author: SHIELDS, J.

text:
    NEGLIGENCE
    [Licking (5th) Court of Appeals,
    October Term, 1918.]
    Powell, Houck and Shields, JJ.

      George R. Taylor, Admr. v. Ohio Electric Ry.
    1. Doctrine of Last Chance Not Available to Reward Rash or Wanton Negligence.
    While the “doctrine of last chance” affords a right of action in damages to an injured person whose negligence was not heedless or wilful, if the defendant after discovering, or by the exercise of ordinary care could have discovered, the danger of • the person primarily negligent and fails to use proper care to avert accident, yet the rule is not intended to place a premium upon a person’s own wanton or rash act or to cast responsibility upon another therefor.
    2. Doctrine of Last Chance Not Applicable to Action for Wrongful Death of Deceased Negligently Crossing Tracks before Rapidly Moving Car.
    The doctrine of last chance does not apply in an action for damages for death by wrongful act of a woman who, while hastily and heedlessly crossing the track of a traction company on its own private right of way at a signal stop, having a full and unobstructed view of the track each way and while it was still daylight, is killed by a rapidly approaching car on which she was attempting to become a passenger, especially since it appears from the evidence that the motorman, standing in his position and keeping a proper lookout, first saw deceased coming on the right of way when the car was not more than 250 feet from the crossing, that he then blew the whistle, shut off the power and reversed the motor.
    [Syllabus approved by the court.]

      Kibler & Kibler, for plaintiff in error.

      Fitzgibbon, Montgomery & Bloch, for defendant in error.

       Motion to certify overruled by Supreme Court, February 11, 1918, Taylor v. Ohio Elec. Ry., 64 Bull. 68.

   SHIELDS, J.

In this proceeding it is sought to reverse the judgment of the court of common pleas because of certain alleged errors occuring upon the trial of said action in said court, as appears in a petition in error filed in this court for such reversal.

In said action a recovery in damages was sought by the plaintiff in error as plaintiff against the defendant in error as defendant for the death of Martha B. Taylor on May 25, 1915, caused by the alleged negligence of the defendant in error, the facts and circumstances of which are referred to in this opinion.

The defendant by answer admitted that the said decedent was struck by one of its cars and instantly killed at the time and place mentioned, but it denied the negligence charged and averred contributory negligence, which was denied by the plaintiff in his reply.

A verdict and judgment were recovered by the defendant company below.

While the petition in error alleges some thirteen separate grounds of error, three grounds only were argued to this court, namely:

1. The refusal of the court below to charge the jury^ before argument as requested by the plaintiff below.

2. Error in said court’s charge to the jury.

3. That the verdict was manifestly against the weight of the evidence.

It appears that the decedent who before and up to the day of her death, resided in Newark, Ohio, had left her home on said day to visit at the home of one John Fullerton, near Hebron, in said county, where a friend of hers had just died, and where other friends of the deceased friend were also gathered. The Fullerton home was located near the defendant company’s line of road, perhaps some thirty or forty feet from its tracks, where there was a signal stop known as “The Oak Stop,” and where persons at the Fullerton home boarding the defendant company’s cars, going north, were obliged to cross the two tracks of said company at a distance of some fifty feet from said home. The customary signal to the passing cars to stop for passengers awaiting passage was given by the waving or throwing up of the hands or other like means. On the day in question it appears that the decedent desired to return to her home in the early evening of said day and being informed that a car was approaching, which could be seen at a considerable distance on a straight track from the Fullerton home, she hurriedly arose from the table where she was eating and signaling the car with her hands, and perhaps a handkerchief, with an accompanying friend while in the yard of the Fullerton home, she hastened to cross the defendant company’s tracks in plain sight of and within a short distance of a rapidly approaching ear to reach the opposite side to board the same, and in the attempt to do so she was struck and killed by one of the defendant’s cars, which was then running at the rate of thirty-five to forty miles per hour. As in other like cases, so the eye witnesses to the tragic end of the decedent in this case differ in some of the particulars of the accident, some testifying that the decedent was warned against the danger of crossing the tracks at that time in the face of the fast approaching car, which could readily be seen before she attempted to cross, and that she was running across the tracks when struck, when the car was about two hundred feet distant from her, while others testify to a different state of facts. Upon an examination of the testimony given upon the trial oii this branch of the case, if we were sitting as a jury to judge of the effect of this testimony, we would feel compelled to find that death resulted from a mistaken judgment based upon a miscalculation of the speed of the ear, a conclusion reached by the jury, perhaps, as evidenced by their verdict. In this connection it might be remarked that it is a matter of common knowledge, emphasized by the daily record of accidents happening upon railroads and from the operation of automobiles upon the public highways, that many such accidents are due to a misconception of the extent of space traveled by such vehicles in an incredibly short period of time, and as a result accidents follow. Here it is admitted that the car in question was traveling at the rate of from thirty-five to forty miles per hour, hence it is apparent that a person about to cross the tracks of said company to take passage on the car from the opposite side would be required to so cross at a considerable distance in advance of such approaching car, to cross safely and to avoid accident. But contributory negligence, when the evidence is conflicting, is a question of fact for the jury, and leaving this feature of the case, counsel for plaintiff in error argued that although the decedent may have been primarily negligent, the petition presents a case on which the plaintiff in error claims he was entitled to have certain propositions of law submitted to the jury before argument which the court refused to give. Here the issue of what is known as the “last chance” is claimed to be raised by the averments in plaintiff’s third amended petition and, as claimed, was supported by the evidence, and it is urged that the court below erred in refusing to give to the jury in charge several requests containing certain propositions of law submitted on behalf of the plaintiff in error before argument in relation to such issue. In Drown v. Northern Ohio Trac. Co., 76 Ohio St. 234, 248 [81 N. E. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. 844], the judge announcing the opinion in that case, among other things, says:

“It is clear, then, that the ‘last chance’ rule should not be given as a hit or miss rule in every case including negligence. It should be given with discrimination. ’ ’

The doctrine of “last chance” in the evolution of modern jurisprudence as defined by modern text writers and interpreted by courts seems to extend the long recognized rule as to the effect of combined contributory and concurrent negligence, and affords a right of action in damages to the injured person, although primarily negligent, if the defendant after discovering, or by the exercise of ordinary care could have discovered, the danger of such person and fails to use such care to avoid injuring such person. This view contemplates that the act of negligence of the injured party was not heedless or wilful, for certain it is that the law does not place a premium upon one’s own wanton or rash act and cast upon another the responsibility of such act, but while such negligence creates the condition of danger, the law permits a recovery in damages for the subsequent negligence of a defendant causing such injury after becoming aware, or in the exercise of ordinary care could have become aware, of such danger.

Of the eight requests submitted on behalf of the plaintiff in error to be given in charge to the jury before argument, Nos. 4, 5, 7 and 8 were so given and Nos. 1, 2, 3 and 6 were refused.

Request No. 1 was as follows:

“The court charges you that the plaintiff can recover in this case, notwithstanding the decedent may have been guilty of negligence in crossing in front of the moving car if the motorman after he became aware, or ought to have become aware of her position, failed to use ordinary care to avoid injuring her. ’ ’

In their brief, counsel for plaintiff in error cite as authority for such instruction:

Cincinnati, H. & D. Ry. v. Kassen, 49 Ohio St. 230 [31 N. E. 282; 16 L. R. A. 674]; Erie Ry. v. McCormick, 69 Ohio St. 45 [68 N. E. 571]; Drown v. Northern Ohio Trac. Co., 76 Ohio St. 234 [81 N. E. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. 844]; Steubenville & W. Trac. Co. v. Brandon, 87 Ohio St. 187 [100 N. E. 325]; West v. Gillette, 95 Ohio St. 305 [116 N. E. 521],

In Cincinnati, H. & D. Ry. v. Kassen, cited, the court in that case announced the rule that:

“It is a well settled rule of law of negligence, that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of the inquiry of which he complains, if the defendant, after he became aware, or-ought to have become aware, of the plaintiff’s danger, failed to use ordinary care to avoid injuring him, and he was thereby injured.’’

In the case of Erie Ry. v. McCormick, cited, the court laid down the following rule :

“In an action against a railroad company by one who, by his own fault is upon its track and in a place of danger, to recover for a personal injury caused by the failure of its employes operating one of its trains to exercise due care after knowledge of his peril, it is necessary to show actual knowledge imputable to the company.’’ Cincinnati, H. & D. Ry. v. Kassen, supra, distinguished.

In Drown v. Northern Ohio Trac. Co. cited, it was held that:

“The doctrine of ‘last chance’ as formulated in Railroad Co. v. Kassen, 49 Ohio St. 230, paragraph one of syllabus, does not apply where the plaintiff has been negligent, and his negligence continues, and, concurrently with the negligence of defendant, directly contributes to produce the injury; it applies only where there is negligence of the defendant subsequent to, and not contemporaneous with, negligence by the plaintiff so that the negligence of defendant is clearly the proximate cause of the injury and that of the plaintiff the remote cause.”

