text:
    THREATENING TO ACCUSE ANOTHER OF A CRIME PUNISHABLE BY LAW.
    [Circuit Court of Wood County.]
    Smith v. State of Ohio, and Still v. State of Ohio.
    Decided, April 25, 1903.

      Criminal Law — Indictment Under Section 6830 — Threatening to Accuse Another with Arson — What the Indictment Must Aver.

    An indictment charging the defendant with threatening to accuse another of a crime punishable by law, is insufficient under Section 6830, if it avers that the defendant threatened verbally and in writing to accuse such person of arson with intent to defraud, but does not aver that the building, set on fire or burned with felonious intent, was insured, and that the defendant threatened to charge such person with burning it to prejudice the insurer.
    Hull, J.; Parker, J., and Haynes, J., concur.
   Two separate petitions in error were filed in these oases but only one bill of exceptions, and the oases are, to all intents and purposes, one ease. The plaintiffs in error were indicted and tried jointly in the court of common pleas on a charge of blackmail under Section 6830, Revised Statutes. They were -both found guilty and each- sentenced to a team in the penitentiary, and these proceedings in error were brought to reverse that judgment.

It is claimed that the court below erred in overruling a motion ■to quash the indictment, in overruling a 'demurrer to the indictment, and that the verdict and judgment are against the weight of the evidence.

.First conaideTing the question as to whether the court below should have sustained a demurrer to .the indictment, it is claimed that' the indictment is had because it does not charge an offense against the laws of the state of Ohio'. As stated, the indictment is founded upon Section 6830, Revised Statutes, which provides that:

“Whoever, either verbally or by any letter or writing, or written or printed communication, sent or delivered by him, demands of any person, with menaces, any chattel, money or valuable security, or accuses, or knowingly sends or delivers any letter or writing, or any written or printed communication, with or without a name, or with any letter, mark, or designation, accusing or threatening to accuse, any person of a crime punishable by law, or of 'any immoral conduct which, if true, would tend to degrade and disgrace such person, or to expose or publish any of his infirmities or failings, or in any way to subject him to the ridicule or contempt of society, or to do 'an injury to the person or property of any person, with intent to extort or gain from such person any chattel, money, or valuable security, or any pecuniary advantage whatsoever, or with intent to compel the person threatened to do 'any act against his will, with the intent 'aforesaid, shall he imprisoned in the penitentiary not more than five years nor less than one year, and may he finednot more than $1,000/"’

The indictment charges, that for the purpose of obtaining money, to-wit, $250, the defendants charged one Cyrus W. Noble with the crime of arson. The indictment avers:

* * * did threaten him, the said Cyrus W. Noble, to accuse him, the said Cyrus W. Noble, of having committed the crime of arson, and with 'having unlawfully set fire to and burned his own hotel building in EDoytsville, Wood county, Ohio, of the value of $1,000, with intent to defraud; which said act and crime is punishable, under the laws of Ohio, by imprisonment in the penitentiary, and which if true would tend to disgrace 'and degrade him, the said! Cyrus W. Noble, by then and there willfully and maliciously and knowingly did verbally say and state to him, the said Cyrus W. Noble, the words following, to-wit: T (meaning him the said Ezra Smith) understand that yon (meaning Cyrus W. Noble) said that you would pay anyone that gave you any information about who burned your hotel (meaning the hotel of Cyrus W. Noble in Hoytsville, Wood county, Ohio). We (meaning him the said Ezra Smith and Link Still) think we know who done it. We ■thought' we might make you (meaning him the said Cyrus W. Noble) a party to tbe burning of it (meaning said hotel building belonging to said Cyrus W. Noble). If you do not give us (meaning the said Ezra Smith and Link Still) $250 we are going to make you (meaning s'aid_Cyrus W. Noble) trouble. I will see the other man (meaning said Link Still) about it/
“And thereafter, on the twenty-sixth day of April of the same year, in pursuance of, and in furtherance of said unlawful confederacy and conspiracy of them, the said Ezra Smith and Link Still, and with the unlawful, willful and malicious purpose t'o extort money from him, the said Cyrus W. Noble, they, tbe said Ezra Smith and link Still, did then and there unlawfully, willfully and maliciously send to him, the said Cyrus W. Noble, a certain writing without any name subscribed thereto, directed to C. W. Noble, he being the same person 'as the Cyrus W. Noble aforesaid, and containing a willful and malicious threat, with menaces, to injure him, the said Cyrus W. Noble, by therein accusing him of said crime of arson aforesaid, which said writing is in the words and figures following to-wit:
“Hoytsville, 0., 4-26, 1902.
“ ‘Mr. C. W. Noble : I understand that Ezra Smith (meaning the Ezra Smith heretofore named), our (meaning them the said Ezra Smith and Link Still) head man, was to see you (meaning said Cyrus W. Noble) and you did not * * * it will take money (meaning the money of Cyrus W. Noble aforesaid) before the thirtieth to keep still. Call and see him (meaning said Ezra Smith) or we (maning said Ezra Smith and link Still) will get your man and you with him. Do not think this is a bluff.’ (Thereby meaning that unless the said Cyrus W. Noble would before the thirtieth of April, A. D. 1902, pay and deliver to them the said Ezra Smith and Link Still, said sum of $250 so by them demanded from the said Cyrus W. Noble on the twenty-fourth day of April, A. D. 1902, as aforesaid, they, the said Ezra Smith and Link Still, would cause and procure the arrest and prosecution of him, the said Cyrus W. Noble, for said crime of arson in having unlawfully burned his s'aid hotel building in Hoytsville, Wood county, Ohio, with intent to defraud. With the intent and purpose then and there and thereby unlawfully, willfully and knowingly, by means of said verbal and written communications aforesaid and with the menace aforesaid, to extort money of -the amount and value of $250 from the said ■Cyrus W. Noble.)”

The indictment sets forth fully the words claimed to have been used verbally by the defendants and the writing -that it is claimed was sent by the defendants to Dr. Noble, 'and -while the indictment avers that the defendants charged Noble with the crime of arson, it goes on further t:o state that they charged Mm with burning his own building; the language set forth in the indictment, and the averments in the indictment show that the defendants did not charge Noble with the crime of arson, and it was not intended in the indictment to charge that they did. The crime of arson is unlawfully burning the building of another, and not one’s own building, and is defined in Bouvierls Law Dictionary and also in Section 6831, Revised Statutes. So that it is apparent it is not charged in this indictment that these, defendants accused or intended to accuse Dr. Noble of the crime of arson, but that the indiotment avers and intends to aver that they did not accuse him and threatened to accuse him of setting fire to and burning his own building, to-wit, “his own hotel building, with intent to defraud,” as is 'alleged in the indictment.

It is claimed 'by counsel for the State that this is sufficient allegation under the blackmailing statute to charge the offense; that it is not necessary to go into the crime in detail, but that it is sufficient to charge it generally, and that this language is sufficient to come within the language of the blackmail statute which I have read (Section 6830, Revised Statutes), which makes it a crime to make certain threats, either verbal or'in writing, to another or to threaten to accuse another of certain things, and among them is the commission of 'a crime punishable by law, with intent to extort, etc. If the language of the indictment brings the offense charged within the statute, then it is sufficient to sustain it upon demurrer.

The burning of one’s own building is not a crime under the laws of this state, unless that' building is insured, for there is no statute in this state making it a crime to bum one’s own building unless the building is insured and is burned with the intent to prejudice the insurer. This crime is covered by Section 6832, Revised Statutes, which is as follows:

“Whoever maliciously bums or sets fire to any dwelling house, kitchen, smokehouse, shop, office, barn, stable, storehouse, warehouse, still-house, mill, pottery or any other building, of the value of fifty dollars, or any goods, wares, merchandise, or other chattels of the value of fifty dollars, the same being ¡his own property, and insured against the loss or damage by fire, with intent to prejudice the insurer, shall be imprisoned in the penitentiary not more than twenty years.”

It is clear that this indictment was intended -to charge that these defendants accused and threatened to accuse Doctor Noble with the violation of this section of the statute.

The crime threatened to be charged against Doctor Noble is set forth in the indictment, and the question is whether the language of the indictment does aver and charge that the defendants accused or threatened to accuse Doctor Noble with the commission of a crime; if the language used by the defendants did not accuse Doctor Noble with tire commission of a crime, then it was not a crime or an offense tending to degrade or disgrace him for them to say what they did to Doctor Noble. The statute does not' make it a crime to make any threats 'against another person or to accuse another person of anything thait he may be threatened with or accused of, but the statute sets forth what'threats must be to constitute an offense under the statute. This offense was formerly called in the statute 'an attempt to rob. The offense of bumng one’s own building with the attempt to prejudice the insurer, was not a common law offense like arson, but was made a crime by statute. The -blackmail statute, like all other criminal statutes, is to be strictly construed, and its language is not to be extended beyond its f'air interpretation to the prejudice of the accused. The indictment, to be good against demurrer, it is not necessary to say, must charge a crime against the defendants. It is not sufficient that the language of the indictment may possibly advise the defendant's of the general nature of the charge that the State makes against them. No man can be put on trial for a felony under the Constitution and law of -this state, until an indictment has been found 'against' him, charging -him with some crime.

