text:
    CARRIERS.
    [Montgomery (2nd) Circuit Court,
    December 30, 1913.]
    Allread, Ferneding and Kunkle, JJ.
    Alvin J. Fink v. P., C., C. & St. L. Ry.
    1. Consignee Accepting Goods Shipped and Paying Freight Charges Assessed by Carrier without Notice of Correctness of Charges not Liable for Balance of Published Tariff.
    A consignee, not a party to the contract of carriage, nor the owner of the goods in transit, receiving such goods shipped in interstate commerce and paying the freight charged by the carrier thereon, who thereafter, relying upon the correctness of the freight charges, accepts the goods of the consignor and delivers the consideration without notice or knowledge of a higher rate or charge, is not liable for the balance of the true published tariff rate omitted through an error of the shipping clerk of the initial carrier.
    2. Consignee not Bound by Doctrine that Shipper is Charged with Notice of True Tariff Freight Rate
    The doctrine that a shipper is charged with notice of the true tariff freight rate, no matter how obscure or complex, does not apply to a mere consignee whose interest in the goods shipped and whose title thereto vests after delivery by the carrier.
    [Syllabus by the court.]
    Error.
   ALLREAD, J.

This action originated before a justice of the peace. The railway company sought recovery of a balance of $15 alleged to be due it and its connecting carriers for the transportation of certain merchandise. The original bill of particulars based the claim upon contract. The amended bill rested upon the conveyance and delivery of the merchandise to Fink upon his request.

There was a verdict and judgment in the magistrate’s court against the railway company. This judgment was reversed in the court of common, pleas, where a final judgment was rendered for the railway company upon its claim.

The cause is brought to this court upon petition in error by Fink, seeking a reversal of the judgment of the- court of common pleas and an affirmance of that of the justice of the peace.

It is contended on behalf of the plaintiff in error that the court of common pleas had no jurisdiction to reverse the judgment of the magistrate, because the motion for a new trial in the magistrate’s court was not based upon the grounds stated in See. 10352 G. C.

We think it clear that the court of common pleas had no jurisdiction to grant a new trial upon the weight of the evidence. Derby v. Heath, 59 Ohio St. 54 [51 N. E. Rep. 547].

Under the broad language of the syllabus and opinion of the case cited, there is some plausibility to the contention that the verdict and judgment in the magistrate’s court is final and not subject to a review upon any ground. But we have reached the conclusion that whether there was any evidence tending to support the defense in the magistrate’s court was a question of law. We rest this conclusion upon the decision in Kaufman v. Broughton, 31 Ohio St. 424, holding that whether there is any evidence tending to support the plaintiff’s claim is a question of law, and it seems to us that the same principle should be applied to a case where the evidence does not tend to establish a defense. This question is raised in the record by request to the magistrate to instruct the jury to render a verdict in favor of the plaintiff. While a magistrate is not ordinarily required to instruct the jury, yet the effect of this request was to test the sufficiency of the evidence to support the defense.

The only question, therefore, capable of review by the court of common pleas was whether the evidence tended to support the defense in the magistrate’s court.

The judgment of reversal in the common pleas court can only be sustained in case of all the evidence, giving it its most favorable construction in favor of the defendant in the magistrate’s court, tended to support the railway company’s claim.

The evidence in the bill of exceptions tends to show that in August, 1910, a shipper whose full name does not appear delivered a package marked “Indian curios” to the initial carrier at Los Angeles, California, billed to Alvin J. Fink, Dlayton, Ohio, and that in due course of shipment the same was delivered to Fink upon his payment of the sum of $15, being the amount charged upon the bills and receipts tendered and exhibited to Fink. The testimony of Fink tends to show that there was no agreement between him and the consignor and that he (Fink) should pay the freight. He further testifies that the goods were shipped to him for examination and under an arrangement that if upon examination the same proved satisfactory they were to be taken by Fink'in exchange for certain gold coins which had previously been shipped by Fink to Los Angeles, California, where they ‘were in custody of the postmaster and subject to Fink’s order. Fink testifies that he paid the freight charges of $15 to obtain possession of the goods, and that after examination and without any knowledge or notice that any other or additional freight charges were due he released the gold coins and the same as well as the most part of the curios are now scattered and their whereabouts unknown. The evidence shows that some considerable time after this transaction was entirely closed, the railway company discovered that the true tariff rate of shipment was $30 instead of $15, and this claim was thereupon asserted against Fink as consignee.

Was Fink as consignee, therefore, liable under the evidence as a conclusion of law? This question is to be determined under the common law as affected and controlled by the eomr maree acts of congress. Under the common law the shipper of goods was liable to carriers for the reasonable rate of transportation and this rate was capable of being fixed by contract. The consignor is generally considered the shipper as between him and the carrier, but the consignee was also held to be liable upon the contract of shipment for the freight charges where such consignee was the owner of the goods or requested or directed the shipment. While there is some conflict of authority, we think under the common law the consignee’s liability for the freight charges under the contract of shipment is confined to cases where the consignee was in some way a party to the contract of shipment or was the owner of the goods transported. There is, however, a liability of the consignee, based upon the receipt of the g'oods upon which freight charges are due. His liability in this respect is entirely different from that of ship-pet. It rests upon the presumed intention or agreement of the parties at the time of delivery. Blanchard v. Page, 74 Mass. (8 Gray) 281; Cock v. Taylor, 13 East 339; Old Colony Ry. v. Wilder, 137 Mass. 536.

There are some English as well as American decisions based upon an express stipulation in the bill of lading to the effect that the consignee agrees to pay the freight but where, as in the case at bar, there is nothing upon the face of the bill of lading tending to impose any liability upon the consignee, except that implied from the collection of the freight charges marked upon the bill, the liability of the consignee depends upon the real circumstances of the case. Here Fink was not a party to the contract of shipment, was not the owner of the goods during transportation and his title vested and the consideration was delivered subsequent to his receipt of the goods. He paid the $15 charges, not by virtue of any agreement to do so, but because that amount was imposed as a lien upon the property and a condition of delivery. We think there are no circumstances in the case from which under the common law Fink would be held liable, for any amount in excess of the $15 charged and paid at the time the merchandise was delivered. It is contended, however, that the effect of the Interstate Commerce act was to make it imperative upon the railway company to collect from the consignee the full tariff rate, regardless of the mistake of the agents of the railway company and regardless of the consignee’s connection with the property or the shipment.

We have examined the following cases decided by the Supreme Court of the United States: Texas & P. Ry. v. Mugg, 202 U. S. 242 [26 Sup. Ct. Rep. 628; 50 L. Ed. 1011] ; Chicago & A. Ry. v. Kirby, 225 U. S. 155 [32 Sup. Ct. Rep. 648; 56 L. Ed. 1033] ; Illinois Cent. Ry. v. Elevator Co. 226 U. S. 441 [33 Sup. Ct. Rep. 176; 57 L. Ed. 290] ; Texas & P. Ry. v. Oil Co. 204 U. S. 426 [27 Sup. Ct. Rep. 350; 51 L. Ed. 523] ; New York N. H. & H. Ry. v. Commerce Commissioners, 200 U. S. 361 [26 Sup. Ct. Rep. 272; 50 L. Ed. 515].

All these cases were actions involving the shippers’ rights as against the carrier and, therefore, involved the contract of shipment and the liability of the parties thereto. In none of these cases was the liability of the consignee directly involved. His rights must, therefore, be determined by the common law as modified by the Interstate Commerce act.

Section 6 of the Interstate Commerce act provides:

“That every common carrier subject to the provisions of this act shall file with the commission created by this act, and print and keep open to public inspection schedules showing all the rates, fares and charges for transportation between different points on its own route and points on the route of any other carrier, by railroad, by pipe line, or by water, when a through and joint rate have been established *■ * * ■ the schedules printed as aforesaid by any such common carrier shall plainly state * * * all privileges or facilities granted or allowed and any rules or regulations which in any wise change, affect, or determine any part of the aggregate of such aforesaid rates, fares and charges, or the value of the service rendered to the passenger, shipper or consignee.”

Section 6 further provides: portation of passengers or property for any service in connection therewith, between the points named in such tariffs than the rates, fares and charges which are specified in the tariff filed and in effect at the time.”

“Nor shall any carrier charge or demand or collect or receive á greater or less or different compensation for such trans-

The Interstate Commerce act was amended June 18, 1910, so as to make the carrier criminally liable for a misquotation, of rates.

The only direct reference to “consignee” in the Interstate act is found in Sec. 6, in connection with charges made and services rendered to the “passenger” or “shipper.” "We think this paragraph should be limited in respect to the consignee to one at whose instance the service was had and who becomes: liable under the contract of shipment for the freight charges. This paragraph was not intended to create a new liability, but: as a regulation of charges against persons at whose instance or for whose benefit the service was had.

