text:
    MASTER AND SERVANT
    [Cuyahoga (8th) Circuit Court,
    December 4, 1911.]
    Marvin, Winch and Henry, JJ.

      Cleveland City Forge & Iron Co. v. William C. Welch.
    Liability of Master for Combined Negligence of Foreman and Fellow-Servants.
    In an-action by a workman against his employer for damages from personal injuries there may be a recovery, if the workman was without fault and his injury was proximately caused by the combined negligence of a foreman and fellow-servants. In such case it is merely necessary to show that one of the cooperating causes of the injury was a culpable act or omission for which the master would be responsible, and the rule holds good, whether the other causes were also defaults for which the master would- be responsible, or were due to some event or condition for which he is not required to answer.
    Error.

      Bussell & Eichelberger, for plaintiff in error.

      Harry F. Payer, for defendant in error.

      Affirmed, Cleveland City Forge & Iron Co. v. Welch, 87 Ohio St. 512.

   MARVIN, J.

This was an action for damages for personal injuries with verdict and judgment for the plaintiff below.

Objection is made to the language of the charge, as found on page 282 of the record, in which the court said:

“He could not recover, as I have already indicated, by reason of negligence on the part of his fellow-servants, but I say to you, gentlemen, that if plaintiff’s injury were proximately caused by the combined negligence of his fellow-servants, cooperating with the negligence of the foreman, under such circumstances there could be recovery, if the plaintiff were himself free from negligence causing or proximately contributing to his injury. Of course, this is ail conditioned upon the question whether the plaintiff was negligent, and if his negligence caused or contributed to his injury, as I have already indicated, the existence of such negligence on the part of the plaintiff — contributory negligence — would operate to defeat a recovery. ’ ’

In another part of the charge, the eourt substantially repeated this proposition.

The proposition stated in the charge, as an abstract proposition of law, is supported by too great weight of authority to be questioned here (Pittsburgh, C., C. & St. L. Ry. v. Henderson, 37 Ohio St. 549), second clause of the syllabus, and the numerous authorities there cited on page 553; see also Lake Shore & M. S. Ry. v. Litz, 7 Circ. Dec. 282 (18 R. 653); also Lake Shore & M. S. Ry. v. Feller, 11 Circ. Dec. 799 (21 R. 605) and Cleveland, C. C. & St. L. Ry. v Hudson, 12 Circ. Dec. 661 (22 R. 586). But it is urged that under the facts of the present case, the charge was calculated to, and propably did, mislead the jury.

This question is discussed at considerable, length in Labatt, Master and Servant, in a number of sections. Beginning with Sec. 806, the author discusses the question as to the liability of a master for some negligent acts where causes intervene. between the original negligent act of the master, and the actual injury to the servant; and in Sec. 808, he speaks of such intervening acts of responsible actors,, as are not of themselves culpable, and he concludes the section with these words:

“Considering that the ultimate test of liability is whether the consequences flowing from the negligence charged were such as might reasonably have been expected, the decisions under this head can not easily be reconciled upon the facts.”

In the notes under this section, numerous cases are cited, where liability was denied, as well as cases where it was affirmed. Among the latter: Knapp v. Sioux City & P. Ry., 71 Ia. 41 [32 N. W. 18], Finley v. Richmond & D. R. Co., 59 Fed. 419; Chicago G. W. Ry. v. Price, 97 Fed. 423.

Many other cases are cited and quoted from in the notes under this section.

Section 809 of Labatt is headed: ‘ ‘ Culpable acts of responsible actors; negligence of coservants.”

In this section, too, the author points out the difficulty of fixing a boundary between the state of facts which would hold the master liable, where the intervening culpable acts are those of a fellow-servant, and where the master would be excused because- of the negligence of the fellow-servant proximately causing the injury.

Section 813, of this same work, is in these words:

“Where several causes concur to produce certain results any of them may be termed ‘proximate’ provided it appears to have been an efficient cause.”

The general rule applicable to all cases illustrating this situation, except those in which the contributory negligence of the servant himself is involved, is that in order to establish the right of action, it is merely necessary to show that one of the cooperating causes of the injury was a culpable act or omission for which the master was responsible. This rule holds good, whether the other causes were also defaults for which the master was responsible, or were due to some event or some condition for which he was not required to answer.

In the case at bar, under the charge of the court, no recovery could have been had unless the jury found that the foreman of the defendant company, Newey, was negligent in giving the order for the moving of the wrench. It was clearly pointed out to the jury in the charge that unless the foreman, in giving this order, might expect as a natural consequence that an injury would result to the plaintiff below, or somebody else, then the defendant would not be liable. Under the instructions of the court, the jury must have found, and we are not prepared to say that they were not justified in finding, that the natural result of an order given in the terms that the order was here given would be that the men to whom it was given would immediately and hurriedly move the crank, as they did move it, and that knowing as he did the position in which the plaintiff was at the time, he should have anticipated, if he had given it the thought that it was his duty to give before he caused the crank to be moved, that injury would result to the plaintiff.

It can hardly be doubted that if the foreman had himself moved the crank, as it was moved, and the plaintiff was without fault, the plaintiff could recover. But it is urged that the action of the two men who moved the crank was an intervening cause between the order of the foreman and the plaintiff’s injury. True, the actions of the men who moved the crank did intervene. That intervention on their part was either negligent or without negligence. If it were negligent, the jury, as we think, might well find that the foreman should have anticipated such negligence on the part of those who moved the crank, if the word “negligence” is used in the sense of failing to exercise such care as they should and would under ordinary circumstances have exercised, and the authorities, to which attention has already been called, would, if the jury so found, justify the charge in this regard and justify the result reached by the jury.

If the action of the men who moved the crank was not negligent, then, under the authorities quoted, if their acts were the natural result of the order given, and the plaintiff was without fault, he would be entitled to recover.

The fact that there was a cause intervening between the negligent act of the foreman and the injury to the plaintiff, would not necessarily prevent a recovery.

If the result to the plaintiff was what might naturally and probably follow was a consequence of the negligence of the foreman, the foreman must be held to have anticipated what did result, provided, of course, the plaintiff was without fault. This seems to us to be fully justified by the holding of our Supreme Court in the ease of Adams v. Young, 44 Ohio St. 80 [4 N. E. 599; 58 Am. Rep. 789] and Pennsylvania Ry. v. Snyder, 55 Ohio St. 342 [45 N. E. 559; 160 Am. St. 700].

The second paragraph of the syllabus in the first of these cases reads:

“ In an action against a mill owner for damages to property caused by fire negligently or carelessly thrown by sparks from the smoke stock of the mill and carried to the property by a gale of wind blowing at the time in the direction of the property, by which fire the same was damaged; where the conditions continue the same as when the negligent and careless act was done, and no new cause intervenes, it is no defense that the fire first burned an intervening building and was thence communicated by sparks and cinders in the same manner to the building in which such fire consumed the property, though the buildings were separated by a space of two hundred feet.”

The second paragraph of the syllabus in the last of these cases reads as follows:

“The company delivering the car to the other company, should anticipate that employes of the latter would go upon and handle the car and thereby be exposed to the danger of receiving injury as a natural and probable consequence of its defective condition, and owes such employes the duty of using reasonable care to discover and remove its dangerous defects before it is so delivered. The services of such employes being necessary to accomplish the transportation intended, the delivery of the car for that purpose amounts to an invitation to them to go upon and handle the car in the course of their employment, and an assurance that they could safely do so.”

Can it be said that this is inconsistent with the charge of the court given at the request of the defendant and numbered 2, which reads:

The defendant’s foreman, William Newey, in giving the order complained of by plaintiff’s witnesses, assuming such order was given, could not be held to have presumed that Janosko and Verbofsky would act negligently, but on the other hand, he had a right to presume that they would act with such care as their experience and familiarity would warrant.”

This request given was too favorable to the defendant, if it is inconsistent with the general charge, and surely if it was too favorable for the.defendant, it can not be heard here to complain of it.

The . other propositions given, taken in connection with the general charge, we think, presented the case to the jury as favorably as the defendant was entitled to. They read:

“The defendant could not be found liable in this case unless you find that the defendant’s foreman, William Newey, was negligent in giving the order testified to by plaintiff’s witnesses, and that such order was the proximate cause of plaintiff’s injury, and by proximate cause is meant a cause from which a man of ordinary experience and sagacity could foresee what result would likely follow; that the accident to plaintiff was of such a character as might reasonably have been foreseen as a natural and ordinary result of the order complained of.
‘ ‘ There, could be no recovery in this case unless you should find that the defendant’s foreman acted negligently in giving the order testified to by plaintiff’s witnesses, and not then unless such order was the direct and proximate cause of plaintiff’s injury, or produced results which a man of ordinary care and prudence could anticipate as the result of the order complained of.”

On the whole, we think this case was presented to the jury in as favorable a light as the defendant was entitled to have it presented; that it has no just cause.of complaint of such charge. We think, too, that the jury were fully justified in finding that the order given by Newey in the manner in which it was given, as shown by the testimony, was a negligent order. It is said that the two men to whom the order was given were experienced workmen, and that Newey had a right to understand that they would be careful not to expose the plaintiff or any one else to danger in the execution of the order.

Though the witnesses who testified as to the giving- of this order do not all give it in the same words, the plaintiff’s witnesses unite in saying that it was given in an earnest, forceful manner, and was accompanied by profanity, indicating that the foreman was thoroughly impatient and meant to have something done and done at once by these men; that, in short, he was ugly about it; that he did not speak to them as a careful foreman ought to address intelligent men; that it was given in such tone and manner, and accompanied by such profanity, as indicated that any delay in its execution would result, at least, in severe censure on the part of the foreman.