This indictment sets forth, first, that the defendants accused Dr. Noble of arson, but that can not -be considered in deciding this question, because it appears from the indictment that it was not arson that they threatened to accuse him of. The averment in the indictment wa& that they threatened to acuse him of burning his own hotel unless he -gave them this money. That is the sum and substance of the charge in the indictment. Is this language sufficient to charge that the defendants threatened Noble — -threatened to accuse bim of the commission of a crime? The indictment does not aver that this property was insured in any sum; it does not aver that the defendants threatened t'o accuse Noble with burning his property with the- intent to prejudice the insurers. It is not a crime under the statute, under Section 6832, Revised Statutes, or any other statute of .this state, for a man to bum his own building, unless it is insured. There may be reasons why a man might wish to get a building out of the way. Many reasons may be suggested; the -burning 'of it might be the most inexpensive and expeditious way of removing it. There is no law in the state, either of statute or case law, to prohibit, a man thus disposing of his own property. There is nothing sacred about a house or building -that prevents one from -burning hisjown so long as he does not endanger the .property of others.

It is averred in the indictment that the defendants threatened to accuse him of burning this building with intent to- defraud. There is not, however, any statute in this state making it a -crime to burn a building with intent to defraud. A building may be burned; with intent to defraud a mortgagee, or it might be burned with the -intent to deprive a woman of her dower; but -there is no statute on the subject. It might be malicious destruction of property, but no such charge as that is made.

It -is settled in this state, by a decision -of the Supreme Court, that an indictment under the bl-aclcm-ailing statute must charge that the defendant accused another of a crime or threatened to accuse him of a crime, and the allegation -in the indictment must be sufficient to show that a crime was charged. A case was cited by counsel for the State, Elliott v. State, 36 Ohio St., 318, to the effect that it was. -not necessary to set forth the amount of the insurance. That is undoubtedly true. The first paragraph of the syllabus is:

“An indictment under Section 22, Chapter 3, Title 1, of the Penal Code of 1877, as amended (76 O. L., 167, 168), which specifically charges- that A, B and C, with the intent to extort and gain a certain amount of money, of the value of $500, and certain valuable securities of the value of $300, the property of W, did willfully and feloniously accuse W of the crime of burning his bam. which was insured, and was of the value of $350, with intent thereby to prejudice the insurer, is not defective for want of any of the following averments: '
“1. For want' of -averment that the accusation against W was false. The truth or falsity of the accusation m-ade by defendant is not an essential element of the crime.
“2. Nor because it -does not state the n-arne of the insurer of the amount of the policy.”

But the indictment did charge that the building that the person was accused of burning' was insured, and that he was accused of burning it with intent to prejudice the insurer. The case of Mann v. State, 47 Ohio St., 556 (26 N. E. Rep., 226; 11 L. R. A., 656), is -directly in point. The first paragraph of the syllabus is:

“In an indictment under Section 6830, Revised Statutes, for verbally accusing another of a crime punishable by law, to-wit, administering poison to and thereby killing two colts, the property of the defendant with the intent to extort and gain from the accused certain chattel property- and pecuniary advantage, the words ‘punishable by law5 'are not a sufficient averment of the crime, but the act of which the party was accused must be alleged as having been done maliciously, and with intent to injure and] destroy the animals, and without such allegation the indictment is insufficient.”

The court, through Judge Diekmam, say in the opinion, on page 560:

“To accuse one of administering poison to and killing a colt or other domestic animal, the property of another, without further imputation of criminal intent, is not to 'accuse -one óf a crime under the statute. The poison may have been administered accidentally, or through a mistake. By Section 6852, Revised! Statutes, it is a crime punishable -by fine or imprisonment to maliciously administer poison, of any sort whatever, to any foal, filly, or other domestic animal therein referred to, the property of another, with intent t'o injure or destroy the same. And Section 6851, Revised Statutes, also subjects to fine or imprisonment any person who maliciously kills any suoh animal, the property of another. Such administration of poison and thereby killing, must be attended with the element of malice to constitute the statutory crime. It is charged in the indictment, that the defendant, with the intent to extort and gain from William Brigham and Almyra Brigham, his wife, certain chattel property 'and! a pecuniary advantage, unlawfully and knowingly did verbally threaten and accuse them of having committed the crime of administering poison to 'and killing the-two colts, but not having done so maliciously, unlawfully, or knowingly. There is, indeed!, no allegation in the indictment that the defendant' accused them of a crime of which they could be legally convicted and punished. It is the ancient rule of our law, often reiterated, that penal statutes are to he construed strictly, and can not be extended by implication to cases not falling within their terms.”

And the court hold that this indictment was bad. They say further in the opinion, page 561:

‘‘It is urged in argument, that in alleging the offense in the indictment, it is safe to nse the words of the statute; hut, as said in Bagar v. State, 35 Ohio St., 268, while in charging 'an offense in an indictment it is not good practice to omit the words of the statute, it is not to be inferred that an indictment which simply pursues the language of the statute is sufficient, for in many cases something metre is required. If in the case at bar, the defendant had been charged only with haying made accusation of a crime with intent to extort, without specifying the crime, the indictment would manifestly have 'been insufficient. It was requisite, therefore, to supplement the wordls of the statute with a description of the crime, as it may have been intended to do in the indictment, but in which the crime in fact' is insufficiently alleged.”

So it is held in this case that it is necessary in such an indictment as this to describe the crime, by sufficient allegations, which it was threatened to accuse the person of. The indictment here does not show, 'and it is not alleged, taking -the indictment altogether, that these defendants accused or threatened to accuse Dr. Noble of the commission of any crime known to the laws of the state of Ohio. It may have been intended, and probably was intended, as the Supreme Court say in Mann v. State, supra, to describe the crime that it was- claimed the defendants threatened to accuse Dr. Noble of, but the language in the indictment is not sufficient to do so; there is no allegation that the property was insured and mo allegation that Noble was threatened with being accused or was accused of burning property with intent to prejudice the insurer. For these reasons it seems to us very clear that the demurrer to the indictment should have been sustained, and that the court therefore erred in overruling the demurrer.

It was urged by counsel for plaintiff in error that' the court erred in not sustaining the motion to quash the indictment, for the reason that 'two offenses are stated, in the indictment instead of one, to-wit, the offense of threatening to accuse verbally on April 24, and the offense of threatening to accuse in writing on April 26. In view of our opinion on the sufficiency of the indictment, it will not be necessary to discuss this question at any length. We are of the opinion, however, that the indictment is not bad for duplicity; that it' does, in fact, only charge one offense. The gist, the gravamen, of the offense charged here is the attempt to extort money. It was formerly called an attempt to rob, as I -have already stated. What, according to the indictment, the defendants were intending and attempting to do was to extort money from Dr. Noble by means of threats, 'as one might be charged with robbery, that by means of force and violence he robbed “A,” and in such a case it is not necessary to set’ forth the force and violence, nor the threats he used. The verbal threats occurred on April 24. They refer to a future meeting. The letter on the twenty-sixth refers to what had already been done, .and it seems to ns that it was a continuous transaction — that it was one transaction. If one of these parties, or both of them, had -met Dr. Noble on one day and had used the language set forth in the indictment verbally and said they would see him ¡again shortly, and had met him within a short time after and had used the language set forth in the letter, it seems to us it would he one transaction. The fact that two days intervened does not vary -the principle. It was one attempt to extort money from Dr. Noble by the use of threats. We hold, therefore, the indictment was not bad for duplicity.

We find some ¡authorities holding that it is not necessary to set forth the language used¿ in the indictment. On the other hand, Wharton lays down -the principle -that it is necessary when the threats are in writing. It is not necessary for us to pass upon this in deciding this case, in view of our holding upon the sufficiency of the indictment, as heretofore stated. But we may say that so far as we have discovered, there is no authority holding that where the threats are verbal, it is necesary to set them forth in the indictment, but the authorities that we have examined hold that it is not necessary to set forth tbte language of verbal threats, -but that their substance is sufficient.

It is not necessary for us to discuss the weight ¡of -the evidence. We hold that the indictment does not' charge a crime. The court erred in overruling the demurrer, and there being no legal indictment, the judgment of the court -of common pleas must -be reversed, and the defendants discharged.

