author: TAGGART, J. Craine, J.,

text:
    ASSESSMENTS — HIGHWAYS.
    [Licking (5th) Circuit Court,
    1908.]
    Craine, Taggart and Donahue, JJ.
    Charles C. Kasson, et al. v. Licking Co. (Comrs.) et al.
    One Mile Assessment Law Confined to Lands Laterally and Within the Termini.
    Under Sec. 4670-14 R. S. (G. C. 6926 to 6929), the one mile road assessment act, the taxing district is confined to one mile of the improvement within a line drawn at right angles with the termini thereof, and injunction lies against assessment for lands lying beyond its termini.
    Appeal from court of common pleas.

      Smythe & Smythe, for plaintiffs.

      J. R. Fitzgibbon, Pros. Atty., for defendants.
   TAGGART, J.

This cause is submitted to the court upon the pleadings and agreed statement of facts. The plaintiffs seek an injunction restraining the commissioners and tax-collecting officers of the county from collecting or attempting to collect assessments levied by the commissioners upon the respective lots of lands owned by said plaintiffs in said county, and beyond the termini of the improvement, to pay for which said levies were made.

It appears from the agreed statement of facts that on May 8, 1907, the board of county commissioners ordered the improvement of that portion of a certain public highway in said county of Licking, known as the Johnstown and Sunbury road, extending from the county line of Delaware and Licking counties, southeasterly to the west corporation line of the village of Johnstown, in said county of Licking, by grading and covering the surface thereof with stone, and by authority of and in accordance with the provision of See. 4670-14 R. S. (G-. C. 6926), and the question presented in this case involves the construction of that statute.

It appears further from the agreed statement of facts that the commissioners have levied an assessment against the lots and parcels of real estate lying within one mile of the southeasterly terminus of the improvement, and lying without the village of Johnstown, making no levy whatever upon the village of Johnstown or upon the lots or parcels of land therein situate, although all of said village is within one mile of said terminus.

It is also shown by the agreed statement of facts that if the. commissioners have a right to levy a tax upon the real estate in the municipality of Johnstown, then the original petition praying for this improvement did not have the requisite number of' signers therefor, and consequently the commissioners were without jurisdiction to proceed with said improvement or to levy said tax.,

"We are of the opinion that if this statute in question under which these proceedings were had authorized the commissioners, to levy an assessment against lands lying within one mile of the terminus of said improvement, that it necessarily follows that the village of Johnstown and the property therein situated would be subject to such a levy. This, we think, clearly appears, not only from the general legislation on the subject of roads and highways and improvements thereof, but the adjudicated cases are, to our mind, all to that effect.

While the exact question was not before the court in the case of Lewis v. Laylin, 46 Ohio St. 663 [23 N. E. Rep. 288], yet the reasoning of the court in that case applies with equal force to this one.

On page 675, Judge Bradbury, announcing the opinion of the court, says:

“It is true that Sec. 2640 R. S. (G. C. 3714), in very general terms gives to municipal councils the ‘ care, supervision and control of all public highways, * * * within the corporation/ The power conferred by this section is full and ample; but it contains no words directly excluding that conferred by the statute upon the county commissioners. If it has that effect, it amounts to a repeal of the latter statute by implication. Repeals of this kind are not favored.”

Again, on the same page, he says:

“The legislature, by the provisions of Sec. 2640, R. S., bestowed a very general control over the highways within municipal corporations, but, at the same time, they have preserved to the county commissioners a power to improve those public highways which are a pai’t of the general road system of the county, though they may happen to lie partly within the limits of the municipality. ’ ’

As we understand the pleadings and the agreed statement of facts, the lands and parcels of land owned by the plaintiffs and those in interest with him, lie beyond this terminus of the improvement, and therefore from the conclusion we have reached Avould be entitled to an injunction, not only because the assessment is not uniform to the prejudice of plaintiff and those for whom he sues, but because the commissioners were without jurisdiction to order the improvement or to levy the assessment, if they are at all entitled to levy an assessment within one mile from the end of the improvement, as well as on the sides. So it could make no difference whatever in the disposition of this case before us Avhether the commissioners have such a right or have not such a right.

But there is another important question involved in this case which ought to be determined, and one that Ave are not so clear upon, and that is as to whether or not the commissioners have any right to levy an assessment upon the lots and parcels of land Avithin one mile from the end of the improvement or whether the assessment should be confined to the sides. The legislation on this subject is very indefinite and uncertain, and is one that ought to go to the’Supreme Court at an early date for an authoritative determination, because it is of vital importance to the ehtire state. A majority of this court, however, have reached the conclusion that the commissioners have no such' authority. If this section were standing alone we would have no hesitation in saying that they would have such authority, but in view of the other legislation on kindred subjects and the construction given thereto by the Supreme Court of this state, Ave are forced to a different conclusion.

Section 4786 R. S. (Sec. 7254 G. C.), which applies to one mile assessment pikes, provides, in so many words, that the assessment shall be levied “on real and personal property within one mile on each side of the free turnpike road. ’ ’

Section 4835 R. S. (Sec. 7332 G-. C.), which applies to the twro mile assessment pikes provides:

“No lands shall be so assessed which do not lie within two miles of the proposed improvement, and the distance from either side, end, or terminus of the road; and the lands that have been assessed for the expense of any improvement made under the provisions of this chapter, shall not be reassessed under subsequent proceedings for an extension of the same, unless the prior assessment be not deemed proportioned to the whole benefit resulting to such lands.”

The language of both these sections is clear and unequivocal, and the Supreme Court of Ohio, in considering Sec. 4786, in the case of Lear v. Halstead, 41 Ohio St. 566, says, on page 569 :

‘ ‘ The provision in this section which requires that extra taxes shall be levied on real and personal property within one mile on each side of the turnpike road, does not, we think, embrace lands within one mile as measured from the end of the road, but only as measured from either side of the road and between the termini of the same. The lands therefore, situated beyond the terminus of the turnpike, and lying outside of the line drawn from the terminus at right angles with the last course of the road were not subject to taxation. The legislative intent seems plain. If it had been designed to extend the tax limits, so as to include territory and personal property beyond the end of the turnpike, the legislature, it is presumed, would have made it manifest by appropriate language. It did not fail to do so in the act commonly known as the two mile road improvement law, wdiich provided that no lands should be assessed which did not lie within two miles of the proposed improvement, and that such distance of two miles might ‘be computed in any direction from either side, end or terminus of said road. ’ ’ ’

The section under consideration, to wit, 4670-14, R. S. (Sec. 6928 G. C.), provides, “that when'a majority of the resident owners of any real estate lying and being within one mile of any public road, shall present a petition, ’ ’ etc.

In view of the announcement made by the Supreme Court in the case of Lear v. Halstead, supra, “That if the legislature had designed to extend the tax limits, so as to inelnde territory and personal property beyond the end of the .turnpike, the legislature, it is presumed, would have made it manifest by appropriate language,” it appears to a majority of the court that the correct construction of this statute would require that the levy should be limited within one mile on each side of the improvement, and this construction seems to us to be the only possible one, in view of the fact that there is one section which expressly provides that the taxing district shall include the property within two miles of the end, 'as well as the sides, and in view of the fact that the legislature is presumed to have known the construction given by the Supreme Court in. Lear v. Halstead, supra, and to have known that that court said that if it is intended to extend the taxing district beyond the terminus it ought to use plain and appropriate words to do so.

Another argument in favor of this construction is that under the provisions of this section that the lands within a mile of the terminus of the road would be subject to a second assessment for the continuation of the improvement and in the only statute providing for the extension of this taxing district, to wit, the two mile assessment statute, it is expressly provided that this shall not be done, unless it appear that the property has not paid its full share of the cost of the improvement, with reference to the benefits conferred. Bnt we find no such provisions in this section before us, and the construction contended for by the defendant would necessarily leave this land subject to a second assessment without regard to the amount paid on the first assessment, an altogether unfair distribution of burdens for public improvements.

We are therefore of the opinion that the taxing district for this improvement must be confined to one mile on each side of the improvement, and within a line drawn at right angles with the termini thereof, and that being true the county commissioners had jurisdiction to order the improvement and to levy the assessment upon those lands, but had no authority to levy an assessment on the lands beyond the improvement, and as to these levies the defendants will be enjoined from collecting or attempting to collect the same.

Motion for new trial will be overruled and exceptions noted, and if counsel desire a finding of fact from the agreed statement of facts, they can prepare the same and file it, or they can use the agreed statement of facts- used in this court for the purpose of prosecuting error to the Supreme Court.

Craine, J.,

dissenting.

I do not concur in the construction placed by a majority of the court on Sec. 4670-14, R. S. The- majority of the court hold, as I understand them, that only the lands lying and being within one mile on each side of the improvement can be assessed.

Under the two. mile .assessment act, found in Sec. 4835, R. S., the law reads:

“And no lands shall be so assessed which do not lie within two miles of the proposed improvement, and the distance of two miles may be computed in any direction fr'om either side, end, or terminus of the road. ’ ’

Under this act, the legislature made it very plain and certain that the assessment might extend to any land lying within two miles from the end of the improved road.

Under the one mile assessment law, Sec. 4786, R. S., reads as follows, in part:

“Extra taxes levied as hereinbefore provided shall be on real and personal property within one mile on each side of the fre'e turnpike road. ’ ’

Under this section the legislature made it very plain and certain that the assessment could be made only on lands lying within one mile on each side of the improvement.

Section 4670-14, R. S., the one under which this improvement was made, provides that: ,

“When a majority of the residence owners of any real estate lying and being within one mile of any public road, ’ ’ etc.

My interpretation of this statute is that it means exactly what it says, and if land lie and be within one mile of this improven ent, it may be assessed its part for the construction of the same.