The plaintiff in error complains generally that the charge was not sufficiently definite in that it failed to explain to the jury what constituted negligence and the want of it. An examination of the charge seems to us to answer this, and to answer it against the plaintiff in error. The charge, including those propositions which were given at the request of the defendant, certainly, as has already been said, submitted the case to the jury in as favorable a light as the defendant was entitled to.

Questions raised as to the rulings on evidence have been examined, and we find no erroneous rulings to the prejudice of the plaintiff in error in said rulings, nor in any part of the record which would justify a reversal, and the judgment is affirmed.

Winch, J., concurs.

Henry, J., dissents.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    December 4, 1911.]
    Marvin, Winch and Henry, JJ.
    H. O. Yoder v. Alexander Tubman.
    1. Subscription for Preferred Stock Recoverable when Debts Exceed Assets and Unpaid Subscriptions.
    An action may be brought for the collection of a subscription to the preferred stock of a corporation upon its insolvency, when it appears that the debts of the corporation exceed its assets and the full amount of unpaid subscriptions to all of the common as well as to all of the preferred stock without waiting until all remedy against subscribers to common stock has been exhausted.
    2. Eighteen Months Limitation not Applicable to Actions for Unpaid Subscriptions.
    The limitation of eighteen months expressed in Sec. 8G88 G. C., within which an action upon the liability of stockholders must be brought, does not apply to an action to collect an unpaid subscription to stock.
    3. Purchasers from Trustee in Bankruptcy of Insolvent Corporation of Claims for Unpaid Subscriptions May Maintain Action against Subscribers.

      A trustee In bankruptcy of an insolvent corporation may, under proper order, sell claims for unpaid subscriptions to capital stock of tbe corporation and tbe purchasers of sucb claims from tbe trustee may maintain an action thereon against sucb subscribers, but whether be can recover from them more than be paid for tbe claims, quaere.

    Error.

      H. 0. Yoder, for plaintiff in error.

      Dissette, Dissette & Dissette, for defendant in error.
   MARVIN, J.

This was an action upon a subscription for preferred stock in a corporation, common stock being also promised the ■ subscriber free.

To this amended petition a demurrer was filed and sustained and thereupon, the plaintiff not desiring to plead further, the court entered judgment for the defendant.

On behalf of the defendant in error it is urged, first, that the written agreement sued upon was illegal, because of the language at the close of the writing in these words: “Twelve shares common, free.” It is said that this language shows that the corporation was making a promise to this subscriber which it had no authority of law to make.

Conceding this to be true, was there any less an obligation on the part of the promiser to pay the agreed price for that which the corporation had a right to issue to him? We think not. The promiser may as well be supposed to know as the promisee that he would have no right under this contract to receive any stock except that for which he paid.

It is further urged that the plaintiff’s petition fails to state that the remedy against the common stockholders has been exhausted, or by what right he seeks to hold a subscriber of preferred stock.

A reading of the petition shows that all the assets of the corporation had been converted into money and applied to the payment of debts of the corporation, and that the corporation still owed debts largely in excess of all which remained unpaid upon subscriptions for capital stock, so that,.if the allegations of the petition are true in this regard, there would be no reason why a proper party might not bring a suit against each of the subscribers for stock, whether such subscription were for common or preferred stock, since when all was collected, there would still be less than enough to pay the debts.

The language of the statute, Sec. 8670 G. C. reads:

“Upon the insolvency of the corporation no holder of preferred stock shall be liable for its debts until after the remedy against the common stockholders upon their liability, as provided by law, has been exhausted, and then only for such amount as remains unpaid. Such liability in no event shall exceed that fixed by law for the common stock of such corporation.”

But it can not be supposed that an action against preferred stockholders is premature when the facts are that by exercising the claims on subscriptions for common stock, there would be so great a deficiency as that all of the unpaid subscriptions for preferred stock added to it would still be insufficient to pay. To construe the statute in this wise might delay the collection of subscriptions for preferred stock, when it is certain that all will have to be collected in order that the creditors be paid, until each subscriber for common stock fought his case through, if he chose to, to the Supreme Court of the state. This would result in great delay and to no good purpose. If the subscribers to the preferred stock could be released entirely from the payment for their stock, or could be relieved from the payment of some part of their subscription, by exercising all the remedies against the subscribers for common stock, the statute would apply; but that is not the case here. When all the subscribers for the common stock have paid, if the allegations of this petition are true, the subscribers for preferred stock would still be liable for their entire subscription. This objection is not well taken.

It is again urged that by reason of the language of Sec. 8688 G. C. the plaintiff is barred from bringing this action, because it was brought more than eighteen months after the obligation, if there were any, became enforceable. This section reads:

“An action upon the liability of stockholders under the two next preceding sections, can only be brought within eighteen months after the date the obligation shall become enforceable against stockholders. ’ ’

Referring to the preceding sections named, we find that they have reference to the liability of stockholders as it was prior to November 23, 1903. Up to that time, each stockholder was liable for the payment of the debts of the corporation to an amount equal to his capital stock, and it is that liability for which, under Sec. 8688, the suit must be brought within eighteen months. This objection is not well taken.

This brings us to a consideration of the question of whether the trustee in bankruptcy could assign, under an order of the court, to the plaintiff in this section the right to bring this suit. If what we have already said is correct, we have only the question of whether the right to bring such suit is limited to the trustee alone, or whether he may sell it to another. Generally .the assets of the corporation, of which the obligation of the subscriber for stock is one, may be sold by the trustee. We know of no prohibition against this right being sold by the trustee when the court shall so order, and when the trustee receives pay for such chose in action, and uses the money so received by him toward the discharge of the debts of the corporation.

We do not undertake to say whether the plaintiff here would be entitled to recover the full amount of the subscription, or only what he paid for it, what the creditors received, but we do hold that he was entitled to recover something if the allegations of his petition are true; and so we think the court erred in sustaining the demurrer and entering judgment for the defendant, and that the plaintiff failed to receive substantial justice.

The judgment of the court of common pleas is therefore reversed and the case remanded.

Winch and Henry, JJ., concur.


text:
    BILLS AND NOTES — JUDGMENTS
    [Cuyahoga (8th) Circuit Court,
    December 4, 1911.]
    Marvin, Winch and Henry, JJ.
    A. T. Osborn and F. L. Felch v. Amherst Bank Co.
    Several Judgment Taken against Joint and Several Endorser but Joint Maker.

      A several judgment may be had against one who is a joint and several endorser but only a joint maker of a promissory note, leaving the action to proceed against the other makers of the note.
    Error.

      George A. Groot, for plaintiff in error.

      Myers cfe Green, for defendants in error.
   MARVIN, J.

A petition was filed by the Amherst Bank Co. against S. W. Parsons and W. S. Snyder, doing business as Parsons, Snyder & Co., F. Carpenter, A. T. Osborn and F. L. Feleh. The cause was upon a promissory note, which reads:

“$2000.00. Cleveland, Ohio, Jan. 27, 1908.
“Three months after date, the undersigned promise to pay to the order of Parsons, Snyder & Co. of Cleveland, Ohio, the sum of Two Thousand no-100 Dollars at the office of said firm with interest at the rate of 6%.
‘ ‘ The undersigned have deposited with said Parsons, Snyder & Co., as collateral security for the payment of this obligation the following property, viz., twenty-five thousand shares of the capital stock of the Cross Lake Syndicate; and hereby agree that upon default in the payment of this note said Parsons, Snyder & Co. shall have full power and authority to sell, assign and deliver the whole of said securities or any part thereof, without either advertisement or notice, the same being expressly waived.
(Signed.) “S. W. Parsons.
“F. Carpenter.
“A. T. Osborn.
“F. L. Felch.
‘ ‘ Endorsements.
“Interest paid to April 27, 1908.
“Pay to the Amherst Bank Co.
“Parsons, Snyder & Go.”

The allegation is further made in the petition that payment of said note was duly demanded of said S. W. Parsons, F. Carpenter, A. T. Osborn and F. L. Felch at maturity, but the same was not paid, of all of which the said S. W. Parsons and W. S. Snyder, doing business as Parsons, Snyder & Co., had due notice.

The transcript shows that summons in the action was served upon F. L. Feleh, A. T. Osborn, W. S. Snyder and S. W. Parsons; that no service was made upon the defendant F. Carpenter, he not being found in the county by the sheriff.

This suit was begun on March 27, 1909. After service upon the parties already named as having been served with summons, and at a time thereafter beyond the time for filing answers by the defendants, to wit, on April 26, 1909, the entry is:

“To Court: The plaintiff comes, but the defendant S. W. Parsons is in default of answer . or demurrer, although duly served with process, and the allegations of the petition are thereby confessed by him to be true; on consideration thereof the court finds that there is due to the plaintiff from the defendant, S. ’W. Parsons, as damages, the sum of two thousand one hundred and twelve dollars ($2,112). It is therefore considered that said plaintiff recover of said defendant, S. W. Parsons, its said damages and also its costs of this suit.”

Answers were filed by the other defendants, and thereafter the case was tried as against the other defendants who had been served with process, and at the conclusion of the evidence, the court directed the jury to find for the plaintiff, and assess its damages by reason of the premises at $2,351.70, against the defendants A. T. Osborn and F. L. Felch, to which direction of the court the said A. T. Osborn and F. L. Felch except.