In Steubenville & W. Trac. Co. v. Brandon, cited, the third paragraph of syllabus reads as follows:

“Where the motorman of a street car being operated on a public street in a much frequented part of a city, discovers, or by the exercise of ordinary care and watchfulness should discover, that the driver of a smaller vehicle is about to cross the track at a street crossing, in front of such car, it is the motorman’s duty to use ordinary vigilance to stop or check the car in order to avoid collision; and the fact that such driver may have omitted to look for the approach of the car will not, as matter of law, defeat his right to recover for injury from a collision with such car if the motorman has not used such vigilance. ’ ’

In West v. Gillette, the court held that:

“Where a collision occurs and such driver is injured and the undisputed evidence shows that the motorman actually saw such vehicle and had it continually in view for a considerable distance from the crossing, it is for the jury to determine whether he exercised such vigilance and care in the circumstances; and the fact that the driver may have been originally negligent in the manner of going on the crossing will not, as matter of law, defeat his right to recover for the injury, if the motorman has not used such vigilance after discovering him. ’ ’

Of course the rule of law announced in each of the foregoing cases was intended to apply to the particular facts in such cases. While the last three cases were crossing cases, the facts in each ease were essentially different. Without taking time to discuss the history of these cases or the principles of law laid down therein, we are not persuaded that the Supreme Court of this state has as yet announced the doctrine contended for by the plaintiff in error and as embraced in said request No. 1. As we read them, the last three cases cited do not bear out the construction contended for, certainly not in the last case, for there the motorman in charge of the car actually saw the horse and buggy several hundred feet before the impact at the crossing, which fact eliminated from that case the question of vigilance enjoined by the law upon a railroad company with a view to discover persons exposed to danger at a highway crossing. Nowhere in the eases cited do we find that the court has held it to be an inexorable rule and as a matter' of absolute duty that a motorman shall be held to accountability under any and all circumstances for failing to discover that which in the exercise of ordinary care he did not and could not discover, or as stated in said request ‘ ‘ or ought to have become aware of. ’ ’ True' this language was used in the Kassen case referred to, but Judge Shauek in announcing the opinion in the McCormick case in reviewing the Kassen case on page 54, says:

“The phrase ‘ought to have been aware’ manifestly applies to those in charge of the following train, and implies the duty of the company to communicate to them its actual knowledge of Kassen’s danger. * * * It is entirely clear, therefore, that the liability of the company was placed upon the sole ground that after receiving actual notice that Kassen was upon the track and in a position of peril, it failed to use the means at hand to avoid injury to him. The doctrine of the ease can have no application when neither the company nor its employes operating the train by which the injury is inflicted may be charged with actual knowledge. The rule of liability applies only when there is actual knowledge of those operating the train inflicting the injury, which knowledge is imputed to the company derived through other means, with opportunity to communicate it to those operating the train. By introducing into the instruction given the phrase, ‘if the engineer in charge of the train ought, by the exercise of ordinary care, to have seen the deceased in his perilous position,’ and by other expressions in the charge involving the same conception, the court gave to the jury an erroneous view of the law. ’ ’

It appears that the foregoing opinion was concurred in by Judge Spear who announced the opinion in the case of Steubenville & W. Trac. Co. v. Brandon, and by Judge Davis who announced the opinion in the case of Drown v. Northern Ohio Trac. Co. referred to.

In the opinions announced in both the Drown v. Northern Ohio Trac. Co. and West v. Gillette, cases, the following text from 2 Thompson, Negligence, Sec. 162.9, was cited with approval :

“Although a person comes upon the track negligently, yet if. the servants of the railway company, after they see his danger. can avoid injuring him, they are bound to do so. And, according to the better view with reference to injuries to travelers at highway crossings, — as distinguished from injuries to trespassers and bare licensees upon railway tracks at places where they have no legal right to be, — the servants of the railway company are bound to keep a vigilant lookout in front of advancing engines or trains, to the end of discovering persons exposed to danger on highway crossings; and the railway company will be liable for running over them if, by maintaining such a lookout and by using reasonable care and exertion to cheek or stop its train, it could avoid injury to them. ’ ’

As here stated, “the servants of the railway company are bound to keep a vigilant lookout,” but where such vigilance has been exercised by the motorman consistent with his paramount duty owing to passengers in his charge as held in the New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326-337 [64 N. E. 130], has not the duty imposed by the law upon him been discharged! Opportunity to know may not be knowledge. Without pursuing this subject further we think that the epitome of the law on this subject is correctly and concretely stated in Thompson, Negligence, referred to, which was approved by Judge Johnson in the case of West v. Gillette, supra, as being “well founded in reason and authority.”

As each case rests upon its own facts, let us inquire what the facts were on this branch of the case as shown by the record in the case at bar. As stated, “Oak Stop” was a signal stop in the open country where the defendant company’s cars stopped on signal. While the failure of the motorman to give a signal or to reduce the speed of the ear at said signal stop are alleged in the plaintiff’s said amended petition as contributing causes to said decedent’s death, the failure of the motorman to discover the presence of the decedent at or about said stop was specially urged in argument as the proximate cause of said death. Passing the circumstances under which the decedent undertook to cross the tracks from the Fullerton home, to which we have already referred, it appears that in running from Buckeye Lake to Oak stop the car was running at the rapid rate mentioned and commencing on page 320 of the record it appears that C. T. Hayden, the motorman in charge of said car, testified in direct examination, in substance, that the car left Buckeye Lake on regular schedule time and was running' on time when passing Oak stop; there was a misty rain on and the railroad tracks were slippery and not the best'; that it commenced to rain before the car left Buckeye Lake; that the accident occurred in the early part of the evening of the day mentioned; that he first saw Mrs. Taylor when the car was 150 to 250 feet from the crossing, coming through the little gate by the crossing, when he blew the whistle, shut off the power and reversed the car; that he did not see Mrs. Taylor struck; that he is not now employed by the Ohio Electric Co. On cross examination he continued: that the accident happened just at dusk, it wasn’t dark; that he was standing in the center of the vestibule of the car, or sitting in the center, rather, on a stool; that there was no one in the vestibule with him; "W. H. Smith was our conductor; that he did not talk with said Smith or anyone from the time the car crossed the trestle to where Mrs. Taylor was struck; that he didn’t see anyone at Oak stop who wanted to get on, nor did he see anyone waving or giving any signal; that he was in his proper place when the car approached Oak stop and he kept a proper lookout; that when he saw Mrs. Taylor she was running tbward the car when he shut off the power and reversed the motor; that the only obstruction to his view of the track at any time after crossing the trestle before passing Oak stop was a misty rain on the windows, which were not open, nor could any of the windows in the vestibule be opened; that he did not see a handkerchief in Mrs. Taylor’s hand.

During the trial one Leonard Hoskinson, a witness for the plaintiff, testified that he was sitting in a certain seat in the car where he could see and did see the motorman and conductor talking together in the front vestibule of the car at some little distance from the scene, and immediately before the time of the accident, and that the motorman looked behind him at times during such talk, as tending to show that he was not engaged in keeping a vigilant lookout in front of the car, but other witnesses in addition to the motorman and conductor testified that the said Hoskinson did not occupy the seat in said car as claimed by him and that the motorman and conductor were not so engaged in conversation at said time, whose testimony appears to have been believed and accepted by the jury as the true and correct statement of this disputed fact.

Request No. 2 reads as follows:

‘ ‘ The court charges you that if the motorman saw Mrs. Taylor upon the company’s right of way or could, by the exercise of ordinary care, have seen Mrs. Taylor in said position in time to have slackened his speed or stopped his car and avoid the injury, then your verdict should be for the plaintiff. ’ ’

This request is open to the objection that it extends the range of vision of the motorman to the company’s right of way. It was said in argument, and not disputed, that said company’s right of way at this point was over forty feet. The presence of one on such right of way, if seen, would rather repel than raise the presumption that such person would go upon the company’s tracks in the face of a rapidly approaching car at high speed. As was said by Judge Burket in announcing the opinion of New York, C. & St. L. Ry. v. Kistler, supra:

“It is the duty of an engineer on a train to keep a lookout on the track ahead of him, and he is not expected to see anything on the sides of the right of way farther than his eye may take in objects within the range of vision while looking ahead along the track,” citing Cleveland, C. & C. Ry. v. Elliott, 4 Ohio St. 474, 476 and other authorities.”

The principle here announced, applicable to an engineer on a locomotive, is alike applicable to a motorman operating an interurban car. The request as a proposition entire was too broad in its statement and was therefore properly refused.

Request No. 3 was properly refused for the same reason as was request No. 2.

Requests Nos. 4 and 5 were given as requested.

Request No. 6 was properly refused for the same reason as request No. 1.

■ It was also urged that the court below erred in its general charge to the jury and our attention, was specially called to what are claimed to be inconsistent instructions on-the subject of contributory negligence and to the speed of interurban cars in the open country. After giving request No. 5 on behalf of the plaintiff in error as appears on page 362 of the record, it was contended that the court afterward gave another and a contrary instruction on behalf of the defendant in error as the same appears on page 364, and which is as follows:

“If you find that the decedent, Martha Taylor, was negligent, and that the defendant was negligent and that the negligence of both was contemporaneous and continuing until after the injury and that the negligence of each was a direct cause of the injury without which it would not have occurred, the plaintiff may not recover and your verdict should be for the defendant. ’ ’

The charge proceeded upon the theory that the petition and evidence presented a ease involving the issue of the “last chance. ’ ’ The reasoning adopted by Judge Davis in announcing the opinion in the ease of Drown v. Northern Ohio Trac. Co. supra, that “If the plaintiff and the defendant both be negligent and the negligence of both be concurrent and directly contributing to produce the accident, then the case is one of contributory negligence pure and simple. But if the plaintiff’s negligence merely put him in the place of danger and stopped there, not actively continuing until the moment of the accident, and the defendant either knew of his danger, or by the exercise of such diligence as the law imposes on him would have known it, then, if the plaintiff’s negligence did not concurrently combine with defendant’s negligence to produce the injury, the defendant’s negligence is the proximate cause of the injury and that of the plaintiff is a remote cause,” seems to have been followed in framing said request so far as it applied to the question of contributory negligence. So far as it goes, we see nothing wrong in this instruction, but it is objected to because it does not include the qualification of the “last chance” rule, which nullifies the defense of contributory negligence, in a proper case. True this might have been given under the issue raised by the pleadings in the case, as claimed by the plaintiff in error, but it was a request submitted by the defendant in error, and yet the court in its general charge instructed the jury in accordance with the instruction given in said request No. 5 submitted by the plaintiff in error. To constitute ground of reversal where inconsistent charges have been given they must be to a material matter and prejudicial. Here it cannot be said that the subject matter of the instruction was not material, but was it misleading and prejudicial in view of the instruction, given in said request No. 5 and the same instruction in substance repeated in the general charge ? We do not think it was, but even assuming that it was, we think that the verdict and judgment below was right and that said judgment ought not to be disturbed on this account. Way & Co. v. Langley, 15 Ohio St. 392; Banning v. Banning, 12 Ohio St. 437.

