author: Norris, J.

text:
    (Tnird Circuit — Allen Co., O., Circuit Court
    April Term, 1898.)
    Before Day, Price and Norris, JJ.
    THE SOLOR REFINING COMPANY v. SUSAN ELLIOTT, ADM’X. of the estate of JOHN W. ELLIOTT, deceased.
    - Action for wrongfully causing death — Authority of administrador—
    <1). Letters of administration issued by a probate court of competent jurisdiction authorized the administrator to maintain an action for death caused by wrongful act etc., though such letters disclose the fact that deceased left no estate either real or personal, and fail to indicate that the appointment was made for the purpose of bringing the suit.

      Same — Limitation—■
    <2). The limitation of an action under sec. 6135 of the Revised Statutes, for causing death from wrongful act, runs from the death of the person who dies from the wrongful act; and the right to -maintain the action, is not affected by the lapse of time between the injury and the death, unless recovery by the deceased person, had not death ensued, is barred by the statute of limitations at the time of death.

      Same — Settlement of cause of action in life-time of deceased—
    (3) . A contract of settlement, unimpeached for cause, made by the deceased in his life-time with the person whose unlawful act is the cause of deaths fot the injury which resulted in the death, the terms of which contract were complied with, in the life-time of the deceased, by the party whose unlawful act caused the death; when so pleaded, and established, is a bar to an action by his administrator under sec. 6134 of the Revised Statutes.

      N.o double liability for wrongfully causing death — Sec.6134, R.S.—
    (4) . See. 6134, which warrants an action for causing death by wrongful act, does not create a second liability, and is not double liability for the same wrong, but implies that the liability for the wrong has not been satisfied; that the pen- . alty for the wrongful act and result, has not been paid; and the wrong doer being deemed to be still liable for the . wrong, the statute determines in whose favor the liability still exists, and points out the remedy by which satisfaction of it may be enforced.

      Action maintainable by administrator, only if deceased could have maintained action for damages—
    (5) . An action for death by wrongful act, can only be maintained by the personal representative of deceased, when* such condition exists, at the time of death, that the deceased, had not death ensued, could have maintained an action for the injury.

      Deceased having debarred himself of right to sue, administrator can not sue—
    (6) . If deceased in his life-time debarred himself from recovery,, and had no cause of action at the time of his death, no action would arise in favor of-his next of kin at his death, and his administrator would be precluded from maintaining an action under sec. 6134.

      Proof of contract of settlement on general denial—
    (7) . When a contract of settlement, pleaded in the answer, is-met by a general denial, once its execution is established, the contract is beyond further attack, under the issue as-tendered by the general denial.
    Error to the Court of Common Pleas of Allen county..
   Norris, J.

The defendant in error, who was the plaintiff below,, brought her action against the Solor Refining Company for negligently causing the death of John W. Elliott. In her petition she avers her appointment as the administratrix of his estate, names his next of kin who survived him, and says that John W. Elliott died on the 2nd of February, 1894, and that his death was wrongfully caused by the defendant, in this way. On the 28th of March 1891, Elliott was an employe of the Solor Refining Company, as a laborer. His duty was, to help in the repair of shells; into-which vapor passed through a compound kept in motion by brushes. The shell head was a heavy piece of metal,

Elliott was there by order of his foreman assisting in-placing the shell head in position. A rope attached to the-machine by which the head was being raised into position was-not securely attached, and was suffered to so remain through the negligence of the foreman, under whose orders Elliott was acting; by reason of this the rope gave way and caused the shell head to fall upon Elliott, inflicting upon him injuries from which, on the 2nd of February, 1894 he died. Elliott had no means of knowing, and did not know of the •condition of this rope; but the foreman had the means of knowing, and did know of its' condition. Plaintiff avers ■•that Elliott was in the place assigned to him by the fore_man, and was without any fault upon his part which contributed to his injury; and that Elliott thus came to his ■ death through the sole cause of defendant’s negligence.

• The defendant in its answer admits that Elliot was employed; that he was injured, and that he died; and denies .all else in the petition.

It pleads as a further defense that on August 28th, 1891, it made full settlement with Elliott, for all loss and damage by him sustained by reason of said injury; that it paid him the sum of money stipulated by the contract, and tthat Elliott received this sum in full settlement for all •claims against defendant by reason of said injury. As a third defense the defendant pleads the statute of limitations.

The plaintiff for reply denies the second -and third deifenses in the answer.

The issues thus made up were submitted to a jury, which returned a verdict for the plaintiff. Defendant filed its motion for a new trial, which was overruled, and these proceedings in error are instituted for reversal.

The errors assigned in the motion for a new trial and in ithe petition in error, are:

Because the verdict is against the weight of the evidence, ;and is contrary to the law of the case.

Error in overruling the motion for a new trial.

Error in the charge as given, and in refusing to charge -as requested by plaintiff in error.

Error in the admission of evidence over the objection of -plaintiff in error, and in rejecting evidence offered by the plaintiff in error to maintain the issues on its part.

It is-claimed that the admission of the letters of administration was error, That.the letters, upon their face, show that there was no property upon which to administer; that the purpose of administration is to settle the estate of the-deceased person, and that in this instance there is no estate;, and that, when an administrator is appointed for the sole purpose of bringing an action, that purpose must appear in the record of the proceeding resulting in the appointment. The record of the Probate court in the matter of this appointment is not before us; so that we are unable to say whether or not it was affirmatively found, and of record, that the purpose of this appointment was to maintain this action. But be that as it may; the action---as the one at bar — is to be brought and maintained by the personal representative of the deceased person. The probate court has jurisdiction to appoint, and having appointed, and being a court of competent jurisdiction so to do, it is conclusive, in the face of nothing to the contrary, that all the jurisdictional facts were made apparent to the court before it took action in the premises. And the fact, that the-purpose for which the appointment is made is not recited in the letters, is not material. The appointment was mader the court had jurisdiction to appoint an administrator, and the judgment of the court in that proceeding is in full, force. We think, therefore, that the letters of administration were properly admitted in evidence to prove the-authority of plaintiff to maintain her action.

It is claimed that plaintiff’s action cannot be maintained, because of the expiration of four years since the injury which resulted in Elliott’s death, and before the commencement of this case. The injury occurred' on the 28th of' March, 1891. Elliott died on the 2nd of February, 1894. The petition in this case was filed April 28th, 1895, and on? the same day summons issued.

Elliott’s cause of action was not barred at the date of his-death by the four years’ limitation in which his action could have been brought; so, aside from any other intervening cause, on that day, had not death ensued, he could have maintained his action in so far as it was affected by the statute of limitation. The right of action which the plaintiff prosecutes, did not exist in Elliott’s lifetime; it arose immediately upon his death; and tfiough the fact as to whether this action ever would arise, so far as the statute óf limitation is concerned, depended upon his right to maintain an action at the time of his death — had death not ensued — -yet the statute which creates the action and the remedy---a new remedy for the same wrong, not a survival of his cause of action, but a new action which succeeded his cause of action, and which was created by reason of his cause of action and his death---the statute which created this action limits'its commencement within two years after his death. This limitation does not commence to run in his lifetime; it does not date from the injury, but it commences to run at his death when the action accrued. So that if Elliott, had not death ensued, could at the date of his death have maintained his action, this action having been commenced within two years next after his death, is not barred by the statute of limitations. We therefore are of the opinion that the third defense in the answer fails.

The second defense in defendant’s answer pleads full and complete settlement made with John W. Elliott, for all loss, expense and damage by him sustained by reason of the injury of March 28th, 1891, which is alleged to have resulted in his death. And that defendant performed the contract by payment of the sum that Elliott agreed to receive. Defendant sets up in its answer a copy of this contract of settlement, which was in writing and signed by the parties, and pleads it as a complete and full bar to plaintiff’s recovery,

There can be no doubt that the paper writing upon which this defense is based, is in form a contract with all the requisites of a contract.

To this defense is made in the reply, a general denial.

The statute of this state creating actions as the one at bar, in favor of the surviving wife or husband and children, or next of kin, of a person whose death is caused by the negligence of another, and affording a remedy, is a copy of the Lord Campbell act, as applicable to the conditions in this country. And the statutes in the various states, in which the cause of action of the injured party does not survive, to the same effect and of the same import, are in substance, and in some instances exactly, like our own statute.