In Slingluff v. Weaver, 66 Ohio St. 621 [64 N. E. Rep. 574], a portion of the syllabus reads as follows:

“But the intent of the lawmakers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of a lawmaking body, there is no occasion to resort to other means of interpretation. The question is not what did the general assembly intend to enact, but what is the meaning of that which it did enact? That body should be held to mean what it has plainly expressed, and hence no room is left for construction.
“The language of the act of May 12, 1902, entitled ‘An act to’ amend Sec. 6710, as amended 93 O. L. 255, of the Revised Statutes,’ is plain and free from doubt, and effect must be- given to its clear impost without regard.to the consequences which may result. ’ ’

In my judgment, the language found in Sec. 4670-14, R. S., is plain and unambiguous. It says that the “real estate lying and being within one mile of any public improvement shall be taxed. I think that if the land lies and is within one mile of a public improvement it is assessable, irrespective of whether it is one mile from an end or one mile on the side.

The majority of the court call particular attention to the fact that under the two mile assessment act above referred to, the legislature expressly provided that the assessment might be within two miles of the end of the improvement, and nence argue that if the legislature had intended Sec. 4670-14 to extend to and include lands lying and being within one mile of the end of the improvement, it -would have said so; but it will be recalled that under the one mile assessment act just referred to, when the legislature wanted the assessment to apply only to lands being within one mile on each side of the improvement, it said so; and I might argue with equal force that if the legislature had intended Sec. 4670-14, R. S., to apply only to lands lying and being within one mile on each side of the improvement, it would have said so.

It is said also by the majority of the court that it would be inequitable to assess this upon the lands within one mile of the end of the road, because within that distance the town of Johns-town is located and that that property might be reassessed. With that I am not concerned. That is a question for the legislature. It has, however, provided a means of eliminating all embarrassment that might arise from such a condition, because under Sec. 4670-14, R. S., the land is to be assessed according to the benefits, and that question can be taken care of under the method of assessing. There is no doubt but what the county commissioners would have a right to improve this road through the town of Johnstown. This is held in Lewis v. Laylin, supra. There is no doubt hut what the legislature had the constitutional right, in passing See. 4670-14, R. S., to include lands lying'and being within one mile from the end of the road, and I think that the language used in that section clearly imports lands lying and being within one mile from the end of the road.

Donahue, J., concurs.


source: Caselaw Access Project

author: ALLIREAD, J.

license: Public Domain

text:
    SPECIFIC PERFORMANCE.
    [Madison (2nd) Circuit Court,
    March, 1912.]
    Dustin, Allread and Ferneding, JJ.
    Charles F. Sanford v. Vynal Harbage et al.
    1. Specific Performance not Barred by Existence of Mortgages against Land Involved.
    The existence of mortgages on land involved in an action for specific performance does not bar relief, where willingness is shown on the part of the mortgagees to accept the amount of the indebtedness and cancel the mortgages.
    2. Petition in Specific Performance Averring Plaintiff’s Readiness to Perform Sufficient without Tender.
    A petition in an action for specific performance, which alleges that the plaintiff is ready and willing to perform and has offered so to do but has been met by refusal and repudiation of the contract by the defendant, is not open to demurrer on the ground that no sufficient tender is averred.

      3. Payment of Purchase Money Due on Complex Contracts for Purchase and' Sale Sufficient for Specific Performance.
    Under the contracts for the purchase and sale of land involved in the present pase, the plaintiff is entitled to a decree of specific performance upon paying into court the amount of purchase money due.
    Appeal from common pleas court.

      Murray <& Emery, for plaintiff.

      Lincoln & McCloud, for defendants.
   ALLIREAD, J.

This action is one for a specific performance and involves two complex and dependent contracts.

On May 1, 1909, William Wilson and wife by written contract sold outright a portion and gave an option for the remainder of his farm of 435.15 acres to Vynal Harbage, his heirs and assigns.

May 7 Harbage complied with the condition of the option and thereby became purchaser by contract of the entire farm.

Five hundred dollars was required to be and was paid in cash on May 1. The contract gave the purchaser the right to make advance payments to the amount of $7,000, but the contract was to be finally complied with on March 1, 1910, by the payment of the balance of the' purchase money by Harbage and the conveyance by Wilson by warranty deed to Harbage “or to his heirs, executors or assigns. ’ ’ The contract expressly provided that all liens were to. be canceled and the premises were to be free and clear.

On May 7, at the time the option was accepted, Harbage and Sanford entered into a written contract reciting the option and purchase of the Harbage-Wilson contract and stipulating for the purchase by Sanford of the easterly half of the 435.15 acres upon certain terms therein stated.

When the contracts were executed, there were three mortgages upon the real estate sold. Two w^ere held by the Citizens Bank of South Charleston, both dated February 20, 1908, one calling for $17,000, due in five years, at 6 per cent interest payable annually, and with privilege of paying not exceeding one-fifth of the principal on any interest payment day, and the other calling for $5,000, due also in five years, at 6 per cent interest payable annually, and with privilege of paying the entire principal on interest payment day in case the farm was sold within the preceding year.'

The third mortgage was dated February 24, 1908, given to A. T. Cordray (and assigned to the Madison National Bank) to secure a note for $5,000 due in three years, with 6 per cent interest payable annually.

The $500 paid to Wilson on May 1 was credited on a $2,000 note secured by mortgage on real estate in Clark county.

While the Harbage-Sanford contract was being written Sanford paid to the Madison National Bank the Cordray note and mortgage of $5,000 and the balance of $1,500 of the note and mortgage on Clark county lands, and took assignments thereof.

The 435.15 acre farm was somewhat irregular in form and had a frontage near the southwest corner up'on the National pike and also a frontage on the westerly side upon the Seaman country road.’

The contract provided for the naming of a surveyor by agreement to survey the dividing line. Surveyor Asher was according to the evidence so designated, and made-notes of what he considered a practical division of the farm. Sanford and also Asher made efforts to have a date fixed for the survey. Nothing was accomplished until on February 24, when Harbage called Asher by phone and fixed the following morning as the date for the survey. Sanford had previously made an arrangement to deliver stock at a distant point but upon notice requested Asher to attend and make the survey and státing that he, Sanford, would abide by the result. Asher and Harbage appeared at the time fixed. Harbage was unwilling to have Asher proceed in the absence of Sanford and Asher did not feel willing to do so. Harbage remained a short time and. then left. _ Sanford came shortly after Harbage had gone, but nothing was done toward making the survey.

On February 28, the day before the contracts were .to be performed and eight days after interest day, Wilson, in pursuance of an arrangement made by him and Harbage, went to the Citizens National Bank of South Charleston and gave a check upon the Madison National Bank of London for the amount of' the $5,000 note and mortgage and for the sum of $3,400 of the principal of the $17,000 note and mortgage.

On March 10, Wilson and wife conveyed to Celeste Harbage (who is the wife of Vynal Harbage) sixty acres off the west side and to Vynal Harbage the balance of the farm at the price agreed upon in the contract of May 1. The only departure from the exact terms of the contract was the conveyance of the sixty acres to Celeste Harbage and the conveyance subject to the mortgages which were assumed by Harbage as part of the purchase-money.

Sanford, on the date for final performance, had made arrangements for the funds necessary to comply with the contract and had further arranged with the Citizens Bank of South Charleston to send the notes and mortgages to London’ for payment and cancellation and was ready to surrender and cancel the note and mortgage held by him, and the offer to comply was-communicated to Harbage who claimed to be willing but unable-to comply because of the existing mortgages.

Many interesting questions are involved upon which we express briefly our views.

The evidence is not sufficiently clear and convincing to move-a court of chancery to declare a resulting trust upon the first contract in favor of Sanford. Whatever interest and rights. Sanford has are governed and controlled by the terms of the-contract of May 7

Wilson was bound by the contract of May 1. He contracted thereby to convey to Harbage or “to his heirs, executors and assigns,” but that clause did not bind Wilson to make conveyance of a part or all of this real estate to Sanford. The effect of the second contract was to create an equitable assignment pro tanto. Such partial assignment, however, based upon adjustment of consideration and other questions was not binding upon Wilson, except to call upon him after notice of Sanford’s, equity to comply fairly with his contract with Harbage.

It was stipulated in the Harbage-Sanford contract, “that if by reason of the failure of the title to said real estate or if for any other reason not within the control of said party of the first part (Harbage) that he should not receive said real estate from the said William Wilson as provided in his contract with him,” then said Sanford to have no right of action for damages under the second contract.

It may, therefore be conceded that both under the law as well as by the express terms of the contract Harbage would be relieved from the Sanford contract, if performance of the first contract failed from want of title or any other cause without his fault. It is clear, in fact not disputed, that the conveyance to Celeste Harbage of the sixty acres off the west side does not of itself affect the question here.

We are of.opinion that the survey provided for contemplated the fixing of a boundary line, from the contract. Sanford was diligent in trying to bring about the survey and is not chargeable with its failure. The line of division under the contract is a north and south line so drawn as to divide the farm equally and may yet be surveyed under order of the court.

Counsel for defendant contend that the existence of mortgages upon the premises, not due or capable of discharge, at the date fixed for final performance, defeats the right of the vendee to relief. In the same connection it is urged and insisted upon that Wilson’s conveyance to Harbage subject to the mortgages does not amount to a conveyance by Wilson “as provided in his contract,” and that, therefore, the Harbage-Sanford contract can not be executed. The following cases are cited: Lucas v. Scott, 41 Ohio St. 636; Peoples’ Savings Bank Co. v. Parisette, 68 Ohio St. 450 [67 N. E. Rep. 896; 96 Am. St. Rep. 672].

We think these eases are distinguishable in two vital respects :

(1) The contract in each of the cases cited was defeated without fault or procurement of the vendor by a third party holding an inconsistent title.

Here the mortgagees were willing to release upon satisfaction of their claims. This is shown by. the testimony of the mortgagees, who are disinterested and reputable, corroborated by the fact that they accepted $8,400 after interest day although not legally bound. Harbage arranged for Wilson to make this payment. There is no doubt from the evidence but that the whole of the debt would have been accepted if tendered. The default here was clearly that of Harbage and Wilson who had expressly contracted to give a clear title. There is no principle better settled and more universally recognized, both at law and in equity, than that a party should not be allowed to take advantage of his own wrong.