It was objected also that the following instruction as the same appears on page 365 in the record, given on behalf of the defendant in error, was inconsistent with -request No. 4, given on behalf of the plaintiff in error on page 364:

“It is not negligence for the defendant to run its car on its own right of way in the open country at a high rate of speed.”

It is contended that this instruction is contrary to a holding made by the Supreme Court in the Kistler Case referred to. The instruction contained in said request appears to be general and as such it appears to be in harmony with the proposition laid down in the syllabus of said case. A different rule would apply in a case where the motorman of a car discovered, or in the exercise of ordinary care in keeping a proper lookout could discover, a person at a public crossing or at a customary stopping place. We fail to find any ground of reversible error in this respect.

It was also argued that the verdict of the jury, was against the manifest weight of the evidence. Because of the loss of a life, we have been led to carefully read and examine this record, not in the hope of finding error against the defendant in error that would authorize us as a court to set aside the verdict, but to ascertain whether or not the decedent’s legal representative had a fair trial under the forms of law provided in such cases. Accidents by violent death usually evoke sympathy, and such undoubtedly was the natural feeling shared by the jury under a recital of this tragic occurrence, but sympathy has no place in the administration of the law, and under the evidence pre•sented in this case, under the instructions of the court, we are' of the unanimous opinion that the verdict of the jury was a proper and just one. As we read this record, the decedent, with a full and unobstructed view of an approaching car running at a high rate of speed, attempted to hastily cross the tracks of the defendant in error at an unsafe and dangerous distance from said ear, and not being discovered by the motorman in time to check its speed to protect her from injury, she was struck and killed by said car. Unsympathetic and uncharitable though it may seem, the law affords no reparation in such cases. Judgment affirmed.

Powell and Houck, .JJ., concur.


source: Caselaw Access Project

author: LAWRENCE, J.

license: Public Domain

text:
    ASSESSMENTS — INJUNCTION
    [Summit (8th) Court of Appeals,
    November 12, 1918.]
    Grant, Lawrence and Dunlap, J\J.
    Augusta W. Kasch v. Akron (City) et al.
    Injunction Against Collection of Assessments for Public Improvement Denied After Acceptance by Proper Authorities.
    When an officer or board, designated in a municipal contract as the one to determine whether the terms thereof have been complied with and the work done in an acceptable manner, has reported that the work has been completed in a satisfactory manner and it is accepted and the final estimate paid, an action cannot be thereafter maintained, in the absence of fraud or mistake, by an abutting owner to enjoin collection of assessments remaining unpaid and thereby save such owner and others from further payments toward an improvement which has been declared to be good and substantial.
    Appeal.
   LAWRENCE, J.

This is an action to contest the validity of an assessment levied by the defendant city for the improvement of West Exchange street and Dodge avenue by grading, curbing, paving and constructing sidewalks.

The plaintiff brings the action for herself and other interested owners of property abutting on said street and avenue.

The relief sought is- asked upon the sole ground that the work and material for the concrete sidewalk, curb and gutters were not supplied in accordance with the contract therefor, the allegations of plaintiff’s petition in that regard being as follows:

“That plaintiff avers for herself and all other abutting lot owners on said portions of said avenue and street interested in like manner with, herself that in the construction of the said concrete sidewalks, gutters and curbing, the said contractor was grossly negligent in permitting the same to become frozen so that the concrete sidewalks, gutters and curbs became broken and cracked in many places on said portion of West Exchange street and Dodge avenue, so that the said contract was not executed as required, and the sidewalk so broken and cracked were of little or no value. Plaintiff repeatedly called the attention of the director of public service of said city and its other officers to the character of this defective work, but the said city failed and neglected to require the said contractor to reconstruct said defective work and allowed the contractor estimates for the full contract price which were paid to him regardless of the protests of said plaintiff. Said defective work has never been reconstructed. ’ ’

The improvement was made in the year 1912, and the assessments therefor were to be paid in ten equal annual installments with the'taxes for the years 1911 to 1920, inclusive. Six of said installments were paid before this action was begun, the action having been commenced in the court of common pleas January 24, 1918.

Some complaint was made to defendant city in the years 1914 and 1915 relative to the condition of the sidewalk, curb and gutter, and some negotiations between certain property owners and officers of the city of Akron were had relative thereto and some repairs were made thereon.

After the completion of this improvement by the contractor, the city accepted the same, a final estimate was made and paid by the city, less an amount provided in the contract to be retained by the city for a period of two years, all of which amount, except $400, was after the expiration of two years paid the contractor, said amount of $400 being sufficient as then determined by the city to repair all defects complained of.

The evidence discloses that some parts of the sidewalk, curb and gutters are not now, six years after the improvement was completed, in a good state of repair, and were not in such repair a year or two after the completion of the work; however, only a comparatively small portion of this improvement is in such condition.

Without going further into the evidence, we are of the opinion that where a municipality enters into a contract for an improvement such as this, and by the terms thereof, as in the contract in question, a certain person or official board of the municipality is selected by the. parties thereto to determine whether the terms of the contract have been complied with, and the work thereunder properly executed, that when such facts are ascertained and fixed by the person or official board selected, and in the manner provided by the contract, and the work is accepted by the municipality, final estimate made and paid, a suit instituted thereafter to enjoin the collection of the assessments levied to pay the cost and expenses of such improvement cannot be maintained on the ground that the work done and material furnished for said improvement were not in accordance with the contract, in the absence of fraud or mistake. No fraud or mistake is alleged or proven herein.

Furthermore, by far the greater part of this improvement is good and substantial; yet the court is asked for an order restraining the collection of all unpaid assessments to the full extent of the improvement. If the prayer of the petition should be granted, the result would be that many property owners would escape paying anything further for work the evidence discloses is good and substantial.

Our attention has been called to the case of Shook v. Akron, (not reported), decided by this court in 1916, and the claim is made that the case should be decisive of the case at bar. With this contention we can not agree. The improvement of the streets in the Shook case, for which assessments were enjoined, was practically of no account at all except possibly the grading thereof, and consequently was not of any benefit to the property assessed, while in the case under consideration, the improvement was of substantial benefit, as above stated, with slight exceptions to the property assessed, and consequently the Shook case can have no controlling effect in the case at bar.

Holding these views, we feel that the relief sought for in plaintiff’s petition should be denied, and the petition is dismissed at the cost of the plaintiff.

Grant and Dunlap, JJ., concur.


author: JONES, P. J.

text:
    TAXATION
    [Hamilton (1st) Court of Appeals,
    November 29, 1918.]
    Jones, Wilson and Hamilton, JJ.
    Feed Pagels v. Edmund S. Beaman, Aud., and Charles Cooper, Treas.
    Warehouseman Not Liable Personally for Taxes on Property in His Custody.
    Entering upon the tax duplicate goods and chattel property belonging respectively to many different owners in severalty in the custody and possession of a warehouseman, for storage purposes only and the charging of the gross valuation thereof against him individually as a single item, does not comply with the provisions of the statutes with reference to the listing of such property for taxation and may be enjoined.
    Appeal from insolvency court.

      Dempsey & Nieb ending, for plaintiff.

      Joseph McG-hee, Atty Gen., Simeon M. Johnson, special assistant, and Campbell, Loche, Hauch <& Capelle, for defendants.
   JONES, P. J.

There is little if any dispute between the parties as to the facts. The action was originally brought by Fred Pagels, who has since deceased and is now represented by his administrator, against the county auditor and treasurer for a perpetual injunction against a tax charge placed by the county auditor upon the tax duplicate of Hamilton county, for the year 1917, against the name of Fred Pagels for personal property in the amount of $217,500.

On April 8, 1917, Fred Pagels was engaged in Cincinnati in the business of warehouseman, being the owner of two warehouses in the sixteenth ward of said city which were conducted by him exclusively as warehouses for the purpose of receiving and keeping in storage furniture, household goods, pianos and automobiles under contracts made by him with the owners and possessors of such articles.

On the said April 8, 1917, which was the day for making tax returns of personal property in said county, there were stored in said warehouses a number of pianos, automobiles and crates, packages and lots of furniture and household goods which had been left with the plaintiff for storage purposes only by the various owners, possessors and custodians of said property. None of said property was then in the possession or control of plaintiff in his own right or in any right except as warehouseman and solely for storage purposes.

On or about May 22, 1917, the county auditor served a written notice upon plaintiff requesting him to furnish that office with the names and addresses of all persons, firms or corporations who had chattels of any kind stored with him during the year ending April 8, 1917, with a complete list of all goods and chattels so stored and their actual or insured values, and requesting him to bring to the auditor’s office all records, books and data of every description which would furnish the required information.

Plaintiff declined in writing to furnish such names and addresses and such list of goods and chattels with the actual or insured value thereof, and declined to bring his books to the office of the said county auditor.