The courts in construing these statutes hold — and I take the language from the case of Price v. The R. R. Co.,found in the 12 S. E. R.: “That the test of the right of an administrator to maintain an action for a death by wrongful act, is whether deceased could have maintained an action for the injury had he survived. ” This appears to be the test. Those statutes are not construed to be a revivor or survival of the cause of action of the deceased person nor to be a double liability for the same wrong; but rather to succeed the cause of action abated by the death of the injured person, and take its place; not in favor of his estate, but in favor of his next of kin. The wrong not haying been righted in the lifetime of the injured person, the wrong-doer does not escape the penalty of his wrongful act by the death of the person upon whom the wrong is inflicted; but the penalty not having been paid, and the wrong-doer still being liable for the wrong, the statute determines in whose favor the liability shall exist, and points out the remedy by which satisfaction of it may be enforced. And this implies that the liability has not been satisfied and discharged; that the death was caused by the wrongful act of another, and that the act was such as would,if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof. The right of action must exist in favor of the injured person, at the time of his death. If he, in his lifetime, has debarred himself from recovery, by any act which would bind him if alive, he has no cause of action to which the statutory cause could succeed. He has discharged the liability, and created a condition which prevents the action from arising in favor of his next of kin, and which precludes his administratrix from recovering upon a liability which the deceased, in his lifetime, by his own act, discharged.

After a full examination of the authorities, a majority of the court can come to no other conclusion than that this is the' only construction that this statute will bear.

The defendant pleads a settlement which, in the absence fraud and without impeachment for cause,is a full and complete settlement between Elliott and the defendant for the injury which it is alleged caused his death, and released defendant from all liabilities to him, flowing from the injury. If the contract of settlement stands, Elliott, at the date of his death,had no cause of action against the defendant; and that being the case, no cause of action could arise in favor of his next of kin which could be maintained by this plaintiff.

The plaintiff meets this contract of settlement, as pleaded in the answer, by a general denial. Under an issue thus tendered,and the execution of the contract being proved, it was beyond further attack in the action. An instrument of that .character,upon a mere general denial, and without any specific attack beyond a denial of its execution, cannot be impeached, once its execution is disclosed, under pleading presenting no further issue regarding it, So that the evidence offered, which tended to impugn the contract, was not admissible under the pleadings; and we think the court was in error when it was allowed to go to the jury.

And in so far as the charge of the court treats this contract,after its execution bas been established, as susceptible of further attack under these pleadings, and invites the attention of the jury to it in that regard, we think there is error.

Wheeler & Brice, for Plaintiff in Error.

W. B. Ritchie,and Moiter & McKenzie, for Defendants in Error.

And in view of the contract and its effect as we consider it, the propositions of law bearing upon it, requested by defendant below to be given to the jury as a part of the charge, should have been given, and there refusal was error.

With this view of the contract of settlement,and its effect, a majority of this court conclude that the verdict is not sustained by the weight of the evidence. These errors appearing upon the face of the record, to the prejudice of the plaintiff in error, the judgment is set aside, and a new trial is granted at the costs of defendant in error. Execution is awarded, and the case is remanded to the common pleas for execution and new trial.

Day, J., dissents as to the contract of settlement barring recovery!


source: Caselaw Access Project

author: Cox, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Smith aud Swing, JJ.
    THE CLEVELAND, CINCINNATI, CHICAGO & St. LOUIS RAILWAY COMPANY v. THE VILLAGE OF ST. BERNARD.

      Authority of municipality to require lighting of railroad tracks— Sec. 2495, M. S., constitutional—
    (1). Sec. 2195 and following of Bevised Statutes granting the power to municipal bodies to require railroads running trains in the corporation to light their track,doss not violate the constitution of the United States, nor that of this state. It is in the exercise of the police power in the interest of the welfare and safety of the public.

      Headlight on locomotimes — Duty of Railroad—
    (2) . If it be necessary for the protection of the lives of passengers and the safety of property entrusted to its care to use a headlight upon a locomotive, it is the right and duty of the railroad company to so use it.

      Lighting railroad tracks — Reasonableness of requirement in ordinance—
    (3) . While the municipal corporation is authorized to prescribe the kind of light to be used on the railroad-track within its limits,it must not be such light as would east an unreasonable burden upon the railroad company. While the municipality has a right to fix the place and kind oi lights to be erected by the railroad company,in doing so it must exercise it with reference to the safety and protection of the public in crossing said railroad and so as not to interfere with the just rights and duties of the railway company while passing through the village, nor so as to cast an unreasonable burden upon the railway company.

      Same — Light required on track interfering with safety in opera-. tion of railroad—

    (4) . Where an action is brought to compel a railroad company to pay the expenses of lighting a track with light of a particular candle power, it is a good defense to the action that the power is so great as to obscure the headlight upon a locomotive and render nugatory the power of the employes of the railroad to manage the trains so as to protect the lives of the passengers entrusted to their care, and that persons who cross the railroad will be greatly endangered in being prevented from seeing headlights of approaching trains, and a demurrer to an answer setting up this defense should be overruled.

      Same — Reasonableness of ordinance—
    (5) . The reasonableness of such an ordinance,when questioned, is-a proper subject to be tried by the courts.
    Error to the Court of Common Pleas of Hamilton county,
   Cox, J.

This case comes into court on a petition in error filed by the Railway Company to reverse a judgment of the court of common pleas, in sustaining a demurrer of the village of St. Bernard, to the answer of the Railway Company to the petition of said village, and rendering a judgment against said company and in favor of said village.

In the court below, action was brought by the village to recover from the Railway Company the sum of one hundred and fifty dollars, with interest from the first day of July 1895, for money expended by the village, for placing electric lights along said railroad in the village of St. Bernard, and lighting the same.

Plaintiff in its petition alleges that it is a municipal incorporation organized under the laws of Ohio and situated in Hamilton county, Ohio, and that defendant is a corporation under the laws of the state of Ohio, and maintains and operates a steam railway in the village of St. Bernard, on the right-of-way owned by said defendant.

Plaintiff further says, that on the 2nd day of August, 1891, the counsel of the plaintiff duly passed an ordinance to provide for lighting the railway of .the defendant company within the limits of St. Bernard, in which ordinance the'’defendant company was required within twenty days fromthe delivery of a copy of said ordinance to the person having the management of the defendant’s railway, to erect and maintain poles, wires and electric arc lamps, of 2,000 candle power,and of the same kind and quality as were then being erected for use on the public streets of said village, and specifying the points on said railroad on which said lights should be erected; that on the 8tb of August, 1891, notice of the requirement to light said railway was given, by serving on M. E. Ingalls, the president of said Railway Company, a true and correct copy of said writing and said ordinance; that the defendant company neglected and failed for more than twenty days after the receipt of said notice,to erect said poles and lights, or to do said lighting in conformity with the provisions of said ordinance; that on the 6th day of-September, 1891, the plaintiff corporation passed a resolution directing the board of water works and electric light trustees of said village, to erect said poles at the points aforesaid,and do the lighting as required in said ordinance at the expense of the defendant company; that pursuant to said ordinance and resolution, said village,through its board of water works and electric lighting trustees, did erect and construct three electric lights, of 2,000 candle power each, at the points designated on the line of defendant’s railway within the village, and thus continued to light said railway as required by said ordinance,from January 1, 1895, to July 1, 1895, at the cost of said village of $50.00 for each lamp; and tha.t the defendant railway company has refused to. pay said sum or any part thereof, and thereupon, on the 19th of September, 1895, the village council passed .an ordinance assessing said sum of one hundred and fifty dollars, the expenses of lighting said railway,on the real estate and leasehold interests of defendant’s company in Hamilton county, Ohio, to pa'y the expense of lighting the defendant’s railway within said village; that upon the failure to'pay same within ten days, the same should be collected in the manner provided by law; that the defendant’s company have failed to pay said sum although mere than ten days have elapsed since the passage of the same, and the plaintiff prays judgment against the defendant for said amount and interest, and that the real estate and leasehold interests of the defendant company in Hamilton county may be appraised, advertised and sold, and the proceeds thereof applied to the payment of said judgment.

To this, the defendant answered, saying that the only authority of the plaintiff to pass the said pretended ordinance set forth in the petition,is under sections 2494, 2495, 2496, 2497 and 2498, of the Revised Statute? of Ohio; that the act under which said ordinance is passed, violates the constitution of the United States, to-wit:

“That ;t assumes to authorize cities and villages through which the defendant roads run, to lay upon the defendant a heavy burden without due process of law, in so much as it provides that the defendant may, without hearing or notice, be required to put up a certain designated kind of light, and that such light may be required to be kept and maintained at all hours, irrespective of the use made of the streets or crossings where such lights are required to be placed:”

“That said act fails to provide for notice and hearing,and that there are questions of fact under the constitution of the United States of which defendant is entitled to notice, a day in court and a hearing, upon the following questions, to-wit:

“1st. — 'Whether the placing of electric lights at a crossing is necessary to provide for the security and safety of citizens and other persons from the running of trains through said city or village,

‘‘2nd, — Whether the placing of electric lights at crossings will not render the head-lights useless, destroy their utility and render it impossible to operate its railway with safety to passengers and employes. '

‘‘3rd. — Whether the kind of light to be used at such crossings is such as can be used with reasonable safety, and suchas will conduce to the safety of passengers and employes.

‘'4th. — Whether it is necessary to maintain lights at all hours of the night, or only a certain lime before and after the arrival of trains.