It is to reverse this judgment of the court of common pleas that this proceeding is brought, the contention being that the plaintiff having taken judgment against Parsons on default, the case as against the other defendants could not be maintained; and attention is called to Sec. 11584 G-. C., which reads:

“In an action against several defendants, the court may render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment is proper.”

It is said that this note, reading as it does, was a joint note, and that therefore a several judgment could not have been rendered against one of them without relieving all; that the plaintiff having elected to take the several judgments against Parsons was thereby estopped from proceeding with the case against the other defendants.

A discussion was had at the hearing of this case as to whether the note sued upon was a joint note or a several note as against each of the makers. The language of the note, it will be observed, is peculiar. It is neither “'We promise to pay,” nor “We and each of us promise to pay,” nor “We or either of ns •promise to pay”; but only, “The undersigned promise to pay.”

. We do not deem it necessary, in determining this ease, to decide the question of whether this note is one such as that a several judgment could have been rendered against any one of these parties as makers. It was shown that the defendants S. W. Parsons and W. S. Snyder were partners at the time this note was given, under the partnership name of Parsons, Snyder & Company; so that this indorsement by Parsons, Snyder & Company was an indorsement both by Parsons and by Snyder.

Section 8173 G. C. provides:

As respects one another, indorsers are liable prima facie in the order in which they indorse; but evidence is admissible to show that as between or among themselves they have agreed otherwise. Joint payees or joint indorsers who indorse are deemed to indorse jointly and severally.”

This being so, the case as against Parsons as indorser certainty authorized a several judgment against him, and it is unnecessary to determine whether as maker a several judgment could have been rendered against him. Since a several judgment could have been rendered against him as an indorser, the rendering of such several judgment against him did not take away from the plaintiff the right to proceed against the other defendants as though this several judgment had not been taken.

- We reach the conclusion, therefore, that the judgment of the court below should be affirmed, which is accordingly done.

Winch and Henry, JJ., concur.


author: WINCH, J.

text:
    DIVORCE AND ALIMONY — MUNICIPAL CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    December 4, 1911.]
    Marvin, Winch and Henry, JJ.
    Frederick J. Lambert v. Cleveland (City).
    Protection to City in Paying Alimony to Wife of Policeman.
    A wife brought an action in Cuyahoga county against her husband, who was a police pensioner of the city of Cleveland, for alimony and was allowed alimony in the sum of $25 per month which was ordered paid to her by the city, which was a party to the case, out of the husband’s pension. Subsequently the husband brought an action for divorce in another county against his wife and was awarded it on her aggression. Thereafter he filed a motion in the Cuyahoga county .court for modification of its alimony order, setting up the divorce decree as a reason why he should pay no more alimony; this motion was overruled and with knowledge of the divorce, the city continued to pay the wife as previously ordered. Thereafter the Cuyahoga county court granted another motion to modify the alimony order and stopped payments of alimony to the wife. In an action by the husband against the city to recover the money paid by it to the wife after it knew of his divorce from her; Held: The order in the alimony case was full protection to it notwithstanding the order refusing to modify the alimony awarded after divorce, was erroneous.
    Error.

      Wing, Myler & Turney, for plaintiff in error.

      Newton T>. Baker, for defendant in error.
   WINCH, J.

Lambert sned the city of Cleveland to recover half of his police pension which the city, under an order of court, had paid to his former wife instead of to him. He failed in his action, and now seeks a review of the judgment against him.

It seems that in 1897, Eliza Lambert, who was then the wife of plaintiff, brought an action for alimony'against him in the Court of Common Pleas of Cuyahoga County, making the city a party defendant thereto, and representing that her husband was entitled to a payment of $50 per month from the police pension fund of the city. Such proceedings were had in the case that the wife was allowed alimony in the sum of $25 per month, and an order was made against the defendant city directing it to pay said amount monthly to the wife. With this order it complied.

Subsequently the husband moved to Geauga county and there sued his wife for divorce. Such proceedings were there had that in 1902 he was granted a divorce from his wife on her aggression, without allowance of alimony.

Immediately upon the granting of the divorce, he did file a motion in his wife’s alimony case in Cuyahoga county, asking for modification thereof on the ground that the divorce had relieved him from further obligation to support her. This motion was overruled, and his attorney, Judge Penewell, notified the city of that fact and authorized it to continue its monthly payments of $25 to the divorced wife, which it continued to make to her.

In July, 1909, plaintiff filed his second motion in the alimony case in Cuyahoga county, for a modification of the order therein, and in October of that year, the common pleas court vacated its former order and directed the city to discontinue its payments to the former wife. This order, on error to the circuit court, was affirmed, whereupon the city ceased to make further payments to the wife.

Thereupon plaintiff brought this action against the city to recover from it payments made to the wife prior to the modification of the alimony decree in 1909. He claims that the judgment for alimony in Cuyahoga county became void upon the rendition of the divorce judgment in Geauga county; that the city had notice of the divorce and should, therefore, have ceased to make further payments to the wife notwithstanding the court refused to grant the motion to modify the judgment.

We find no ground for this claim.

The refusal in 1902 to modify the alimony judgment may have been erroneous, but the judgment did not become automatically void, upon the rendition of the divorce.

Up to the date of the divorce the judgment for alimony was valid, for the court awarding it had jurisdiction of the parties and of the subject-matter.

Judgments are set aside only in the manner pointed out by law; and an alimony judgment may be set aside on motion addressed to the proper court; until the court acts, the original judgment is binding.

The city is protected in the payments it made to the former wife, by the order of the court requiring it to make said payments.

Judgment affirmed.

Marvin and Henry, JJ., concur.


text:
    CRIMINAL LAW
    [Cuyahoga (8th) Circuit Court,
    December 16, 1911.]
    Marvin, Winch and Henry, JJ.

    Ignazio Riolo v. State.
    1. Police Officer’s Testimony in English in Translation of Statements of Accused in Italian, Admissible.
    Statements made by the accused in Italian in answer to questions put to him in the same language by police officers, after his arrest, may be given to the jury in English .by said officers, their ability to understand and translate Italian correctly being first inquired into and put before the jury.
    2. Accused Questioned on Cross Examination as to Different Story Told Police on Arrest.
    The accused having given evidence in his own behalf may, on cross-examination, be questioned as to a different story by him told to police officers after his arrest.
    Error.

      T. J. Boss, for plaintiff in error.

      J. A. Cline, for defendant in error.
   WINCH, J.

There was no error in the admission of the testimony of the two police officers as to statements made by the accused to them at the police station, after his arrest. Though they questioned him in Italian, and he answered in the same language, it was proper for them to repeat in English to the jury what had been said by and to them in Italian. It would have been idle to require them to first give to the jury the questions and answers in Italian and then translate the same themselves, or have an interpreter to translate it to the jury. Their ability to understand the language and translate it correctly was gone into and put before the jury, so that it was enabled to give this evidence the weight to which it was entitled.

Nor was there error in cross-examining the accused as to what the police officers had said to him and what he had said to them at the police station. The examination on this point was not for the purpose of eliciting affirmative proof that he had made the admissions testified to by the police officers, but to discredit his evidence given in his own behalf by showing that he had previously told a different story. The evidence of the police officers was offered by the state in chief.

As to the weight of the evidence:

The testimony of the police officers, admitted to be true in several important particulars by the accused himself in the cross-examination referred to, shows that the accused was clearly guilty as charged in the indictment and properly convicted.

Finding no error in the record, and believing that substantial justice was done in' this ease, the judgment is affirmed.

Marvin and Henry, JJ., concur.


author: HENRY, 3.

text:
    DAMAGES — EMINENT DOMAIN
    [Mahoning (7th) Circuit Court,
    December 26, 1911.]
    Marvin, Winch and Henry, JJ., of Eighth Circuit Sitting.
    Jeannette J. Jack v. Lake Erie & Eastern Ry.
    Damages Resulting from Interruption of Building Operations by Appropriation Proceedings Instituted and Abandoned in Good Faith, not Recoverable.
    Section 11060 G. C., prescribes the only remedy allowed by law to the owner, of property sought to be appropriated in a proceeding brought in good faith and subsequently abandoned.
    Error.

      8. L. Clark, for plaintiff in error.

      Arrel, Wilson & Harrington, for defendant in error.
   HENRY, 3.

The^ plaintiff commenced her action to recover damages alleged to have been sustained by her in the deterioration caused by the action of the elements, to a partially completed building and to materials intended for the completion of the same upon a lot owned by her, during the pendency of appropriation proceedings begun by the defendant' and subsequently abandoned by it. The gist of her action lies in the defendant’s inter; ruption of her building operations by the commencement of said appropriation proceeding. If the proceeding were prosecuted to judgment and the property taken, she might well have been denied compensation for money expended in the improvement of the property sought to be appropriated during the pendency of the appropriation suit. She claims, therefore, to have been prevented from making use of her property during the period, and to have suffered loss, also, because of damage by the weather to the partially completed improvement of her premises.

She claims here to certain errors in the charge and elsewhere in the record of the trial below. A bill of exceptions was duly perfected, containing a statement of the trial judge of what the evidence tended to prove, and setting out the charge to the jury in full. From this it affirmatively appears that no evidence was offered of any bad faith in the commencement or in the abandonment' of the appropriation proceeding; ' Although that proceeding-was not a civil action, we see no reason why the rule laid down in Cincinnati Daily Tribune Co. v. Bruck, 61 Ohio St. 489 [56 N. E. 198; 76 Am. St. 433], does not apply; The syllabus is as follows:

“Asa general rule no suit will lie for the malicious prosecution of a civil action, where there has been no arrest of the person or seizure of property.
“A stockholder of an incorporated newspaper company maliciously and without probable cause, commenced a suit against the company for dissolution and the appointment of á receiver, to the great injury of the company. The applieátion was denied and the suit dismissed. In an action for libel, provoked by the suit, the company by way of counter-claim asked to recover damages for the malicious prosecution of the suit against it. Held: That while the facts are sufficiently connected with the subject of the action for the purpose of a counter-claim they do not constitute a cause of action, entitling the defendant to relief by way of damages, as there was no arrest of the person or seizure of property.”