Thereupon the auditor proceeded under Sees. 5401, 5402 and 5403 G. C. to file an application in the probate court to require said Pagels and his two sons as agents to give testimony before said probate court relative to such personal property in their possession and control, which he claimed they were required to list for taxation.

Proceedings were thereupon taken in the probate court resulting in the refusal of Rheinhardt W. Pagels, who testified therein, and of plaintiff Fred Pagels to furnish the information desired. Said witnesses were not committed for contempt, and further hearing of said cause was continued by the probate court.

Thereafter on June 11, 1917, the county auditor sent a written notice to the plaintiff stating that he had listed in his name for taxation the following named items amounting in tax value to $217,500:

150 Autos at $1,000........................ 150,000

500 Sets of Furniture at $100............... 50,000

Miscellaneous Paintings, Chinaware, Glassware 10,000

and stating that said listings were made based upon the hearing in the probate court.

Thereupon the county auditor listed upon the tax duplicate a single item of personal property in the name of Fred Pagels, 977 West Eighth street, at a gross value of $217,500, and charged upon said duplicate the tax collectible one-half in December, 1917, and one-half in June, 1918, at the regular rates of taxation upon said valuation.

Plaintiff filed his petition in this case charging that said action of the county auditor was without authority of law and was an abuse and usurpation of his powers, was unauthorized illegal and wholly void, and praying for a permanent injunction against the collection of any tax thereunder. ■

The defendants by answer admit the making such charge upon the duplicate and insist that it was a valid and legal charge against plaintiff under proper authority of said auditor. And by way'of-a second' and third defense defendants allege that the valuation as fixed by the county auditor was conclusive and, in the absence of fraud or gross mistake, can not be disturbed by the court, and that the plaintiff did not exhaust his remedies under the statute by complaint to the board of revision and to the state tax commission.

The first question raised is as to the jurisdiction of the court. The action is brought by virtue of Secs. 12075 and 1637 G-. C. The question is not one of valuation, but is whether or not under the statutes the plaintiff is liable to be taxed at all for this property, and if so whether the auditor proceeded in the proper way to make this charge against plaintiff upon the tax duplicate.

The'power of the courts to consider this question without the necessity of proceeding before the board of revision or the tax commission is clearly sustained by the case of Hagerty v. Huddleston, 60 Ohio St. 149 [53 N. E. 960], in which at pages 165 and 166 the doctrine is clearly stated:

“The valuation placed upon property by a taxing officer or board within the scope of authority conferred by law, when made in good faith, will be held and regarded by courts as conclusive of the value, unless it should appear that there was some gross mistake to the prejudice of the taxpayer. But when the complaint is not as to the valuation, but goes to the extent of claiming that under the statute the taxpayer is not liable to be taxed at all, under the peculiar circumstances of the case, that is that the tax is illegal, then the determination of the taxing officers and boards is only prima facie, and under Sec. 5848 (12075 G. G.) E. S., full jurisdiction is conferred upon the courts of common pleas and superior courts to enjoin such tax as illegal. * # * When the power to tax in any particular case is challenged, the citizen has the right to be heard in court as to the légality of the tax, but when the power to tax is conceded, and the complaint is only as to the valuation, a valuation made in good faith and according to the best judgment of the taxing officer, will not be disturbed by the courts in the absence of gross mistake.”

The tax laws of Ohio have undergone so many changes especially during the last few years and are found in so many parts of the code — in many cases different sections practically duplicating the provisions of other sections — that it is very difficult to follow them and determine clearly what the effect of each provision may be. It is however in this case not necessary to go into these numerous provisions in detail or to refer to many of the sections.

There is no question under the constitution or the statutes but that the property in storage should be listed at its true value in money as required by Art. 12, Sec. 2, of the constitution.

Under the statutory provisions it undoubtedly was the duty of the various owners of property stored in plaintiff’s warehouses to make proper individual returns of their several properties and have the same listed for taxation in their own names; and so far as shown in this ease that may have been done as to each and all of the various parcels of property covered by the valuation complained of. (Sections 5366, 5370, 5371, 5372 G. C.)

Inasmuch as property of nonresidents in this state or of persons under disabilities of various kinds, or for other reasons held by persons in various capacities for others, might except for special provisions escape taxation, it is proper for the state to provide that property so held should be returned by the party in possession for the benefit of others.

Section 5370 G. C. requires each person of full age and sound mind to list the personal property of which he is the owner, and makes provision for the listing of property of minors and others who may not be in possession.

Section 5371 G. C. provides where property shall be listed, and that a person required to list property on behalf of others “shall list it separately from his own, specifying in each case the name of the person, estate, company or corporation to whom it belongs.”

Section 5372 G. 0. provides that personal property “shall except as otherwise provided be listed in the name of the person who was or became the owner thereof on the day preceding the second Monday of April, ’ ’ etc.

Sections 5372-1 5372-2 and 5372-3, are in their provisions somewhat analogous to Secs. 5370 and 5371.

Undoubtedly among other persons in possession of property so required to list same for taxation, the state might well have included warehousemen in possession of property, requiring them to list same and pay taxes thereon and giving to them a lien to secure such payment. Judson, Taxation, 2d Ed. Sec. 444; Cooley, Taxation, 653; Carstairs v. Cochran, 193 U. S. 10 [48 L. Ed. 596; 24 Sup. Ct. 318]; Thompson v. Commonwealth, 209 U. S. 340 [28 Sup. Ct. 533].

Laws have been sustained authorizing a tax on property in possession of one other than the owner against such possessor, and permitting the tax collector to proceed against the individual property of such possessor for the collection of such tax. Hutchinson v. Board of Equalization, 66 Iowa 35 [23 N. W. 249] ; Commonwealth v. Gaines, 80 Ky. 489; Walton v. Westwood, 73 Ill. 125; Merrill v. Champagne Lumber Co. 75 Wis. 142 [43 N. W. 653]; Spanish River Lumber Co. v. Bay City, 113 Mich. 181 [71 N. W. 595].

Some states have gone to the length of permitting chattel property in the possession of one other than the owner to be dis-trained or levied upon to satisfy taxes on the real estate of such possessor. Sears v. Cottrel, 5 Mich. 250; Hersee v. Porter, 100 N. Y. 403 [3 N. E. 338].

These cases are justified by the courts under the particular statutes which authorize such collection. We are, therefore, in every ease required to consider the statutory authority for the listing and collection of the tax.

In the case at bar defendants justify the charge under the provisions of Secs. 5372-1, which are as follows:

“Personal property, moneys, credits, investment in bonds, stocks, joint stock companies or otherwise in the possession or control of a person as parent, guardian, trustee, executor, administrator, assignee, receiver, official custodian, factor, agent, attorney, or otherwise, on the day preceding the second Monday of April in any year, on account of any person or persons, company, firm, partnership, association or corporation, shall be listed by the person having possession or control thereof, and be entered upon the tax lists and duplicate in the name of such parent, guardian, trustee, executor, administrator, assignee, receiver, official custodian, factor, agent, attorney or other person, adding to such name words briefly indicating the capacity in which such person has possession of or otherwise controls said property, and the name of the person, estate, firm, company, partnership, association or corporation to whom it belongs; but the .failure to indicate the capacity of the person in whose name such property is listed, or the name of the person, estate, firm, company, partnership, association or corporation to whom it belongs shall not affect the validity of any assessment thereof. ’ ’

It will be observed that although many classes of persons are enumerated in this section, whose duty it is to list property in their possession or control, that a warehouseman is not specifically included and must therefore be brought under one of the other terms used. The auditor’s return upon which his listing was based had endorsed upon it (not however at the proper place) the words “Agent, Custodian and Warehouseman,” and defendants ’ counsel rely upon those words.

The statute, it will be observed, does not use the word ‘ ‘ custodian” alone but the words “official custodian” doubtless referring to some public or corporate office by virtue of which possession or custody is held; so these words are not applicable to plaintiff in this case.

We are therefore limited to the word “agent,” or else to the necessity of bringing into the statute the word “warehouseman” as one of the capacities intended to be included by the use of the word “otherwise” in the statute. It is somewhat questionable under the rule of construction known as “ejjusdem generis ” emmciaied in 36 Cyc. 1119, whether the word “otherwise” is broad enough to include warehouseman and bring such capacity into the general class enumerated in the statute. This is more especially the case because of the provision of See. 5383 G. C. which provides that a consignee shall not be required to list “value of property consigned to him from another place for the sole purpose of being stored or forwarded * * * if he has no interest in such property. * * # In that section a consignee and commission merchant are treated together, but it will be observed that the storage feature of their business is somewhat analogous to that of a warehouseman. It is further suggested that while a lien is given to those paying taxes under various sections of the statute (Sees. 5683, 5687, 5689, 5693 G. C.), and a lien is given to warehousemen (Sec. 8483 G. C.), for storage and numerous other charges and claims, “taxes” are nowhere specifically included.

It is strongly argued that the word “agent” is sufficiently broad to include a warehouseman. In 8 Words and Phrases, 7392, we find the following definition:

“Warehousemen are of the class of bailees known as ‘paid agents’ exercising private employments whose liberty and relation is essentially different from that of common carriers.”

Then it is urged that the words ‘ ‘ or otherwise ’ ’ found in the statute must be given some meaning, and should be construed broadly enough to include a warehouseman, if not covered by the word “agent.”