‘‘5th.- — -Whether the lighting of a railway in a street at a point specified, is reasonable for the safety of the public,

‘'6th. — Whether the kind of light required by the ordinance of cities and towns passed under the authority of said act,is reasonable and suitable and necessary for the safety of persons using the streets and'crossings, ”

And for further answer defendant says:

‘‘It is an inter-state railroad engaged in transporting articles of commerce and passengers into, through, and from more than twenty states of the United States, and was so engaged at the time, said ordinance was adopted, and has been so engaged for more than ten years, and all its trains and locomotives which pass through the said village are used in drawing cars and trains, in which passengers and articles of commerce are transported from and through the different states; that in order to enable the defendant to discharge its duties as a common carrier, it is indispensably necessary that all its locomotives should be provided with head-lights, and that they are so provided, and that it is indispensably necessary that the head-lights of its locomotives should cast a light on_the track in front of the train,and that such light should not be diminished,obscured or rendered ineffective, and that the safety of all passengers .transported by the defendant, of all employes engaged in operating its locomotives and trains, and of all property entrusted to it for transportation,imperatively requires that the light from the head lights of its locomotives should not be obscured, obstructed or diminished; that the placing or erecting of electric lights at the crossings in such ordinance specified and required, will ■ disable the defendant from safely and properly performing its aforesaid duty as a common carrer of inter-state freight and passengers; that the effect of such electric lights shall be to endanger the safety of all passengers carried by the defendant, and of all employes engaged in operating its locomotives and trains, and of all property entrusted to it for transportation,

“That the effect of such electric lights as are required by said ordinance, is to obscure, obstruct and in effect destroy the light of its locomotives, and if erected as required prevent the engineers and fireman in charge of defendant’s locomotives from seeing persons or objects on the track, and will render the head-lights upon the locomotives almost entirely useless and ineffective,and the defendant will thereby be incapacitated from safely and properly discharging its duties as a carrier as aforesaid; that the ordinance will be a great burden to the defendant in erecting and maintaining at great expense electric lights in various villages- through which the road runs; that the defendant will suffer great loss and injury in the operation of its road, to-wit: a loss of more than ten thousand dollars.

“That the erection and maintenance of said electric lights as required by said ordinance, will make the crossings unsafe and dangerous to all persons who pass over them; that they will tend to prevent persons about to cross over said crossings, from seeing or observing head-lights of approaching trains; that light from the head-lights of such trains will be obscured and rendered more or less useless and ineffective; that the public safety or welfare will not be promoted by the erection of said electric lights; on the contrary, the danger to all persons using or passing said crossings will be greatly increased, and that as a consequence thereof, the liability of the defendant for injuries to persons at crossings will be greatly increased, and it will be put to great expense and costs in defending actions for personal injuries.”

To this answer of defendant the plaintiff filed a general demurrer, which was sustained by the court, and judgment rendered for the plaintiff, to which judgmeut defendant excepted.

As to the first answer claiming that the act of the legislature under which this ordinance was passed is unconstitutional, we think the claim of the defendant should not be sustained. Section 2494, which authorized the village to require the company to light its track, was before the Supreme Court of this state in the case of Railroad Company v. Sullivan,32 Ohio St., 152,and was held to constitute a reasonable exercise of police power and therefore constitutional, and this opinion was approved and re-affirmed by the Supreme Court in the case of The Cincinnati, Hamilton & Dayton R.R. Company v. The Village of Bowling'Green, Ohio,as reported in Vol. 39,of the Weekly Law Bulletin,p. 84, and in 57 Ohio St., 342-3, the court saying: ‘‘The power given by the legislature to a corporation to require the lighting of a railroad track, is a branch of the police power of the state.” And the court sustained the constitutionality of all sections referred to.

What laws and ordinance may be passed in the exercise of the police power of the state has been the subject of many decisions, a number of which have been cited by counsel for the defendant, In the case of The People v. Jackson, 9th Michigan, 235, the court says:

‘‘The powers which can only be justified on the specific ground that they are police regulations,and which otherwise would be clearly prohibited by the constitution, can be ■such only as are so clearly necessary to the safety, comfort, or well-being of society, or so imperatively required by the public necessity as to lead to the rational and satisfactory conclusion that the framers of the constitution would not otherwise have adopted.”

In the Slaughter House Case, 16 Wallace, 36 and 37, the Court says:

“But under the pretense of prescribing a police regulation the state cannot be permitted to encroach upon any of the just rights of the citizen, which the constitution intended to secure against abridgement.”

And the Court of Appeals of New York, 98 N. Y. ,p. 98, 'says:

“The police power is not without its limitations and that in its exercise, the legislature must respect the great fundamental rights guaranteed by the constitution. If this were otherwise, the power of the legislature would be practically without limitation.

“-In the assumed exercise of the police power in the interest of the health, the welfare or safety of the public, every right of the citizen might be invaded and every constitutional barrier swept away. This doctrine is approved in 109 N. Y., 389.”

Judge Cooley, in his work on Constitutional Limitations, 6th Ed., 710, says: the limit to the exercise of the police power in these cases must be this:

“The regulations must have reference to the comfort, safety or welfare of society; they- must not be in conflict with any of the provisions of the charter, and they must not under pretense of regulation take from the corporation any of the essential rights and privileges which the charter confers; in short, they must be police regulations in fact, and not amendments of the charter and curtailments of the corporate franchise. The maxim sic utere tuo id alienum non laedas, is that which lies at the foundation of the power, and to whatever enactment affecting the management and business of private corporations it cannot be fairly applied, the power itself will not be extended,”

The object of this law is evidently in the interest of the welfare and safety of the public, and in the exercise of the power given by the legislature to a municipal corporation, this object should be kept steadily in view,and the principle of the police power of the state must not be violated. In the Bowling Green case, 39 Law .Bulletin, 87, and in 57 Ohio St., 847, the Supreme Court say:

“Section 2495, among other provisions, requires the ordinance to specify the manner in which said railway should be lighted. This language seems broad enough to authorize the municipality to prescribe the kind of light to-be employed for that purpose, whether electricity, gas, or any other material or means that may be reasonably adopted to the purpose. The power to select the kind of light to be used can be exercised, of course, only when more than one kind is available, ”

And the courts say further, on the same page:

“Yet, as the power to compel a railroad company to light its track at all implies authority to require it to be efficiently done,it would seem necessarily to follow that within reasonable limits the power to prescribe the kind of light rests with the municipal authorities. They of course, in this respect, could not cast an unreasonable burden on the railroad company. Doubtless this ordinance would cast upon a railroad company an unreasonable burden if it prescribed an electric light when the municipality contained no electric plant or other convenient means of generating electricity; otherwise the municipality, large or small, through which the railroad might pass, could compel those who operate the road to erect a plant to generate the light.”

And on page 345, 57 Ohio St., Bowling Green case, the court say:

“Both reason and authority deny to a corporation clothed with such rights and powers and bearing such relation to the public, the power to arbitrarily fix the price at which it will furnish light to those who desire to use it. If the parties could not agree upon price,they could appeal to the courts of the state and compel the municipality to furnish the lights at a reasonable price.”

It will-be seen by these decisions of the Supreme Court, that the exercise of the power conferred by this statute must be reasonable arid must not cast an unreasonable burden on the railroad company, otherwise the ordinance would be void; and while the municipality has the right to prescribe, in the first place, the kind of light and points where it may be placed within the limits of the village, yet ,it may not do so arbitrarily or unreasonably,and when it is contended by the railroad company that such acts are unreasonable and arbitrary, it is the duty of the courts to determine whether the regulation is a reasonable exercise of a power which is generally prohibited by the constitution. According to the maxim sic utere, etc., it being of universal application, it must, of course, be within the range of legislative action to define the mode and manner in which everyone may so use his own as not to injure others. Any law which goes beyond that principle, which undertakes to abolish rights the exercise of which involves an infringement of the rights of others, or to limit the exercise of rights beyond what is necessary to provide for the public welfare and the general security cannot be included in the police power of the government.

It is a governmental usurpation and violates the principles of abstract justice, as they have been developed under our public institutions, Tedeman on Police Powers, page 4. That it is the duty of the courts to pass upon the reasonableness of the acts of a municipal corporation requiring railroads to be lighted, seems to be assumed in the Bowling Green case by the Supreme Court without any question.

