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    SCOPE OF EMPLOYMENT PROTECTED BY EMPLOYERS’ LIABILITY INSURANCE.
    [Circuit Court of Lucas County.]
    The Travellers Insurance Company of Hartford, Connecticut, v. William W. Bright.
    Decided, February 25, 1903.

      Insurance — Employers’ Liability Covering Building Contractors — Nature of Work Included — Construction of Insurance Contract.

    1. A contract of employers’ liability insurance should be resolved rather in favor of the insured than strictly against him.
    2. Á laborer in the employ of B., a contracting carpenter, painter and plasterer, was killed while at work at the top of a hoist used for raising to the upper stories material to go into the construction of the building, and operated jointly by B. and H., who was the contracting hrick layer on the same building. Held: That the decedent was at the time of his death in the employ of B., and not of B. & H., and that a contract of employers’ liability insurance undertaking to protect B. from liability for injury to any employe while on duty “at the places and in the occupations mentioned in the application” covered the accident to this man at the top of the hoist, and the insurance company is liable thereunder.
    Haynes, J.; Parker, J., and Hull, J., concur.
   In this case a judgment was rendered in the court of common pleas against the insurance company on certain matters set out in the petition. The controversy grew out of insurance which had been effected by Bright against loss on account of bodily injury to certain men who were in Bright’s employ. The policies of insurance, in the main cause, provided as follows:

"The company does 'hereby agree to indemnify William W. Bright, of Toledo, county of Lucas, state of Ohio (hereinafter called "the assured”), for the period of twelve months, beginning on the 4th day of June, 1900,- at noon, and ending on the 4th day of June, 1901, at noon, standard time, at the place where this policy has been countersigned, against loss from common law or statutory liability, for damages on account of bodily injuries, fatal or non-fatal, accidentally suffered within the period of this policy by any employe or employes of the assured while on duty at the places and. in the occupation mentioned in said application, in and during the continuance of the work described in the said application, subject to the following agreements, which are to-be construed as conditions.”

Bright, in his petition, avers that having taken out this policy, he proceeded to do certain work in. the city of Toledo, and, while carrying forward that work, one of his men was injured — in fact, the man was killed; that an action was brought against him by the- administrator; that upon said suit being brought he notified the Travellers Insurance Company, as required by the terms of the policy of insurance, of the fact and required them to defend; that they replied that the loss did not come within the provisions of the policy, that they were not liable and therefore did not defend. Bright proceeded to make defense to the suit, and that such proceedings were had in the case that judgment was rendered against him for the sum of fifteen hundred dollars — which was afterwards compromised for a less amount — and thereupon he brought suit against the insurance company, to compel them to-pay the amount under the terms of their policy.

The insurance company answered to that petition, as they had answered before, that the person who was killed was not working at the time in a position that brought him within the terms of the policy — in short, that there was no liabilty on their part for the death of the party, or to indemnify Bright for the damages which he had suffered by reason of said death.

A reference is made in the policy to the application, which is made a part of the policy and is the real basis of it. It appears from the testimony, that Bright h'ad taken a contract to put up three additional stories upon a large brick building at the comer of Summit and Adams street in this city, which formerly belonged to the Bronson estate and then belonged to one of the Bronson heirs. He took the contract for doing the whole of the work, and then sub-let the mason work to another party, and the roofing and steel work to another party, he himself retaining and undertaking to do that which naturally came within the limits of a carpenter’s contract and the painting and plastering. He had already sub-let the brick-work when his attention was called to the matter of this insurance. An agent of the insurance company called upon him and the matter was discussed and resulted in an application,being drawn up by tbe agent at the time and signed by Bright — tbe application being, of course, upon questions propounded by tbe agent and answers made by Mr. Bright. The matter that seemed to be in the minds of the parties was that it was to insure against accident which might result upon that' building although the application was general in its terms for the period of one year and to cover wherever the party should have work t'o do in Ohio, and no mention is made, so far as we can discover, of the building in question. Nevertheless, the policy was taken out at that time with reference to that building and with some understanding as between tbe agent and the contractor of tbe work which was there to be done. The building was already 'a three-story one and the additional stories would carry it up to six or seven stories in height. The application reads as follows:

The undersigned hereby applies for a Contractors’ Employers Liability Policy based upon the following statements of fact which are warranted to be true, and it is hereby agreed that if the applicant shall fail to comply with the requirements of any statute, by-law, or ordinance respecting the safety of persons, the policy shall not cover injuries resulting from such failure.
Name of employer, Wm. W. Bright.
Address of employer, 2039 Adams street, Toledo, Lucas county, Ohio.
Trade or business is contracting carpenter, painter and plasterer.

The “contracting carpenter” we. understand to mean taking contracts for carpenter’s work or business.' The point that was made was after the word “ carpenter.”

The occupations of employes, the average number in each occupation, and the estimated total annual wages by occupations are given in the following lists:
The Employes.
Description of Occupation.
Estimated Average Number.
Estimated Total Annual Wages.
Place Where Work Is to Be Done.
Remarks.
Eoremen
2
$500 each
Wherever I have work to do — Ohio and adjoining states.
These men do not work all the year
Carpenters
12
$450 each
Laborers 2 $300 each
Plasterers 2 $ 21 per wk. each
Painters 2 $450 per yr. each
Hod carriers 1 $350 per yr. each
The operations are those usual to the trade or kind of business described above, except as follows:
None but the customary.
No power is used, except as follows: Steam for hoist.

It further appears from the facts of the case, that at the time thé 'contract was let for the brick-work there were some negotiations had between- Hartman, -who-fook that .portion of the contract, and Bright in regard to the hoisting business, the taking up of the brick and the taking up of the necessary articles for the department that Bright was to carry forward, and there was some discussion whether Bright could get' an engine, or whether the engine that Hartman had was sufficient or not, and this resulted in an arrangement between them whereby they rented an engine and hired an engineer, each to pay a man at the top to help manage matters up there, Bright owning the derrick or hoisting arrangement and the tackle and ropes were bought with the expectation that Bright was to pay for them — but, as a matter of fact, Hartman took them and paid for them, as he wanted to use them in another place. There was some question made as to whether that arrangement was all completed before this policy was completed and was understood by Mr. Hunker at that time; but Bright seems to have come to the conclusion that it was finally concluded before the •application was signed by him; it does not perhaps appear "that Hunker understood or knew much about that part' of it. The parties went to work under those conditions. It turned out — and I suppose the jury found — that the hoisting works were insecurely fastened at the top of the building, and while they were carrying on the work the hoisting apparatus gave way, and in falling carried the party who was killed to the ground. Now it happened that the articles which were being carried up at the time the apparatus fell were brick which were to be used by Hartman. There was some claim that the box in which they were placed was overloaded — that the load was too heavy; and it Was stated by Bright that' they were at least of full weight and perhaps a trifle more; that there were not more brick in but that the brick had become water-soalced by rain, and perhaps had been sprinkled, but they weighed a little heavier and would weigh perhaps 1800 pounds and the average weight would be about 1600 to 1700 pounds.

There is no question but what Binecka, the man who was killed, was hired by Bright. He was a laborer in his employ and had been with him for some time, perhaps a year, working in various departments of the business. When they went to work upon this building he was at work there, but had not been connected with the work about the hoisting apparatus, until perhaps the day that he was killed. At any rate, on that, day the man who had been attending to that work failed to appear. The accident occurred on the 5th of July. Mr. Bright, it seems, asked Binecka if he was willing to do that work, and he said he was willing and undertook it.

Under this state of facts, the insurance company claim that they are not liable, for the reason that the party who was killed was not, at the time he was killed, engaged in a work that brought him within the terms of the policy of insurance; in other words, that he was not at' that time a laborer working in that department, in the carpenter business, or plastering, or painting, but that in truth and in fact, if he were working for Hartman, he-was working in the department of mason work.