But whether the rule thus laid down be applicable or inapplicable to the malicious prosecution of an appropriation proceeding, and irrespective, also, of the presence or absence of the element of malice on the part of the defendant here in commencing and subsequently abandoning the appropriation proceeding, contemplated by the petition, we are of opinion that Sec. 11060, G. C., prescribes the only remedy allowed by law to the owner of property sought to be appropriated in a proceeding brought in good faith and subsequently abandoned. That section reads as follows:

“The corporation may abandon any case or proceeding after paying into court the amount of the defendant’s costs, expenses, and attorney fees, as found by the court. If the corporation fails in any case to make payment or deposit, as provided in the next preceding section, within thirty days after confirmation of the verdict, on motion of the party entitled to such payment, to be filed within ten days after the expiration of such thirty days, the judge shall enter an order directing the corporation to -make such payment or deposit within thirty days after the date of the order. Unless such corporation, within such time makes such payment or deposit, it shall be held thereby to have abandoned the property, rights, or interests so appropriated, and all claims thereon under its proceeding, and the judge shall issue an order to that effect. He also shall enter a judgment against the corporation, and in favor of the party entitled to such payment, for such amount of expenses, including time spent and attorney fees incurred by him in the proceeding, as, upon the evidence offered in that behalf, the court deems just, for which execution may be issued against the corporation. The directors of the corporation shall be individually liable upon such judgment, and may be made parties thereto by actions.” -

The first sentence of this section obviously relates to a voluntary abandonment of an appropriation proceeding by the plaintiff at any stage thereof, either before or after judgment.

It follows that the plaintiff had no cause of action upon those facts alleged in her petition below, which the evidence tended to prove. This renders the other assignments of error upon the record before us quite immaterial, and the judgment is affirmed.

Winch and Marvin, JJ., concur.


author: HENRY, J.

text:
    CONTRACTS — RAILROADS
    [Mahoning (7th) Circuit Court,
    December 26, 1911.]
    Marvin, Winch and Henry, JJ„ of Eighth Circuit Sitting.
    Mahoning Valley Ry. v. John Grady.
    Agreement to so Construct Sewer as not to Interfere with Railroad Requires Ordinary Care Measure of Duty.
    Under a covenant in an agreement between a contractor building a sewer in a city street and a street railroad company operating a street railroad in the same street, that the contractor “will construct said sewer south of the south or east bound tracks of second party and far enough therefrom so as not to interfere with said tracks or the ties and foundations supporting the same,” ordinary care in the construction of the sewer is the measure of the contractor’s duty.
    Error.

      Arrel, Wilson & Harrington, for plaintiff in error.

      8. 8. Conroy, for defendant in error.
   HENRY, J.

This action was brought to recover $755 with interest, being the balance alleged by the plaintiff below to be due upon an agreement between the parties, as follows:

“This agreement made and entered into by and between John Grady, of Youngstown, Ohio, first party, and the Mahoning Valley Railway Company, a corporation, second party, Witnesseth, That:
“Whereas, first party has a contract with the city of Youngstown for the construction óf a sewer from Central Square to Spring Common in said city, and the specifications for said sewer call for its construction in the middle of the street, beneath the tracks of second party, and second party desires to have said sewer constructed south of its south or east bound tracks, and first party is willing to so construct said sewer, under the conditions hereinafter set forth:
“Now, Therefore, first party and second party do agree as follows:
“First. First party agrees that from Central Square to Deibel’s store, he will construct said sewer south of the south or east bound tracks of second party, and far enough therefrom as not to interfere with said tracks or the ties and foundations supporting same; that from Deibel’s store to Spring Common, he will construct said sewer far enough from the north or west bound track as not to interfere with the operation and movement of cars thereon, or the ties and foundations supporting said north bound track.
‘ ‘ Second. First party agrees that he will excavate for, furnish all material and labor, lay and construct such lateral sewer connections at such points, in the manner, and in such number, as the city engineer of the city of Youngstown shall designate, and agree to accept in full payment therefor, the sum of one dollar and twenty-five cents ($1.25) per lineal foot of such lateral sewer connections; second party to pay only for the additional lateral connection required by reason of the construction of the sewer on the south side of Federal street instead of in the center of said street; as originally specified by the city of Youngstown.
“First party further agrees to so construct said sewer as to at all times permit the free operation of ears on the northwest bound track of second party between Central Square and Spring Common, and not to obstruct said track between said points, nor in any manner to interfere with the operation of the cars thereon.
“Second party, in consideration of the agreements of first party, agrees to pay first party the sum of twenty-two hundred dollars ($2,200.00); and further agrees to remove its south or east bound track between Deibel’s store and Spring Common.
“It is mutually understood and agreed, that temporary cross-overs shall be installed at, or near Central Square, and Deibel’s store, and at points intervening, in order that the movement of cars between said points shall not be unnecessarily interfered with; and that first party shall prosecute the work of constructing said sewer to its earliest possible completion. It being the intent and purpose of this agreement that the operation of cars on the north or west bound track shall not at any time be interfered with or obstructed or the traffic thereon delayed.
“Third. The terms, conditions, covenants and agreements herein contained shall extend to and be binding upon respective heirs, administrators, successors and assigns of the parties hereto.
“Witness the signatures of the respective parties hereto to duplicates hereof, this 15th day of August, A. D. 190.7.
“John Grady,
‘1 The Mahoning Valley Bailway Company,
by B. Montgomery,
‘ ‘Vice-President.
“In presence of
“W. H. MeMillin.
“The above agreement is approved by us this 16th dav of August, A. D. 1907.
“D. Heinselman,
“P. Hagen,
“J. E. Pudge,
“Board of Public Service, Youngstown, Ohio.”

To this cause of action an answer and cross-petition were filed, admitting the plaintiff’s claim, except as the same should be offset by defendant’s counter-claim. Upon this matter the defendant alleged:

“That plaintiff, in violation of the terms of said agreement, failed and neglected to so construct said sewer as not to interfere with said tracks and .not to interfere with the ties and foundations supporting the same, but did construct said sewer upon such location and in such a manner as that the ties and foundations supporting the tracks of this defendant and the tracks were undermined, — caused to become depressed and out of alignment, and in such a condition as to interfere with and endanger the passage of cars thereover; that upon the completion of said sewer, this defendant was put to large expense by reason of being compelled to reset said ties, foundations and tracks, and to repair, resurface, and align the same, and that in consequence of the violation by plaintiff of the terms of said contract above set forth, and in the respects above set forth this defendant company has been damaged in the sum of $1,000. ’ ’

Other pleadings were filed by which issue was joined, and upon the trial, plaintiff recovered a verdict and judgment of $400, which does not allow enough of the counter-claim, according to the. plaintiff in error here.

The chief error assigned is .upon the court’s instructions in the charge to the jury, that ordinary care in constructing the sewer was the measure of defendant in error’s duty. It is urged that the court should have charged the jury that the defendant’s undertaking to save the railway company’s tracks and substructures from injury in consequence of the sewer excavation, was an absolute duty under the terms of the contract.

We recognize that the contract might conceivably have been such as to require the defendant in error at all events to prevent injury to the railway company’s property from bis work. But as we construe the contract actually made by the parties, it contains no .such covenant. Grady agreed to construct his sewer south of the tracks “and far enough therefrom as not to interfere with said tracks or the ties or foundations supporting same. ’ ’

The court charged, at the request of the plaintiff, and as we think correctly, as follows:

“If you find that plaintiff constructed the sewer in the proper place, that is, as far south as in the situation it possibly could be done, and that, in doing it, he exercised ordinary care, as between himself and the defendant railroad company, then the defendant would not be entitled to be compensated under their counterclaim.”

We find no error in this record, and the judgment is affirmed.

Winch and Marvin, JJ., concur.


text:
    LIBEL AND SLANDER
    [Mahoning (7th) Circuit Court,
    December 26, 1911.]
    Marvin, Winch and Henry, JJ., of Eighth Circuit Sitting.
    Thomas Wilk v. Taofil Robert.
    Words Spoken by Priest in Sermon Charging Persons not Guilty of Crime with Being Criminals are Actionable.
    Unquestionably it is a part of the duty of a priest who has the spiritual charge of his congregation to look after the moral character of those in his church, to reprove them for immorality, and to do it with vigor and earnestly, but he can not charge in public those in his congregation who are not guilty of crime, with being criminals, without being required to respond in damages, as any other man is required to respond.

      David Steiner, for plaintiff in error.

      W. S. Anderson, for defendant in error.
   HENRY, J.

Thomas Wilk is the priest in charge of a Polish church; Robert is a member of the congregation of said church.

On August 8, 1909, Wilk preached a sermon to his congregation in which he referred to Taofil Eobert, using words which Eobert claims to have been slanderous. Eobert sued Wilk for this alleged slander. In his petition Eobert gives the Polish words which he says Wilk used concerning him, and he gives what he says is the English meaning of the words used, and he says that what was said of him in the sermon means in English that he, Eobert, was a knave, criminal, a rogue, a scoundrel, a villain, and a cheat and deceiver.