Now, the answer of the Railway Company to the petition of the plaintiff sets up that it is an inter-state railroad, engaged in transporting articles of commerce and passengers into, and through more than twenty states, and its trains and locomotives that pass through this village are so used. That in order to discharge its duties, it is indispensably necessary that all its locomotives should be, and are provided with head-lights for the purpose of casting a light on the track in front of the train,and that such light should not be diminished, obscured,or rendered ineffective, and that the safety of all passengers transported by the railway and of all employes engaged in operating its locomotives and trains, and all property entrusted to it for transportation, requires that the light should not be obstructed, ■obscured or diminished, and that the placing or erecting of such electric lights at the crossings in the ordinance specified and required will disable the defendant from safely and properly performing its duty, and the effect of such electric lights will be to endanger the safety of all passengers carried by the defendant and all employes engaged in opera'ting its locomotives and trains, and on all property entrusted to it for transportation; that such electric lights will obscure, obstruct and in effect destroy the light of its locomotives, and will prevent the engineers and firemen in charge of defendant’s locomotives, from safely and properly dis•charging its duties as a common’ carrier, and will be a great burden to defendants in erecting and maintaining at a great expense and the road will suffer great loss and injury in the operation of its trains; that it will make the crossings unsafe and dangerous to all persons that pass over them, and they will tend to prevent persons about to cross over ■said crossings from seeing or observing the head-lights of .approaching trains,and the public safety or welfare will not be promoted by the erection of said electric lights; on the contrary, the danger of all persons using or passing said ••crossings will be greatly increased an/3 the road will be put to great expense in defending actions for personal injuries,

While the municipality has the right to fix the place and kind of lights to be erected by the railroad company, in doing so it must exercise it with reference to the safety and protection of the public in crossing said railway, and so as not to interfere with the just rights and duties of the railway company in managing its trains and locomotives in passing through the village, as in the management of its locomotives and trains great care is required of the railway to so manage them as to protect - the lives of the passengers and the safety of the property entrusted to it for transportation. To do this, it is asserted by the defendants in the answer, it is necessary that head-lights be used upon the locomotives which will cast a light upon tho track in front of the train and if this light is obscured or diminished, the safety of passengers and property will be greatly endangered, and persons who cross said railroad will be prevented from seeing or observing head-lights of approaching trains.

The Supreme Court of Ohio, 10th Ohio St., p. 116, say, the operators of a railroad train have an unqualified right to carry a head-light upon the train at night whenever necessary for the safety of the lives and property embarked upon the trains; and upon page 120, the court says, “if it be shown to be necessary, it is the right and duty of the company to see to it that such light be then carried.”

While the Supreme Court has held in the Bowling Green case, vol. 57 Ohio St., p. 342-3, that the village has authority to prescribe the kind of light that shall be employed, and that,where the village has an electric plant, it is not unreasonable because it requires a railroad company to use in lighting its track the particular kind of lamp and illuminating material in use for lighting the streets of such city or village, yet the question as to the power of the light used did not seem to have been raised in the case. It does not appear in the facts of that case how many candle power of electricity was afforded by each lampón the streets or on the railroad, but the opinion seems to turn upon the kind of light, whether electricity, gas, or other light which might be used by the village. It could hardly have been intended to decide that such light would be reasonable if the illuminating power of the lamps in the streets were so great that if used in a lamp upon the railroad track it would obscure the head-light upon a locomotive and render nugatory all the power of the employes of the railroad to manage the trains so as to protect the lives of the passengers and the safety of the property entrusted to them.

John T. Dye, S. O. Bayless, Harmon, Colston, Goldsmith & Hoadly, Attorneys for Plaintiff in Error.

F. M. Gorman, Attorney or Defendant in Error.

Now, in this case, the village has prescribed the light to be used on the railroad to be of 2,000 candle power.

This answer directly attacks the reasonableness of the ordinance fixing the kind of lights and the places where they should be put, and raises an issue which should be met by a reply of the plaintiff. If sustained by the proof, it would be an answer to the claim of the plaintiff,if its tendency would be to show that the ordinance in question, instead of being for the safety and protection of the public, will have the contrary effect. We think the demurrer to the second part of defendants answer should have been overruled in the court of common pleas, and this judgment should therefore be reversed, and the case remanded.


author: Parker, J.:

text:
    (Sixth Circuit — Lucas Co., Circuit Court,
    January Term, 1898.)
    Before King, Hay res and Parker, JJ.
    HENRY STEWART, a minor, by his next friend, JULIA VAN SICKLE, v. THE TOLEDO BRIDGE COMPANY.

      Employer aad employe — Knowledge of defect in machinery — Necessary allegation in petition—
    (1) , Where an action is br jughtby.a servant against his master, charging the master with negligence in providing defective appliances whereby the servant was injured,and the petition is defective because not containing an averment that the master had notice or knowledge, or ought to have had,of such - defect in the appliances, but the petition is not demurred to, and the proofs are received without objection that they tend to establish such fact not alleged, the reviewing court will look beyond the pleading and determine whether the proofs establish such notice to or knowledge oí the master.

      Motion to direct verdict — When proper—
    (2) . Upon a motion to direct a verdict the court is not authorized to weigh the evidence; if there is evidence tending to sustain plaintiff’s case on all points, no matter how slight, the case must be submitted to the jury, and, for the purpose of the motion, everything is admitted which the evidence in any degree tends to prove, and this involves and includes any and every conclusion wuich a jury might fairly and reasonably deduce from the evidence.

      Inspection of appliance — When not sufficient to exonorate master—

    (3) . An inspection of appliances procured by the master to determine whether such appliances are safe and fit for a certain use, will not exonerate the master from responsibility to a servant who is directed to and does devote such appliances to a use not considered or contemplated by such inspection, and totally different from the use with respect to which such inspection was made.

      Negligence not inferable from, happening of accident—
    (4) . Negligence,or knowledge as an element of negligence, may not be inferred from the mere fact that there was a defect and an accident consequent upon it.

      Safe appliances — Master bound to reasonable care-

      ts). In providing suitable and safe appliances the roaster is bound to the exercise of reasonable care only, The servant assumes all risk of latent defects of which the master was ignorant, unless the master was negligent in not discovering the same.
    Error to the Court of Common Pleas of Lucas county.
   Parker, J.:

The plaintiff in error, a minor, about 18 years of ager suing by his next friend, was plaintiff below, and the defendant in error, an incorporated company, was defendant below. Omitting certain introductory and formal allegations of the petition, it reads as follows:

“At the times hereinafter named, plaintiff was in the employ of defendant and under the supervision of its officers and managers.

‘‘Plaintiff was engaged in the occupation of painting on the bridge known as the up-river bridge, and worked upon scaffolding and supports provided and furnished by defendant.

“That by reason of the neglect and carelessness of defendant,it permitted and allowed to be placed into the construction of said bridge, a certain rod of iron which was wholly defective and unsafe,and not fit for use. That while at work upon said scaffolding, which was suspended in part from this defective rod and without any fault or neglect on plaintiff’s part, and without any knowledge on his part of such defect, said defective iron suddenly broke, thus causing plaintiff to fall a long distance, to-wit, thirty-seven and one-half feet,into the Maumee river, and upon logs floating therein, breaking his right leg above the knee and otherwise greatly injuring him and causing him great loss in time and money, and much pain, etc.,’’ for which he asks judgment in an amount named.

The answer denies negligence, and alleges that the plaintiff’s injuries were received through the fault of a fellow-servant and through plaintiff’s contributory negligence.

These allegations of new matter are denied by a reply.

Upon the plaintiff resting his case, the jury was directed' by the court to return a verdict for defendant, which was done. O-n this verdict judgment was rendered, and on account of this action of the court error is prosecuted here.

It will be observed that the petition contains no averment that the defendant had notice of the defect or knowledge thereof, or ought to have had; nor do we find any averment that may be regarded as a substitute therefor. The general-charge that “by reason of the neglect and carelessness of : defendant it permitted and allowed” the defective rod to be used in the construction of the bridge, is not sufficient. This-charge of negligence is in the nature of a conclusion. Whether the act was negligent, depends partially at least, upon whether the defendant had knowledge or notice of the • defect or by the exercise of reasonable care ought to have - discovered it. Certain rules upon, this subject are laid down in Wood on the Law of Master and Servant, sec. 414, and" .are quoted with approval by Judge Minshall, in his opinion in Coal & Car Co. v. Norman, 39 Ohio St., 598, a part, of which reads as follows:

“The servant, in order to recover for defects in the appliances of the businesses called on to establish three prop- • ositions: 1st. That the appliance was defective, 2nd. That the master had notice thereof, or knowledge, or ought--, to have had. 3d. That the servant did not know of the defect,and had not equal means of knowing with the master.”"

Then Judge Minshall proceeds to say:

“And it is elementary in the law of pleading, that - whatever a party is required to prove in order to make out.. his claim, must be averred,”

The part lacking in this petition, is that required by the. second rule stated above “That the master had notice-thereof, or knowledge, or ought to have had.” No advantage was taken of this defect in the petition by demurrer or-otherwise, and no objection was interposed to the introduction of any evidence upon the trial on the ground that it. tended to prove this element of notice or knowledge as to-which there was no averment; and therefore, we look farther:into the record to see whether there was any evidence tending to prove this as well as the other facts necessary to be:established by the plaintiff to make out his case.