There is another matter about which I should say a word. The indictment, ¡after charging the alleged offense, contains -this: “which said act and crime is punishable under tbe laws of Ohio by imprisonment in tbe penitentiary, ¡and which, if true would tend to disgrace and degrade him, the said Cyrus W. Noble.” These allegations are mere conclusions of the pleader upon the facts stated in the indictment. The language alleged to have been used by defendants does not show that the offense charged .was one punishable by imprisonment in the penitentiary, and does not show that, if true, it would tend to degrade or disgrace Dr. Noble. It would not tend to disgrace or degrade a man to charge that he burned his own bxd-ldiiig, unless the ¿barge contained the elements of á crime, or some other element which it would be necessary to plead, showing the transaction was of such a character that the charge would have a natural tendency to degrade and disgrace a man.

James O. Troup, for plaintiffs in error.

F. O. McClelland, Prosecuting Attorney, 'and F. A. Baldwin, for the State.

Nothing of that kind is alleged in the indictment. The charge that Dr. Noble burned the building with omit'ent to defraud, or the threat to accuse 'him of that, is not sufficient; no facts are set forth showing that the burning of the building would defraud anyone, and the .mere charge that he burned the building “with intent to defraud,” 'without stating how, or whom, is not sufficient'.

The judgment is reversed and the defendants discharged.


source: Caselaw Access Project

license: Public Domain

text:
    PROOFS OF LOSS BY FIRE WHICH ARE TECHNICALLY DEFECTIVE.
    [Circuit Court of Wood County.]
    The National Insurance Company v. Charles Strong.
    Decided, September 28, 1901.

      Fire Insurance — Proofs of Loss — Answers incorrect — But Desired Information Given — Magistrate's Certificate — To What He Must Certify.

    1. Although an answer in a proof of loss may he wrong and fail to give the information it was intended to draw out, yet if it is not misleading, nor in any way harmful to the company, and the information which wasi sought and which the insured was bound to give was elsewhere incorporated in the proof of loss, such proof must be regarded as sufficient.
    2. In the requirement of a policy that the magistrate or notary public living nearest the place of the fire shall certify that he has examined the circumstances, and believes the insured has honestly sustained loss to the amount stated, is complied with when the magistrate adopts and endorses the statements of the insured in his proof of loss, when such endorsement is based upon knowledge and investigation which makes him willing as an officer to certify to the facts set forth.

      Parker, J. (orally); Haynes, J., and Hull, J., concur.
   In file court below, Gharries Strong brought suit against the National Insurance Company to recover on account of an alleged total loss by fire of a building covered by a policy of $1,200 issued to him by said company.

The petition set forth a copy of the policy, alleged the loss and compliance by plaintiff, with all the conditions of the policy on his part.

The answer denied/ that the loss was total, and averred that plaintiff bald failed in several respects to comply with certain conditions of the policy os to furnishing proof 'of loss. These alleged shortcomings -and defects in the proof of loss constitute the chief ground of contention, and will be hereafter referred to somewhat in detail. The insured recovered as for a total loss. The insurance company prosecutes error to obtain a reversal of tbe judgment 'and a setting 'aside of the verdict of the jury. The record discloses objections and exceptions during the progress of the trial upon the admission and rejection of evidence, which we have examined into, but as these matters have mat been much discussed in oral argument or in brief of counsel for plaintiff in error, and do not seem to be much relied on, we simply announce that we find no material error therein prejudicial to the company.

By answers -to interrogatories submitted at the instance of the company the jury stated -that the loss was total, alnd that there was mo evidence to show that any pant of the walls were left standing after the fire which were used without change and incorporated into the new building erected on the site of the building destroyed by fire. We can mot find that these eotaiclusioms are against the weight of the evidence.

The objections urged against the proof of loss were raised and presented by a motion to direct a verdict, request to charge and exception to the charge, so that if ■the contention of the company is well grounded the questions are made and saved in due form.

The policy provides that the amount of loss “shall be payable ■sixty days -after dlue notice, ascertainment, estimate and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy.” Also that, “if fire occur, the insured shall give immediate notice of any loss thereof in writing to this company, protect the property from further damage, forthwith separate the damaged alnld. undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each 'article and the amount claimed thereon; and, within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to the company, signed arad sworn to by said insured, stating the knowledge and belief of tbe insured as to the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item thereof and the amount of loss thereon, * * * and shall also if required, furnish a certificate of the magistrate or notary public (not interested in tbe claim as a creditor or otherwise, nor related to toe insured) living nearest toe .place of fire, stating that he has examined the circumstances arad -believes toe insured has honestly sustained loss to the amount tout such magistrate or notary shall certify.” Also “the loss- shall ¡not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of -toe loss herein required have been received by this company.” Also- “no suit or acbiotoj on this policy, for toe recovery of any claim, shall he sustainable in any court' of law or equity until after full compliance by the insured with all toe foregoing requirements, nor unless commenced within twelve months next after toe fire.” Also toe provi.sion that “this policy is made -and accepted subject to toe foregoing stipulato*» and conditions,” etc.

The policy contains many other stipulation® and conditions usual in fire insurance policies, but the few above quoted are all that seem to be involved in this controversy.

There was much correspondence between toe insured and toe company relative to proof of loss transmitted -by toe former to toe latter, but as none of this resulted in any modification of the contract or waiver by either party of the terms, we need not dwell upon this phase of the dispute. Certain proofs were submitted, and upon them toe insured rests his claim, and upon toe alleged insufficiency of these toe company rests this branch of its defense.

The company in its answer avers that toe proof of loss furnished was insufficient in that: (1), it did not set forth toe cash value of each item insured; nor (2), toe amount' of loss thereon; nor (3), did the certificate of the magistrate furnished by the insured state that he bad examined the circumstances of the fire; nor (4), did he set forth in his sworn proof of loss the “sound value” immediately preceding the fire, of the property destroyed, but he amended tihe same by inserting said “sound value” after be had sworn to bis proof of loss, and he did not thereafter reverify the same.

The policy insures the insured in the sum of $1,200 upon a store building. The proof of loss sets forth that 'the loss upon the “first item” is total. There is but ene item in the policy. The form of the statement of 'the value and the amount of the loss, in the proof of loss 'as submitted on >a blank furnished by the company, was as follows:

“The actual cash Value of each specific subject thus situated and described by the aforesaid policy at tihe time of loss, and the actual loss and damage by said fire to the same, ais shown by annexed schedule, and for which claim is hereby made were as follows:

First item of policy

Sound value.

None unless it should be the brick

Total loss.

$2,000.00

Total insurance.

1,700.00

Amount named in policy.

1,200.00

Claimed under policy.

$1,200.00

These columns are extended for additional items.

It seems tihat tihe company designed the first column in the schedule, marked “sound value,” for the insertion by the insured of the “cash value” mentioned in the part of the policy quoted, and that it understood that to mean the cash value immediately preceding the fire, whereas, the insured in making out the proofs understood this to refer to the cash value after the fire, and so he inserted the words “none, unless it should, be the brick.” After-wards this was amended by the insured by the insertion in tihe blank of the words, “The west half of above brick block 43 by 62 feet was worth immediately preceding the fire not less than twenty-one hundred dollars,” and tihe proof of loss thus amended was again submitted- to the company.

The objection to the first statement is that it does not give the cash value at all, and the objection to the second statement is that it was not verified. That such statement is material or requisite, in view of Section 3643, Revised Statutes, and the averments in the answer that defendant has ¡never “denied liability to the plaintiff except on the ground that he had failed to furnish proper proof of loss in accordance with the terms and conditions of the policy,” and the absence therefrom of any charge of fraud or change increasing the risk, is not clear, but we do not find it necessary to pass upon that point. Neither the policy nor the form for making proofs of loss are entirely olear as to the meaning of this “cash value” or “sound value.”

Assuming, however, that it means the “cash value” or “sound value” immediately preceding the fire, and that, therefore, the .answer “none,” etc., was wrong, and failed- to give the information sought, yet -it was not 'misleading or in any way harmful to the •company, ¡and if the information sought, and that' the insured was bound to' -give, was otherwise given in the proof of loss, that was sufficient, 'and the subsequent amendment was unnecessary.

'Was such information given in the unamended proof of loss? "It seems to ns that is it clearly and distinctly stated herein that the “sound value” or ‘hash value” -before the fire was at least $2,000. The statement is that the loss was total, and that it amounted to $2,000. This could not be true unless the sound value just before the fire was1 as much as $2,000. As to this “item,” when these statements were made, there was no need of any filling in of the column ‘as to “sound value.” Lyconing County Mutual Insurance Co. v. Schollenberger, 44 Pa. State, 259.

The statement that this property was “destroyed” (the words “or •damaged as hereinafter set- forth in detail” being stricken out) occurred in another place in ¡these proofs of loss; and in the more informal proof previously submitted it is stated that the property was “totally destroyed” and that the insured suffered “a total loss.” We hold that the unamended proofs of loss were sufficient in this respect, 'and ¡therefore wiU not discuss the debated question of the effectiveness of the amendment, the whole of the material facts' touching which 'amendment have not been stated by us. The fifth objection falls to the ground with the disposition of the first.

