author: GRANT, J.

text:
    CARRIERS.
    [Cuyahoga (8th) Court of Appeals,
    December 4, 1916.]
    Meals, Carpenter and Grant, JJ.
    Erie Railway Co. v. Alice A. Kohler.
    Act of God as Defense Supplants Delay in Shipment in Action tor Negligence for Goods Lost In Flood.
    Act of God as a defense exonerates a carrier from negligence in delaying shipment, being the proximate cause; hence in caso of goods in transit damaged by a flood, the carrier is not deprived of the defense of vis major by reason of the facf that but for the carrier’s own negligence in permitting the shipment to be delayed, it would have been delivered to the consignee before the occurrence of the flood. Daniels v. Ballentine, 2" Ohio St. 53, followed, and Cincinnati, H. & D. Ry. v. Myers & Patty Co. 40 O. A. & C. 122, denied.
    Error.

      Cushing, Siddall & Lamb, for plaintiff in error.

      Frank F. Cenisch, for defendant in error.
   GRANT, J.

The parties will be designated here as they were below, which is in the reverse order of the caption.

The facts material to the conclusion we have reached are not in dispute.

The plaintiff delivered a lot of household goods to the defendant company — a common carrier — at Ashland, Ohio, on March 20, 1913, for shipment over its road to Cleveland. The hill of lading was in the customary form — what we suppose to he standard with carriers — and stipulated, among other things, that the company should not he held to a liability for loss or damage “caused by the act of God.” The goods were loaded at Ashland on the afternoon of the same day they were received, but owing to some defect in the car to which they were assigned the lading was changed to another ear, which did not leave the initial point of shipment till the second day afterwards, and did not reach Cleveland until March 23. For these delays the plaintiff was in no way responsible.

In Cleveland the car was stopped at the defendant’s so-called Literary street yard, a place where inbound freight is separated and distributed for routing to the particular team tracks where the owner is expected to receive and take away his belongings. The latter location in this case was nearby the defendant’s Scranton avenue freight station, and there the ear was placed on the 24th day of March, but after the close of business hours, and the plaintiff was notified. She received this notice the next morning. The rain which culminated in the unprecedented flood of March, 1913, in Ohio, began to fall on the afternoon, or in the evening, of March 23d, which was Sunday. By the after: noon of the next day it had reached formidable proportions, in consequence of which when the plaintiff was informed of the arrival in Cleveland of her property, the Cuyahoga river was already at flood stage, bank-full or more, and was still rising with alarming rapidity, so that even at that time it was impracticable for her seasonably to remove it from the car. This inability continued and increased during the further heavy rainfall occurring on the two days next succeeding. The consequence was she was unable to come at her goods until April 3d, by which time they were materially injured through, and physically by, immediate reason of the flood conditions thus narrated.

She accordingly sued the defendant company in this action for the damage then and thus accruing, as she said, imputing it to the company’s negligence in delaying her shipment until the flood overtook it and immediately caused the injury.

The defendant pleaded by answer, among other things, the intervention of the act of God, evidenced by the rain in question, and claimed exemption from liability on that account, in accordance with the reservation in the bill of lading and by the law of the land in that respect. We are not at present concerned with any other matter of defense or mitigation alleged in the answer.

Upon issue joined as to this plea, the cause was put upon its trial in the court below, to a jury.

There was a verdict for the plaintiff, upon which the judgment brought here for review was entered, after a motion for a new trial had been made and denied.

We shall brush aside the'matters of inducement leading to the presentation of the main and decisive question in the case, and come at once to a consideration of that controlling issue, and upon which we purpose to rest our conclusion. We shall assume — for the fact unquestionably is so — that but for the delays of the car at Ashland, at Cleveland, and in transit, the lading could have been delivered to the plaintiff at the point of destination, seasonably for safe removal before the flood overtook it.

That the flood of March, 1913, in Ohio was of such magnitude and suddenness as to be an act of God, within the meaning of those words on the back of the shipping bill, is not a matter of dispute. It was a manifestation of nature so extraordinary, and so violent in its physical visitation, and so destructive in its effects, that courts have taken, and will take judicial notice of it, without other evidence. The trial court so instructed the jury, and told them that if the loss was caused by it alone the plaintiff could not recover in the action.

The question then is, did, in the circumstances of the case, the interposition of this vis major work an exoneration of the defendant from liability, as being the proximate cause of the plaintiff’s loss?

Or, were the delays named that proximate cause? Because there can be but one cause that really is proximate. To allow two would be a legal solecism and a contradiction in terms.

The position of the plaintiff below is plainly stated in her brief, as follows:

“Our contention is that any delay or negligence of the plaintiff in error which contributed to or caused the goods to be caught in the flood made unavailable the defense of an act of God.”

This reduction of the issue to its lowest terms and to a mere matter of law, which admits the quality of the storm as being -within the class of things which the company interposed by its shipping stipulation as a defense against liability, does away with much curious and useless legal learning as to what an act of God is, even back to Coke, with whom the term was a favorite —as was to have been expected — and many evolved distinctions, spun from the inner consciousness of judges into a web as endless as that of Penelope, between it and inevitable accident, and other names of like import — this shortens the discussion admirably. It even relieves against the risk of the irreverence displayed by the Kansas lawyer who in suing for a loss caused by lightning and the answer pleaded what the answer pleads here, came back in a reply, quite responsively, with the allegation: “The plaintiff denies that such loss was caused or occasioned by any act of the said God.”

To work an exemption from liability in an otherwise proper case the act of God can be urged only where it is the proximate eause of the loss, the efficient eause, the direct cause, the immediate eause, of course. That it had something to do with bringing about the result, is not enough. Unless it fulfills this condition, it does not excuse. New Brunswick Steamboat and Canal Transportation Co. v. Tiers, 24 N. J. Law (4 Zab.) 697 [64 Am Dec. 394]; Ferguson v. Brent, 12 Md. 9 [71 Am. Dec. 582]; Hutchinson v. U. S. Express Co. 63 W. Va. 128 [59 S. E. 949; 14 L. R. A. (N. S.) 393]; Steele v. McTyler’s Admr. 31 Ala. 667 [70 Am. Dec. 516].

It must also be the sole eause. In co-operation or concurrence with, or contributing to, other moving causes, unless we are to conclude that the co-operation or concurrence in itself amounts to, and is to be deemed to be, really the proximate cause by process of assimilation or absorption, its use as a shield from liability can not be called in function; such seems to be the.better opinion. Jones v. Minneapolis and St. L. Ry. 91 Minn. 229 [97 N. W. 893; 103 Am St. 507]; Wald v. Pittsburgh, C., C. & St. L. Ry. 162 Ill. 545 [44 N. E. 888; 35 L. R. A. 356; 53 Am. St. 332]; Wolf v. American Express Co. 43 Mo. 421 [97 Am. Dec. 406]; Steele v. Townsend, 37 Ala. 247 [79 Am. Dec. 49].

"What in any ease amounts to such co-operative effect or contributing cause as will constitute in any case the proximate cause, to the exclusion of them in the classification of them as remote causes, and so work a defeat of the use of the act of God as a weapon of defense, is quite another question; and where this consideration brings in the question of delay and its effect in depriving the carrier of the use of his plea, it has given rise to the sharp controversy evidenced by the two lines of decisions presently to be mentioned.

One of these lines makes up what may be called the Massachusetts, or Pennsylvania rule. It is also the rule of the United States Supreme Court. It is aptly stated in 4 Ruling Case law, See. 193:

‘ ‘ In several well considered cases decided by courts of high authority it was decided, while the question was still new, that the negligent delay of the carrier in transportation could not be regarded as the proximate cause of an ultimate loss by a casualty which in itself constituted an act of God, as that term is used in defining the carrier’s exemption from liability, although, had the goods been transported with reasonable diligence, they would not have been subjected to such casualty.”

In support of this statement the editor cites Memphis & Charleston Ry. v. Reeves, 77 U. S. (10 Wall.) 176 [19 L. Ed. 909]; Deaver v. Bedford, 5 Rob. (La.), 245 [39 Am. Dec. 535]; Denny v. N. Y. Cent. Ry. 79 Mass. (13 Gray) 481 [74 Am. Dec. 645]; McClary v. Sioux City & P. Ry. 3 Neb. 44 [19 Am. Rep. 631]; Daniels v. Ballantine, 23 Ohio St. 532 [13 Am. Rep. 264]; Morrison v. Davis, 20 Pa. St. 171 [57 Am. Dec. 695], and 3 Ann. Cas. 453.

The text then goes on to say:

“These cases are predicated on the view that if the carrier could not reasonably have foreseen or anticipated that the goods would be overtaken by such a casualty as a natural and probable result of the delay, then the negligent act was not the proximate cause of the loss, and should be disregarded in determining the liability for such loss. Many later eases have also adopted this viewpoint, so many in fact that from the mere standpoint of weight of authority this view may be said to 'have slightly the better of the argument. According to these decisions, the fact that events may subsequently prove that the catastrophe amounting to actus Dei would not have been encountered if no delay had occurred is, after all, merely a fortuitous result, since it is obvious that the antecedent probabilities are equal that the delay will save the property from, instead of exposing it to, destruction.”

The “later cases” brought forward to uphold the doctrine thus enunciated, are Rodgers v. Missouri Pac. Ry. 75 Kan. 222 [88 Pac. 885; 10 L. R. A. (N. S.) 658; 121 Am. St. 416; 12 Ann. Cas. 441] ; Green-Wheeler Shoe Co. v. Chicago, R. I. & Pac. Ry. 130 Iowa 123 [106 N. W. 498; 5 L. R. A. (N. S.) 882; 8 Ann. Gas. 45]; Yazoo & M. Valley Ry. v. Millsaps, 76 Miss. 855 [25 So. 672; 71 Am. St. 543].