The question involved in this case is one by no means free from difficulty, as we found in discussing it, and we simply have to discuss these contracts and the facts 'of the case'and'arrive at a conclusion, because we do not know that' there are any cases likely to help us. In a case of this kind, where there is any doubt in regard to t'he terms of the contract, we think they should be resolved rather in favor of the assured than to be strictly resolved against' them. The question here is: Whether within the terms of this contract, the policy of insurance should be held to cover the damage which has been sustained by reason of the death of this .man? Now, this man was hired by Bright; he was hired as a laborer— the testimony seemed to show that, without any variation. He was paid the wages of a laborer in the employ of Bright and he contined to work there until on this 5th of July when he went to this place and was put to work on the hoisting apparatus at' the request of Bright and by his direction, and took his position there as the employe of Bright and was, of course, subject' to his control. The work which was being carried on was that they would raise some material for Hartman and some material for Bright, and so it went on alternately, as the demands of the work on the building called for. The man opposite to him and working on the other side was an employe of Hartman — sent there by Hartman and was paid by Hartman.

It was claimed that by virtue of this krrangement between Hartman and Bright, that they formed as it were a new partnership, and that this man'when he was sent there to work at this point went into the employ, not of Bright alone, but into the employ of Bright & Hartman, and that he was carrying forward a more hazardous business. He was not carrying forward the carpenter business, nor the painting business, nor the plastering business, at least' not exclusively, but he was doing more; he was doing that and at the same time carrying on the mason business in that he was raising brick for the use of the masons. The case has been very fully and ably argued and many suggestions in regard to the character assumed by this party in taking the position that' he occupied in relation to the business and the work to be done, and it was argued that he was really an employe of a new firm, as we have stated, of Bright & Hartman; that no matter if Bright paid him, that the moment he went to work in that way he became the employe, for the time being, of Bright & Hartman, and that in case anything .occurred by reason of his negligence, Hartman would be liable as much as Bright.'

The question is difficult, and we are compelled to decide it upon a fair and liberal construction of the contract, having regard to how the wdrk was being done and the object and purpose for which the contract was made. We think that' in carrying on this work he was doing what was contemplated at the time this paper was signed — that is to say, the materials were being hoisted by the steam hoisting apparatus, and that the employes of Mr. Bright would be engaged in and about that business; it was a part of the work which was being carried on; it was within the carpenter work of Bright at least that all his materials should be carried up and his plastering and carpenter work by a hoisting apparatus of that kind. Now, did he forfeit his right to protection under the policy by the fact that under this arrangement which he had made for convenience and economy, they were engaged in hoisting up some material also for Hartman and that they joined together in paying for the running of the engine and in paying the engineer his wages ? It seems to us not. It seems to us that this man was, while in this employ, fairly and justly within the terms of this policy issued to Bright', and that any accident that occurred to him in and about this work at that point and at the time and place where he was when he was killed was fairly and justly within the terms of the policy, and is one that was within the fair contemplation of the parties to be covered at the time the contract was made.

Doyle & Lewis, for plaintiff in error.

A. L. Smith, D. L. Beall and Charles B. Longwell, for defendant in error.

We, therefore, hold that the judgment of the court of common pleas in this matter was correct; and the judgment of that court will be affirmed, but withe it penalty.


source: Caselaw Access Project

license: Public Domain

text:
    STATUS UNDER. THE MUNICIPAL CODE OF HAMLETS WHICH HAVE NOT BEEN REORGANIZED AS VILLAGES.
    [Hamilton County Circuit Court.]
    The Hamlet of North Bend v. The Cincinnati, Lawrenceburg & Aurora Electric Street Railroad Co.
    Decided, September 12, 1903.

      Samlets — Become Tillages Under the Municipal Code of 1902, how— Classification of, under Sections now Repealed was Constitutional— The Repeals do not Destroy Samlets Already in Existence— Control of Streets hy Trustees.

    1. While the classification of certain villages as hamlets was abolished by the Municipal Code of 1902, the legal existence of these corporations, subject to re-organization, continues undisturbed, and it requires no act of the corporation to effect a transfer from hamlet to village.
    2. The repeal of Sections 1550 and 1552 prevents the creation of additional hamlets, but does not destroy those already in existence.
    3. The statutes pertaining to hamlets prior to the enactment of the present Municipal Code evince no purpose of preventing others from entering that class, and are therefore not within the inhibition as to special legislation.
    4. The ownership of land abutting on both sides of a street does not divest the trustees of a hamlet of control over the entire street.

      Gireen, J.; Sullivan, J., concurs.
   The plaintiff seeks to enjoin the defendant railroad company from constructing and operating a railroad over and across, certain streets within the corporate limits without having first obtained the consent of the plaintiff. The court of common ple'as allowed a temporary restraining order and afterwards, upon motion of the defendant, dissolved the same, and therefore the plaintiff appealed from that order dissolving the injunction and n-ow moves for a temporary restraining order, which is resisted by the defendant upon the ground that the plaintiff has not legal capacity to sue, because:

1st. The Municipal Code of 1902 abolished hamlets and classified all municipal corporations as cities and villages.

2d. The repeal of Sections 1550 and 1552 of the Revised Statutes left no legislative basis for the existence of a hamlet.

3d. The sections of the Revised Statutes pertaining to hamlets are unconstitutional and void.

I.

The first section of the Code provides that “All municipal corporations which, at the last federal census had a population of five thousand or more, shall be cities; all other municipal corporations shall be villages.”

The purpose of this provision was not to destroy any existing municipal corporation, but to include all in two classes.

The classification of certain villages as hamlets was abolished, •but their legal existence as municipal corporations, if such they were, continued undisturbed, although they were no longer known as hamlets, but as villages.

It required no act of the corporation of North Bend to effect the transfer from one class to the other, although! its organization as a village had not been 'attempted by the electors. It follows, therefore, that the plaintiff corporation is improperly designated a hamlet, since it has by operation of law become a village; but this is a mere misnomer which does not change substantially the claim of plaintiff, and may be amended under Section 5114, Revised Statutes. Section 213 of the Code provides that’ “All officers * * * shall remain in their respective offices and employments, and continue to perform the .several duties thereof under existing laws * * * until their successors are chosen and qualified, or until removed by the proper authority.”

While this section effectually provides for a continuance of the life of the corporation, we see no reason to apprehend that it may be made perpetual. If contemplates the removal of the officers and there is ample provision in the statutes to compel a reorganization of the corporation in accordance with the Code.

II.

The repeal of Sections 1550 and 1552, Revised Statutes, prevented the creation of additional hamlets, but did not destroy those already in existence, except in name.

The classification was changed, but the corporation itself survived, subject, however, to reorganization under the class to which it, according to its population, belonged. The same act' by which these sections were repealed provided for the classification of all municipal corporations under two heads, and it seems clear that the Legislature intended to include hamlets as well as all other municipal corporations in such classification.

III.

It is contended further that the statutes pertaining to the creation of hamlets are unconstitutional and void, and that, therefore, there was no such municipal,corporation as a hamlet when the Code was enacted.

In the case of State, ex rel Kinsely et al, v. Jones et al, 66 O. S., 453, which is relied on by counsel for defendant, the precise question involved and decided is that an act to confer corporate power upon a single city by such classification as the statutes then provided is repugnant to Section 1, Article XIII of the Constitution, which ordains that “The General Assembly shall pass no special act' conferring corporate power.”

Many corporations other than North Bend are included in the class of hamlets, and the statutes pertaining thereto evince no purpose on. the part of the General Assembly to prevent others from ■entering that class.

Edward J. Dempsey and Stanley Struble, for plaintiff in error.

Peck, Shaffer & Peck and Shepherd, & Shaffer, for defendant in ■error.

