text:
    (Sixth Circuit—Lucas County, O., Circuit County,
    Oct. Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    EMMA J. ASHLEY v. THE CONANT BROTHERS FURNITURE COMPANY, AND A. BURNSIDE STURGIS.

      New party, made under claim of lien — Proof of lien failing, jurisdiction of court to adjudicate the claim in that case.

    Where an action is brought on an account and a mechanic’s lien, another party claiming a mechanic’s lien may be brought in, and the fact that the court' afterwards finds that such new party has no mechanic’s lien, does not oust the court of jurisdiction to adjudicate xn such case the question of the amount owing to such new party on his unsecured account.

      Action on account and mechanic’s lien triable by jury, and not appealable.

    An action upon an account, and a mechanic’s lien, the issue being as to amount due upon the account and as to whether the mechanic’s lien was filed in time, is to be tried by a jury, and is therefore not appealable, and the question whether the mechanic’s lien was filed in time, is one that should be submitted to a jury unless waived.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

The petition in this case was filed for the purpose of reversing a judgment of the court of common pleas in regard to an amount found by the jury in favor of Sturgis upon his cross-petition, as against his co-defendant, Emma J. Ashley, and the question arises largely upon certain alleged extra work which had been performed by Sturgis, who was the architect for the Ashley building, known as The Monticello.

The case was argued of course upon the facts, but we find, upon examination of the record, that the bill of exceptions was not filed until some sixty-one days after the motion for a new trial had been overruled, and the consequence is that any errors which may have arisen upon the charge of the court — for that matter was discussed some — and upon the amount of the verdict, cannot be reviewed by this court.

It was suggested that the court of common pleas had no jurisdiction to hear this case, The original action was commenced by Conant Bros, against Mrs. Ashley, to recover a certain amount that they claimed for work done upon the building — for the furniture and furnishings in the . building of The Monticello, a suit upon a mechanic’s' lien. The record shows that Sturgis was not made a party to this suit originally, but it says that, he was ordered to be made a. party, and this seems to have been done, and he may have entered his appearance; at any rate, he filed an answer and cross-petition in which he set up that he bad performed services as architect for the Ashleys upon The Monticello, and that his services amounted to $3,000; and had also, at the request of the Ashleys, furnished plans and specifications for an additional story and for certain mantels and other matters of that kind, of the value which he sets forth in his answer and cross-petition.

For a second cause of action, he alleges that he had caused to be filed in proper form a sworn account for the purpose of obtaining a mechanic’s lien in accordance with the statute. The Ashleys take issue with him upon the amount of his claim, and also upon the question as to whether or not he had filed his alleged lien within the proper time. The record shows that the case came on to be heard upon the issues joined between the parties, and a verdict was rendered in favor of Conant Brothers for a certain amount, and a judgment was rendered upon that and also upon the mechanic’s lien, and the amount ordered to be paid, and, in default of payment,the premises were to be sold, etc. Subsequent to that, the record states that the case came on to be heard before a jury; and in that case the jury returned a verdict upon the issues joined and a verdict in favor of Sturgis for a certain amount,and that subsequently,the court heard the question as to whether or not the mechanic’s lien had been filed in time, and found that it had not, and rendered judgment against Sturgis — finding that he had no lien upon the premises. To that judgment Sturgis took an appeal. Ashley took up his case upon petition in error, so far as the judgment and the verdict of the jury is concerned, and it is insisted now that the court had no jurisdiction of that case, and had no right to hear it; that the action was simply an action at law upon an account,and that in the original case, being between Conant Bros, and the defendant, Ashley, upon a mechanic’s lien, the court had no right to bring in Sturgis and allow him to try a case at law upon an account against Mrs. Ashley.

We do not take that view of the case; we think that Sturgis was properly made a party under the claim that he had a mechanic’s lien, and the mere fact that the court subsequently found that he had no .lien upon the premises — by reason of the fact that he had not filed his mechanic’s lien in time- — -did not oust the court of its jurisdiction; the case was properly heard, and the judgment of the court of common pleas in that matter will be affirmed.

When the appeal case was called, we suggested to counsel that the court had no jurisdiction in the case, for the reason that the case was not appealable, and suggested that counsel might take time to look the case up, if he saw fit to do so, and argue the question. Counsel stated • that he did not care to argue the question, although he thought that the case should not be appealed. I would seem that outside of the court, and beyond this proceeding, some arrangements have been made whereby Sturgis has been secured — at least some, satisfactory measures have been ta'lien in regard to the case, and the parties do not care a great deal as to this case, whether the appeal is sustained or not. We are of opinion that this appeal ought to be dismissed- — -that it was never properly taken. Our understanding of the law is,that where a case of this kind is brought into court, upon a petition upon an account,and a mechanic’s lien is set up,and an issue taken upon the question as to amount due upon the account and as to whether the mechanic’s lien was filed in time,that the case is to be tried by a jury,and is therefore not appealable, and that the question whether the mechanic’s lien was filed in time,is one that may be, and should be submitted to a jury upon the issues joined,unless the parties waive a jury. We think we are sustained in that by a case in the first circuit, in a case substantially like this, and for the reasons stated the appeal in this case will be dismissed.

C. 8. Ashley & F. E. Wright, for Plaintiff in Error.

E, 8. Holbroolc, for Defendant in Error.


source: Caselaw Access Project

author: Haynes, J.

license: Public Domain

text:
    (Sixth Circuit, Lucas County, O., Circuit Court,
    Sept. Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    THE CITY OF TOLEDO v. MICHAEL HIGGINS.

      Defective sidewalk — Injury—Liability of city — ■
    Where part of a sidewalk on a street is at grade, and part not, requiring a step of seven inches between them, and this condition has remained for a long time, and in consequence a person passing in the night-time is injured, the city is liable for the injury.
    The city is bound to see that the sidewalks conform to the grade of the street.
    Error to the Court of Common Pleas of Lucas County.
   Haynes, J.

A petition in error is filed for the purpose of reversing the judgment of the court of common pleas,in a case wherein Michael Higgins was plaintiff, and the City of Toledo was defendant. It is a personal injury case. The plaintiff says in his petition that on or about the 14th day of September, 1893, he was walking along certain sidewalks on one of the streets of this city, and that he fell ana broke a limb. What occasioned him to fall, as he sets forth, was, that there was a drop in the sidewalk of some 16 or 18 inches at a point about mid-way between the streets at the end of the sidewalk; that is to say,the drop was about at the middle of the block. That in passing along in the early evening or about dark, he came to this point.

There had been a step down of sixteen inches,broken perhaps, by an intermediate step or fall of] about seven inches. There was at this point, the testimony tends to show, a tree standing so that there was some shadow there. There was some testimony tending to show that the man was intoxicated, and some testimony tending to show that he was a man of perfectly upright character, and not in the habit of getting intoxicated. There was plenty of testimony on both sides tending to support the contention of each party.

The real question is,and the question which we are called upon to decide, whether or not the jury were warranted in finding that the city was guilty of negligence in permitting this sidewalk to remain in the position that it was with this drop down that I have spoken of. The court was asked to charge as follows:

“That the city is not guilty of any negligence because the plank walk was higher than the stone walk; that the city had a perfect right to permit the plank walk to be higher than the stone walk, if it saw fit to do so; but the only question that does affect the duty of the city to this plaintiff is, whether or not, knowing that the plank walk was higher than the stone walk, it has provided a reasonably safe step to enable the plaintiff to come off of the plank walk onto the stone walk in safety.”

The testimony tended very strongly to show that there had been a step placed about seven inches high, made of plank 2x12, resting upon proper supports. The court refused to charge that request, and submitted the question to the jury.whether the city was guilty of negligence or not; and the jury found in favor of the plaintiff, and against the city. In the judgment of this court the jury did right. It would appear from the circumstances of the case that a grade had been established in that street,and that when this stone sidewalk was put down, it was put down to some established grade, but that the plank sidewalk was not at grade, and the city had permitted it; and this state of affairs had continued for-quitéa long time — for a good many months; at any rate, it had permitted the plank sidewalk beyond the stone sidewalk to remain so as to leave this step there. We are of opinion that the city had no right to do that. It had established the grade of the street, and it was bound to see that the sidewalks conformed to that grade. If there was no grade of the street at that time, it was the duty of the city to establish a grade, and see that the sidewalks were uniform. We have sustained verdicts against the city where the sidewalks were no more dangerous than this; and we can scarcely conceive of any more dangerous thing than this sidewalk t.o travelers at night, with a precipitous step right in the middle of the walk. We are not disposed to disturb the verdict,and upon these facts the judgment will be affirmed, without penalty.

