author: PARKER, J.

text:
    BENEFICIAL ASSOCIATIONS — ERROR—EVIDENCE.
    [Lucas (6th) Circuit Court,
    March 22, 1907.]
    Haynes, Parker and Wildman, JJ.
    Bertrand G. Judge v. Masonic Mut. Ben. Assn.
    1. Effect of Failure to Enter on Record Change of Address.
    A fraternal beneficial association having been apprised of a change of address of the insured cannot predicate a forfeiture upon a failure to pay an assessment, if by reason of its failure to record such change the requisite notice, mailed to the former address, be not in fact received by the member.
    2. Preponderance of Proof not Required to Offset Presumption of Delivers of Letter Mailed.
    Proof of the mailing of a letter properly stamped and addressed affords prima faeie evidence of its receipt by the person to -whom directed; and this applies notwithstanding the address of the addressee may have been lately changed, as in this case; the well-known accuracy, knowledge, facilities and practice of the post office department in such matters-raising the presumption of delivery; but this being a rebuttable presumption which may be met by evidence of equal weight or countervailing force, a preponderance of proof that it was not received is not necessary to overcome the presumption of delivery. 1
    [For other eases in point, see 4 Cyc. Dig. “Evidence,” §§ 854-855. — Ed.]

      2. Reversal fob Prejudice in Charge as to Burden" oe Proof.

      A. judgment will be reversed where the charge improperly requires the burden of proof upon an issue, especially where the evidence is close and conflicting and not so clear and conclusive as to enable the reviewing. court to say prejudice did not result therefrom..
    [For other cases in point, see 4 Cyc. Dig., “Error,” §§ 345-359. — Ed.]
    [Syllabus approved by the court.]
    ERROR to Lucas common pleas* court.
    F. E. Rheinfrank and Q. A. Ohlinger, for plaintiff in error.
    King & Tracy,' C. T. Johnson and C. H. Lemmon, for defendant in error.
   PARKER, J.

Bertrand G. Judge, as the beneficiary under a certificate of insurance issued by the Mutual Benefit Association for Masons’ Wives, in which his wife was insured for his benefit upon her death, brought an action in the court of common pleas against the Masonic Mutual Benefit Association, of Toledo, Ohio, which he alleged had assumed the obligations of the association issuing the certificate, to recover the amount of the insurance.

The issues in the casq can be definitely and succinctly stated by adopting the statement of the trial judge in his charge to the jury, and that statement is as follows:

“The plaintiff, Bertrand G. Judge, has brought this action to recover the sum of $1,000 and interest thereon from November 1, 1904, which he claims is due him upon a contract entered into between the defendant, the Masonic Mutual Benefit Association, and his wife, Jessie Georgia Judge, since deceased.
“Before calling attention to the issues or questions of fact you must decide from the preponderance of the evidence, I desire to first state those material facts about which there is no controversy, and which you will, therefore, consider as established. These facts are as follows: On or about June 24, 1902, the defendant entered into a contract with the said Jessie Georgia Judge, whereby she became a member of said association. And whereby, in consideration of the payment by her, at the time and in the manner provided by its constitution and rules, of all assessments thereafter called and made upon its members, it promised and agreed to pay to the said Bertrand G. Judge at some time after her death the sum of $1,000.”

I supplement that statement at this point by the statement that the certificate issued by the Mutual Benefit Association for Masons’ Wives, which was a voluntary or unincorporated association, bears date February 19, 1900, and afterward the Masonic Mutual Benefit Association was incorporated, and, by a resolution adopted on May 21, 1902, the Masonic Mutual Benefit Association assumed the risks or the obligations of the other association, and by a letter to members dated June 24, 1902, it stated that it had done so, giving members the privilege of coming in under that arrangement, which Jessie Georgia Judge appears to have done. I proceed with the statement of the trial judge:

“The constitution and rules of the defendant, among other things, provided that assessments upon its members should be called or made by the board of directors as the same were deemed necessary, payable on or before the fifteenth day of the month in which they were made; that notice thereof stating the time payable and amount due should be given each member by mail directed to his last recorded address, and that the amount of each assessment should be determined by the age of the member who was assessed at the time of the assessment, as shown by a table in which the sum of seventy-eight ■cents is given as the amount of one assessment that could be made against a member at the age of twenty-eight years.
“It was further provided that if any member should fail to pay an assessment for fifteen days after notice thereof, he should cease to be a member of the defendant and forfeit all claims to the benefits thereof, as well as all moneys previously paid, and that the mailing of a notice of the making of an assessment, .stating therein the time payable and amount due, directed to the last recorded address of a member, should constitute the notice required by the constitution and rules of the defendant to be given such member. ’ ’

The court then instructed the jury that these rules and regulations to which he had called their attention were parts of the contract entered into between the said defendant and the said Jessie Georgia Judge, and that by them both parties thereto were bound.

At this point I remark that the certificate issued to Jessie Georgia Judge set forth that it was issued in consideration of certain statements, agreements and warranties made by her, and the truth thereof, ■“together with the rules, regulations and by-laws of said association now in force or that shall hereafter be adopted by said association, all of which are hereby made a part of this agreement; ’ ’ and the rules and regulations of the Masonic Mutual Benefit Association provided, as the judge has stated, that the notice of assessments might be given by mailing the same to the last recorded address of a member (which seems do mean the last address recorded by the association in its books provided for that purpose), whereas the certificate before referred to contained the provision, following:

“It is further understood and agreed that the mailing of a notice* of an assessment at. Toledo, Ohio, by the secretary of the association at the last address furnished the secretary by said member shall constitute-a legal notice of such an. assessment.”

"We are of the opinion that the charge of the court to the effect that-the rules and regulations of the Masonic Mutual Benefit- Association became a part of the contract between. Jessie Georgia Judge and that association upon her acceptance of their proposal to assume the- risks- and obligations of the other association, was a correct charge; so that-in so far as the rule respecting the mailing of notice contained in the certificate may have* been modified by the constitution and rules of the-other association, such alteration would amount to a modification of the contract, and would be binding upon the holder of the certificate.. The judge proceeds to state:

“All assessments,levied by said defendant against said Mrs. Judge-prior to December 23, 1903, were paid. While- it is denied by the plaintiff, yet it is established by the uncontroverted evidence that on said December 23, 1903, the defendant, through its board of directors, levied two assessments against, its members, payable on or before January 15, 1904. It is conceded that at said time Mrs. Judge was twenty-eight years of age; that the amount of each assessment that was and could be made against her was the sum of seventy-eight cents. In other-words, I instruct you that on December 23, 1903, the defendant duly and legally levied two assessments against the said Mrs. Judge, amounting in‘the aggregate to the sum of $1.56, which were-payable on or before January 15, 1904. Neither of these assessments were ever paid, and on June 23, 1904, Mrs. Judge died.
“On February 23, 1905, the plaintiff duly made proof to the defendant of the death of his» wife and demanded payment of the said sum of $1,000, but the defendant refused to comply therewith. Thereupon this action was brought to recover said sum of money from the defendant, and the plaintiff based his right thereto upon two grounds: First, that no notice of the assessment levied December 23, 1903, was ever' given his wife by the- defendant, as required by its constitution and rules; and,- second, that on November» 23, 1903, he paid the assessments made that month upon Mrs. Judge and that at that time he requested the secretary of the defendant to change the address of his wife from 408 Segur avenue to 1538 Western avenue, Toledo, Ohio; that said -officer should have but did not record said address, and that by reason thereof she never received any notice from the defendant that it-had made two assessments against her amounting to $1.56 and payable1 on or before January 15, 1904.
“On the other hand the defendant claims that it did cause a notice-of said assessment, stating therein the time payable and amount due, to-be mailed to her, postage prepaid, directed to her last recorded address, and the defendant denies that it was ever requested or notified! to make any change therein. It has been established by the uncon-troverted evidence that the last recorded address of the said Mrs. Judge-was 408 Segur avenue, Toledo, Ohio, and that on and for some time-after November 23, 1903, she lived at 1538 Western avenue in this city.”

I may add that the evidence shows that she moved from Segur avenue to Western avenue about October 1, 1903.

It will be observed that the crucial question in this case was whether notice, as required by the contract between Mrs. Judge and the-association, had been given her, of the assessments levied on December-23, 1903, payable on or before January 15, 1904. The defense of the-company was based on the nonpayment of those assessments, the plaintiff, on the other hand, contending that the obligation to pay had never arisen or, at least, that no forfeiture could be predicated upon the nonpayment for the reason that the requisite notice had not been given.