The second objection that the proofs do not state the total loss on each item 'appears to be entirely unfounded. The statement is that the loss was $2,000 and that $1,200 is claimed under this policy.

As to the fourth objection: The certificate of the magistrate is endorsed on the back of the proof of loss, and is as follows:

“I, the undersigned, a justice of the peace of Montgomery township, Wood county, Ohio, having examined this proof of loss signed by Chas. S. Strong, of Freeport, Wood county, Ohio, and having personal knowledge of the building described herein, I honestly believe that the said Chas. S. Strong has sustained fully the loss acknowledged by him before J. M. Goodrich, Notary Public, Feb. 12th, 1900.
“Frank Fike,
“Justice of Peace in and for Montgomery Township, Wood County, Ohio.
“2, 12, 1900.”

The proof of loss was verified by being sworn to before the notary public named. The record discloses that Justice Fike was duly qualified by being the nearest disinterested magistrate. But the company insist that this certificate does not set forth that the magistrate has “examined the circumstances” as required by the policy. Just' how he shall proceed, 'and to what extent in “examining the circumstances,” the policy does not specify. Whether by viewing the site of the destroyed building and examining the evidence thus afforded (which ordinarily would not furnish much information as to the origin of the fire), or by taking the testimony of such witnesses as may be available, or by taking the unsupported statements of the insured, if deemed credible, the policy is silent. He is to certify that he has “examined! the circumstances,” and that he believes the insured has honestly sustained a loss of an amount stated. He is to make such examination as satisfies him and makes him willing to certify an an officer that the loss was honestly sustained and was of a certain amount.

The magistrate having reached 'his belief by such examination of the circumstances as was involved in examining a clear and particular statement of 'all the circumstances of the fire made by the insured under oath, in connection with his own personal knowledge of the building, and having so. certified, that complied with the requirements of the policy.

Stephens & Lincoln and D. P. Jones, for plaintiff in error.

James O. Troup, for defendant in error.

The certificate is informal also in that it fails to. set forth in the terms used in the policy that the magistrate believes that the loss was honestly sustained; but the adoption 'and endorsement of the statements of the insured in his proof of loss as to the origin of the fire is equivalent to the statement that the loss was honestly sustained.

This disposes of the points .especially urged upon our attention.

We find no error in the record' requiring 'a reversal of the judgment and it is hereby affirmed.


text:
    LIABILITY FOR THE CONDITION OF A PRIVATE WAY WHICH THE PUBLIC IS IN THE HABIT OF USING.
    [Circuit Court of Summit County.]
    Buchtel College v. William T. Martin.
    Decided, July 28, 1903.

      Negligence — Private Way — Permission or Inducement to Use — Changes In, Making it Dangerous — Responsibility for Condition of — Expenses on Account of Injury.

    1. An owner whose business requires him to keep a pathway or walk over his premises, and who permits the general public to use such walk, can not be said said to invite such usé, even though the walk leads from one street to another; and the only obligation the owner is under with reference to such walk is not to make pitfalls therein, or near thereto, or changes rendering the walk dangerous, without ordinary care in notifying persons in the habit of using the walk of such changes or pitfalls.
    2. When the principal building on such premises has been destroyed by fire, and the owner is rebuilding, and a portion of such walk is-torn up, and piles of-brick and' sand are placed thereon, and empty barrels and a large wooden mortar box are in close proximity, sufficient notice is thereby given of danger and that the owner forbids the use of the walk, and one who thereafter attempts to use it, and climbs over a pile-of sand on such walk and falls into an excavation on the' other side- óf the sand, and is injured, can not recover from the -owner for the injury. •
    3. It is error to charge a jury that recovery can be had on account of expenses attendant upon an injury, where there is no evidence before the jury as to the amount of such expenses.
    Laubie, J.; Burrows, J., ami Winch, J., concur.
    -Error to court' of common pleas.
   The verdict in this case w-as manifestly against thé weight of the evidence, and the plaintiff was not entitled to recover.

The condition of the college grounds on the night in question was sufficient notice to the plaintiff of danger, and to stop his further progress in the direction he was going. It was known to him that the defendant was rebuilding its college and ré-arramging its college grounds, and directly across the stone wálk he was following, the defendant had placed a large pilé -of sand at the edge of the excavation, which he was obliged to mount and pass before he could fall into such excavation. Immediately to the right of this sand pile was a large wooden mortar box, and piles of bricks were at the left, and empty barrels were around in close proximity.

There was light enough for him to see these -objects, and they were sufficient notice to him that' such walk w-as -designedly closed, and that he must not proceed further along the walk in the direction he was going. If there was any obscuration of the moon’s light by clouds, he had ample notice to stop when he struck the sand pile.

The stone walk was a narrow one — less than three- feet wide, and that this sand pile was directly oh it was beyond question. He was the only witness who testified that it Was not on the walk, and he had to do that' to avoid admitting his own negligence. The next morning there were marks on this pile that showed that some person had recently walked over it.

In addition to all this, he had sufficient notice that the defendant forbade the use of its grounds for the purpose he was using them, in that it had destroyed the continuity of the walk from street to street by taking up the flagging for a considerable distance of the way he traveled and placing piles of brides thereon ; and this also he found it necessary to deny, although he was finally compelled to admit that he knew part of the flagging had been removed.

This action of the defendant was set up in its answer as a defense.

The charge of the court was misleading and, in part, erroneous.

The accident happened on a Sunday evening. On Saturday noon when the men stopped working, the defendant caused/ a barrier to be put across the walk just north of the sand pile by placing a barrel on each side of the walk and laying thereon across the walk some light boards to bar the way; and this barrier was there on Sunday morning; whether it was there on Sunday evening was uncertain, and no one went there on that evening on the part of the defendant to see that it was still there. Whether this was sufficient to exonerate the defendant under the circumstances was not noticed, or called to the attention of the jury, in the submission of the case, but there was no request made by the defendant to instruct tiie jury upon this point.

The court did, however, we think, mislead the jury in stating the defense set up and relied upon by the defendant.

The defendant • denied that there was a path maintained by it, or existing, from street to street, 'across its grounds at the time in question; but the court, in its statement of the defense, and throughout its whole charge, stated in effect and assumed th'at the defendant admitted that the path was there and maintained as claimed by the plaintiff; nor was this corrected by what the court said to the jury after the full and formal charge had been completed. Nowhere in it was this point specially named or referred to, or the effect that might or should be given to the fact that the defendant had destroyed the continuity of the old path, as heretofore referred to. And, in this connection, we think the court erred ■in refusing the requests to charge of the defendant, numbered 2 and 4, as shown- on pages 219 and 220 of the bill of exceptions, as follows:

“(2). If you find from -the evidence that the -college building of the defendant was destroyed by fire on December 20, 1899, 'and that in consequence of such fire, the established walks and 'drives of the north and west sides of said building were rendered impassible, and that thereafter said wall® on the north and west sides were taken up and were not replaced, and that' from -the time of the fire- to the time of the plaintiff’s accident there were no defined walks connecting the Buchtel avenue 'and Carroll street walks, and if you find -that, during said time the old walks were more or less obstructed by debris and building material and that the grounds were also so obstructed-, and that building operations were in progress, then under such circumstances the plaintiff would have no right to assume that the walks were safe and unobstructed, and in going upon them, did so at his own peril.
(4). If you find from the evidence that the plaintiff in crossing the college grounds on the usual stone walks came Do a place where the walks had been removed, then it would be the plaintiff’s duty to take notice of snob facts, -and be would have no right to continue further in the belief that tbe walks were safe and unobstructed.”

Tbe defendant was * entitled to have each of these requests given — -they were good law as applied to -the facts of the case.

The court also erred in instructing the jury that it might find under the evidence that the defendant had invited the public and the plaintiff to use its grounds as- a way from one street to the other, -and, as stated in plaintiff’s request No. 1, as given by the court, and generally in the charge, that if the defendant had permitted such use, it was bound to keep its premises in a reasonably safe -and suitable condition for the use of those passing over and using them in -the manner and for the purpose stated.

An -owner of premises whose business requires him to keep a pathway over them, though it be from street to street, and permit's, without objection, the public to use such pathway solely for the purpose of passing from street to street, with no connection with him or his business, can not he said to invite such use;' and the only obligation resting upon such owner is, not that -he must expend money'and labor "upon such-pathway to keep it in repair for the public, but simply not to make pitfalls or changes of a dangerous character on or near such walk without exercising ordinary care to notify those so using tire pathway of such pitfalls or changes by the erection of proper barriers, or otherwise.

Tibiáis & Fmnlc, for plaintiff in error.

Grant & Seiler, for defendant in error.