In the consideration of this question, we apply certain rules deduced from the decisions of the Supreme Court of this state, as follows:

That upon a motion to direct a verdict the court is not authorized to weigh the evidence; if there is evidence tending to sustain plaintiff’s case, on all points, no matter how slight, the case must be submitted to the jury; and, for the purpose of the motion,everything is admitted which the evidence in any degree tends to prove,and this involves and includes any and every conclusion which a jury might fairly or reasonably deduce from the evidence,

Now, the evidence in this case discloses that the plaintiff was employed by defendant as one of a gang of painters to paint a certain bridge being erected by defendant over the Maumee river, at Fassett street, Toledo, Ohio. The con.struction of the bridge had been completed about forty-five days before the plaintiff and the other painters with whom he was working had been put to work. In the meantime another gang of painters had covered the bridge with one coat of paint, working upon a swinging scaffold of the same .kind, and fastened to the bridge in the same way as that used by the plaintiff and the gang with which he was at work, and the latter were applying the second coat of paint to the bridge. The frame-work of the bridge was of iron and steel, and there was used in its construction certain steel rods from seven-eighths of an inch to one and one-eighth inches in diameter, and perhaps twenty-five or thirty feet long, which extended across the bridge from side to side obliquely under “T” or “I” beams, upon which the plank floor rested, and these rods passed through and were fastened to certain floor-beams upon which the “I” beams rested, the principal use of such rods being to strengthen the bridge for the resistance of lateral strains produced by wind, the currents of the river, and perhaps other causes. These rods were near to the “I” beams of the bridge, within a few inches thereof' — so near that in painting the upper surfaces of the rods where they crossed such beams it was necessary for the painters to hold their brushes horizontally. The staging or swinging scaffold used by the painters consisted of planks extending across the bridge beneath it, and held in position by ropes fastened thereto and to these rods above,and the scaffold was fitted with ropes,pulleys and tackel which admitted of its being raised’ or lowered as occasion should arise in the progress of the work of painting. Two or more of these planks being so fixed in a certain locality, two or more were fastened and swung in the same way at such a distance from the others as would admit of other planks being laid from one to the other, and the latter could be moved along on the frame made by the former to suit the convenience of the painters at their work.

The scaffolding was prepared for the use of several persons, we do not know bow many, but certainly two, if not more, at the same time. While plaintiff was upon this .scaffold in discharge of his duty as an employe of the defendant, one of these rods to which the ropes holding one corner of the scaffold were fastened, suddenly gaveway--broke off---whereby that part of the scaffold on which plaintiff was standing, fell, and he W83 precipitated to the river below, falling upon a raft of logs, breaking his leg and otherwise injuring his person.

Plaintiff was the only person on this part of the scaffold at the time it fell, There seemed to be no unusual strain upon the rod at the time. Its breaking seems to be inexplicable upon any theory other than that of a defect in the rod, for it seems that a sound rod of that size would have sufficient strength to withstand the strain then upon this rod.

It appears that the materials for this scaffold were furnished by the defendant,and that a foreman who had charge of the construction and painting of the bridge directed plaintiff and his fellow workmen-to fasten the scaffold to these rods precisely as they did fasten the same, and it was the duty of this same foreman to see to the removal of defective parts of the bridge and the replacement thereof by parts not defective.

The plaintiff also introduced evidence to the effect that the defendant had in its employ during the construction and erection of this bridge, one V. A. Haas, whose duty it was to inspect the rods and other parts of this bridge, and who did inspect this rod, and that the plaintiff was not under the orders or .control of said Haas.

Robert H. Finch, an employe of defendant, testifies to-the inspection having been made by Haas, and also to inspections of the rod by a person in the employ of the company who furnished the unfinished rod to the defendant,, and also to an inspection made by a person in the employ of the city; but as this witness does not appear to have had personal knowledge of any of these inspections, we base no conclusions upon his testimony with respect thereto. However, his testimony to the effect that Haas was employed to make the inspection, and that he was a competent inspector, must receive consideration.

More definite testimony as to the employment, qualifications and duties of Haas and of an actual inspection made by him, is given by James A. Huston, the president of the defendant company. In the course of the trial it was agreed that if James A. Huston was personally present he would testify to certain things, and those things were reduced to-writing and introduced in evidence by the plaintiff as the-testimony of Huston, as follows:

“I am president of The Toledo Bridge Company. The-Toledo Bridge Company has always had an inspector. His name is V. A. Haas. It was his business and duty to inspect all workmanship and material going info the Fassett street bridge. He had oeen inspector for us ever since the company was organized, and was the inspector for the Smith Bridge Company before that time. He was a competent, careful inspector: He inspected the rod which broke.. It was his duty to inspect it. The way the scaffolding was upon which Stewart, was painting when he fell was the usual way to paint bridges from,. The rod which broke had been painted once since it had been in position in the bridge, and Stewart was giving it its second coat when it broke. Henry Stewart was not under the orders and control of said V. A. Haas, but was under the control and orders of Ben Hamlin, his foreman.”

Now, the particular questions presented and debated here are whether there was any testimony tending to show that the defendant had actual notice or knowledge of this alleged defect in the rod, or was chargeable with notice thereof, and whether it discharged its whole duty by employing a competent person to inspect the material used in the construction of the bridge?

We will first discuss the question as to the effect of employing an inspector.

It is argued on behalf of defendant that it has done all that the law requires of it in the premises to avoid responsibility for defects, by employing a competent inspector and instructing him to inspect the material and see to it that only proper materials were used in the construction of the bridge; and that such inspector was a fellow servant of the plaintiff, so that if he neglected or failed in his duty, and by his fault this defective rod was placed or allowed to remain in this bridge, because of the weil-settled rules as to injuries resulting from the fault of fellow servants, the plain tiff has no remedy against the defendant. In support of this claim we are cited to L. S. & M. S. Ry. Co. v. Lamphere, 9 C. C., 263, 266; C. & Z. R. Co. v. Webb, 12 Ohio St., 475; R. R. Co. v. Fitzpatrick, 42 Ohio St., 318.

It follows from these cases that where the inspector and the person injured are fellow servants, and the inspection is as to a use, by such injured person, of the article inspected, he cannot recover from the common master even if the inspector shall fail to faithfully or properly perform his duty whereby the injury results. But it does not follow from these decisions that one who is employed to inspect rods going into the construction of a bridge to determine whether they are suitable for the use for which they are designed, is the fellow servant of the one who is called upon long after to work upon such bridge, and is directed in the performance of such work to use such rods in a way not contemplated or designed in the construction of such bridge, or taken into account by such inspector in the inspection thereof. An inspector whose duty it was to determine whether this rod was fit to withstand the strain put upon it by lateral motion of the bridge, caused by wind, or water, or other things, might not be called upon to say whether it would stand the strain of such a weight put upon it as that of the scaffolding and these men. It is apparent that the strains are entirely different in character, and they may be as widely different in degree. The inspector might very properly decide that the rod was fit and proper for the strengthening of the bridge as designed, and yet,if the question was put to him., he might say that it was wholly unsafe as a support of the weight of this scaffolding and these men. If, then, the decision of this latter question was not submitted to him, and was not made any part of his duty, how can it be said that his employment should affect in any way the right of the plaintiff or the responsibility of the defendant, when the rod is devoted to this different use?

.It does not appear that.the inspector was called upon to inspect or test the rod with respect to this use. Neither .does it appear that the rod was unfit for its use as a part of the support of the bridge. So far as we are informed it might have been fit for the latter use and unfit for the former,

Another element that may affect this question of inspection is that of time. When the inspection of this rod was ■ made does not distinctly appear, but it is fairly inferablefrom the evidence that it was made while the bridge was. in the process of erection, probably before the rod was used, in the bridge.

Now, can it be said that such an inspection, with no duty • to renew it, would exonerate the master from all liability to-those employed to work upon the bridge, even though they use it as contemplated by the inspection, if such use-occurs months or years after its erection and after the inspection thus made? We do not think the authorities-warrant such a conclusion. Indeed, there is much authority that sustains a rule which seems to us to be reasonable and just, but which cannot be easily reconciled with the rule laid down in the Ohio cases cited,and therefore we do not feel1 inclined to extend the latter rule or apply it to cases not falling clearly within it. This rule is to the effect that the-duty of furnishing safe appliances and machinery cannot be-delegated by the master so as to shift from him or relieve-him of his responsibility to bis servant in the premises — that the inspector or other person to whom such duty is dele- ■ gated becomes the agent of the master,and his negligence or fault is the negligence or fault of the master. The rule is stated in various ways in the authorities; for instance, in 7" Am. & Eng. Ency. of Law, at p. 830:

“It is the duty of a master, not only in the first instance, to make reasonable efforts to supply his employes with safe- and suitable machinery, tools,etc., but also thereafter to make ■ like efforts to keep such machinery, etc., in safe and serviceable condition; and to that end he must make all needful inspections and examinations.”

In a note it is said: “A person performing this duty is not a fellow servant.” In support of that proposition there-are a great many authorities cited.

“In Fuller v. Jewett, 80 N. Y., 46; s. c. 1 Am. & Eng. R.R., Cas. 109, the point raised was,whether the machinists of a railroad company, who are employed to manufacture and repair its engines, are properly to be considered co-employes of engineers employed to run those engines. The decision was that they were not.”