(2) The encumbrances here, unlike those in the cases cited, are capable of direct compensation in money.

There is no substantial difference between a vendeé assuming a mortgage as part of the purchase money and his paying the' purchase money in full and having the mortgage discharged therefrom.

This view finds support in 36 Cyc. 639. Among the cases cited in this authority is that of Megibben v. Perin, 7 O. F. D. 129 (49 Fed. Rep. 183), by Judge Sage, in which the following is laid down:

“A vendee can not avoid a specific performance of his contract because of a mortgage on the lands when it appears that an agreement has been made for the discharge thereof immediately upon the transfer, which discharge can be provided for in the decree.”

There are cases from other states cited, and in some of these cases it appears that’ both parties knew of the existence of the mortgages at the time of the contract. The case of Rife v. Lybarger, 49 Ohio St. 422 [31 N. E. Rep. 768; 17 L. R. A. 403], and some other Ohio cases indicates the practice of courts of equity in providing in the decree against encumbrances. See also, Pomeroy, Specific Performance Sec. 342; Grimshaw v. Hart, 6 Rob. (La.) 265; Rinaldo v. Hausman, 52 How. Pr. (N. Y.) 190.

The existence of the mortgages upon the premises in view of the willingness of the mortgagees to receive the debt and cancel the mortgages does not bar relief.

It is urged that there was no mutuality in the contract of May 7 as between Harbage and Sanford. The want of mutuality is based upon two propositions:

(1) That there is no express promise on the part of Sanford to pay the consideration.

We are of the opinion that Sanford’s obligation to pay arises as a necessary inference.

(2) That Sanford was not bound to take the real estate subject to the mortgages.

It was, however, the duty of Wilson and Harbage, so far as they could, to remove the mortgages. The evidence shows clearly that they were in a position to do so. They could, therefore, have removed the mortgages and enforced the contract. Their failure to do so because they do not wish to do so, does not show a lack of mutuality in the contract.

It is insisted that no sufficient tender has been averred and proven to support the action. The leading cases of Brock v. Hidy, 13 Ohio St. 306, and Wiedemann Brew. Co. v. Maxwell, 78 Ohio St. 54 [84 N. E. Rep. 595], are decisive. The petition avers that Sanford was ready and willing to comply, and offered to do so, but was met by refusal and repudiation of the contract on the part of Harbage. This averment makes the petition good against demurrer.

The evidence shows clearly that on March 1 Sanford was ready and willing to perform and had offered to do so; that although not required by his contract to do so, Sanford had arranged for the payment and release of the mortgages and he made demand on Harbage for compliance on his part. We can not reconcile the evidence upon any other theory than that Harbage, in substance and effect, refused to perform and denied the validity of the contract.

Sanford, and his brother and Mr. Murray so testified, and Harbage himself admits, that he told Sanford that he could not comply on account of the mortgages on the land. Reducing this to a candid analysis, we are forced to the conclusion that no compliance was intended and that a further tender was thereby dispensed with.

The failure of Sanford to bring the tender into court does not bar relief in equity.

Sanford’s rights attached as against Harbage as an equitable assignment pro tanto of the original contract and are superior to the dower rights of Mrs. Harbage. It is proper, therefore, to decree a removal of this cloud.

We are, therefore, of the opinion that plaintiff’s right to a decree for a specific performance is clear, and it will be awarded upon plaintiff paying into the court the purchase money due under the contract. The plaintiff asks the court in case the description furnished in the petition is not accurate to require a competent surveyor to make the survey. This may be ordered in the decree and made returnable in ten days.

Decree accordingly.

Dustin and Ferneding, JJ., concur.


author: POWELL, J.

text:
    BANKS AND BANKING — PLEADINGS.
    [Licking (5th) Circuit Court,
    October Term, 1912.]
    Powell, Voorhees and Shields, JJ.
    Newark (City) v. Peoples National Bank.
    1, Interest Recoverable on Deposits Made by Municipal Treasurer with Knowledge on the Part of the Bank as to Their Trust Character.
    An action brought by a municipality against a bank for recovery of interest received by said bank on funds belonging to the municipality and alleged to have been deposited without its knowledge or knowledge on the part of the bondsmen of the treasurer who made the deposit, but with knowledge on the part of the bank as to the ownership and trust character of said funds, is not open to demurrer, and an accounting of profits so received may be required of said bank.
    2. Petition Failing to Aver Knowledge of Bank as to Trust Character of Funds Deposited Demurrable.
    But a petition which omits, in such a case, the averment of knowledge on the part of the bank of the true ownership of the funds so deposited, is open to demurrer.
    [Syllabus by the court.]
    Error to common pleas court.

      Jones & Jones, for the city of Newark.

      Fulton & Fulton, for Peoples National Bank.

      Eibler & Eibler, for Franklin National Bank.

      Carl Norpell, for Newark Trust Co. and First National Bank.

      Fitzgibbon & Montgomery, for Licking County Bank & Trust Co.
   POWELL, J.

This cause, with causes No. 1302 to No. 1306, inclusive, was submitted to the court upon the agreement that all of said cases should be heard as one case, involving the same question, and that the holding in one should govern the decisions of all the others.

The petition was filed by the city solicitor of the city of Newark to recover from the Peoples Bank interest, or any profits such bank may have received upon a deposit alleged to have been made in said bank by the city treasurer of said city, without the knowledge and consent of the city, and without the knowledge and consent of the bondsmen of such treasurer, and with the knowledge on the part of the bank that the funds were the funds of the city, and not the individual funds of the treasurer, which were mingled with the funds of the bank and loaned out at interest; which deposit was made in said bank on June 19, 1905. The amount of such deposit was $60,000.' Plaintiff prays judgment in the sum of $1,800, with interest from June 19, 1905; or if the amount of interest actually received by such bank upon said deposit can not be ascertained, it further prays that the defendant be required to account to said plaintiff for all interest, profits and money received from the moneys received and deposited with defendant as alleged; and for any other relief which would be just and equitable.

A demurrer was filed to this petition. It was sustained by the court below, and judgment was rendered, dismissing the petition, and the case is brought to this court for review.

Upon an examination of the authorities, we are of the opinion that the moneys described in the petition are trust moneys; that the treasurer of the city was simply their custodian, and had no title, other than as such custodian; that, as such custodian, he deposited the same with the defendant, with the knowledge on the part of the defendant that the same were public moneys of the city.

We think it is the law, in eases of this kind, that no title-other than the title as trustee passes to the defendant; that as such trustee, it would be liable to return the principal sum and any profits which might accrue to such principal sum while it remained in the hands of the defendant; and that because of the-defendant having knowledge that such funds were trust funds, no title would accrue to it to such moneys other than as trustee.

We are, therefore, of the opinion that the court erred in sustaining this demurrer. We think the petition states a good cause of action as far as requiring or asking that an accounting be made by the defendant for any profits arising from said fund while the sum was in its custody.

The judgment of the court of common pleas will be reversed, and the cause will be remanded for trial or other proceedings according to law.

Exceptions may be noted.

The case of Newark against Bank, being No. 1302, is different from the other eases which were heard at the same time with No. 1301, in this particular: the petition does not allege that the funds deposited with the bank were so deposited with the knowledge on the part of the bank that they were trust funds or the moneys of the city, and deposited by the treasurer as their custodian.

We think, for this reason, one of the essential elements in stating a cause of action against the defendant is not alleged, and that the petition does not, therefore, state a good cause of action against the said defendant.

The demurrer to the petition in No. 1302 was properly sustained, and the judgment of the court of common pleas in the case will be affirmed.

The same order may be entered in Numbers 1303,1304, 1305 and 1306 as is ordered to be made in No. 1301. The judgment in each of these cases will be reversed, and they will be remanded to the court of common pleas for trial or other proceedings according to law.

Voorhees and Shields, JJ., concur.


author: NORRIS, J.