“No duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not expressly invited to enter, or induced to come upon them by the purpose for which the premises are appropriated or occupied.”
“Mere permission is neither inducement, allurement, nor enticement.” “And the inducement here spoken' of must be equivalent to an invitation to enter.” 29 O. S., 372; 43 O. S., 263.

The court further erred in instructing the jury that they might render a verdict for the plaintiff for the expenses he was put to by reason-of Ms injuries.

There was no evidence of the amount of such expenses; all evidence on that point had been 'withdrawn by consent' from the jury and, consequently, no verdict could be rendered therefor. 19 C. C. R., 703.

For the reasons given this cause must 'be reversed and remanded.


text:
    CONDEMNATION OF RIGHT OF WAY FOR AN INDUSTRIAL TRACK.
    [Circuit Court of Lucas County.]
    State, ex rel Sumner, Prosecuting Attorney, v. Toledo Railway & Terminal Co.
    Decided, January 19, 1903.

      Railways — Eminent Domain — Condemnation—Industrial Tracks Are Side-tracks — Section 3281 — Quo Warranto — Expert Testimony.

    1. An “industrial” track, branching from a belt railway and leading to a large plant about one mile distant, which track the belt railway company expects to use in the ordinary course of its business as a common carrier of persons and property, is for a public use, and is a “side-track” within the meaning of Section 3281; and the power of eminent domain may be invoked for the condemnation of a right of way for said track.
    .2. Expert testimony is competent in an action in quo warranto against a railway company, where the issue is as to whether a certain proposed track is a side-track, or one to be used for a private purpose.
    Hull, J.; Haynes, J., and Parker, J., concur.
   This is ian action in quo warranto brought against the defendant ■to oust it from a -certain right of way and test its right to appropriate land' for a certain track. The question involved is -whether the defendant company has authority to appropriate a right of way, u-pon which it proposes to construct a track to connect its main line with a certain industry or industries, adjacent to its line, -or in the neighborhood o-f its line, in order that the defendant may transport its ears and engines to and from such industries. It appears from the pleadings and evidence in the case that the defendant is about to construct a track some 5,500 feet in length— .a little over a mile — -running from the main track to the Toledo Furnace Company, so called, and as claimed by the defendant .with the intention of extending it a short distance beyond the furnace company to -the Craig shipyard and the wharves and docks •along the river front in that neighborhood.

The relator claims that the track, about to be built is not a si-de-traek, but that it is to be used for a private purpose, and that,. therefore, the railroad company has- not the power to appropriate and condemn land for this purpose; that it can only acquire it by purchase. It is well established that the right of eminent domain, the right to appropriate property, does not extend to cases where it is to be taken for a private purpose. The relator says in his petition:

“Paragraph 5. Relator is informed and believes 'and so charges the fact to be that the strip of land harass said north half of said east quarter of said northeast quarter of said Section 32 in the city of Toledo', so sought to be appropriated in said action 2374, is idtesigned by said defendant to be used as a part of a right of way for a track to connect the main track of defendant with the plant of the Toledo Furnace Company, which is a private corporation ; that the use to which said strip of land is to be appropriated ■is a private use and that defendant has no right of eminent domain to so appropriate said land for said use; that defendant seeks to appropriate said strip of land neither for side-tracks, nior for depots, nor for workshops, nor for round-houses, nor for water stations, nor for material for construction, nor for right of way to 'enable it to construct or repair its road, nor for aqueducts, nor for drains, nor for the railroad described in its articles of incorporation.
“Wherefore, said prosecuting attorney says that the defendant has no right to exercise the power of eminent domain to appropriate -the strip of land, or any part thereof, described in paragraph four hereof, nor to prosecute said action 2374 in the Probate Court of Lucas County against Laura P. Mitchell, Emily P. Hastings and Rutherford H. Platt, or either of them.”

The defendant in its answer with reference to paragraph five of the relatoris petition, says:

“5. For answer to the allegations of paragraph number five of said petition, defendant says that the right of way sought to be acquired amid appropriated in said action 2374 in said probate court, is designed by defendant to be used, and is necessary as a part of the railroad of the defendant company, for a side or spur-track, connecting the main track of 'the defendant with the plant of the Toledo Furnace Company and other industrial plants located, and to be located, upon the line of the track so proposed to be constructed; that the use to which said strip of land is to be appropriated is not a private use, but a public use iu connection with defendant’s main line of railroad for the purpose of reaching said Toledo Furnace Company and other industries located and to be located on said side or spur-tracks; and that the same is to be devoted to a public use by the defendant as a common carrier of persons and property for all who desire to and' can. use the same upon the same terms and conditions; and the construction, maintenance and operation of said side or spur-track to said Toledo- Furnace Company -and other industries is for the purpose of using the same in connection with, and as a part of, the railroad described in defendant’s articles of incorporation.”

A supplemental answer was filed -on the day of the trial, shortly before the trial was commenced, setting up:

“That since -the filing of its original answer herein, to-wit, on or about the twelfth day -of November, 1902, the stockholders of the Toledo Railway & Terminal Company, at a meeting of said stockholders duly called f-o-r that purpose, determined to construct a -branch track or line from the main line of said company’s track, commencing 'at a point on said main .line on the easterly side of the Maumee river, in Toledo, Lucas county, Ohio-, six hundred and thirty-seven (637) feet northeasterly of the center line of Consaul street, measured along the center of the right of way of said main line, and extending from said point in a northeasterly direction to a point of connection with the railroad of the Maumee Connecting Railroad Company, said point being westerly of Wheeling street and northerly -of Front street in said city of Toledo-, so as to connect said branch line with said railroad of the Maumee Connecting Railroad Company, and -also with the railroad of the Wheeling & Lake Erie Railway Company near said point, and so as to connect said -branch line with the place or places lying northerly of Front street, westerly of -the main tracks o-f the Wheeling & Lake Erie Railway Company, southerly of the Maumee river, and easterly of the line between the property o-f the Toledo Riverside Railway Company and the property of -the National Malleable Castings Company.
“That thereupon, -and on the same date as last aforesaid, this defendant caused a copy of said resolution, duly acknowledged and certified by the directors and officers of defendant -according to larw, to he filed in the office of -the Secretary of State of the State of Ohio.
“Defendant further says that’the branch line aforesaid is identical in its location, and the property necessary to appropriate for said branch line is the same as- the line and property described in its original answer herein, and that it is necessary in the construction of said branch line to 'appropriate and use the same property described in its original answer.”

This supplemental answer was filed by the defendant, and these steps taken apparently with the intention o-f meeting the case if the court should be of the opinion that the track about to be constructed was not a side-track, but a branch track.

The relator demurred to this supplemental answer, upon the ground that a railroad 'company has not the power to condemn and appropriate property under the right of eminent domain, for a branch track; but it was claimed if they desire the property for that purpose, they must purchase it. This demurrer was informally overruled at the time of the trial, with the reservation, however, that the court might consider it further and decide it in the final determination of the. case. Thereupon the relator filed a reply to the supplemental answer. Testimony was offered to sustain the claims of the parties, and, upon the trial of the case, the defense, whether required to do so or not, assumed the burden in offering testimony.

Leaving out of consideration for the present the supplemental answer, the two main questions are whether this track is a sidetrack, 'and whether it is for a public use, as claimed by the defendant, or whether it is for a private use; as claimed by the relator. If it is a side-track, the provisions of Section 3281, Revised Statutes, apply. This section provides as follows:

"A company or a municipal corporation which may own or operate a railroad may enter upon any land for the purpose of examining and surveying its railroad line, 'and appropriate so much thereof 'as may be deemed necessary for its railroad including necessary side-tracks, depots, workshops, round-houses and water stations, material for construction, except timber, a right of way over adjacent lands sufficient to enable it to construct and repair its road, and the right to conduct water by aqueducts and to make proper drains; but no appropriation of private property to the use of a company or municipal corporation which owns or operates a railroad shall be made until full compensation therefor is made in money or secured by deposit of money to the owner irrespective of any benefit from any improvement proposed by the company or such municipal corporation as prescribed by law.”

If the track in question is not fox a public use, but for a private use only, the railway company has not the right to appropriate or condemn, by whatever name the track or improvement may be known. Upon the trial, expert testimony was admitted on the issue as to whether this was a side-track or not. This was over the objection of the relator. The defendant called Mr. Whittlesey, its general manager, and Mr. Buxton, an experienced railroad man, who had had twenty or thirty years experience in that line of business, and they gave their' testimony 'as experienced railroad men 'as to what a side-track was. As I say, this testimony was objected to and was admitted subject to objection ¡and exception of the relator. It was urged that a definition of "sidetrack” could be found in the dictionaries, and that it was not necessary to resort to expert testimony, and that the question was one for the court sitting as a jury in this case, and that the witness should not be permitted to take the place of the court.