The final reasoning brings us to a consideration of the paragraph of Sec. 6 prohibiting the carrier from charging, demanding or collecting “a greater or less or different compensation”' than the tariff rates. This prohibition is addressed specifically" to the carrier, but, under the broad principle of public policy underlying the Interstate Commerce act, is sufficient to charge' the shipper or other party originating the service who is bound to take notice of the tariff rate no matter how obscure or difficult.

It is urged that the same inexorable rule of public policy should be applied to the consignee no matter what his relation to the property is. This contention is founded upon the second syllabi of Texas & P. Ry. v. Mugg, supra, and also Louisville & N. Ry. v. Magnus Co. 32 O. C. C. 608 (13 N. S. 305).

In the Mugg ease the liability of the consignee was incidental, and the syllabus referred to relates to the rights of the company at the time of delivery, and should not in our opinion be generally applied to all persons who happen to deal with, railway companies in relation to the property.

In the Magnus case the mistake in the freight charge was discovered before the property was delivered, and the delivery was made under a general arrangement charging the amount ■of the freight against the shipper instead of collecting it before ■delivery. We think the syllabus in the latter case as well as ■the opinion should be limited by the facts of the case, and so also the syllabus in the Mugg case should be limited to cases where the freight charge and the delivery are concurrent. The rule of public policy, charging notice of the tariff rates against shippers, does not apply with equal reason to a mere consignee who receives and deals with the property upon the faith of the .railroad company’s charges stated in the bill of lading. Such consignee should not be charged like the original shipper with the duty of ascertaining the public tariff rates, nor is he chargeable with ascertaining the fact as to whether all or only a portion of the tariff rates are made chargeable against him. Undoubtedly if the shipment had been delivered under a bill of lading showing freight paid, it could not in reason and justice be claimed that the consignee was bound to ascertain the fact of prepayment. Public policy does not require that our remedial laws should be made an instrument of injustice or oppression.

Fink when he received the goods found charged thereon $15 "which he paid. We think he was not bound as a matter of law to go further than what appears upon his bill of lading and receipt in the investigation of the amount of charges, and having paid that, there is no further personal liability.

It, therefore, follows that the judgment of the court of common pleas should be reversed and that of the magistrate affirmed.

Ferneding and Kunkle, JJ., concur.


source: Caselaw Access Project

author: RICHARDS, J.

license: Public Domain

text:
    LANDLORD AND TENANT.
    [Hamilton (1st) Court of Appeals,
    March 29, 1915.]
    Kinkade, Richards and Chittenden, JJ.
    (Judges of the 6th court of appeals sitting by designation.)
    Louise Stinson v. Fred Metzger.
    Tenant Denied Damages for Falling Through Open Cellar Door in Common Passageway, Landlord not Responsible for Leaving Door Open.
    A tenant will not be permitted to recover from her landlord for' personal injuries caused by a fall through an open cellar door in a common passageway, where no claim is made that the-landlord or his servants were in any way responsible for the-door being left open and there had been no change in the-’ passageway of the cellar door during the tenancy.
    [Syllabus approved by the court.]
    Error to Cincinnati superior court.

      Robert S. Alcorn and Thorndyhe & Capelle, for plaintiff in error.

      Gideon G. Wilson, for defendant in error.
   RICHARDS, J.

The action was commenced in the superior court of Cincinnati by Louise Stinson to recover damages for personal injuries suffered by her in falling into a cellar, the cellar door having been left open. She was a tenant of the defendant, occupying the lower apartment in a three story flat, certain other tenants-using the second and third stories." Each of the tenants used the cellar or basement and obtained access to the same by a cellar way located in the rear of the flat. The premises had a common passageway leading from the street to the rear of the-flat and thence turning at right angles around the building. The passageway at the rear where the cellar was located was; unlighted and had remained in that condition ever since the plaintiff had occupied the premises. The cellar door when closed was even with the surface of the concrete passageway •and the tenants frequently walked over the cellar door in order to get to the side of the door which enabled them to lift the door and enter the cellar way. On returning to her apartment after dark on the evening of the injury, the plaintiff walked along this unlighted passageway and the cellar door 'having been left open by some person, other than the defendant •or his agents or servants, she walked into the same and was severely injured. The trial judge directed a verdict for the defendant and to this action error is prosecuted.

It appears from the bill of exceptions that no defect existed in the construction of the cellar door, and that it remained in the same condition all the time that the plaintiff occupied the premises as a tenant. She at one time complained to the landlord that no railing was placed around the entrance to the cellar, but it does not appear that he promised to erect any railing or barrier, and the conditions continued the same. Certainly it can not be said that a cellar door in a passageway is in and of itself an inherent defect. It is common knowledge sthat with the increased congestion incident to city life, such method of construction is very frequently resorted to. The landlord did not reside on the premises and no claim is made that either he or his servants were responsible for the door being left open on the occasion of the injury to plaintiff.

The principle applicable is stated in Stackhouse v. Close, 83 Ohio St. 339 [94 N. E. Rep. 746], in substance, that a lessor, ■out of possession and control, would not be liable to a tenant for personal injuries in the absence of deceit or of any agreement or liability created by statute. The circumstances disclosed in the record do not show any ground of liability against the landlord. The plaintiff knew when she rented the premises the exact condition of the passageway and the cellar door. There was no concealed defect and no misrepresentation. She got exactly what she bargained for when she rented the premises. It can not be successfully maintained that the condition tended to show the existence of a nuisance.

Counsel for plaintiff cite and rely on the case of Hohly v. Sheely, 11 Circ. Dec. 678 (21 R. 484), a decision of the circuit court in Lucas county; but an examination of that case discloses that evidence was submitted to the jury tending to show the active negligence of the owner of the premises and her agents, in the opening and shutting of the door and in the management of the same. The ease, therefore, is not in point on the question now under consideration.

We think the rule of law applicable to the case at bar is well stated in Quinn v. Perham, 151 Mass. 162 [23 N. E. Rep. 735], where it is held that a tenant will not be permitted to recover against the landlord for personal injuries caused by a defect in a common passageway, if the tenant knew of the passageway when the tenancy began and if no substantial change had occurred during the continuance of the tenancy. This.case is cited and explained in Andrews v. Williamson, 193 Mass. 92, 94 [78 N. E. Rep. 737; 118 Am. St. Rep. 452].

The plaintiff’s own testimony tends to show negligence on her part in walking along the passageway in the dark without ascertaining whether the cellar door was closed, and this conduct brings the ease within the holding of the circuit court in Dawson v. Seiberling, 36 O. C. C. 128 (18 N. S. 267), for such evidence indicates that her own negligence was largely responsible for the unfortunate injury with which she met.

Finding no error, the judgment of the superior court will be affirmed.

Kinkade and Chittenden, JJ., concur.


author: GRANT, J.

text:
    ATTACHMENT AND GARNISHMENT.
    [Hamilton (1st) Court of Appeals,
    May 28, 1915.]
    Meals, Grant and Carpenter, JJ.
    L. Kruckemeyer Co v. John J. Burckhauser.
    Garnisheed Employer not at Liberty to Sequester Wages of Employee Earned after Notice.
    Where an action in attachment is brought against an employee and his employer is made garnishee, the employer is not at liberty to sequester wages thereafter earned by the employee up to the time of trial and the rendering of judgment; and where this is attempted by the device of paying the employee his wages in full each day in advance, judgment will be awarded to the creditor against the employer' up to the amount which became due to the employee during the pendency of the action if not in excess of the judgment recovered by the creditor.
    Error.
    W. B. Collins, for plaintiff in error.

      Jos. B. Denies, for defendant in error.
   GRANT, J.

This is a proceeding in which we are asked to reverse the judgment of the court of common pleas, for alleged errors there intervening.

The cause was begun in the court of a justice of the peace, from whose judgment an appeal was taken.

The petition for substance averred that the plaintiff recovered a judgment against one Jack Abrams.

In that action the defendant was served with a writ of garnishment, in due form, by which he was required to appear and make disclosure of the indebtedness, if any, existing from him to Abrams. He did not appear and did not answer, as he was commanded.

Thereafter the defendant was duly served with a warrant charging him- as for a contempt, for his default in failing to-answer under the process of garnishment referred to, and upon a hearing had in that behalf did not purge himself of the disobedience imputed to him.

Such further proceedings were then had that the magistrate’s court, where the action was pending, found and adjudged that the defendant owed Abrams an amount of .money, and ordered him to pay it, up to the sum of the judgment theretofore rendered against the latter in favor of the plaintiff.

The defendant made default in this respect also, and wholly neglected to pay the money into court, or to satisfy the plaintiff’s judgment.