G. F. Watts, for Plaintiff in Error.

Hamilton & Kirby, for Defendant in Error.


author: Adams, J.

text:
    (Fifth Circuit, Licking County, O., Circuit Court,
    Oct. Term 1896.)
    Before Pomerene, Adams and Summers, JJ.
    (Judge Summers, of the Second Circuit, taking the place of Judge Kibler.)
    BALTIMORE & OHIO RAILROAD COMPANY v. McCAMEY.

      JR. JR. employe becoming a member of JR. R. Relief Association —Acceptance of benefit by widow no bar to action for damages by her as administratrix.

    Where a R. R. employe becomes a member, of the railroad employes’ Relief Association, and he' being killed, his widow as the beneficiary designated by him in his contract with the association, accepts from the association the benefit provided for in such contract, she is thereby not barred as administratrix of the deceased from bringing an action under Sec. 6135 Rev. Stat. for damages against the Railroad Co. for the benefit of the children and herself as widow of the deceased. And whether at the final distribution in the Probate Court, after having received a certain sum of money, she could receive any further sum, is a matter which, if need be, must be determined and litigated between her and the R. R. Co. as to that fund, or her Bhare of it.

      Jury trial — Request of special verdict — Time when request must be made.

    Where a party after che close of the argument, and before the charge to the jury, asked for a special verdict upon all issues in the case, by having several questions answered, which are proper to be submitted to the jury and are pertinent to the issues made by the pleadings and by the evidence, it is error for the court to refuse on the sole ground that the request comes too late. The Statute, Sec. 5201 Rev. Stat., does not fix a time, or stage of the trial, when the special interrogatories shall be submitted, and the court can not add to the statute by fixing such time.

      Papers to be taken by jury into their retirement.

    It_is a matter of discretion with the trial court to determine what . papers shall be taken by the jury to their room on their retirement. It was therefore not reversible error for the trial court to permit the jury in this case to take with them the time card and book of rules of the R. R. Co.

      Fellow Servant — R. R. employe acting as baggage-master and agent of Express Co. — Liability of R. R. Co. for injury through negligence of R. R. emptloyes.

    Where an ^xpress agent on a railroad train is injured through the negligence of the employes of the railroad, under the law in Ohio,he would be entitled to the rights of a passenger as regards the liability of the Railroad Co. for damages. But where he at the time was acting in the capacity of baggage master under the employ and control of the Railroad Co, and, in addition thereto, was acting in the capacity of express messenger for the Express Co., under an arrangement between the Railroad Co. and the Express Co., and he was required by the nature of his employment to occupy a place in the baggage and express car, which was used for both purposes, and while there the injury was sustained, he would only be entitled to the rights of an employe as regards the liability of the Railroad Co. for such injury.
    Error to the Court of Common Pleas of Licking County.
   Adams, J.

This action was originally commenced in the year 1889; although the case was tried on the pleadings, the amended petition and the answer thereto which were filed in June and August, 1894, respectively.

It is an action by McCamey, as administrator, to recover for the wrongful death of Wilson, for the benefit of the next of kin; and the next of kin in this case are his wife and two minor children.

The petition is lengthy, and, perhaps, as far as this opinion is concerned, the material facts in it can be much abbreviated. After alleging the incorporation of the defendant railroad company, and the operation of its railroad from this city to Sandusky, in Brie county, and through the village of Ankenytown where the accident occurred, the petition alleges that David Wilson, at ihe time of the accident, September 14th, 1888, was in the employ of the United States Express Company as expressman; and that at the same time he was also in the employ of the defendant railroad company as baggageman; that he was in the car in which his duties were performed,on a passenger train,No. 9, which was a north bound train from Newark. From Newark, to the point where the accident occurred, the general direction of the road is northerly, That Elroy Moore was the conductor on that passenger train, and was in charge of the train, and in control of Wilson, as baggageman. That a man by the name of Herron was the conductor on the south bound train, a freight train. That these trains had received orders to pass at Ankenytown; and that the freight train, in alleged violation of the rule of the company, instead of going into the switch or siding at the northerly end of the siding, had come down past the siding, and had backed in at the lower end of the siding. The petition sets out at great length very numerous items of negligence, which, it is claimed, resulted in the collision between the passenger and freight train, and which resulted in the death of Wilson.

The acts of negligence are:

“That the conductor of the defendant’s freight train, Ira Herron, was a careless and negligent person, and wholly unfit and incompetent to discharge the duties of a conductor.

“That defendant was negligent in employing and retaining said conductor.

“That said conductor negligently backed said freight train on to said siding at Ankenytown from the south end of the same.

“That said conductor negligently failed to have the headlight of said freight train covered.

“That he neglected to adjust the switch for the main track.

“That he neglected to-lock and make the same safe.

“That he failed and neglected to give any signals, by lights or otherwise, to passenger train No. 9.

“That said headlight was negligently left uncovered; the. switch unadjusted or locked, or safe, and that no signals were given to the passenger train.

“That the switch-stand, lever and bar were negligently constructed, and without proper lights and signals and attachments for safe locking and adjusting the same.

“That said conductor of said freight train negligently left William Hanzey, a brakeman, to close the switch; that said Hanzey left the same in an unsafe condition, and not properly adjusted.

‘rThat said Hanzey was an incompetent and unsafe person for that purpose.

“That the defendant negligently employed and kept said Hanzey in its employ.

“That the conductor and engineer of the passenger train neglected to run said train past the siding at Ankenytown with care and caution, and negligently ran the same without any care or caution; without checking or stopping the same, and at a high, excessive, negligent unsafe and dangerous rate of speed, and negligently disregarding the fact that the locomotive headlight was uncovered, and the absence of safety signals at said switch, and carelessly and recklessly ran against said switch, the same not having been properly adjusted and locked for the main track, and collided said passenger train with said freight train, and killed said David Wilson outright.”

The amended petition was filed June 27th, 1894. The answer to the amended petition was filed on the 30th day of August, 1894.

The answer ' contains two defenses. The first defense, after making numerous formal admissions, denies all allegan tions of negligence. It is on the issue made by the amended petition and the first defense to the answer that the case was tried, but there is a question made on the demurrer to the second defense of this answer to the amended petition. That second defense alleges at considerable length the organization of what is known as The Baltimore & Ohio Employes’ Relief Association, incorporated in Maryland. The answer alleges that the defendant railroad company contributed to the funds of that Association, and bore all of the expenses of its management. That on February 21st, 1887, Wilson became a member of that Relief Association, and became bound by the rules, constitution and by-laws of the Association. That he agreed, by his contract of membership, that certain dues to the Association were to be deducted from his wages. The further allegation is made that this contract of membership was a Maryland contract. That by reason of his membership, in case of injury, he himself, or in case of death, the beneficiary named by him should be entitled to three times the benefit due to a member of the lower or third class of beneficiaries. In the case of Wilson, three times that benefit would be the sum of fifteen hundred dollars.

The answer further alleges that on October 17th, 1888, Amanda A. Wilson, the widow of David Wilson, under this contract of membership, demanded of the relief association, ■and received from it, fifteen hundred dollars, as beneficiary, and released the railroad company, claiming to act both for herself and for her two minor children.

As I said before, a demurrer to this defense was sustained, •and that is assigned as error here.

Under the former pleadings in the case,, the defendant railroad company had brought Mrs. Wilson into the case aa a party defendant, and, by its additional answer, bad attempted to litigate, as between the railroad company and the plaintiff and Mrs. Wilson, practically the same matters that are alleged in this answer to the amended petition. But on October 12th, 1892, as appears from the transcript, the action was dismissed as to Mrs. Wilson, and the additional answer of the defendant was withdrawn, and it is claimed, on behalf of counsel for defendant in error, that by that withdrawal — voluntary withdrawal by the defendant of this additional answer — the defendant waived any question that it had under this sceond defense. As I said before, that was in October, 1892.

On June 27th, 1894, the plaintiff filed the amended petition upon which this action was tried, and thereafter, on August 30th, this answer was filed. A demurrer to that defense was sustained by the court below. So that question is here for determination, and assigned as one of the grounds for error.

Now, this action is brought under section 6134, which provides:

“Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued), have entitled the party injured to maintain an action and recover damages in respect thereof; then, and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter.”

Section 6135 further provides:

“Every such action shall be for the exclusive benefit of the wife, or husband, and children; or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative of the deceased person; and in every action the jury may give such damages, not exceeding in any case ten thousand dollars, as they may think proportioned to the pecuniary injury resulting from such death, to the persons respectively for wjhose benefit such action shall be brought.”

Then follows the limitation as to the time within which the action shall be commenced, and then the section contains the further provision:

“The amount received by such personal representative, whether by settlement or otherwise, shall be apportioned among the beneficiaries,unless adjusted between themselves, by the court making the apportionment, in such manner, as shall be fair and equitable, having reference to the age and condition of such beneficiaries, and the laws of descent and distribution of personal estates left bv persons dying intestate.”