text:
    MINES AND MINING.
    [Mahoning (7th) Court of Appeals,
    December Term, 1913.]
    Metcalfe, Norris and Pollock, JJ.
    Morris Coal Co. v. John A. Thompson, et al.
    Destruction of Coal Tipple by Fire and Unprofitableness of Rebuilding Same does not Relieve Lessee from Obligations of Contract.
    When a party by his own contract creates a duty or a charge upon himself, he is bound to make it good, if he may, notwithstanding any agreement by inevitable necessity because he might have provided against it by his own contract. Hence, where a coal mining company owning and operating in mining coal divers and sundry structures including shaft, tipple, scales, tracks, and all other necessary machinery and appliances on lands adjoining those of the lessor enters into a contract of lease with the lessor whereby it purchases and agrees to mine all the minable coal underlying lessor’s farm of 366 acres, and agrees to pay ten cents royalty for each 2,000 pounds, and after six months to pay said lessor an aggregate royalty of not less than $4,000 until all the said minable coal has been removed or. paid for, and after 150 acres of said demised coal has been mined and paid for, the tipple and appliances by means of which said coal was mined and was intended to be mined were destroyed by fire without fault of said lessee and it would be unprofitable for the said lessee to reconstruct the same for the purpose of- mining the amount of coal remaining in said mine on said land, and said lessee had intended to mine said coal through said existing shaft and tipple and had not otherwise provided therefor.
    Held, That there was no implied condition that the destruction of said tipple and appliances without fault of the lessee should relieve it from the obligations of said contract, but that it was still bound to mine the minable coal underlying said premises until the same was mined or removed or pay the minimum royalty provided for- in said lease.
    [Syllabus by the court.]
    Error to common pleas court.
    Plaintiff in error seeks to reverse a judgment of tbe court of common pleas in favor of tbe defendants in error rendered on< a lease for the sale of coal. The petition of the plaintiffs below sets up that on November 10, 1903, they leased, let and granted; to the predecessors of the defendant below all the minable coal commonly known as No. 7 vein, four feet or over thick, underlying certain premises which áre described as containing 336> aeres more or less; that by the terms of the lease the lessee was to begin mining said coal within six months from the date of the same, and from thence forward to diligently prosecute the mining without discrimination or unfairness, until all the minable coal in said premises should be mined, and to pay for each 2000 pounds of coal the sum of ten cents, payable monthly; that after the expiration of said six months they should pay said lessors an aggregate royalty amounting to not less than $4,000, and to continue to pay said royalties until all said coal had been removed or paid for; that the lessee continued to mine said coal until May 10, 1910, when they ceased and since which time they have refused to pay plaintiff any sum whatever, and they ask to recover such royalty at $4,000 per year.
    A copy of the lease is attached to the petition containing several provisions not necessary to state except perhaps a provision that if the territory was exhausted to such an extent that 40,000 tons of coal could not be mined and removed in one year by reason of horsebacks or the thinness of coal, so that it would be impossible to produce 40,000 tons by diligent operation, the lessee should be charged royalty only upon the tonnage actually produced.
    To this petition an amended answer is filed, setting up that at the time of making the agreement mentioned in the petition, the defendant owned and operated a coal mine known as King’s mine; that it owned divers and sundry structures used in connection with the operation of said mine, including shaft, tipple, hoists, screens, scales, tracks and other machinery and appliances ; that this shaft and tipple and appliances were situated upon land adjoining the plaintiff’s land mentioned in the petition and about 1,000 feet distant from said lands; that these appliances had cost about $46,000, which was the reasonable value thereof; that after making said agreement the same was improved until plaintiff had invested in said shaft, tipple and •equipment about $60,000; that beginning at the time mentioned in said agreement and continuing diligently and continually thereafter until the' destruction of said tipple and appliances, defendant did without discrimination or unfairness, mine and remove about 150 acres of the ebal demised by plaintiff as aforesaid, being about 450,000 tons of lump coal; that in said agreement no surface was demised, let or granted to defendant, nor was any right or privilege to use plaintiff’s land surface, or any part thereof, that the royalty paid, ten cents per ton of lump coal, was in excess of the rate theretofore paid for mining from said vein; that on February 7, 1910, without the fault of defendant and against its will, the whole of said plant above ground was destroyed by fire; that thenceforth it was impossible for the defendant to mine and produce the coal then remaining unmined in plaintiff’s land; that the said property has not been replaced or restored; that because of said destruction and for no other reason, defendant quit said mine and since said time has not operated the same or any part thereof, and defendant at once removed its property from and surrendered possession of said premises to the plaintiff and wholly abandoned the same; that the reasonable cost of replacing said destroyed plant, or of building the equivalent thereof would greatly exceed the reasonable and ordinary profit which could or would be made from mining and producing such minable and unmined coal as underlying plaintiff’s said lands, and would exceed the total amount, of royalty payable to plaintiff at the rate of $4,000 per annum during the term of years reasonably and ordinarily required for-the mining of the minable coal demised as aforesaid by the plaintiff.
    To this answer a demurrer was filed by the plaintiff which, was sustained, and the defendant not desiring to plead further,, judgment was rendered on the pleadings in favor of plaintiff. The points claimed by the plaintiff in error in these pleadings, as stated by brief of counsel, are as follows:
    1. Plant on outside built and in use before and when contract was made more than nine years ago.
    2. More than 1200 acres opened up by entries and underground working before contract made.
    3. The plant destroyed was and has been the only existing' plant or approaches whereby Thompsons’ coal could be reached.
    4. No surface right for a new mine opening or for erecting1 plant is given by the contract, and there is no mining plant anywhere on' Thompsons’ land. In other words, the plant cannot ibe replaced there.
    5. Plaintiff in error had explored this territory and all adjacent territory, before the fire, and had destroyed all the accessible coal.
    6. What remained unmimed, owned by Thompsons and .others, is not sufficient to warrant restoration of plant.
    7. The ten cent royalty was dictated because defendant in «error intended, and plaintiff in error expected to and could .reach Thompsons’ coal without outlay for plant or entries, in -other words, through the means at hand when the contract was made. In any-other view it was excessive.
    8: The allegation of impossibility as a fact.
    9. The mutual intention to mine and produce Thompsons’ ■coal through and by means of said plant and not otherwise.
    10. That plaintiff in error has abandoned the coal granted -and has not retained possession. '

      Tolies, Rosemond, Bell & Dugan, for plaintiff in error.

      R. F. Scott, for defendants in error.
   NORRIS, J.

It is claimed by plaintiff in error that from the facts stated in the pleadings there was an implied condition that the coal in the land of the plaintiff below was to be mined through and by means of the shaft and tipple then in operation on the adjoining land theretofore constructed by defendant below, and that b'e-■cause of the destruction by fire of the tipple and appliances without the fault of the coal company, it was no longer under ■obligations to carry out the agreement and mine the coal; that the parties when they made the contract had this situation in view, and that by reason thereof this implied condition arises, and that the performance of the contract on the part of the •coal company, while not impossible, this implied condition relieves it from liability.

The substance of this answer is that it would be unprofitable for the coal company to reconstruct the tipple and appliances ■destroyed by fire to remove the small amount of coal still remaining in the land of the plaintiff below.

There are numerous authorities holding that where the subject matter of the contract is destroyed without fault of the parties so that the contract is impossible of performance, there is an implied condition that the parties are relieved from carrying out the contract. The earliest case that we have found where the question is discussed is perhaps Paradine v. Jane, 1 Aleyn Rep. 26, and also reported in 82 English Rep. Re. 897, a very early English case, but the rule stated is reaffirmed in the case of Atkinson v. Ritchie, 10 East. 533, 133 English Rep. Re. 877, and the rule as stated by Lord Ellenborough is as follows:

“When a party by his own contract creates a duty or •charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. ’ ’

That rule is following in numerous English eases, among others, Sheffield Water Works Co. v. Carter, 82 B. & D. 645, and .in this country there are many cases discussing the rule. In Krause v. Crothersville School (Tr.) 162 Ind. 278 [70 N. E. Rep. 264; 65 L. R. A. 111; 102 Am. St. Rep. 203], the supreme court of Indiana review the authorities at length. That was a case where a contractor agreed to construct an annex to a building and before the completion of his contract the building itself was destroyed by fire caused by lightning, and the supreme court of Indiana held that he was not liable for failure to perform his ■contract, and they announce this principle in the opinion of the court:

“ As to a general covenant, it is the law that the destruction of the subject-matter of the contract, thereby creating a physical or natural impossibility inherent in the nature of the thing to be performed, whether occasioned by vis major or otherwise, will discharge the covenant, provided the event occurred without .fault of the covenantor.”

And they cite numerous authorities in support of that principle and among others, the ease of Butterfield v. Byron, 153 Mass. 517 [27 N. E. Rep. 667; 12 L. R. A. 571; 25 Am. St. Rep. 654], and the supreme court cites with approval the principle we have quoted above from Paradine v. Jane, supra. Another leading case is Middlesex Water Co. v. Whiting Co. 64 N. J. Law 240 [45 Atl. Rep. 692; 49 L. R. A. 572; 81 Am. St. Rep. 467], and quoting from the syllabus:

“Where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it, and if, by some unforeseen accident the performance is prevented, he must pay damages for not doing it, no distinction being made between accidents that could be foreseen when the contract was entered into, and those that could not have been foreseen.
‘ ‘ The performance of an express contract is excused where the continued existence of something essential to the performance is an implied condition in the contract.” .

The learned court in its opinion again refers to the case of' Paradine v. Jane, supra, as the “leading case on the subject,”' and cite the opinion of the supreme court of New Jersey in the case of Trenton v. Bennett, 27 N. J. Law (3 Dutch.) 513 [72; Am. Dec. 373], as follows:

“No rule of law is more firmly established by a long train, of decisions than this: that where a party by his own contract, creates a duty or charge upon himself he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract; therefore if a lessee covenant .to repair a house, though it be burned by lightning, or thrown down by enemies, yet he is, bound to repair it. * * * No matter how harsh and apparently unjust in its operation the rule may occasionally be, it cannot be denied that it has its foundation in good sense and inflexible honesty. He that agrees to do an act should do it unless absolutely impossible. He should provide against contingencies in his contract. Where one of two innocent persons, must sustain a loss, the law easts it upon him who has agreed, to sustain it, or, rather, the law leaves it where the agreement of the parties has put it. The law will not insert, for the benefit, of one of the parties, by construction, an exception, which the-parties have not, either by design or neglect, inserted in their engagement. ’ ’

The learned 'judge refers to the opinion in Paradme v. Jane, supra, and says that the rule in this ease has been adhered to with great tenacity. See also Bacon v. Cobb, 45 Ill. 47. The case of Ingle v. Jones, 69 U. S. (2 Wall.) 1 [17 L. Ed. 762], is also cited. In the opinion in that case Mr. Justice Swayne says:

“It is.a well settled rule of law, that if a party by his conxraet charge himself with an obligation possible to be performed, he must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him. ’ ’

To the general rule, it is stated, there are three exceptions as follows:

1. Where the subsequent impossibility is imposed by law.

2. Where the continued existence of something essential to the performance is an implied condition of the contract.

3. In contracts for personal services, in which there is generally the implied condition that the person who is to render the service is alive and not incapacitated by illness.

The only exception that could possibly apply here is probably the second as to where the continued existence of something essential is an implied condition to the contract. It is stated that that is illustrated in the ease of Taylor v. Caldwell, 3 Best & Sm. 826; 6 Eng. R. C. 603. The defendant in that case agreed to let certain gardens and a music hall to the plaintiffs for four specified days to come for the purpose of giving a series of concerts. After the agreement was entered into and before the day arrived for the first concert, the music hall was accidentally destroyed by fire. It was held that as the existence of the hall was necessary for the performance of the contract, the defendants were excused from liability in respect to its performance, and that no action would lie against them.