To recover the sum thus required to be paid, but which was not paid, was the prayer of the petition.

The defendant answered, admitting that Abrams was in his employment when the order of garnishment was served upon him, but denied that he then owed Abrams anything, or at any time thereafter.

Upon the issue as thus made up, the cause was put to trial before a jury. Testimony was brought forward on both sides, and at the conclusion of it all each party asked the court to direct a verdict in their favor, respectively.

The court did instruct the jury to return a verdict for the defendant, which was done.

An exception was saved, a motion for a new trial was made and denied, and final judgment was entered upon the verdict against the plaintiff for costs.

And this is the judgment complained of, and sought to be reversed here.

The evidence in the case is all before us on the record in a bill of exceptions, whereof the material part is of the following tenor and effect: The defendant admitted that he entirely and knowingly ignored the order of the magistrate requiring a disclosure from him as to whether he owed Jack Abrams anything or not. In fact his disobedience of that legal process was displayed by him rather ostentatiously than in contrition or apology. His theory of how he might safely help the plaintiff’s debtor to beat the law and his creditor’s rights under it, arose upon about the following state of facts:

Jack Abrams, he testified, was owing some two hundred people when he passed into the employment of the defendant. If Ms earnings could be subjected to the. payment of Ms debts, he had no appetite to go to work. This was about five years before the time of the trial below.

So the two executed this flank movement on the statutes of Ohio: Abrams was to operate one of the defendant’s two saloons in the capacity of head “barkeep,” although in one place in the record he is called a “cashier.” Each morning the first thing he was to do — even before his devotions, for aught that appears — Abrams was to take out of the cash register of the concern the sum of $5.71, his agreed and liquidated wage for the day then and thus beginning. It wms indeed said in the argument — though we can not find it in the record specifically —that the real compensation was $40 a week. But, as this, at the rate of matutinal 'withdrawal fixed by the bargain, with $5.71 as the dividend, would suggest an hebdomadal divisor of seven days instead of six, and therefore would beget the further suggestion that the saloon was to be kept running on the first day of the week, commonly called Sunday — a thing not to be thought of in this latitude — it must be a slander originating in the committee on arid lands.

At all events, such was the astute deal by which the law of Ohio was to be dispensed with, in- the estimation of the parties to it. Some one expressed wonder to Sidney Smith as to how the villagers of his parish had so soon constructed a wooden pavement. “Why,” said the acute parson, “we simply put our heads together and the thing was done.”

The invention possibly would merit letters patent for its novelty, Avere there not some doubts as to its usefulness.

For it is to be said that if the scheme should be permitted to have its way and operate to the effect intended, Burekhauser would be placed in the happy position of always employing Abrams but never owing him anything; that was the pellucid theory of the whole invention. The ancient Greeks were accustomed to figure interest by the month, and the month — as indeed its name indicates — was supposed to be dominated by the moon. So when Strepsiades got badly in debt through the horseracing propensities of his son, the advice for which he paid the manager of the phrontisterion, or thinking-shop at Athens, was to the effect that he should hire a Thessalian witch to capture the moon and put it in hiding. Then, presto! no moon, no months; no months, no interest. It was simplicity itself and many have been the key-word to the plan we are now discussing. And what came to the Greek debtor and the thinking-shop would be interesting matter if one should care to pursue it in the pages of the master satirist of antiquity. We can not pursue it, because it would too surely and too early anticipate the conclusion we have reached, without waiting for its orderly sequence of unfolding. Stated otherwise and in terms of simple arithmetic, the example would stand about thus — Nothing from nothing leaves nothing, and nothing to carry.

We agree with counsel that the parties to this agreement of forever getting service and never owing for it, must reckon with Sec. 10270 G. C. of Ohio before it can be allowed to have the effect claimed for it, and given to it — apparently—by the judgment we are called upon to review. That section reads as follows:

“When any part of the earnings of the debtor is not exempt under the law relating to exemptions from levy or execution, the garnishee process shall be in force from the time of its service on such garnishee until the trial of the cause to determine the claim, debt or demand of the creditor, and also bind all such earnings at the time of service and which become due from that time until the trial of such cause.”

If words are to go for anything at all, if language means what it says and can not be permitted to be a mere juggle, if what appears to show forth the-plain legislative intent is not to give way to a paltering that shall confound shadow and substance, if terms apparently level to the comprehension of lawyer and layman alike are for that reason not open to either enlargement or diminution by judicial construction, if, we say, these things are so, then we must conclude that from the time of the process of garnishment on Burckhauser, he was disabled to sequestrate from the law and withhold from its grasp any part of what Abrams earned in the time between that time and the day the cause against the latter was tried. And the device adopted by the employer and the debtor could not defeat the operation of the statute upon the fund in the intervening time earned. From the time of service the wages of Abrams thereafter accruing, were not unappropriated, or subject to disposition or diversion at the will of the employee and his employer with legal notice and service had. From the time of the trial they were at the disposition of the court. In this case the trial court in that action did dispose of so much of them as is in controversy here by directing payment to be made to the garnishing creditor. To this lawful disposition the defendant gave no heed whatever. He did not take the trouble even to answer and disclose his relations with Abrams. When haled to court to explain his disobedience he sets up what in effect is an agreement between two private men, not members of the legislature, to repeal a statute of Ohio. This is stretching the doctrine of recall beyond its utmost tension; it is breaking it to pieces.

Upon which we are to observe, that it will take more than two men — no matter if one of them is, as has been urged in argument, indispensable in his line of industry — to make such a contract effectual in this case. It will take at least a majority of this court to work that result in the case at bar; and, as may have been gathered from what has already been said, a majority, or even unanimity is not wanting. It would in our estimation be doing violence to the letter of the English language as .crystallized in the statute quoted, and a burlesque on common justice and ordinary honesty, to give effect to such a manifest perversion of law and business morals as is claimed, in effect, by the defense in this cause.

Some decisions from which a different conclusion might, as is said, be reached were brought to our attention in the argument at the bar. We do not feel called upon to discuss the effect of these upon their proper eases, or in any case to which they could under law at the time existing properly be applied, more particularly than to say that under the statute with which wé are dealing they appear to us to be totally inapplicable. They were rendered at a time when the controlling and coercive statute did not command the garnishee to withhold from his servant, pending a trial, wages earned between the commencement of the action and the time it is tried. The statute in force when this cause had its inception did so command. Perhaps, probably, it may be said, because of the decisions thus brought to oar attention, the statute was made to take the form of so commanding, and courts are to administer the law as it is, and not as it was aforetime.

Another consideration that was commended to us on the argument at the bar was that the case in hand was one of an overpowering necessity. That the services of Abrams in his profession were so invaluable and so bound up in his own personality that on grounds approximating, it should almost seem, to a public necessity — in Cincinnati — any impeccable breaches of the laws made for the collection of his debts should be excused. And the contract to set aside the statute for his benefit — since he admitted he was not going to work if his ■creditors were going to get the usufruct in the shape of the garnishment plan of 10 per cent for cash — was hit upon as a ■sort of emergency measure, so to speak.

We are sorry to think that the privilege of dodging what the new constitution meant to give the people in the way of referendums is limited to the lgislatureq it can not be delegated to saloon keepers. It will have to be denied here. The claim as of right to dispense with statutes drove one English king from his throne. If it was refused to him, it can not be accorded to the proprietor of even two saloons two centuries and a quarter later. The judgment is not to be upheld on this claimed :ground of public policy and necessity.

To reach another conclusion than this in this case, we should, to our own apprehension, stultify our office and come .short of clearing the oath taken upon entering on its duties. And we can regard no man so powerful, or so indispensable -to one’s private concerns, as to shift from ourselves the obligations to be no respecters of persons in declaring the law. and giving voice to its always impartial judgments. Were we to sustain the proceedings below we should not, as we conceive,, be measuring up to the requirements of this inerrant and necessary standard.

The judgment complained of is without evidence to sup-j>ort it and is against the law of the case. The motion of the defendant for a directed verdict should have been denied and that of the plaintiff for a like verdict should have been allowed.

In these respects we find that manifest error has intervened, for which the judgment under review is reversed.

Each party at the trial asked the action of the court in directing a verdict. This was in law a submission of the cause to that court, and by consequence to this court. And, so finding, we proceed to render the judgment which we also find the court below should have entered, but did not enter, that the plaintiff recover according to the prayer of his petition in that court.

Meals and Carpenter, JJ., concur.


author: JONES, O. B., J.

text:
    LIMITATIONS — TRUSTS AND TRUSTEES.
    [Hamilton (1st) Court of Appeals,
    June 15, 1914.]
    Swing, Jones and Jones, JJ.