A case which, so far as I can discover, is directly in point on this question, was decided by the Supreme¡|Court of Nebraska, in 1894, the case of the C., B. & Q. R. Co. v. Wymore. There the widow had received a certain sum of money in release of her claim, and then afterwards, having been appointed administratrix, she brought an action, as administratrix, on behalf of herself and her children; and the Court held:

“The deceased’s contract did not,of itself, waive a right of action; (2), that neither that contract,nor the acceptance of the money or release of liability by the widow, operated to bar a right of action by the administratrix on behalf of the children; (3), that her voluntary acceptance of the benefit and release of the company, did not operate to bar any action for her own benefit.” 58 N. W., 1120.

On the other hand it is claimed that under these sections of the statute which I have quoted, the right of action belongs entirely to the personal representative. That the fund must be distributed under the direction and under the authority of the probate court. We think that it is settled in Ohio that in the absence of this statute, the next of kin —'neither the widow nor her children — could maintain an action in her own name for the loss resulting by the death of the husband and father. So that, when she released, she released no right of action that she might have had against the railroad company, because she had none. The law did not give her any right of action; and whether or not, in the final distribution in the probate court — whether after having received a certain sum of money, she could receive any other sum of money, we think is a matter to be determined and litigated, if need be, between her ^nd the railroad company as to that fund or her share of it. So, that, upon consideration of the whole matter, we think that the demurrer to this second defense was properly sustained.

Then, at the trial of this action, we have all the evidence here in a bill of exceptions. TJie proof showed, as alleged in the petition, that Wilson was employed by the Superintendent of the division of the road as baggageman, and that, by an arrangement between the railroad company and the express company, one man acted in the dual capacity of baggageman and expressman. The proof showed that the express company required a bond of Wilson for the faithful discharge of his duties, and that probably one third of his wages was paid by the express company; but the evidence did not bring out, either way, clearly, whether that proportion of his wages was paid to him directly by the express company, or all of it paid to him by the railroad company, and afterwards refunded to the railroad company by the express company. The allegations of the petition that he was employed by both companies is sustained by the proof, although, as it seems to us from the proof, his main employment was by the railroad company as baggageman, and that the express employment was in addition to that. That employment is alleged in the petition, and the rule of the railroad company, as found on page 71 of the record, provides that:

“Train baggage masters will receive instructions from the division superintendent or trainmaster. They will be under the control of the conductor while on the run. At terminal stations they must observe the instructions of the •station agents or station masters; they must also obey the orders of the genearl baggage agent. When employed as joint baggage master and express messenger, they will obey instructions form the Auditor of Revenue and Superintendents of Express, with regard to express matter.”

But, while I am on the subject of the evidence, I may say, in brief, without attempting any view of the testimony, that we think that this evidence warranted the verdict, if the law was correctly given to the jury by the trial court; ■and we would not, and do not, reverse the case because the verdict is not sustained by sufficient evidence.

After the close of the argument, and before the charge of the trial judge was given to the jury, defendant asked for a special verdict upon all the issues in the case, by having fourteen several questions answered. We find that these questions were proper questions to be submitted to the jury in this case. That is, they were pertinent to the issues made by the pleadings and by the evidence. The court refused on the sole ground that the request came too late.

In support of this contention, we are cited to a case in 31 Atlantic Rep, 964; and 14 S. E. Rep., 237; and a case in 39 N. E. Rep., 172.

I will read the syllabus in the case in 31 At. Rep., which was a Maryland case. The fourth paragraph of the syllabus •says:

“Act 1894, c 185, requiring the court to direct special findings of fact where they are requested by either party, does not require the court to submit special questions, when the request therefor is not made until after the close of the arguments, when the jury is about to retire.”

These other cases are also in point.

In Ohio, our statute on the subject is section 5201,vrhiofa was the old code section 276; and as that section stood up until the amendment made in 91 Ohio Laws, 298, it was entirely discretionary with the court whether these special interrogatories should be given to the jury or not; but, by ihe act of May 18th, 1894, found in Vol. 91 Ohio Laws,. 298 — I read the latter part of the section, which says:

‘ In all cases, when requested by either party, the court shall instruct the jurors, if they render a general verdict,to. find especially upon particular questions of fact,to be stated in writing, and shall direct a written finding thereon, and the verdict and finding must be filed with the clerk, and entered on the journal.”

Now, we think that the fact that this original section stood for so many years in its permissive form, and was amended in 1894, so as to make it peremptory on the court, that the-court shall direct a written finding, and shall submit the particular questions of fact in writing, emphasizes the mandatory character of our legislation upon that subject.

It is true that in our act, as well as in the act referred to in the Marlyand case, the statute fixes no time, no stage of the trial, at which these special interrogatories shall be submitted; but we have other statutes. The statute providing for special instructions to the jury fixes the time that they shall be asked for and be given before the argument; the request for a written charge must come at a certain time; and we think that, in view of this amendment, the court cannot add to the statute by saying that at a certain time the requests come too -late, when the statute itself is silent upon that subject.

Another assignment of error is that the time card and book of rules were taken by the jury to their room when they retired, over the objection and exception by the defendant railroad company.

Now, an examination of Ohio cases: 11 Ohio St., 114; 2 Ohio St., 588; 45 Ohio St., 678; 32 Ohio St., 215, shows that all these cases are along the line that what papers shall be taken to the jury room by the jury is a matter resting within the discretion of the trial judge. The case in 2 Ohio St.,588, is a case of depositions.. And there it is said that the proper practice is, as a general thing, for depositions to be taken to the jury room; but if the deposition also contains incompetent matter, or matter which has been ruled to, and the parts of the deposition cannot be separated, then it is proper for the trial judge to keep the deposition out of the jury room. The case in 45 Ohio St. was where, by accident, some memoranda of argument by counsel, which were on the back of a sketch put in evidence,got into the jury room, and that was held not ground for reversal. And the case in 32 Ohio St., was where the computation of a civil engineer in a case where he had made a computation was given to the jury, and it was held not to be error. And in a criminal case, where the statutes of a state were taken to the jury room, the court held that it as not ground for reversal. So, upon an examination of these cases, while we think that it would have been better that these rules and time card should not have been taken out by the jury, yet we are not willing to say that it was an abuse of discretion on the part of the trial judge.

There are numerous requests to charge, and also very numerous exceptions to the charge as given.

The.first, second and third exceptions to the charge read as follows:

“The Court instructs you that, if you find from the evidence that Wilson, the decedent, at the time he was killed, was acting in the capacity of baggage master, under the employ and control, as such baggage master, of the defendant, and, in addition thereto, was acting in the capacity of express messenger for the United States Express Company, under an arrangement between the defendant and the managers of-the express company, and that he was required, by the nature of his employment, to occupy a place in the baggage car and express car, or cars, in accepting his employment as baggage master for the defendant, and express messenger for the express company, he took upon himself the risk incident to the nature of his business, but not the risk resulting from the negligence of the defendant railroad company, in the management of its trains.

“That said Wilson, acting in the capacity of a baggage master, under the control of the defendant, was entitled to the rights of a servant and employe.

“That acting at the same time in the capacity of an express messenger, he was entitled to the rights of a passenger,except the risk incident to the nature of his business.

“That the liability of the defendant to Wilson in the one capacity being that to a servant and employe, and in the other to that of a passenger, both to the same person at the same time, the liability of the defendant to Wilson merged into that of a passenger.”

These three exceptions, we think, raise the vital question in the case; and that is, whether, as a matter of law, the court was justified, under the facts as proven in this case, in charging the jury, in substance, that Wilson was a passenger, and not an employe of defendant railroad company.

It is claimed, on behalf of defendant in error, that the fact that he was both an expressman in the employ of the United States Express Company, and also a baggageman in the employ of the railroad cpmpany; that, under the authorities, as an expressman he was a passenger, and that the further fact that he was an employe of the company as baggageman, did not conrol or lessen in any way his rights as passenger.

And we are cited, in support of that contention, to the 34 Federal Reporter, page 616. The first paragraph of the syllabus reads:

“An expressman and baggageman was killed in a collision while in the discharge of his duty on defendant’s passenger train through the negligence of the employes of defendant’s freight train. Held, they were not fellow servants. ”

He was in the employ of the receivers of the railroad company in both capacities,as expressman and baggageman, and the decision is upon the ground that the employes of the-freight train were not his fellow servants

The case in 11 Wis., 248, is cited. The first paragraph of the syllabus reads:

’‘A messenger of an express company who was entitled to be carried on the freight cars of a railroad, was employed by the superintendent of the road to act as a brakeman for one trip, and while so employed was, by the negligent conduct of the engineer, thrown from the cars and greatly injured, for which he brought an action against the railroad' company.

“Held, that the action would lie, whether he were to be considered as a passenger or employe of the company on that train.”