The case was tried to a jury, which returned a verdict in favor of the defendant. Motion for a new trial having been overruled and judgment entered upon the verdict, the plaintiff prosecutes error to this court, and the principal error complained of and the one that has been most earnestly debated before us and most fully considered by us, is that respecting alleged errors in the charge of the court on the subject of the burden of proof.

As I have said, we are of the opinion that the charge of the trial judge to the effect that the rules and regulations of the defendant became a part of the contract, was correct; but it does not follow that under any and all circumstances a notice mailed to the last recorded address would be sufficient; for, if a failure to record the last address correctly was the fault of the company, and if, because of such fault,, the notice was not received by the insured, then the company could not predicate a forfeiture upon the strict compliance by it with the letter of this rule. In other words, it would be the duty of the company, upon notification and request, to record the address correctly, so that the last recorded address would be the true address — i. e., that of which the company had been notified — and it would devolve upon the company to mail its notice to tbat address, and that duty would be tbe same even though it failed to record that address, precisely as if it had properly recorded it. And the rule should-be so construed that “the last recorded address” would mean the last address which should have been recorded by the company in the performance of its duties.

The question of fact as to whether the company had been notified of this change of address was submitted to the jury. There was a conflict of evidence upon it. I need not take time to recite what the evidence was. It is sufficient to say that‘there was a conflict, and that it was not made so clear and certain by the evidence that the contention of either party was right and should prevail that the court could act thereon as upon a question of law.

If the company had sent the notice to the correct address, either that recorded or that which should have been recorded, then the insured would be in default on failing to pay the assessments, whether she received the notice or not. On the other hand, if the notice was not mailed and addressed in compliance with the rule, then the insured would not be in default unless she actually received the notice; but if she actually received the notice, then it is a matter of no consequence whether the notice had been actually addressed correctly or not. It will be seen that in the one event the mere mailing of the notice would be sufficient to put her in default; in the other event it would be necessary to show that she actually received the notice.

The testimony as to whether she had received the notice was conflicting. Now upon this conflict the judge charged the jury on the law of the case as follows:

“The burden is upon the defendant to prove by the preponderance of the evidence that on or about January 1, 1904, the defendant caused a notice of the two assessments in question, stating therein that they were payable on or before January 15, 1904, and that the amount due was the sum of $1.56, to be given the said Jessie Georgia Judge, by mail, directed to her last recorded address. If you do not so find from a preponderance of the evidence, your verdict will be in favor of the plaintiff. If you do so find from a preponderance of the evidence, then the burden is upon the plaintiff to prove by a preponderance of the evidence that on or about November 23, he paid certain assessments made against his wife, and then requested the secretary of the defendant to change her address to 1538 "Western avenue, Toledo, Ohio. If you do not so find from a preponderance of the evidence, but do find from a preponderance of the evidence that no notice of said two assessments was given Mrs. Judge in tbe manner and form I bave stated, then your verdict will be in favor of tbe defendant.”

Tbe charge thus far was correct; that is to say, tbe correct recorded address being at one time 408 Segur avenue, if tbe insured removed from there so that her address was changed it would devolve upon her to apprise tbe company of that fact, so as to lay upon tbe ■company tbe duty of changing tbe address; and we think it would devolve upon tbe plaintiff: to establish by a preponderance of tbe evidence his contention upon that issue. Tbe charge then proceeds:

“If you find from a preponderance of tbe evidence that tbe plaintiff, on or about said November 23, did request the secretary of tbe de-_ fendant to change the address of tbe said Mrs. Judge, as I bave stated, and further find from &■ preponderance of tbe evidence that on or about January 1, 1904, tbe defendant caused- a notice of said two assessments to be given her in tbe manner and form I bave indicated, you will then determine from a preponderance of the evidence whether said notice was received by her. If you find from a preponderance of tbe evidence that on or about January 1, 1904, a notice of said two assessments, stating therein tbe time, tbe sum, where payable and the amount due, were mailed, postage prepaid, directed to said Mrs. Judge at 408 Segur avenue, Toledo, Ohio, and that at said time it was the custom of the post office department of the United States Government, in this city, to deliver mail addressed to said Mrs. Judge at 1538 Western avenue, Toledo, Ohio, I instruct you that the presumption would arise that such notice was so delivered, and the burden would then devolve upon the plaintiff to remove that presumption by a preponderance of evidence. In other words, the burden would then be upon the plaintiff to prove by a preponderance of the evidence that said notice was not so delivered. ’ ’

We think that under the authorities that charge was correct in part ■and in part incorrect. In other words, we think it was correct to charge that if at that time mail addressed to Mrs. Judge at 408 Segur avenue was customarily delivered to her — that is to say, if, in the usual course ■of the post office department’s business, by reason of knowledge they had •of her true address, or from any cause, it was customarily delivered at her true address, 15-38 Western avenue, precisely as if it had been directed to 1538 Western avenue — then from that a presumption would arise that the notice had been received by her. This so-called presumption is & rebuttable presumption. It is not at all conclusive. It is rather an inference of fact. It is sometimes stated in the authorities in this way: That the mailing of a letter, properly addressed and stamped, affords prima facie evidence that it was delivered to the person to whom addressed. We know that our postal facilities are so efficient, and the practices of the department are so uniformly accurate, that this is a more reasonable presumption or inference at this day than it was when it was. established as the law of England', many years ago.

It is stated in 22 Am. & Eng. Enc. Law (2 ed.) 1252, that,

“The rule ;was announced in England at an early date that if a letter is sent by post, properly' addressed, a presumption of its receipt, by the addressee arises; and this rule is now well settled in the United States. The presumption is based on the known and regular course of1 business of the post office department.”

A great many authorities are cited in support of this proposition.

We do not understand that this branch of the proposition, or this particular part of the charge, is complained of, but what is complained of is the last part of this paragraph, to wit:

“And the burden would then devolve upon the plaintiff to remove - that presumption by a preponderance of evidence. In other words, the burden would then be upon the plaintiff to prove by a preponderance of the evidence that said notice was not so delivered. ’ ’

This proposition is repeated in a somewhat different form further along in the charge as follows:

“If you find from a preponderance of the evidence that on or about January 1, 1904, a notice of said two assessments in the form and manner I have indicated was deposited in the mail, postage prepaid, addressed to said Mrs. Judge at 408 Segur avenue, Toledo, Ohio, and that at said time it was the custom of the post office department of the United States government in this city to deliver mail thus addressed to Mrs. Judge at 1588 Western avenue, Toledo, Ohio, your verdict will be in favor of the defendant, unless you further find from a preponderance of the evidence that said notice was not so delivered. ’ ’

In this paragraph it is not stated that upon proof of such mailing and such custom the burden of proof would then be upon the plaintiff to prove by a preponderance of evidence that the notice was not so delivered, but the effect of placing upon her the burden of establishing this fact by a preponderance of evidence appears to be precisely the same.

We are cited by counsel for plaintiff in error to a number of authorities bearing upon this question, to some of which I shall now call attention. In the case of Huntley v. Whittier, 105 Mass. 391 [7 Am. Rep. 536], a ease upon a contract to recover the price of a velocipede, wherein the chief issue was as to whether the defendant had received notice of completion of the order, Justice Gray says-:

“The depositing of a letter in the post office, addressed to a merchant at' his place of business, is prima facie evidence that he received it in the ordinary course of the mails; and where there is no other evidence, the jury should be so instructed. * * *
“The presumption so arising is not a conclusive presumption of law, but a mere inference of fact, founded upon the probability that the officers of the government will do their duty, in the usual course of business * and, when it is opposed by evidence that the letter was never received, it must be weighed, with all the other circumstances of the •case, by the jury, in determining the questiob. whether the letter was .actually received or not; and the burden of proving its. receipt remains throughout upon the party who asserts it. ” '

In the case of Home Ins. Co. v. Marple, 1 Ind. App. 411 [27 N. E. Rep. 633], this is said in the syllabus:

“We are of the opinion, where actual notice’ is required, evidence •of the mailing of a letter containing such notice, properly addressed and stamped, is prima facie proof of the receipt of the notice, and, if its receipt is not denied, the court may instruct the jury to so find. But if its receipt is disputed, the question should be submitted to the jury to determine from all the evidence, both positive and circumstantial, whether the notice was in fact received or not. If the evidence is undisputed upon the essential fact and but one inference may be properly drawn from it, the court may so instruct the jury, and to that extent control the verdict; but if the evidence is conflicting,-or of such a character that different inferences might be drawn from it, the question must be submitted to the jury without interference on the part of the court except to instruct generally upon the law of the case.”