We think there is a clear distinction between that class of eases and the one at bar. The coal mine itself was not destroyed. The only destruction was of the tipple and appliances, by which the coal had heretofore been mined, which rendered the further mining of the coal much more expensive. Dexter v. Norton, 47 N. Y. 62 [7 Am. Rep. 415], cited by counsel for plaintiff in error in this case is referred to in the learned opinion as to the third class of exceptions above referred to, but it was held in a subsequent ease in the same court in an opinion delivered by the same judge that under contract within a specified time, the destruction by fire of the plaintiff’s rolling mill, which prevented the defendant from completing its contract by the time fixed in the agreement, did not excuse even though the accident prevented the performance. Booth v. Mill Co. 60 N. Y. 487.

We find no case that we think conflicts with the principle announced by the authorities cited, but we think whatever may he the law elsewhere, it has been settled by our own Supreme Court against the contention of the plaintiff in error. In the case of Bath Twp.. (Board of Ed.) v. Townsend, 63 Ohio St. 514 [59 N. E. Rep. 223; 52 L. R. A. 868], it is stated in the syllabus:

“Inevitable accident will not excuse the performance of a contract where its essential purposes are still capable of substantial accomplishment, though literal performance has become physically impossible.
“When a party has one or the other of two modes of performing a contract, and one of them becomes impossible by the act of God, he is bound to perform it in the other mode. ’ ’

It does not appear in this case in the pleadings that literal performance of the contract was impossible. The only claim on the part of the plaintiff in error is that it would be very expensive, and that the coal remaining in these lands could not be mined with profit in view of the expense of reconstructing the tipple. We know of no authority, and none has been cited to us, that relieves a party from the obligations of a contract because of an inevitable accident which makes the performance of a contract unprofitable. If such a rule were to be adopted where would it end? The coal company in this case had a'tipple on adjoining lands in such proximity to the coal of the plaintiff below that it could profitably mine the coal and pay a greater royalty than it otherwise could have profitably paid. Now, its appliances have been destroyed without its fault and the continued mining of Thompsons’ coal has been rendered unprofitable. May it thereby be relieved from the obligations of its contract? Is there an implied condition in all contracts that the things existing at the time the contract is made, and that the means by which the contract is to be performed shall continue until the performance of the contract? A homely illustration might be suggested that a party had agreed to haul this coal to market; that he had for that purpose a team of horses and a wagon and before the complete performance of the contract without his fault these means are destroyed, and to get another team and wagon for the purpose of hauling the balance of the coal to market would make it unprofitable,. Is he still liable on the contract? We think all the authorities say that the liability still exists. New York Coal Co. v. Coal Co. 86 Ohio St. 140 [99 N. E. Rep. 198], is a much stronger case for relief from liability than the one made by the plaintiff in error, but the Supreme Court in an exhaustive opinion holds that the lessee is not relieved from liability under the contract of lease.

We have examined all the authorities cited by plaintiff in error and have found none, that we think conflict with the rules we have here announced. It follows that the judgment of the court of common pleas will be affirmed.

Metcalfe and Pollock, JJ., concur.


author: PER CURIAM.

text:
    CRIMINAL LAW — MANDAMUS.
    [Hamilton (1st) Circuit Court,
    June 16, 1911.]
    {Judges Dustin, Allread and Ferneding of the 2nd circuit sitting in place of the judges of the 1st circuit.)
    State ex. rel. Hunt v. William L. Dickson.
    1. In Mandamus in Court of Appeals by Prosecutor to Compel Trial Judge to Endorse Entry of Election as Between Indictments, Validity of Indictments not Raised.
    Where a prosecuting attorney has instituted an action in manda-' mus in the circuit court to compel a common pleas judge to endorse an entry of election as between two indictments against the same defendant, which entry the judge has refused to endorse for the reason that he has granted a motion to quash as to one of the indictments and purposes to make it applicable to both, the question whether the judge erred in his view as to the validity of the indictments is not raised, and the circuit court will look only to the soundness of the procedure, and if it is found not to be in accordance with law determine whether it may be corrected in an action in mandamus.

      2. Imperative Duty of Trial Judge to Enter Election without Passing on Motion to Quash.
    When the prosecutor elected upon which indictment he desired to proceed, it was the imperative duty of the trial judge (defendant here) to enter the election upon the minutes of the court without waiting to pass upon the motion to quash.
    3. Discretion of Trial Judge not Controlled to Prevent Entries on Motions to. Quash but Required to Make Entries of Election to Preserve Legal Right for Review.
    But inasmuch as the circuit court could control the discretion o': the trial judge no further than to require that the election of the prosecutor be noted, and would be without jurisdiction to require him to desist from making entries on the motions to quash pending a hearing in mandamus, the only relief which can be granted is to require that the election of the prosecutor he noted in order that he may preserve any legal right to a. review which he may have in the premises.
    Mandamus.
    The relator is the duly elected, qualified and acting prosecuting attorney of Hamilton county, Ohio, and is required by law to prosecute on behalf of the state of Ohio all complaints, suits and controversies in which the state is a party within said county.
    Defendant is a duly elected, qualified and acting judge of the court of common pleas of Hamilton county, Ohio, and was on April 4, 1911, designated and assigned by Hon. Charles J. Hunt, presiding judge of‘ the court of common pleas of Hamilton county, Ohio, under the compulsion of a writ of mandamus issued against him by this court, to hear the causes of the State of Ohio against George B. Cox, then pending in said court of common pleas, and being indictments for perjury.
    On April 10, 1911, there were pending against said George B. Cox in said court two indictments, for the same offense, perjury, to wit, the indictment in case No. 16408, and the indictment in case No. 16466, as known and numbered on the docket of said court, and on said April 10, 1911, defendant by his counsel filed in each of said causes, to wit, No. 16408 and No. 16466, a motion to require the prosecuting attorney to elect upon which of said indictments he would proceed.
    On April 29, 1911, said TIenry T. Hunt, as prosecuting attorney of Hamilton county, Ohio, presented to said William L. Dickson, as judge aforesaid, in each of said causes, to wit, No. 16408 and No. 16466, an entry of election by which said entries he elected, in accordance with the statute in such case made and provided, to proceed against said defendant, George B. Cox, on the indictment in case No. 16408, copies of which said entries together with orders requiring said election to be made are hereto attached, and requested said defendant, "William L.. Dickson, as judge as aforesaid, to order said entries of election-to be made and entered in each of such cases, to wit, No. 16408 and No. 16466, which said William L. Dickson, as judge aforesaid, then declined and refused to do and still declines and refuses to do.
    Wherefore relator prays that a writ of mandamus issue commanding said William L. Dickson, as judge of the court of common pleas, to order said entries of election by said relator to be made and entered in said causes, to wit, No. 16408 and No. 16466 on the docket of the court of common pleas of Hamilton county, Ohio, said causes being entitled “State of Ohio v. George B. Cox,” and being indictments for perjury, and that said William L. Dickson be ordered to refrain from taking any other steps nr making any other orders or entries in. said cause No. 16466.
    Entries oe Election.
    “Now comes Henry T. Hunt, prosecuting attorney of Hamilton county, Ohio, in accordance with the former order of the court and the statute in such case made and provided, and elects to proceed to trial against this defendant upon the indictment filed in this case, to wit, No. 16408, State of Ohio vs. George B. Cox, indictment for perjury.”
    “Now comes Henry T. Hunt, prosecuting attorney of Hamilton county, Ohio, in accordance with the former order of the court and the statute in such case made and provided, and elects to proceed to trial against this defendant upon the indictment filed in case No. 16408, State of Ohio vs. George B. Cox, indictment for perjury. ’ ’
    Order For Election Between Two Indictments.
    It appearing to the court, on the motion of defendant, that the prosecuting attorney be ordered to elect upon which of two indictments he will proceed to trial, that there are pending ■against this defendant two indictments for the same crime, to wit, that in case No. 16408, State of Ohio vs. George B. Cox, indictment for perjury, and that in ease No. 16466, State of Ohio vs. George B. Cox, indictment for perjury, it is ordered that the prosecuting attorney elect upon which he will proceed to trial.
    Orders For Election Between Two Indictments.
    It appearing to the court, on the motion of defendant, that the prosecuting attorney be ordered to elect upon which of two indictments he will proceed to trial, that there are pending against this defendant two indictments for the same crime, to wit, that in case No. 16408, State of Ohio vs. George B. Cox, indictment for perjury, and that in case No. 16466, State of Ohio vs. George B. Cox, indictment for perjury, it is ordered that the prosecuting attorney elect upon which he will proceed to trial.
   PER CURIAM.

It is conceded that the action of the defendant as judge of the common pleas' court in quashing the indictments hereinafter referred to, is not before us for consideration on its merits, viz., as to whether said judge erred in his views of the law with reference to the validity of said indictments.

We are called upon merely to determine the soundness of his procedure; and, if not in accordance with law, whether, in an action in mandamus, we may correct it.

The proceedings involved are as follows: two indictments were brought to the court’s attention, No. 16408 and No. 16466, each charging the crime of perjury against George B. Cox. They are identical, except that in the second the word “lawfully” is introduced in a certain place before the word “sworn.” It is conceded that both indictments charge the same criminal act.

. With reference to these indictments, defendant Cox first filed a motion to require the prosecutor to elect upon which one he would proceed.

Without waiting for action upon that motion the defendant filed motions to quash both indictments. ^ Subsequently, and before action by the court upon the motions to quash, the prosecutor himself elected to proceed upon indictment No. 16408, and asked the court to note this election of record. Without taking any action upon the prosecutor’s election, and his demand for an order with reference thereto, the court proceeded to pass upon the motions to quash, sustaining the same, in a written decision filed with the clerk. A motion for a rehearing was filed in each case, but neither one of them has yet been formally disposed of.