      Kate Robson et al. v. Fannie R. Evans et al.
    Running of Decedent’s Administration Limitation Bars Enforcement against Trustee’s Heirs of Claim against Trustee.
    Beneficiaries under a trust can not maintain an action against the heirs and legatees of the deceased trustee or enforce - a claim against their interest in the trust property, there being no claim asserted against his estate within the time fixed by the laws of administration.
    Appeal.

      Bettinger,. Schmitt & Kreis, for plaintiffs.

      Herman P. Goebel and Oliver M. Bock, for defendants.

      Affirmed, no op., Evans v. Robson, 60 Bull. 271.

   JONES, O. B., J.

• William Robson, a resident of Newport, Kentucky, died in May, 1880, leaving a considerable estate consisting of both personal property and real estate situated in Kentucky and Ohio. By his will, probated in Campbell county, Kentucky, an authenticated copy of which was filed in Hamilton county, after making certain devises and bequests he devised and bequeathed all the remainder of his real and personal estate in equal shares to his five children and to a granddaughter, who was the only representative of a deceased son.

Shortly after the death of William Robson an arrangement was made among his devisees whereby it was agreed that no partition or division of the real or personal property should be had for ten years, but that it should be taken charge of, managed and controlled by one of the sons, Charles Robson, for the benefit of all. Under this management Charles Robson took possession of the real and personal estate and managed the same up to the time of his death in October, 1897.

Shortly after the death of Charles Robson it was agreed by the interested parties that George A. Robson, his brother, should succeed. Charles Robson as trustee under the previous arrangement and that he should hold and manage all of the property for the benefit of all, as had been done by his deceased brother.

At that time Kate Robson, the widow of Charles Robson, as his executrix rendered an account and obtained a receipt for stocks, notes and bonds turned over to George A. Robson as such trustee, and also made to him a cash payment which represented the income collected by her after the death of Charles Robson and before the appointment of George A. Robson as such trustee. It being discovered later that the amount of this cash payment was larger than it should have been, George A. Robson repaid to her the amount of such overpayment.

George A. Robson continued to act as trustee up to the time of his death which occurred about a year later, and after that time a neiw trustee who is still acting was agreed upon. '

Under the will of Charles Robson, which was probated in November, 1897, he devised and bequeathed all of his property, which included his one-sixth share of the estate of his father William Robson, to his widow Kate Robson for life, and after her death to their children. This widow and children as plaintiffs, in December, 1910, filed a petition praying for partition of the real estate devised by William Robson and that the one-sixth interest which belonged to them by virtue of the will of their father Charles Robson be set off to them in severalty.

To this petition a cross petition was filed containing two causes of action, the first of which set out certain facts as to the description of the real estate and as to the charges made against some heirs, and as to the relationship of the parties, none of which raised questions involved in this appeal.

Under the second cause of action the cross petitioners charge that Charles Robson as trustee during his lifetime collected large sums of money as rents and income from the real and personal property for which he did not account to the beneficiaries of the trust; that he also did not account for all the personal property which came into his possession and that the plaintiffs after his death as his heirs have failed to so account to defendants for such personal property or to turn over the rents, income and profits thereof to them, although requested so to do; they pray that the plaintiffs may be required to render such an account, and that their interests in the real estate be charged with the amounts found due on such account, and if the account exceeds the distributive share of the plaintiffs then they pray for judgment against them for the amount of such excess.

This case was disposed of below upon demurrer, and was brought into this court by the defendants on appeal, and all of the questions presented here are raised upon the demurrer to the second cause of action set out in the petition.

There is no claim made that the widow and children of Charles Robson, plaintiffs herein, themselves collected any money either as trustees or tenants in common of the real estate, or as joint owners of the personal property, for which they have not accounted. The defendants are seeking to hold, against the share of the property to which they are entitled under the will of Charles Robson, claims for money which they allege Charles Robson had collected or obtained possession of and failed to account for to them.

Under the family arrangement Charles Robson was the trustee of an express trust. His position as trustee ended at his death and he was succeeded by a new trustee in the person of his brother. The claim made by defendants against the plaintiffs is not to account for money collected or property received by them either as trustee or cotenants since the death of Charles Robson. The gist of their action is the failure of Charles Robson to properly account for the money and property received by him as such trustee during his lifetime. Upon his death, although the trust continued to exist, his trusteeship terminated and it became the duty of his executrix to turn over to the succeeding trustee all of the property of said trust and to render to him a complete account of her administration; and at the same time, it became the duty of the succeeding trustee, or upon his failure the duty of the beneficiaries to demand such an accounting from the executrix of the estate of Charles Robson. At his death whatever was owing from him to the beneficiaries or to his succeeding trustee became a debt of the estate, and they were to that extent creditors of the estate and should have presented their claims to the executrix for allowance and payment. Any claim against him in relation to such trust accrued at the time of his death — the termination of his trusteeship. Being an accrued claim it should have been enforced against his estate within the time fixed by the laws of administration, and the fact that it was not enforced against the estate of Charles Robson does not warrant defendants to now assert it as a claim against his legatees and devisees or against their interest in the trust property. The only cases in which the heirs, devisees and legatees might be held liable are under the provisions of Secs. 10876, 10877 and 10878 G. C. Arbaugh v. Millett, 3 Circ. Dec. 146 (5 R. 295) ; Both v. Hummel, 35 O. C. C. 355; Hall v. Blumstead, 20 Pick (Mass.) 2.

The claim presented by defendants is not of a character' that conld be enforced under these sections; and if it were, the time for its enforcement is barred by the. limitation contained in Sec. 10878.

The cases as to a continuing trust, cited on behalf of defendants, might be applicable if this were a proceeding against Charles Robson now in life, but the fact that the trust is still continuing does not alter the obligation put upon his estate for the settlement, so far as his trusteeship is concerned.

The demurrer to the second cause of action set up in defendants’ cross petition will therefore be sustained, and a decree for partition may be had.

Swing and Jones. E. H., JJ., concur.


text:
    PURE FOOD LAWS.
    [Lucas (6th) Circuit Court,
    March 16, 1912.]
    Wildman, Kinkade and Richards, JJ.
    George O. Jury v. State of Ohio.
    Statute Regulating Refilling of Milk Bottles Constitutional.
    Section 13169 G. C., relating to the filling and refilling of milk bottles and glass jars, is not repugnant to any constitutional provision and is a valid enactment.
    [Syllabus by the court.]
    Error.

      Byron F. Ritchie, for plaintiff in error.

      Holland C. Webster and Lawrence F. Conway, for defendant in error.
   RICHARDS, J.

This is a proceeding in error to reverse a judgment of the court of common pleas, affirming a conviction of the plaintiff in error in the police court of the city of Toledo. George O. Jury was charged in the police court with the violation of Sec. 13169 G. C. on June 23, 1910. The only question argued in this court is the constitutionality of the section of the statute to which reference has just been made; it not being contended but that jury was rightly convicted if the statute is constitutional. The section reads as follows:

“Whoever fills or refills with milk; cream or other milk product, a glass jar or bottle having the name of a person, firm or corporation blown therein, with intent to sell such milk, cream or other product, shall be fined not more than one hundred dollars. This section shall not apply to a person, firm or-corporation whose name is blown in such glass jar or bottle or-an authorized agent or employe thereof.”

It will be conducive to a better understanding of the objects and purposes of this statute to refer briefly to its history:. The original statute was enacted on May 9, 1908, and is found!, in 99 O. L. 454; the title of the statute being “An act to regulate the filling and refilling of milk bottles and glass jars.”'' This.act contained three sections; the first section being substantially the same as is now found in Section 13169 G. C. The second section of the act is now See. 12730 G. C. This act was amended, 100 O. L. 17, but only for the purpose of correcting an error in that portion providing a penalty. Under the: classification adopted by the commission to codify the laws;. Secs. 1 and 2 of this act have become widely separated in the' General Code, but the purpose and object of the two sections, was clearly to prevent deception in the sale of milk, and to’ thereby aid in the preservation of the public health, and to-render easier a conviction of those who sell impure milk or milk- or the products thereof placed in bottles which have not been cleansed and sterilized.

Section 12730 G. C. is found under Chap. 6 devoted to offenses against public health; while Sec. 13169 G. C. is found under Chap. 16, which covers the subject of frauds. The species of fraud, however, to which this latter section is referable, is of such a character as relates to the public health and. the detection of offenses against the same.

Counsel for plaintiff in error contend that the section in? question in this case is unconstitutional on authority of State v. Schmuck, 77 Ohio St. 438 [83 N. E. Rep. 797; 14 L. R. A. (N. S.) 1128; 122 Am. St. Rep. 527]. The act which was in review in that case was plainly repugnant to the constitution by reason of provisions which are not found in Sec. 13169. The Supreme Court in the opinion in that ease delivered by Judge Price said page 454:

“It is manifest that-the general public has not been offended by the commission of the acts alleged in the indictment nor does the statute in question make criminal any act in which the general public is concerned.”