The court in the case just cited does not condemn all classification other than that making two classes of cities and villages, but ■on the contrary is careful to state that' “Whether the provisions of the sixth section of Article XIII ordaining that ‘The General Assembly shall provide for the organization of cities and incorporated villages by general laws’ is an exclusive classification of municipalities into cities and villages we do not determine.”

We are unwilling, therefore, upon this preliminary hearing, to hold that hamlets had no constitutional .existence, and the motion for a temporary restraining order will be granted.

In ease No. 3837 the allegations in the petition of the danger to public travel under the proposed bridge ought to be more definite and certain, but enough is averred to warrant the conclusion that the construction and operation of a railroad over and above the •street will probably be dangerous to the use of the street and become a nuisance unless controlled and regulated by municipal .authority. The ownership of the land abutting both sides of the street no more divests the trustees of the hamlet of control over the entire street than the ownership of the land abutting one side deprives them of control over one half.


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    NEGLIGENCE AS BETWEEN AN ELECTRIC CAR AND A VEHICLE IN A CROWDED STREET.
    [Circuit Court of Lucas County.]
    The Lake Shore Electric Railway Company v. Mary Majewski.
    Decided, July 3, 1903.

      Negligence — What Constitutes "Loolcing” for a Car in a Crowded Street — Speed of the Car — Rights of Vehicles — Damages for Rupture.

    1. In an action for damages for injuries received in a collision between an electric car and a vehicle, the fact that the front end of the car had passed the vehicle before the collision occurred does not necessarily exonerate the company from liability.
    2. Where a vehicle is being driven parallel with and very close to an electric railway track in a crowded street, and a car running at high speed attempts to pass, and could safely pass were the vehicle to continue in an absolutely straight line, negligence can not be charged against the driver because either through his fault or that of the team the vehicle deviated slightly as the car was passing and a collision occurred.
    3. The rule as to speed laid down in the Kistler case (66 O. S., 326)’, is not applicable to an electric railway running through a city.
    4. One driving upon a street occupied by an electric railway track is not guilty of negligence in going upon or attempting to cross the track, if having looked in the direction from which cars approach he sees there is no car so near as to be in danger of colliding with him if it is controlled with reasonable care.
    5. Where it is in issue whether the car struck the wagon or the wagon struck the car, and the trial judge in the course of his charge says “it is undisputed that the car struck the wagon,” the expression should be taken with others in the charge and interpreted as meaning that it is undisputed that there was a collision between the Car and the wagon.
    6. A Polish woman, accustomed to work in the fields, was thrown from her wagon in a collision with an electric car, and claimed to have received two ruptures. The testimony did not clearly establish that the accident caused the ruptures, but it did aggravate them. A judgment for $3,000 was entered below for the woman. Held: That the judgment should be reduced to $2,000.

      Parker, J.; Haynes, J., and Hull, J\, concur.
   This is a proceeding brought to obtain the reversal of a judgment of the court of common pleas. Mary Majewski, in an action against the railway company, in which she charged negligence resulting in a personal injury to herself, recovered a judgment for three thousand dollars. The railway company prosecutes error to that judgment and insists that the verdict is against the weight of the evidence; that there was error in the charge of the court, and that the verdict is excessive in amount. It is questionable whether we would be required to review this record upon the weight' of the evidence; indeed, we are inclined to the view that we are not, and the fact that we do, we do not wish to have regarded as a precedent in like cases. A couple of exhibits introduced in evidence do not 'appear as a part of the record. We are persuaded that we have in the record about all the merits of the controversy notwithstanding the absence of these exhibits; nevertheless, we would probably not be authorized to consider the case, or at leiast not to reverse it, upon the weight of the evidence; but in looking through it for other purposes we have necessarily considered that question- — -and we have gone through the record very carefully.

The claim of the plaintiff below was that she was driving along Superior street, between Adams and Madison streets, upon the west' side, driving towards Madison street. After she had traversed perhaps two-thirds of the distance between those two streets, a collision occurred between one of the cars of the railway company and her vehicle — a little truck-wagon in which she was riding; that she was thrown to the pavement; that the wheels of the vehicle passed over her body and that she suffered serious injuries, to-wit, two ruptures, one on each side of her abdomen, and other serious and permanent injuries. She says that this collision was due to the negligence of the persons operating the car. The car, I should say, was going in the same direction in which she was traveling; and she says that the operators were negligent, in that one of them saw her — or by the exercise of reasonable care might have seen her — in a position of peril and might have stopped the car, but did not do so, but ran into her; that, they did not give such signals or warnings of their approach as were due to her, so that she might have observed them and turned aside; th'at they were running the car at an excessive rate of speed under the conditions there prevailing, in the center of the city, where the street' was crowded, i. e., at a speed of sixteen to eighteen miles an hour.

It is charged in the answer that she was guilty of contributory negligence; that she, in the exercise of ordinary care, could have seen this car approach and could have avoided the collision — that she must have seen it. But she, on the other hand, says that she looked and did not see it. It is in evidence that the street is straight for a long distance towards the north, from which direction the car was approaching, and it is claimed that if she had looked carefully she must have observed the approaching car. But the question still remains, whether she exercised such care under the circumstances as would exonerate her from the charge of contributory negligence?

It appears from her testimony and that of some of her witnesses that there were wagons — an oil wagon and some other wagons— upon the westerly side of the street, and that parts of these wagons came out so close to the track of the railroad upon which this car was approaching that it would have been exceedingly dangerous and difficult for her to attempt to pass between these wagons and the track with the car approaching; that as she undertook to make that movement and drive in there the car came upon her and struck her vehicle and broke it, in a degree. I believe it did not tip the wagon entirely over, but it turned it completely around so that after the accident was over, the horse’s head was towards Adams street instead of towards Madison street, and the buggy was towards Madison; but it threw her out and also threw out her little girl.

Now on the part of the Tailway company, the motorman testified that he saw this woman approaching and came near to her at a time when she was in a position which he thought would be dangerous to her, and he brought his car to a stop; but it' appears from the testimony that when he brought his car to a stop it had passed by her for some distance; and in order to find out whether he had struck her, or whether she had got' out of the way, it was necessary for him to open the door to his vestibule. He said he looked out and saw that she h'ad cleared the ear, and then he started np again and the theory of the defense is that she must have backed her vehicle into the car, or something must have occurred that was carelessness on her part — for the motorman says that immediately thereafter he heard a crash and he came to a stop again, and then the collision had occurred and the damage was done. But we do not think that the preponderance of the evidence supports this theory; we think it tends to support the theory that the car stopped after the crash and after the accident. It is insisted, however, by counsel that it fairly appears from all of the evidence that the very front of the car did not strike the vehicle — 'that the front of' the car passed by it', and that the rear part- of the. car not being any wider than the front, and that having passed her with the front of the car they were justified in thinking they could go on and disregard her presence, and that if she afterwards came in contact with' the car it must necessarily have been because of her own negligence or a mere accident which could not be thé fault of the railway company. The testimony of the motorman was that he observed her in a position which he regarded as dangerous to her — very close to the track, where he was fearful there would be a collision. -We do not' think that if the very front end of the car passed the vehicle without touching it, it would necessarily follow that the railway company could not be held responsible for any accident or collision thereafter occurring. It is evident that this woman was in a position of peril as she was discovered there by the motorman, and we think that if he had been moving his ear along the street, in such a way as to have had it under full control, he might have contrived to stop before he came to her or came upon her and before he had passed so far -to the south that it became necessary for him, according to his own admission, to open the side door to find out what had happened; We think that, with the other testimony in the case, t'ends to show very clearly that the car was being run at a rate of speed that was under the circumstance's excessive; that it' was not held under full control so that the safety of others having a right to use the street might be properly preserved.