We are of the opinion, however, that the testimony was properly admitted. Expert testimony is admissible upon a question, regarding which there is not common knowledge, where the court or jury may be aided or educated by the expert’s views and opinions of men experienced in some particular line, as medical men, seien-' tifie men, or experienced railroad men. We think expert testimony was admissible, not for the purpose of determining the very question that was submitted to the court in this case, whether this is a side-track or not, but for the purpose of giving us the benefit of the experience and knowledge' of these men in these matters, in order that we might be -aided as a court, iu determining whether this particular track would be properly called a side-track or not. The Supreme Court of this state, iu the case of Ohio & Ind. Torpedo Co. v. Fishburn, 61 Ohio St., 608, in the syllabus, say:

"1. Opinion evidence may not be given' where an opinion is asked as to the precise, ultimate fact in issue which is to be tried by the jury, but such testimony is not necessarily incompetent if it calls" for an opinion as to a matter which is evidentiary only and merely tends to establish a fact which may be involved 'in the issue.
“2. Such evidence is not-competent where the matter inquired about is one within the common knowledge of men of ordinary information, and it is practicable to-place before the jury all the primary facts upon which a conclusion is to be based, but where a witness is shown to be learned, skilled or experienced in a particular business, he may be asked to give an opinion as to pertinent matters which are not the subject of common knowledge, and as to which the jury is not so competent as is the witness to draw the proper conclusion from the general facts proven.”

It appeared that just what a side-track is, what would be called a side-track, or -what would be called a branch or spur, or a switch, were matters that people of ordinary knowledge, not conversant with railroad affairs, would not know or could, not be familiar with. The court were not as familiar with these matters as these men who were called; and under .this authority and other authorities that might be cited we think the testimony was competent. In a case to which I will refer later, 109 Ill., 237, expert testimony was admitted, as appears by tbe opinion in the case, upon this very question as to whether a track was a side-track or not. It does not appear that it was objected to, however, in that case.

Now as to whether this piece of track that it is proposed to build can properly be called a side-track or not. The railroad of the defendant surrounds the city of Toledo, or will, when it is finished, making a belt line of same twenty-eight or twenty-nine miles in length. Its purpose is to connect with all of the railroads entering the city of Toledo, said to be twenty or more in number, and to convey freight from one railroad to another in the city, and from, the railroads to manufactories 'and other establishments in the city, or from such establishments to the various railroads in the city. The track in question, as I have stated, is about, or will be, if finished, 5,500 feet long, and extends from the main line us now projected, to the Toledo Furnace Company, near the river. It does not run parallel with the main line of the road, but runs away from it and aside from it, its terminus being about 2,000 feet from tbe main line, and is to be used for tbe transportation -of freight from .and to the Toledo Furnace Company, and, as it is claimed by defendant, from and to other industries in that neighborhood. Such a track is known, as is said by some of tbe witnesses in railroad circles and railroad parlance, as an “industrial track,” and might be so called. Mr. Whittlesey and Mr. Buxton, the two witnesses called by tbe defendant, testified that in their judgment a side-track is any track, aside from the main track, with the exception possibly of a branch, which has more the character of. an independent railroad; that while there were different lands of side-trunks, spurs and switches, in their judgment, they are all covered by the generic term side-track.

Mr. Blair, a railroad mam, called by the relator in rebuttal on this question, testified that in his judgment an industrial track might be included, under the term side-track, as one land,of sidetrack; but in his judgment this particular track (he was permitted to answer a hypothetical question) was not a side-track. He, however, stated on cross-examination that an industrial track might be regarded as a kind of side-track. The definition given in the Century Dictionary, which was quoted by counsel for the relator, is more restricted than the definition given by the experts who were 'Called. That authority defines a side-track as follows:

“A short line of rails branching off by a switch from the main line of a railroad, and either returning to it or not at the further end, for use in turning off, shifting rolling stock, etc. Siding— # * * »

Then follows a definition of a siding. This definition is short, it will be observed, and rather limited. We think we have a right to consider the opinions of such experienced railroad men as were called here, in determining what is commonly known as a sidetrack in railroad circles. As was suggested by -one member of the court upon the trial, the lexicographer in dloinig his work had recourse, not only to books, but to the knowledge 'and experience of such men. We are of the opinion that this miay properly be called a side-track, and that it is a side-track, rather than a branch road, as comprehended and intended by Section 3280. It seems to us that it is to be used for the purposes that side-tracks are often and ordinarily used, for running along the side of the main road 'and for the purpose of gathering up freight and traffic for the main line 'and bringing it to the main line. It is not our purpose to give a general definition of the word side-track, but we think this track is within that term as used in the statute.

Is it then for a public rather than a private use? For, in order to entitle the railroad company to appropriate, it must be for a public use, whether a side-track or not. The doctrine of the various cases which we have examined seems to' be that if a track of this character may be used by the public generally, it is so regarded as for a public purpose, although it may, at the time of its construction, only be used by one 'Company or one individual, aside from the railroad eomp<any; that is to say, that the criterion to determine the fact is not whether only one person used the track at the time it is constructed, but if it is open to the use of the-public, and if it is for a common and public use by the railroad company in the management of its business, it may be s'aid then to be for a public, rather tiran for a private use. In the ease of Toledo & W. Ry. Co. v. Daniels, 16 Ohio St., 390, the Supreme Court makes some remarks, which perhaps have some pertinency here. The question in that case was, whether under Section 3281, Revised Statutes, a railroad company might condemn 'and appropriate for side-tracks, after it had condemned and appropriated for its main line, or whether it must all be done at the same time, the claim being made that the power existed to make only one appropriation. The court held there that it might be done afterwards, as needed. They say in the syllabus:

“Under the general corporation act of 1852 (S. & C., 275, Sections 21, 27, 28), a railroad company has power to condemn land for new side-tracks, leading from the main road to its depot buildings, whenever they become necessary in the proper management and operation- of the road.”

The court say in the opinion, on page 396:

“It is true that grants of this nature, being in derogation of private right, must -be strictly construed. If, therefore, there is reasonable ground of doubt as- to whether the Legislature intended to grant the continuing power claimed to be exercised here, the doubt should be resolved -against the company, and it must go back to the law-making power for a new grant — a grant of power to change, or add to its side-tracks, depots, water tanks, etc., etc., as the necessities of business require. Is there such reasonable ground of doubt? We think there is not. Talcing these provisions together, and construing them in the light of tire historical fact that a railroad — -that -is, a useful and valuable railroad — is not a stationary -tiring, but grows -with the growth of the country, it seems clear to us that the Legislature must have meant to grant the power claimed.
“The power to make ‘necessary side-tracks’ prima, facie, is the power to- make them when they are necessary. Otherwise it would be the power to make unnecessary side-tracks. Prima facie power to do any act, is power to do it in such manner and at such time as is usual, convenient, and reasonable — in such way 'as prudent men manage their own concerns. Tried by this rule, there can be no serious doubt of the meaning of Sections 21 and 27, by themselves considered. And we think that meaning is made plainer by Section 28, and the general provisions of the act.”

I call 'attention to this for the purpose of showing the view the Supreme Court took in this case, and their discussion here of the necessity of building side-tracks and making improvements of that kind as the road grows. As they say, a railroad is not a stationary thing, but with growth, side-tracks become necessary, and then if they are necessary for the successful carrying on of the railroad, they may be built under this section and land appropriated therefor.

The case of Toledo, S. & M. Ry. Co. v. Railway Co., 40 N. W. Rep., 436 (72 Mich., 206), is in point. On page 445 of the opinion the court say:

“The Object in constructing petitioner’s road is for the transportation of freight and passengers. A large and profitable portion of the freighting business, it appears from the record, can not be reached in the ordinary way of moving the same, except by the extension of their road to the points designated by the board of directors, and that the road -can not be operated unless it can secure the business of moving such freight; that for this purpose the construction of the branches designated is necessary. If that is true, it is difficult to see why the construction of the branches should not be regarded for public use, as well as the construction of the main line, which is not controverted. It would appear that the object of the petitioner is to acquire important facilities for the transaction of the legitimate traffic and business of its road now being constructed, when completed. It is evident that the business to be reaohed by the use of the branches, while it may enhance the profit of some individuals, and is largely for the gain of the company, it is equally certain that the use of the road for that purpose is of a public nature, and, like all the other business of the road, it is necessary to be reached in order to enable the company to operate its line of road. Indeed, the record shows that the construction of the branches and spur-tracks laid down upon the map is essential to any successful operation of petitioner’s road, and must be held for the public use. This is not the case of a company seeking the condemnation of property to reach some private business, not essential to the successful operation of its road, -and for private use, as ’claimed by counsel for respondents.- The public character and use of the branches 'are as well established as are those of any portion of petitioner’s road.”

