public improvements.”

It not being clearly shown by the evidence that the special assessments substantially exceed the benefits conferred, the in-' junction will be denied.

Shohl, P. J. and Cushing, J., concur.


author: Houck, J.

text:
    STREET CAR PASSENGER THROWN AND INJURED WHILE ALIGHTING.
    Court of Appeals for Richland County.
    (Judge Farr of the Seventh Appellate District sitting in place of Judge Shields.)
    The Mansfield Public Utilities & Service Company v. Sue Wolfe.
    Decided, January 10, 1919.

      Negligence — Street Gar Passenger Not Chargeable with Contributory Negligence xohere Thrown and Injured by Premature Starting of the Car — Conductor Must Know all Passengers are in Places of Safety before Starting Gar — Charge of Court.

    Contributory negligence can not be charged against a street car passenger who was thrown and injured by the premature starting of the car from which he was attempting to alight at a regular stop for the discharge of passengers.

      McBride & Wolfe, for plaintiff in error.

      Mabee & Anderson, contra.
   Houck, J.

This ease comes into this court on errors alleged to have been committed in the trial of the case in the common pleas court. The parties here stand in the reverse order from where they stood in the court below.

The plaintiff below sets forth in her petition that on the 26th day of February, 1917, she was a passenger on the ears of plaintiff from Shelby to Mansfield, Ohio; that it was customary for passengers to alight from said ears just north of where the tracks of the Erie railroad cross S'pringmill street in the city of Mansfield, Ohio, and while attempting to alight from said car and while upon the steps of said car and about to step down therefrom on the street, the defendant’s servants and agents who were in charge of said ear negligently and without any notice or warning whatever, started the same suddenly forward thereby throwing plaintiff violently to the pavement and as a result of, same breaking her arm and causing her other injuries from which she suffered pain, etc. Plaintiff prays for damages in the sum of $5,000.

The defendant answered, being in the nature of a general denial, and for a second defense alleged that plaintiff was guilty of contributory negligence which was the cause of her injuries, if any she received.

The plaintiff filed a reply in which she denied the charge of contributory negligence. Upon the issues thus raised trial was had and a verdict in favor of plaintiff below was returned by the jury in the sum of $750. The usual motion for a new trial was filed, heard and 'overruled.

The errors relied upon and presented in oral argument to this court by counsel for plaintiff in error are as follows:

First. That the trial judge erred in his charge to the jury.

Second. That the verdict is excessive.

Third. That the verdict is against the weight of the evidence.

We have made a careful examination of the record and considered all of. the claims of alleged error referred to in oral argument; also all of the errors claimed by plaintiff in error as set forth in the brief of its counsel.

Coming now to the first alleged error we will say that we have read the charge of the trial judge with much care. It is claimed that the court erred in charging as follows:

“But if after the car came to a stop the plaintiff proceeded to leave said car and while it was stopped about to alight therefrom, and the car was then moved forward and such movement precipitated her off the steps of the car, then she would not be chargeable with negligence in attempting to alight therefrom.”

One of the conceded facts in this case is that the car in which the plaintiff was riding had come to' a full stop, and that the conductor alighted therefrom and went to the railroad crossing, and while there motioned the motorman of the street car to proceed; that after the conductor left the car the plaintiff followed him and started down the steps to alight therefrom, and that while attempting to do so the conductor, who was several feet in front of the car in question, signaled the motormán of said car to move forward and just at that moment plaintiff was thrown to the pavement.

It is urged by counsel for plaintiff in error that said charge is errqneous, because it required too high .a degree of care upon the part of the conductor, and that it eliminated entirely any knowledge of the conductor as to the wishes of the- passenger to alight.

We’think this question has ben fully settled by a rule laid down in Thompson on Negligence, Section 3520, which reads:

“The high degree of care which the law puts upon the carriers of passengers is not fulfilled in the ease of a street railway carrier unless its servants before putting the car. in motion see and know that all passengers in the act of alighting have succeeded in doing so in safety and that no passenger is in such a situation as to be put in peril by the starting car * *
“It is the duty of the conductor before putting a car in motion to see and know that no passenger is alighting or otherwise in a position which would be rendered perilous by starting the car. ’ ’

Applying this rule of law to the conceded facts in this case, we feel that the trial judge committed no error in charging the jury as he did. We might further add that we are of the opinion that the charge as a whole was clear and that it covered every question involved in the instant ease and we find no error in this regard.

As to the second ground of error that the verdict is excessive, we will say that in view of all of the facts in the case and which were passed upon by the jury, and there being nothing in the record that indicates that the same was rendered from prejudice or passion on the part of the jury, we will not disturb the verdict upon the claim that it is excessive.

As to the third ground of alleged error, that the verdict is manifestly against the weight of the evidence, we are bound to find and do find that this claim is not well taken.

It therefore follows from the observations already made that this court will not disturb the verdict of the jury, and the judgment entered thereon must stand. Judgment affirmed’.

Powell and Farr, JJ., concur.


text:
    REVIEW IN CONTEMPT PROCEEDINGS.
    Court of Appeals for Hamilton County.
    Harry H. Ragsdale v. Jennie W. Ragsdale.
    Decided, November, 1917.

      Contempt — Review Provided where the Finding is “Guilty,” and also where “Not Guilty” — Such a Case not Appealable — Custody of Children — Orders Pertaining to may be Made in a Court of Equity.

    Direct statutory provision for review of contempt proceedings where the party has been found guilty affords ground by analogy for prosecution of error in cases where there has been a refusal tó punish for contempt..

      Hunt, Bennett & Utter for plaintiff.

      W. A. Rinchhoff contra.
   Hamilton, J.

A party found guilty of contempt may have his ease reviewed on error under Section 12146, General Code; and while no direct provision in the statute is made to review a refusal, to punish for contempt by error proceedings, by analogy it would seem that this remedy may be invoked upon such refusal. But contempt proceedings being quasi-criminal in their nature, can not be considered chancery cases, and such proceedings are not therefore appealable, but may be reviewed on error only.

Questions of custody of children are cognizable in a court of equity, and, when properly before such court, the court will make necessary orders for the support of such children; but no such question is before the court in the instant case.

The motion to dismiss the appeal is sustained.

Jones, P. J., and Gorman, J., concur;