And on page 259, in the opinion of the court:

“But the most interesting question in the case grows out of the .disputed point, whether the plaintiff should be considered, at the time of the injury, as a passenger or as an employe and servant of the company. There was testimony to the effect that he had been employed for wages,to act as brakeman during that trip. And he was injured while acting-in that capacity. If the jury found that he was so employed, there seems to be no reason why he should not be considered' as having been injured while acting as a servant of the company. There was no impossibility in his acting in the two-capacities during the trip. And if the law applicable to an injury occurring in the one, is different from that applicable to an injury in the other, the law of the case would depend upon the capacity in which he was acting when injured If, as Holton’s express agent, he was a passenger and would' be entitled to recover for a negligent injury, as brakeman he was a servant of the company, and would not be entitled to recover for an injury while acting as such, provided the law be as assumed, that one servant cannot recover for an injury occasioned by the negligence of another.”

They go on, on page 261, to consider the authorities, and especially some Ohio cases, and they hold that even as an employe of the company he was entitled to recover against the company. That the company was liable for the negligence of his fellow servants.

But in 17 Ohio St., 198, the case of The Pittsburgh, Fort Wayne & Chicago Railway Company v, Thomas S. Devinney, the syllabus reads as follows:

“A railway company is not liable in damages to a brakeman on one of its trains, for injuries sustained .by him in a collision of his train with another train of the same company, where the collision occurred by means of the negligence of the conductor or engineer, or both, of such other train, unless it appear that the company was guilty of a want of ordinary care in the selection and employment of an incompetent engineer or conductor, through whose negligence the collision occurred.”

And, in the opinion of the court, on page 210, it says:

“A comprehensive summary of the branch of the law applicable to this question, as settled by cases so uniform and numerous that it is needless to cite them,-in England, New York, Massachusetts, Pennslyvania and the most of the other states of the Union, is thus stated by Read, J., delivering the opinion of the Supreme Court of Pennsylvania, in Caldwell v. Brown, 6 Am. L. Register, N. S., 752:

“ ‘A servant, by entering into his master’s service, assumes all the risks of that service which the master cannot control, including those arising from the negligence of his fellow-servants. In case of an injury to one'servant by the negligence of another,it is immaterial whether he who causes and he who sustains the injury are, or are not, engaged in the same or similar labor, or in positions of equal grade or authority. If they are acting together, under one master, in carrying out a common object, they are fellow servants. The master, indeed, is bound to use ordinary care in providing suitable structures, engines, tools, and apparatus, and in selecting proper servants, and is liable to other servants in the same employment if they are injured by his own neglect of duty. But it makes no difference whether the master is an individual or a corporation; in either case he is responsible to his servants for his own negligence, but not for that of their fellow servants. ’

“But on this general doctrine a single exception has been ingrafted in this state: First, by a divided court, in Little Miami Railroad Company v. Stevens, 20 Ohio, 415, and afterwards by a full court, in C., C. &. C. R. R. Co. v. Keary, 3 Ohio St., 201, and thence forward recognized by this court in subsequent cases. That exception is this, that where one servant is placed in a position of subordination to, and subject to the orders and control of another servant of a common master, and the subordinate servant, without fault of his own, and while in the performance of his duty, is injured through the negligence of the superior servant while acting in the common service, an action lies in favor of the inferior servant so injured, against the master.”

Further along, on page 211, the court say:

“Indeed, in all the books, I am unable to find a single case which would justify the rulings of the court below, with the single exception of Chamberlain v. Mil. & Miss. R. R. Co., 11 Wis., 239,” (it should be 248), “which seems to go to the full extent of holding that a master is in all cases liable for the injury received by one servant, by means of negligence of a fellow servant engaged in a common employment, irrespective of any circumstances of superiority, subordination, rank or grade. In going to this extent, I believe the Supreme Court of Wisconsin stands alone. A majority of this court is unwilling to follow it, believing,as we do, that it would be wrong in itself, and disastrous in its tendencies to every business requiring many hands to prosecute it. Yes, I am unable to see how, if we sustain the rulings of the court below, we can, on any well grounded distinction, stop short of proceeding to the same extreme length,”

The Wisconsin case, referred to in the opinion of the court,is the same Wisconsin case that I have just referred to.

Now, that case in 17 Ohio St. has been cited in very numerous subsequent decisions of the Ohio Supreme Court, and the only possible exception to the rule there laid down is perhaps the case in 38 Ohio St., 389, and in later cases the older rule in 17 Ohio St., 197, has been followed; and such, as wo understand it, has been the law of Ohio up to and until the statute found in 87 Ohio Laws, 149 and 150, the act of 1890. And it seems to us that the trial court followed this 11 Wisconsin case, We think that that 11 Wisconsin case having been expressly disapproved by our own Supreme Oourt, it is the duty of the courts of this state to follow the ruling in the 17 Ohio St. case.

So, we think that the matters of the charge, excepted to by the first, second and third exceptions, are erroneous, and the same is true of the fourth, fifth, sixth, seventh and ninth exceptions, and also of the tenth. As to the eleventh and twelfth exceptions the Court, after reciting at length the' various items of negligence charged in the petition,after telling the jury that it was their duty to find whether those facts existed or not,then followed':

“The court instructs you that, whether or not the defendant was guilty of any or all of the several acts of negligence charged by the plaintiff in his petition, are each and all of them questions of fact, exclusively to be determined by you from a consideration of all the evidence adduced in the case,

“If you find, by a preponderance of the evidence, that defendant was guilty of all or any of the acts of negligence charged by the plaintiff, and were in violation of the rules of the railroad company, you will then consider whether or not they contributed in any manner to, or caused, the death of Wilson. If you find they did, the defendant is liable, and the plaintiff can recover.”

Now, bearing in mind the rule, as we understand it, in Ohio “that the servant cannot recover for the negligence of a fellow servant, not his superior, not over him, not having the right to control or direct him, there were various items of negligence charged in the petition, and recited by the court in this charge, for which the railroad company would not be liable under the 'rule, as we understand it.

Edioard Kibler, for Plaintiff in Error.

J. A. Flory and 8. M. Hunter, for Defendant in Error.

We also think that the fourth, sixth and eighth requests to charge should have been granted. And we reverse the judgment for the errors which I have indicated, and the cause is remanded for further proceeding according to law.


author: Day, J.

text:
    (Third Circuit—Defiance Co. Ohio, Circuit Court
    Oct. Term, 1896.)
    Before Day, Price and Rohn, JJ.
    JOSEPHINE BECHTHOLD v. M. F. FISHER, ADM’R.

      Summons in error — Statement of filing of petition in error — What sufficient.

    1. A statement in a summons in error “that B, plaintiff in error, has filed a petition against F, defendant in error, to procure the reversal of a judgment which defendant in error obtained in the Court of Common Pleas against plaintiff in error, “is in sub stance, and sufficiently a statement that a petition in error has been filed in the case within the meaning of Sec. 6713 Rev. Stat.

      Action in error commences with service of summons in error which must be served within 60 days of issue of same—
    2. The provisions of Sec’s 4987 and 4988 Rev. Stat., defining when and under what circumstances an action is to be deemed commenced, apply and govern in actions in error. To accomplish the pendency of an action in error, a summons duly issued must be actually served on the defendant within sixty days from its date; therefore the service of a summons issued and dated June 6, and served on September 28, following, is ineffectual, and, on motion, should be quashed.
    Same—
    3. Such service does not delay the running of the statute of limitations, and when it appears on the face of the record that the statute has fully run its course so as to interpose its bar, the petition in error,on motion submitted for that purpose, should be dismissed.
    Error to the Court of Common Pleas of Defiance County.
    On March 17th, 1896, tbe defendant in error, Fischer, Administrator, obtained a judgment against Josephine Bechtold, plaintiff in error, by the consideration of the court of common pleas of Defiance county. On June 6, 1896, Bechtold filed a petition in error in the circuit court of said county to obtain a reversal of the judgment and caused a summons in error to be issued and dated the same day, directed to the sheriff of the county. This summons contained the statement:
    “Josephine Bechtold, plaintiff in error,has filed a petition in the office of the clerk of the circuit court of Defiance county, Ohio, asking the reversal of a judgment which defendant in error obtained against the plaintiff in error in the court of common pleas of said county, etc.’"' The summons is made returnable on or before October 20th, 1896,be-ing the first day of the term of the circuit court of said county. It was received by the sheriff June.8, 1896, and served on the attorneys of record of defendant in error on the 28th of September, 1896. The officer was directed by counsel of plaintiff in error not to serve the summons until October 1st, 1896. No other summons was issued or served.
   Day, J.