Also, the case of Chicago, R. & N. Ry. Co. v. Porter, 46 N. W. Rep., 75 (43 Minn., 527). I will read a few lines from the opinion on-page 76:

“The'assignment of error that the condemnation is sought for a private, and not for a public use, is based on the fact that the switch track is to terminate at the Laird-Norton manufacturing establishments, and on defendant’s claim that it is intended for the sole accommodation of the business of those establishments. Though it seems from the evidence that, at present at least, those establishments may be benefited by the switch-track more than any one else of the public, because they have more freight to ship upon it, the claim that it is intended for their sole accommodation is hardly sustained (by the evidence. At any rate, so far as the question of public or private use depends on facts to be found from the evidence, the court below found them against the defendants, and that finding, as also the findings included in the order made, that the public interests require the construction of the switch track, and that the lands proposed to be taken are required and necessary for the purpose, are conclusive, if fairly sustained by the evidence. The switch track, as the evidence shows, is to he part of a system of track, all belonging to.the general enterprise of maintaining and operating a railroad for public use. The character of the use, in the ease of a railroad or railroad track, does not depend upon the amount of business, or the number of persons who may have occasion to use it, but on the right of the public to the benefit of it. If all the people have a right to the use of it, it is a public use ot interest, though the number who require its use may be small.”

The case of South Chicago Ry. Co. v. Dix, 109 Ill., 237, is in point. The court say in the syllabus, fourth paragraph:

“4. But it is no valid objection to the condemnation of a strip of land for a switch or a side-track of a railway corporation, that the proposed track may serve private use, if in addition to serving such use it is one also necessary for the successful and convenient operation of the main line of the railroad.
“6. To deny a petition of a railway company for the condemnation of land for a side-track, it should appear that the object thereby sought is clearly am abuse of power, and a taking of private property for an object not required for the convenient operation of the road.”

And the question is discussed by Mr. Chief Justice Sheldon in delivering the opinion of .the court. He says, on page 244:

“All that appears in the record upon the subject of the character of the track is the petition, plat and affidavits of Kerfoot and Jeffrey. As between the opposing opinions of the two latter whether the proposed track is a branch road or a side-track, that of the manager of the railroad is, we think, entitled to higher consideration than that of the real estate, agent-. To deny the petition, it should appear that what is Bought is clearly an abuse of power, and a taking of private property for an object not required for the convenient operation of the road.” (Citing many cases.)

I cite also 3 Elliott on Railroads, Section 960, and cases cited in the notes. The author says, on page 13’54: .

“The question as to what are the legitimate uses which a railroad may make of property in its public character has given rise to much litigation.”

In a note the author cites a case, Getz’s Appeal, 3 Am. & Eng. Ry. Cas., 186, where the court held:

“The right to condemn land for- the construction of sidings to private warehouses and manufacturing establishments is clearly within the constitutional power of the Legislature to confer upon railroad companies, because the public interest is thereby sub-served -by reason of the increased facilities afforded for developing the resources of the state and promoting the general wealth and prosperity of the community.”

So it seams that in determining whether the use is- a public or a private one, we are to consider the use that the public may make of the track and the use that the track is to the main lines of the railroad itself. As it is said by the Supreme Court of Minnesota in Chicago, B. & N. Ry. Co. v. Porter, supra, p. 76:

“The switch track, as the- evidence shows, is to be a part of a system of track, all belonging to the general enterprise of maintaining and operating a railroad for public use. The character of the use, in the ease of a railroad or railroad track, does not depend on the amount of business, or the number of persons who may have occasion to use it, but .on the right of the public to the benefit of it. If all the people have a right to the use of it, it is a public use or interest, though the number who require its use may be small.”

Now it appears, as has been said, that this railroad is a belt line, encircling the city of Toledo, for the purpose of carrying freight from one railroad to another and from the various establishments of -the city to the different- railroads, and from them to those establishments. The terminal company would be unable to carry on these enterprises or use the main Ene of the railroad to its fullest advantage, unless they were permitted to build side-tracks from the main line for the purpose of reaching the various industries of the city, to bring them the traffic that might come to the city by the various railroad's consigned to them, and take from these various establishments their products to tire various railroads that enter the city, for the purpose of shipping it out of the city. These are the chief purposes of this railroad. While the right to condemn and appropriate is to be strictly construed, still the courts ought not to take such a narrow view of the question as to interfere with the fair and just operation of a railroad, or to interfere with the reasonable construction of such tracks adjacent to it, as may be necessary for the carrying on in a proper manner for itself 'and for the public, the business of the railroad.

The evidence shows that this track, while perhaps it may not be used at first by any one except the Toledo Furnace Company, is open to the public to use 'and; will be open; that no one will be restricted; that it will be open to any manufacturing establishment or industry that may be hereafter located alongside of it; that it is the intention of the company to extend the track by tire uise of other tracks beyond its present terminus of the Craig shipyard and to the docks and wharves along the river. The evidence shows that the output, or rather the business of the Toledo Furnace Company will probably be some fifty carloads a dlay in and out, so -it is a very extensive establishment, and its business will add much to the business of tire railroad.

We are of the opinion that it can not be said that this track, when constructed, will be for a private use; but we think that it may properly be said that it will be for a public use. It is not reasonable to suppose that the company will, and there is no reason shown why they should, exclude any one from tire use of this track. Tiie railroad company is building it for the purpose of adding to its business, the more it is used, the more freight is shipped over it to the main road; the more manufacturing industries or individuals use this track, the more the business of the railroad will be increased.

We think, therefore, that the railroad company has the right to condemn and appropriate property for this track; that they have the right to exercise the power of eminent domain for this purpose; and being of this opinion, the question as to whether the railroad company would have the right to appropriate for a branch road becomes unimportant, as we hold that this is a side-track and not a branch.

We are of the opinion, however, that the defendant had the right to set up this additional defense, which was set up in its supplemental answer, to-wit, that it had taken steps necessary under the statute to construct a branch road, so that if the court should be of the opinion that this was not a side-track, but was a branch, that they would be able to show -their authority under the law for constructing a branch road.

We will say, also, that it is our judgment that a railroad company, if the proper steps are'taken, as is shown in this ease, may condemn and appropriate for a branch road. Section 3280, Revised Statutes, provides that:

“A company may construct branches from the main line to towns or places within the limits of 'any county through or into which its road passes, or to a -connection -with any railroad which is or may be built within this state, or to any coal o-r other mine, stone quarry, plastic clay, pottery clay -and fire clay pits or banks, ore or shale banks, if, 'at a meeting of the stockholders called for that purpose, the. holders of a majority of the capital stock of the company, -by a vote, in person or by pro-xy so determine; and upon such determination the president and directors shall make and acknowledge a certificate setting forth the facts and file the same with the secretary of state.”

In our judgment, after the steps required by the statute are taken and this power has been conferred upon the board of directors by the stockholders, the company then has the same power to construct a branch road that it had to construct its main line. By these proceedings it is given this additional power, and with it goes the right of eminent domain and the branch then becomes a part of its rai-lroad within -the provisions of this section and the following Section 3281, i-n which last section it is provided that they “may appropriate so much -thereof as may be deemed necessary for its railroad, including the necessary side-tracks-, etc.” And the action -of the court in overruling the demurrer to the supplemental answer will be adhered to.

B. A. Hayes, for relator.

King & Tracy, General Hamilton and Clarence Brown, for defendant.

We, however, are of the opinion that this track is not a branch track coming within the provisions of Section 3280, Revised Statute, but that it is a side-track within Section 3281, Revised Statutes. And being of the opinion that it is for a public purpose and not for a private use, the petition of the relator must be dismissed; at his costs.


text:
    COMPETITION IN THE SUPPLY OF GAS TO A MUNICIPALITY.
    [Circuit Court of Pickaway County.]
    Circleville Light & Power Co. v. Buckeye Gas Co. et al.
    Decided, November 27, 1902.

      Competition — Not a Legal Injury — And Injunction Will Not Lie to Prevent It — Rights of Gas Companies Operating Under Valid and Invalid Franchises — Submission of Question of Franchise to Voters — Section 3551.
    Assuming that by authority of an invalid ordinance, a natural gas company has entered a municipality, and thereby comes into competition with the gas light and power company previously serving the municipality and its citizens, a suit by the latter company to enjoin the former from further operations will not lie, for the reason that no legal injury to said company can result from such competition; and this is true, notwithstanding if the contention as to the invalidity of the ordinance is well founded, the new company may be ousted from the city by a proper action brought in that behalf.
    Sibley, J. (orally); Cherrington, J., and Jones, J., concur.
   This case comes into this court by appeal and has been submitted to us on a general demurrer to the petition, and also upon the proofs. However, it may be said in the beginning, that the only effect of the evidence is to modify certain averments of -the petition, in favor of the defendants, rather than to strengthen the case of the plaintiff. We first then, consider the issue made by the demurrer.