In the Iowa ease just cited the syllabus is: “Where a carrier negligently delays a shipment of goods, so that it is destroyed by an act of God which would not have destroyed it, except for the delay, the carrier is not liable,” which, we take it, is exactly the argument of the plaintiff in error here.

The text-boobs which allow that the weight of authority is in support of this view are Thompson. Negligence Sec. 74; Schouler, Bailments, Ed. 1905, 348; Hale, Bailments and Carriers, 361; 6 Cyc. 382. In monographic notes to Gilson v. Del. & Hudson Canal Co. 36 Am. St. 839, and Yazoo & M. Valley Ry. v. Millsaps, supra, the authorities are exhaustively considered, and the annotator sums up the result in the following language:

“Where the negligence of a carrier consists merely in a delay in the forwarding of goods, the larger number of authorities sustain the principle that the carrier can not be held liable, if the goods thus delayed are destroyed by the act of God, though, but for the delay, they would have reached a place of safety, the ground assigned being that the delay becomes a remote cause of the loss, when a calamity which could not have been anticipated intervenes.”

The opposite contention, which may be called the New York rule, is laid down in the book from which we have already quoted, as follows, Sec. 194:

“On the other hand, as had been stated, there is a respectable authority for the proposition that if a carrier negligently and carelessly delays a shipment, and the goods are overtaken in transit and damaged by an act of God, which would not have caused the damage had there been no delay, he is liable, even though the act of God could not reasonably have been anticipated. In such cases the negligence and unreasonable delay are deemed to be such a proximate or concurring cause as will render the carrier liable. Courts sustaining this view, in analogy to the well settled rule with reference to deviation, assert the principle that as a carrier is only exempted from liability by showing that an injury was caused by an act of God or the public enemy, to avail himself of such exemption ho must show that he was himself free from fault at the time, so that if he departs from the line of his duty, and violates his contract, and while thus in fault, and in consequence of that fault, the goods are injured by an act of God, which would not otherwise have caused the injury, he is not protected. A negligent delay in forwarding goods, they contend, constitutes such a fault or departure from duty, and so is a concurring cause of the loss or injury. Moreover, in opposition to the argument that such a result could not reasonably be anticipated from mere delay, the theory has been advanced that a carrier should, as any reasonable person could, foresee that negligent delay would extend tlm time during which goods in his hands would be liable to be overtaken by some casualty, and would therefore increase the danger of their being lost to the shipper.”

This extract states, and well states, what must be the contention of the defendant in error in*the case at bar, and is, as we understand it, the substance of his reasoning when he says that the defense of an act of God, in this case, is not available to the carrier.

The cases marshalled in its support need not be mentioned by name. They represent the views of the courts of last resort in Alabama, Georgia, Minnesota, New York, Nebraska, West Virginia, Illinois, and perhaps some others. The text-writers who maintain that this rule has the weight of authority on its side are Hutchinson, Carriers, 361, and Eaymond, Negligence of Imposed Duties, 177.

We have tried to thus completely develop both of the lines of view upon this most important question, in order to show that, whatever may be thought of the merits of the conclusion we are to reach as to what is the law of this case, that conclusion has not proceeded upon misinformation in regard to judicial authority.

As applied to the ease in hand, the two views are in decisive conflict. If the former ■'states the law for us, then the carrier is exonerated from liability and such should have been the judgment of the court below.

If the latter theory of the law is to control, that judgment, following upon the jury’s verdict settling the matter of fact, was right and should be upheld, at this point and in this respect.

It will have been observed that the text-writer quoted ranges an Ohio case, Daniels v. Ballantine, supra, on the side of the view which, under the circumstances of this case, would seem to relieve the carrier from liability. If this is a correct classification of that ease, it settles the law for us, as we think. If Ohio law is declared, one-way or the other, it becomes immaterial on which side of the question the authority preponderates, or whether the reasoning advanced in support of either view is well or ill-founded. We are guided, coercively, by the adjudications iff the court of last resort in Ohio; those of other jurisdictions, where our own has relevantly and undoubtedly spoken, are altogether beside the question.

Let us, therefor'e, examine Daniels v. Ballantine, to see whether it furnishes the law for us.

The syllabus states both the facts involved and the law applied to them, and so enables us to compare that case with this case, for all purposes of a proper conclusion. It is ^s follows:

“The defendants contracted to tow the plaintiff’s barge, by means of a steam tug, from Bay City, Michigan, to Buffalo, New York. After the voyage had been commenced, and partially performed, it was voluntarily suspended and delayed by defendants, the barge during the delay being exposed to none of the perils peculiar to the voyage. After the voyage was resumed, and while it was being duly prosecuted, a storm was encountered by which the barge was lost. Held: That the defendants, by the mere fact of the delay, did not become responsible for the loss of the barge, although the delay was unreasonable and unnecessary, and although, as the event proved, the barge, but for the delay, would probably have been safely towed to its place of destination. In such case the storm must be regarded as the proximate, and the delay as only the remote cause of the loss.”

In reaching that conclusion the court proceeded along the line of reasoning which upholds the first rule discussed in this opinion and held that the conjunction of the delay with the storm was only a fortuitous thing, involving no agency in bringing about thu loss. It went further and reduced the argument of the plaintiff to an absurdity by the consideration that if the delay had only been long enough it would have tided the shipment over the storm and brought the goods through in safety; in other words, the carrier’s fault had been less if it had been greater. It would be a mere Hibemieism to say that that ease is this case, unless there is a distinction between them.

It is our present business to find out whether there is a distinction. We confess that, according to our own lights, we should be unable to find one — at least one that can fairly be said to be a real distinction, a distinction embodying a difference. We are met, however, by the case of Cincinnati, H. & D. Ry. v. Myers & Patty Co. 40 O. A. & C. 122 (25 N. S. 204; 4 App. 493), decided by the learned court of appeals for the second district, which purports to find a distinction. The loss there was in the same flood, and there was the same delay postponing delivery till the shipment was overtaken by the storm. The court marshals only the cases which support the second view which we have discussed, in most or all of which a common carrier was sued, and then undertakes to distinguish Daniels v. Ballantine on the single consideration, as we understand, that in the latter the delinquent was not a common carrier. This particular question was not decided in that case, although the court was pressed to pass upon it. We are at a loss to understand why any inference can be deduced from what the court in that case said or omitted to say, favorable to the distinction found by the learned court of appeals, or to justify the effect apparently produced on that court in its going over to the side of the New York rule. On the contrary, we can not well doubt what the holding would have been in Daniels v. Ballantine had the court passed upon the question, or that its decision in that event would still have been the same; its intimation to that effect seems not to be at all obscure. It says in the opinion:

“It has sometimes been said that the policy of the law applicable to common carriers required, as to them, the application of a different rule. The weight of authority seems to be the other way; but however this may be, the exigencies of the present ease do not require us to determine. It is not alleged that the-defendants were common carriers.”

What the court was discussing that called forth this remark, was the rule applied in the case, namely, that one in fault is responsible only for the proximate, and not at all for the remote, results or consequences of his wrongdoing. We consider the observation of the court in this respect as suggestive of a disal-lowance of the very distinction which the learned court of appeals made, pivotal in its judgment fastening a liability on the carrier, and which the carrier, but for the alleged distinction, admittedly could not have been called upon to bear. It is indeed also said by the learned court in Cincinnati, H. & D. Ry. v. Myers & Patty Co. supra, that that case was founded on contract, whereas the Ballantine case was bottomed on negligence. The syllabus in the latter ease shows affirmatively that there was a contract. The fact is the claimed right of action in each ease arose upon a negligent breach of a contract. In the sense in which each of the two courts speak, each case was founded on contract and upon negligence in carrying it out. If one was upon contract, so was the other; and the same is the fact in regard to negligence. No difference is observable to us in this further attempted distinction, if indeed such it is intended to be. It is difficult, also, for us to find room for any such distinction upon principle or in the reason of the thing.

The flood by which the damage in this case was immediately wrought was the act of God — confessedly so. God is no re-, specter of persons. He should not be. He is impartial, even in his disastrous dealings with mankind. Surely, then, the injustice can not be imputed to him of visiting upon common carriers harder blows, or heavier legal consequence, than he deals to individuals or private corporations. It may be, as some scarcely inferior to him in point of wisdom have said, that the managers- of some common carriers are “malefactors of great wealth,” and are to be classed as “undesirable citizens;” still God himself tells us that he sends his rain upon the just and the unjust alike — including, as we are at liberty to suppose, the great rain of March. 1913. Some of our various agrarian laws do indeed take away defenses from common carriers. But these are the work of legislatures — mere finite things, who hardly pretend to be just or impartial.

In view of these considerations — and others — and again according to our lights, we are unable to find, in the mere fact that we are dealing with a common carrier, the distinction which the court in the second district found, and upon which alone, as we conceive, its judgment was allowed to depend — otherwise destructive of the rule applied in Daniels v. Ballantine. On account of this inability, we do not feel justified in adjudging what in effect would, to our own apprehension, work a substantial re-r versal of the Supreme Court above us. If that is to be done, it must be done, so far as we are concerned, by that court and not this court. We should have to do this, as we think, in effect, if we were to affirm the judgment before us for review.

We say this, having the highest regard for the learned court from whom it is our misfortune but disagreeable duty thus to differ, and with every disposition to save the verdict of the jury now challenged at tin's bar.

We find, and hold, under the undisputed facts of this ease, that the judgment we. are reviewing is without support in the law of Ohio, and should have been for the defendant and not for the plaintiff below, as it was.