The evidence shows that at the date named, Wilk preached a sermon to his congregation, in which he named Eobert, with others, and used denunciatory language against them. There is a conflict in the evidence as to just what Polish words were used, and the English meaning of the words used is not given the same by all the witnesses, but it is plain, from the evidence of all the witnesses, and from Wilk’s own testimony, that he used and intended to use language condemnatory of Eobert, and the jury found, by the preponderance of the evidence, that the English meaning of the Polish words used in reference to Eobert was substantially as charged in the petition. Without question, if the language used meant to charge Eobert with being a criminal, a scoundrel, a villain and a cheat, these words were slanderous, if not true.

The words were uttered in the presence of several hundred people who understood the Polish language. The petition charges that they were false and malicious; that Eobert, who carries on a small business at Youngstown, where these words were used, was greatly injured in his business by reason of the utterance of the words.

The defendant below, Wilk, by his answer, denies that he preached any sermon in which he in any manner referred to Eobert either directly or indirectly. He says that it is his duty to conduct religious services in the church of which he was pastor, and to celebrate the mass, and to direct and exhort the people over whom he has charge to live honorable and moral lives; and he says that at the date charged, he celebrated mass and preached a sermon to his congregation.

As already said, the evidence clearly shows that Wilk did refer, by name, in the sermon preached on the date referred to, to Mr. Robert, and did use condemnatory language of him by name; but if the language used had only the meaning which some of the witnesses give to it, the words would not be slanderous in the way in which they were used. It was sought to show, on the part of the defendant below, that the priest, by the rules of the church in which he holds the official position of priest, was priviliged to use such language of and concerning the plaintiff below as he did use; but if the words used were such as directly charged the plaintiff with being a criminal, when in fact he was not a criminal, the official position of the priest could not relieve him from the responsibility to which any man is subject who falsely charges another with being a criminal.

Unquestionably it is a part of the duty of the priest who has the spiritual charge of his congregation, to look after the moral character of those in his church, to reprove them for immorality, and to do it with vigor and earnestly, but he must not charge in public those in his congregation who are not guilty of crime with being criminals, without being required to respond in damages, as any other man would be required to respond.

We do not feel that, under the evidence-in this case, the judgment could be reversed because against the weight of the evidence. It was for the jury to say, and we are not surprised that they reached the conclusion, that the words used were slanderous.

It is urged, however, that the court erred in failing to charge a proposition requested of it. That request reads:

“Where a party makes a communication, and said communication is prompted by a duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another having a corresponding interest, the communication is privileged if made in good faith and without actual malice.”

We think this request was properly refused. Without any qualification of the words used in this request the jury might very well have been misled by it. It can not be questioned that one may say things of another in the discharge of duty for which he would not be responsible as he would in the same sense if he used them simply as a matter of gossip, or for the purpose of circulating a story; but it is never any man’s duty to make statements concerning another which charge him with being a criminal, when such statements are not true.

In the charge as given, including the requests made by the defendant below, which were given, the court stated the law as fairly to the defendant below as he was entitled to have it stated. There is but one possible exception to this, and that is the charge as to punitive damages; but upon examination of the whole case, we think the defendant below can have no just complaint as to the charge in'this regard. The court said:-

“As to punitive damages, that is, ‘smart money,’ as it is sometimes called, that is, damages in addition to compensatory damages, it is a question that is left with you in your own good sense and judgment to determine whether you will give punitive damages or not. You may give them if you think, upon proper consideration of the ease, something ought to be added; you may add something to compensatory damages, and compensatory damages, I may say, include a reasonable counsel fee for the plaintiff for preparing and the trial of the case. But you are not obliged to give punitive damages unless you think it ought to be given; and punitive damages are given for the purpose, not only of punishing the defendant, but also as a warning to others; and that matter is left to the sound discretion of the jury as to whether they will or will not give punitive damages in addition to other damages, if you find for the plaintiff, that is, in addition to compensatory damages.”

It is charged in the petition that the words spoken were maliciously spoken. The court did not in this connection say that punitive damages could only be allowed in case the jury found that the words were maliciously spoken, but the court, in an earlier part of the charge, had instructed the jury -as to the circumstances and facts under which they might return simply nominal damages, and then as to compensatory damages. We think the verdict itself which was for but $200, negatives any claim that the jury gave anything by way of punitive damages. The evidence tends to show that the plaintiff below suffered actual damages in his business, and as the amount of the verdict was but $200 it seems clear that no part of it could have been given by way of punitive damages.

Considering the entire ease, we feel that substantial justice was done by the verdict and the judgment, and said judgment is affirmed.

Winch and Marvin, JJ., concur.


text:
    ERROR — TRIAL
    [Mahoning (7th) Circuit Court,
    December 26, 1911.]
    Marvin, Winch and Henry, JJ., of Eighth Circuit Sitting.
    Mahoning Valley Ry. v. George Seefred.
    Variance not Ground for Reversal Unless Prejudicial.
    A judgment will not he reversed because of a variance between the pleadings and the proof and omission to conform the pleadings to the facts proved, unless the variance clearly misled the opposite party to his prejudice.
    Error.

      Arrel, Wilson & Harrington, for plaintiff in error.

      Spellman & Hammond, for defendant in error.
   WINCH, J.

This was an action for personal injuries sustained by Seefred while boarding a car of the railway company. Verdict and judgment were for the plaintiff below.

The plaintiff in his petition alleged that, being at a proper 'stopping place, he signaled the motorman of the approaching car to stop; that the motorman obeyed his signal and the car came to a stop; that when it had so stopped he attempted to board the car, but before he had opportunity to get securely aboard the car, the conductor gave the motorman a signal to go ahead, and the latter started the car with a violent jerk which threw the plaintiff to the ground severely injuring him.

The petition further alleges that the injuries so received were directly and proximately caused by the sudden starting of the car without giving plaintiff sufficient and reasonable opportunity to board it, and without warning him that the car would be so started.

The answer, in addition to containing a general denial, further averred that the plaintiff attempted to board a car not then in condition to be boarded by him, and did so without exercising any care or caution whatsoever.

Upon the trial plaintiff introduced evidence tending to prove all the allegations of his petition, including the averment that the car had stopped before he attempted to board it.

The defendant introduced evidence tending to prove that the car had not come to a complete stop, but had only slowed down, when the plaintiff attempted to get aboard it.

Claiming that the plaintiff could not recover under the allegations of his petition, unless the jury should find that the car came to a complete stop before he attempted to board it, the defendant reserved that point alone for the consideration of this court by exception to the trial court’s refusal to charge certain requests preferred by it, both before and after the argument, and by excepting to the charge as given, the same authorizing a verdict for the plaintiff with proper qualifications, in event the jury should find that the car had either wholly stopped or so slowed down as to warrant a reasonably prudent man in attempting to get upon it.

We have here what is technically called a variance, provision for which is made by Secs. 11556, 11557 and 11558 Gr. C., and it becomes important to determine whether the variance in this ease was material or immaterial.

The gist of the action was the negligent starting of the car, either from a stop or from slow speed. It is conceded that if the car was started negligently with a jerk, either from a stop or from slow speed, and the plaintiff by reason thereof was thrown from the car, without fault on his part, he could recover.

Had plaintiff in his petition alleged that on his signal the car stopped or slowed up sufficiently for him to step aboard it, the question here made would not have arisen.

The allegations of the. petition were proved in their general scope and meaning, and unproved, if at all, only in the unimportant particular that the ear had stopped. The ease does not come under Sec. 11558, but • under the Sec. 11556, which provides:

“No variance between the allegations in a pleading and the proof, shall be deemed, material, unless it has actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits. When it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court.. It also must be shown in what respect he has been misled. Thereupon the court may order the pleadings to be amended, upon such terms as are just.”

The evidence tending to create the variance was introduced by the defendant below. It was properly introduced without objection by anybody.

The record fails to show that by the variance, the defendant was “actually misled” in maintaining his defense upon the merits.

There is no allegation in the record that the defendant was so misled at the trial, nor does the record show that it presented such question to the trial judge or undertook to point out in what respect it had been misled, as required by the statutes.

It is not urged in this court that the defendant company was misled by the variance complained of, and there is no evidence satisfactory to this court that the defendant was in any manner misled by the variance suggested, or. the neglect of the trial judge to order the petition to be amended so as to cover the possibility and claim that the car had not come to a complete stop.

Indeed, by raising the question in its answer, the defendant may be said to have broadened the issues in the case so that no amendment of the petition was necessary. The trial judge evidently took this view of the matter.

In Hoffman v. Gordon & Bro., 15 Ohio St. 211, it was said :

“The evident object of the code is to vest in the court a discretion where it can be done without surprise or injury, to try the case upon the evidence, outside of the pleadings, and if objection be made, to .allow the pleadings to be conformed to the evidence at once and without terms.”

Here no objection was made to the introduction of evidence, no surprise or injury suggested, and no demand made that the petition be amended.

In the ease of Dayton Ins. Co. v. Kelly, 24 Ohio St. 345 [15 Am. Rep. 612], it was held:

“A judgment will not be disturbed for an omission of the court to order an amendment of the petition so as to make its allegations conform! to the facts proved or admitted, where "the variance between the allegations in the petition and the proof is not material.” .

To the same effect is Sibila v. Bahney, 34 Ohio St. 399.

To have granted the defendant company’s requests to charge would have been reversible error. Banta v. Martin, 38 Ohio St. 534, 537.