In a matter so important as that of taxation the court will not by construction interpolate words into the statute to extend its terms; more especially so where an attempt has been made, as in the section under consideration, to enumerate all classes. But considering the intention and purpose of the legislature and the ordinary acceptation of the language used, the court is of the opinion that the section in question should be construed to include one in such capacity as a warehouseman in the position of plaintiff, and where property in his possession has not otherwise been listed the auditor might under proper circumstances require its listing by him upon the tax duplicate, but in so doing the provisions of the statute must be clearly observed.

Nor do we regard such a construction of the law as imposing so unreasonable a duty upon agents, factors or attornej^s — or warehousemen, if you please — as to make the law unconstitutional under the rulings in State v. Boone, 84 Ohio St. 346 [95 N. E. 924; 39 L. R. A. (N. S.) 1015, and 85 Ohio St. 313 [97 N. E. 975; 39 L. R. A. (N. S.) 1019], In that ease statistical information of a nature entirely foreign to the professional duties of .a doctor, pertaining to the ordinary field of census taker, were required in addition to the regular birth or death returns which might have been properly required. The act there under consideration was held in valid as unwarranted and an unreasonable exercise of police power. No such objection could be made to a law requiring the return of personal property for taxation by one holding it in his possession.

Considering that it might have been the duty of Pagels to list property not otherwise listed, in storage in his warehouses, and upon his failure so to do that it be listed by. the auditor, it must be listed, not in the name of the warehouseman personally, but under the provisions of Secs. 5372-3 and 5371 it must be listed separately from his own property and there must be specified in each case the name of the person, estate, firm, company, partnership, association or corporation to whom it belongs and the capacity in which the warehouseman holds it.

Section 5372-3 G. C. makes no provision for bulking up property held in storage by an agent, belonging as this property did to divers and sundry owners. An exception is made in this section as to pawnbrokers, showing that in such a business where the qualified title passes to the bailee such provision might be allowable.

To the argument that it would be inconvenient to separately list property, or that because of the contumacy of plaintiff the information was not given by him to the auditor as to the ownership of the different properties, it can be said that if the property were listed, as it should have been by its several owners, it would make as many items as if it were listed in the name of the warehouseman in his capacity as such, for the different owners; and Sec. 2583 G. C. provides for the listing of property in the name of an unknown owner. Then in that ease if the tax were not paid the particular personal property subject to the unpaid tax could under See. 5671 be itself seized and held for its collection.

The law as it now stands can not be construed to permit a personal charge against a warehouseman to be made other than out of the goods against which the tax is charged and certainly not out of his private property or means, for a tax which should have been primarily paid by the owner of the property and for which he has been given by the statute no lien for reimbursement.

The argument that plaintiff should receive but scant consideration, because he has failed to assist the auditor in securing a full tax duplicate, is without merit. The statute provides punishment upon the failure to furnish proper information on the hearing before the probate court but no other provision penalizing him by tax charges against him personally is found in this statute.

It is further urged that this proceeding is equitable in.its nature, and that no relief can be had by plaintiff unless he himself is without fault and comes into court with clean hands. While this action is equitable in its form it is purely statutory in its nature and gives a remedy to a taxpayer in addition to all other remedies formally provided. It is not necessary therefore to establish all of the elements of a case in equity. Tone v. Columbus, 39 Ohio St. 281, 301-302 [48 Am. Rep. 438]; Stephan v. Daniels, 27 Ohio St. 526, 536; Steese v. Oviatt, 24 Ohio St. 248, 253.

As said by Williams, J., in the” case of Markle v. Newton, 64 Ohio St. 493, 496 [60 N. E. 619].

A tax can not be “justified merely upon equitable considerations. Public burdens of that nature can be sustained only when authorized by positive law. And when such burden is illegally imposed, it is a statutory right of the party against whom it is charged, to stay its collection by injunction.”

Doubtless the names of the several owners of the various items of property might have been ascertained by the proceedings in the probate court if such proceedings had not been discontinued. But if the property is listed under the sections of the statute which have been considered above, in the name of the warehouseman, it must be done not in his individual name but in his representative capacity, and separate listings must be made for the property of each owner, giving the name where ascertainable, and as the property of an unknown owner where such name can not be ascertained.

In the opinion of the court the charge as made on the tax duplicate against plaintiff does not comply with the law and is therefore illegal and void, and a perpetual injunction will be granted as prayed for in plaintiff’s petition.

Wilson and Hamilton, JJ., concur.


author: WASHBURN, J.

text:
    DEATH — NEGLIGENCE
    [Cuyahoga (8th) Court of Appeals,
    December 9, 1918.]
    Grant, Dunlap and Washburn, JJ.
    William G. Baus, Admr. v. Cleveland, S. & C. Ry.
    Traction Company Liable for Death of a Woman Passenger in Automobile if Negligence of Traction Company and Driver Combined Caused Accident.
    A traction company is liable for the wrongful death of a woman, who was a passenger riding on the rear seat of an automobile and not engaged in a joint enterprise with the driver, and who was struck and killed in a collision with a traction company’s car, if the negligence of the motorman, combined with that of such driver, caused the accident; hence, if on trial, the charge of contributory negligence being withdrawn, it is reversible error to instruct the jury to determine whether the death was caused by the negligence of the driver or the motorman.
    [Syllabus approved by the court.]
    Error.

      Mathews, Orgill & Maschke, for plaintiff in error.

      Tolies, Hogsett, Giwn, & Morley, for defendant in error.
   WASHBURN, J.

Plaintiff sued defendant for damages for wrongful death, and the trial resulted in a verdict and judgment for defendant.

The case is in this court on error proceedings.

The facts as disclosed by the record are, for the most part, undisputed and are as follows:

At the place of the accident, defendant operated an interur-' ban railway .on a private right-of-way and across a country highway leading to a summer resort, said highway being used much more extensively in the summer than in the winter. At the intersection of the highway and railway, the defendant maintained a building, used as a sub-station and waiting room, which building was located close to the track and close to said highway, which crossed the track at right angles; and said building, together with outbuildings, poles, trees and foliage almost completely obstructed the view of a traveler on the highway, going easterly, of a car approaching the intersection from the north, which car, when two thousand feet away, was in a valley, and came in full view of one close to the track at said intersection when about twelve or thirteen hundred feet distant therefrom.

On the day in question, which was in June, plaintiff’s decedent was a passenger in an automobile, she and several other persons in said machine being on their way to the lake on a fishing and picnic expedition. Decedent was in the rear seat and had nothing to do with the operation of the automobile, and no question is made of her being engaged in a joint enterprise with the driver and other occupants of the automobile. As the automobile approached said intersection, it passed along the end of said building and stopped with the front wheels of the auto as close to the track as safety would permit, but said building obstructed the view of the track to the northward of the decedent and others in the rear seat of the auto, except for a short distance.

The testimony is uncontradicted that the occupants of the car looked and listened, and that the driver leaned over the steering wheel and looked north. The testimony is in conflict as to how far down the track the driver could see past the building, but it is apparent that the decedent, after the automobile stopped, could not see the car as well as the motorman could see the front end of the automobile, and it is apparent also that the street car was not where it could be seen by the occupants of the auto before they drew along the side of the building. The auto started ahead and when the rear wheels were in the middle of the track it was hit by a limited car traveling from the north at a speed conceded by the defendant to be thirty-five miles an hour, and claimed by the plaintiff to be at least fifty miles an hour, and the decedent was instantly killed in said collision.

There was a conflict in the testimony as to whether the whistle of the car was blown, but the verdict of the jury compels this court to consider the ease on the theory that the whistle was blown when the car was from twelve to fifteen hundred feet away, and again when from one hundred to one hundred and fifty feet from the crossing; but there is no evidence on the subject of the sounding of any gong.

The negligence charged was excessive and reckless rate of speed; neglect to “sound any whistle or gong;” and failure to maintain proper lookout, failure to stop the car and failure to provide guard or flagman or automatic bell at said crossing, and also failure to stop or abate the speed of the car after those in charge of the car knew !! or in the exercise of ordinary care ought to have known of the dangerous predicament of the decedent.”

The defense was denial of negligence of the defendant and the claimed contributory negligence of decedent.

We find that there was no prejudicial error in the admission or rejection of evidence.

The claimed error which is most strongly argued here arises upon the charge of the court before argument, given at the request of the defendant, and upon the general charge of the court.

Plaintiff’s decedent was not charged in the answer with being engaged in a joint enterprise and therefore chargeable with the negligence of the driver.

The contributory negligence charged in the answer against the decedent who was riding as the guest of the driver of the auto, although not specified in the answer, was, under the law, her failure to exercise ordinary care for her safety and to reasonably use her faculties of sight and hearing to observe and avoid .the dangers incident to crossing such track. Toledo Rys. & Light Co. v. Mayers, 93 Ohio St. 304 [112 N. E. 1014],

Under these circumstances the negligence of the driver was important only in the event the jury should find that the accident was due solely to his negligence; and if plaintiff’s decedent was not guilty of contributory negligence plaintiff was entitled to recover if defendant was negligent, and the driver’s negligence combined with the negligence of the defendant to cause the injury.

This view of the law is expressed in the general charge of the court near the bottom of page 221 of the record, and before argument and as a part of the general charge also the jury was told that the negligence of the driver could not-be imputed to said decedent. But complaint is made that this statement of the law is in conflict with statements of the law contained in special requests given before argument at the request of the defendant, and also with later statements in the general charge of the court. At the request of the defendant, the jury was charged before argument as follows:

“4. I instruct you that as between a person about to cross over an interurban railroad at a crossing, and an interurban car approaching such a crossing, the interurban ear has the right of way. This is because a person can stop within a few feet and the car can not.
“5. If you find from the evidence that the obstructions at and about the crossing and the noises of the moving automobile in which Mary Baus was riding were such that she could not without stopping have heard the approach of the ear, coming from the direction from which the one with which she was struck came, and that she knew or in the exercise of ordinary care on her part ought to have known that such were the conditions, and if you further find that if she had stopped, looked and listened first before riding onto the tracks of defendant company, she would have heard and seen the car which struck her and avoided the collision; and if you also find that the said Mary Baus, without reasonable excuse therefor, did not stop, loolc and listen, but drove onto the tracks without taking this precaution and was killed, then the said Mary Baus was guilty of contributory negligence and the plaintiff cawnot redover in this action but your verdict should be for the defendant.”