The case is submitted on motion to quash the summons, on the grounds: 1. The summons is not such summons in error as is required by law to be issued and served tn acquire jurisdiction of the defendant in error. 2. The service is asked quashed because the judgment sought to be reversed was rendered on the 17th of March, 1896, and the only .summons issued is dated June 6th, 1896,and was attempted to be served September 28, 1896, and at no other time.

The objection to the summons, urged by counsel, is that it does not “contain a statement that a petition in error has been filed in the case,” as required by Section 6713, Revised'Statutes. It is true it is not stated, in express words, that “a petition in error has been filed, but we think the statement is made in substance; and substance,not form, is the material thing, It is said: “The plaintiff has filed a petition against the defendant in error, to obtain a reversal of the judgment named and definitely described, The names of both plaintiff and defendant are correctly given, so that there is no valid excuse or justification for a person of even ?ery ordinary intelligence to refuse or fail to clearly 'comprehend and fully understand that a petition in error had been filed against him. Therefore the motion to quash the summons in error, we think, is not well taken,and is not allowed.

This leaves for disposition the proposition to quash the service of summons in error, and the question is: Was the service made in such manner and such time that it, in contemplation of law, would be the commencement of an action in error; were the statutory requirements, touching service of summons, complied with, so that an action was commenced and pending, prior to the running of the statute of limitations; i. e., within six months from the time the judgment complained of was rendered, within six months after March 17, 1896, as provided by statute, section 6723, Revised Statutes.

A proceeding in error is a civil action — an action in error —and is commenced and the appearance of the defendant secured,in the same manner as in the commencement of any other action, by service of summons or publication of notice as provided by law. It is expressly provided in section 6713 Revised Statutes,in such case, a petition in error being filed in the proper court, a summons shall issue and be served, or publication made, as in the commencement of an action; thus referring the whole matter of securing the appearance of the defendant in the action, to the general provisions of law relating to the time of commencing actions. It follows lhat the general provisions contained in sections 4987 and 4988,Revised Statutes, defining when and under what circumstances an action is to be deemed commenced by the service of a summons, have direct application to actions in error, and must govern and control in the disposition of the question raised in this case.

Section 4987, Revised Statutes, provides:

“An action shall be deemed commenced, within the meaning of the chapter, as to each defendant, at the date of the summons which is served on him. * *

If that was all the provision on the subject, this action would, in law, have been commenced on June 6, 1896, as that is the date of the summons in question; but, unfortunately for plaintiff in error, there is a further provision in the next following section, which limits and fixes a time in which the service must be made, in order to have the effect of commencing an action; and the time fixed is very much less than that directed by plaintiff in error and used by the sheriff

Section 4988, Revised Statutes, provides:

“An attempt to commence an action, shall be deemed equivalent to the commencement thereof within the meaning of this chapter, when the party diligently endeavors to' procure a service; but such attempt-must be followed by service within sixty days.”

If a good faith attempt to commence an action is made and is followed by service of summons within sixty days,an action is, in law, commenced, and the bar of the statute defeated. This provision is quite liberal, to parties who are in good faith and diligent in endeavoring to procure service so as to have a case pending, and makes it possible, by such exercise of diligence and good faith, to extend the time of the running of the statute of limitations nearly two months. The law always invariably rewards the vigilant and diligent man; but it has no favors for the negligent and dilatory one.

Applying the provisions of the two sections named, 4987-8, to the facts appearing here, we find the service of the summons ineffectual. The facts show an attempt ta commence an action in error on the 6th of June, 1896, by the filing of a petition, and the issuing of a summons; but that attempt is not to be regarded as equivalent to a commencement of an action, for the reason the party did not diligently endeavor to procure service, and did not procure service within sixty days, as the law requires. On the contrary,the plaintiff was amiable and complacent, and so much at leisure in proceeding in the premises that ample time was afforded the limitations statute to fully finish its running and interpose its bar, before even an attempt was made to secure service of the summons.

Enos & Johnson, for Plaintiff in Error.

Harris & Cameron, for Defendant in Error.

The conclusion seems inevitable. There was no such service of summons as the law regards sufficient to cause the case to be pending in the circuit court. The service was ineffectual in law, and is quashed. The question raised is not a new one, but has been noticed by the Supreme Court a"number of times, notably in the 36 Ohio St., 312, where it^is held on somewhat similar facts, that a motion to strike thecase from the docket is the proper mode of procedure,and should be sustained. Following this indication, counsel for defendant in error may file a formal motion to dismiss the action, and, treating it as filed, the motion is sustained, and the petition dismissed.


author: King, J.

text:
    (Sixth Circuit, Lucas County, O., Circuit County,
    Sept. Term 1896.)
    Before Haynes, Scribner and King JJ.
    THE BOARD OF COMMISSIONERS OF FULTON COUNTY, OHIO v. THE BOARD OF COMMISSIONERS OF LUCAS COUNTY, OHIO.

      Ditches — Proceedings to fix compensation by upper to lower county for increase in waterflow.

    Before the Probate Court can act by appointing freeholders to assess the compensation under the statute, it must appear, as jurisdictional facts, that the commissioners of the lower and upper counties have failed to agree, or that, having agreed, the upper county has.failed to pay the compensation agreed upon.

      Same —Power of Probate Court in modifying report of committee appointed, to increase amount of compensation.

    In hearing exceptions to the report of the committee appointed to, fix compensation, the Probate Court in modifying the report as, authorized by statute, may increase as well as decrease the .amount of compensation found by the committee, and its authority is not limited to merely confirming or setting aside the report. The word “modify” m this statute is entitled to a broader meaning than where used in the code.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

Plaintiff in error asks us to reverse the judgment of the ■court of common pleas affirming a judgment rendered by the probate court of this county, in proceedings that were instituted before that court under an act of the legislature' first passed March 20th, 1889, and subsequently amended somewhat. That statute has been the subject of some contention in one or two counties in the circuit, and other cases are now pending; therefore we have carefully considered this case. This statute is supplemental to a chapter of the Revised Statutes relating to ditch proceedings, and its provisions are intended to enable one county to improve or enlarge a ditch,or to construct it originally, and to provide for an increase of the water from an upper county, which increase of drainage is due to improvements in the drainage of the upper county, increasing the flow of water down upon the lower county. The statide was passed in 1889, and in 1893 the first, third and tenth sections of it were amended, and in 1894 the first, second, fourth and tenth sections were amended.

In this case a petition was filed before the probate judge, as provided by the statute, and the statement made that .proceedings were pending before the county commissioners of Lucas county, for the improvement of a ditch — and also a natural water-course — known as ten-mile creek; and that the commissioners of Lucas county had been unable to agree with the commissioners of Fulton county. There was a hearing had by the probate court, and the statute now in force seems to authorize a hearing at that time, although the language is not altogether clear. Sec. 2, as now in force, provides that on failure to agree as to the amount, or upon failure to pay the amount agreed upon, the commissioners of the lower county shall commence a proceeding in the probate court of either county, setting forth that such proceedings have been begun for the making of such improvement, and the reasons why the commissioners of the upper county should pay to the commissioners of the lower county a compensation for such outlet or proposed outlet, and the failure to agree or pay, as provided in the preceding section, and praying for the relief thereinafter provided for; that the probate court shall issue a summons directed to the sheriff of the upper county, commanding him to notify he commissioners of the upper county that such an action has been commenced. The summons shall contain a copy of the petition, and name the time and place of hearing, and be served and returned as in other cases, and such service shall be no less than ten days before the date of the hearing. That is all that is said about a hearing, and it would seem to contemplate that there may be a hearing at the date named in the summons. Sec. 3, of the act passed March 14th, 1893- — us now in force (Vol. 90, page 82) — provides, without saying anything further about a hearing;

“The court being satisfied of the existence of proceedings for any such improvement, and the failure to agree or pay as aforesaid, shall appoint two disinterested freeholders not residents or owners of real property of either of said counties — ’’

„ And then the section proceeds to say that the judge shall immediately notify the probate court of the other county of his action, and that the said probate judge shall in like manner appoint two other freeholders, also not residents or owners of real property in either county, and notify the judge of probate of the lower county of his action, and give him the names and postoffice address of the two appointees.