The court said further upon the same page:

“The statute is not aimed at the adulteration of any merchandise, food or beverage, nor does it appear from its terms that a compliance with it will tend to prevent adulteration, or secure to the public pure ‘merchandise,’ pure ‘food’ or pure ‘beverages.’ Its sole purpose seems to be the protection of the owners of certain described articles of personal property.”

The differences between the act so under review and the section of the General Code which we are considering are so manifest as to render further reference to this case unnecessary. The statute we have under consideration is more nearly parallel to the one considered by the Supreme Court in State v. Dairy Co. 62 Ohio St. 350 [57 N. E. Rep. 62; 57 L. R. A. 181]. I cite also Walton v. Toledo, 13-23 O. C. C. 547 (3 N. S. 295).

Having no doubt of the constitutionality of the section, the violation of which was charged in the affidavit filed against the plaintiff in error, and being fully convinced that it is a valid and constitutional enactment, the judgment of the court of common pleas will be affirmed.

Wildman and Kinkade, JJ., concur.


author: KINKADE, J.

text:
    AUTOMOBILES.
    [Lucas (6th) Court of Appeals,
    January 18, 1915.]
    Kinkade, Richards and Chittenden, JJ.
    George E. Mayers v. Toledo Railways & Light Co.
    Passenger in Automobile not Charged with Same Liability as Driver.
    A passenger or guest of the driver of an automobile colliding with street car is required to exercise ordinary care only; the negligence of the driver is not imputed to the passenger; he is not required to exercise as high a degree of care as the driver, and he is not charged with the duty of supervising the action of the driver nor of warning the driver of dangers ' possibly to be encountered, especially if he has no reason to fear that the driver is incompetent or reckless.
    Error.

      Bohn, Northup, Bitter & McMahon, and Charles H. Masters, for plaintiff in error.

      Tracy, Chapman & Welles, for defendant in error.
   KINKADE, J.

Mayers brought an action in the court of common pleas to recover damages sustained by him through the alleged negligent conduct of the defendant company. A collision occurred between an automobile belonging to and driven by Henry E. Reik, in which Mayers was riding as a passenger, and a street ear owned and operated by the railway company, at the intersection of Dorr street and the city boulevard. In the collision Mayers received the injuries for which he claims damages in this action. The jury returned a verdict in behalf of the defendant. Numerous errors are assigned as justifying a reversal of the judgment which was rendered on this verdict.

Among others, our attention is called to the giving by the court before argument, of certain requests presented by counsel for the defendant company. Of the requests to which our attention is called, we find that numbers two, four and six, which were given in behalf of the defendant, are open to criticism and should have been modified or omitted, but that "the giving of these requests does not constitute prejudicial error .justifying a reversal. ’

We find that requests, seven, eight and thirteen, given in liehalf of the defendant, which are as follows:

“7. If you find thát the plaintiff was himself negligent in riding in the automobile driven by Beik, and permitting same to be operated,- as you may find same was operated by .Beik, and in remaining in same after observing Beik’s manner •of operation, and if you find that such negligence on the part ■of plaintiff proximately contributed to his injuries, your verdict must be for the defendant.”
“8. You are instructed that plaintiff could not ride in ¡the automobile operated by Beik and sit in the front seat beside Beik and close his eyes and ears to all possible dangers and rely entirely upon Beik for plaintiff’s safety, but that on the ■contrary, it was plaintiff’s duty as much as it was Eeik’s, to exercise such care as reasonably prudent men would exercise in such circumstances to observe and avoid such pending dangers as could be observed and avoided by the use of the senses of sight and hearing, and if you find that plaintiff failed to exercise such degree of care, and that such failure on his part proximately contributed to his injuries, your verdict must be for the defendant.”
‘ ‘ 13. The fact, if you find it to be a fact, that the view of the plaintiff and the other occupant of the automobile up the street ear tracks to the west was obscured wholly or partially as the automobile approached the tracks, would not relieve the plaintiff from the duty of exercising his senses.of sight and hearing, to ascertain whether or not a car was approaching, but would on the contrary, require him to exercise greater care in that respect, before proceeding to cross the car tracks.” are not correct statements of the law applicable to this case. We think number seven states the law too severely against the plaintiff in that it carries a strong intimation that he was permitting the automobile to be operated in an improper manner when he might have controlled its operation and that he remained in the automobile when thus improperly operated, after being afforded opportunity to leave the car. We see nothin'! in the evidence, manifest in the record in this case, to justify this request in the form given. It will be noted that in request number eight the'plaintiff’s duty as a passenger in the machine is stated to be practically the same as that of Mr. Reik, who was the owner and driver of the automobile, and to this extent we think this charge was erroneous and prejudicial. Request number thirteen placed upon plaintiff as a passenger in the automobile, the duty of exercising as high a degree of care with respect to the safety of the witness as rested upon the driver of the automobile and in this respect we think the request was erroneous and prejudicial.

An exception was saved to the general charge and it appears upon examination of the charge that the same is consistent with the statements in requests seven, eight, and thirteen above quoted, and we think the charge goes much farther than did these requests. On page 108 we find this language: “If the accident was proximately caused by the negligence of the witness Reik, who drove the automobile, the plaintiff cannot recover. If the negligence of Reik and the street car company concurred and acted together as you find from the evidence, then the negligence of the witness, Reik, would not be imputed to the plaintiff as contributory negligence of his own, but -as you have already been instructed, the plaintiff was not exonerated from any duty to all by reason of the fact that he himself was not driving the machine.” It is plainly manifest from the portions of the charge quoted and particularly when taken in connection with requests seven,' eight and thirteen, given in behalf of the defendant, that the court intended to convey to the jury the impression that the passenger was charged with exercising as high a degree of care for the safety of the situation as was the owner and driver of xhe vehicle. It is true that the court did say to the jury that the plaintiff was required to exercise ordinary care for his own safety, but we think the language quoted very misleading in this respect: while required to exercise ordinary care for his .own safety) it is not correct to say that the measure of that ordinary care is the same care that was required of the driver and owner of the machine. The plaintiff was neither the driver nor the owner. He was a passenger, — a guest of the driver, and the care that he was required to exercise was only such care that men of ordinary care and prudence are accustomed to exercise under the same or similar circumstances; that is to say, when they are riding as passengers or guests of another under like circumstances. It is a fact known to everybody that persons who are'simply passengers or guests in a conveyance are often engaged in conversation on a journey and are not giving very much heed to the immediate surrounding. They are conducting themselves just as people of ordinary care and prudence are accustomed to conduct themselves under such circumstances, and it is not the law that every passenger or guest in a conveyance ’ is charged with the duty of supervising the action of the driver and warning him of dangers that he may possibly encounter at street crossings, etc. In other words, they are not charged with the duty of exercising all of the care that it is necessary to exercise to properly operate the ear and if they attempted to meddle with the business of the driver to this extent, it might well be said that their conduct would in no sense be conducive to safety. If the passenger has no reason to believe that the driver is incompetent or reckless, about the best thing that the passenger can do for his own safety and that of his associates is to permit the driver of the vehicle to manage it without any intermeddling on the part of passengers. It is true that in the charge of the court it was stated that the negligence of the driver could not be imputed to the passenger as contributory negligence on the part of the passenger. While this is a correct statement of the law, it is not a sufficient statement of the law when it immediately follows the statement, “If the accident was proximately caused by the negligence of the witness, Reik, who drove the automobile the plaintiff can not recover.” It has been stated by the Supreme Court, that when a charge is contradictory in itself it is impossible for á reviewing court to say which statement in the charge the jury followed, — whether the correct or the incorreet statement of the law. It is contended on behalf of the defendant in error that the railway company was entitled to directed verdict in its favor at the conclusion of the evidence in this case, and that consequently, any errors that may be found in that record are of no moment and should be disregarded because the verdict of the jury and the judgment thereon are in accord with substantial justice. The evidence is very much in conflict on the essentials of this case and, after examining it, we are unable to say that the state of the evidence was such that the defendant below was entitled to a directed verdict in its favor. The evidence being in conflict, as to the main issues, we think it of the highest importance that the rules of law governing should be correctly stated. In view of the fact that the case must be remanded for a new trial, we purposely avoid any comment on the evidence.

We find no other error in the record prejudicial to the plaintiff in error justifying a reversal, but for the errors mentioned, to wit, the giving of defendant’s requests seven, eight and thirteen, and the portions of the charge to which attention has been called, the judgment must be reversed and the cause remanded for a new trial.

Chittenden, J., concurs.