Upon that subject, the railway company asked the court to charge as follows:

“If the jury find from the evidence that the collision between the defendant’s ear and the plaintiff’s wagon did not occur until after the forward end of the ear had passed plaintiff’s wagon and horse, the jury are instructed to return a verdict for the defendant.”

This was not given, and the railway company complain. As I have said, it appears to us that the fact that the railway company had gotten the front end of the ear past the wagon of the plaintiff was not enough to necessarily exonerate it, and therefore, we think the court did not err in refusing to give this request. There is another ground upon which it is urged that the court might have refused to give this, and that is, that the front of the car was the fender of the car and that is not as wide as the body of the ear, and the fender of the car might have passed the vehicle and cleared it, yet the front of the body of the car might have struck it and yet under the charge the railway company would have been’.exonerated, which would have been clearly wrong; but, assuming that it' meant the front of the body of the car, we think it should not have been given.

This woman finding herself in a position of peril was not required under the law to do that which we, looking upon the event after it happened, may see would have been the safest possible thing for her to do under the circumstances. Perhaps if the car had passed the four wheels of her vehicle and her horse, and she had kept on without an inch of deviation to the right or to the left — towards Madison street — the whole ear would have passed the vehicle and horse safely; but' under the situation, in the predicament that she found herself, and the consequent excitement of both horse and driver, due to such a situation, we do not think it would have been required of her that.she should keep on in this undeviating course. ■ It seems to us that the accident probably happened in this way: When the car came upon her and almost touched the wheels of her vehicle, that the horse, either of its own motion, or by her involuntary attempt to get it into a position of safety, turned towards the curb, and it is evident that such a movement would bring the front wheels of the vehicle closer to the body of the car than if they were going straight on the street. The part of the front wheels resting upon the pavement would act as a pivot, and the moment her horse turned towards the curb to the right the difference between one-half of the diameter of the wheel would be brought over towards the ear, that is t'o say, the vehicle would be brought that much nearer to the car than it was when the wheels stood in a position directed towards the south, and-when this turn was made, the ear then caught the front wheel — and it appears that the front wheels were broken loose from the buggy— and the vehicle was brought up against the car and turned and plaintiff was thrown out. Therefore we can not say and we do not think that this deviation from her course was an act of negligence upon her part. There is no evidence in the record tending to show that she deliberately, or otherwise, backed her vehicle into the car. We think that' at the time the ear struck the vehicle she was trying to get out' of the way and the horse was trying to get out of the way, and so the accident occurred; and on account of the negligence of the company in running the car at that high rate of speed — for the preponderance of the evidence is that it' was running at a rate of speed of perhaps twelve or fifteen miles an hour — so that the car could not be stopped before it reached the vehicle, we think the company should be held liable.

The rule as to speed laid down by the Supreme Court in the case of The New York Chicago & St. Louis R. R. Co. v. Kistler, 66 Ohio St., 326, is cited by the railway company, but this is clearly not applicable to a street railway running through a city; it is applicable to a steam railroad operated in the open country. The rules upon the subject are stated in a great many authorities and are widely different from the rule laid down in the Kistler ease. What we have said in the case of Railway Co. v. Westenhuber, in 12 Ohio Circuit Court Decisions, 22 (22 C. C., 67), we think is applicable to this ease. That was a case of a collision between a car and a vehicle crossing a track at the intersection of two streets. This is not a case quite like that, it is true; this is a case where one drove parallel and near to the track between streets when a car was approaching. In that' case we said:

"To attempt to drive across a track ahead of a street car when the car is so far away that, by the exercise of reasonable care on the part of the operators it might be stopped before reaching the place of crossing, is not negligence in our opinion. The rights of the street car company and of the driver of the team being equal at the crossing, he had a right to go over the crossing ahead of the car, notwithstanding the fact that his doing so would require that the speed of the car must be retarded to prevent a collision. The one first' at the crossing had the right to precede the other in going over the same. It is plain, the driver of the team must take into consideration the fact that the street car can not turn out, it' must remain upon the rails, 'and he must take into consideration the fact that it can not stop instantly, that if it is going at a high rate of speed it may require considerable distance for it to stop; but taking all these things into consideration, if he enters upon the track when the ear is so far away as that it may, by the exercise of reasonable diligence on the part of the operator, be stopped, he is not in our opinion guilty of negligence in thus entering upon the track.”

Now that is the rule as to the right of persons to cross street ear tracks at the intersection of streets. When they come upon the track of the company between streets, in other words, people driving vehicles along a street are not bound to keep away from the tracks of the street car company as they are to keep away from the tracks of a steam railroad in the open country. They have a right to use the street, as well the part of the street' where the tracks are as other parts of the street, and to attempt to drive around vehicles as this woman did, although it would bring her close to the track or upon the track, and .to drive there ahead of the street car when the ear was so far away that by the exercise of reasonable care she might suppose she had- time to pass by such vehicles would not in our opinion be negligence. The street car company can not insist that the speed of its cars shall not be retarded by people driving in ahead of the ears upon the street.. When in the use of the street the exigencies require them to drive upon the tracks, they may drive there and the street car company must retard the speed of the car t'o allow them to use that part of the street as well as the parts where the tracks are not laid.

It is said that if this woman had looked she would have seen the car approaching, and it is argued that therefore she was bound to avoid coming near the track. If she had looked and seen the car approaching at' such a speed and at such a distance as that it could be stopped by reasonable effort without running into her vehicle, it would not have been negligence upon her part to enter upon the track.

Now what looking was she required to do, and what lack of it would be negligence upon her part, under the circumstances ? One about' to drive upon a track should look up the track to see if a car is coming. It seems to me that one is not required to anticipate that a car will come along a busy and crowded street at the rate of fifteen miles an hour, and therefore, look up the track for a quarter of a mile to see whether a ear is approaching. Nor need one anticipate, if a car is approaching, that the motorman will not attempt to retard the speed of the car to prevent a collision. One may look up the track and see a street car approaching and yet not be negligent in driving upon the track ahead of it. When one should look up the track 'and see a car approaching a reasonable distance away, such a distance as the car might not reasonably be supposed to traverse before the person could go upon and over the track, and he discovers no ear within that distance, we think that would be a reasonable observation of the track before entering upon it. Applying that rule in this case, we can not say this woman was negligent in failing to observe the approach of this car. So far as it appears, the car was at' that time a long distance away from her when she turned in towards the track, and the reason it came upon her before she had time to get around these wagons was that it was coming down the street at a -high rate of speed, and its speed was not retarded until the collision occurred.

Complaint is made of an expression by the trial judge in the course of his charge in describing the claims of the parties, where he says it' is undisputed that the car which was operated by the defendant struck the wagon in which plaintiff was riding. It is insisted that that should have been submitted to the jury; that it was a vital question whether the car struck the wagon or the wagon struck the car. The railway company claim that the wagon did the striking and that it was backed up into the ear; but we think, considering this expression with others running through the charge, that what the court meant; and what the jury understood the court to say was, that there was a collision between t'he car and the wagon, and the jury could not have understood that the court was trying to withdraw from their consideration or influence their decision upon this disputed question of fact in the case.