• Other authorities are cited in the brief .in support of the proposition that notwithstanding this presumption, or this prima facie case made out by proof of the mailing of the letter or notice, the burden of proof to establish the fact rests upon the party asserting that the notice was received — the party who is bound under the issues to establish by a preponderance of evidence at least that the notice was received. There is a late case by our Supreme Court that seems to have escaped the attention of counsel that bears. directly upon this question. The case of Klunk v. Railway, 74 Ohio St. 125. I read from the syllabus:

“On the trial of an action against a railroad company, brought by a locomotive fireman for a personal injury received by him in consequence of a defect in the water gauge glass attached to the locomotive upon which he was employed, an instruction that to overcome the effect of the prima facie evidence of negligence arising from proof of such defect ‘the defendant company is required to satisfy the jury by a preponderance of the evidence that it was not negligent, ’ is erroneous. .
“In such action the burden of proving, by a preponderance of the evidence, the particular negligence alleged, is at all times upon the plaintiff, and while proof of facts sufficient under the statute (section 3365-21 [Lan. 5425]), to create a prima facie presumption of negligence against the defendant casts upon it the burden of producing evidence of equal weight or countervailing force, in order to control or destroy such presumption, yet proof of such facts does not impose upon the defendant, the burden of establishing affirmatively, by a preponderance of the evidence, 'that it was not negligent.
“The rule is, that he who affirms must prove, and when the whole-of the evidence upon the issue involved leaves the case in equipoise, the-'party -affirming must fail.”

This last proposition is a reiteration of the statement of the law made in the ease of Lexington Fire, L. & M. Ins. Co. v. Paver, 16 Ohio 324:

“In cases where the testimony upon any particular issue, leaves it . doubtful whether the affirmative of that issue is sustained, it is a safe and proper course for the jury to find against the party holding the-affirmative. ’ ’

In the course of the opinion in Klunk v. Railway, supra, Judge-Crew takes this question up and discusses it very fully, citing authorities ; and since it may all be found there, it is not worth while for this-court to carry the same matter into this opinion. I cannot forbear, however, reading a part of the opinion, though I do not know that that which I -shall read is more pertinent or forceful than that which I shall’ leave unread. He calls attention, at page 133, to a decision by Justice Deemer, of the supreme court of Iowa, in the case of Gibbs v. Bank, 123 Iowa 736, 742 [99 N. W. Rep. 703], in which that judge states the-rule as follows:

“ ‘When a prima facie case is made out by presumption or otherwise, in order to destroy its effect and shift the burden of producing further evidence, the party denying it must produce evidence tending to negative the claim asserted to a poipt where, if no more testimony is given, his adversary cannot win by a preponderance of the evidence. * * * It is clearly a misnomer of terms to say that the burden of proof swings like a pendulum.from one side to the other during the-progress of a trial. All that is meant is, that the duty of introducing evidence to meet a prima facie case shifts back and forth.’ ”

He also notices Scott v. Wood, 81 Cal. 398 [22 Pac. Rep. 871], in which Hayne, C., commenting upon an instruction given by the trial court in that case, touching the quantum of evidence necessary to rebut a prima facie case, says, page 134:

‘We think that the court erred in telling the jury that the defendant was required to have a preponderance of testimony upon the question mentioned. The term ‘burden of proof’ is used in different senses. Sometimes it is used to signify the burden of making or meeting a prima facie case, and sometimes the burden of producing a preponderance of evidence. These burdens are often on the same party. But this is not necessarily or always the case. And it is by no means safe to infer that because a party has the burden of meeting a prima facie case, therefore he must have a preponderance of evidence. It may be sufficient for him to produce just enough evidence to counterbalance the evidence adduced against him.’ ”

Continuing, Judge Crew says:

“Perhaps one of the best statements to be found of the rule now under consideration, is that given by Chief Justice Shaw in Powers v. Russell, 30 Mass. (13 Pick.) 76, as follows: ‘It may be useful to say a word upon the subject of the burden of proof. It was stated here that the plaintiff had made out a prima facie case, and, therefore, the burden of proof was shifted and placed upon the defendant. In a certain sense this is true. Where the party having the burden of proof establishes a prima facie case, and no proof to the contrary is offered, he will prevail. Therefore, the other party, if he would avoid the effect of such prima facie ease, must produce evidence, of equal or greater weight, to balance and control it, or he will fail. Still the proof upon both sides applies to the affirmative or negative of one and the same issue, or proposition of fact; and the party whose case requires the proof of that fact, has all along the burden of proof. It does not shift, though the weight in either scale may at times preponderate.’ ”

Further quotations are made from authorities giving these rules in different language, but it all amounts to the same thing as applied to this case.

When the case was made out (as we may assume for the purposes of this discussion that it was) of the mailing of this letter, addressed in such a way as that in the usual course it would probably reach the person to whom it was addressed, and therefore a prima facie ease was made out of the receipt of the letter or the notice,vby her, it then devolved upon tbe plaintiff in the case to overcome this prima facie case -or to meet it by sufficient evidence, so that it could not be said that the presumption, or the prima facie case, prevailed; or, in the language of the syllabus in Klunk v. Railway, supra, the burden was cast upon the plaintiff of “producing evidence of equal weight or countervailing force in order to control or destroy such presumption.” Yet the burden was not imposed by the law — as it was by the charge of the court — upon the plaintiff, of establishing affirmatively by a preponderance of evidence that the notice had not been received. If the evidence produced was sufficient to destroy the effect- of this presumption, still — by the law— the burden rested upon the defendant all the time from the beginning to the end of the trial, to establish affirmatively by a preponderance of evidence that the notice was received, and if the problem seemed to the jury to be left by the evidence so evenly balanced that they could not say affirmatively either that the notice had been received or that it had not been received, it was the duty of the jury to find against the defendant in error on that issue; and the jury should have been so instructed.

In a elope case, as this appears to have been, this error in the charge may have been the thing that resulted in the defeat of the plaintiff' upon this issue. At all events, the evidence is not so clear and conclusive against the plaintiff upon this issue that we are able to say he was not prejudiced by this error. The rule upon this subject is stated in the case of McNutt v. Kaufman, 26 Ohio St. 127, in the syllabus, as follows :

“A misdirection of the jury, as to the burden of proof, is error for which the judgment will be reversed at the instance of the party prejudiced thereby.
“A reviewing court having found such error to exist, will not look into the testimony for the purpose of ascertaining whether the verdict is sustáined by the weight of the evidence. ’ ’

Because of this error in the charge, the judgment of the court below will be reversed.

Haynes and Wildman, JJ„ concur.


source: Caselaw Access Project

author: WILDMAN, J.

license: Public Domain

text:
    COUNTIES — CONTRACTS.
    [Huron (6th) Circuit Court,
    March Term, 1906.]
    Haynes, Parker and Wildman, JJ.
    Guy S. North v. Huron Co. (Comrs.).
    No Accounting mat be Had nob Work Done for a Countt on Invadid Contract.
    A contract between county commissioners and one who undertakes to pike a certain county highway is invalid when no record of the commissioner’s meeting has been made, and the auditor’s certificate has not been filed or recorded, as required by Rev. Stat. 2834b (Dan. 4286), and cannot be enforced against the county; nor will an equitable accounting be granted for the labor and material expended on the improvement of the road.
    [For other cases in point, see 2 Cyc. Dig., “Contracts,” §§ 2887-2895; 3 Cyc. Dig., “Counties,” §§ 410, 411; 6 Cyc. Dig., “Municipal Corporations,” §§ ¡977-1044. — Ed'.]
    [Syllabus approved by the court.]
    Error to Huron common pleas court.l
    B. B. Wickham, for plaintiff in error.
    L. W. Wickham, for defendant in error,
   WILDMAN, J.

This ease presents another phase of the questions which have arisen between public bodies and individuals, growing out of, and providing for, the making of improvements, without following legal requirements.

Guy S. North sued the county commissioners of Huron county in the court below, and, upon a demurrer by the defendant board to his petition, it was held insufficient and judgment rendered accordingly, the plaintiff not caring to plead further.