From this we think it was proper to have a hearing upon the return-day named by the summons, and such hearing should have been (as it was in this case,) confined to the two questions: First, Whether there were pending before the commissioners of that county proceedings for the improvement of the water-course described? And, second, That the commissioners of the lower county and the commissioners of the upper county had failed to agree upon compensation; or that having agreed, the commissioners of the upper county had failed to pay the amount agreed upon. Those two facts, it may be said, are jurisdictional ones to be found by the court in which this proceeding is pending before they shall appoint the freeholders named by the statute. These are the only two questions to be considered by the court, and the only ones to be passed upon by it. The court in this case found the existence of these two things: The pendency of the proceedings, and the failure to agree. Objection is taken to that upon the claim that no proper proof was submitted of that fact. The court can dispose of this objection by saying that the proof was the record of the county commissioners showing the filing of the petition and the action taken before the county commissioners looking to the improvement of this ditch in the manner described. And as to the failure to agree, it was admitted by the commissioners of the upper county that they had failed to agree at one time in these proceedings, so that the action of the probate court in the appointment of these freeholders was entirely correct.” The probate court having appointed these commissioners, notified them and no* tified the probate judge of the upper county, who also appointed two; and thereupon the probate judge of Lucas county, on April 14th, entered an order upon his journal, which I may say he intended to do pursuant to Sec. 3, to which I have already referred. This section goes on to provide that after he shall have given these notices and made these appointments, the court “shall, within ten days thereafter, notify said four persons thus appointed, giving them full and explicit instructions and the time and place of meeting, who shall, within thirty days thereafter, upon actual view of the outlet ditch, or of the territory to be drained by any such proposed improvement, and of the ditch or ditches in the upper county and of the land to be drained in the upper county whose waters flow into said outlet, and which will flow into any such proposed outlet or proposed improvement thereof, estimate and report to the court the amount which should justly be paid by said upper county to said lower county for the use and benefit of said outlet ditch, or for any improvement thereof, which order of appointment, together with full and explicit instructions to said appointees, shall be entered on the journal of said court, and a copy thereof sent forthwith by the clerk to each of said appointees.”

The probate court, on April 4th, entered upon its journal (and the record shows that it was sent to each of these four appointees) an order which purports to be instructions to this committee as to their duties, and also instructing them additionally that they are to meet at the office on a certain day and there receive an oath to be administered by the court. Whether that was necessary or not, I need not now say. That seems to have been sent to each member of this committee, and we think that that was a proper method to pursue under this statute. Subsequently it appeared, at a time when the court directed these men to appear at his office, that one of them would not serve — one appointed by the probate judge of Fulton county- — -and thereupon he had to be dismissed by the probate judge and another one notified, and the next time they appeared, it appears by the record that they were instructed both orally and in writing, and the instructions were reduced to writing and entered upon the journal; and it is presumed (although the record does not show it) that a copy was given to each of the members of the committee.

We think the statute clearly intends that the probato judge may give these notifications by mail; that it is unnecessary for him to have the committee at his office for the purpose of notifying them — and therefore we think that so much of the record there as shows that counsel for the upper county appeared and presented requests to be given as instructions to this committee, and excepted to the refusal of the probate judge to give them, was all irregular, so that the probate judge might have entirely ignored the presence of counsel for the upper county and any of his requests to’ instruct these freeholders, for the statute clearly contemplates that the instructions shall be given in writing, and provides that a copy shall be sent to each of the freeholders, and with the giving of these instructions, counsel for the upper county have nothing to do until the committee shall have made its report. After these instructions are entered upon the record, we have no doubt but that they may be objected to, but they must be objected to upon the making of the report; and this may cover the instructians given by the probate judge to the committee as well as any other proceedings which have occurred since the first hearing. We think that any argument that is made here in favor of sustaining the exceptions to the instructions of the probate judge to the committee is not well taken.

We do not think the court erred, to the prejudice of the upper county, in its action on that subject. Going further, we think the instructions to the jury were plain, full, and explicit, as required by the statute; and even instructions much less explicit might well have been sustained. The only language of the statute requiring in-. structions is, that the judge shall give full and explicit instructions.

The next question presented to us is, as to the decision of the probate judge upon the exceptions filed to the report of the committee. The statute provides: — ■

Sec.3,“if said board of freeholders shall not be able to agree upon the amount to be paid by said upper county to said lower county, then they shall call to their assistance one other freeholder, who shall not be a resident or owner of real property of either of said counties, and the said five freeholders shall forthwith proceed to determine the amount of damages the said upper county shall pay to the said lower county, and report the same as herein provided.”

This committee not being able to agree, called in a fifth man, and he had some further instructions,but there was no agreement, except that three agreed and the other two dissented. The three agreed to a sum of $450.00 — or thereabouts; the two felt that it should be very much higher. Thereupon a majority and a minority report was filed, and the commissioners of Lucas county excepted to the majority report. These exceptions were set for hearing under the provisions of the statute found in Vol. 91, page 262, Sec. 4:

“Either of the parties to said action may,within ten days after the filing of said report, file exceptions thereto, which exceptions the court shall hear and determine, and shall confirm, modify or set aside said report, as justice may require; and, if the same be set aside, other freeholders shall be appointed as provided in Sec. 3 of said act, who shall estimate and report as provided in said section, and the decision of the court upon such report shall be final, unless the same shall be reversed upon proceedings in error for errors of law occurring upon such hearing, or because the determination of the court upon exceptions thereto is against the weight of the evidence ”

Upon the hearing of the exceptions filed by* the commissioners of Lucas Co., a large amount of ["'evidence was heard, and on summing up, the probate court held that it had jurisdiction to modify this report, and that in pursuance of the evidence it was bis duty to, and he did modify it by increasing it to the sum of $2,400; and, so increased, the court confirmed the report and entered it up as a judgment against the commissioners of Fulton county. Now it is argued here very strenuously and ably that the court had no jurisdiction under this statute to disturb this amount, except to set it aside and appoint a new committee of freeholders, and send them out to exercise their judgment about it; and it is also claimed that the judgment of the probate court is not sustained by the evidence. I have read section 4, and we think a fair construction of that section is, • that either party may file ■exceptions, both as to the rulings of the court previously made, and as to the report of the committee — and then these ■exceptions may be heard upon the evidence, because the statute expressly provides that the decision of the judge upon those exceptions may be reviewed upon the ground that the decisions are against the weight of the evidence as well as against the law; and that the court shall confirm, modify or set aside said report, as justice may require. The statute reads, in a continuous sentence, that if he sets aside the report, he shall appoint other freeholders, as provided in section three, who shall estimate and report as provided in said section, and. the decision of the court upon such report shall be final, unless the same shall be reversed, etc. It is argued that the court is really bound to set aside the report, if it disagrees with it or-finds the exceptions true in any respect, and to send out a second committee, and that its power to appoint committees is exhausted with ■the second appointment,and that his decision confirming or' modifying the second report is final, unless either party shall carry the case to a higher court to review it upon errors of law or because the decision is not sustained by the evidence. This construction of the statute we cannot accept. No report can be final if set aside, and any one is final if confirmed, whether modified or not, unless error is prosecuted. Now, in this case, the court saw fit to modify the report — not to confirm it as made, but to change the amount and increase it from $450 to $2,400. Had the court the power to do that? That question has been argued to some length, but it seems to us that these words must be given their plain and significant meaning — that the power given to modify may include the power to increase the amount as well as to decrease it; he may modify it as to its mere form, and he may modify it as to its substance. Webster says,. the general definition of “modify” is “to change the form, to shape, to vary;” and it was held in the 1 Cincinnati Superior Court Rep., 166, in reviewing a statute providing-that the court could modify a judgment at the term after which it was made, that the court might increase the judgment rendered at the previous term, and in that case, by adding to and taxing in the costs an attorney’s fee which had been omitted in the previous judgment; and it has been-held in other cases that under the power to modify a judgment, the amount of the judgment might be increased as well as decreased. We think these words are, perhaps, entitled to a broader meaning than the word “modify” in the code, because this proceeding is somewhat different from an ordinary action under the code in a court of record. This is a proceeding by the commissioners in pursuance of' the general policy of the ditch law, to secure the improvement of a ditch, and the first of the steps taken to secure that improvement is to send out a committee along the line of the proposed improvement in the territory that is going-to be affected and drained, and report from actual view— not from hearing evidence, but from viewing the property- - — what, in their judgment, should be paid by the upper-county to the lower. They come in and make that report.. Then the statute clearly gives the court the right to- review" that report upon the evidence of witnesses, examined and cross-examined in open court. It clearly gives the probate court the right to confirm it or to set it aside, Now, take this case: The probate judge, who seems to have understood this statute, heard the witnesses called by both parties, comprising many of the principal farmers who reside upon the line of this improvement in both counties, and civil engineers from both counties who had lived there many years and had been over this territory many times, and these witnesses give actual data and figures upon which the probate court might act intelligently, and it seems clear that the probate judge is invested, and should be invested with the right to modify such a report as this, and that he is in a great deal better position to fix an equitable amount to be paid by this upper county to the lower county than this committee or any committees that might be appointed could ever be, and we think his action in modifying this report by increasing it cannot be set aside in this court upon the ground that he had no power under the law; but if the probate judge shall, in his decision, act from any wrongful prejudice, or because of any local preference, to secure more from the other county than would be its due proportion, the rights of the parties are to be preserved by a review of that judgment in a higher court upon the evidence set forth, and the court, under such circumstances, will carefully inspect every case where the evidence is set forth to determine whether the probate judge has acted fairly and justly. It might happen that the probate judge would be influenced by a pressure of public opinion, or otherwise, to make the amount smaller for his own county, or larger for the adjoining county, than the evidence fairly disclosed. We have been over this evidence, and have fully and carefully reviewed the finding of the probate court shown in the record, and the court seems to have given to this evidence very full and careful consideration. He reviews the testimony and gives the substance of it much more fully than I will, and it looks to us as though he gave it a fair construction. The evidence conclusively shows certain facts; that the territory actually drained by this ditch in Lucas county was a little more than 25,000 acres, and that from two to perhaps six sections in the state of Michigan were drained by it — about 1,300 acres, I think, as given by the lowest estimate, and about 3,700 to 3,800 acres as given by the highest estimate — and that the territory drained in Fulton county was about 21,700 acres.. The conclusion of the probate judge was that there were^about 29.000 acres drained in Lucas county and Michigan, and about 21,000 acres in Fulton county, and averaging that, in round numbers, he said that about four-tenths of the territory was in Fulton county and about six-tenths in Lucas county and Michigan. In that estimate we do not think the judge made any finding to the prejudice of Fulton county, as this would make about 20,000 acres in Fulton county and 30,000 outside. He found, from a review of the testimony of the witnesses, that the supply of water coming out of Fulton county had just about doubled from thelartificial drainage. Two or three witnesses called from Fulton^county testified to that proportion. The probate judge was well supported in that finding, we think, by the testimony of witnesses called by the defendant below. The quantity that this ditch would have to provide for would be about twice as much as it would be in a state of nature. This being correct, the upper county would be entitled to the natural drainage — as it was in a state of nature; but the supply of water had been considerably increased by the artificial drainage; that is, the supply for a considerable ■length of time had been increased, and the capacity of the outlet would have to be increased proportionately; and, upon that subject, the probate judge found that a fair proportion of the expense of improving this ouilet to be charged to Fulton county would be two-tenths. Upon the subject of the cost of the improvement, he followed more especially the testimony of the engineers of this county, and found that it would be about $12,000, and two-tenths of that would be $2,400, which, we think, was a fair finding, and such as the statute required him to make when it provided that he might modify this judgment as justice might require.