It is also complained that this verdict is excessive. It is for three thousand dollars. The ground of complaint was that she suffered two ruptures. These we know are serious disabilities, and if it were made to appear upon this record clearly and satisfactorily that she had suffered these ruptures through this accident entirely, that these ruptures were.initiated or begun by reason of the fall that she received upon that occasion, we would not feel inclined to disturb the verdict. But we are not satisfied upon that point. It appears that this Polish woman was a hard-working woman and a field laborer at home. She had been the mother of six children. That, as the doctor says — the carrying and the birth of so many children — necessarily weakens the abdominal walls and causes them to become flabby and more liable to injuries of this character; and it appears to us that the hard work which she did during the weeks after she 'had given birth t'o these six children might very naturally have brought this disability upon her. The doctor who attended her at the birth of her last child said he examined her carefully upon that occasion and she had no such rupture. But' the time intervening between the birth of that child and the time she received this injury was an interval of six months, during which she had been actively engaged in hard work upon the farm. She and her husband and her daughter testify upon that. I should say that the doctor saw her on the day following that of the accident and discovered this rupture for the first time. The plaintiff, her husband and daughter testified to the disability and the testimony of none of them is very clear to the point whether or not she was ruptured before the time of this accident. The most that the plaintiff herself says, when asked the question, is that she did not suffer this pain before this accident; she does not say that she was not ruptured before the accident. The daughter simply testified that after the 'accident her mother did not work as she worked before; that she was obliged to be in and about the house and could not work in the field as she did before; and the testimony of the husband is substantially to the same effect. It appears that when she was thrown out of the buggy it ran over her, but she was not so much disabled at the time but that she was able to be upon her feet, and it does not appear that, she complained of any especial injury. She had bruises upon her person, and her clothes were mussed but most of the doctors who testified in the case say that if she had received such injuries as these, they must' have resulted in excrutiating pain at the time, and they can not see how she could have conducted herself and done and attempted what she 'did after the accident. She was placed in the same vehicle and taken down to market space and then a carriage was sent for and she was placed in the carriage and taken home, a distance of some eighteen miles. It does not appear that she had any medical treatment that day at all. This physician was called in the next day. The hack-driver testifies that she said to him, when he asked her if she was the woman who was hurt, that she was the woman but that she was not much hurt. Thereupon she gathered up -a lot of bundles and took them over to the hack and then climbed in herself; 'and it does not appear that she made any complaint about any pain in that long drive home. However, we think it is fairly apparent from the record that the rupture, if it had theretofore existed, was aggravated by this accident; but, we think, in view of the circumstances, that the verdict is too high and we are unanimously of opinion that it should be reduced to $3,000. We will allow the judgment to stand for $3,000, with interest, from the date — as it originally bore interest — if counsel for plaintiff will allow a remittitur to be entered; otherwise, it must be reversed on the ground that the judgment is excessive, i. e., against the weight of the evidence as to the amount.

Charles K. Friedman and Marshall & Fraser, for plaintiff in error.

Kinney, O'Farrell & Remelspach and Smith & Baker, for defendant in error.


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    CONSTRUCTION OF STATUTES AUTHORIZING ANNEXATION OF TERRITORY TO CITIES.
    [Circuit Court of Cuyahoga County.]
    William G. Pollock v. Charles W. Toland, as Clerk of The City of Cleveland, et al.
    Decided, July 27, 1903.

      Annexation — Procedure in Case of Pillages — In Case of Cities — Deposit of Petition with County Auditor — Required When — Not in the Nature■ of Notice.

    Section 1556, Revised Statutes of Ohio, regulating proceedings for the organization of villages, is made a part of the law establishing the procedure in ease of the annexation of territory to a city only “as far as applicable;” and that part of said section which states that the petition shall be filed with the county auditor, simply provides for a safe and proper place for its deposit, and is not in the nature of notice, nor is it applicable to the case of the annexation of territory to a city, upon the application of the city.
    Winch, J.; Marvin, J., and Laubie, J., concur.
    Error to court of common pleas.
   On May 21st, 1902, the city of Cleveland filed its application with the commissioners of Cuyahoga county for the annexation to said city of what is known as the second ward of the village of Glenville.

The commissioners granted the prayer of the petition and filed a transcript of their proceedings with the city clerk, whereupon plaintiff filed his petition in the Common Pleas Court of Cuyahoga County, praying an injunction to restrain the city clerk from reporting to the city council and laying said transcript and other papers before it. The prayer for injunction was based upon allegations of errors and irregularities in 'the annexation proceedings had before the commissioners. No other reasons why an injunction should be allowed were assigned. The common pleas court found no error in s'aid proceedings and dismissed the petition for an injunction. The case is in this court1 on petition in error from the common pleas court and involves a re-examination of the ten errors complained of.

We take them up in their order:

“First, that the aforesaid application of the city of Cleveland does not correctly and exactly describe the territory so ordered by the Board of County Commissioners of Cuyahoga County to be annexed to the city of Cleveland, and that, therefore, s'aid board of county commissioners was without jurisdiction to proceed in the premises.”

This objection is not' well taken. It appears from the petition that there was an error in the description of the territory to be annexed, one course in the boundary thereof being omitted. This was apparent from inspection of the plat filed with the petition. The commissioners permitted the petition to be amended by the insertion of the omitted course. No new territory was embraced by the amendment'. The amended. petition correctly and exactly described the territory to be annexed. Section 1557, E. S. 0., says:

“The petition may be amended by their (the commissioners’)" leave.”
“Second, that the said petition as originally filed and as amended, did not contain the name of some person to act as agent' for said petitioners, and that therefore the said commissioners were without jurisdiction to proceed in the premises.”

This objection is not well taken. The petition was in behalf of the city of Cleveland and was signed by its corporation counsel. He is by law the agent of the city in such matters and as such is sufficiently named in the petition. It is true that Section 1589, R. S. O., provides that a petition presented by freeholders residing in the territory to be annexed shall contain the name of some person who is authorized to act as the agent of the petitioners, but such provision is not applicable when, the annexation of territory is sought on application of a corporation. In such case it is unnecessary.

“Third, that said board of county commissioners did not cause said petition to be filed in the office of the County Auditor of Cuyahoga County, and that therefore, the said board of county commissioners was without jurisdiction to proceed in the premises.”

It is admitted that the board did not cause the petition to be filed in the office of the county auditor. This objection to the regularity of the proceedings is based upon the provisions of Section 1556, R. S. O.

It is claimed .that the filing with the auditor is in the nature of notice and jurisdictional.

Was it the intention of the Legislature to make it such? The intention of the Legislature and the construction to be put upon the law in this case is easily ascertainable from the-context. We must read Sections 1556 and 1557 together and give force to all the provisions of both sections. They provide as follows:

“Section 1556. The pét'ition shall be presented to the board of commissioners at a regular session thereof, and when so presented the board shall cause it to be filed in the office of the county auditor, where it shall be subject to the inspection of any person interested; and the commissioners shall then fix the time and place for hearing the petition, and communicate the same to the agent of the petitioners, which time shall not be less than sixty days after such filing; and thereupon the agent shall cause a notice, containing the -substance of the petition, and the time and place where the same will be heard, to be -published in some newspaper printed' and .of general circulation in the county, for the period of six consecutive weeks, and cause a copy of the notice to be posted in a conspicuous place within'the limits of the proposed corporation, not less than six weeks prior to the time fixed for such hearing.
“Section 1557. The hearing shall be public, and may be adjourned from time to time, and from place to place, according to the discretion of the commissioners, and any person interested may appear, in person or by attorney, and contest the granting of the prayer of the petition, and any affidavits presented in support of or against the prayer of the petition shall be considered by the commissioners, and the petition may be amended by their leave; but if any amendment' is permitted, whereby territory not before embraced is added, the commissioners shall appoint another time for the hearing, of which notice shall be given, as specified in the last preceding section.”

It appears that it is the duty of the commissioners to fix the time and place for hearing the petition, and communicate the same to the agent of the petitioners and thereupon the agent causes notice containing the substance of the petition and the time and place when the same will be heard to be both published in a newspaper and posted in a conspicuous place within the limits of the territory proposed to be annexed. The notice to all persons interested is thus provided for. The filing with the county auditor is not to provide additional notice. Any person interested calling at the office of the county auditor would gain no more information concerning the proceedings than the published and posted notices would give him. Indeed, should he call at the office of the county auditor to inspect the petition he would there receive no information as to where and when the ease would be heard by the commissioners. The auditor could tell him nothing about the progress of the case 'and he would be compelled to revert to the published or printed notices or inquire of the commissioners to find out when the hearing was .to be. The petition on file with the auditor would give him absolutely no new information, for its substance is required to be stated in the notice. In this case both the published and posted notices set forth copies of the petition in full and stated that the petition and written requests of two-thirds of the voters inhabiting the territory were on file with the commissioners.