The petition alleges in substance that North had been employed by the board of Huron county commissioners to grade and level the.Hunt’s ■Comers road and to place crushed stone thereon, the contract being a ■■sort of a tripartite one, the township trustees joining in it and subsequently paying for their proportion of the agreed price.

The petition discloses the fact that no record of the meeting of the •commissioners had been made as required by law and that the contract was otherwise invalid by reason of the nonfiling and recording of the .auditor’s certificate, for which provision is made in Rev. Stat. 2834-b (Lan. 4286). The petition alleges that the omission of this-certificate was an oversight. It alleges the doing of the work and the furnishing of the material by North.

The improvement is one where it would seem impossible for a person to make it and subsequently remove the material placed upon the roadbed to any advantage to himself or without destruction of the highway, or injury to it. It is not like the case of the possible removal of a, structure such as a bridge or any other tangible and severable property, the restoration of which to the person furnishing it may, under some circumstances, be made by a court of equity.

"We have had quite a careful adjudication in this state of analogous, questions. Without stopping to read them, reference may be made-especially to the case of Wellston v. Morgan, 65 Ohio St. 219 [62 N. E. Rep. 127], where it was held that no implied contract would arise under-similar circumstances.*’ In Buchanan Bridge Co. v. Campbell, 60 Ohio St. 406 [54 N. E. Rep. 372], it was held that there could be no recovery by a person furnishing an improvement, for the value thereof as upon, an implied contract.

The case of Comstock v. Nelsonville (Vil.), 61 Ohio St. 288 [56 N. E. Rep. 15], held, in reference to a contract with a municipality where-the provisions of a similar statute had been violated, — original Rev. Stat. 2702 (see Lan. 3999; B. 1536-205), — that in the absence of. such certificate, when required, no liability arises against the municipality, even though the contractor has fully performed his contract.

The question has been presented in various ways — sometimes by-suits to enjoin public authorities from carrying out the contract to pay the purchase price; sometimes by mandamus in an effort to compel payment of the price, and as in Buchanan Bridge Co. v. Campbell, supra, in an effort, after other means had failed, to obtain payment by the-person who had furnished the property, by suit for the value of the property furnished, as upon an implied contract.

A case was presented to me in Sandusky county in which the county commissioners had paid for a bridge, without legal authority, the required certificate not having been filed, and suit was instituted by tire prosecuting attorney of the county, to recover, in behalf of the-county, the price so unlawfully paid. In that case, the defendants’ answer alleged that the contract had been performed and the price had been paid to them under the supposition that the certificate of the-auditor was on file and that, as stated in the answer of one or more of' the defendants, the commissioners had represented to the persons furnishing the structure that the proper ’certificate was on file.

There was nothing to indicate that it was impracticable to restore both parties substantially to the status which they had occupied before entering into the contract. The ease, to which I refer for such relevancy. as it may have to the case at bar, is State v. Fronizer, 15 Dec. 613, and X refer also to the cases there cited and considered, one of which is the federal decision, Lee v. Monroe Co. (Comrs.) 14 O. F. D. 43 [114 Fed. Rep. 744; 52 C. C. A. 376], decided by the United'States circuit-court of appeals, wherein the person or company which had furnished-a bridge, was permitted to sue for ¡and recover the bridge, with the value of its use during the time that it was in the possession of the public.

Upon the authorities and principles considered and discussed in State v. Fronizer, supra, I held that the demurrers to the answers of the bridge company and certain agents, ought not to be sustained and I overruled the same. That case has not been disturbed. Whether it; will be, of course, I have no means of knowing; but up to the present time, I am entirely satisfied that the principles are properly enunciated. [The case has, since the rendition of this opinion, been affirmed by the circuit court in State v. Fronizer, 28 O. C. C. 709.] Do these* principles apply to the case at bar ?

The plaintiff, recognizing the difficulties confronting him, has instituted a suit here, not for the recovery of property, an endeavor which, indeed, would seem to be futile by reason of the character of the improvement, — nor for the value of the improvement to the public, — but. he has filed a petition inNequity, seeking equitable relief; in other words,, he seeks an accounting, asking the court substantially to determine how much loss he has sustained by'reason of the mistake which he has, committed in entering into this contract. My associate, in announcing an opinion as to another case a few moments ago, said that so far as, he was concerned, he was very glad th^t the court had been unable to discover any error prejudicial to the plaintiff in error, in the case being decided. I think I may say for all the members of this court that if we could find error in the holding of the court below in the ease at bar, we should very gladly do it. It is a matter of profound regret that the difficulty which has arisen and which the plaintiff in error has encountered seems insurmountable.

As I have said, the plaintiff seeks relief in the way of an accounting for loss which he has sustained by his own mistake. It is not alleged that that contract was entered into by mutual mistake of the parties thereto. It is very doubtful whether, even if it were alleged in the petition that it was a mutual mistake of plaintiff and the commissioners as to the omission of this certificate, it would make the case very much stronger for the plaintiff. The commissioners are not the persons against whom a recovery is sought except in a formal tray* they are the.trustees of the public; they are public'officials representing the people. It is true they are a giwm-corporate body capable of suing and being sued. The property with regard to which the claims ■are made, is not theirs; that is, not theirs in any personal or individual way; they have no private interest in it except that small private interest which every citizen of the, county may have.* Is this the kind of a case against the consequences of which equity will relieve? It is not a case where there is an effort being made to rescind a contract and where, before permitting the rescission, a court of equity will compel restitution by both parties or by neither. There is no averment or ■suggestion that the county commissioners are not willing to restore. It is a matter in which the nature of the property is such that there can be no restoration.

If the plaintiff, without any contract, had gone upon the highway and graded it and placed stone thereon and had endeavored to improve it under a mistake of the law on his part, believing that if he improved a public highway, he would be entitled to receive his pay for it, it would hardly be .contended that that would present a case wherein he could recover from the county, through its officials, damages for loss sustained by him or that he could obtain from a court of equity a decree in his favor for an accounting.

After all, he seems to be basing his claim and the right to a recovery substantially upon- an implied’ contract, in the absence of a valid, express one, and that, the Supreme Court has held in Buchanan Bridge Co. v. Campbell, supra, he cannot do.

The case is a hard one, and the court has been strongly tempted to make a decree that the plaintiff may have an accounting for what he has expended, and the value of his services, and a judgment for such sum as is necessary to make him whole; not to give him a profit, such ■as might be involved in the measure of his right under a legal contract.

But we have concluded on the whole that the court below could not well have done otherwise, under the authorities and the decisions of •our own Supreme Court, than to make the ruling and render the judgment which were made and rendered, and having arrived at that conclusion, there is nothing for us to do but to permit the judgment below to stand. We do it in the hope that if the case shall go' higher, the Supreme Court will find some ground for reversing the judgment of this court, or of suggesting some other way by which Mr. North may recover the value of his services.

It does not appear that there has Deen anything in the way of corruption on the part of either of the parties to this attempted contract. It seems to be an honest claim on the one hand, and a willingness, on the other to pay. The commissioners perhaps feel that they might make themselves personally liable or that they might be departing from their sworn duties if they, having knowledge now of the legal rules, applicable to the claimed contract, should attempt to carry out its provisions by making a payment of the purchase price. The judgment of the court below will be affirmed.

Haynes and Parker, JJ., concur.


text:
    CRIMINAL LAW — VERDICT.
    [Lucas (6th) Circuit Court,
    June 8, 1907.]
    Haynes, Parker and Wildman, JJ.

      George Griggs v. State of Ohio.
    Effect of Finding on'Chakge not in Issue.
    A verdict finding an accused guilty of “assault and battery,” under an indictment that charged only “shooting at with intent to wound,” is not equivalent to an acquittal; and upon such verdict the accused is not entitled to an arrest of judgment or a discharge.
    [For other cases in point, see 3 Cye. Dig., “Criminal Law and Practice,” §§ 927-931, 980-990 — Ed.]
    [Syllabus approved by the court.]'
    ERROR to Lucas common pleas court.
    C. K. Friedman, for plaintiff in error.
    L. W. Wachenheimer, for defendant in error.

      Leave to file petition in error refused by Supreme Court.

   WILDMAN, J.