As this found error is fundamental and goes to the whole case, that fact obviates the necessity or propriety of a particular consideration of others assigned and argued before us, and the disposition of which is comprehended in that already made of the whole ease. This is said in view of the judgment we are about to render. Specifically, the court should have given in charge to the jury defendant’s request No. 1, made before argument, which directed a verdict to be returned the defendant. It was error to refuse it.

This conclusion; in opposition, as appears, to that reached by the learned court for tbe second district, operates, we apprehend, a conflict of decision, within the meaning of the constitutional provision, which in such cases secures to the parties a review of the case by the Supreme Court. The party defeated by our judgment is entitled to a certificate.of conflict, which will cheerfully be allowed if application is made for it. In that review our error in this decision, if error there is, will be corrected, our only desire being to be right, whether as of first instance or under the coercive operation of a judicial reversal of our work.

The judgment complained of is reversed.

The facts not being in dispute, we find, upon the matter of law thus alone left in the ease, that the judgment should have been for the defendant below and not for the plaintiff • we proceed, therefore, now to render that judgment, which is that the plaintiff in error, the Erie Railroad Company, go hence without day, and that it recover its costs in the cause made.

Meals and Carpenter, JJ., concur.


source: Caselaw Access Project

author: ALLREAD, J.

license: Public Domain

text:
    CARRIERS.
    [Miami (2nd) Court of Appeals,
    November 17, 1915.]
    Ferneding, Kunkle and Allread, JJ.
    Cincinnati, H. & D. Ry. v. Myers & Patty Co.
    Negligence of Carrier Furnishing Defective Car Delaying Transit Precludes Defense of Act of God by Flood.
    The act of God, to be a defense to an action on the contract of a common carrier, must be the sole cause of the loss or damage. If the negligence of the common carrier brings the goods in contact with the forces of nature, the carrier is liable. Daniels v. Ballantine, 26 Ohio St. 533, distinguished.
    Error.

      Broomhall & Broomhall, for plaintiff in error.

      William H. Gilbert, for defendant in error.
   ALLREAD, J.

On March 19, 1913, the Myers & Patty Co. at a point near Covington, Ohio, delivered to the Cincinnati, II. & D. Ry. a carload of corn for shipment to Rheems, Pennsylvania.

The car of corn reached Dayton, Ohio, on the evening of the day of shipment and was placed upon a siding and so remained until the forenoon of March 25, 1913, when 'it was overtaken and damaged by the great flood.

Myers & Patty Co. thereupon brought suit against the Cincinnati, IT. & D. Ry. for failure to safely carry and deliver the goods shipped according to the consignment contract.

The railway company interposed the defense that the com was destroyed by the act of God.

To this the plaintiff replied that the destruction or injury to the corn was due to negligence of the railway company in furnishing a defective car, necessitating delay in reloading at Dayton, and that the negligence of the railway company caused or at least contributed to the injury to the com.

Under the issues the case was submitted to a jury.

The facts are not seriously disputed and the question is largely one of law.

It was established that but for the defective car the shipment would have left Dayton promptly and would have passed out of the flood zone in safety.

At the close of the evidence the railway company moved for an instructed verdict upon the ground that the loss was due to the unprecedented flood.

The trial court overruled the motion and permitted the ease to go to the jury under instructions in substance that if plaintiff in error was negligent as. specified in the reply, and such negligence contributed to the loss or damage to the com, then the fact that the act of God may have also contributed to the loss was no defense.

It is clear that when the railway company received the carload of corn consigned to Theems, Pennsylvania, it was bound to promptly make such shipment and delivery unless excused by the act of God, the publie enemies, the conduct of the shipper, the inherent nature of the goods or, as held in some cases, by the act or mandate of public authority. Baltimore & O. Ry. v. O’Donnell, 49 Ohio St. 489 [32 N. E. 476; 21 L. R. A. 117; 34 Am. St. 579],

The law holds the carrier to a high degree of responsibility for the safe carriage and delivery of the goods shipped, and the burden is upon him to aver and prove his defense when he claims an exemption.

The great weight of authority is to the effect that the act of God, in order to constitute a defense for the carrier, must be the exclusive cause of the injury. Read v. Spaulding, 30 N. Y. 630 [86 Am. Dec. 426]; Michaels v. New York Central Ry. 30 N. Y. 564 [86 Am. Dec. 415] ; Wolf v. American Express Co. 43 Mo. 421 [97 Am. Dec. 406]; Bibb Broom Corn Co. v. Atchison, T. & S. F. Ry. 94 Minn. 269 [102 N. W. 709; 69 L. R. A. 509; 110 Am. St. 361; 3 Ann. Cas. 450]; Alabama Great Southern Ry. v. Quarles & Couturie, 145 Ala. 436 [40 So. 120; 5 L. R. A. (N. S.) 867; 117 Am. St. 54; 8 Ann. Cas. 308]; Wabash Ry. v. Sharpe, 76 Neb. 424 [107 N. W. 758; 124 Am. St. 823]; Wald v. Pittsburgh, C. C. & St. L. Ry. 162 Ill. 545 [44 N. E. 888; 35 L. R. A. 356; 53 Am. St. 332]; Green-Wheeler Shoe Co. v. Chicago, R. I. & P. Ry. 130 Iowa 123 [106 N. W. 498; 5 L. R. A. (N. S.) 882; 8 Ann. Cas. 45].

The case of Bead v. Spaulding, supra, holds that if a com-moii carrier receive goods for transportation and in consequence of his unreasonable delay in forwarding them to their destination they are damaged by the act of God at an intermediate place, he is responsible to the owner. To exempt himself from liability he must show that no act or neglect of his concurred in or contributed to the injury.

The doctrine is thus stated in Wolf v. American Express Co. supra:

• “The act of God which excuses the carrier must not only be the proximate cause of the loss, but the better opinion is that it must be the sole cause, and when the loss is caused by the ‘act of God,’ if the negligence of the carrier mingles with it as an active and co-operative cause he is still responsible.”

Wabash By. v. Sharpe, supra, in the second paragraph of ‘the syllabus, states the same proposition as follows:

“A common carrier is responsible .for injury to goods where the goods were exposed to injury by the carrier’s inexcusable detention, and the carrier can not in such case plead the act of God as a defense. ’ ’

Wald v. Pittsburg, C. C. & St. L. Ry. supra, holds:

“A common carrier is not exempt from liability for a loss occasioned by an act of God, if the carrier has been guilty o£ any previous negligence which brings the property in contact with the destructive force or unnecessarily exposes it thereto.”

The case of Green-Wheeler Shoe Co. v. Chicago, R. I. & P. Ry. supra, contains a review of all the authorities and holds that reason and the weight of authority sustain the view that the act of God is available as a defense only when it is the sole cause of the loss.

In commenting upon Coggs v. Bernard, 1 Smith’s Leading Cases (8th Ed.) 369, 430, speaking on this subject the author says:

* ‘ The true way of looking at this is not that the carrier discharges his peculiar liability by showing' an act of God, and is then made responsible as an ordinary agent, for negligence; but that the intervention of negligence breaks the carrier’s line of defense, by showing that the injury or loss was not directly caused by the act of God, or more correctly speaking, was not the act of God.”

The railway company relies upon the ease of Daniels v. Ballantine, 23 Ohio St. 533 [13 Am. Rep. 264], and Urbana Egg Case Co. v. Nypano Ry. 28 Dec. 452 (16 N. S. 321).

Daniels v. Ballantine involved the relationship of a private carrier and was founded upon negligence. The obligation of a common carrier is more comprehensive and exacting than that of a private carrier. The common carrier is to a degree an insurer of safe carriage and delivery and its liability is founded upon contract. In an action upon the common carrier’s contract it follows that while the act of God is a recognized defense, yet in order to claim the benefit thereof the common carrier must himself be free from fault or negligence.

The egg case company case was one of mere delay. There was no charge of positive negligence as in the case at bar. Whether that difference calls for a distinction in legal rights we are not called npon to decide.

The evidence was sufficient to justify the jury in finding that the Cincinnati, H. & D. Ry. furnished a defective car, in which the corn was loaded, that this necessitated reloading, and that the car was held in Dayton for that purpose. The delay was the natural and proximate result of the furnishing of the defective car.

Under the evidence, therefore, the railway company was chargeable with the delay so occasioned. Such negligence made the injury to the corn'by the flood possible. The carrier is therefore liable.

Judgment affirmed.


author: HOUCK, J.

text:
    INTOXICATING LIQUORS.
    [Fairfield (5th) Court of Appeals,
    October 31, 1917.]
    Powell, Houck and Shields, XT.
    * William Rider, Jr., v. H. F. Repass, Mayor.
    1. Attaching Second Blank Form with Additional Names to Petition and Map for Residence Local Option, Valid.
    The provisions of the local option law, that maps shall be attached to petitions for establishment of a district in which the sale of intoxicating liquor is prohibited, has been complied with where a second blank form was attached for additional names, instead of placing them on a blank piece of paper and attaching that to the petition, no showing having been made of fraud or that any resident of the proposed district was misled thereby.
    2. inclusion of Small Strip of Land in Map Outside Corporate Limits Located as Mistake and Excluded from District.
    The requirement that the territory included in such a district be within the eorpórate limits is not satisfied, where a railway track is made one of the boundary lines and a strip of land forty feet in width, forming part of the railway right-of-way and lying between the track and the municipal boundary line, is thus included in the proposed district; but the inclusion of such a strip may be treated by a court as a mistake and the description ordered modified by striking out the territory thus wrongly embraced in the district as described in the petition.
    3. Registered Electors Qualified Signers of Local Option Petition.
    A showing that those signing the petition are registered electors. sufficiently establishes their qualification in that behalf.
    [Syllabus by the court.]
    Error.