Section 11364, O. C. (formerly See. 5115 R. S.), provides:

“In every stage of an action, the court must disregard any error or defect in the pleadings or proceedings, which does not affect the substantial rights of the adverse party.-.. Ño judgment shall be reversed, or affected, by reason of such error or defect. ’ ’

Following this injunction the Supreme Court, in the case of Benninger v. Hess, 41 Ohio St. 64, 69, speaking through Judge Diekman, said:

“Where a judgment has been rendered and there has been a variance between the pleading and the proof, but not such as to mislead the opposite party to his prejudice, and where there has been an omission in such case to conform the pleadings to the facts proved, it will not be in furtherance of justice to deprive the plaintiff of the fruits of the trial,-by a reversal of the judgment on error. ”

By the amendment to said Sec. 11364, adopted May 10, 1911 (102 O. L. 132), it is provided that no reviewing court shall reverse a judgment for error or defect in the pleadings or proceedings, which does not affect the substantial rights of the party complaining, unless it can certify that substantial justice has not been done.

Being unable to so certify in this ease, the judgment is affirmed.

Marvin, and Henry, JJ., concur.


text:
    LANDLORD AND TENANT
    [Cuyahoga (8th) Circuit Court,
    December 16, 1911.]
    Marvin, Winch and Henry, JJ.
    George King v. Erla M. Barry.
    1. No Reformation of Ninety-Nine Year Lease for Confusion in Encumbrances upon Title of Lessor.
    When there was no mutual mistake as to the terms ol a ninety-nine year lease entered into between the parties, it is no ground for reformation of the lease that the parties were in some confusion as to the encumbrances upon the title of the lessor.
    2. Reduction of Rent for Encumbrance.
    When there is an encumbrance in the nature of an easement upon property which one has agreed to lease for ninety-nine years, and which encumbrance the lessor is unable to remove, the lessee may keep the premises and have his rent reduced proportionately.
    Error.

      Sender son, Quail & Siddall, for plaintiff in error.

      Smith, Taft & Arter, for defendant in error.
   MARVIN, J.

In this action the plaintiffs seek the reformation of a contract of lease entered into between the parties, in reference to certain real estate owned by King in this city, which lease was to continue for a period of ninety-nine years. This reformation is sought on the ground of mutual mistake of the parties.

Without stopping to go over the evidence in the case, it does not appear that there was a mutual mistake, either as to the reading of the contract of lease, or as to its legal effect, but there was. some confusion in the mind of King, and perhaps of Barry, as to the state of the title to the south twelve feet of the premises leased. It was known that there had been granted a right-of-way across these twelve feet to an adjoining lot. It was apparently thought by Barry that the rights of the dominant tenant had been forfeited in this right-of-way, and there was doubt in the mind of King on that subject, and without having that matter settled and fixed, the parties voluntarily entered into the lease.

Prior to the beginning' of this action, Barry had made no claim against King because of any encumbrance by way of this right-of-way upon the south twelve feet of the premises leased, but King apprehended that he might make such claim, and he seeks in this proceeding to have the contract of lease so reformed as to relieve King from warranting the title as against such encumbrance.

It would not be profitable to go over in detail the evidence in the case. As already said, we do not find that there was that kind of mistake as would justify granting the prayer of the plaintiff’s petition.

The defendant, by way of answer, sets up the fact that there is such a right-of-way existing over this property, or rather admits that the allegations of the petition in that regard are true; and he asks that the court so modify the terms of the lease as to fix an amount that should be deducted from the rental which the defendant undertook by the lease to pay to the plaintiffs for the premises. The evidence on the difference in rental value because of this franchise, when carefully considered, differs very little among the several witnesses. Giving the defendant the benefit of the last evidence produced on the part of the. plaintiffs in that regard, which is fully as beneficial to the defendant as any evidence introduced by him or by any of the other witnesses of the plaintiffs, it would seem that the rental of these premises should be reduced one forty-fourth of the rent contracted by the defendant to be paid, and the decree will be that the petition of the plaintiffs be dismissed, that the contract of lease shall be valid as between the parties except that there shall be deducted each year from the rental specified in the contract one forty-fourth part of such rental, leaving the defendant to pay forty-three forty-fourths of the specified rental.

Winch and Henry, JJ., concur.


author: WINCH,, J.

text:
    BUILDINGS — COVENANTS
    [Cuyahoga (8th) Circuit Court,
    December 4, 1911.]
    Marvin, Winch and Henry, JJ.
    Charles E. Kapitzky v. H. W. Brown et al.
    Porch no Violation of Building Restrictions.
    A porch built upon restricted territory is not a violation of a restriction that the main body of any dwelling-house to be erected upon a lot shall be back a given number of feet from the street line.
    Appeal.

      H. J. Doolittle and Hoyt, Dustin, Kelley, McKeehan & Andrews, for plaintiff.

      C. W. Fuller and J. L. Gannon, for defendants.
   WINCH,, J.

The plaintiff is not entitled to have Brown’s side porch removed. Whatever restriction was originally placed by the Windermere Realty Co. in the deeds to the Euclid avenue lots cornering on Idlewood and Rosalind avenues, this restriction had been violated before Kapitzky bought, to his knowledge. He made no objection when the second violation occurred on Miller’s lot. His suggestion that these violations were on the corners of Idlewood and did not affect his view on Rosalind, would be of some importance were it not for the specific statement in his own deed as to the nature of the restriction which would be made for his benefit when the Brown lot was sold; that agreement-was in accord with the condition apparent to him on the corner of Idlewood.

. We hold that the general scheme as to the corner lots, of which he is entitled to the benefit, is that, which he agreed to when he accepted his deed, to wit, that the main body of the dwelling-house to be erected on Brown’s lot should be back at least twenty feet from the southwesterly line of Rosalind avenue. Brown’s side porch, which encroaches upon this twenty feet, is not a violation of the general plan or scheme as thus expressed.

The petition will be dismissed.

Marvin and Henry, JJ., concur.


text:
    PRINCIPAL AND SURETIES
    [Cuyahoga (8th) Circuit Court,
    November 27, 1911.]
    Marvin, Winch and Henry, JJ.
    Cleveland Metal Roof. & Ceiling Co. v. Nick J. Gaspard et al.
    Materialman Subsequently to and without Knowledge of Contractor's Bond Denied Right to Maintain Action against Sureties.
    A materialman who furnishes material to a contractor which goes into the construction of a building, for the construction of which the contractor has given bond to the owner, conditioned also to “pay, or cause to be paid, all claims contracted in reference thereto for material and labor,” can not maintain an action for the value of the material so furnished against the sureties on the bond to the owner, it appearing that at the time said bond was given the claim of the materialman had not been created and that he did not know of the existence of the bond, or rely upon it when he furnished the material.
    Error.

      F. C. Hartman, for plaintiff in error.

      Pomerene & Karch, for defendant in error.
   WINCH, J.

The question in this case is whether a demurrer to the roofing company’s petition was properly sustained.

It recites that the roofing company furnished material to the defendant, Nick Gaspard, a building contractor, who had given bond to the owner conditioned for the completion of the work under the contract, and that the contractor would “pay, or cause to be paid, all claims contracted in reference thereto for material and labor. ’ ’

The petition alleges the terms of the contract and bond, that the plaintiff’s claim accrued under the contract and had not been paid, and asks judgment against the .obligors on the bond.

The defendant sureties on the bond filed the demurrer in question.

It fairly appears from the petition that at the time the bond was executed and delivered to the owner, the claim of plaintiff had not been created; it arose afterward in the progress of the execution of the contract; and there is no allegation that plaintiff knew of the existence of the bond and relied upon it when it furnished material to the contractor.

The plaintiff claims a right to recover against the sureties under the rule of law expressed in the ease of Emmitt v. Brophy, 42 Ohio St. 82, and cases there cited, to the effect that in Ohio an agreement made on a valid consideration by one person with another, to pay money to a third, can be enforced by the latter in his own name.

This general rule, however, has its limitations, as shown by Judge Spear in the cáse of Cincinnati, H. & D. Ry. v. Metropolitan Nat’l Bank, 54 Ohio St. 60 [42 N. E. 700; 31 L. R. A. 653; 56 Am. St. 700], After explaining the Emmitt case and showing that in it the claim of the third person was well known to all the parties, reduced to judgment and a lien on the property conveyed under Emmitt’s obligation to pay off and liquidate all claims and demands against it, the learned judge, on page 69, observes:

“No one of the cases cited carries the doctrine farther than the foregoing. In no one of them is it held that a right to sue in a stranger can be raised by mere implication. Nowhere is it held that the obligation will attach in favor of future creditors not named and not known, and as to amounts not specified or then ascertainable, to the extent of giving to such creditors a right of action on the contract.1 ’

Clearly the roofing company is one of “such creditors” and has no right of action on the bond. The bond sued on in the case of American Surety Co. v. Raeders, 8 Circ. Dec. 684 (15 R. 47), contained the following covenant:

“We hereby agreeing and consenting that this undertaking shall be for the use of any laborer or material-man having a just claim as aforesaid, as well as for said board of education”; (to whom the bond read).

This express agreement was enforced against the surety company; there is no language of similar import in the bond here under consideration, and the case last cited is, for that reason, inapplicable.

Judgment affirmed.

Marvin and Henry, JJ., concur.


text:
    INSURANCE
    [Cuyahoga (8th) Circuit Court,
    November 27, 1911.]
    Marvin, Winch and Henry, JJ.
    German Fire Ins. Co. v. Duncan Burke.
    Opinion of Insured Valuing His Own Property, Giving Cost, Admissible.
    In an action on a fire insurance policy, covering household goods, the owner may give his opinion as to the value of his own property and evidence of its cost is some evidence of its actual value.
    Error.