This is an error case brought to reverse the judgment of the court of common pleas in the trial of George Griggs, upon the charge of shooting at a person with intent to wound. No bill of exceptions, is brought up showing the proceedings upon the trial of the ease, which resulted in a verdict finding the defendant, Griggs, guilty of assault and battery only.

On September 5, 1907, an application which had been made for a new trial on behalf of the defendant, Griggs, was withdrawn, and on Abe same day tbe cause came on to be beard upon tbe motion of defendant in arrest of judgment, wbicb motion tbe court overruled and exception was taken. On tbe same day a motion was made for tbe discharge of defendant, wbicb also was overruled by tbe court, to wbicb ruling tbe defendant excepted. Thereupon tbe court sentenced tbe defendant and tbis proceeding in error was instituted for the reversal of .that judgment.

Tbe contention of the plaintiff in error is, substantially, that the '¿barge of shooting at a person with intent to wound does not involve ■as a lesser offense the crime of assault and battery, of which offense the .jury found the defendant guilty. Numerous authorities are cited to sustain the contention of the plaintiff in error.

It has been held in other states, several of them, that to shoot at a ;person is not to commit a battery upon him. It may be an assault, and 'it is not contended here that it does not amount to that misdemeanor; «but it is urged that the verdict was irregular and not permissible under ■the indictment in that it found the defendant guilty of the additional 'offense of battery. Under our statute we have no crime technically named as “assault and battery.” We have a penalty imposed for an assault of another in a menacing manner or with threats, for beating, etc., but the phrase “assault-and battery” is not used in the statute, and the line between “assault” and “assault and battery” is not always very clearly drawn in the adjudications.

We are all inclined to the view that as the defendant did not seek ■a new trial and did not attempt any reformation of the verdict by exception to its form when it was received, or request that the jury be sent back for further consideration of the case, the contention of defendant that the verdict amounts to an acquittal of the entire charge embodied in the indictment, so as to justify his discharge, cannot be maintained. We do not think that the objection to the form of the verdict, if it be informal, is*such as will work an entire failure of the prosecution. Whether the court committed any error in receiving the verdict or whether the defendant would have been entitled to a new trial if he had pressed the motion which he withdrew, we are not called upon ■to say; but before entirely disposing of the case by affirmance of the .judgment below we may properly refer to two decisions by our own Supreme Court,-which are perhaps to some extent in conflict with decisions cited by counsel for plaintiff in error, rendered by the courts of other states.

In the case of Stewart v. State, 5 Ohio 241, the Supreme Court held that where an indictment charging a crime of a higher grade necessarily included a crime of a lower grade, the jury might acquit the defendant of the greater charge and find him guilty of the less offense, and that under the act of 1831 a party indicted for an assault with intent to kill •could be found guilty of assault and battery. In that case, the indictment was for assault with intent to kill and murder. Upon the trial defendant’s counsel moved the court to instruct the jury, “if they were of opinion that the facts of the case would not warrant them in finding the defendant guilty of an assault with intent to kill and murder, as charged in the indictment, yet that it was competent and lawful for the jury to find the defendant guilty of assault and battery alone.” This charge the court refused to give. The prosecuting attorney asked the court to instruct the jury “that if they did not find the defendant guilty of the assault with intent to kill and murder, they must find him not guilty of the whole charge; ’ ’ and this instruction the court gave to the jury, to all of which the defendant excepted. The indictment contained but one count. The jury found the defendant guilty of the assault with intent to murder, and he was sentenced to three years’ imprisonment in the penitentiary, to reverse which a writ of error was brought.

‘ Judge Lane delivered the opinion of the court as follows:

“ It is assigned for error, that the court refused to charge the jury, that in an indictment for an assault with an intent to kill, they might find him guilty of simple assault and battery, without any such intention; and in charging that in this ease, if the jury found him guilty at all, it must be guilty of the whole accusation.
“A doubt has been raised, whether the bill of exceptions is taken to the refusal to charge, as well as to the actual charge; but a majority of the court believe that it is, although somewhat informal, sufficiently applicable to both.
“We are all of opinion that the charge was erroneous. That a jury may find a verdict of guilty for part, and acquit for the residue; that, where an accusation for a crime of a higher nature includes an offense of a lower degree, the jury may acquit him for the graver offense, and return him guilty of the least atrocious. The cases and examples are collected in 1 Ch. Cr. Law 638, and there is no foundation in this country, for the distinction made in England on this point, between felonies and misdemeanors; for here, an indictment for the higher offense rather adds to, than substraéis from, his privileges.
“Still, we cannot say that the defendant might not be prejudiced by this instruction, and, therefore, the judgment must be reversed. ’ ’

It is manifest that no particular distinction was drawn or sought' to be drawn in that case, between assault and assault and battery. The Supreme Court seem to have deemed the difference between the forms immaterial, perhaps because of there being no distinction in the statute or in the amount of the penalty. In our present statute the penalty is precisely the same whether the offense be technically described as ‘ ‘ assault, ’ or whether it be called “assault and battery.” Whether it be an assault, with threats or in a menacing manner, whatever the kind of offense it be, so far as its details are concerned, if it come under the general definitions in the section of the law describing an assault alone or what we-now call “assault and battery,” the penalty is the same. Of course-the trial judge would take into account the circumstances and the nature of the offense committed by the defendant in the imposition of the-penalty on 'him and it is not likely that a court, having all the circumstances before him, would be affected very largely in determining the-length of imprisonment or the amount of fine by the phraseology in the description of the offense of which the person -is guilty where he must be guilty under a particular section for which a particular penalty is imposed.

In the case of Hanson v. State, 43 Ohio St. 376 [1 N. E. Rep. 136],. it was held that an indictment for assault with intent to rob would support a conviction for assault and battery, and that it was error in the trial court to refuse so to charge.

The Supreme Court in arriving at this conclusion cited from prior adjudications jn Ohio, including Stewart v. State, supra, and to my mind this decision is conclusive of the whole inquiry.

Counsel in oral argument criticise the decision in Stewart v. State, supra, and say that in some case from another state it is said that the Supreme Court relied upon certain adjudications in coming to that conclusion, but there is nothing in the case itself which shows that the .Supreme Court relied upon the adjudications so mentioned. The reference by the Supreme Court is to 1 Chitty, Criminal Law, and some reliance was, undoubtedly placed upon that. It is urged that the Supreme Court was not sustained by the authority cited, but we are not very much concerned with that. The decision of the Supreme Court upon the question was pertinent to that which we have at bar and we adopt it for our guidance even if they seem to have departed from adjudications in other states. The decisions of the court of last resort in the state of Ohio are deemed to be the law for the lower courts until subsequently departed from by the Supreme Court or until their effect is destroyed by legislation.

In State v. Bradley, 6 La. Ann. 555, we have this holding:

“If tbe jury, in rendering tbeir verdict, decide the? whole issue,, and then add other immaterial things, the verdict is not thereby vitiated. The immaterial things so added will be regarded as surplusage.”

Now if it be true that the indictment here charges only “'assault” in the phrase “shot at” and does not charge “battery,” then the finding of the jury as to battery may be deemed a finding as. to an issue not tendered to them — as to some other crime — just as if they had gone out of their way and foupd the defendant guilty of horse stealing,, arson, or anything else, in addition to that with which he was charged, in the indictment. This quotation is given on page 560 in this Louisiana ease:

“Lord Coke lays down the rule, that “If the jury give a verdict of' the whole issue, and more, etc., that which is more is surplusage, and. shall not stay judgment, for Utile per inutile non vitiatur.”

Our -opinion of the whole matter is, that the finding of this verdict' was not equivalent to an acquittal, and that whatever rights the defendant may have had, if any, as to a reformation of the verdict or as. to a new trial, he was not entitled to an arrest of judgment or a discharge. ' We think that the court was entirely right, the motion for a. new trial having been withdrawn, in overruling the motions which were: made and in imposing the sentence.

The judgment of the court below will be affirmed.

Haynes and Parker, JJL, concur.


author: SWING, J.

text:
    EQUITY — SPECIFIC PERFORMANCE.
    [Hamilton (1st) Circuit Court,
    1907.]
    Swing, Giffin and. Smith., JJ.
    Mullen v. Kennedy.
    Specific Performance of Contract to Seel Realty not Decreed, when.
    Equity will not decree specific performance to a purchaser of three separate lots where he brings action for possession of only one of them, and later, after the value of the lots has materially increased, offers to. take all three lots.
    [For other cases in point, see 7 Cyc. Dig., “Specific Performance,” §§ 1-7.— Ed.]
    [Syllabus approved by the court.]
    Appeal from Hamilton common pleas court.
    C. M. Leslie, for plaintiff.
    Shay & Cogan, for defendant.
   SWING, J.