On the same day, and before any entry of the court’s decision was made in the journal, this action was brought to compel the defendant to enter upon the minutes of the common pleas court the election of the prosecutor to proceed upon indictment No. 16408.

Responding to the prayer of the petition (which contained no mention of the action of defendant upon the motions to quash), the circuit court issued an alternative writ of mandamus requiring the defendant to enter the “election” referred to, or show cause why he should not do so, on a day fixed by the court; and, meantime, ordered him “to refrain from taking any other steps, or making any other orders or entries in case No. 16466.”

After conferences between counsel on both sides and the judge, with reference to the form of journal entries to be made concerning the action of the court on the motions to quash, without reaching an agreement, entries in both cases were finally recorded by the clerk in the absence and without the consent of the prosecutor, and without indorsement by the judge, upon the theory that it was the clerk’s duty to enter up the judgments of the court; the judge, by refusing indorsement, seeming to act in obedience to the command of the circuit court forbidding him to make orders of any kind in reference to indictment No. 16466.

Upon discovery of the entries made by the clerk, the prosecutor filed motions to expunge the same from the record.

Upon the above record and findings of facts, we have reached the following conclusions:

First. The majority of the court are of the opinion that the prosecutor having elected to proceed under indictment No. 16408 (in accordance with Sec. 13578 G-. C.), it then became the imperative duty of the defendant judge to order such election entered upon the journal, without waiting to pass upon the motions to quash.

(The minority member of the court is of the opinion that Judge Dickson exercised a judicial discretion in passing first upon the motions to quash, rather than the prosecutor’s motion to enter an election; the former being first in- order and vital to the case; and the sustaining of which would render an election unnecessary.)

Second. We are unanimously of-the opinion that the circuit court was without authority (in mandamus) to direct the common pleas judge “to refrain from taking any other steps or mailing any other orders or entries in ease No. 16466.” That was an attempt to control his judicial discretion. The authority of the circuit court to direct the action of the common pleas in the matter in controversy is, under the most favorable view, limited to the requirement of noting an election.

Third. These views make it unnecessary to pass upon the questions as to when the action of the court on the motions to quash became effective, and as to the validity of the record made therein by the clerk; for, even if the judgment of the court be not yet effective (as the prosecutor claims), it may be made so at any instant.

It therefore appears that any action of this court will probably be wholly ineffective to keep alive either of said indictments; but entertaining the view (as the majority of'the court do) that the common pleas judge should have immediately ordered the entry of election, pursuant to the request of the prosecutor, the writ prayed for is granted to that extent, in order to enable the prosecutor to save any legal rights of review he may have in the premises. Exceptions may be noted.

Judgment Allowing .Peremptory Wkit.

This cause came on to be heard upon the demurrer of the defendant to the reply and was argued by counsel; on consideration whereof the court overruled said demurrer; to which defendant excepted. And thereupon the cause coming on to be heard upon the petition, the answer, the reply and the evidence and being argued by counsel, the court find upon the issue joined for-the relator and that he is entitled to a peremptory writ of mandamus herein.

It is therefore ordered, adjudged and decreed that a peremptory writ of mandamus issue against the said William L. Dickson, judge of the court of common pleas of Hamilton county, Ohio, commanding him to make the following entry on the journal of said court as of April 29, 1911, in said case No. 16408, to wit: “Now comes Henry T. Hunt, prosecuting attorney of Hamilton county, Ohio, in accordance with Sec. 13578 G. C., and elects to proceed to trial against the defendant upon the indictment filed in this case, to wit, No. 16408, State of Ohio vs. George B. Cox, indictment for perjury,” and to make th.e following entry on the journal of said court as of April 29, 1911, in said case No. 16466, to wit: “Now comes Henry T. Hunt, prosecuting attorney of Hamilton county, Ohio, in accordance with Sec. 13578 G. C., and elects to proceed to trial against the defendant upon the indictment filed in case No. 16408, State of Ohio vs. George B. Cox, indictment for perjury.”

The court finds that the order entered herein on May 22, 3.911, in so far as it directed the defendant to refrain from taking any other steps or making any other orders or entries in said case No. 16466 was without authority of law and the defendant is hereby relieved from compliance therewith. Said writ of mandamus shall issue without penalty. To all of which counsel for the defendant excepts.


author:
ALLREAD, J.
      DUSTIN, J.

text:
    CARRIERS — COMMERCE—RAILWAYS.
    [Greene (2nd) Circuit Court,
    January, 1912.]
    Dustin, Allread and Ferneding, JJ.

      P. C., C. & St. L. Ry. v. George W. Sheets.
    1. Membership in Voluntary Relief Department of Railway Engaged in Interstate Commerce and Receipt of Benefits for Injuries in Such Employment not Defense to Action for Personal Injuries.
    Membership by an employe in the voluntary relief department of a railway engaged in interstate commerce, and the receipt by him of benefits from such department on .account of injuries received in the course of his employment, is not a defense to an action against the company by such employe for recovery of damages on account of injuries so received.
    2. Federal Law Voiding Contracts Exempting Carriers from Liability Controls as to Injuries and Benefits Paid Subsequent to Passage.
    Where both the cause of action and the receipt of benefits occurred after the enactment of the federal law, making void any contract, regulation or device having as its purpose the enabling of any common carrier to exempt itself from liability on account of injuries sustained by employes, the federal law controls as to such receipt of benefits. P., C. C. & St. L. Ry. v. Cox, 55 Ohio St. 497, distinguished.
    3. State Workmen's Compensation Act does not Prevent Recovery under Federal Law by Interstate Commerce Railway Employes.
    The Ohio workmen’s compensation act does not prevent recovery under the federal law for injuries received by employes of railways engaged in interstate commerce.
    4. Ohio Rule as to Notice of Defect as Proximate Cause of Injury Applicable to Accident under Federal Law.
    Section 9015, G. C., which shifts the burden of proof upon a defendant railway company as to notice to the company of the defect alleged to have been the proximate cause of the injury complained of, is a' mere rule of evidence, and is applicable to an accident under the federal law notwithstanding the cause of action arose in another state.
    5. Verdict of $30,000 Held Grossly Excessive.
    The plaintiff below, a railway brakeman, was jolted from the ladder of a freight car and lost both legs by being run over by the car following. The defect complained of was that the sill of the car, used by brakemen as a step below the last rung of the ladder, had been dented on one side from t'wo to three and one-half inches by a heavy blow and the toe hold reduced by that amount. Verdict was returned in the common plea's in the sum of $30,000. The trial judge granted a remittitur of $7,500.
    Held: The defect complained of was, in the opinon of a majority of the court, the proximate cause of the injury, but the amount of the recovery was grossly excessive, and a further remittitur of $8,500 is allowed, making the judgment as entered $14,000.
    Error to common pleas court.

      E. P. Matthews, for plaintiff in érror.

      Charles Darlington and Marcus Shoup, for defendant in error:
    The Federal Employers’ Liability act of 1908, and Sec. 5 thereof applies and is constitutional, Pittsburgh, C. C. & St. L.

      By. v. Cox, 55 Ohio St. 497 [45 N. E. Rep. 641; 35 L. R. A. 507] ; Chicago, B. <& Q. By. v. McGuire, 219 U. S. 549 [31 Sup. Ct. Rep. 259; 55 L. Ed. 328] ; Mondou v. Bail-way, 223 U. S. 1 [38 L. R. A. (N. S.) 44; 56 L. Ed. 327] ; Philadelphia, B. & W. By. v. Schubert, 224 U. S. 603 [56 L. Ed. 911] ; McCulloch v. Maryland, 17 IT. S.(4 Wheat.) 316 [4 Ed. 579] ; Smith v. Alabama, 124 U. S. 465 [8 Sup. Ct. Rep. 564; 31 L. Ed. 508]; Sherlock v. Ailing, 93 U. S. 99 [23 L. Ed. 819] ; Nashville, C. & St. L. By. v. Alabama, 128 U. S. 96 [9 Sup. Ct. Rep. 28; 32 L. Ed. 352] ; Beid v. Colorado, 187 U. S. 137 [23 Sup. Ct. Rep.. 92; 47 L. Ed. 116] ; Bodd v. Eeartt, 88 U. S. (21 Wall.) 558 [22 L. Ed. 654] ; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 [5 Sup. Ct. Rep. 826; 29 L. Ed. 159] ; Gulf C. & S. F. By. v. Eefley, 158 IT. S. 98 [15 Sup. Ct. Rep. 802; 39 L. Ed. 910] ; Southern By. v. Beid, 222 U. S. 424 [17 Ann. Cas. 247; 56 L Ed. 253] ; Northern P. By. v. Washington, 222 U. S-. 370 [56 L. Ed. 237]; Claflin v. Eouseman, 93 IT. S. 130 [23 L. Ed. 833] ; Detroit, T. & 1. By. v. State, 82 Ohio St. 60 '[91 N. E. Rep. 869; 137 Am. St. Rep. 758],
    Liberty of contract, Chicago, B. & Q. By. v. McGuire, 219 U. S. 549 [31 Sup. Ct. Rep. 259; 55 L. Ed. 328] ; Atlantic Coast Line By. v. Biverside Mills, 219 U. S. 186 [31 Sup. Ct. Rep. 164; 55 L. Ed. 167; 31 L. R. A. (N. S.) 7n] ; Baltimore <& O. By. v. Commerce Comrs. 221 U. S. 612 [31 Sup. Ct. Rep. 621; 55 L. Ed. 878] ; Crowley v-. Christensen, 137 U. S. 86, [11 Sup. Ct. Rep. 13; 34 L. Ed. 620] ; Jacobson v. Massachusetts, 197 IT. S. 11 [25 Sup. Ct. Rep. 358; 49 L. Ed. 643] ; Frisbie v. United States, 157 U. S. 160 [15 Sup. Ct. Rep. 586; 39 L. Ed. 657] ; Addyston Pipe <& Steel Co. v. United States, 175 U. S. 211 [20 Sup-. Ct. Rep. 96; 44 L. Ed. 136] ; Patterson v. Fudora, 190 U. S. 174 [23 Sup. Ct. Rep. 821; 47 L. Ed. 1002] ■; Louisville & N. By. v. Mottley, 219 U. S. 467 [31 Sup. Ct. Rep. 265; 55 L. Ed. 297; 34 L. R. A. (N. S.) 671] ; State v. Boone, 84 Ohio St. 346 [95 N. E. Rep. 924] ; State v. Boone, 85 Ohio St. 313 [97 N. E. Rep. 975; 39 L. R. A. (N. S.) 1019] ; State y. Creamer, 85 Ohio St. 349’ [97 N. E. Rep. 602; 39 L. R. A. (N. S.) 694] ; Philadelphia, B. & W. By. v. Schubert, 224 U. S. 603 [56 L. Ed. 911].
    Motions to direct verdmt, Dick v. Bailway, 38 Ohio St. 389; Donegan v. Bailway, 165 Fed. Rep. 869 [91 C. O. A. 555],