      C. W. McCleery, for plaintiff in error.

      J. A.. White, J. W. Deffenbmgh and Ben B. Dolson, for defendant in error.
   HOUCK, J.

The proceeding before ns for review is one in error in which it is sought to reverse a judgment entered by Hon. John 6. Reeves, judge of the common pleas court of Fairfield county, Ohio, in which the court on a petition filed under favor of what is known as the “Jones residence local option law,”ordered and directed that the prayer of the petitioners be granted, prohibiting the sale of intoxicating liquors as a beverage in the residence district described in said petition, in the city of Lancaster, Ohio.

The errors relied upon by counsel for plaintiff in error are: first, that maps were not attached to the petitions, as required by law; second, that there is a defect in the description of the territory sought to be made dry, because it includes a strip of land about forty feet wide and eleven hundred feet in length on the southern boundary line of the proposed dry district or territory that is without the corporate limits of the city of Lancaster; third, that the district contains an exempted business block; fourth, that the required number of qualified electors did not sign the petitions.

Counsel for plaintiff in error urges that there were nine petitions, executed in the usual form, and but five maps, and therefore Sec. 6146 G-. C. was not complied with. Said section reads:

“All petitions for signatures, under the next six preceding sections shall have a map or drawing attached, showing the outlines of the district, and location of all salons within the district proposed.”

Upon an examination of the petitions and maps, we find that all of the petitions are in the usual printed form, and that four of the maps have attached to them two petitions each, and one of the maps has one petition. All are securely fastened by hooks or" fasteners.

No complaint is made as to the one petition and one map but it is insisted upon that because one map in four instances is attached to two petitions, such is not a compliance with tbe above statute. The same names do not appear on the second blank form of petition as on the first, and we do not see how any one could be prejudiced by this because for convenience a second blank form petition was used instead of inserting a blank piece of paper for signatures. The second blank form was no doubt used for convenience, and in the absence of a showing of fraud, or that any qualified elector or resident of the district was misled thereby, or in some way prejudiced, we do not think that the plaintiff in error has any just cause of complaint in this regard.

Plaintiff in error insists that the petitions and maps upon their face show that there is an entire failure to properly and legally describe a municipal district. It is claimed that the description includes a part of Berne township, without the corporate limits of Lancaster; that the south bundary line of the district is the north line of the Cleveland, A. & C. By. which includes a strip of land eleven hundred feet in length and forty feet in width, outside of the south boundary line of the corporation limits of the city of Lancaster. Section 6068 6. C. reads:

‘‘The phrase, ‘residence district,’ as used in this chapter, and in the penal statutes of this state, means a clearly described, contiguous, compact section or territory in a municipal corporation, bounded by street, corporation or other well recognized lines or boundaries, and containing not less than three hundred qualified electors nor more than five thousand qualified electors. ’ ’

An examination of the language used in the above statute can lead us to but one termination, and that is that a “residence district” must be clearly described, and that the territory therein must be a compact section or part of a municipal corporation, etc. The territory can not legally embrace any territory outside of the corporate limits.

The territory in dispute is conceded to be the right-of-way of the Cleveland, A. & C. C. By.; that no one lives upon it; that no one residing therein signed the petitions, or either of them an¿ no one having any interest in said disputed territory is claiming to be prejudiced by this proceeding.

Iiow could any one be prejudiced thereby, whether he lived within the boundaries of the parcel of land in question or in the corporate limits of Lancaster?

The only power and authority given to the residents o£ a municipality under the Jones law for local option residence districts is contained in Sec. 6140 G. C.. This statute applies to municipalities alone, and no jurisdiction is given them outside of such municipal corporations. '

How can it with any force be urged that when the petitions and maps now under consideration were drawn that it was intended that the disputed territory should be included? To us it seems clear that it was included by mistake, because an examination of the Jones law plainly indicates that no territory can be legally included outside of the municipality. We hold the rule to be, as applied to the facts in this case, where outside territory is included, that all such territory so included in the description of the district lying outside of the corporate limits of the city of Lancaster, Ohio, should be excluded, but that fact does not within itself invalidate the district lying and being within the corporate limits.

Then let us inquire, who can be prejudiced if the territory which has been included by mistake, and over which the municipality of Lancaster has no jurisdiction, is excluded? We are of the opinion that no one will suffer injury or prejudice thereby, and that the purpose and intent of all parties in interest will be fully carried out, and, further, that the legislative, intent of the provisions of Sec. 6068 will in no wise be violated. We believe that any other or different application of the provisions of this statute to the conceded facts in. this case would be a strained one, and entirely out of tune with the well known rule as applied to the construction of and application of statutory law.

Coming now to the next ground of alleged error: does the district contain an exempted block ? An examination of the bill of exceptions discloses that the block in question is a vacant tract of land, and if it is used for any purpose at this time it is for farming, which fact was conceded by counsel for plaintiff in error in oral argument. With this fact before us, we are inclined to believe that it will not now be urged that this alleged error is well taken.

The fourth and last error relied upon is as to whether or not the required number of qualified electors signed said petitions, and whether or not the evidence offered establishes the fact that they were qualified as required by Sec. 6067 G-. C.

Learned counsel for the plaintiff in error maintains that “proving a petitioner was registered in a certain precinct does not show that he is a citizen or entitled to vote. If it did, all that a man would have to do would be to get registered, and thereby prove his qualification or right to vote. The adjective ‘registered’ does not take away any of the qualifications necessary to be shown to prove that he is a voter; it only adds another and further requisite to be proven; he must still be a voter, whether registered or not, and this can not be done without showing that he is a citizen of the United' States, in addition to the other qualifications mentioned.” We are not in accord with this claim of counsel, and can not and do not subscribe to it, because it is too narrow a construction placed upon Sec. 6067 a. C.

The legislature," in enacting this section, saw fit to define therein “qualified elector,” and in order to make it clear, definite and certain as to meaning, and make a definition for the phrase “qualified elector,” as used in said statute with reference to petitions in a residence district of a municipal corporation, defines the same to be, “a registered male voter in a municipal corporation which has registration, or a male voter entitled to register therein, or a male voter of a municipal corporation which does not have registration, provided that in each case such qualified elector has been a bona fide resident of such residence district for four months before the filing of the petition upon which his name appears.”

It is therefore apparent that in the enactment of this statute the legislature has settled some things which might otherwise be difficult of proof. This section clearly and specifically defines who is a qualified elector. The statute is in no wise ambiguous. It was the purpose and intent of the legislature to so define “qualified elector,” which, it did by language clear,plain and definite, and which needs no interpretation.

The record in this case shows that more than the requisite number of petitioners was obtained, and that they were qualified electors of the district, as required by law.

It is not our purpose or intention to discuss the questions involved in this case at further length, except to say that it is not within the domain, nor is it the duty of a reviewing court to reverse a judgment of a lower court for mere technical reasons, but a reversal must be based upon errors which are apparent upon an examination of the record and found to be clearly prejudicial to the right or rights of those complaining; and after a careful examination of the evidence in this case, as presented in the bill of exceptions, and from the entire record before us a majority of the court holds that there are not such errors in the record affecting the substantial rights of the plaintiff in error as would warrant a reviewing court in reversing the judgment of the common pleas court in this case. But we do find, however, on the conceded facts in the case as disclosed by the record, that the judgment entered below should be modified by striking out of or amending the description of the territory described in the petitions, by excluding therefrom all that part of the territory included therein lying and being outside of the corporate limits of the city of Lancaster.

Judgment affirmed as modified.

Powell, J., concurs.

Shields, J., dissents.


text:
    EREOE.
    [Muskingum (5th) Court of Appeals,
    May 5, 1918.]
    Powell, Houck and Shields, JJ.

      McDonald & Frazier v. Herb Schervish.
    1. Reviewing Court Not at Liberty to Reverse Second Time on Weight of Evidence Notwithstanding Adherence to Correctness of Its Former Action.
    A reviewing court is without authority to reverse a second time on the weight of the evidence a judgment against the same party and based on the same evidence, notwithstanding the court adheres to its former opinion that the judgment is 6ne which ought to be reversed.
    2. Not Error to Refuse to Give Special Instructions to Jury, When Law Necessary for Determination of Issues is Given in Charge.
    It is not error for a trial judge to decline to submit to the jury special written propositions of law upon request of counsel after argument to the jury, where the law necessary for determination of the issues involved has been given in clear, plain and unambiguous language applicable to the case as made by the proof, in the court’s general charge.
    [Syllabus by the court.]
    ERROR.

      E. E. Meyer and A. A. George} for plaintiff in error.

      John C. Bassett, for defendant in error.

       For previous opinion in this case, see McDonald & Frazier v. Schervish, 38 O. A. & C. 405.

   HOUCK, J.

The case now before us for judicial determination is one in error and comes from the common pleas court of Muskingum county. The parties here stand in this court in the same relation to each other as in the court below.

The suit of plaintiff was based on a promissory note on which it claimed judgment for $152 with interest at six per cent, from April 9, 1914. The petition set forth that said note was executed by the defendant, payable to McDonald & Wagner, and bore the date of February 9, 1914, falling due in two months with interest at six per cent, after maturity; and that plaintiff was the successor of the firm of McDonald & Wagner and was, at the time of filing suit, the owner and holder of said note and entitled to recover on same.

The answer of defendant set up the following defenses:

1. That there was no consideration for the note.

2. That the note was given without interest until after due, which was done for the purpose of inducing the defendant to take an insurance policy on his life, for which the note in question was given in settlement of the first year’s premium.

3. That the defendant was induced to take said insurance by reason of certain false and fraudulent statements made to him by McDonald & Wagner, namely, that said policy, at its maturity, which was twenty years, would yield in cash about $5,000, providing the annual premiums were paid as provided in the policy; that said representations and .statements were false and known to be so by the original payees at the time they were made and at the time of the execution and delivery of said note.