This is an action for specific performance. It appears that Kennedy as executor employed Theo. Mayer & Bro. to sell certain real estate in the city of Cincinnati. It was bought as one tract of land, but was offered and sold in separate lots on the same day to the same person, to wit, the plaintiff. Suit is brought to compel the sale.of only one of the lots bid off.

This is an action in equity and the relief asked for is not granted as a matter of right, but only on equitable principles. We do not think it would be equitable to compel the defendant to convey one lot to the plaintiff and relieve her from taking the other two lots. She should not be permitted to pick out one lot and say she would take that, but not the others. This is in effect what she did. On the trial of the case in this court, plaintiff testified that she was willing and able to take the other two lots, but this comes too late. This action was brought more than two years ago, and since then the value of these lots is probably greatly enhanced and this may be the reason why she is now ready'to take, the other two lots. If she wanted to insist on carrying out the contract of sale as alleged to have been made between the parties, it was only right that she should have demanded that the whole contract should be performed and not a part, for while the tract of land was sold in different lots, it was really one piece of property and sold at one time.

The petition will be dismissed.

.Giffen and Smith, JJ., concur.


author: WILSON, J.

text:
    NUISANCE — DAMAGES—PARTIES—WATERS AND WATER COURSES — TORTS.
    [Franklin (2nd) Circuit Court,
    October 10, 1907.]
    Wilson, Sullivan and Dustin, JJ.
    Columbus (City) v. Ames T. Rohr, Exr.
    City Separately Liable for Pollution of Stream, When.
    In an action for damages for nuisance against a city, in which a county infirmary and a city garbage plant contribute to an injury to a riparian owner’s property by adding to the pollution of a stream of water and causing noxious odors, notwithstanding such injuries cannot be separated and distributed between the offending parties, the jury should be instructed to separate the damage done by the city from that done by the others with the nearest approach to accuracy under the circumstances. The amount of sewage discharged into the stream by each and the degree of polluting properties in each furnish an approximate guide to a reasonable division of the damages.
    [For other cases in point, see 7 Cyc. Dig., “Torts,” §§ 4-12; “Waters and Water Courses,” §§ 107-113. — Ed.]
    [Syllabus approved by the court.]
    Error to- Franklin common pleas court.
    G. S. Marshall, for plaintiff in error.
    G. D. Jones, for defendant in error.
   WILSON, J.

This action was prosecuted in the court below against the plaintiff in error to recover damages for creating and maintaining a nuisance. It appeared in the evidence that the county infirmary and the garbage plant contributed to the injury by adding to the pollution of the stream which caused the damages to the plaintiff's property. The court charged the jury that the city was not liable for the damages, if any, caused by the garbage plant or the county infirmary, but that if they could not separate the injury done by the city from that done by others, a judgment for the entire damage should be rendered against the city.

The plaintiff below recovered a judgment, and it is here claimed that the judgment should be reversed for error in the charge. It will be noted that the immediate cause of the injury was polluted water and noxious vapors; which could not be separated, and distributed between the offending parties, but the ground of action was negligently discharging sewage into the stream so as to cause the pollution of the water and air in the vicinity of the plaintiff’s premises. The deposit of the sewage was the tort, while the pollution was only the consequence. There was no concert between the offending parties. Their acts were separate and independent.

In 21 Am. & Eng. Enc. Law (2 ed.) 719, the general rule is said to be:

“All persons co-operating or participating in the creation or maintenance of a nuisance are liable. * * * But if he (one) acts independently, and not in concert with others, he is liable for the damages, which result from his own act only. And the fact that it is difficult to measure accurately the damage which was caused by the wrongful act of each contributor to the aggregate result does not affect the rule.”'

The text is supported by numerous citations from which may be noted: Little Schuylkill Nav. Co. v. Richards, 37 Pa. St. 142 [98 Am. Dec. 209]; Chapman v. Palmer, 77 N. Y. 51 [33 Am. Rep. 566] ; Sellick v. Hall, 47 Conn. 260; Lull v. Improvement Co. 19 Wis. 100; Sloggy v. Dilworlh, 38 Minn. 179 [36 N. W. Rep. 451; 8 Am. St. Rep. 656]; Harley v. Brick Co. 83 Ia. 73 [48 N. W. Rep. 1000]; Lockwood Co. v. Lawrence, 77 Me. 297 [52 Am. Rep. 763]; People v. Ditch & Min. Co. 66 Cal. 138 [4 Pac. Rep. 1150; 56 Am. Rep. 80].

In Sellick v. Hall, supra, an analogous case, the court, in laying down a rule to guide the jury, on page 274, said:

“It may be very difficult for a jury to determine just how much damage the défendant is liable for, and how much should be left for the city to answer for; but this is no more difficult of ascertainment than many questions which juries are called upon to decide. They must use their best judgment and make their result, if not an absolutely accurate one, an approximation to accuracy. And this is the best that human tribunals can do in many cases. If the plaintiff is entitled to damages and the defendant liable for them, the one is not to be denied all damages, nor the other loaded with damages for which he is not legally liable, simply because the exact ascertainment of the proper amount is a matter of practical difficulty.”

In the ease of Little Schuylkill Nav. Co. v. Richards, supra, which was a case of injury to a water power by deposits from several independent collieries, the court, on page 147, says:

“True, it may be difficult to determine how much dirt came from each colliery, but the relative proportions thrown in by each may form some guide, and a jury in a case of such difficulty, caused by the party himself, would measure the injury of each with a liberal hand. But the difficulty of separating the injury of each from the others would be no reason that one man should be held to be liable for the torts of others without concert.”

In Partenheimer v. Van Order, 20 Barb. (N. Y.) 479, where cattle of different owners united in committing a trespass, the rule laid down was that where tbe owner of the premises could not prove the injury of each cow, the jury would be justified in concluding that each did an equal injury.

In Lull v. Improvement Co. supra, page 102, it is said: ‘ ‘ The argument that there is difficulty in ascertaining the damage done, or caused by the erection of each dam, or that it is impossible, is certainly no reason why one defendant should pay the damage^ caused by another with whom he is in no way connected.

The authorities are, generally, that persons contributing to the ' creation of a nuisance, though acting independently, are jointly liable in equity in a suit to abate the nuisance, but they are not jointly, or jointly and severally, liable in an action at law for damages.

In the case of Boyd v. Watt, 27 Ohio St. 259, it was held in an action to recover damages for habitual intoxication caused by the illegal sales of intoxicating liquors that:

“Where the damages resulting arise from incapacity for business and loss of estate, caused by such habitual intoxication, and it becomes impossible to separate the damages caused by others from those caused by the defendant, he is liable for all such damages, if the natural and probable consequences of his illegal acts were to cause such injury. ’ ’

Presumably the trial court proceeded upon the authority of that ease, which is sáid by Johnson, J., who wrote the opinion, to present the precise question considered in Stone v. Dickinson, 87 Mass. (5 Allen) 29 [81 Am. Dec. 727], distinguished in Little Schuylkill Nav. Co. v. Richards, supra, from a case like the one at bar. The parties were held to be jointly liable therein because they joined in a single act incapable of division or separation, but authorized by all.

In this case the trial court did not proceed upon the theory that the wrongdoers were jointly liable. On the contrary, the jury was instructed that the defendant was not liable for the injury done by the other wrongdoers. We are constrained both by reason and authority to hold that the ease at bar is not of such character as that the court was justified in following the rule in Boyd v. Watt, supra. On the contrary, the jury should have been instructed to separate the damage done by the city from that done by others, with a liberal hand it may be, but with the nearest approach to accuracy under the circumstances. The amount of sewage discharged into the stream by each, and the degree of polluting properties in each, would furnish an approximate guide to a reasonable division of the damages.

The judgment is reversed for error in the charge, and the cause is remanded for a new trial.