The petition seis out that the plaintiff is a Corporation duly incorporated and organized under the laws of this state, for the purpose, among other things, of manufacturing gas for light, heat and power and for the producing of electricity for light, heat anid power, and for the supplying of electricity and gas for power purposes, and for lighting the streets and public and private buildings of the city 'of Circleville. It then goes on to show that by steps duly taken, through the action of the city council, by ordinance and otherwise, the plaintiff has been invested with the legal right to furnish gas, electric light, power, etc., in accordance with the franchise with which its charter invests it, and has succeeded to 'the rights of an earlier company, whose property it bought, and thereby became the successor of and succeeded'to'all its franchises and privileges, in furnishing gas or light and power to the public and to the citizens of this town. Then it alleges that the defendant, 'the Buckeye Gas Company, in 1894 was duly organized as a corporation for the purpose, among other things, of drilling for, producing, refining and vending natural gas and cradle petroleum, laying and maintaining pipe lines for the transportation, distribution and sale of natural gas, crude and refined petroleum, and all its products, and the construction and operation of electric street railways. It further avers that on or about March 20, 1895, an ordinance was passed by the council of this city, which, without giving its provisions in detail, was, in general, an ordinance authorizing 'the defendant to come into this city and lay pipes and furnish natural gas to the city and to its inhabitants. The ordinance is not set out in full, but there is a specification of its provisions, showing in substance what I have already stated. The ordinance also was to go into effect from and after its passage and publication, according to law.

Two contentions are made about this ordinance which we have not deemed it necessary to decide in the view we take of the case. The first is, that it embodies two distinct subjects, so as to render it void under the provisions of the revised statutes, by which ordinances of city councils are confined to a single subject.

Without exhaustively examining that, question, we are inclined to think that the contention of the plaintiff here is not well made.

The other point is, that the defendant is not here rightfully, in consequence of there being no submission of this ordinance under Section 3551, Revised Statutes (no submission of the question of authorizing its operation here), to the qualified voters of the city. We have not gone into that sufficiently to express an opinion, and pass it by for the purpose of this demurrer, assuming that the contention of the plaintiff is well made — that while this has the form of a legal ordinance giving the right in the premises which the defendant, the Buckeye Gas Company, is alleged to be asserting, it is invalid, and a proceeding might be instituted by the proper party to oust that company of the franchise which it is said to be exercising under the ordinance. But we do not regard this as by any means decisive of the case.

The petition also says that the plaintiff is the only person or corporation having legal right and authority to furnish gas and electric light to said city and its inhabitants for illuminating purposes, yet the defendant, the Buckeye Gas Company, has recently begun to furnish natural gas to them for illuminating purposes, and is still wrongfully and without authority, and in disregard of the rights of plaintiff so furnishing and supplying natural gas to said city and its inhabitants for such ¡mooses; that it has advised, and is still wrongfully advising and inducing said city and its inhabitants and the consumers of gas in the city to use its natural gas for illuminating purposes, contrary to law.

The plaintiff further says that S. A. Wheeler is the vice-president and general manager of the Buckeye Gas Company, and that Albert •J. Grigsby is the secretary and agent of said the Buckeye Gas Company,- and that Simon Yoll is a consumer in said city of the gas of said the Buckeye Gas Company, for light; that said S. A. Wheeler and Albert J. Grigsby, for and on behalf of said defendant, the Buckeye Gas Company, have wrongfully conspired, connived and combined with said Simon Yoll, a consumer as aforesaid, and have been and are unlawfully conspiring, conniving and combining with -other -consumers of gas in said cit]r, and with applicants for gas, to use to light their dwelling houses, offices, etc., in said city, to furnish and supply natural gas to be used to light the respective dwellings, offices, etc., of said consumers and applicants for gas, by advising and inducing said consumers of its gas and applicants for its gas to contract for and to engage to take its gas and to disconnect the gas pipes in -their said dwellings, offices, etc., from the meters of this plaintiff, amid) the pipes theretofore used for carrying and furnishing gas of the plaintiff for light,' and to connect said pipes with those carrying the gas of said defendant, the Buckeye Gas Company, to light 'their respective dwellings, offices, etc., whereby the said plaintiff has suffered and will further suffer, great damage, and sustain great loss and irreparable injury.

The relief sought is by injunction, pending the action, and on the final hearing, am order that will permanently enjoin the defendant, the Buckeye Gas 'Company, from furnishing gas to anyone in the city for illuminating purposes.

The probability is that the alleged invalid ordinance, in legal effect will be regarded as granting only the right to furnish gas for fuel purposes, but assuming that to be true, and that the ordinance is invalid, on the ground of submission under Section 3551, that 'thereby tbe franchises with which it purports to invest the defendant company never have been legally conferred, stall we harve the fact, shown by the petition, that it is permissably here under that form of authority and sanction -of the public.

Now then, in that view of the ease, the allegations which I have read as to conspiracy, etc., amount simply to this: That the plaintiff is invested by ordinance 'and law with a right, yet not an exclusive right; to furnish light, etc. 'Councils of cities and villages in this state are not invested with authority to grant an exclusive franchise to furnish gas or light therein. The plaintiff, therefore, has a right simply to come in and dx> such business. Hence, there could be no contention whatever, that the plaintiff was injured if the defendant’s franchise -by procedure, admittedly valid, had been conferred upon it. The fact that the newcomer is a competitor would not entitle the plaintiff to any relief as against it or the city. In other words, both would in that case come in, like other branches of business, seeking fqr custom, each to do the best it could. *

As we see it then, the real question here is, whether or not, stating the case as I have done, one -of clear right upon the part of the plaintiff to do its work, and one wherein the defendant may be regarded as not legally invested with the franchise to do the same thing, yet is permitted by the city to do so, under tbe form of an authority which it has granted, whether this violates any legal right of tire plaintiff. The allegation in substance is that the defendant company is using its influence), through its agents and others, to induce people to buy gas from it rather than from the plaintiff. Well, if it does so, what legal right of the plaintiff is violated by that act ? The assumption has been in argument, that if the ordinance under which it acted was invalid, then its acts aTe unlawful. Conceding that they are, as against the right of the city, how are they a violation of the rights of the plaintiff? The business in itself is as lawful for one as the other. Both are legally organized companies, each possessed of the franchise to do business, wherever they can get permission therefor within corporate limits or find customers. Whether the council has acted advis'edly or not in permitting the defendant to enter the city, the fact- is, it is here, hy and with the formal consent of the city authorities, and the only substantial allegation of the petition as to the company’s wrongdoing, in effect is, that it has made itself a competitor of the plaintiff in endeavoring to sell its product to the public, and to those who have been customers of the plaintiff. Now if this he so, how can it be said that in legal sense the rights of the plaintiff have thereby been invaded? True, it m'ay result in rendering its business less profitable, but until the plaintiff can say it has the exclusive right to sell gas here, in our judgment it fails to show any legal injury. As to it, the Buckeye Gas Company’s alleged acts are damnum absque injuria. However it may he in respéot to tlie -city, unless it possesses exclusive authority to- furnish gas here no legal right of the plaintiff -appears- to- be infringed. Here we think is the key to a decision of this case. The petition fails to set out a cause of -action, ■ for the reason that it shows no legal injury -to the rights of the plaintiff by the defendant company, hut Only facts on which, if its entire contention is well founded, the latter might he ousted from this city, hy a proper action therefor, hut that the plaintiff can not make that question in this suit, we think is clear.

Now a word as to the case upon the evidence. This modifies certain averments of the petition. It shows that although the defendant company has made contracts for the sale of gas for fuel purposes, yet there -has been no conspiracy of the sort alleged. After gas came into the possession of the purchaser, having passed through the meter of the Buckeye Gas Company, in some instances consumers diverted it into another channel, for illuminating purposes, and the defendant had knowledge -of this. That the evidence shows-, and is the full -extent of the case in this feature, when we take it upon the proofs. Hence, I repeat, it modifies some allegations of the petition, which, however, in legal effect, asserts nothing more than that the defendant has become a competing party under what is alleged to be an unauthorized permission to enter the city for the purpose of furnishing and selling gas here. So that whether we look at the case on the record, as made by the petition and demurrer, or upon that as- shown by the evidence, the same conclusion is reached.

Onr opinion, therefore, is, that this is a case where the plaintiff can not affect the right of the defendant company to be and do business here, unless through some action by the city authorities to oust it, or possibly it being a taxpayer within the city, under Sections 1777 and 1778, Revised Statutes, by first invoking action of the eiiy solicitor, and -on his failure bo act, to proceed in its own behalf.

The remedy by injunction then, which is the sole relief sought here, can not be given, as we think, on the facts stated in the petition or shown by the evidence.

If no wish is expressed to 'amend 'the petition therefor, a judgment will be entered upon the demurrer, which we hold is well taken, and so must be sustained.