Plaintiff filed a reply to the answer, being, in effect, a general denial of all the material averments in the answer.

Trial was had to a jury and a verdict returned for the defendant. The usual motion for a new trial was filed and overruled by the court and judgment entered accordingly. The errors complained of, and for which a reversal of the judgment is sought, are two: ,

1. That the verdict and judgment are against the manifest weight of the evidence.

2. That the trial judge erred in his refusal to submit to the jury, after counsel had argued the case to the jury, certain written propositions of law, as requested on the part of plain-' tiff.

As to the first alleged error, we will state that this is the second time this case has been before us for review. The first time we reversed it for the reason that the verdict of the jury was clearly against the manifest weight of the evidence.

We have made a careful examination of the record now before us and find that the verdict of the jury was based upon the same evidence and proven facts as the verdict in the former ease, and if we were not precluded, by the statute, from so doing, and the decisions of our courts thereon, we would reverse it a second time for the same reason as in the first instance.

Section 11577 G-. C. reads:

“The same court shall not grant more than one new trial on the weight of the evidence against the same party in the same case, nor shall the same court grant more than one judgment of reversal on the weight of the evidence against the same party in the same case. ’ ’

This court as now constituted has passed upon this question and construed the above statute in the case of Fruit Dispatch Co. v. Lisey & Co. 38 O. A. & C. 496 (22 N. S. 7; 4 App. 300). The Supreme Court of our state has also passed upon the same question and construed this statute, as appears in Mahoning Valley Ry. v. Santoro, 93 Ohio St. 53, 61 [112 N. E. 190], where the court say:

“The sole and exclusive purpose of See. 11577 G-. C., is to limit the number of reversals on the weight of the evidence by the same reviewing court. By the constitution, it is said three must concur before you can reverse on the weight of the evidence. By the statute, it is provided that you can thus reverse on the weight of the evidence but once. In this view of the case, the constitutional provision and the statutory section are not only fairly reconcilable by a fair course of reasoning, but, on the contrary, there is no semblance of conflict or repugnancy between them.”

It is apparent from what we have already said, that by statutory enactment and judicial decision the same court shall grant no more than one new trial on the weight of the evidence against the same party, and but one judgment of reversal on the weight of the evidence against the same party in the same ease. It therefore follows that we are wholly without authority of law to reverse the judgment in the present case upon the ground that it is against the manifest weight of the evidence.

Coming now to a discussion of the second ground of alleged error, we think the rule is well settled that all of the parties to a lawsuit are entitled to have the law, necessary for a proper determination of the issues presented, given to the jury in clear, plain, and unambiguous language applicable to the case made by the proofs. And where the trial judge fully complies with this rule in his general charge to the jury, it is not error to refuse to give, after argument of counsel, special charges, if the substance of such charges is given in the court’s general charge.

From our examination of the general charge of the trial judge, in the case at bar, we are convinced that he fully and completely submitted to the jury every proposition of la.w essential to the ease, as raised by thé pleadings and facts, necessary for a correct and proper determination of the rights of the parties to the case under review.

Further discussion of the errors complained of seems unnecessary. The record presents no errors prejudicial to the rights of plaintiff in error, and for that reason the judgment below is affirmed.

Powell and Shields, JJ., concur.


author: FARR, J.

text:
    LANDLORD AND TENANT.
    [Mahoning (7th) Court of Appeals,
    October 11, 1917.]
    Pollock, Metcalfe and Parr, JJ.
    Kate E. White v. George M. Smith.
    Landlord not Legally Bound to Relet on Abandonment of Premises by Tenant.
    Where a tenant abandons the leased premises the landlord is under no legal obligation to relet such premises and in an action to recover the rentals accruing after such abandonment the tenant cannot interpose as a defense want of reasonable diligence to re-rent the same.
    [Syllabus by the court.]
    Error.

      McKain & Old, for plaintiff in error.

      William Zimmerman, for defendant in error.
   FARR, J.

This is a proceeding in error prosecuted in this court from the judgment of the court of common pleas of Mahoning county. The parties sustain the same relation here as in the court below.

On January 28, 1916, plaintiff in error began an action in the municipal court of the city of Youngstown against defendant in error to recover the sum of $168.00 and costs; the principal part of said sum for which recovery was sought was for certain installments of rentals falling due by the terms of a certain agrément in writing made and entered into between said parties for the period of one year beginning on May 1, 1915, for the use and occupancy of certain premises belonging to plaintiff in error and situated at 360 Crescent avenue, Buffalo, N. Y.

To the statement of claim of plaintiff below, the defendant filed a statement of defense claiming that on or before October 31, 1915, he surrendered his lease to plaintiff and delivered possession of said premises to her and that such surrender was duly accepted and that thereupon plaintiff rented or could have rented said premises to another tenant at a rental equal to that specified in the lease. Trial was had and a judgment entered for plaintiff in the sum of $158.50. An appeal was taken to the court of common pleas of this county, where said cause was tried to a jury and a -verdict rendered for the defendant upon which judgment was entered and from which error is prosecuted here.

There are two principal assignments for error: First, that the court erred in its charge to the jury; second, that the verdict is against the weight of the evidence. That part of the charge of the trial court for which error is assigned reads as follows:

"If he left the premises, then there was an obligation resting upon the plaintiff, and that obligation was in law that she should, in good faith, exercise due diligence in attempting to find a tenant; but, if she in good faith, exercised due diligence to obtain a tenant and failed to obtain one, then she can recover for this amount if she could not obtain a tenant until the first day of April, 1916. But if, on the other hand, she did not exercise good faith, and exercise reasonable diligence to obtain a tenant, then I say to you from the time she could have obtained a tenant, then she is not entitled to recover. ’ ’

The record discloses and it is conceded that the defendant Smith vacated said premises on or about October 22, 1915, but paid the rent to the first day of November following. On October 25, 1915, James R. "White, who in the rental of said premises, had acted as the agent of his sister, Kate E. White, wrote Mr. Smith inquiring as to what he purposed to do in regard to said lease and stating that as the same did not expire until the first of the next May, that he had no other alternative than to hold him to the terms of the lease. The record discloses that an effort was made by Kate E. White or her agent to secure a suitable tenant but none was obtained and said premises were not relet until April 1, 1916, after which no rentals are claimed. Testimony was offered by the defendant for the purpose of showing that plaintiff consented to the surrender of said premises by defendant and that plaintiff failed to use reasonable diligence to relet or rerent the same, and it is also urged in argument, and in fact it is the principal issue raised, that when the defendant vacated said premises, it was the duty of plaintiff to use reasonable diligence to rerent the same; or, in other words, it is claimed that if' a lessee abandon the leased premises before the expiration of his term, it is the duty of the lessor to use reasonable diligence to relet said premises and if he fails to do so he cannot recover the installments of rental accruing after such abandonment.

In 3 Sutherland Damages, Sec. 844. p. 3111, it is provided that:

“The landlord is under no obligation to rent premises which have been abandoned by a tenant. ’ ’ .

Numerous cases are cited in the note to and in support of the foregoing text. Likewise it was held in Gray v. Kaufman Dairy & Ice Cream Co. 41 N. Y. Supp. 73, as follows:

“Where a tenant abandons the demised premises, it is not the duty of the landlord to relet, in order to reduce his claim for damages against the tenant.”

To the same effect it is held in Merrill v. Willis, 51 Nebr. 162 [70 N. W. 914]; Becar v. Flues, 64 N. Y. 518; Mfg. Co. v. Dinwiddie, 116 N. Y. Supp. 716; Milling v. Becker, 96 Pa. St. 182; Underhill v. Collins, 15 N. Y. Supp. 495 [60 Hun. 585]; 132 N. Y. 269 [30 N. E. 576]; likewise in 24 Cyc. 923, note 18, and Goldman v. Boyles, 141 S. W. 283, 6th paragraph of the syllabus, and in Ran v. Baker et al. 118 Ill. App. 150, it was held that:

“Where a tenant wrongfully abandons demised premises, he cannot interpose the want of diligence of his landlord in failing to rerent the premises as a defense to an action for the rent accruing after such abandonment.”

The foregoing is well in point with the instant ease in which the want of diligence on the part of the landlord to relet is sought to be interposed as a defense.

In the well considered case of Higgins v. Street, 19 Okla. 45 [92 Pac. 153; 13 L. R. A. (N. S.) 398, 14 Ann. Cas. 1086], it is held that:

“If a tenant wrongfully abandons leased premises before the expiration of the term, the landlord may, at his election, at once enter and terminate the contract and recover the rent due up to the time of abandonment, or he may suffer the premises to remain vacant and sue on the contract for the entire rent, or he may give notice to the tenant of his refusal to accept a surrender, when such notice can be given, and sublet the premises for the unexpired term for the benefit of the lessee to reduce his damages.”

The foregoing is clear and explicit and is supported by many eases of favorably recognized jurisdictions. And why not ? A lessor and lessee enter into a valid binding contract for a fixed and definite period, during all of which the lessee is for some purposes the owner of the demised premises and may exercise dominion and control over the same, even to the exclusion of the lessor; therefore it is but fair that the lessor should rely upon him to do so. The lessee may rely and rest upon the letter of his contract, and occupy without let or hindrance to the end of his term; the lessor has equal rights and may depend upon the lessee to do so or pay his rentals just the same. The lessor may elect to do otherwise, and if able to secure a suitable tenant should relet such premises and under such circumstances it might be said would be morally bound to do so, as observed in Shipman v. Stone, 88 O. A. & C. 504 (16 N. S. 466, 468), as follows :

“It is the landlord’s moral duty, if not his legal duty, to ease the tenant by reletting for the best rent he can get, and his so doing does not of itself work a surrender of the lease.”