And in the general charge, the court used this language:

‘ ‘ So the question is, gentlemen, when we come back to that, did the plaintiff exercise ordinary care, or did the defendant exercise ordinary care, or were they guilty of want of ordinary care when they drove upon that crossing, and if so, was that the proximate cause of the injury to the decedent, the wife of the plaintiff in this action?”

These instructions of the court were given, notwithstanding the fact that all of the testimony was to the effect that the driver of the automobile stopped the same just before going upon the track, and that he and all the other occupants of the car looked and listened, and we feel that these instructions ignored the position of plaintiff’s decedent as a guest in the automobile; charge her with the duties of the driver and visit upon her the consequence of her negligence. In addition to the foregoing the duties of the driver were repeatedly referred to and emphasized in the defendant’s requests given before argument and in the general charge of the court, and in such a way as to probably lead the jury to confuse the duties of the decedent with the duties of the driver; and then when the court had finished the general charge, counsel for the defendant withdrew the charge of contributory negligence against the decedent, and the court said to the jury:

“That simplifies it. You are simply to determine, gentlemen, whether it was caused by the negligence of the driver of the automobile, or by the negligence of the railroad company.”

This instruction assumes that the accident was due either solely to the negligence of the driver, or solely to the negligence of the defendant, whereas it might have been caused by the combined negligence of the defendant and the driver of the automobile ; and in view of all that had been said, the jury may have understood that plaintiff could not recover if the accident was caused by the driver’s negligence combined with the negligence of the defendant, and in the light of the facts which are undisputed we are inclined to the opinion that the jury must have so understood it.

For the reasons stated, we regard the charge as a whole as misleading, to the prejudice of the plaintiff in error. Judgment reversed and new trial granted.

Grant and Dunlap, JJ., concur.


author: WILSON, J.

text:
    STREET RAILWAYS
    [Hamilton (1st) Court of Appeals,
    June 17, 1918.]
    Jones, Wilson and Hamilton, JJ.
    George S. Diehl v. Cincinnati Trac. Co.
    1. Street Car Passenger Not Required to Scrutinize Transfer.
    While a passenger on a street car should exercise ordinary care and prudence in receiving and making use of a transfer, he is not required to scrutinize it for the purpose of ascertaining whether or not the conductor has punched it correctly, particularly where the transfer itself contains no directions as to the proper method of punching.
    2. Facts Applied.
    In an action for damages against a street railway company for ejecting a passenger from one of its cars because the transfer which he tendered was improperly punched, it is error, after giving a special charge at the request of the plaintiff which correctly stated the law with reference to the care required of a passenger in asking for and accepting a transfer, to destroy the force and effect of the instruction so given by a special charge given at the request of the defendant to the effect that in receiving, examining and using a transfer the passenger is bound to exercise such degree of care as ordinarily prudent persons are accustomed to exercise with regard to such a matter under similar circumstances, or in leaving to the jury to determine whether or not plaintiff used due care with reference to the proper marking of the transfer given him.

      Fulton & Woost, for plaintiff in error.

      Wilby <& Stewart, for defendant in error.
   WILSON, J.

This action was instituted below by George S. Deihl against the Cincinnati Trac. Co. to recover damages for an alleged wrongful ejectment from one of defendant’s cars.

The evidence discloses the fact that the plaintiff became a passenger on a Vine-Clifton car, and when paying his fare he asked for and received a transfer slip to an East End car; that the conductor punched the date of expiration as 8:15 a. m., which was about the time the transfer was given plaintiff; that plaintiff left the Vine-Clifton car at Fifth and Vine streets and went directly to Fourth and Vine streets, where he boarded an East End car, and on presenting the transfer the conductor refused to accept it, stating that the time limit on the transfer had expired, and plaintiff, refusing to pay an additional fare, was ejected from the car.

The action was one in tort. The act of the first conductor in erroneously punching the hour of issuing the transfer as the hour at which the transfer would expire was a wrongful act ; and the act of the second conductor in refusing to accept the transfer and ejecting plaintiff from the ear is a consequence of the first wrongful act for which the company became liable in tort. The conductors, being agents of the company, their acts were the acts of the company for which the company would be liable, if done in the scope of their agency.

The company undoubtedly has a right to make reasonable rules for the conduct of its business and to require its agents to strictly enforce them, but that will not absolve it from liability when one of its agents, in compliance with a rule of the company, erroneously ejects a passenger from the car. The authorities are uniform that when by the fault of an agent of the company a passenger is given a ticket imperfectly or erroneously stamped and is ejected from the car or train by the conductor in pursuance of the rules of the company, it is liable to him as for a tort.

On the last hearing of the cause below the court was asked by the plaintiff and did give the following special charge:

“A street car passenger who has paid his fare to the conductor of the car in which he has become a passenger, and who then requests of the conductor a proper transfer to another ear in a connecting line for a continuous ride, to all of which he is entitled under the law, and who lias received from such conductor a transfer slip to such ear, is not required by law to scrutinize such transfer-slip for the purpose of ascertaining whether or not a mistake has been made by the conductor in issuing the transfer-slip, but may assume that a proper transfer has been issued to him by the conductor, in the absence of any other fact or incident to suggest an inquiry. ’ ’

A verdict was returned for the defendant below and judgment entered thereon.

Plaintiff is now prosecuting error to this court, and is complaining that while the court gave the special charge requested by plaintiff, he nevertheless gave a special charge requested by defendant, and also in his general charge used language which destroyed the force and effect of the special charge requested by plaintiff and given by the court. The special charge so requested by defendant below and given by the court is as follows:

“In order to recover in this case, the plaintiff must have been without fault in receiving and making use of the transfer; and if you find that in receiving, examining and using the transfer plaintiff did not exercise such care as ordinarily prudent persons- are accustomed to exercise concerning such a matter under the same or similar circumstances, then your verdict must be for the defendant. ’ ’

The court in its general charge instructed the jury (R. 78) that it was for the jury to decide—

“whether or not he (plaintiff) used due care himself in seeing that the transfer when received was properly marked. ’ ’

And again, the court stated (R. 79) that — ■

“It is the duty of a person receiving a transfer to use ordinary care in seeing that that transfer is properly marked.”

The court again charged the jury (R. 79) that—

“If the plaintiff in the case used ordinary care in seeing that that transfer was properly punched, then it is the duty of the defendant company to accept such transfer.”

It will be seen that the court, in giving the special charge requested by the defendant, and in his general charge, instructed the jury, in effect, that it was the duty of the plaintiff not only to examine the transfer slip, but also to scrutinize it for the purpose of ascertaining whether or not the conductor in issuing the transfer had made any mistake in marking or punching the same, and that if he had hot used ordinary care in seeing that it was properly punched, then their verdict must be for the defendant.

Upon a former hearing of this cause in this court it was held that the court below had erred in refusing to give special charges requested by plaintiff below, one of which was the special charge hereinbefore set forth as given by the court below on the last trial of the cause. The court at that time held that while the passenger should exercise ordinary ca,re and prudence about the receiving and making use of a transfer, he was not required to scrutinize such transfer for the purpose of ascertaining whether or not the conductor had made a mistake in punching it, especially in view of the fact that the transfer itself contains no directions as to punching, in regard to time, which would enable the passenger to determine whether or not it was properly punched. In so holding the court followed a long line of decisions, among them: Memphis St. Ry. v. Graves, 110 Tenn. 232 [75 S. W. 729]; Pittsburg, C. C. & St. L. Ry. v. Reynolds, 55 Ohio St. 370 [45 N. E. 712; 60 Am. St. 706]; Ann Arbor Ry. v. Amos, 85 Ohio St. 300 [97 N. E. 978]; Lake Shore & M. S. Ry. v. Mortal, 8 Circ. Dec. 134 (18 R. 562); Cleveland City Ry. v. Conner, 74 Ohio St. 225 [78 N. E. 376; 6 Ann. Cas. 941],

The special charge requested by the plaintiff below and given by the court embodied the law of the case, and the court erred in modifying said charge by the giving of said special charge requested by the defendant, and instructing the jury orally as he did in his general charge, thereby destroying the force and effect of plaintiff’s charge, and in addition thereto erroneously instructing the jury as to the law of the case.

Section 11447 G. C. provides that either party — “may present written instructions to the court on matters of law and request them to be given to the jury, which instructions shall be given or refused by the court before argument to the jury is commenced. ’ ’

And it further provides, paragraph 7—

“A charge or instruction when so written or given, shall not be orally qualified, modified or in any manner explained to the ' jury by the court. ’ ’

The courts of Ohio have repeatedly held that under and by virtue of said Sec. 11447 G. C. (Section 5190 Rev. Stat.), when written instructions are given, it is error for the court to orally modify or qualify them, as was done by the court below in this ease. Caldwell v. Brown, 6 Circ. Dec. 694 (9 R. 691); Cincinnati v. Lochner, 11 Dec. 119 (8 N. P. 436); Columbus Ry. v. Conner, 27 O. C. C. 229 (6 N. S. 361); Rupp v. Shaffer, 12 Circ. Dec. 154 (21 R. 643); Pendleton St. Ry. v. Stallman, 22 Ohio St. 1; Tuscarawas Co. (Comrs.) v. Swanson, 38 O. C. C. 353 (27 N. S. 167).