      C. W. Fuller and L. B. Canfield, for plaintiff in error.

      B. E. McKisson, for defendant in error.
   WINCH, J.

In this action we are asked to reverse a judgment on a fire insurance policy.

It is claimed that the judgment is not supported by the evidence in that the insured failed to show that he made proper proof of loss under the terms of the policy and that he failed to show, by any competent evidence, what was the value of the goods destroyed.

The company had immediate notice of loss and sent a man the same day to investigate it; the insured appears to have gone to the office of the state fire marshal, and testifies that he there made proof of loss, swore to it and delivered the same to the man who came to inspect the loss. The agent of the company says he never received this. Notification of loss and list of goods destroyed and their value was made out by counsel for the insured, and mailed to a soliciting agent of the company. While at first denying receipt of these letters, the original turned up at the trial in the hands of the proper agent. The clerk of insured’s counsel testifies that the list was sworn to by the insured, as he does himself. The company fails to produce this sworn statement, but does produce the list, without affidavit attached.

On a careful reading of the evidence, we think the jury might well have found, as it did, that the insured furnished proof of loss as required by the policy.

And the only evidence as to value of the goods destroyed was given by the insured and his wife and one Fay, a mover, whose testimony was objected to. Fay was qualified by the cross-examination of the company.

An owner can always give his opinion as to the value of his own property. This the insured did, giving the cost of the various items destroyed. The wife testified to the same. This was some evidence of the actual value of the goods: These witnesses could have been cross-examined as to how long the insured had owned them and their condition, showing wear and tear, etc. The company could have introduced other evidence tending to show a lower value to the goods, due to depreciation. This it did not choose to do.

The evidence seems to fully sustain the verdict, and finding no prejudicial error in the record, we are able to certify, as required by law, that substantial justice was done by the complaining party.

Judgment affirmed.

Marvin and Henry, JJ., concur.


text:
    MASTER AND SERVANT — WORDS AND PHRASES
    [Cuyahoga (8th) Circuit Court,
    November 27, 1911.]
    Marvin, Winch and Henry, JJ.

      Pietro Spano v. Brookside Brick Co.
    1. “Other Kind of Machinery” In Employers’ Liability Act Means Wheel Kind.
    In Sec. 4364-89c R. S. (Sec. 1027 G. C.), which provides for the enclosure, with substantial railing, of all openings through floors, through, or in which wheels or belts may operate, the words “other kind of machinery,” means “other machinery of the wheel kind.”
    2. Common Law and Statutory Causes of Action against Employers Joinable.
    The common law and statutory cause of action for damages resulting from the negligence of an employer may both be set up and joined in the same petition.
    Error.

      E. F. Payer, D. B. Niaola and TJlmer & Bernstein for plaintiff in error.

      Bussell & Eichelberger, for defendant in error.

      Affirmed no opinion, Brookside Brick Co. v. Spano, 87 Ohio St. 615.

   WINCH, J.

This was a personal injury damage case, with verdict directed for the defendant, at the close of plaintiff’s evidence.

Counsel for plaintiff states the facts of his case as follows:

“The plaintiff was employed by the defendant in its.brick plant located near Brookside Park in the city of Cleveland. The room to which the clay is brought for the purpose of being made into brick is about 20 feet long and 11 feet wide, in the floor of which are two openings about 9 feet apart. These openings are near a track running the length of the room and raised about two and one-half feet above the floor of the room, over which track the cars of clay are drawn by cable. In the operation of the said plant when the cars reach one or the other opening in the floor the clay is dumped into said opening and on the surrounding floor space.
‘ ‘ These openings are about iy2 feet wide and 2 feet long in which, about 9 or 10 inches below the surface, are two wheels. One of these wheels is about 9 inches and the other is about 18 inches in diameter, the said wheels being close together underneath said opening. The nearest point of one wheel to the other directly under said opening is 18 inches below the level of the floor. The smaller wheel has teeth running its full length, which teeth or knives are 5 or 6 in number and are one inch in thickness and one inch in height. In the operation of said plant the wheels rotated rapidly in opposite directions and the teeth of one wheel would catch the clay as it was thrown down on top of them and cause the same to be crushed and pushed between the two wheels and down below where it was conveyed to other parts of the plant.
“In the operation of said plant, one workman would work at one opening and the other at a second opening, and it was at one of these openings that the plaintiff worked when he was injured. The evidence showed that in the operation of said plant and on the day that the plaintiff was injured, the room was full of clay and as the clay went down into the opening, it left a funnel-shaped opening above the floor; that the plaintiff, who had gone to work at this place two days before the injury happened, had been merely told to shove dirt in the opening; that he first cleaned some of the dirt around the edge of the opening and then was standing by the edge of said opening pulling the dirt into it, when he reached for a pick about a foot and a half from him. As he did so he slipped and his leg went into the opening, was drawn between said wheels and crushed, necessitating amputation about 5 inches from the hip. There was no railing or anything else over or around the opening wherein the plaintiff was injured.”

Manifestly no ease was made.under the common law rule of assumed risk. Plaintiff claims, however, that he made a case under the statute, then See. 4364-89c, R. S. (Sec. 1027 G. C.) which abolishes the rule of assumed risk as to factories and workshops, and limits the recovery to $3,000.

The part of that statute which réquires construction here reads as follows:

“Owners and operators of factories and work-shops, which terms shall mean all manufacturing, mechanical, electrical and mercantile establishments, and all places where machinery of any kind is used and operated, shall take ordinary care and make such suitable provisions as to prevent injury to persons who may come in contact with any such machinery or any part thereof; and such ordinary care and such suitable provisions shall include the enclosure of all exposed cog-wheels, fly-wheels, band-wheels, all main belts transmitting power from engine to dynamo, or other kind of machinery, and all openings through floors, through, or in which such wheels or belts may operate, with substantial railings.”

We do not think, as claimed by plaintiff, that the machinery in question can be called cog-wheels, but we are of opinion that it comes under the class of “other kind of machinery,” as used in the statute. That phrase, used after the words “cogwheels, fly-wheels, band-wheels,” means “other machinery of the wheel kind.” This was machinery of the wheel kind; the statute provides for the enclosure of all openings through floors, through or in which such wheels may operate, with substantial railing; there was no such substantial railing around the opening in the floor in which the wheels were operating which injured plaintiff; it is apparent from the record that there could and should have been such railing in this case, and that if it had been there, Spano would not have been hurt.

The statute was violated and therefore Spano was entitled to recover under it, not exceeding $3,000. He prayed for a judgment in the sum of $10,000, which would indicate that he also hoped to recover under the common law.

If the petition is to be held as an attempt to join the common law and the statutory causes of action, we see'no objection thereto. Labatt, Master and Servant, Sec. 734, says that such joinder, is customary in England, and has never been questioned in Massachusetts and Alabama, jurisdictions where they have had the statutory action longer than we have had it in Ohio.

For error in directing a verdict for the defendant, the judgment is reversed and the cause remanded for a new trial.

Marvin and Henry, JJ., concur.


text:
    ACTIONS — DEATH—ERROR
    [Cuyahoga (8th) Circuit Court,
    November 27, 1911.]
    Marvin, Winch and Henry, JJ.
    Pasquale Piscopo, Admr. v. New York, C. & St. L. Ry.
    1. Action for Death by Wrongful Act Failing Otherwise than on Merits Renewable within Year.
    Under Sec. 11233 G. C., if a plaintiff in an action for wrongful death fails otherwise than upon the merits, he may commence another action upon the same cause of action within one year thereafter.
    2. Ambiguous Statements as to Dismissal of Former Action for Death by Wrongful Act.
    When the statements in a petition are ambiguous as to whether a former action was dismissed by the plaintiff or by the court, without prejudice, admissions in brief and oral argument made in a reviewing court that the dismissal was voluntary, will preclude said reviewing court from reversing a judgment on demurrer based upon such meaning of the ambiguous words.
    Error.

      J. V. Zottarelli, for plaintiff in error.

      John H. Clark, for defendant in error.
   WINCH, J.

Counsel for plaintiff in error gives the history of this case as follows:

“Umberto Giordano, deceased, was run over and instantly killed by the defendant on or about April 28, 1907. The plaintiff in error herein was duly appointed and qualified as administrator of said estate and filed against defendant in error, on December 6, 1907, his petition in the court of common pleas, said cause being known as No. 115577. Said action was duly dismissed by said plaintiff in error in open court upon the ground that the petition did not state sufficient material averment to constitute a cause of action. On September 21, 1909, said plaintiff in error was allowed to dismiss said action without prejudice to a further action. That a petition by the same plaintiff in error against the same defendant in error, in the same cause of action was filed on October 28, 1909, within less than a year from the time of the dismissal of said action. On September 26, 1911, the demurrer of defendant in error was sustained, and judgment rendered in favor of defendant in error. On October 7, 1911, plaintiff in error filed his petition in error in the circuit court.”

The demurrer was upon the ground “that the case of action, if any was stated, is barred by the laws of Ohio.”

When the present action, was begun, more than two years had elapsed after the death of plaintiff’s intestate, and so his right of action was gone unless saved under Sec. 11233 G. C., formerly Sec. 4991 R. S., and originally Sec. 23 of the code of civil procedure, which provides that if the plaintiff fails otherwise than upon the merits of an action commenced by him, and the time limit for the commencement of such action at the date of failure has expired, the plaintiff may commence a new action within one year after such date.