Richards, J., not sitting.


text:
    ADOPTION — DEATH—PARENT AND CHILD.
    [Huron (6th) Circuit Court,
    April, 1911.]
    Wildman, Kinkade and Richards, JJ.

       Jesse Boswell, Admr. v. Lake Shore Elec. Ry.
    Adopting Parents Cannot Recover Damages for Negligently Causing Death of Adopted Child.
    An action will not lie to recover damages for wrongfully and negligently causing the death of an adopted child, where such recovery is sought for the sole benefit of the adopting parent.
    [Syllabus by the court.]
    Error.

      Itupert Holland and J esse Vickery, for plaintiff in error.

      A. V. Andrews, for defendant in error.

      Afiirmed, no op., Boswell v. Railway, 88 O. S. 563.

   RICHARDS, J.

This action was brought in the court of common pleas to recover damages by reason of the death of an adopted son of the plaintiff claimed to have been caused by the negligent and wrongful act of the defendant company. The case proceeded to trial before a jury and it developed upon the trial, as well as by the petition, that the plaintiff was seeking to recover for the benefit of an adopting parent of this child, and when that was disclosed, the court directed the jury to return a verdict for the defendant on the ground that the statute providing for the recovery of damages in this class of cases does not authorize a recovery for the benefit of an adopting parent.

To that judgment the plaintiff prosecutes error, and the shnple question for our determination is whether the ’ statute authorizing a recovery will permit a recovery for the benefit of an adopting parent.

The Statute Sec. 10772 G. C., provides, in substance, that such action shall be for the exclusive benefit of the wife or husband and children, or, if there be neither of them, then of the parents and next of kin of the person whose death was so caused. It is not claimed that the person for whose benefit this action is being prosecuted by the administrator is next of kin, but it is claimed that, by the act of adoption of this boy, the adopting parent comes under the designation of parents within the meaning of this statute. The adoption took place in the state of Michigan. We do not have the benefit of the Michigan statute for it was not introduced in evidence and is not before us. Under the Ohio statutes, Secs. 8029 and 8030 G. C., the adopted child becomes in effect the child and legal heir of the ¿dopting parent.

It is claimed that language of this character justifies a recovery for the benefit of an adopting parent, where the child’s death is caused by negligent or wrongful act of the defendant. No cases have been found or cited by counsel upon either side that have passed directly upon this question. While the adopted child becomes the heir of the adopting parent, the converse is not true. The heirs of the adopted child would be those who are such by nature, and not the adopting parent. It was accordingly held in Heidecamp v. Railway, 69 N. J. Law 284 [55 Atl. Rep. 239; 101 Am. St. Rep. 707], that the plaintiff in this kind of an action could not recover damages for the benefit of the adopting parent.

It was held in Upson v. Noble, 35 Ohio St. 655, that the personal estate of an adopted child, dying intestate, passes to the natural mother to the exclusion of the adopting parents. Section 10772 G. C., authorizing the recovery of damages in case of wrongfully and negligently causing death, requires that such damages shall be proportioned to the pecuniary injury resulting from such death, and if the adopting parent can not inherit from the adopted child, then such adopting parent does not, in a legal sense, suffer pecuniary injury by such death. Furthermore, the same section provides that the damages recovered shall be apportioned among the beneficiaries in accordance with the laws of descent and distribution of personal estates. We therefore find no warrant for a recovery for the benefit of an adopting parent in this class of actions. Doyle v. Railway, 81 Ohio St. 184, 192 [90 N. E. Rep. 165; 135 Am St. Rep. 775].

We conclude that the language used in Sec. 10772 G. C., supra, is not broad enough to embrace an adopting parent.

It is said, however, that the case should have proceeded in the court of common pleas for the reason that it might still be prosecuted further for the benefit of the natural parents, — the true parents. The evidence in the ease, which was offered, was in accordance with the averments of the petition. There was no request made by the plaintiff below to amend the petition after the court of common pleas had indicated that the action could not be maintained for the benefit of the adopting parents. We think that the naming of the beneficiaries in the petition, in this kind of a ease, is eminently proper, and the plaintiff having done so, it would not be allowable for the plaintiff to offer evidence justifying a recovery for the benefit of another beneficiary, where no leave to amend had been granted or asked.

Finding no prejudicial error, the judgment will be affirmed.

Wildman and Kinkade, JJ„ concur.


text:
    COURT — ERROR.
    [Hamilton (1st) Court of Appeals,
    March 29, 1915.]
    Richards, Kinkade and Chittenden, JJ.
    Simon Hubig v. Kiewit & Frederick.
    Power of Appellate Court to Modify Judgment in Interests of Justice Between Parties.
    Both under Sec. 11364 G. C. authorizing a court to disregard errors not affecting substantial rights, and inherently under general law, an appellate court may modify or correct a judgment which has been taken to such court and this will be done when justice can best be so served.
    Error.

      W. A. Rinckhoff and Philip and S. C. Roettinger, for plaintiff in error.

      C. B. Matthews, George B. Goodhart and Marry T. Klein, for defendants in error.
   KINKADE, J.

The defendants in error brought an action in the court of common pleas against the plaintiff in error to recover the contract price for the sale of a one-third interest in a mercantile business,- also to recover damages arising, as they claimed, by reason of a loss to them sustained by the operation of the business while awaiting the incorporating of a company to take over the mercantile business with respect to which the contract of sale arose, and also to recover damages by reason of the inability of the defendants in error to secure one-third of the capital stock of the corporation so to be formed, which corporation, it was alleged, had never been formed beause of the opposition thereto by the plaintiff in error here.

The plaintiff in error admitted the making of an oral contract between himself and the defendants in error, covering the purchase of a one-third interest in the mercantile business referred to, but averred that the contract was different in terms from that set forth in the petition. He further averred that after the contract had been entered into in the form as he claimed, that the parties had entered into another agreement, which, in effect modified the first agreement and which contemplated a transfer of the mercantile business that was the subject matter of the contract to still another corporation to be formed by the consolidation of certain existing companies; that he had performed all of his obligations under the modified contract, but that the defendants in error had defaulted thereon and, by reason of their default, he had been unable to secure $5,000 of the capital stock of the last named consolidated company which was to come to him under the modified agreement, and on this account he had sustained a loss of $7,500, his claim being that this would have been the market value of the fifty shares of the capital stock of the consolidated company which the parties had contracted he should have.

The answer denied all of the allegations of the petition as made,, and presented the claim, as I have stated, in the way of a cross petition on which the plaintiff in error prayed for judgment for $7,500. By reply the allegations of the answer and the cross petition were denied.

The case was tried to a jury and resulted in a verdict of one cent in favor of the defendants in error. This verdict was set aside by the trial court and a new trial granted. Upon the second trial the jury returned a verdict in favor of the defendants in error and against the plaintiff in error for $2,375.96, upon which judgment was entered. Thus in a proceeding to reverse the judgment entered upon this last verdict. Numerous alleged errors are called to our attention.

An examination of the record discloses more uncertainty and confusion with respect to amounts and the terms of the contracts between the parties than we have ever seen in any case that has been in this court. It would be impossible to put into any record evidence more contradictory than is in this record, and we think it would be difficult, even if one were to set about it purposely so to do, to state numerous amounts in a more confusing and conflicting form than is manifest in the record in this case. The figures repeatedly given by the various witnesses as representing the items of assets and liabilities are seldom twice mentioned as the same amounts. Each side undertook to establish the terms of the contract, but we think the evidence on each side left the case in great doubt and uncertainty and in a form most difficult for consideration by any ordinary jury. Every member of this court has served as a common pleas judge and none of us recall ever having any case tried before us that was more difficult to state clearly and sufficiently to a jury than this, taking into account the various negotiations of the parties and their conduct with respect to the subject matter of the suit before they finally disagreed and found it necessary to go into court to adjust their rights.

It is not difficult to. sustain some of the claims of error urged upon our consideration by counsel for the plaintiff, but to do this by no means furnishes a satisfactory basis upon which to decide the case. The action has been twice tried with the results as stated. Several years have elapsed since the transactions took place. It is important to all that the litigation be closed without further delay, if this can be accomplished without doing injustice to any of the parties. The power of this court, and its duty as well, under circumstances such as attend this case, are clearly indicated in Sec. 11364 G. C. While unnecessary to supplement this direct enactment of the legislature on the subject, we nevertheless call attention to the following general statement of the law found in 11 Enc. Plead. & Prac. 1068, which reads as follows:

“An appellate court is vested with the amplest power to suit its judgment to the exigencies of each case that comes before it, or to make its judgment effectively yield justice to the parties whose interests are involved. Accordingly, an appellate court may modify or correct a judgment brought before it. ’ ’

We have read all the evidence with great care, have examined the briefs of counsel on both sides, and have devoted to the case an unusual amount of time in its consideration. It is not practicable, within the reasonable limits of an opinion, to set forth our views in detail with respect to the various features of the case and, therefore, we have determined to state only our conclusion. It is, that, under the evidence manifest in the record, substantial justice will be accomplished by modifying the judgment of the court of common pleas by reducing the amount thereof to $1,000 as of the date of the judgment there rendered, and the judgment, as thus modified, will be affirmed.