“One charged with keeping machinery in safe condition •is not a fellow servant with him who operates it,in the sense which would relieve a corporation from liability when the latter is-injured by the negligent performance of his duties by the former. Houston, etc., Ry. Co. v. Marcelles, 59 Tex., 384.”

“If no one is appointed by a railway company to look after the condition of its cars and see that the machinery and appliances used to move and. stop them are kept in repair and in good working order, it is liable for the injuries caused thereby. If one is appointed by it charged with that duty, and the injuries result from- bis negligence in its performance, the company is liable. He is, so far as that duty is concerned, the representative of the company. North’n. Pac. Ry. Co. v. Herbert, 116 U. S., 642.”

Again, on page 834, Encycl. of Am, & Eng. Law, under the head of “Criterion of Fellow Servants:”

“The true rule for determining who are fellow servants is to be determined, not from the grade or rank of the offending or injured servant,but it is to be determined by the character of the act being performed by the offending ser'vant. If it is an act that the law implies a contract duty -upon the part of the employer to perform, then the offending employe is not a servant, but an agent; but as to all other acts they are fellow-servants.”

In support of this proposition a great many authorities are cited and certain illustrations given in the notes. As pertinent to certain of these remarks upon what may be deemed fair qualifications of the rule adopted in Ohio, I call attention to the case of Arkerson v. George W. Dennison, in vol. 117, Mass., 407, the syllabus of which -case .reads as follows:

“In an action by a workman against his employer, for personal injuries caused by the fall of a staging upon which the plaintiff was at work repairing a building, the evidence tended to show that the plaintiff went onto the staging by the defendant’s direction; that the staging was insecure in consequence of being constructed of unsuitable materials, or by neglect to fasten it together sufficiently; that the staging was built before the plaintiff began work, by persons who were afterwards his fellow workmen; and that the defendant directed what lumber was to be used therefor. It was not contended that the staging was built under the direct personal supervision of the defendant, but there was evidence that he superintended the work generally. Held, that the jury would be warranted in finding a verdict for the plaintiff. ”

After discussing certain general principles applicable to cases of this character, Wells, J,, in the course of his opinion, at page 412, says:

“The negligence of fellow workmen, for which the master is held to be exempt from responsibility, is negligence in respect to that which the workmen undertook or were set to do. When the preparation oí the appliances is neither entrusted to nor assumed by them, the master may be held guilty of negligence, if defective appliances are furnished, even though the workmen themselves are employed in the preparation of them. ' In such case, negligence appearing, it is a question of fact for the jury whether that negligence was in respect of what was done or undertaken by the fellow workmen, or was the negligence of the mastor. ”

Coming now to the question whether there is any evidence tending to show that the defendant hadi notice of this defect in the rod — (for that there was a defect we assume as we feel bound to in the consideration of this case, since there was testimony tending to show it),or showing that it ought to have known of it, and therefore is chargeable the same as if it actually knew, how does the case stand?

It must be remembered that negligence, or knowledge as an element of negligence, may not be inferred from the mere fact that there was a defect and an accident consequent upon it. The plaintiff is bound to make out his case affirmatively by evidence. There is no evidence tending to show that any responsible agent or officer of the company whose knowledge would be its knowledge, knew of this defect in the rod.

The master is not an -insurer of the perfection of the machinery and appliances furnished to servants to be used in their work. He is not responsible for hidden defects of which he had no knowledge, unless by the exercise of reasonable care such defects would have become known to him. In providing suitable and safe machinery and appliances, he is bound to the exercise of reasonable care only. And the servant assumes all risk of latent defects of which the master was ignorant, unless the master was negligent in not discovering the same. The only direct evidence submitted as to the appearance of the alleged defect has reference to the appearance of the ends of the iron at the point of fracture after the break occurred. Giving to this the most favorable construction for the plaintiff it will bear, it tends to show no more than that there was an old crack or partial fracture in the upper surface and part of the rod at the point where it gave way, extending into the rod from one-fourth of an inch to one-half of the diameter of the rod. Witnesses say that this was indicated by the surfaces of that part of the fracture being darker than the remainder of the surfaces at the place of fracture. While the testimony upon this point is uncertain and conflicting, we give to if, as before remarked and as the rule requires, the construction most favorable to the plaintiff.

But this is not enough. Has it been made to appear •affirmatively, or isltbere any evidence tending to prove that the defect, if it existed, was obvious, or might have been 'discovered by^the master by reasonable care? For, while the question whether the defect was discoverable by the exercise of such care is for the jury, the court is not bound to submit the question to the jury unless the evidence tends to show that it was so. We are of the opinion that the evidence not only falls short of showing or tending to show this affirmatively, but that, on the contrary, it tends to prove, and that very clearly, that the defect, if it existed, was of that latent and secret character that must have eluded the most careful and searching examination and scrutiny. I call attention to the evidence on this point, since there is but little of it.

Louis Highland, (pp. 27-8, Record), testifies:

“Q. Is is not a fact that if you were painting an iron rod, any break that was at all black might be discoverable so as to be seen at once? A. That would be according to whether there was any paint marks in there or not; the break might have been so closed that the paint, would not run in,

“Q. If the break was large enough to be seen, the paint would run in, wouldn’t it? A. Yes,if it could be seen.”

Here is a witness for plaintiff who testified to the dark appearance of the break or fracture, indicating to him that there was an old crack or fracture. It appears further on, in the testimony of this witness, that if there was in fact any fracture there, it was so close that no paint ran into it when the first coat of paint was applied to this rod by the gaqg of painters; yet, he says the fracture could not have been seen if not large or open enough to admit the paint.

James Daley, at age 54, testifies as follows:

“Q. When you had your planks on those^rods, where would your head be? A. Up near the floor. 5

“Q. Above the lateral? A. It would be above the lateral rod.

“Q. Any break or crack on top of the rod,could be seen? A. Yes.

It appears,as'I have stated, that there was no paint in this old crack dr fracture,and that another gang of painters had gone ahead of this gang in their painting, and that the plaintiff and the persons belonging to his gang or crew had fastened their scaffolding to this rod, and there is an entire absence of evidence tending to show that any of these workmen had discovered in their work in painting about this rod any defect in it, though working with it and making their fastenings upon it at almost the precise point where the fracture occurred.

Robert Finch, testifying at pages 30 to 35, declares that there was nothing about the ends of this rod at the point where it broke to indicate that there had been an old fracture or breakage, tie says that he made a careful examination, of this rod after it was broken, and that, from appearances, the rod at that particular point, for some reason, had become crystalized and brittle. Then he is asked the question direct, whether the defect, if it existed, was one which could be discovered or was discoverable, and he declares that it could not have been discovered; that it was of that latent and secret character that it could not have been discovered while in place, though it might have been discovered by taking the rod out and making a test by bending it, or perhaps by some other process, It is also shown by the testimony of this witness — though it would be obvious without testimony — that the weight of the rod would bring close together the surface of any crack in the upper part of the rod.

Another significant fact is this, that another gang of painters had used this rod in the same way, without, mishap, shortly before the plaintiff used it, and that use amounted in our opinion to a practical test of the strength of the rod for the very purpose for which plaintiff was directed to use it, which would warrant the defendant in directing the plaintiff to so use it, and this fact,together with the fact that the defect,whether consisting of crystalizatio» or a partial fracture, was not obvious, we think sufficient ta establish affirmatively''(though this is not required to sustain the judgment), that the defendant had not been guilty of such a want of due care as would justify the imputation of knowledge of the defect, or as would justify the imposition upon it of the burden of the consequence of such knowledge; and while inspection or the employment of an inspector may not of itself amount to a justification in a case of this kind,it is entitled to weight and consideration upon the question of the exercise of due care uponjgthe part of the company.

Dodge & Canary, and M. B. Lemmon, Attorneys for Plaintiff in Error.

Bathbun Fuller, Attorney for Defendant in Error.

- This seems to us to be one of that jclass of unfortunate .accidents the risk of which the plaintiff assumed when he accepted the employment, an accident resulting from a secret defect in the appliances, and occurring under circumstances which involved no wrong or fault on the part of the defendant, and therefore no legal responsiblity upon its part.

' The judgment of the court below will be affirmed.


author: Swing, J.; Cox and Smith, JJ.,

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898)
    Before Cox, Smith and Swing, JJ.
    OMWAKE v, JACKSON.

      Action in Foreclosure — No interest in subject matter acquirable during pendency—
    An .action in foreclosure is in the nature of an action in rem. Such being the case, sec. 5055, R. S., applies, and no interest can be acquired by third persons in the subject matter as against plaintiff’s title.

      Assignment for benefit of creditors does not transfer jurisdiction in action in foreclosure from common pleas to probate court—
    The jurisdiction of the court of insolvency, while original and exclusive as to all matters pertaining to the settlement of the estate of the assignor, is nevertheless limited to the matters which the assignor is capable of transferring to the court through his assignment; and where the court of common pleas has previously obtained jurisdiction of’subject matter by the terms of the statute, the assignor has not the power to transfer the jurisdiction to the court of insolvency.
    Error to the Court ofsCommon Pleas of Hamilton county.
   Swing, J.; Cox and Smith, JJ.,

concurring.