W. W. Touvelle and Doyle c& Lewis, for Plaintiff in, Error.

J\ A. Barber, for Defendant in Error.

'We will affirm the judgment of the common pleas affirming the judgment of the probate court.


text:
    (Sixth Circuit, Lucas County, O., Circuit Court,
    Sept. Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    ALONZO D. BENNETT v. CLARA SHAW.

      Evidence — Booh of accounts, proof required for admission — Party who kept the booh subpoenaed as witness by other side—
    In an action founded on an account the books of original entry are-competent evidence for the plaintiff when the entries therein are verified by the evidence of the person who made them, unless-such person is since deceased or is a disinterested person nonresident of the county, when the books may be admitted in evidence-without such verification. .
    Error to the Court of Common Pleas of Lucas county.
   King, J.

This is a proceeding to reverse the judgment of the court of common pleas. Alonzo D. Bennett brought an action in-that court to recover of the defendant $669, claimed to be due him oh account for work and labor performed for- defendant at her request on certain buildings, plaintiff- being' a carpenter, • The answer, in substance, was a general denial. On~the^trial~it was^stated^by[defendant’s counsel that they did not dispute all the items, but that certain of them were disputed. The plaintiff was called as a witness, and testified, that he had done work for the defendant on different houses, but that the amounts of it he did not know. He had also furnished materials,but the amounts of those he did not know. But he said,among other things,that he kept a shop in which he did a large part of the work; and he employed foremen,and employed one who was especially the foreman of the shop; and in building a number of houses, he had employed foreman on each of those houses. The foreman of the shop was also foreman upon one of the houses, and that one had been built on account; that is, there had been no contract price agreed upon before the building was erected. The foreman had kept a book of the time of the men employed in the work on the building, and of the men engaged in the shop, and also an account of the amount of lumber used in the construction of them, which book was in his handwriting. He had kept a time-book, which was a sort of a memorandum book, and that the foreman himself transcribed upon another book, all but one page, and that the plaintiff testified he had transcribed from the foreman’s book. The foreman was a witness by the defendant, and the plaintiff did not call him. Plaintiff then offered the book in evidence, with the proof substantially as I have stated it, and the court rejected it. On the submission of the case to the jury, as the proof then stood, the jury found for the defendant.

It is urged that it was error for the court to have refused to admit those books in evidence; and it is urged that they were primary evidence of the furnishing of these materials and the doing of this work. With this claim of the plaintiff in error, the court cannot agree. Any party in the state of Ohio has a right to testify, and to corroborate his testimony with that of any other witness. If he brings his action upon an account, primarily his own testimony is the highest and best evidence that can be offered of the facts set forth in his petition, or that of the witnesses who had the transactions — who performed the work, or who delivered the material described in his petition. The fact that at the time of the performance of the work and the delivery of the material these transactions were recorded in a book is merely corroborative, and is secondary evidence of the transactions themselves; but if those transactions were recorded at the time, and it is testified to by some persons who knows of it, that they were recorded at the time, and if the person who recorded testifies that he recorded them, and that they were truthfully recorded, the book may be received in evidence, not independent of the testimony of the witnesses, but in connection with their testimony. This, we think, is the certain rule upon that subject, Within very recent years —1885—the statute bearing upon that subject has been amended; and reads as to the right of a party to testify, as follows:

'“Sec. 5242. A party shall not testify where the adverse party is the guardian or trustee of either a deaf and dumb or an insane person, or of a child of a deceased person, or is an executor or administrator, or claims or defends as heir, grantee, assignee, devisee, or legatee, of a deceased person, except — ’ ’

And certain exceptions are given. The sixth exception reads now — all the time bearing in mind that one party is under the disability named:

“If the claim or defense is founded on a book account, a party may testify'that the book is his account book; that-it is a book of original entries; that the entries therein were made by himself, a person since deceased, or a disinterested person, non-resident of the county. Whereupon the book shall be competent evidence.”

J. A. Chase and A. W. Eckert, for Plaintiff in Error.

C. F. France, for Defendant in Error.

Up to that point the statute stood as read, until 1885, when there were added these words:

“And such book may be admitted in evidence in any case, without regard to the parties, upon like proof by any competent witness.”

So that now, whatever may have been the law before, such account book, when it is testified by the party or by any competent witness that it is his book; that it is a book of original entries; that the entries therein were made by himself or by a person now deceased, or by a disinterested person non-resident of the county, is competent evidence. Clearly upon that staute, these books were not competent evidence. There is no evidence here that these transactions were recorded at the time they occurred, or that they were correctly recorded by anybody,and the witness who recorded them was present in court when this case was tried. The statute has made no exception that because he happened to be there at the solicitation or under the subpoena of the adverse party, he would not be a competent witness to prove the correctness of his own handwriting. It does not occur to the court that there is legitimate excuse for not calling him, if those books were correct, as is claimed. A party will not be excused from making the proof necessary in his case because he would have to do so by a witness called by the adverse party,on the assumption that if called he would' testify falsely. Mr. Bennett swears that these entries were made by a certain man. We cannot assume that if this witness were called by Mr. Bennett,even though subpoenaed by the other side, he would not have testified that these entries were made by him, and were correct. If he did so testify, the books would have been admitted. We do not think the court erred in ruling them out.

This is the only question raised in' the case, and the judgment of the court will, therefore, be affirmed.


text:
    (Fifth Circuit, Stark Co.., O., Circuit Court,
    September Term, 1895)
    Before Jenner, Pomerene and Adams JJ.
    CLEVELAND AXLE COMPANY v. ZILCH.

      Motion to non-suit — When proper to be sustained—
    A motion for an non-suit can only be sustained when there is no evidence, however slight, tending to prove the facts essential to' make out plaintiff’s case. If is not a question of thejveight,but of the relevancy of the evidence.

      Request to charge — Refusal where substance already given in general charge.—
    The court is not bound to give a request to charge asked where the • court has already given the law in the charge substantially to the same effect, though not in the same language.

      Duty of employer to employe as to furnishing machinery free of defects. —
    Error to the Court of Common Pleas of Stark county.
   Adams, J.

In this case it is sought to reverse the judgment of the court below, in which Zilch recovered damages for personal injuries which he claims were inflicted while in the employ of the company,on the 13th of January, 1893.