Richards and Chittenden, JJ„ concur.


text:
    LICENSES — MUNICIPAL CORPORATIONS.
    [Butler (1st) Court of Appeals,
    January, 1915.]
    Swing, Jones and Jones, JJ.
    W. C. Crane et al. v. Middletown (City).
    Ordinance Imposing License Fee on Automobile Use in Municipality for Pleasure, Invalid.
    Municipalities are not delegated powers by Sec. 3632 G. C. to enact an ordinance to compel the owner of an automobile, in addition to the license payable to the state, to pay a license fee to the municipality as a condition precedent to his use thereof on the streets for pleasure riding, and an ordinance imposing such a license fee is invalid.
    Error.

      B. F. Harwitz, for plaintiff: in error.

      W. G. Palmer, city solicitor, for defendant in error.
   JONES, O. B., J.

The question to be determined is the validity of the ordinance of the city of Middletown known as Ordinance No. 461 to license and regulate the use of the streets of the city of Middletown, Ohio, by persons who use vehicles, passed July 11, 1912, so far as it requires the owner of an automobile to pay a license fee to the city in addition to the license paid to the state as fixed by statute, before he can use the streets of the city for pleasure.

The city claims the power to impose such a license by ordinance passed under authority of Sec. 3632 G-. C. This section, which is one of the sections of the municipal code enumerating the general powers of municipalities, is made up of several clauses separated by semicolons. It reads as follows:

‘‘To regulate the use of carts, wagons, hackney coaches, omnibuses, automobiles, and every description of carriages kept for hire or livery stable purposes; to license and regulate the use of the streets by persons who use vehicles, or solicit or transact business thereon; to prevent and punish fast driving or riding of animals, or fast driving or propelling of vehicles through the public highways; to regulate the transportation of articles through such highways and to prevent injury to such highways from overloaded vehicles, and to regulate the speed of interurban, traction and street railway cars within the corporation. ’ ’

The first clause authorizes cities “to regulate the use of carts” and other enumerated vehicles (among which are specifically included “automobiles”) “kept for hire or livery stable purposes.” This clause can not apply to plaintiffs, as their automobiles are used only for pleasure by the owners and are not kept for hire or livery.

The next clause is the one on which defendant city must rely for the power claimed. It is as follows: “to license and-regulate the use of the streets by persons who use vehicles, or solicit business thereon.”

It will be observed that its meaning is not clear. To give it the broad meaning contended for by defendant would require the elimination of the words “or solicit or transact business, and would permit the requiring of a license from all who use vehicles on the streets regardless of that use, or, giving these words a separate meaning, would provide three classes to be licenses: those who use vehicles on the streets, those who solicit business on the streets, and those who transact business thereon. In the opinion of the court these words were intended to provide for but one class, those who use vehicles on the street for the purpose of soliciting or transacting business.

The subject of city vehicle licenses has been recently before the Supreme Court in cases of Pegg v. Columbus, 80 Ohio St. 367 [88 N. E. Rep. 14; 23 L. R. A. (N. S.) 453], and Frisbie v. Columbus, 80 Ohio St. 686 [89 N. E. Rep. 92].

In the first ease it was held that a license will not be imposed upon nonresidents of the city who use vehicles on its streets for the purposes of pleasure or their own private business and not for hire. This is a well considered ease, and while it only decided the question of the validity of the ordinance as to nonresidents, the reasons given in the opinion would seem to apply equally to residents of the city.

The second case raised the question of the validity of the ordinance of the city of Columbus providing for vehicle licenses only as far as it applied to motor vehicles. The court held that the ordinance was annulled as to motor vehicles by the act found in 98 O. L. 320, and was not revived by its repeal by the act found in 99 O. L. 538. It failed to decide whether municipalities since the last named act might regulate and license automobiles.

It is contended that the general assembly having, by general laws contained in part second, title II, Chap. 21, of the General Code (Secs. 6290 to 6310), undertaken to declare a general policy for the regulation of motor vehicles and to provide a state license, it has thereby withdrawn the power of a municipality to make any other-regulation or to demand any further license. This clearly would not be the ease in regard to a proper municipal ordinance under G. C. 3632, requiring a license for the use of automobiles kept for hire or livery purposes.

The strongest objection, however, to the validity of the ordinance under consideration is that it fails to impose any regulations whatever in regard to the use of the streets except the provision that as a prerequisite to their use the license fee must be paid. The ordinance provides an elaborate scale of fees for many classes of vehicles, fixes the time when due and payable, provides that the mayor shall issue the licenses and tags for the same, how these tags of different colors shall be numbered and displayed, and how licenses may be transferred. It exempts vehicles owned by nonresidents which are transients, on the streets and not used for hire. It provides that the owner of any vehicle, or any person who uses or even rides in any' vehicle on the streets of the city, not properly licensed and taxed, shall be guilty of a misdemeanor, and prescribes the penalty, fixing a fine not to exceed $50 and costs.- It provides that the money arising from such license fees shall be paid into-the city treasury, and after first paying expenses for printing-licenses, tags, etc., the residue shall be used for equipment and machinery to repair the streets of the city, and for the actual repair of said streets.

It is clear on its face that the ordinance was passed purely' as a revenue measure. Its purpose evidently was to levy a. special tax on those who use the streets of the city. Such a tax,, under whatever name it may be called, can not be upheld because it expressly violates Art. XII, Sec. 2 of the constitution. Mays v. Cincinnati, 1 Ohio St. 269; Chicago v. Collins, 175 Ill. 445 [51 N. E. Rep. 907; 49 L. R. A. 408].

In this latter case the right of the general public to travel upon the public streets of a city is so well expressed in the opinion of the court, commencing on page 455, in the words; which are. quoted by Price, J., in Pegg v. Columbus, supra, at 391, that we call special attention to them.

The question of the power of the state in respect to automobile licenses has been fully discussed by Kinkead, J., in two1 decisions in Janes v. Graves, 24 Dec. 55 (15 N. S. 17), and Janes v. Graves, 24 Dec. 395 (15 N. S. 193). Many authorities are there collected and. considered. This decision was affirmed, withi some modification, by the court of appeals, Graves v. Janes, 34 O. C. C. 470 (16 N. S. 321). That case involved the consideration of the amendments to the motor vehicle law found in 103: O. L. 763, and sections thereby found invalid have been since; amended.

For the purposes of this case it is not necessary to consider the extent of the power of the general assembly in providing fer vehicle licenses. It is sufficient to say that no power has been delegated by it to municipalities to enact an ordinance such as that under consideration here. And for the reasons' given, this ordinance of the city of Middletown must be held to; be-illegal and invalid; and the court of common pleas erred in sustaining the demurrer to the petition and entering judgment for the defendants.

The judgment is therefore reversed and the cause remanded for further proceedings.

Swing and Jones, JJ., concur.


author: CHITTENDEN, J.

text:
    PLEADINGS.
    [Hamilton (1st) Court of Appeals,
    March 15, 1915.]
    Richards, Chittenden and Kinkade, JJ.
    Fred Tuke et al. v. Mary A. Manchester.
    1. Refusal to Allow Withdrawal of Answer, to File Interpleader Discretionary with Court.
    Section 11265 G. C. contemplates the filing of an affidavit of interpleader before the issues have been made by the filing of an answer, and while a court may have authority to permit the withdrawal of the answer in order to permit the filing of an affidavit of interpleader, such action would be entirely within his. judicial discretion and error does not lie to his refusal its judicial discretion and error does not lie to a refusal so to do in the absence of a showing of abuse of discretion.
    2. Judgment on Pleadings not Reversed if Facts Alleged In Petition be not Controverted or Denied.
    Judgment for plaintiff on the pleadings in an action to recover money advanced upon a real estate transaction will not .be reversed where the petition avers that plaintiff authorized her agent to offer $2500 for certain property, advancing $400 to apply on the purchase price; that the agent-accepted a receipt for the money paid stating that the property was sold to plaintiff for $2500 and payment of the June taxes; that plaintiff revoked her agent’s authority and demanded return of the money advanced, no denial of the revocation being made and no averment being made in defendants’ pleadings that plain- ■ tiff’s agent had any authority to make or' accept any other offer for sale than upon the basis, of $2500!
    [Syllabus approved by the court.]
    Error.

      Clement Bates, .for plaintiff in error. ..
    , - Charles' .Sawyer and Peck, Shaffer & Peck,, for defendants in error: ........
   CHITTENDEN, J.