This case was heard and decided by this court some weeks ago, but not having been fully argued, and not being thoroughly satisfied asjto the correctness of our conclusions, we requested counsel to re-arguethe case. This was done, and the case was very fully and ably argued by counsel, both orally and by brief,with the result that we are now satisfied that our former conclusion was erroneous.

The facts necessaryHo be stated in order to point out the matter in controversy, are: On July 18, 1896, Omwake brought suit in foreclosure of a real estate mortgage against Lucy Jackson^et al., and service of summons was made on the mortgagor on April 24, 1897. Lucy Jackson filed an answer. Afterwards, on October 23, 1897, Lucy Jackson executed a general deed of assignment. After-wards, the assignee filed an answer setting up the fact of the assignment, and claiming that the court of common pleas was thereby ousted'from jurisdiction so far as proceeding to a sale of the real estate, and that the sale and exclusive jurisdiction as to the sale of the property was lodged in the court of insolvency.

After a careful consideration of the question, we are now satisfied that the assignment did not take away from the court of common pleas the jurisdiction of that court to render and execute any judgment that it might deem proper to make as to the foreclosure and sale of the premises.

It seems to us that the determination of the question hinges on whether the action is one in rem ox personam.

We are of the opinion that an action in foreclosure is in the nature of an action in rem. Judge Hitchcock, in the case of Frische v. Lessees of Kramer, 16 Ohio, p. 141, says:

“By our practice, the proceedings in chancery,which we sometimes denominate proceedings to foreclose an equity of redemption, are in fact in the nature of proceedings in rem.”

Jude Mcllvaine, in the case of Wood & Pond v. Stanberry et al., 21 Ohio St., p. 149, says,speaking of the proceeding to sell real property under a mortgage, that it is “a proceeding strictly in rem,”

In the case of Spence v, Insurance Co., 40 Ohio St., p. 521, McCauley, J., says: ’ “The two actions are essentially different; one exhausts the mortgage security, the other affords a personal remedy; one may be maintained .without service, and the other may not;” thus fully recognizing that the foreclosure of the mortgage is a proceeding in rem.

Other decisions of our own Supreme Court support this view,' and to the same effect might be cited text books and a mass of decisions of other courts.

If a proceeding in rem, we are of the opinion that sec. 5055, of the Revised Statutes, applies. This section is as follows:

“Whenthe summons has been served or publication made, the action is pending so as to charge third persons with notice of its pendency, and while pending, no interest can be acquired by third persons in the subject matter thereof as against the plaintiff’s title.”

This section is simply declaratory of the rule of the common law. We see no reason why in its terms this section does not apply to deeds of assignment in the court of insolvency; and we think the ends of justice will be best subserved by the court of common pleas retaining the jurisdiction of the action. We do not question in the least the contention of the opposite counsel to the effect that the court of insolvency has the original and exclusive jurdisiction as to all matters pertaining to the settlement of the estate of the assignor, as is held by our supreme court in the cases cited in argument; but that must be limited to the matters that the assignor is capable of transferring to that court through bis assignment to his assignee; and the court of common pleas haviug got jurisdiction of the subject matter, by the terms of the statute the assignor did not have the power by reason thereof to give to the court of insolvency the. jurisdiction.

A great number of authorities have been presented to us, but if we are correct in our view of this section of the statutes,an elaborate review of them could not make the matter any plainer, and is entirely unnecessary.

Our conclusion, therefore, is that the assignment did not transfer to the court of insolvency the jurisdiction that had already vested in the court of common pleas, and that the latter court still retained the action with power to proceed to final judgment and execution, and the case having been appealed to this court, that it is now here for such determination.


author: King, J.

text:
    (Sixth Circuit — Lorain Co., O., Circuit Court
    Jan. Term, 1898.)
    Before King, Haynes and Parker, J.T.
    CHARLES A. JONES v. JOHN L. JONES.

      Acceptance of less sum than amount of judgment with a release of the whole — Circumstances under which release effectual—
    A judgment creditor, living in another state, of an insolvent debtor in Ohio accepted a less sum than the balance still unpaid on the judgment,part of which had been paid before, and the balance of which had remained unpaid for years so that the judgment had become dormant. The money was payable to him under the condition that it be accepted in full satisfaction of the judgment, and a release in blank had been sent along for the judgment creditor to sign, which he did. Afterwards be commenced proceedings to revive the judgment for the purpose of collecting the balance of the judgment. Held, the release was effectual as a full satisfaction of the judgment.

      Error to the Court of Common Pleas of Lcrain county.
   King, J.

The case of Charles A. Jones against John Jones, is a proceeding in error to reverse the judgment of the court •of common pleas. The parties in this case are brothers; and John L. Jones resides in, or near Richmond, Va., and the defendant below, Charles A. Jones, resides in this •county.

In 1884, John L. Jones recovered a judgment in the court of common pleas of this county against Charles A. Jones, for a sum of not less than $300. That judgment he does not seem to have given any attention to until it became dormant, nor until the commencement of this action in the court below,March 18,1897,to revive that judgment.

At the same time an affidavit was prepared and sworn to and filed for an attachment, and an attachment was issued, and process of garnishment was served upon the clerk of the court, and possibly upon another party who,at that time, was the judgment debtor • of Charles A. Jones. Immediately after the issuing and service of this process of garnishment, there -was a motion made to dismiss the attachment, and such proceedings were had on that motion that it was sustained some time later, and the action of the court of common pleas in dissolving- that attachment was taken to the circuit court on error, and affirmed.

While this action was pending,after filing the motion for dissolution of the attachment, the attorney of Charles A. Jones addressed to John L. Jones, this letter: (The letter is upon the letter head of N. L. Johnson, Attorney-at-law, Room 2, Johnson Block):

“Elyria, O., March 26, 1897.

“Mr. John L. Jones,

“Highland Springs, East Richmond, Va.

“Dear Sir:

“Your brother, Charles A, Jones, of this place, has just obtained a judgment against one John T. Brooks, Charley has been having a hard time for years, and lately especially, has had trouble in getting what is due him. But he is anxious to settle with all his own creditors just as far aa ho possibly can out of this judgment. You will remember that you obtained a judgment against him back iu 1884, on a note originally for $150, and you will also remember-that he has paid you $125 in all, on that old note.

“Now, your brother has placed in my hands fifty dollars-for you, which I have sent to The First National Bank of Richmond, Va , payable to our order. I have sent with it a release for you to sign. By going to the bank at once- and signing the release you will receive the fifty dollars He sends you all he can, and while he regrets that it is not. more, trusts it will be satisfactory.

“ Yours very truly,

“N. L. Johnson.”

That letter was mailed to the bank with a draft for $50.. It seems that the bank sent the notice to Mr. Jones,and he-did not answer directly, and they returned the draft, together with the blank release, to Mr. Johnson,and after returning it Mr. .Jones came in and inquired for it, and they then wrote to Mr. Johnson to send it back, and he sent, back the draft and the blank release.

Then Jones came to the bank and took the release and. executed it, and then received the draft from the bank, which he had cashed, and took the money and went his; way.

Subsequently an answer was filed in this action, setting; up this release as a defense to the action. There was a reply filed to that, admitting that the release had been executed, but alleging that it had been procured by fraud and mistake.

The issues thus made up were presented to the court without the intervention of a jury, and a judgment was rendered for the plaintiff, reviving the judgment, and finding against the defendant upon the issues of the release.

First, I want to observe as to the reply, that it does not allege a good cause of defense; there is no fact stated constituting a defense of that kind; nor is there any evidence* offered in support of it, showing either fraud or mistake.

No fraud is claimed, and the only mistake claimed is,, that Mr. Jones, the owner of the dormant judgment, thirteen years old, testifies that when he received the letter from N. L. Johnson, he supposed it was his lawyer.

Now, there is nothing in that letter which would lead any man to suppose that he was writing as the attorney of Mr. John L. Jones; on the contrary, the letter plainlyjndicates he is writing as the attorney of Charles Jones.

Again, it will be ordinarily assumed that a man ought to* know his own attorney,and Mr. Jones ought to have known bis; although it may be true, as he testifies, that he knew nothing about this attachment suit, and had not heard from* him, or of him, since the rendition of this judgment thirteen years before.

However that may be, it cannot fo.r an instant be supposed that Mr. N. L. Johnson could 'have known anything about the relations that existed between John and his attorney,and he may well have assumed that they were in touch, and that the principal knew what the agent was about in-commencing this action. So, when he wrote him the condition of his client, that he could not pay his debts in full^ that be had recovered a judgment — the very judgment they were seeking to attach in this action; when he wrote him he only had that as an asset, and was willing- to divide it aniong his creditors, and out of it he was willing to pay him $50 if he would give him a release of this judgment and these proceedings, it would seem Mr. Jones must have known what he meant, what he was writing about;, and we think there is not a glimmer of a mistake here, upon- the facts as testified to by this Richmond gentleman or his lawver.