There is no provision that the requests of the voters should be filed with the auditor.

Should a person interested desire to investigate these requests-he would not find them in the auditor’s office, but must go to the commissioner’s office for an inspection of all papers and files. We therefore conclude that the law, in providing that the petition be filed in the office of the county auditor, simply provides for a proper and safe place for the deposit of the petition. The commissioners are not in daily session and in many counties they have no separate office of their own, but hold their sessions in the offices of other county officers — usually the office of the county auditor. In this county the commissioners have offices of their own which are -open every day, a clerk being.in daily attendance there, having charge of all papers, records and files belonging to the board. Neither the plaintiff in this action nor any other person interested in the proceedings for annexation was in any wise inconvenienced or injured by the failure of the commissioners to file the petition with the county auditor. They would have been much inconvenienced had it been so filed, for they would have found part of the files in one office and part in another.

It will be noticed further that Section 1556 is found in the chapter governing the organization of villages, made a part of the law establishing the procedure in case of the annexation of territory to a city only “as far as applicable” (see Section 1615 and Section 1590, R. S. O.), and we hold that this requirement, i. e., that the petition be filed with the county auditor, is not applicable in an annexation case such as this.

In the annexation case of Shugars v. Williams, 50 O. S., 297, Judge Spear, on page 304, calling attention to an objection to the regularity of the proceedings in that case, asks the question: “But is not this rather technical?” And further on, the learned judge says: “In the practical administration of justice mere technical objections have to give way to substance.” And so in this case, the substance of the law has been complied with and we find no merit in this objection.

“Fourth, that no notice of the time and place of the aforesaid hearings before the board of county commissioners was given as required by law, 'and that therefore, the said board of county'commissioners was without jurisdiction to proceed in the premises.”

The law (Section 1556, above quoted) provides that .the agent of the petitioners shall cause notice to be published and posted. It sufficiently appears from the petition that the corporation counsel caused the notice to be given as provided by law and we have above held that he was the agent of the petitioners.

“Fifth, that no notice was given of the aforesaid amendment of said petition, and that therefore, the said board of county commissioners was without jurisdiction to proceed in the premises.”

No notice'of the amendment was necessary as no territory not before embraced was added by the amendment. See Section 1557, R. S. O.

Sixth. The sixth objection depends upon the fifth and fails with it.

Seventh. The seventh objection is not now urged.

“Eighth, that the city council of the city of Cleveland is without jurisdiction to accept or reject the aforesaid application for annexation of territory.”

Hoyt, Dustin & Kelly, for plaintiff in error.

Newton D. Balcer, Estep, Payer & Carey and Adams, for defendant in error.

This objection is based upon the judgment of ouster rendered by the Supreme Court against the former city government of Cleveland. We do not think that that judgment, suspended as it was by the Supreme Court, has anything to do with this case.

Ninth. The ninth objection raises the point that under the new municipal code law, the village of Glenville became a city December 15th, 1902, and that as the statutes and the proceedings begun intended the annexation of a part of a village to a city and there is no provision for the annexation of part of one city to another city, this proceeding is invalid because it was not completed until after December 15, 1902.

The record shows that 'the annexation petition was filed with the commissioners May 21, 1902, and the final transcript of the proceedings of the commissioners was filed with the city clerk February 23, 1903. On that'day 'and until after the April election following, the status of both the city of Cleveland and of the village of Glenville and their governments, was unchanged by the municipal code law, and the ninth objection is not well taken.

“Tenth, that no petition for annexation and no map or plat was deposited with defendant Chas. W. Toland as clerk as aforesaid with said final transcript or at any other time and that therefore said proceedings are void and of no effect.”

It appears from the bill of exceptions that the petition and plat or map referred to were deposited with the city clerk, February 5, 1903.

Finding no errors or irregularities in the proceedings, the judgment of the common pleas court is affirmed. '


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    MAINTENANCE OF WORK HOUSES AND LIABILITY TO PRISONERS WHO SUFFER IN HEALTH.
    [Circuit Court of Lucas County.]
    Fred Rose v. The City of Toledo and Fred Ritter.
    Decided, February 23, 1903.

      «City Work House — Governmental as Distinguished from Corporate Powers of a City — Powers of Officers of Penal Institutions to Make Reasonable Regulations.

    1. A municipality constructs and maintains a work bouse by virtue of the governmental as distinguished from the corporate power with which it is vested, and is therefore not liable to a prisoner confined therein, who complains that he suffered in health by being placed in a small, damp and unsanitary dungeon.

      2. It is a power inherent in a work house superintendent to prescribe reasonable rules for the government of the prison, and to enforce obedience to them by the infliction of proper punishment, and where the punishment is not cruel or excessive, and is not inflicted with malice or intent to injure, the superintendent is not liable to a prisoner suffering injury therefrom.
    Hull, J.; Haynes, J., and Parker, J., concur.
   A petition, in error was filed in. this court to reverse the judgment of the court of common pleas. The plaintiff in error was the plaintiff below and filed a petition against the defendants for damages claimed to have been sustained by reason of his treatment in the work house of the city .of Toledo, claiming damages against both the city and the other defendant, Fred Ritter, who was superintendent of the work house at the time of .the grievances complained of. A general demurrer was fi,led to the petition in the •court below and was sustained. The plaintiff not desiring to plead further, the petition was dismissed at plaintiff’s cost.

The question here is, Whether the petition states a cause of action against either of the defendants? The petition is as follows :

■ “Plaintiff says that the defendant, the CSity of Toledo, is a corporation dnly incorporated under the laws of Ohio, and a city of the third class and first grade, and that defendant, Frederick Ritter, is superintendent of the Toledo work house in the City of Toledo, Lucas county, Ohio.
“Plaintiff, Fred Rose, further states that the City of Toledo, Ohio, did on or about (exact date to plaintiff unknown) build and construct a building ‘and enclosed, a parcel of land between Swan creek and the canal within the eorporated limit's- of the City of Toledo, and cal-l-ed -it The Toledo Work House.
“That within said enclosure -and buildings there was constructed and still remains a dungeon.
“That said dungeon was constructed -and is maintained by said City of Toledo in the condition existing at the time hereinafter mentioned.
“That at the time hereinafter mentioned -the City of Toledo, the said defendant, knew or by reasonable diligence might have known of the dangerous, unhealthy, unsanitary -and damp condition of the said dungeon, as aforesaid.
“Knew that said dungeon was constructed and made so narrow amid small that a person confined therein could not lie down.
“That the said City -of Toledo, defendant, by some agreement with 'the Commissioners of Lucas County, Ohio, agrees .to keep prisoners, convicted of misdemeanor within said county of Lucas within said work house, at labor during their confinement therein.
“Plaintiff further says that on the 12-th day of April, 1901, he was -adjudged guilty of a misdemeanor in the Police Court in the said City of Toledo, and by the judge thereof ordered committed to said work house for four months, and in pursuance of said order and judgment of said court he was dnly committed to said work house, kept and maintained by the defendant, the City of Toledo, -and superintended by Frederick Ritter, the said defendant.
“That on or ab-ont the--days of 1901 (exact date to plaintiff unknown) while serving time for said offense in said work house, he was, without due'process of law and without reasonable cause committed to said dungeon by order -of Frederick Ritter, Said defendant, and there confined for 48 hours at one time without nourishment; that within a few days thereafter was again committed to said dungeon, as aforesaid, and remained therein 48 hours without food; that' after being released and within ten days thereafter, he was again committed to said dungeon amid compelled to remain therein continuously for 144 hours.
“That said dungeon was ih -an unhealthy and unsanitary condition; that' by reason of the premises herein alleged plaintiff be.came, and was sick; that ever since he was so confined in said dungeon and on account of the damp, unsanitary and unnatural position he was compelled to occupy, and by reason of the infective and dangerous condition of said dungeon and dampness therein, he was injured and caused great bodily pain, causing rheumatism and other internal injuries.
“That he was deprived of his rights in the premises; that said defendant, Fred Ritter, knew, or by reasonable diligence might have known of the aforesaid condition of said dungeon, and in total disregard of his duties to this plaintiff did order his commitment to said dungeon as aforesaid.
“That the injuries then and there received are of a permanent nature' from which he has suffered and still.suffers great bodily pain and mental anguish.
“That ever since the said grievances 'as heretofore stated plaintiff has been) and still is unable to' perform manual labor.
“That by reason thereof in the premises plaintiff has- been damaged in the sum of five thousand dollars.
“Wherefore plaintiff prays judgment for five thousand dollars and his costs.” (Signed and sworn to in due form.)