However, the landlord is in nowise legally obligated so to do. He may rest upon the terms of his rental agreement and leave the disposal of the demised premises for the remainder of the term at the option of the lessee.

Therefore, the above instruction by the trial court was prejudicial error. Application of the foregoing principles would necessarily work a l’eversal on the weight of the evidence, and the judgment is therefore reversed.

Pollock and Metcalfe, JJ., concur.


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

text:
    COUNTIES.
    [Butler (1st) Court of Appeals,
    March 13, 1916.]
    Jones, Jones and Gorman, JJ.

       State, ex rel. Landis v. Butler Co. Comrs. et al.
    1. Technical Precision in Construing County Commissioners’ Records Not Required.
    In construing the records of county commissioners, acting within the scope of their authority, to ascertain whether or not they have followed certain statutory requirements, technical precision will not be required. It will be sufficient if it appear, though informally, from a reasonable construction of the whole transcript of the proceedings, that these requirements have been observed.
    2. Legitimate Discretion of County Commissioners Not Interfered With by Courts.
    It is not a proper exercise of the judicial powers of a court to interfere by injunction with the legitimate discretion of county commissioners, so long as that discretion is being honestly exercised by them in good faith within the limits of the powers conferred by statute.
    3. Clerk of Board of County Commissioners Not County Officer.
    The duties of the clerk of the county commissioners, appointed under the provisions of Sec. 2409 G. C., are purely clerical in their nature, and not of a character that would require independent official action such as would constitute the clerk a county officer under the provisions of the Constitution of Ohio.

      Andrews & Andrews, for plaintiff.

      Ben. A. Bickley, Pros. Atty., and W. G. Shepherd, for defendant.

       Affirmed, State v. Butler Co. (Comrs.) 96 Ohio St. 157.

   JONES (O. B.), J.

This is a taxpayer’s snit to enjoin the board of county commissioners from employing William W. Crawford as clerk of such board, and from the payment of any money to him for salary under such employment, and to order the return and restoration to the auditor’s office of the books and records of the board of county commissioners.

The relator, Samuel C. Landis, states in his supplemental petition and the amendment thereto the following reasons why such employment and expenditure of money would be unlawful:

“1. That it is not necessary for the clerk of said board to devote his entire time to the discharge of the duties of such position.
“2. That said board of county commissioners did not by said resolution resolve that it was necessary for the clerk to devote his entire time to the discharge of the duties of such position.
“3. It does not require more than a few hours per week to perform the duties of clerk of said board.
“4. To carry out said contract would require the expenditure of $1,500 per annum of the public money for services which can be easily performed by the auditor of said county without any cost to the county.
“5. That said services as clerk of said board have always heretofore for many years been performed by the auditor of said county without any cost to the county, and there is no reason why the same can not hereafter be so performed.
“6. Said board of county commissioners did not investigate the facts, and did not sit as a board of inquiry on the facts and on the necessity for the employment of said clerk.
“7. Said board of county commissioners did not find it was necessary for the employment of such clerk, and made no finding whatever on the subject.
“8. That said board of county commissioners did not find that it was necessary for the clerk to devote his entire time to the duties of his position.
“That the statute under which said commissioners made such appointment of said clerk is unconstitutional.”

Provision is made in Sec. 2566 G-. C., that the county auditor shall be the secretary of the county commissioners. Said section is as follows:

“By virtue of his office, the county auditor shall be the secretary of the county commissioners, except as otherwise provided by law. When so requested, he shall aid them in the performance of their duties. He shall keep an accurate record of their proceedings, and carefully preserve all documents, books, records, maps and papers required to be deposited and kept in his office. ’ ’

This same section was formerly See. 10 of the act prescribing the duties of county auditors, passed April 4, 1859 (56 O. L. 128; 1 S. & C. 97). In this original form it reads as follows:

“The county auditor shall by virtue of his office, be clerk to the board of county commissioners of his county, and shall keep an accurate record of their corporate proceedings, and shall carefully preserve all the documents, books, records, maps, and other papers, required to be deposited or kept in his office. ’ ’

Authority is given the commissioners to appoint a clerk under Sec. 2409 G. C., which is as follows:

“If such board finds it necessary for the clerk to devote his entire time to the discharge of the duties of such position, it may appoint a clerk in place of the county auditor and such necessary assistants to such clerk as the board deems necessary. Such clerk shall perform the duties required by law and by the board. ’ ’

Certain duties are prescribed by statute for the' clerk, some of them being set up in Secs. 2406, 2407, 2522 and 2531 G. C.

The resolution under which the employment objected to was made was adopted by the board of county commissioners at its meeting September 20, 1915, by a vote of two yeas and one no. The vote not being unanimous, under the provision of Sec. 2414 G. C., the resolution was again voted on at the meeting of October 16, 1915, at which time the following resolution was adopted by the yea vote of each of the three commissioners:

“Resolved, by the board of county commissioners of Butler county, Ohio, That the resolution adopted by this board September 20, 1915, be amended to read as follows:
“That, whereas, the board of county commissioners of Butler county, Ohio, deems it necessary to have a clerk who can devote his entire time to the discharge of the duties of such position,
“Therefore, he it resolved, by the board of county commissioners of Butler county, Ohio, that commencing October 18, 1915, W. W. Crawford be and is hereby employed as clerk of this board at a salary of $125 per month, payable monthly. Such clerk shall perform the duties required by law and the board. ’ ’

It is contended by relator that the board of county commissioners did not by this resolution, or by any other action, find that it was necessary for the clerk to devote his entire time to the discharge of such position, and counsel argue that without such finding no power exists under the law for the appointment of a clerk.

The criticism made by counsel for relator is well taken in that the language employed in the preamble of the resolution as passed is not in its effect the same as the finding required under Sec. 2409, before an appointment of clerk can be made. In other words, it is not the same “to have a clerk who can devote his entire time” as it is “for the clerk to devote his entire time.”

It is further insisted by counsel that the record itself must show that the board upon full consideration, and possibly on hearing evidence, or at least after considerable experience had by each member in the performance of his' official duty, must make an official finding of the necessity for the clerk to devote his entire time to the discharge of the duties of the position before any appointment can be made.

It is insisted that the word “finds” has a technical meaning which requires personal experience, or something equivalent to the hearing of evidence and a judicial consideration of the necessity, and the arrival at a judgment or judicial decision in the matter; and that the word “deems,” which is used in the commissioners’ resolution and found in Secs. 2410, 2411 and 2412, means something different from the word “finds” as used in Sec. 2409. Counsel have submitted dietionary definitions of these two words, one of the definitions given for “deem” being “to hold in * * * opinion; decide as a conclusion; consider, regard, believe;” among thos'e for “find,” “to discover through the perceptions or feelings; learn by experience; perceive; ascertain. To decide after judicial investigation.” It will be seen, therefore, that there is no substantial difference in the meaning of the two terms as used in the section referred to, and that what was necessary for the board of commissioners, in order to act under Sec. 2409, was to become convinced after proper inquiry and consideration in good faith that the necessity existed for the employment of such clerk.

The rule for the construction of the records of inferior tribunals such as county commissioners has been laid down in the first paragraph of the syllabus of Lewis et al. v. Laylin, et al., 46 Ohio St. 663 [23 N. E. 288], as follows:

“In construing the records of inferior tribunals, acting within the scope of their authority, to ascertain whether or not they have followed certain statutory requirements-, technical, precision will not be required; it will be sufficient if it appear, though informally, from a reasonable construction of the whole transcript of the proceedings that these requisites have been observed.”

With this rule in mind, a fair construction of the resolution as adopted, taken in connection with the evidence set out in the record, convinces the court that the members of the board of commissioners did fairly consider the necessity for a clerk to devote his entire time to the discharge of the duties of the position, and that their intention in the passage of the resolution was to record such finding. There is evidence to show that one member of the board had served in that capacity at least one year, and the other two members had by personal inquiry and observation informed themselves in regard to their duties in this matter. There seems to be no more reason why members should be required to have months of experience, to pass upon a question such as this, than that similar experience should be required to exercise other official duties devolving upon them.

The evidence shows that there is, as might be supposed, a difference of opinion as to the necessity and wisdom of the employment of such a clerk. It discloses, however, that there is sufficient work to occupy the entire time of a clerk for the benefit of the county, whether that clerk be one employed directly by the board, or the county auditor in person, or one of his deputies; and, while the auditor himself would receive no additional compensation by reason of his duties as such clerk, if he performed that service, it is shown by-the evidence that in practice it has been customary while he was the secretary of the board for the actual work to be done by one or more of his deputies, so that in any event the cost of the work would be paid from the public treasury.

In this ease there is no charge made of fraud or bad faith upon the part of the commissioners. The most that can be claimed for the petition is a charge of abuse of discretion or mistaken judgment on their part. Relator practical!y asks the court to substitute its judgment and official discretion, as to the necessity for this employment and expenditure for that of the commissioners.

No matter what the personal view of the judges composing this court might be, it would not be a proper exercise of the judicial powers of the court to interfere by injunction with the legitimate discretion of the county commissioners so long as that discretion is being honestly exercised by them in good faith within the limits of the powers conferred by statute. Mechem, Public Officers, Sees. 990, 991.

No such abuse of discretion or lack of good faith appears in the record as would require interference by the court.

It is contended, however, that Sec. 2409 G-. C. is unconstitutional, inasmuch as the duties imposed by law upon the clerk of the county commissioners are of such a nature that he is necessarily a county officer. Numerous cases are cited in the briefs of counsel as to the difference between an officer and an employee. A careful consideration of the duties of this clerk, as set out in the statutes, shows that they are purely clerical in their nature, and not of a character that would require independent official action such as would constitute the clerk a county officer under the provisions of the Constitution.