And that brings me thenj’to the second question, whether ■or not that was an effectual release. Upon that I do not •care to say much, except to read some of the jase in the ‘.20th Ohio Reports, 106, Harper v. Graham. There are •many cases bearing upon this question pro and con that valuable time might be spent perhaps in examination of, but none of them that more fully and completely dismisses this question than this one.

In this case,as in the one at bar, the party had recovered ■ a judgment against another who was insolvent,

There was no proof offered in this case as to the responsibility of the defendant. But I am inclined to assume, that •his brother having held a judgment against him for thirteen years that he could not, or had not collected on execution, •he must have been close to a condition of insolvency.

In the 20th Ohio,a judgment^was recovered by one party • against another who was insolvent. Afterwards the judgment creditor^agreed to receive the sum of $550 upon the judgment and the payment of attorney fees of $100, which were paid, and full receipt given for the judgment: Held,

"that a satisfaction of such judgment would, from this state of facts, be ordered to be entered. In this case the judgment was recovered in 1844, for the amount of about -eighteen hundred dollars, principal and interest and costs, by Isaac Graham against RobertjjHarper.

That judgment,it will be noticed,was recovered in Ohio, 'but the defendant at the time resided in Arkansas.

Graham procured a certified copy of this judgment, and 'forwarded it to his attorneys in Arkansas for collection.

There were thereafter propositions made for terms, and -one was agreed upon by which $550 was to be paid to apply on the judgment, and $100 was paid to Graham’s attorneys in Arkansas, and some costs made upon this certified judgment were also to be paid, aggregating an amount of ■$556,for which a receipt was given in full of the judgment, which then amounted to considerable more than eighteen, hundred dollars. Now, in discussing the effect of that,. Judge Ranney, in delivering the opinion, has considerable1 to say, part of which I desire to notice.

On page 114, of this book, he says:

“It was very early settled as a rule of the common law, that the payment of less than the sum due upon a* liquidated demand, although agreed to be received in full satisfaction, could not be insisted upon s such; because' there was no valuable consideration to uphold the agreement to relinquish the balance. But if the party to whom the money was coming executed a release under seal for the same debt, he was effectually barred, although he-should have received nothing upon it. The rule and the reason were purely technical, and often fostered bad faith. The history of judicial decisions upon the subject has shown a constant effort to escape its absurdity and injustice.

“Hence, we find the supreme court of the state of New York, in the case of Kellogg v. Richards, 14 Wend., 116, holding the following language in respect to it: ‘The-rule that the payment of a less sum of money, though agreed to be received in full satisfaction of a debt exceeding that amount,shall not be so considered in contemplation' of law, rs technical, and not very well supported by reason. Courts therefore, have departed from it on slight distinctions. ’

“The supreme court of Massachusetts, in the case of' Brooks v. White, 2 Met., 285, speak rf it in no less explicit terms. They say:

“This rule which may obviously be urged in violation of good faith,is not to be extended beyond its precise import ;and-whenever the technical reason for its application does not exist,the rule itself is not to be applied. Hence, judges have been disposed to take out of its application all those cases-where' there was any new consideration, or any collateral1 benefit received by the payee which might raise a technical-1 legal consideration,although it was quite apparent that such consideration was far less than the amount of the sum due.

“A moment’s attention to the cases taken out of the rule,. will show that there is nothing of principle left in the rule 'itself. One of the earliest cases is Reynolds v. Pinbowe, Cro. Eliz., 429, where, after judgment for five pounds, the plaintiff on receipt of four pounds, assumed to acknowledge satisfaction of the judgment before a given day; and this was held good upon the ground that it was a benefit to the plaintiff to receive the money without suit or charge,and to prevent a writ of error by which the defendant might have avoided the whole judgment. The authority of the case has been questioned, but I find it relied on in the very recent case of Sibner v. Tripp, 15 Mees & Welsh, 22, and conclude that it is regarded as good law in England now.

“In Pinnell’s case, 5 Co., 117, it was held that the payment of a less sum before the debt fell due,would discharge it, and this reason is given: ‘Peradventure parcel of the sum before the day it fell due, would be more beneficial to him than the whole at the day; and the value of the satisfaction is not material.’ Another case taken out, is thus alluded to in Co. Lit., 212b: ‘If the obligor pay a less sum, either before the day, or at another place than is limited by the condition, and the obligee reeeiveth it, this is a good satisfaction.’

“So in Kellogg v. Richards, before cited,it was held that the receipt of the note of a third person for less than the amount due, would be a good accord and satisfaction; and the same thing was held in the case of Brooks v. White, before cited.

“Again,it is well settled by a great number of authorities, that the receipt in satisfaction of any other article than money will be effectual, no matter how small the value as compared to the debt. Blynn v. Chester, 5 Day, 360.

“As stated by Alderson, B,,in Sibner v. Tripp, 15 Mees. & Welsh, 37: ‘If you substitute for a sum of money a piece of paper,or a stick of ceiling wax, it is different, and the bargain may be carried out in its full integrity. A man may give in satisfaction of a debt of one hundred pounds, a horse to the value of five pounds, but not five pounds.’ In this case it was held that the acceptance of the negotiable security of the debtor himself,by the creditor, was in law a satisfaction of a debt of greater amount. This «decision was made as late as 1846, and the learned judge -■from whom I have quoted, ventures to intimate in respect to the whole subject that ‘the courts might well have held the contrary, and have left the matter to the agreement of the parties. ’

“We see, then,that the payment of a less sum than is due, the day before a debt falls due, will discharge it; payment at another place than is stipulated will do so; the delivery of a collateral article of any value will do so; the acceptance ■of a debtor’s note with the security, the note of a third person, or even the negotiable note of the debtor himself will •do so; and yet the payment of as much money in hand as is called for by such note, will have no such effect, although it is demonstrable that the utmost the creditor can get from such note can not exceed the amount that he gets in hand in the other case, without trouble, delay or expense. It may seem to some persons, not having a great veneration for those institutions of antiquity for which no reason can be given, that a rule so effectually undermined, •and having neither rhyme nor reason to support it, ought to be at once overruled and the whole matter placed upon the footing of reason and common sense. Especially as the exigencies of modern commerce frequently com.pel the most deserving men, with the aid of friends, to compromise their debts for less than the amount due —an operation mutually beneficial to both debtor and •creditor, as the creditor gets a part where otherwise he would lose the whole, and the debtor is ■ left free to commence again with the hope of better success.

“These considerations will necessarily arise whenever it becomes necessary to decide the general question. In this •case we aspire to nothing higher than to follow in the footsteps of the sages of the law, and hold this one of the cases ‘‘taken out’ of the rule. This money was payable at the clerk’s office in Butler-county, or to the plaintiff, residing •in the same county. It was paid in Arkansas. It is true it might be said that this was not so beneficial to the plaintiff, as though it had been paid to him in Butler county. This may be, but still it does not prevent it from being at a different place,, which is all the rule seems to require.

“Again, Harper was bound to pay the judgment, but he was not bound tc pay Graham’s lawyers. He did pay them $100 in the settlement that was made, and this separately from the amount paid upon the judgment. Graham so treated it himself, for he indorsed only $550 upon the-judgment, instead of $656.50, the amount actually paid by Harper. Harper thus discharged a debt due from Graham, to his attorneys, and this was a‘collateral benefit received by Graham, which raises a technical legal consideration’ for the promise of Graham to discharge this judgment; although both sums paid, fall far short of the amount of the' judgment. ”

I have read enough to indicate what the opinion of the' court is about this question. While it may be regretted that the supreme court of Ohio did not follow out the very suggestion made here in that opinion, and have decided the' case upon the solid ground that two parties had made a binding and lawful agreement between themselves, and are' therefore to be held to it, rather than to undertake to get a reason for getting away from it; but if there was a reason in that case,there was one in this case equally good. There was a judgment in this court payable to the plaintiff1 below, and payable to the court or in the clerk’s office. It: was dormant; but an action had been brought upon it to revive it. . Ro it is also true, an attachment had been issued, and equally true a motion to dissolve it was made, and a litigation upon hand. Parties may settle their litigations,, settle their pending law suits, that is well settled.

Ro we may put our decision upon the ground of settling-a pending litigation, or put it upon the almost precise ground on which the case in Ohio was put. It was the payment of a sum of money in Richmond, Va., the plaintiff’s, own home. Either reason is sufficient to sustain this release.

The judgment in this case ought to have been for the defendant below upon that release, and against the plaintiff. For that reason we reverse the judgment; it is not supported) by the facts, and contrary to law, and remand the case- for a new trial.

JSf. L. Johnson, and Ben TV. Johnson, Attorneys for Plaintiff in Error.

C, TV. Johnston and J. H. Leonard, Attorneys for Defendant in error.