The action was sought to be maintained both against the City of Toledo and Ritter, the superintendent'. Their liability or want of liability, as the case may be, rests upon somewhat different grounds so that they will be considered separately. It appears from the allegations of the petition and the matters that are not alleged in the petition — for it is presumed that 'all things were done lawfully unless the contrary is shown — that the City of Toledo in the exercise of its powers under the law constructed and maintained a work house for the imprisonment and correction of violators of l'aw — violators of the city ordinances, probably, primarily — and that it had an arrangement under which persons who were convicted of misdemeanors — violators of the state laws — . might be committed to said work house and imprisoned therein instead of being imprisoned in the county jail. The plaintiff was duly convicted of some offense against the laws of the state, of a misdemeanor, as he alleges, in the police court, and was duly and legally sentenced to imprisonment for four months in the Toledo work house. He makes no complaint of the legality of the proceedings up to this time. He was, then, at the time of the grievances of which he complains a lawful prisoner who had been 'duly committed to tbe work house and confined therein.

According to the petition there was in the work house a "dungeon,” which we may presume was used for the punishment by imprisonment therein of the inmates of the work house for violation of the rules of the work house, the work house being in its nature a prison, amd - standing substantially on the same footing as other prisons. This dungeon, he alleges, at the time of his commitment thereto was in an unsanitary and unhealthy condition; that it was damp and otherwise unhealthy and that on account of his confinement therein for the periods mentioned by Mm, his health was injured.

The question arises, first: As to whether the city is liable in this action — whether the facts in the petition are sufficient to constitute a liability against the city?

It is not for every wrong that is committed by an agent or employe of the city that the city is liaMe in damages to a private citizen; some of the duties of the city are of a public character— of a governmental character, the city exercising the powers of government, or of sovereignty, as it is said; and while exercising such governmental powers as a general rule the city is not liable for the wrongful acts of its agents ‘and employes in carrying out or in performing such powers. The city, in the performance of such duties, acts not' for the individual but for the public, acts in a governmental capacity for the benefit of the people. The work house .is constructed and maintained not for the benefit and pleasure of those who may be so unfortunate as to be committed to it and confined therein, but it is constructed and maintained under the laws of the state for a public purpose, as one of the institutions of government for the imprisonment of wrong doers, and they are confined therein for correction and punishment— as the peMtentiary at Columbus is constructed and maintained for similar purposes. These principles are sustained by numerous authorities. A case in 12 Ohio St., 375 (Western College v. City of Cleveland), in wMch the court say in the syllabus:

"The act to incorporate the city of Cleveland, passed in 1836, provided, among other things, in reference to the city council— fit shall be their duty to regulate the police of .the city, preserve the peace, prevent disturbances, and 'disorderly assemblages.’ Held: That the duty intended was that properly appertaining to an administrative and legislative body, acting in the government of a city — making regulations, by-laws and ordinances for the purposes specified, to be enforced by the appointment of officers; and that neither on general principles nor from the effect of that enactment is the city of Cleveland responsible for the destruction of property by a riotous 'assemblage of persons, or for the neglect of the officers in not preserving the peace, and preventing such destruction.”

On page 377, in the opinion delivered by Judge Gholson, he says:

“It is obvious that there is a 'distinction between those powers delegated to municipal corporations to preserve the peace and protect persons and property, whether to be exercised by legislation or the appointment of proper officers, and those powers and privileges which are to be exercised for the improvement of the territory comprised within the limits of the corporation, and its adaptation to the purposes of residence or business. As to the first, the municipal corporation represents the state — discharging duties incumbent on the state; as to the second, the municipal corporation represents the pecuniary amid proprietary interests of individuals. As to the first, responsibility for acts done, or omitted, is governed by the same rule of responsibility which applies to like delegations of power; as to the second, the rules which govern the responsibility of individuals are properly applicable.”

In the 19th Ohio St., at page 19 (Wheeler v. The City of Cincinnati), the Supreme Court say in the syllabus:

“The power conferred by the statute on cities of this state to organize and regulate fire companies, and provide engines, etc., for extinguishing fires, is, in its nature' legislative and governmental ; and a city is not' liable to individuals for damage resulting from a failure to provide the necessary agencies for extinguishing fires or from the negligence of officers or other persons connected with the fire department.”

On page 22 of the opinion the court say:

“Nor is it liable for 'a neglect of duty on the part of fire companies, or their officers, charged with the duty of extinguishing fires. The power of the city over the subject is that of a delegated quasi-sovereignty, which excludes responsibility to individuals for the neglect or non-feasance of an officer or agent charged with the performance of duties.”

A city is liable for the negligent performance of duties properly within its corporate power, such as keeping the streets in repair and other matters of a Idndred nature, and a distinction is made between duties of that kind and those of government or sovereignty. A discussion of this question is found in Oooley on Torts, beginning at page 619 and continuing through pages 620, 621 and the following pages. Judge Cooley says on page 620:

“For talcing or neglecting to take strictly governmental action, municipal corporations are under no responsibility whatever except the political responsibility to their corporators and to the state. The reason is this: That it is inconsistent with the nature of their powers that they should be compelled to respond to individuals in damages for the manner of their exercise. They are conferred for public purposes, to be exercised within prescribed limits, at discretion, for the public good; and there can be no appeal from the judgment of the proper municipal authorities to the judgment of courts and juries.”

The question is discussed at length in Dillon on Municipal Corporations, Vol. 2 (2d Ed.), in Sections 771 and following, where the law is laid down in language similar to that employed by Judge Cooley.

Judge Dillon says in Section 773:

“Agreeably to the principles just mentioned, police officers appointed by a city are not its agent's or servants so as to render ■it responsible for their unlawful or negligent acts in the discharge of their duties; and, accordingly, a city is not liable for an assault and battery committed by its police officers, though done in an attempt to enforce an ordinance of the city; nor for an arrest made by them which is illegal for want of a warrant; nor for their unlawful acts of violence whereby, in the exercise of their duty of suppressing an unlawful 'assemblage of slaves, the plaintiff’s slave was killed.”

And in Section 774:

“So, although, a municipal corporation has power to extinguish fires; to establish 'a fire department; to appoint and remove its officers, and to make regulations in respect to their government, and the management of fires, it is not liable for the negligence of firemen appointed and paid by it, who, when engaged in their line of- duty, upon an alarm of fire, ran over the plaintiff in drawing a hose reel belonging to the city on their way to the fire; nor for injuries to the plaintiff caused by the bursting of a hose of one of the engines of the corporation through the negligence of a member of the fixe department. The exemption from liability is placed upon the ground that the service is performed by the corporation in obedience to an act of the Legislature; is one in which the corporation has no particular interest and from- which it derives no special benefit in its corporate capacity; that' the members of the fire department, although appointed by the oity cor-’ poration, are not the agente and servant's of the city for whose conduct it is liable; but they act rather 'as officers of the city, charged with a public service, for whose negligence in the discharge of official duty no action lies against' the city, without being expressly given; and the maxim of respondent superior has, therefore, no application.”