Sullivan and Dustin, JJ., concur.


text:
    APPEALS — DRAINS AND DITCHES — EVIDENCE.
    [Wood (6th) Circuit Court,
    April 27, 1907.]
    Haynes, Parker and Wildman, JJ.
    Wood Co. (Comrs.) v. Thomas Shinnew et al.
    1. Scope op Inquiry on Appeal in Ditch Cases.
    The inquiry as to the sufficiency of the outlet of a dfainage ditch is involved in an appeal from a finding in a proposed ditch im- ' provement proceeding, on the ground that the proposed improvement was not conducive to the public health, convenience or welfare.
    2. View op Ditch by Jury Discretionary with Court.
    It is not error for a probate court to refuse to send the jury, in a ditch improvement proceeding, back for a second view of the proposed outlet, though opposing landowners were not satisfied with the first view.
    [For other cases in point, see 3 Cyc. Dig., “Drains and Ditches,” §§ 87-94.— Ed.]
    3. Effect op Judge Entering Jury Room to Give Further Instructions.
    In proceedings before the probate court, in a ditch case, where the jury, after retiring, asked for further instructions, and the trial judge entered the jury room with counsel for both parties and delivered the instructions asked for without objection from either party, such action of the judge cannot be successfully attacked in a reviewing court on .the ground that it amounted to error or misconduct prejudicial to the rights, of a party.
    4. Sufficiency op Evidence as to Sufficiency of Ditch Outlet.
    In a proceeding before the probate court for the improvement of a ditch, opposed by landowners on the ground of the insufficiency of the outlet, the jury, having viewed the entire ditch and the outlet and having heard the' evidence introduced at the trial, is in a better position to say whether or not the outlet is sufficient than is a reviewing court having before it only a transcript of the evidence produced at the trial, and the finding of the jury will not be disturbed when not manifestly opposed to the evidence appearing in the record.
    [Syllabus approved by the court.]
    ERROR to Wood common pleaá court.
    J. E. Ladd and E. G. McClelland, for plaintiffs in error;
    Baldwin & Harrington, for defendants in error.
   PARKER, J.

This "case arises out of a proceeding instituted before the county commissioners for the widening, deepening and straightening of a certain ditch having its outlet ifi the Portage river. The improvement was ordered by the county commissioners and an appeal was taken by Shinnew and others to the probate court on the ground that the contemplated improvement was not necessary or conducive to the public health, convenience and welfare. In the probate court the jury found against tbe appellants wbo carried tbe case to tbe court of common' pleas on error and tbe court of common pleas reversed tbe judgment of tbe probate court, and thereupon error was prosecuted in this court to obtain a reversal of tbe judgment of tbe court of common pleas. Tbe petition in error here recites tbe judgment in tbe court of common pleas, with some details preliminary thereto, and alleges as errors—

1. That tbe court of common pleas erred in its finding that the probate court should have granted a new trial in said cause.

2. Said common pleas court erred in its finding that the probate court was in error in refusing to send tbe jury in said cause to view tbe outlet of the proposed ditch improvement.

3. Said common pleas court erred in its finding that tbe probate court was in error in its charge to tbe jury.

4. Said common pleas court erred in remanding said cause to "the probate court for a new trial.

5. Said common pleas court erred in not affirming tbe judgment of the probate court.

6. Said common pleas court erred in its findings and judgments for tbe plaintiffs in error, when they should have been given for the defendants in error; and for other errors manifest on tbe face of the record.

It becomes essential to ascertain .by an examination of the petition in error filed in tbe common pleas court just tbe grounds upon which that court was authorized to take action, and the ground upon which the judgment of reversal must be assumed to be based.

I find that the grounds of alleged error asserted in the petition filed in the court of common pleas are three:

1. That the probate court erred in overruling the motion for a new trial.

2. That the court erred in rendering judgment for the defendants in' error when it should have been given for the plaintiffs in error.

3. Said court erred in entering- the jury room - after the case had been submitted to the jury, and while the jury were deliberating thereon and communicated with the jury in the absence of said parties or their attorneys; and for other errors apparent upon an inspection of the record.

To dispose at the outset of some matters comparatively simple and easy of disposal, I will say as to this third assignment of error in the court of common pleas, that the fact referred to is disclosed by an agreed statement appended to the bill of exceptions taken in the probate court,, which recites substantially that after the jury had retired for deliberation they asked the court for further instructions, whereupon the .judge entered the jury room, closed the door and held some communi■cation with the jury, and then reported to counsel that the jury wanted further instructions, and that he then said to them that he had given to them all the instructions upon the law which he was able to give, .and that he had nothing more to say in addition to the charge which he had given them. Counsel suggested to the court that he ascertain upon what points the jury desired instructions, whereupon the court .and attorneys for the plaintiffs and defendant entered the jury room- and the court inquired of the. jury upon what points they desired in.structions: The jury then, through its foreman, said to the court that they were unable to determine whether they were to find the outlet for the ditch in question to be sufficient when the water was low in the bed of the river or when it was at high water, and the ■ court thereupon instructed the jury that for the purpose of determining whether there was a sufficient outlet the jury was not to consider the river at extreme low water nor at extreme high water, whereupon one of the jurymen said to the court, “That means we should take' it at its normal condition,” to which the court replied, “No, that is not what I meant, you are to take the Portage river as it is under all conditions, .and determine whether or not it will afford a good and sufficient outlet for the proposed improvement. The river should be taken when under ordinary conditions.” Whereupon the court and counsel retired, and the jury returned its verdict in favor of the defendant. No :specific reference to this incident is made in the motion in the probate court for a new trial; there is no claim of misconduct on the part ■of the court in .entering the jury room, and from the statement which I have read it does not appear that any exception was taken at the time to the, action of the court. In addition to these reasons for disregarding it, it might be said that we see nothing in the entire transaction that could, be prejudicial to the defendant in error. The •court had some communication with the jury. The agreed statement ■of counsel is that the jury wanted further instruction and he said he had given them all the instructions upon the law which he was able to give and that he had nothing more to say in addition to the charge delivered. Assuredly there was nothing in all that hurtful to the parties complaining, and as to all of the remaining transaction recited in this agreed statement, counsel were present, representing both parties, and the court instructed the jury in their presence in .answer to the inquiries of the jury as to the rule which should govern them, and no exception was taken to snob instruction at tbe time, and •exceptions taken to tbe charge previously given could not apply to the instruction given at this stage of tbe trial. We think then that tbe correctness or incorrectness of tbe conclusion arrived at by tbe court ■of common pleas should be determined by an examination of other grounds in tbe petition in error filed in the court of common pleas, to wit: That tbe court below erred in overruling the motion for a new trial. Second, in rendering judgment for tbe defendants in error, that is, for the board of county commissioners, when it should have been rendered for the plaintiffs in error, Mr. Shinnew and others.

At the outset of our examination of the proceedings of the probate court to ascertain whether or not the court of common pleas was justified in the reversal of the judgment of the probate court, we are met with the inquiry as to just what was pending in the probate court — what was appealed to that court from the decision of the county commis■sioners.

The statute provides in substance that the appeal is to be taken upon specific grounds which must be set up in the proceeding for the appeal, and in the case at bar, but one ground was stated, to wit: That ~the proposed improvement was not necessary or conducive to the public health, convenience or welfare. This, then, was the only matter pending in the probate court, and the question involved in the appeal so limited was the only question for the jury, impaneled in the probate court, to consider. Closely connected with this question is another, which has been dwelt upon in argument and is the principal question in controversy here, and that is as to whether the Portage river affords a sufficient outlet for the improvement contemplated by these proceedings. Revised Statutes 4447 (Lan. 7628), provides for various kinds of improvements, including the kind defined in the petition before us, i. e., for improvements by the location and construction, or by the straightening, widening, altering, boxing or tiling of a ditch or water course. In the case at bar we have :a proceeding merely for the widening, deepening and straightening of what seems to have been a previously established ditch or water course. Revised Statutes 4448 (Lan. 7629) contains the provision that the word “ditch” shall be held to include a drain or water course, and the petition for it shall be held to include any side, lateral, spur or branch ditch, drain or water course necessary to secure the object of the improvement, whether the same is mentioned therein or not, “but no improvement shall be located unless a sufficient outlet is provided”; and upon the construction of this qualifying clause and its application to the facts of this case rests the determination of the present controversy.