      Negligence in operating the defective car, Pennsylvania Co. ■v. McCann, 54 Ohio St. 10 [42 N,E. Rep. 768; 31 L. R. A. 651; 56 Am. St. Rep. 695] ; Columbus, H. V. & T. By. v. Erick, 51 Ohio St. 146 [37 N. E. Rep. 128] ; Templeton v. Kraner, 24 Ohio St. 554; Cincinnati Trac. Co. v. Reich, 18 Dee. 631 (5 O. L. R. 574) ; Hesse v. Railway, 58 Ohio St. 167 [50 N. E. Rep. 354] ; Patten v. Railway, 179 TJ. S. 658 [21 Snp. Ot. Rep. 275; 45 L. Ed. «361].

      Affirmed, no op., Pittsburgh, C. C. & St. L. Ry. v. Sheets, 87 O. S. 476.

   ALLREAD, J.

George W. Sheets as plaintiff brought suit and recovered judgment in the court of common pleas for personal injuries.

The amount claimed in the petition was $30,000 and a werdict was returned for the full amount.

Upon, hearing of a motion for a new trial the court suggested .•a, remittitur of $7,500. The remittitur was made, and thereupon the court refused a new trial and rendered judgment for the amount of the verdict so reduced. The cause is brought here by petition in error.

Sheets was an employe of the railway company, engaged as brakeman in interstate service, and on September 9, 1909, near Richmond, Indiana, while in the discharge of his duty, fell from a ladder on the end of a freight car and was run over by the cabin car, crushing both legs, and requiring amputation.

The negligence charged in the petition is the use and operation of a defective car.

The plaintiff below rests his cause of action upon the act of -congress approved April 22; 1908, regulating railway employers’ ^liability.

The railway company by special defense, sets forth Sheets’ :3nembership in the voluntary relief department of the railway ■•■company, and the receipt of benefits from the date of injury -until the beginning of this suit in May, 1910. The membership began in April, 1906, and the contract provided that receipt of benefits should be .held a waiver of a right of action for personal injuries.

The trial court sustained a demurrer to this' defense and this .ruling is assigned as error.

The correctness of this ruling involves the construction and effect of the following section of the act of congress above referred to:

“Section 5. That any contract, rule, regulation or device-whatsoever, the purpose and intent of which shall be to enable-any common carrier to exempt itself from any liability created by this act shall to that extent be void; provided, that in any action.’, brought against any such common carrier under or by virtue off any of the provisions of this act, such common carrier may set: off therein any sum it has contributed or paid to any insurance; or relief benefit or indemnity that may have been paid to the-injured employe or the person entitled thereto on account of' the injury or death for which said action was brought. ’ ’

It is urged on behalf of the railway company that P., C. C. & St. L. Ry. v. Cox, 55 Ohio St. 497 [45 N. E. Rep. 641], rules: the present case. The court there construed the state act off April 2, 1890 (87 O. L. 149), and held that the contract of the-relief department was not within the statutory prohibition. The sum and substance of the decision is that the inhibition of that act went to the “contract, agreement” and “stipulation,” while, the effective bar of the action arose not from the contract, but from the voluntary election of remedies after the cause of action arose.

The act of congress has a much broader scope. It invalidates not only the contract, but .any “rule, regulation or device-whatsoever” intended to relieve the carrier from “any liability”" created by the act.

The authority of P., C. C. & St. L. Ry. v. Cox, supra, is not,, therefore, decisive of the construction of the more comprehensive terms of the act of congress.

The rule of public policy announced in the Cox case, as to? compromise and settlement of causes of action, was laid dowm and applied' in view of doubtful terms in the act under consideration, and should not be applied where the intent is clear, and! especially is that true in the construction of an act of congress;. In harmony with the public policy announced by the Supreme-Court of the United States. Chicago, B. & Q. Ry. v. McGuire, 219 U. S. 549 [31 Sup. Ct. Rep. 259; 55 L. Ed. 328].

The act of congress has been so construed in various eases in the federal courts. Porter v. Railway, 37 Wash. Law Rep. 466; Goldenburg v. Railway, 37 Wash. Law Rep. 2; McNamara v. Railway, 38 Wash. Law Rep. 343.

It is urged that the contract being prior to the act of. congress the act can not operate ex post facto.

The answer to this contention is found in the case of P., C. C. & St. L. Ry. v. Cox, supra, holding that it was not the contract, but the election of remedies, that barred the action.

Both the cause of action and the receipt of benefits occurred after the enactment, and the act, therefore, controls as to the force and effect to be given to the receipt of benefits.

Moreover, the contract of membership is indefinite as to duration and depends upon continuation of employment and payment of dues. The contract has no higher status in respect to regulations thereafter adopted than the contract of employment itself.

When the act of congress was adopted, a rule of public policy was thereby established, and the continuation of the contract of employment and the receipt of dues thereafter must be held to have been done with reference to the public policy so established. Pittsburg, C. C. & St. L. Ry. v. Lightheiser, 168 Ind. 438 [78 N. E. Rep. 1033]; Hamilton v. Railway, 145 Ia. 431 [124 N. W. Rep. 363].

The Workman’s Compensation act (102 O. L. 524), providing for a benefit fund contributed by both employer and employe in a proportion fixed therein and payable by election in lieu of an action for damages against the employer, does not affect the present action, because (1) the act of congress is superior to state regulation in eases of interstate service; (2) the act is subsequent to the cau.se of action here.

The demurrer to the second defense was, therefore, properly sustained.

The jurisdiction of the state courts to enforce the act of congress in an appropriate case is established by authority. Thornton, Employers’ Liability Act Sec. 1058; eases cited.

• It is insisted that there is no proof of notice to the .company of the defect nor want of care in inspection.

The obvious character of the defect and the circumstances of its use may justify a presumption of notice. But aside from the question of express proof, we are of opinion that Sec. 9015, G-. C., shifting the burden of proof upon the issue of notice to the railway company, being a mere rule of evidence should be accepted in the courts of this state, although the action is founded upon the act of congress and the cause of action arose in another state. Pennsylvania Co. v. McCam, 54 Ohio St. 10 [42 N. E. Rep. 768; 31 L. R. A. 651; 56 Am. St. Rep. 695].

The'defect relied upon by plaintiff was a dent or crushing in of the steel sill upon the end of the car from which plaintiff fell. The sill formed the base of the ladder and was used in passing to and from the ladder and as the bottom step. The dent was deepest at or near the left stile and extended under the rungs a considerable portion of the way, was from two. to three and a half inches deep according to different witnesses at the deepest point, and caused the upper surface of the sill to bulge upwardly.

In the amended petition the plaintiff claims in substance that while he was descending the ladder and while the train was in motion, the engine suddenly and without warning gave a quick and sudden jerk, causing his feet to slip off the rounds of the ladder, and, because of the defect in the sill or platform, to fall to the track and be injured. He avers that if the platform had been in proper condition it would have afforded protection and a foothold and prevented the fall. It is also averred that the defendant did not use reasonable and ordinary care in operating said defective car.

It was claimed that the defect was so shallow and so insignificant in extent as to have little or no effect in its use, and it is especially urged that the defect was not the' proximate cause, and that if the sill had been perfect it could not have saved him from the fall.

It is insisted that the proximate connection between the alleged cause and the injury must be definitely and clearly established, and that a verdict and judgment should not be allowed to rest in conjecture, citing, Cleveland, Term. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142]; Lake Shore & M. S. Ry. v. Andrews, 58 Ohio St. 426 [51 N. E. Rep. 26].

In the Andrews case, quoting from the syllabus, it is said:

“In the absence of direct evidence in its support, an allegation that one sustained injuries by reason of the negligence of the defendant is not sustained by proof of circumstances from which, the fact that his injuries were so sustained is not a more natural inference than any other.”

Judge Shauek in the opinion says:

“Certainly an allegation of fact may be established by circumstantial evidence, but the circumstances to have that effect must be such as to make the- fact alleged appear more probable than any other. The fact in issue must be the most natural inference from the facts proved. ’ ’

This case merely restates the rule of circumstantial evidence, based upon the admitted facts in that case and the probable deductions to be drawn therefrom. See Cleveland, C. & C. Ry. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633].

The question of fact,- therefore, is, does the evidence here make it sufficiently probable that the defect was responsible for the injury ?

The sill in its normal condition extended along the end of the car, about eight inches wide, and the outer edge about two and a half to three inches beyond the outside line of the rungs of the ladder. The cabin car had the usual platform and railing. There was an open space of two feet between the sill of the freight ear and the platform of the cabin car. Through this space the plaintiff passed in his fall.