In answer to this, counsel for the railroad company cites a dictum of the Supreme Court, found in the case of Baltimore & O. Ry. v. Fulton, 59 Ohio St. 575, 577 [53 N. E. 265; 44 L. R. A. 520], ás follows:

‘ ‘ Much can be said in favor of the proposition that the provisions of Sec. 4991 R. S. (See. 11233 G. C.), do not apply to a case of this kind. For whilst it may be admitted that the plaintiff failed in the eirerrit court otherwise than on the merits, sti.II there is much reason and authority for saying that the limitation of two years, fixed for bringing an action for causing death by wrongful act, is a part of the right of action itself, and not merely a limitation of the remedy, and that the action can not therefore in any case be brought after the time limit has expired.”

As sustaining this doctrine, the court cites Pittsburgh, C. & St. L. Ry. v. Hine, 25 Ohio St. 629, 634, and says: “as apparently contra, see Meisse v. McCoy’s Admr., 17 Ohio State, 225, though the point was not there made. But as we do not dispose of the case on this ground, no further consideration will be given it.”

What is now Sec. 11233 was not before the court in the Hiñe case; it was before the court in the McCoy case, and said case is in point and applicable here, unless what is said in the Fulton case discredits the authority of the McCoy case.

Later, however, we find the Supreme Court speaking of the McCoy case with favor. In the case of Pittsburgh, C. C. & St. L. Ry. v. Bemis, 64 Ohio St. 26, 35 [59 N. E. 745], Judge Spear says:

‘ ‘ That the code generally is to be liberally construed to promote the ends of justice, and that Sec. 4991 (now 11233), is entitled to the same liberal treatment, see Meisse v. McCoy’s Admr., 17 Ohio State, 225,” and other cases cited.

We therefore conclude that See. 11233 authorized the plaintiff to bring this action within a year after the dismissal of his former action, unless, for some other reason, he is forbidden the advantage of said section.

In the case of Siegfried v. New York, L. E. & W. Ry., 50 Ohio St., 294 [34 N. E. 331], it was held:

“Where an action which has been commenced in due time, is dismissed by the plaintiff after the time limited for the commencement of such action has expired, a new action for the same cause, thereafter commenced, is barred, though commenced within one year after the dismissal of the former action. Such dismissal is not a failure in the action, within the purview of See. 4991 B. S.”

The petition in this ease is equivocal. It says that “said action was on September 21, Í909, dismissed without prejudice to further action.” Whether it was dismissed by the court or by the plaintiff is uncertain. If by the court, it would be a failure in the action, within the purview of Sec. 11233 G. C., if by the plaintiff, it would some under the rule laid down in the Siegfried case.

Were it not for the brief of counsel from which we quoted the history of the case and which solemnly states that “said action was duly dismissed by plaintiff in error in open court,” we would apply the rule laid down in Loudeoibach v. Collins, 4 Ohio St. 251, and presume that the action was dismissed by the court.

Not only does plaintiff’s brief in this court show that he himself dismissed said action, but his counsel made the same admission orally, and it appears that, from briefs in the files and from his admissions in open court, the same statement was made to the court below when it passed upon the demurrer.

The court below, having sustained the demurrer to the petition, should have dismissed the petition, not alone on that ground, but upon the statement' of counsel that he had voluntarily dismissed the former petition, and so was barred from filing a new petition because of the ruling in the Siegfried case.

We find-no good reason for reversing the judgment herein on the equivocal language of the petition. Counsel has furnished an interpretation of that language, both to the court below and to this court, upon which he must stand. Interpreting it as meaning what he says it means, there was no error in sustaining the demurrer to it, and the judgment therein is affirmed.

Marvin and Henry, JJ., concur.


text:
    APPEAL
    [Cuyahoga (8th) Circuit Court,
    January 22, 1912.]
    Marvin, Winch and Niman, JJ.
    L. S. Bing and Sol R. Bing, Partners, v. Baltimore & O. Ry.
    1. Jurisdiction on Appeal from J. P. Involving as New Cause of Action, Equitable Relief, Denied Except upon Consent or Waiver.
    A justice of the peace having no equitable jurisdiction and plaintiff requiring equitable relief in the reformation of a bill of lading before he can recover, on appeal to the common pleas court, though it would have had jurisdiction of the case had it been brought there originally, that court can not entertain jurisdiction unless the parties consent thereto, or waive said objection.
    2. Motion by Defendant on Appeal to Require Plaintiff to Separately State and Number Causes of Action, Held Waiver by Appearance.
    A motion by defendant in such an appealed case that the plaintiff be required to separately state and number his causes of action, is an entry of appearance by the defendant, and waives objection to the jurisdiction of the court.
    Error.

      Max P. Goodman, for plaintiff in error.

      J. M. and Charles Lessich, for defendant in error.
   WINCH, J.

Plaintiffs in error brought suit against the railroad company before a justice of the peace for damages for breach of contract to safely carry goods shipped by plaintiff in care of the railroad company.

Judgment being for the plaintiffs, an appeal to the common pleas court was taken by the defendant, and there it became necessary for the plaintiffs to ask that the bill of lading, or contract between the parties, be reformed so as to show that the plaintiffs were the real consignors of the goods, it reading by mistake, or inadvertance, in the name of some other person.

Not being satisfied with the form of plaintiff’s amended petition,, the defendant filed a motion to require the plaintiff to separately state and number his causes of action, which motion was granted, and plaintiffs complied with the order of the court, filing another amended petition setting up in one cause of action facts showing that the bill of lading did not express the real contract between the parties and asking its reformation, and another cause of action setting out the facts as to the shipment of the goods, payment of charges and damages to the goods in transit.

This amended petition was stricken off on motion of the defendant on the ground that it set up a different cause of action from that sued upon before the justice of the peace, and one of which the justice did not have jurisdiction.

A justice having no equitable jurisdiction, and the plaintiffs requiring equitable relief in the reformation of the bill of lading before they could recover, the common pleas court, though it would have had jurisdiction of the case had it been brought there originally, could not entertain jurisdiction of the case on appeal, unless the parties consented thereto or waived said objection.

This we think they did, the plaintiffs by filing their petitions in the common pleas court, and the defendant by filing its motion to separately state and number, as will appear from an examination of two cases cited by counsel.

On the case of O’Neal v. Blessing, 34 Ohio St. 33, the plaintiff had brought suit for damages by trespass to real estate, beyond the jurisdiction of the justice, and the Supreme Court held that the common pleas court could not take appellate jurisdiction of the action, but that where an appeal was attempted and the plaintiff filed a petition and the defendant, without objecting to the jurisdiction, by motion obtained an order of the court requiring the plaintiff to amend his petition and then demurred to, the petition as amended, the defendant thereby entered his appearance as in an original action in the court of common pleas.

It is interesting to read what the court says on the subject on pages 36 and 37 of the opinion, for .there it appears that the case turned upon the question whether or not the common pleas court had obtained jurisdiction of the persons of the parties, not of the subject-matter:

“The subject-matter of the action was one over which the court of common pleas had original jurisdiction; and the parties, either by express consent, or by acts which the law regards as equivalent thereto, could submit themselves personally to its jurisdiction. The question is: Did the parties by their acts give the court of common pleas complete original jurisdiction of the action? We think they did. The filing of his petition in the action,, by plaintiff, was an act that was subject to no equivocal construction. It was an appearance on his part. To this petition, and also an amended petition filed by leave of the court, the defendant interposed motions raising questions as to the sufficiency of the petitions respectively. * * *
“By the filing of these petitions respectively, and invoking the rulings of the court thereon, the defendant impliedly waived the issuing and service of process, and submitted his person to the jurisdiction of the court in the action. It was in legal effect, precisely as if the plaintiff had filed his petition and the defendant had expressly waived process and filed his answer.
“The papers on file in the attempted appeal had no force or validity for any purpose, and were, therefore, properly stricken from the files.”

In other words, the service made in the justice court does not hold over and bring the parties, by the appeal, into the common pleas court, as it does in appealable actions, but, if the latter court has original jurisdiction of the subject-matter, and service is there had upon the parties, or is waived by them, its jurisdiction is as complete as if there had been no attempt to sue first before a justice of the peace.

In the case of Long v. Newhouse, 57 Ohio St. 348 [49 N. E. 79], it was held:

“In order to enable a defendant to object to the jurisdiction of the court over his person, the objection must be made at the earliest opportunity of the party. If before making such objection, the party appears and makes a motion that the plaintiff be required to attach an account of the items of his claim to his petition, or, that he be required to separately state and number his causes of action, or, that he be required to strike certain matter from his petition, in either of these cases, the party voluntarily submits himself to the jurisdiction of the court, and he can not afterwards be heard to object thereto.”

In the light of these eases it seems that the common pleas court’s jurisdiction was completed by the defendant’s filing its motion requiring the plaintiffs to separately state and number their causes of action, and it was error for the court to thereafter strike the amended petition from the files.

The fact that this was done twice for the same reason, both as to the seeond amended petition and the third amended petition, makes no difference; the doctrine of res adjudioata does not apply to various steps in the same action. The trial judge who struck the third amended petition from the files was not bound to do so simply because it was identical with the second amended petition, which another judge of the same court had stricken off, if the first judge had erred in his ruling. Of course, courtesy between co-ordinate judges and deference as to each other’s opinions lead to such results, but there is no law requiring such rulings.

For error in striking the third amended petition from the files, the judgment is reversed and the cause remanded for further proceedings.

Marvin and Niman, JJ., concur.