When two inconsistent charges are given, one of which is erroneous, and it is impossible to say which one the jury followed, the verdict should be set aside. Eureka Fire & M. Ins. Co. v. Purcell, 10 Circ. Dec. 528 (19 R. 135); Rapp v. Becker, 16 O. C. C. 321 (4 N. S. 139).

The court below further charged the jury as follows:

“It is for you to decide whether or not the plaintiff was a passenger upon the Clifton-Vine car as alleged in his petition; whether he paid his fare: whether he asked for a transfer to the East End car; whether said transfer was given to him; * * * and whether he tendered said transfer, and whether it was refused.”

These facts were all admitted, either in the answer of defendant or in the opening statement of counsel for defendant, and therefore were facts not at issue in the ease and it was error on the part of the court to charge the jury that it was for the jury to decide whether or not those admitted facts were true.

The court is therefore of the opinion that the errors above stated were prejudicial -to the rights of plaintiff below, and for that reason the court is constrained to order that the judgment below be reversed and this cause be remanded to the court below for a new trial.

Jones, J., concurs.

Hamilton, J., dissenting.

I can not concur in the judgment of reversal. The special charge which was given for plaintiff was the law as laid down in the case of Cleveland City Ry. v. Conner, 74 Ohio St. 225 [78 N. E. 376; 6 Ann. Cas. 941], and the special charge given at the request of the defendant is not inconsistent therewith. The court, both in the special charges and in the general charge, left the question of negligence to the jury, basing its instructions on the proposition that the degree of care required was the exercise of “such care as ordinarily prudent persons are accustomed to exercise concerning such a matter under the same or similar circumstances,” and the use of the term “examine,” in the court’s charge, with reference to the duty of plaintiff, is approved by the Supreme Court in the Conner case.

The majority opinion says:

“It will be seen that the court in giving the special charge requested by the defendant, and in his general charge, instructed the jury, in effect, that it was the duty of plaintiff not only to examine the transfer slip, but also to scrutinize it for the purpose of ascertaining whether or not the conductor in issuing the transfer had made any mistake in marking or punching the same. ’ ’

I am unable to see wherein the charges justify the use of the word “scrutinize.” To examine as a prudent person does not mean to scrutinize. To scrutinize means to examine or observe closely in detail; to investigate minutely. The law does not require the passenger to scrutinize his ticket and there is nothing in the charge to indicate to the jury that such is the law. The court may have gone farther in its charge in detailing that “It is the duty of a person receiving a transfer to use ordinary care in seeing that that transfer is properly marked” than would be justified if this part of the charge stood alone, but taking it in connection with the whole charge, I do not think the jury was misled.

On the other ground of reversal as found by the majority of the court — that the trial court erred in charging on undisputed facts — I am inclined to agree with counsel for plaintiff in error rather than with the majority of the court. The plaintiff in error in his brief says: “This objection to the charge would not be sufficient, perhaps, to reverse the judgment, if it stood alone.” Finding no other error, I do not think this objection sufficient to justify a reversal.

I am therefore of the opinion that the case was fairly tried under the law and the judgment should be affirmed.


author: POWELL, J.

text:
    DESCENT AND DISTRIBUTION
    [Perry (5th) Court of Appeals,
    April Term, 1918.]
    Houck, Shields and Powell, JJ.

      Margaret Hammond v. Vincent A. Hammond and Edward Hammond.
    Determination of Rights of Relict of Devisee Whose Death Preceded that of Life Tenant.
    Lands were devised to three brothers, subject to the life estate of their mother. Prior to the death of the mother one of the brothers died intestate and without issue. The life estate having been terminated by the death of the mother, the present action in partition was brought, and an issue raised as to the rights of the widow of the deceased brother. Held: That a fee simple vested in the three sons at the death of the testator, subject to the life estate of their mother. A one-third interest in said lands descended, therefore, to the deceased son as ancestral property, out of which his widow took a life estate, and is entitled to an accounting for rents and profits from the date of the death of the previous life tenant. If the interest of the said widow can be set off by metes and bounds without depreciating the value of the remainder of the land, she is entitled to partition; but no sale of said land can be made without the consent of all parties in interest.

      Martin & Martin and Tague & Tagne, for plaintiff.

      John W. Dugan, II. D. Cochran and T. B. Williams, for defendants.

       Motion to certify overruled by the Supreme Court October 8, 1918, Hammond v. Hammond, 63 Bull. 351.

   POWELL, J.

This is an action in partition, and is in this court on appeal from the judgment of the court of common pleas. The lands sought to be aparted are described in the petition, and the case is submitted on an agreed statement of facts. The plaintiff is the widow of Henry Hammond, who died intestate and without issue. The defendants are the brothers of the said Henry Hammond. The common source of title is Robert Hammond, the father of said Henry Hammond, Vincent A. Hammond and Edward Hammond. The defendants and Henry Hammond were devisees under the will of Robert Hammond in equal shares. The will of Robert Hammond gave to his wife, Mary A. Hammond, an estate for life, in all his property, real and personal, with power and authority to sell the whole, or any part thereof if necessary for her comfortable maintenance and support. This power of sale was never exercised by Mary A. Hammond, and has no part in the questions for solution in this action, and the same will not be again referred to in this opinion.

Under the will of Robert Hammond, deceased, Mary A. Hammond had only a life estate in the lands sought to be partitioned. Johnson v. Johnson, 51 Ohio St. 446 [38 N. E. 61].

The fee simple title vested at once on the death of Robert Hammond in his three sons as devisees under his will, but subject to the life estate of Mary A. Hammond therein. While the title was thus vested Henry died intestate and without issue. How did his share in said lands descend? Margaret, his widow claims that it descends from him as ancestral property, under the provisions of Sec. 8573 G. C. and there being no children or legal representatives of children, the same passes to and is vested in her as the widow, relict of said decedent for and during her natural life, and that, by operation of the same statute, on the termination of her life estate the real estate passes to and vests in the defendants, Vincent A. Hammond and Edward Hammond, brothers of said Henry Hammond and of the blood of Robert Hammond, the ancestor from whom the estate came.

We are of the opinion that this claim is right and that the same is based on the correct interpretation of the statutes of descent.

Defendants contend that because Henry died before his mother, the life tenant, he never was seized of an estate in said lands or any part thereof. The infirmity in this contention is that it is in conflict with the holdings of the courts of Ohio in similar eases, and which holdings have determined the law so far as the state of Ohio is concerned. Johnson v. Johnson, supra, and many other authorities.

Henry Hammond took a vested estate under the will of his father. It was subject to defeasance, on certain conditions named. These conditions never happened, and his estate became absolute, either in him or in his heir at law, on the death of his mother, without having sold the property for her support. A vested estate always descends to the heir designated by the law. It may be burdened with conditions, but nevertheless, until these conditions defeat the estate, the right to it, the title passes by the statute of descents.

The cases cited by defendants are not applicable to the case under discussion. They relate especially to certain common law incidents that attach to dower estates and estates by the curtesy. These estates at common law, or on statutes declarative of the common law are based on the right to possession only, and where there was no possession nor right of possession in the deceased consort, there was no dower or curtesy. This has all been changed by statute. Curtesy has been abolished, and a statutory dower right substituted in its stead. And the dower right of widows has been broadened and extended so as to include as lands subject to dower “all the real property of which the deceased consort, at decease, held the fee siihple in reversion or remainder, and in one-third of all the title or interest that the deceased consort had, at decease, in any real property held by article, bond or other evidence of claim.” Section 8606 G-. C.

Plaintiff is entitled, on the agreed statement of facts, to a life estate in one-third of the real estate described in the petition, and to an accounting from the defendants for rents and profits, from the date of the death of Mary A. Hammond, deceased, when said life estate accrued to her.

We think also that she is entitled to an order of partition, provided her interest in said lands can be set off to her by metes and bounds, without injury to the value of the said lands, but that no sale of said premises can be had without the consent of all the parties owning an interest in the same.

A decree may be entered as prayed for in accordance with the views expressed in this opinion, and a writ of partition may issue to set off to plaintiff her interest in said real estate by metes and bounds, if the same can be done, but if not, then that such other proceedings may be had in the premises, as are authorized by law. It is also ordered that a special mandate issue to the court of common pleas to carry this judgment into effect.

Houck and Shields, JJ., concur.


author: GRANT, J.

text:
    JUDGMENTS AND DECREES
    [Cuyahoga (8th) Court of Appeals,
    June 17, 1918.]
    Grant, Lawrence and Dunlap, JJ.
    Seville H. Morse v. Frank Homan, etc.
    Vacation of Entry of Satisfaction after Term Held Without Effect.
    The vacation of an entry of satisfaction of judgment is without effect, made after term and without following the course prescribed by Sec. 11631 G. C. whether regarded as a reversal or modification of the judgment or order of court to which it is directed, or as a reformation of a written instrument of release.
    Error to Cleveland municipal court.

      Hoyt, Dustin <& Kelley, for plaintiff in error.

      II. L. Deibel, for defendant in error.
   GRANT, J.

The transcript of entries in this case, so far as these are deemed material to the present consideration, shows that the action was begun in the court below by the defendant in error, on June 15, 1915. Being a minor, his suit was begun, and has since been prosecuted, by his father as his next friend, agreeably to the statute permitting an infant’s action to be so brought and litigated.