In tbe first place it is contended that the sufficiency of the outlet Was not a matter involved in the appeal to the probate court. It is said that whether or not the improvement is conducive to the public health, convenience or welfare, is not to be determined by the question whether the outlet is sufficient. Our judgment is, however, that these matters are so intimately interwoven or so closely connected, that we can hardly disassociate the one from the other. It would hardly be conducive to the public-health, convenience of welfare to deepen, widen or straighten a ditch unless it would perform its proper function, that is, carry off the water, and to enable it to do that a sufficient outlet must be found or provided. Without further discussion on this branch of our inquiry, it is sufficient to say that we think that an appeal upon the ground that the-contemplated improvement was not conducive to the public health, convenience or welfare properly involved the inquiry as to the sufficiency of the outlet as a part of the general inquiry as to the character of the improvement.

In the journal entry of the court of common pleas reversing the action of the court below, is stated the supposed errors on which the reversal was based. They are these: That the probate court erred in overruling the motion of plaintiff asking the court to direct the jury to view the outlet of the ditch in question below the bridge near the lower terminus of said ditch and along the Portage river to ascertain whether or not the water would back up in the proposed ditch. Erred in giving in charge to the jury the last sentence of the request of the defendants to charge the jury, which request is marked No. 1; and also erred in overruling the motion of -the plaintiffs in error for a new trial of the cause.

We have examined with care the bill of exceptions taken in the probate court and are unanimously of the opinion that no error was committed by that court in its refusal' to send the jurors back for another view, or a more extended view of the proposed outlet for the ditch. It seems that the jury having been previously instructed by the court, visited the line of the proposed ditch improvement and stationing themselves at first upon a bridge, obtained a view for some distance along the Portage river, the proposed outlet, and that they viewed the entire route of the ditch itself. Counsel for the landowners opposing the improvement were not satisfied with this view, and asked the court to send the jury back for another; this, the court declined to do, and exception was taken, and for that action the common pleas court, as one of "the grounds, reversed the judgment of the court below.

This was doubtless a matter somewhat in the discretion of the probate court. It probably would have been within the power of the probate court, if not satisfied that the jurors had made a sufficient view to apprise themselves of all the conditions, to send them back for another view; but we see nothing in the statute and nothing in the circumstances of this case that made it error for the probate court to refuse so to do.

The court of common pleas based its action also upon a claim of error in the charge to the jury, i. e., the last sentence of the request of the defendants marked No. 1. I will read the entire request:

“In arriving at your verdict, you should not only consider what the witnesses have testified to, but you will also consider the facts appearing to yon from the view you had of the premises along the line of the ditch, and if from the testimony adduced and your observation along the line of the proposed ditch you should find that the ditch as a whole is conducive to the public health, convenience or welfare of the neighborhood through which it passes, and that it has a sufficient outlet, you will find for the ditch improvement. The fact that a large number of landowners in the vicinity in which the ditch is located are opposed' to such ditch should have no bearing or weight with you in determining the question before you.”

It is not seriously contended that the opposition of any number of landowners to the improvement should have been considered by the jury in arriving at their verdict, but the contention of counsel is, as I understand it, that the tendency of this instruction, was to mislead the jury-into a disregard of,the testimony of the landowners as to the facts which were proper to be received for the enlightenment of the jury. We hardly think, however, that this would be a natural result of this instruction. The court had immediately before as a part- of the same request instructed the jury that they should consider what the witnesses had testified to; not the witnesses for one side or witnesses for the other, but. all the witnesses; and snrely intelligent jnrors could not assume that the court was intending that they should disregard the testimony of' some of the witnesses because they were landowners along the line of this, ditch.

Taking the instructions of the court as a whole in connection with this instruction, we think that it is not probable that the jury was. misled by this clause or this sentence, and our judgment is, that the-court of common pleas erred in holding that there was error onSthe .part of the probate court in giving this instruction.

The court of common pleas held that the probate court erred in overruling the motion of the plaintiffs for a new trial of said cause. We are not advised as to the precise ground on which the court of common pleas so held. It may have been one of the two grounds which this court has considered and reviewed, or it may have been the conclusion of the court of common pleas that the finding of the jury in the probate court was not warranted by the evidence; and assuming that this may have been the ground of the conclusion of the court of common pleas, it is proper that we consider for a moment whether such a conclusion of .that court, if it was in fact arrived at, was justified.

There is evidence, pro and con, as to the «sufficiency of the Portage river as an outlet for this proposed improvement. It is a matter of some doubt whether Rev. Stat. 4448 (Lan. 7629) providing that no improvement shall be located unless a sufficient outlet is provided, has ¡application at all to the improvement of old ditches. We are not quite -clear as to whether the words “widen, deepen, straighten, etc.,” were intentionally omitted from this section. They are used in Rev. Stat. 4447 (Lan. 7628) and it is possible that the legislature had it in mind that only one finding of an outlet for a ditch established by the -county commissioners would be necessary and that when a sufficient -outlet had once 'been obtained, the ditch then located and established ■might thereafter be improved, preserving the same outlet for the «escape of its waters. We do not care, however, to more than suggest .-,a query as to the tenability of this construction of Rev. Stat. 4448 -(Lan. 7629). It is plain enough that the deepening and widening of a -ditch might thereby cause more water to go into the outlet than ■-the ditch carried in the form of its original construction, and That fact .might have some tendency to sustain the contention of counsel for the opposing landowners here that Rev. Stat. 4448 (Lan. 7629) •requires a finding of a sufficiency of outlet for every kind of improvement to a ditch already established, as well as upon the original location of a ditch. The statute provides for a view of the ditch by the jurors, and by two decisions of our Supreme Court it has been held that the view so obtained by the jurors is to be treated as evidence; in-other words, that they may use for the purpose of aiding them in their inquiry all the light which they obtain from their personal examination of the ditch. It has been held under other statutes as to views by jurors, that the view.is»to be treated only as a means of applying evidence and not as evidence in itself. The cases referred to are Williams v. Lockoman, 46 Ohio St. 416 [21 N. E. Rep. 358], the syllabus of which is:

“On an appeal to the probate court from the order and finding of a joint board of county commissioners, determining that a proposed ditch is necessary, and will be conducive to the public health, eonvenience and welfare, tbe jury, in examining and determining the matter appealed from, may, under Sec. 4467 [Lan. 7650] of the Revised Statutes, consider in evidence, facts made known to them personally from an actual view of the premises.”

And in the case of Lake Erie & W. Ry. v. Hancock Co. (Comrs.) 63 Ohio St. 23 [57 N. E. Rep. 1009], Judge Williams on page 28 cites the case of Williams v. Lockoman, supra, adding, that the jury were entitled to consider, as evidence on this subject, facts brought to their knowledge from their actual view of the premises.

Neither this court, nor the common pleas court, has had the advantage of a view of the premises in controversy. The jurors had this that was valuable aid for and means of determining the issue between the parties, not afforded to either of these courts of review. If the evidence, irrespective of the facts placed before it by the view, was manifestly inconsistent with the conclusion at which the jury arrived, it might be proper for a reviewing court to reverse the finding of the jury, but we cannot,, from an examination of the evidence here, arrive at that conclusion. It is entirely possible that the jury standing upon the bridge' and overlooking the river, seeing the height of the bank, the width of the river, knowing the size of the ditch, knowing the extent of the proposed widening and deepening thereof, may have been enabled to form a judgment even more intelligent and more satisfactory than that-which could be arrived at by listening to the opinions of any number of’ witnesses; and we conclude that the court of common pleas, under all the' circumstances and in view of the manifest conflict of testimony of thp witnesses who were sworn and had testified was not justified in setting' aside the verdict that the jury, arrived at by both testimony and view,, upon the ground that it was not supported by the evidence.

There was testimony that the outlet was sufficient. It may be apparent that at some times the Portage river overflows its banks, does not at all times carry off all the water which is discharged into it by streams, drains, ditches and other water courses, and. still we hardly think that that circumstance alone is a sufficient reason for holding that the outlet is insufficient. If at times it overflows its banks, it does no more than the Mississippi river or the river Nile, and yet it can hardly be said that those mammoth water courses are, not sufficient outlets in which to discharge the waters deposited upon the adjacent country constituting their valleys by rainfall or otherwise.

It is our judgment that the common pleas court was not justified in reversing the probate court upon any of the grounds stated in the journal entry, and we think that the petition in error to this court should be sustained upon each of the six grounds specified. Some of those are perhaps merely formal and are but restatements of others.

The judgment of the court of common pleas will be reversed, the judgment of the probate court will be affirmed, and a mandate sent to the probate court for further proceedings in conformity t'o the law.

Haynes and Wildman, JJ., concur.