His claim is, that while he was in the employ of the company at that time, as a common laborer,and doing whatever work about the factory of the company that he was directed to; that he was engaged in helping about a machine - or a large pair of shears used for the cutting of steel bars. The injury he claims is that his leg was broken while so engaged, and he claims that' the defendant was negligent in various particulars, set up in the petition, among other things that this machine was defective in that the guard on it was defective, and that it was loose and worn so that there was a lateral or side motion of the upper knife or blade of the shears, so that in the cutting of steel, instead of cutting in a perpendicular line, the upper blade being loose moved to one side, and that necessarily threw the other, the further end of the steel bar either to one side, or threw it up, and that the ground where he was -required to stand was lower than that inside of the building where the machine was situated; and he claims that there was not the requisite number of men engaged at the time he was hurt. He claims that all these defects of the machinery were known to t,be defendant, and unknown to him, and that by reason of these defects the accident occurred,and he was injured.

The answer makes certain formal admissions as to the organization of the company and the fact that the plaintiff was in its employ, and alleges that the plaintiff, Zilch, was a man of sufficient age and experience to know and understand, and did know and understand the said machine, its kind and construction, the character of the ground and premises thereabouts, and that, if the plaintiff was injured by the bar of steel, it was due to his own carelessness in handling the same,and not through any fault of the defendant.

There is a bill of exceptions here, which purports to set out all the testimony, although it appears, from an examination of this bill of exceptions, that at some point during the trial of the case, the jury, and perhaps a large number of the witnesses, or some of the witnesses at any rate, were taken to the premises of the defendant, and were shown this same machine as it was in operation at that time.

There are four assignments of error.

At the close of the plaintiff’s testimony the defendant moved for a non-suit on the ground of contributory negligence. The court overruled the motion and that is assigned for error.

They assign as another ground, that the verdict is not sustained by the evidence; and then it is claimed that the court erred in refusing to charge to the jury the eighth and ninth requests asked for by the defendant.

This motion for a non-suit, of course, calls for the application of the well settled rule in Ohio at what state of the trial the court is allowed to take the case from the jury; and whether the question is raised by .a motion for non-suit, or a motion to direct the jury to return a verdict for the defendant, or by demurrer to the evidence,— the question of iaw presented is the same.

The rule as laid down in the case of Ellis v. The Life Insurance and Trust Co., 4 Ohio St. 628, is the well settled rule in Ohio, and it is said there that:

“Wherever there is any evidence, however slight, tending to prove the facts essential to make out a case for the plaintiff, a non-suit cannot be properly ordered; it is in no case a question as to the weight, but as to the relevancy of the testimony. If the testimony tends to prove a prima facie case for the plaintiff, a non suit cannot be properly ordered.’’

That is particularly the case where it is a question of negligence on the part of a defendant, or a question of contributory negligence on the part of the plaintiff; because, generally speaking, questions of negligence and of contributory negligence are mixed questions of law and fact, and they are peculiarly questions to be determined by a jury.

This motion for a non-suit is peculiar in this, that it is asked for simply on the ground of contributory negligence. There might be a case where the facts might be so clear, that no two minds would differ as to the conclusion to be drawn from the facts, and where the court would be justified in taking the case from the jury on the ground that the plaintiff’s testimony showed that his own negligence had contributed to his injury, and he could not recover in any event. But that would be an exceptional case.

Without attempting to make a very extended review of the testimony as set out in this bill of exceptions, we are of the opinion that there were witnesses, and a number of them, who testified as to how the machine worked; they testified as to the lateral motion of the shears; they testified as to the condition the guard was in; they testified as to the condition that the guard and the machine were in prior to the time'the plaintiff was hurt. We have the plaintiff’s own testimony tLat he had no knowledge of the defective condition of this machine, and we think'that from all this testimony, the jury might well say that the plaintiff was not bound, by the exercise of ordinary care and prudence, to have known of the defects, from the mere fact that he was employed in that factory, and was occasionally called on to assist in holding these bars of steel when they were being cut; and that occasionally he was employed in wheeling away from this machine the billets of steel after they had been cut from the bar; and the circumstances surrounding the case, the facts shown as to how often the plaintiff worked about the machine — that there was nothing in those circumstances to show that the plaintiff must have known the defective condition of that machine. There was nothing about his employment in wheeling away the billets that would direct his attention to the defects in the working of that machine; so that we think that the court below very properly overruled the motion for a non-suit.

As I have said before, at some point in this trial, the jury and the witnesses were taken to the premises where this accident occurred, and in the testimony of the defendant’s witnesses it was shown that changes had been made, and repairs made in this machine; that the machine worked differently at the time of the trial from what it had worked at the time of the accident; that there was less of this lateral motion, and the cutting of the bars was more nearly in a straight line; and that there was less jar or inovement at the other end of the bar; so that in looking through all this testimony, we think that the evidence warranted the verdict. That is, it warranted the jury in finding that all the material elements necessary for a recovery on the part of the plaintiff, existed in fact.

Now that brings ns to the other assignments for error— the exceptions taken by the defendant below to the refusal of the court to charge; there were but two of those.

The eighth is:

“The claim of the plaintiff that he was without fault, and was without contributory negligence, is not equivalent to the claim that he had no knowledge of the defects in the defendant’s machine, or the operation thereof, set forth in the petition. If he either had knowledge of such defects, or by ordinary care and prudence could have known of such defects, then he cannot recover in any event.”

Assuming that that is a correct proposition of law, it is claimed on the part of the defendant in error that the court charged that in substanec. We find among the requests to charge for the defendant below, his first and second requests, which were given by the court to the jury; the first one reads as follows:

“If the jury find from the evidence that the plaintiff, Martin Zilch, at or shortly prior to the time of receiving his injuries complained of herein, had knowledge of the defects in the defendant’s machinery, or the operation thereof, relied upon by him herein, then he cannot recover. And this would be so whether the defendant, The Cleveland Axle Manufacturing Company, was guilty of negligence on its part, or not. ”

Second — ■“ If the jury find from the evidence that the plaintiff, Martin Zilch, at or shortly prior to the time of receiving his injuries complained of herein, had no knowledge of the defects in the defendant’s machinery, or the operation thereof, relied upon by him herein, but by the exercise of ordinary care and prudence o.n his part, could have had knowledge of such defects, then he cannot recover. And this would be so whether the defendant was guilty of negligence on its part, or not.”

Take those two items of the charge in connection with the fact that at the request of the defendant below, these questions were. put to the jury, and answered by them:

First Question' — “Did the plaintiff, Martin Zilch, at or shortly prior to the time of receiving his injury, have knowledge of the defects in the defendant’s machinery, or the operation thereof, set forth in the petition, and relied on herein?” Answer — “No.”

Second Question — “If the plaintiff, Martin Zilch, hadjno knowledge of the defects in the defendant’s machinery, at or shortly prior to the time of receiving his injury, could he, by the exercise of ordinary care and prudence, have known of the defects in said machinery, or the operation thereof, set out in the petition, and relied on herein?” Answer — “No.”

We think that in' the first and second items of the requests by the defendant, and in the questions that were propounded to the jury, the question of Zilch’s knowledge, or the question of his duty to know, were clearly stated to the jury. And they were stated to the jury as strongly in favor of the defendant below, as the defendant had any right to have them stated; and to have given this eighth request in charge to the jury would have simply been a repitition of what had already been given to the jury.

In the ninth request the defendant asks the court to charge the jury that:

“The.defendant was not required to furnish the best or most perfect machinery, but only such machinery as persons of ordinary care and prudence, in the exercise of the same, would have furnished under like circumstances.”

Now, the pleadings and the evidence here show that there really was no claim that this machinery, if it had been in good repair, would have been defective, or an insufficient machine.

But assuming that it made a proper case to have the charge made to the jury as to what was due from the defendant as to the furnishing of machinery, let us look at the law as given to the jury by the court below in other parts of the charge. They say:

“The defendant was bound to exercise reasonable care to prevent accidents to its workmen; it was bound to furnish suitable machinery and see that it was properly protected, and kept in good repair. It was not only bound in the first instance to use reasonable care in the selection of machinery and appliances, but also to exercise reasonable and proper care and watchfulness to see that it was kept in proper condition; because, however perfect it may have been when bought, it is liable, froin ordinary wear and use, to get out of repair. And such care and watchfulness is due to guard against defects that may arise from use, as the nature of the business and the risks incident to it, demand. The master’s duty is reasonable care in providing suitable machinery and . appliances, and also reasonable care in keeping it in repair. In this case if you should find by a preponderance of the proof, that the defendant failed to exercise reasonable care, either in providing suitable machinery, or keeping it in repair, and that by reason of said want of reasonable care upon the part of the defendant, the plaintiff sustained the injury complained of in the petition, or either of them, you should, in that event, return a verdict for the defendant, provided he did not contribute, by his own lack of care,” and so on.

Day» Lynch & Day, Judge Thayer, fox Plaintiff in Error.

Harter & Kreighbaum, for Defendant in Error.

Now, we think that was stating fairly to the jury, the duty of the defendant in exercising reasonable care to furnish suitable machinery.

We find that there are no errors in the record, and the judgment of the court below is affirmed.