The plaintiff below, Mary A. Manchester, brought an action against the defendants to recover $400 which she. had theretofore paid to them in pursuance of a real estate transaction. The defendants filed an answer and later an amended and supplemental answer. A motion for judgment on the pleadings was thereupon filed by the plaintiff which motion was granted. The defendants then made a motion to permit the withdrawal of their amended and supplemental answer and for leave to file an affidavit of interpleader. This motion was overruled, and the defendants prosecute error to this court.

We find no error in the action of the common pleas court in refusing leave to file the affidavit of interpleader after the defendant had filed an answer and an amended and supplemental answer. The provisions of Sec. 11265 G. C., contemplate the filing of such affidavit before the issues are made by the filing of an answer. The court may have had' the right to permit the withdrawal of the answers and the filing of the affidavit of interpleader, but this was a matter entirely within the judicial discretion of the. court and we find that his action constituted no abuse of such discretion.

The more difficult question arises in determining whether the judgment entered upon the pleadings was properly entered. A majority of the court are of opinion that there was no error in granting the motion for judgment on the pleadings. The pleadings, as viewed by a majority of the court, show, in substance, that the plaintiff authorized her "agent, Sadie Meyer, to offer $2,500 for certain real estate, and placed in her hands $400 to be paid as part of the purchase price of such property if the sale should be consummated. This offer was submitted to Tuke & Son, agents for the owner of ■ the real estate, and their principal agreed to sell the property for $2,500, with the further provision that Mrs. Manchester was to pay the June taxes. Thereupon Sadie Meyer paid the $400 to Tuke & Son, and took their receipt for the same which receipt set out that the property had been sold to Mrs. Manchester for $2,500, she to pay the June taxes. Mrs. Manchester avers that the sale upon her proposition was never consummated, and we find no averment in the pleadings to the effect that Sadie Meyer had any authority to make or accept any other, offer of sale than upon the basis of $2,500. The petition further alleges, and this averment is not denied, that she revoked all further' authority of the agent and made demand for the return of the $400. While the pleadings are not as definite ;as .could be wished, a majority of the court are of the opinion •that they justify the judgment entered by trial court.

Finding no error in the record sufficiently prejudicial to justify a reversal of the judgment, a majority of the court are of the opinion that the judgment should be, and the same hereby ds affirmed.

Richards, J., concurs.

Kinkade, J., dissents.

In my opinion the state of the pleadings was not such as to justify a judgment being entered in favor of the plaintiff .thereon.


text:
    BILL OF EXCEPTIONS — REFERENCE.
    [Hamilton (1st) Court of Appeals,
    May 3, 1913.]
    Jones, Swing and Jones, JJ.
    Woodward et al. v. Brockell, Admr., et al.
    Court without Power to Extend Time for Filing Exceptions to Referee's Report.
    Where a case is tried before a referee the trial is conducted pur- \ suant to Secs. 11475 to 11486 G. C. as if by the court, and if no exceptions are taken and filed before the referee within the statutory period, as prescribed by Secs. 11564 and 11565 G. C., the court is without power to extend the time and the report ■of the referee must stand as the decision of the court.
    ISyllabus by the court.]
    Error.

      Pugh & Pugh, for plaintiffs in error.

      T. L. Michie, Millard Tyree and A. J. Cunningham, for ■ defendants .in error.
   JONES, O. B., J.

The cause below was tried before John H. McMakin as referee under appointment and reference made by the court of common pleas by agreement of all the parties. By virtue of such appointment said referee made his findings of fact and conclusions of law, which were reported to the court of common pleas and filed therein November 6, 1909. A motion for new trial had been filed by plaintiffs before said referee November 5, 1909, and said motion was overruled by the referee on the same date. On March 12, 1910, an order was made by the common pleas court remanding and re-referring said cause to said referee and ordering and directing him to properly certify a bill of exceptions and file same in that court on or before March 28, 1910. It appears the referee, without in any way changing his original report or his findings of fact and conclusions of law, or without filing any supplemental report or refiling his original report, did on March 26, 1910, allow and sign a bill of exceptions showing the motion for a new trial filed by plaintiffs November 5, 1909, and the overruling of same by him on the same day, and the sending of the bill of exceptions by plaintiff to him on March 21, 1910, and the same was filed by him in the court of common pleas on March 26, 1911.

Trial by referees is provided for in Sees. 11475 to 11486 G. C. Such a trial is conducted as if by a court, and the referee’s decision must be given and may be excepted to and reviewed as in a trial by court. Guthrie v. Milling Co. 9 Circ. Dec. 739 (17 R. 256); Lawson v. Bissell, 7 Ohio St. 129; Cincinnati v. Cameron, 33 Ohio St. 336.

The bill of exceptions should be taken and filed before the referee within the time limited by Sees. 11564, 11565 G. C. This was not done in this case, and the limit of time having expired the court of common pleas had no power to extend this time. Its action in referring and remanding the ease back for the sole purpose of executing its order for the referee to certify and file a bill of exceptions was taken too late and could have no effect in extending the time fixed by statute for the signing of such bill of exceptions. And the bill of exceptions which was signed by the referee in pursuance of that order can not be considered by the court as part of the record. The court below erred in not confirming the report of the referee and ordering it, to stand as the decision of the court and entering judgment therein in favor of defendants below. An examination of the evidence found in the so-called bill of exceptions, if it could be considered, leads the court to conclude that the report of the referee was correct in his findings of fact and conclusions of law. The judgment of the common pleas court is reversed and judgment given here for plaintiffs in error.

Judgment reversed, and judgment for plaintiffs in error.

Swing and Jones, JJ., concur.


text:
    INTOXICATING LIQUORS.
    [Hamilton (1st) Court of Appeals,
    March 22, 1913.]
    Swing, Jones and Jones, JJ.
    Charles E. Roth, Treas. v. Caroline M. Hulbert et al.
    Dow Tax not Charge Upon the Land Upon Failure of Proof of Sales of Liquors Made.
    A charge on the tax duplicate of an unpaid balance of Dow-Aiken tax will not be declared a lien on the premises occupied by the party who is alleged to have trafficked in intoxicating liquors, where the only testimony as to liquor having been sold on the premises sought to be so charged was given by two inspectors of the state dairy and food department whose testimony was so vague and uncertain that the trial court refused to believe it.
    [Syllabus by the court.]
    Error.

      Charles A. Groom, Assist. Pros. Atty., for plaintiff in error.

      DeCamp t& Sutphirt, for defendants in error.
   JONES, O. B., J.

This is an action to enjoin the collection of the unpaid balance of $180.04 tax for trafficking in intoxicating liquors by Helen Ray, in real estate owned by plaintiffs below and rented by her as a residence from month to month.

Reliance is placed by defendants on the tax charge standing upon the Dow-Aiken duplicate (in which the owner of real estate is listed “W. P. Hulbert Estate,” Ree., 38) as making a 'prima, facie ease in their favor. It appears, however, that this charge was placed upon the duplicate by certification from the auditor of state, and that his action was solely based upon the reports of two inspectors in the state dairy and food commissioner’s department. Each of these inspectors testified that he went with a woman to this house and succeeded in purchasing beer, which they drank. There is no confirmation of this testimony by the woman companion or any one else, nor is there any denial by the tenant in the house of her servants, none of whom were called. There is, however, testimony of the real estate manager, rent collector, workmen engaged in sundry repairs to the building, and a man who collected the money from a musical instrument operated by coins, all of whom were at the house at irregular times and intervals sufficient to have seen some evidence of a regular trafficking in liquor, if such had been conducted, and who failed to see any indications of such sales.

While we agree that in some instances of a single sale or two such sales may. constitute trafficking and that the knowledge of such sales by the tenant on the part of the landlord is not necessary to create a lien on the real estate, yet in this ease the charge depends entirely upon the evidence of the inspectors, who showed by them unfamiliarity with the location and appearance of the premises and the identification of the tenant in their cross-examination, a lack of certainty that should not exist in evidence necessary to create such a lien as against property owners who have exercised the care in the management of property shown in this case.

The character and weight to be given to this class of testimony has been passed upon and discussed in Foley v. Roth, 33 O. C. C. 79 (13 N. S. 318), and Foley v. Roth, 20 Dee. 157 (8 N. S. 425) ; King v. Richardson, 19 Dee. 578 (9 N. S. 209), and we are content with the rulings there made.

The trial court below had the advantage of seeing these inspectors as witnesses upon the stand and noting their demeanor and evidently gave no credence to their testimony. We are not disposed to view it in any more favorable light when we have no such opportunity.»

We find no errors in the proceedings below and the judgment is therefore affirmed.

Swing and Jones, E. H., JJ., concur.