The claim was for personal injuries sustained by the minor, and a trial of the issue resulted in a judgment in his favor in the sum of one thousand dollars. The sum was paid to the father as next friend, whereupon the latter in due form receipted the docket and entered a full satisfaction and discharge of the judgment, executing such release in the name of the plaintiff infant.

On' May 21, 1917, about two years after the rendition of the judgment and the entry of its payment, satisfaction and discharge, the plaintiff below filed his motion in the municipal court, asking that the entry of satisfaction referred to be vacated, for two reasons. The first was-that the entry of discharge, being made by the next friend of the minor plaintiff, was invalid in law, as being without authority existing in the receipter. The second assigned reason was to the effect that the plaintiff had in fact received no part of the judgment money, while the entry of satisfaction stood in the way of his enforcing it a second time by execution against the original defendant, Mrs. Morse.

This motion was not made by the plaintiff in the action, although it ran in his name. It was made by one Emslie — who was no party to the suit and who had not asked to be made a party,— purporting to be acting as guardian of Frank Homan, the infant plaintiff, but who had not intervened in the action in any way and was not issuably or properly before the court.

Notice of the filing and pendency of the motion was given to the defendant below.

The municipal court entertained this motion, and on November 19, 1917 — two years and five months after the rendition of the judgment — the entry to which this proceeding in error is addressed was made, as follows:

“Said entry of satisfaction is hereby vacated and set aside to the extent of $800 and interest from June 15, 1915 and plaintiff is hereby permitted and alloAved to issue execution on said judgment to the extent only, however, of $800, and interest from June 15, 1915, and no more, the remaining $200 of said judgment of $1000 having by stipulation of the parties herein been rightfully paid to and retained by Messrs. Schwan and Schwan, the original attorneys of record for the plaintiff herein; and upon precipe filed by the plaintiff herein, or his attorneys, execution is ordered to be issued on said judgment to the extent of $800.”

An exception was saved to this deliverance of the court, and also to the denial of a motion for a new trial of whatever was heard in the proceeding thus narrated. What was done in this respect by the municipal court is assigned as error in this proceeding by the plaintiff here, and a reversal of it is for that reason asked.

It is an undisputed rule of the common law that courts of record have plenary control of their own judgments, entries and processes, during the term at which they were made. This principle is fully recognized in Ohio: Niles v. Parks, 49 Ohio St. 370 [34 N. E. 735],

It is equally true that at common law this control passes from the court with the term at which the judgment was rendered, the entry made, or the process issued.

It is said in Black, Judgments, Sec. 306:

“It was the rule of the common law, that after the expiration of the term the court loses control of its judgments rendered during that term; they become final, and the court has no longer the power to vacate or modify them, or to set them aside. ’ ’

In Bronson v. Schulten, 104 U. S. 410 [26 L. Ed. 797], the court says:

“It is a general rule of the common law that all the judgments, decrees, or other orders of the courts, however conclusive in their character, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and they may then be set aside, vacated, modified or annulled by that court. But it is a rule equally well established, that after the term has ended all final judgments and decrees of the court pass beyond its control, unless steps be taken during that term, by motion or otherwise, to set aside, modify or correct them; and if errors exist, they can only be corrected by such proceeding as a writ of error or appeal as may be allowed by the court which by law can review the decision.”

Most states, including Ohio, have by statute given a remedy against the hardship which must sometimes result from this loss of power to vacate or modify judgments after the term at which they are entered, and this relief must be sought within such limits as the enabling statute may prescribe.. In this state the power is conferred and the procedure regulated by Chap. 6, Tit. 4, Div. 4, beginning with the present Sec. 11631 G. C. That section authorizes a court to “vacate or modify its own judgment or order, after the term at which it was made,” on ten enumerated and specific grounds. The further proceedings may be by motion where the infirmity alleged is a mere irregularity or clerical error not going to the substance of the former rendition. Where the claimed vice in the judgment resides in the merits of the case, the adjudication of vacation or correction must be upon pleadings issuably presenting the question raised.

None of the ten grounds assigned by the statute existed, or was claimed to exist in this ease in invoking an interference with the entry of satisfaction undertaken to be vacated by the action of the municipal court in the proceeding now under review.

The syllabus in Interstate Life Assurance Co. v. Raper, 78 Ohio St. 113 [84 N. E. 754], is authority for holding that “the power of the court of common pleas to vacate its judgment after term upon motion is controlled by Sec. 5354 E. S.” (present Sec. 11631 G. C.) and the ease holds that the burden is on the mover to show that the irregularity occurred before or at the taking of the judgment.

A judgment, as defined by statute in Ohio, “is the final determination of the rights of the parties. A direction of a court or judge, made or entered in writing and not included in a judgment, is an order. ’ ’

If then, what the court below undertook to do in the matter we are now reviewing was to vacate its own judgment or order, it was without power to do it and its action in that behalf was inert and a nullity. And this is so because the judgment or order —if such it was — which the court undertook to disturb, had long before passed from its inherent control and the only method allowed by law for regaining that control was not pursued or pretended to be pursued.

If what the court attempted to vacate was not a judgment or order, but was a part of its process or entries in the case, — in short, if it was any judicial act or evidence of it, — then it still must fall under the condemnation of the common law rule laid down in Black and already referred to, to the effect that the control ends with the term of rendition.

There is a provision of statute, Section 11705 G. C., which specifically authorizes a court to vacate an entry of satisfaction of a judgment rendered in the same court. But its operation is limited to the one contingency of a plaintiff in execution ordering in good faith a levy on property not subject to it, and which has thereupon been sold and applied on the judgment and a recovery has been had by the proper owner from the execution plaintiff and the latter has paid to the former. In such case the court may, upon motion and notice to the judgment defendant, have the satisfaction so made out of the sale of the property set aside, and he shall thereupon be entitled to collect the judgment. But the right conferred by that section does not extend to the case of the execution plaintiff losing or otherwise disposing of the money once collected by him and in consideration of which he entered satisfaction of the judgment — such loss of the money being one of the findings of fact in the case at bar, in support of the judgment vacating the entry and permitting execution to issue for a part of the amount of the judgment.

There is a case, Wilson v. Stilwell, 14 Ohio St. 464, in which was done exactly what was done in this case; that is, on motion an entry of satisfaction of a judgment was vacated and execution was awarded.

Whether this was done at or after term does not specifically appear in the report of the case. The judgment was rendered at the December term, and the motion to vacate was made in the March following. From the nearness of these dates to each other the probability is that the motion was within the term. And this seems to be made certain from the fact that the court deduces its power to act from the following recitation of the law: “Every court has control over its process, and of entries upon its record,” — a control which it does not have after the term at which the thing asked to be vacated became effectual in law as the act of the court, under the common law rule already referred to.

That the remedy was sought by motion and summarily, is an infirmity noticed by the court but which is obviated by the consideration that, as no objection on that ground was made, the point was deemed to have been waived. Moreover, a clear case of fraud was made out in the case, and upon equitable grounds the judgment of vacation proceeded. We can find no such grounds in the presentíase.

Indeed the judgment under review here was made upon no other purported footing than that the money was' paid to the next friend who instituted the suit and recovered the judgment, but who, as the court below holds, was not entitled to receive the proceeds of it or to give acquittance for it.

Of course if the thing vacated was any part of the judicial doings in the case, this conclusion has no force after the term at which it was done — the mode and limitations prescribed by statute in such cases not having been followed by the mover or observed by the court.

If the entry of satisfaction was obtained by fraud or was the result of a mutual mistake, an appropriate remedy could be invoked and advanced; but that is not this case.

It is difficult to see at this point of the proceeding why two hundred dollars’ worth of the satisfaction vacated should be allowed to stand, if the satisfaction as a whole was without warrant of law and a mere nullity, as having been made by one not entitled to make it. If the division into eight parts of unlawful payment and two parts of lawful is put upon the ground that the question was adjudicated in the Schwan case, no reason is perceived why the immunity allowed to the attorney should not extend to the client in the same action.

There is a recitation in the “conclusions of law” in the record to the effect that the abatement of the two hundred dollars was made “by stipulation of the parties herein,” which is not, however, among the conclusions of fact in the record; and the only “parties herein” to do the stipulating, are the plaintiff below, that is, the minor by his next friend, who is found by the court to have been incapable of taking the judgment money and by the same token unable to stipulate it away — and the defendant, who is objecting to this view of the inability of the father to act in receiving and giving acquittance for any of the proceeds of the judgment.

It is urged in the brief of the judgment debtor that the next friend was competent to take the money and give the release, not only to the extent of his attorney’s fees, but for the entire amount. And in the opinion of the Schwan case it was intimated that the law is to the contrary, although the point was not deeided. A further examination of the subject leads us to think that the question is at least doubtful. In some of the cases it was not really raised; they are either cases where there was a regular guardian already appointed and both capable and ready to take the fund, or where the next friend compromised the judgment instead of receiving the avails of it in full; such was the fact in Stilwell v. Wilson, supra,, the judgment plaintiff in that case being only in form entitled to bring the action.

But we do not find it necessary to decide this question.

We find and hold that if the purported vacation of the satisfaction was a reversal or modification of any judgment, order or other process or entry of the court in the cause, it was too late to be effectual, the course prescribed by statute not having been observed or followed;- and that if the purported action of the court was a reformation of a written instrument or release, such effect could not be wrought upon motion only, made after term, not in manner and form provided by law for the purpose, and over the objection of the adverse party. Upon either alternative the court was without power to do what it undertook to do by the order under review.

The judgment is for that reason reversed and judgment for costs is here rendered for the plaintiff in error.

Lawrence and Dunlap, JJ., concur.