In Kloeb v. Mercer Co. (Comrs.) 26 O. C. C. 152 (4 N. S. 565), it was held that the county auditor is a public officer, and that he is in no respect a mere clerk of the board of .county commissioners, thus making the plain inference that such clerk is not an officer.

That part of old See. 845 R. S., which provided for legal counsel, was held unconstitutional in State v. Cannon, 31 O. C. C. 236 (12 N. S. 103) and in Ireton v. State, 31 O. C. C. 412 (12 N. S. 202), for the reason that official discretion was attempted to be vested in legal counsel, mere appointees of the commissioners,. who were thus, as to all civil matters, given the full authority conferred by law upon prosecuting attorneys. There are numerous cases in Ohio illustrating the difference between an officer and an employee, which it is not necessary to review. Among the many citations given by counsel are 29 Cyc, 1361; State v. Halliday, 61 Ohio St. 171 [65 N. E. 175]; State v. Brennan, 49 Ohio St. 33 [29 N. E. 593], and State v. Jennings, 57 Ohio St. 415 [49 N. E. 404; 63 Am. St. 723].

In our opinion Sec. 2409 is constitutional.

The only other matter to be considered is as to the custody of the records of the county commissioners.

Section 2405 G. C., -provides that the meetings of the board shall be “at the office of the auditor, or the usual office of the commissioners,” and Sec. 2407 G-. C. provides that “'When the board is not in session, the record book shall be kept in the auditor’s office, and open at all times to public inspection.” A careful examination of the numerous laws in regard to the meetings of the county commissioners, and the experience of the different counties in the state, would indicate that at least in the smaller counties the auditor’s office is the office used by the commissioners. The statute requires that the commissioners shall furnish an office for the auditor. In many counties there are several rooms provided. In Hamilton county, we are informed, all of the rooms that are occupied by the commissioners for the board meetings, and for the engineer’s offices and road records, all of which are apart from those of the auditor, are designated by resolution on the minutes as part of the auditor’s office, so that a literal compliance may be had with the statute.

In the opinion of the court these statutes are at best directory. The purpose of the law is that the records should be safely kept, and that they should be accessible to the public as public records open for inspection at reasonable times. There is nothing in the record of this case to show that the spirit of the law has been violated in that respect, and, if it should be deemed necessary, in order to comply literally with the statute, it is a simple matter for the commissioners to designate as a part of the auditor’s office the rooms in. which they may find it necessary to have their records stored. When the commissioners’ office is open at the same hours as the auditor’s office, with a clerk present to answer questions and furnish information, and opportunity afforded any tax-payer who may desire to inspect the minutes and other records, it would appear to be entirely unnecessary for him to carry the books from the commissioners’ room to the auditor’s room and place the burden upon the auditor or one of his clerks or deputies to care for them and furnish information in regard to them.

The record fails to show any reason why this court should intervene by injunction to interfere with the proper custody of its records by a board of county commissioners.

The petition will therefore be dismissed at the costs of the relator.

Jones (E. H.) and Gorman, JJ., concur.


author: JÜNES (E. H.), J.

text:
    MECHANICS’ LIENS.
    [Hamilton (1st) Court of Appeals,
    July 19, 1915.]
    Jones, Jones and Gorman, JJ.
    Rule v. Automatic News Distributing Co.
    1. Mechanics’ Lien Effective Without Real Estate.
    It is not necessary in order for a mechanic’s lien to be effective that there must be real estate of the lien debtor to which it can attach.
    2. Machines not Permanent Fixtures to Rea! Estate Subject to Mechanics’ Lien.
    Where machines are sold for and used in erecting, altering or repairing a manufactory of the purchaser, and such machines are not attached or fastened to the building or land in such a way as to make them permanent fixtures, the seller has a mechanic’s lien upon such machines.

      Gatch é McLaughlin, for tbe E. A. Kinsey Co.

      Overbeck, Katienhorn é Park, for Jos. W. Conroy, Reer.
   JÜNES (E. H.), J.

Tbe question this court is called upon to decide pertains to the validity of a mechanic’s lien held and sought to be enforced herein by the B. A. Kinsey Company. The claim secured by the lien amounts to about $972, with interest, which sum represents the value of two machines furnished by the E. A. Kinsey Company to the Automatic News Distributing Company, for which a receiver was appointed after the purchase of the machines.

It appears that the machinery in question has been sold by the receiver, and the proceeds are held under stipulation, subject to the determination of the question arising on said lien. This question of the validity of the lien arises in the action originally brought for the appointment of the receiver, upon the intervening petition of the B. A. Kinsey Company seeking the enforcement of its lien.

The questions involved and discussed in the able briefs of counsel are important. We regret that time will not permit a reference to and discussion of the cases cited by counsel in support of their respective contentions.

The main question is of much importance and merits careful consideration, which it has received at our hands. It involves the construction of Sec. 8308 G. C., which is as follows:

“Every person who does work or labor upon or furnishes machinery, material or fuel for constructing, altering, or repairing a boat, vessel, or other water craft, or for erecting, altering, repairing or removing a house, mill, manufactory, or any furnace or furnace material therein, or other building, appurtenance, fixture, bridge, or other structure, or for digging, drilling, boring, operating, completing or the repairing of any gas well, oil well, or other well, or performs labor in altering, repairing, or constructing any oil derrick, oil tank, oil or gas pipe line, or furnishes tile for the drainage of any lot or land by virtue of a contract, express or implied, with the owner, part owner or lessee, of any interest in real estate or the authorized agent of the owner, part owner, or lessee of any interest in real estate, shall have a lien to secure payment thereof upon such boat, vessel, or other water craft, or upon such house, mill, manufactory, furnace, or other building, or appurtenance, fixture, bridge, or other structure, or upon such gas well, oil well, or other well, or upon such oil derrick, oil tank, oil or gas pipe line, and upon the material or machinery so furnished, and upon the interest, leasehold or otherwise, of the owner, part owner, or lessee in the lot or land upon which they may stand, or to which they may be removed.1 ’

The machines furnished by the E. A. Kinsey Company to the Automatic News Distributing Company were placed in a factory used for making vending machines. The space occupied by said factory was part of a .factory building owned by the M. A. Hunt Company, and such space- was leased by the Automatic Machine Manufacturing Company, by written lease duly recorded, prior to the purchase of the machines by the Automatic News Distributing Company from the E. A. Kinsey Company. These machines, it is admitted, form no part of the realty, and were not attached or fastened to the building or land in such a way as to make them permanent fixtures. In fact, one of the machines at the time the receiver was appointed had never been used. The question is: Does Sec. 8308 G. C., above quoted, authorize a lien upon this machinery in favor of the E. A. Kinsey Company? It is contended by the receiver that inasmuch as the lease was held by the machine company, instead of by the news company (which latter company, as will be borne in mind, purchased the machines) there can be no lien; that in order for the lien to be effective there must be some real estate of the lien debtor to which it can attach; and that this lease being held by another company makes it impossible for the E. A. Kinsey Company to acquire any rights as against the lessee.

There is some question raised by the evidence and the admitted facts as to whether these two companies were really different, or were, in fact, one company operating under two separate names. Under the view we take of this ease this question becomes unimportant. The news company was without question operating this factory. Its name appeared over the door, the machine company had formerly operated a factory on Fourth street; the news company had taken over its machinery and equipment and removed it to the present location. Under these circumstances there can be no doubt but that the news company, the purchaser of these machines, was operating the plant. That there was a lease for the real estate on record, to some one else, does not change this fact.

It will be noticed that See. 8308, using only the words thereof that are applicable to this ease, says:

“Every person who * * * furnishes machinery * * * for erecting, altering, repairing or removing * * * a * * * manufactory * * * shall have a lien to secure payment thereof upon such * * * manufactory * * * and upon the material or machinery so furnished, and upon the interest, leasehold or otherwise, of the owner, part owner, or lessee in the lot or land upon which they may stand or to which +-hey may be removed.”

We have examined the cases cited in the briefs, as well as other authorities, and, after all, feel that we must be controlled by the provisions of the law of our state, so far as that law applies to the case before us. A mechanic’s lien is purely a creature of the statute, and in every case involving a mechanic’s lien the main question must necessarily be, What does the statute provide? We have asked ourselves that question in this ease, and will answer it by saying that we believe Sec. 8308 G. C. gives the E. A. Kinsey Company a right of lien upon the two machines furnished by it, and which were used in erecting, altering or repairing the manufactory of the person with whom it contracted for the sale of the machines.

Authorities are cited, and are numerous, in support of the proposition that a lien could not have been secured upon these machines, or upon other machines placed as these were in a factory, by some one who had furnished labor or material for the construction of the building wherein the factory was located. It is obvious that in such a ease a mechanic’s lien could only be obtained upon the building and such machinery as was a part of it under the law relating to fixtures.

The question here presented is not such a question as is discussed in those cases. The E. A. Kinsey Company only claims a lien upon the two machines which it sold and which went into and became a part of the factory. They were machines that were necessary, and that greatly added to the output and efficiency of the factory.

By its intervening petition the lien holder does' not seek to enforce a lien upon the real estate, the leasehold, or any property, real or personal, except these two machines. The statute, under a fair construction, as we think, gives it the lien which it seeks to enfoi’ce. In support of this construction we refer to the ease of Kinsey Co. v. Heckermann, 224 Fed. 308 [139 C. C. A. 544]. By reference to that decision it will be found that the learned judge so construed See. 8308 G-. C., as to uphold the lien contended for by the E. A. Kinsey Company in this ease.

The prayer of the intervening petition will therefore be granted.

Judgment accordingly.