The circumstances of the plaintiff’s descent and fall from the ladder are meager and lacking in detail. It may be safely assumed that Sheets was upon the second round from the bottom when he reached for and secured his lantern. From his testimony that he then “started to go further down” and that he “was just in the act of taking hold of the round of the ladder and started to take another step when the sudden jerk came,” it is insisted by counsel for plaintiff that he had stepped down to the first round and was in the act of stepping to the base or sill. If this view be taken in connection with the character of the dent as shown by the witnesses for plaintiff, then the finding that the defect was the proximate cause would not be remote nor improbable.

The defendant, however, contends that from Sheets’ own testimony and the admission of the petition, it appears that both feet were upon the round and by the jerk of the train' slipped therefrom and that in the fall the only chance of a foothold would be the catching of the toes of the shoes upon the projecting part of the sill if it had been perfect.

Conceding the facts of this contention to be true a majority of the court are of the view that the jury may reasonably have found in harmony with plaintiff’s contention, that there was a sufficient probability in favor of the defective sill being the proximate cause, and that a contrary view is not so manifest as to justify the court in overthrowing the verdict.

This case differs from both the Marsh and Andrews case in respect to issues involved. In the Marsh and Andrews cases the quantity of evidence went to the question of negligence. In this case the negligence is clearly established but the controversy is over the proof of proximate cause, and in the establishment of proximate cause no unusual weight of evidence should be required to facilitate the escape of the negligent party from the results of his negligence.

It was within the court’s discretion to permit an inspection by the jury of the injured parts, and the failure of one juror to inspect both injured limbs is not prejudicial error.

The primary facts in respect to the injury should go to the jury and from them the jury applying common knowledge may find the probabilities. The competency of opinion evidence depends upon its being directly applicable to the facts of the ease and should carry some superior source of knowledge to that of the ordinary jury. A careful analysis of the opinion evidence and the foundation laid therefore justified the exclusion. The fact that the company’s agent, Monroe, went to Sheets to endeavor to effect a compromise was brought out in cross-examination and was properly admitted as reflecting upon the probability of his testimony as to Sheets’ admissions. It was, therefore, a subject of comment by counsel. Still the inference drawn by counsel that it was an admission of liability was improper. The instruction of the court to disregard the argument in this respect cured the error.

The charge of the court taken as a whole was a fair and full exposition of the law and free from prejudicial error.

The verdict for $30,000, was, however, grossly excessive. It is by far larger than any we have met with in the entire circuit. We do not underestimate the injuries, including the pain and suffering. But, it must be remembered that this was not a wilful injury nor was there gross or wanton negligence. The question of liability for ordinary negligence is close, and is sustained by a majority only of the court. It is, therefore, a case for compensation only. The compensation too, under, the act of congress, is subject to mitigation for contributory negligence.

The plaintiff’s wages averaged sixty to sixty-five dollars per month. The record does not disclose his age, but we have made the estimate on the basis of twenty-five years. Assuming the wage loss to be total, the present worth of annuity affording that income during the balance of his life, based upon annuity tables at 5 per cent would be $6,400, and allowing for usual promotion would hardly exceed $10,000. The wage loss is, however, not total, and a proper deduction may be made from that to compensate for the amount he is capable of earning in his present physical condition. In addition, however, to compensation for loss of wages, the plaintiff is entitled to compensation for pain and suffering. This amount is always difficult to determine and within proper limitations should be left to the jury. We can not, however, reconcile the total amount returned upon any reasonable calculation or basis of compensation, yet the majority of the court are of the opinion that it does not necessarily appear that the amount of the verdict is the result of passion and prejudice on the part of the jury.

The trial court ordered a remittitur of $7,500, and we are of the opinion that a still further remittitur of $8,500 should be entered, leaving the sum of $14,000. If the plaintiff desires to enter this remittitur the judgment for the amount so reduced will be affirmed; otherwise the judgment will be reversed and the case remanded for a new trial.

DUSTIN, J.

(dissenting).

In my view the facts of this case entirely preclude recovery on the part of Sheets.

According to this own testimony, he was climbing down the ladder on the rear end of a moving freight ear, and had reached for and seized his lantern which he had left on the top of the car, when a sudden jerk of the train threw him off the ladder; he fell to the ground and was run over by the following car. In falling, he touched nothing but the draw-bar.

It appears, mathematically, that at the time he was jarred from his position, his feet could not have been on a lower rung then the second from the bottom, being thirty-four inches from the sill. It appears also that the sill complained of, where not indented, does not extend over 2 1-4 inches beyond the face of the rungs.

The claim of counsel (alluded to in the majority opinion) that' Sheets was stepping from the last rung to the sill is wdiolly unsupported. I think, by the evidence, the measurements of the man and the ladder entirely disprove it.

To me it is inconceivable that a man falling from the second rung, while the train was moving forward, could have caught himself on the tips of his toes, on the sill, even if the latter were in perfect condition. As it was, the evidence shows that the sill was, only indented for 3 1-2 inches from the left side. It was perfect throughout the remainder of the width of the ladder. Under any conditions the left foot only would have had a narrower sill on which to alight. The right foot would have caught the full width.

But, to have the full width of 21-4 inches on which to catch himself and put his toes, Sheets must have fallen perpendicularly with mathematical exactness, like a plummet, from the edge of the second rung, after the jar and while the train was in motion. The jar must have been sufficient to take him to the edge of the rung and no farther, giving no more momentum to his body; and no allowance made for the action of the train. It seems to me impossible. I can not believe that there is a gymnast in the world who could accomplish the feat in the daytime. Anyhow, it is the height of improbability.

The cause of the injury must be attributed to the greater, not the lesser, probability. Cleveland, Term. & V. Ry. v. Andrews, supra.

But, what right has Sheets, under the circumstances, to complain? He was not using or attempting to use the sill for the purpose for which it was constructed, viz., as a step to or from the ladder. It was not built to catch falling bodies. And it is-of its insufficiency only as a safety platform in case of a fall that he complains.

If he hád gone to the bottom of the ladder, and loosened his-hold above, expecting to find a sill of the usual width, and not finding it, injury had resulted, his case would have been far different. Under the circumstances I think the defect in the sill can not be held to be the proximate cause of the injury.

The verdict itself shows that the jury was governed by pas sion and prejudice. ' The sum of $30,000 was- entirely unreasonable. The trial court cut it $7,500 .and the majority of this, court has taken off $8,500 more.

Sheets is not helpless. He is able to earn money in other-occupations.

Under the authority of Pendleton Street Ry. v. Rahmann, 22 Ohio St. 446, the court should have set aside the verdict absolutely.

Ferneding, J., concurs.


text:
    DIVORCE.
    [Knox (5th) Circuit Court,
    March 9, 1909.]
    Taggart, Donahue and Voorhees, JJ.
    Mary Durbin Sapp v. John H. Sapp.
    Rendition of Divorce Decree Fixes Status of Parties Eo instanti. Opening Decree and Dismissing Petition Erroneous.
    The rendition of a decree of divorce fixes the status of the parties eo instanti, and the marital relation thus severed can be restored only by consent of the parties and their remarriage, the trial court thereafter has no jurisdiction to open decree and dismiss petition.

      Error to common pleas court.
   PER CURIAM.

This proceeding in error is brought to reverse the judgment of the court of common pleas wherein said court by its order and judgment dismissed the petition of the plaintiff in error, then plaintiff, in said court and rendered a judgment against her.

On December 22, 1908, in a certain proceeding brought by the plaintiff in error against the defendant in error for divorce the court of common pleas on the trial docket of said court entered a “Decree for plaintiff and restored to maiden name. 12-22-08.” On said day a proper journal entry was filed with the clerk of the court decreeing that the marital relation existing between the said Mary Durbin Sapp and John Ii. Sapp “be and the same is dissolved and both parties released from the obligation of said marital relation, and the said plaintiff is restored to her maiden name of Mary Durbin. It is further ordered by the said court that said plaintiff recover from the defendant her costs taxed at $-.” 'It further appears from the record that the costs on said case were on that day paid. Thp record further discloses that on December 24, the court, of its own motion, entered on the trial docket the following: “12-24-08. Case reopened. Heard further upon the testimony of the defendant. Decree dismissing petition.” And the court, as appéars by the bill of exceptions, on January 23, 1909, furnished to the clerk of said court an entry reopening the hearing of said case and heard further testimony and found in fávor of the defendant and dismissed the petition of the plaintiff, and ordered the former entry in -favor of the plaintiff stricken from the files; to all of which ruling of the court the plaintiff excepted, and perfected a bill of exceptions, and the question is now before this court whether the court was without jurisdiction and without authority of law to dismiss said proceeding or to strike from the files said journal entry and enter a judgment and decree different from that which he had entered on December 22.

The section of the statute in respect to divorce and alimony does not furnish any provision for an appeal from the judgment of the court of common pleas or for prosecuting error therefrom, and when said court enters a decree or judgment dissolving the marital relation of the parties, in a divorce proceeding it exercises its jurisdiction to ■ a finality, and it can not thereafter change or modify said decree or judgment. The judgment of the court when so rendered is not subject to change or modification as in other eases, there being no time fixed for the filing of a motion for a new trial, nor providing for otherwise contesting said judgment and decree, nor is it one of that class of decrees that the court has control of during the entire term. A judgment in a divorce case fixes the status of the parties.

If the decree is for divorce the status of the parties then becomes fixed “eo instanti” upon the rendition of the judgment and decree.

If the decree be a severing of the marital relation, it can only be restored by the consent of the parties thereto and the parties remarrying. This holding is supported by the case of Parish v. Parish, 9 Ohio St. 534 [75 Am. Dec. 482], and the case of Nauman v. Nauman, 26 O. C. C. 37 (4 N. S. 298), the latter holding:

"A decree of divorce becomes operative between the parties at its rendition although such decree is simply noted upon the appearance docket and no entry thereof made upon the journal.
‘ ‘ "Where a motion for a new trial was filed two days after the rendition of the decree in a divorce case and upon the same day, without knowledge of such motion, one of the parties remarried, a court is not authorized to reopen the case. ’ ’