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


author: METCALFE, J.

text:
    EXECUTORS AND ADMINISTRATORS.
    [Lake (7th) Court of Appeals,
    March, 1918.]
    Pollock, Metcalfe and Parr, JJ.
    Croxton Mining Co. v. Sterling W. Hubbard, Admr.
    Failure of Administrator to Give Notice of Appointment Prevents Limitations Running.
    By Sec. 10757 G-. C., a new administrator is required to give notice of his appointment, and where he fails to do so, the limitation provided by Sec. 10722 will not avail as a defense to an action brought more than six months after the rejection of the claim.
    [Syllabus by the court.]
    '%3rrOB.

      Squires, Sanders & Dempsey and Harry E. Hammer, for plaintiff in error.

      Holden, Hasten, Duncan <& Leckie, for defendant in error.
   METCALFE, J.

This case was certified to this court from Lake county. Plaintiff here was plaintiff below and seeks to recover from the defendant, as administrator, etc., upon two promissory notes aggregating about $18,000. These notes were executed by the firm of Drake, Bartow & Company to the plaintiff, the Crox-ton Mining Company.

The facts necessary to an understanding of the question before us are substantially as follows: The plaintiff is a mining company operating in Minnesota. The firm of Drake, Bar-tow & Company were dealers in iron ore and as such firm executed the notes in question to the Croxton Mining Company some time in the year 1910. In 1912 Mr. Drake died and by his death the firm was dissolved, and soon afterwards an action was brought by the plaintiff upon these two notes against John H. Bartow, as one of the members of the firm of Drake, Bartow & Company.

Before the case was tried Mr. Bartow died and the action against him was dismissed. After the death of Mr. Bartow, Pauline L. Bartow was appointed executrix of his will. The plaintiff’s claim was then presented to Pauline Bartow, as such executrix, but, before she had acted thereon, she died and the defendant, Sterling Hubbard, was appointed administrator with the will annexed, and on December 4, 1913 , he rejected the claim.

After. Mr. Hubbard’s appointment as such administrator with the will annexed, he failed to give notice of his appointment and he has never given such notice. Before the expiration of six months following the rejection of the claim a petition was filed against Hubbard, as administrator, and summons issued, which was returned not served, the defendant not being found in the county. No alias summons was issued until about seven months after the rejection of the claim, when such summons was issued and served upon the defendant.

It is claimed that by reason of the fact that more than six months passed from the date of the rejection of the claim until summons was served upon the defendant that the action was barred by the statute, of limitations. That is the only question we have to determine, and such determination depends entirely upon the construction to be given to the language of See. 10757 G. C.

Section 10722 G. C. provides:

1 ‘ If the claim against the estate of á deceased person be exhibited to the executor or administrator before the estate is represented insolvent and be disputed or rejected by him, and has not been referred within six months after such dispute or rejection, if the debt, or any part of it, be then due, or within six months after some part becomes due, the claimant must commence a suit for the recovery thereof or be forever barred from maintaining an action thereunder. No action shall be maintained thereon after such period by a person deriving title thereto from such claimant.”

It would seem to be an undisputable proposition that under the provisions of this section the plaintiff is barred, unless there is some saving clause in the statute which would relieve him from the necessity of beginning his action within six months from the date of the rejection of the claim.

It is claimed that such saving clause is found in the following provision of Sec. 10757:

"The new administrator shall give notice of his appointment in the manner prescribed with respect to an original administrator. If he fails so to do he shall have no benefit of the limitations herein provided.”

Mr. Hubbard did not give notice of his appointment as new administrator of Mr. Bartow’s estate, nor was such notice given by the probate judge.

The language of this section is plain and unequivocal, "If he fails to do so, he shall have no benefit of the limitations herein provided.” This does not merely grant to the plaintiff a right, but it is an absolute prohibition to the administrator and takes away his right to plead the limitations "herein provided.” As before stated, such notice was not given, but it is claimed “that under the present provisions of the law such notice is not now required. As the' law formerly stood, the administrator was required to himself publish- notice of his appointment.

Section 6097 R. S. has be.en amended and as it now stands as Sec. 10712 G. C., provides that within one month after bond has been given by the executor for the discharge of his trust, the probate judge shall cause notice of the appointment to be published in some newspaper of general circulation in the county in which the letters were issued, for three consecutive weeks.

Section 10757 G. C., however, remains unchanged, but it is urged that the requirement of that section that the “new administrator” give notice of his appointment is of no effect because the original administrator is not now required to give notice himself, but the duty to give such notice rests upon the probate judge.

What is the object of requiring notice to be given of the appointment of an executor or administrator? It is not for the benefit of the administrator. Plainly, it is for the benefit of the creditors alone that they may know within what time their claims must be presented. The object of the statute is not to require some particular person to give such notice, but to make sure that such notice shall be given. The fact that when the legislature saw fit to amend Sec. 10722 it did not amend Sec. 10757 could not affect the manifest purpose of the statute. The reason for the requirement that notice be given upon the appointment of a new administrator is just as apparent as the reason for giving notice of the appointment of the original administrator. The creditors have a right to presume that after the death or removal, as the case may be, of the original administrator, matters regarding the estate will remain in statu quo until notice is given of the appointment of the new administrator. The language of the statute is clear, plain and unequivocal, and to hold that upon the appointment of a new administrator no notice is required to be given is to ignore its provisions.

The limitations “herein provided” we think, plainly refer to the limitations upon the bringing of suits provided for in Chap. 3, Title 3, G. C.; and the language of Sec. 10757 is controlling as to all such limitations.

In Pollock v. Pollock, 1 Circ. Dec. 408 (2 R. 140), it is held that it is error for the court to render judgment on a claim against the estate of a deceased person where the claim had been rejected more than six months before the action is commenced, and the failure of the executor to plead the statute did not give a right to a judgment. This decision only relates to the effect of the six months' limitation, where the fact which under See. 10757 suspends the operation of See. 10722 does not exist.

In the case of Miller v. Ewing, 68 Ohio St. 176 [67 N. E. 292], the only question, so far as it bears upon this ease is, whether an unequivocal statement made by an administrator to a claimant that the claim was rejected and he would get-nothing on it unless at the end of a law suit, such was a rejection as would set the six months’ limitation to running? The court held that it was, but no question of the suspension of the limitation was raised, and so in the case of Harris v. O’Connell, 35 Ohio St. 136 [97 N. E. 49], there is no question raised as to the suspension of the statute by the failure to give notice.

In the case of Ward, In re, 12 Circ. Dec. 44 (21 R. 753), the question is raised as to the right of the administrator himself to take advantage of the failure to give notice of the appointment in the prosecution of a claim in his own favor, the court say:

“Now, if he fails to give notice, he being the executor himself, if he fails to perform this duty which the statute imposes upon him, we are of the opinion that he can not take advantage of his own wrong. * * * He can not take advantage of his own neglect to publish notice.”

In Ardrey v. Shell, 77 Ohio St. 218 [82 N. E. 1075], the holding is to the effect that the proof of publication of the notice of the appointment of the executor or administrator forms no part of the notice to creditors, and is not for the benefit of creditors; and that where the notice is given by publication as required by law, but, the proof of such publication is not filed for more than a year after giving bond, the two years’ limitation provided by Sec. 6113 R. S. (Sec. 10746 G. C.), will begin to run from the date of the giving of the bond. No other question provided by Sec. 6113 R. S. (Sec. 10746 G. C.), will begin how it has any application here. Plainly, to us none of these cases sustain the contention of the defendant in error.

We are unable to find that the question here involved has been passed upon in Ohio. We do, however, find some enlightening decisions from, other states. In Whiggins v. Lovering, 9 Mo. 259, the first paragraph of the syllabus is:

“The limitations of three years does not apply to demands against an estate unless the executor or administrator give notice of the grant of letters of administration as required by law. ’ ’

And in the opinion, page 264:

“But although an executor or administrator can not waive this bar or destroy its effect, yet he may by his negligence in giving notice of his appointment prevent its accruing, and in such case if either of the parties suffer a loss it must be the heirs or devisees and not the creditors.”

In Emerson v. Thompson, 16 Mass. 428, the court say on page 431:

* * if either of the parties suffer a loss it must lie the heir or devisee and not the creditor; it is contrary to the plain words of the statute to bar the creditor unless the notice is given as therein prescribed. ’ ’
“It is the duty of an administrator de bonis non to give notice of this appointment the same as a general administrator.” 1 Rockwell, Probate Practice, 160-166.
“The failure of the administrator to publish notice to the creditor of his appointment as required by statute is generally fatal to the interposition of this plea.” 2 Woerner, Law of Administration, page 841.
“The executor or administrator can not avail himself of the six months! statute of limitations unless he has strictly complied with the statute requiring him to obtain an order of the surrogate for the publication of a notice to creditors to present their claims and has published the proper notice.” Hardy v. Ames, 47 Barb. 431; Elliott v. Cronks, 13 Wend. (N. Y.) 35; Wickmore v. Foos, 1 Denio, 59; Byron v. Monday. 17 Mo. 557; Gardner v. Callaghan, 61 Wis. 54; Sewell v. Ballantine, 23 Mass. (6 Pick.) 276; Corliss Steam Engine Co. v. Schumacher, 109 Mass. 417.

We think these decisions clearly show that the purpose of the statute requiring the giving of notice is to advise creditors of the' fact that an administrator has been appointed, and that if any negligence exists in the failure to give such notice, the loss, if any, occasioned thereby must fall upon the heirs and not upon the creditors. That the creditors have the right to rely upon the plain provisions of the statutes, and the failure to give notice prevents the administrator, or a new administrator as the case may be, from setting up the bar of the statute of limitations “herein provided.”

It is the fact of the failure to give notice that suspends the bar to the statute.

Pollock and Farr, JJ., concur.