And many other instances are given by Judge Dillon where a city is not liable for the acts of its agents or servants when acting in a governmental capacity. We are of the opinion, as already intimated, that the city, in constructing and maintaining this work house, was acting in a governmental capacity, acting for the state, for the preservation and maintenance of order, in the punishment of offenders against law; and not acting in its corporate capacity, and that, therefore, that the oity is not and was not liable for the acts of the superintendent of the work house, as charged, and that therefore the petition does not state a cause of action against the city. !

Coming now to the liability of Mr. Ritter, the superintendent of the work house, it is. alleged that the dungeon was damp and unsanitary, and narrow so that the plaintiff was obliged to take an unnatural position; that he was kept in it at one time 48 hours, -on another occasion for the same length of time — both times without food, and on a later occasion he was kept in the dungeon for the period of 144 hours — but it is not alleged that he was kept for that long period without food. And it is claimed that these allegations are sufficient to make a cause of action, against Ritter, the superintendent, to constitute a liability against him for his acts and conduct in the performance of hi's duties as superintendent of the work house. There is no allegation in the petition that Ritter acted maliciously or with an intention to injure Rose; but it is claimed that the facts which are stated are sufficient without ’any such allegation to constitute a cause, of action against him.

The superintendent of a work house is a public officer — an executive officer, perhaps — charged with the government, in a great' measure, and the maintenance of good order in the city prison; and in the discharge of these duties he is given, and must be given, a wide discretion. He sits in a quasi-judicial capacity to. determine whether a prisoner has violated a rule or regulation of the work house, and if so, what punishment shall be meted out to him. There can be no doubt that wardens of prisons and of penitentiaries .and superintendents of work houses have power to order the inmates of snch prisons to be punished, when necessary, in some way. It is necessary that good order be preserved in these institutions. Reasonable rules and regulations must be made for the government of the inmates. The statutes provide, for reasonable rules and regulations in the government of and the punishments administered in county jails, which are to be. snbmitted to the common pleas judges; and the necessity for<sueh rules and regulations applies with still greater force to work houses such as this, where a large number of prisoners are confined, many of them for long periods of time, where they are compelled to work under the superintendence of officers of the work house as a punishment for criminal offenses. With snch a large body of men gathered together in snch a prison, reasonable rules and regulations are necessary and it is necessary that these rules and regulations should be' enforced, and that the superintendent of such an institution should have the power to punish within reasonable limitations and restrictions. Cruel or excessive punishment should not be administered and are mot permitted. under the Constitution of the state; but whether a man has violated 'a rule or not is a question to be determined primarily by the superintendent. If he has become unruly and disorderly, what punishment shall be administered must be left to a great extent to the judgment and discretion of the superintendent to determine from the facts of every case and the circumstances surrounding his infraction, together with the general conduct of the inmate while he has been in the institution. If is, we think, a power inherent in such an officer to prescribe reasonable rules and regulations and see that they are obeyed, and that punishments axe inflicted for their infraction. It is a power exercised by the officers of prisons everywhere and recognized by the law; a power similar to that exercised by a teacher in a public school, who, in theory, is said to stand in the place of the parent and has power to administer reasonable punishment, and if the punishment is reasonable and fairly in proportion to the offense committed, the teacher is not guilty of 'any violation of law and can not be convicted of an assault or of assault and battery.

A short case found in 49 Pa. St. Reports, 151 (Burton v. Fulton et al), is in point. The syllabus, in part, is as follows:

“Public officers acting within the scope of their authority are not answerable in damages for the consequences of their acts unless done maliciously and with an intent to- injure.”

The liability of public officers is discussed at some length by Judge Cooley in his work on Torts, in the chapter headed “Neglects of Official Dufy,” beginning on page 375 and running through to page 403. In the-first paragraph it is said:

“Although the incumbent of public -office has a property right in it, yet the office itself is a public trust, and is conferred, not for his benefit, but for the benefit of the political society. It is therefore from the standpoint of public interest that' any failure in duty is to be regarded, and the remedy for such failure must be indicated by the nature of the duty, and the purpose intended to be accomplished in imposing it'.
“Official duties are supposed to be susceptible of classification under the three heads of legislative, executive and judicial, corresponding to the three departments of government bearing the same designations; but the classification can not -be very exact, and there are many officers whose duties can not properly, or at least exclusively, be arranged under either of these heads.”

And, on page 376, the author says:

“It is, however, as a general thing, only against ministerial officers that an action will lie for neglect' of official duty. The reason generally assigned is that in the case of other officers it is inconsistent with the nature of their functions that they should be made to respond in damages for failure in satisfactory performance. In many cases this is a sufficient reason, but in others it is inadequate.”

And again, on page 379:

“The rule of official responsibility, then, appears to be this: That if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or au inadequate or erroneous performance, must he a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand if the duty is a duty to the individual then a neglect to perform it, or to perform it properly, is an individual wrong and may support an individual action for damages.”

And the question is discussed further by the author. Now as T have said, there is no allegation in this petition that' Ritter acted maliciously or with any intention to injure Rose. The contrary is not averred, and it is to be presumed that Rose was guilty of violation of the rules or regulations of the work house, or he would not have been punished; for it is to he presumed that the superintendent and the authorities of the work house acted reasonably and in accordance with the law amid the rules and regulations of the institution in the absence of any allegation to the contrary. It is alleged that he was committed to the dungeon without due process of law and without reasonable or probable cause, but without stating the facts. That is, without any cause that was reasonable in the mind of Rose; still it may have been sufficient in the mind of the superintendent of the work house aud sufficient in fact. The plaintiff alleges in his petition as a conclusion that it was without reasonable cause. In our judgment this is not a sufficient allegation to constitute a charge of violation of official duty against this officer. It does not appear but that Rose’s confinement in the work bouse was dependent entirely upon his willingness to conform to the rules of the institution. It may have been that he was unwilling to work and was committed to -the dungeon until he had indicated a willingness to resume work. It does not appear but that he was informed that whenever he indicated a willingness to resume work that he would be relieved from the dungeon. None of the facts as to the cause of his confinement — the circumstances surrounding the offense with which he was charged — none of these are set forth in the petition. There is no allegation that he had committed no offense. We do not think that the allegation that in the judgment of the plaintiff the cause was insufficient, or unreasonable, is a sufficient statement of fact to constitute a cause of action against the defendant, Ritter. As I have stated, the superintendent must be allowed discretion, and a wide discretion; in matters of ■ this kind. This punishment may have been more severe than would have been inflicted by some other superintendent; it may have been more severe than some jury might think it ought to have been, but that is not sufficient. It is not the law in our judgment that whenever a man is punished in the workhouse, or in the penitentiary, that by filing a petition alleging that he had been punished without reasonable cause, a cause of action is stated against the prison-keeper which would require him to go before a jury and have determined by such jury whether or' not he should be made to respond in damages for the punishment of a prisoner committed to his charge

It is said that this dungeon was damp and not sanitary. The petition does not allege that Ritter knew of the condition of the dungeon, but it is alleged that he knew or by reasonable diligence might have known. As we understand it, a dungeon cell is an ordinary appurtenance to a prison of this kind, and it is not improper or unlawful to punish prisoners who have been committed to prison by putting them for a time in the dungeon. Dungeons are not built or constructed entirely according to sanitary principles; they are as a rule somewhat dark and damp; they are not' intended as a permanent place of residence for the inmates of the work house, or of any prison, but men are committed to them a short time for the purpose of punishment, and it is intended to have them so constructed that imprisonment therein will be a punishment; it is not intended to make them a pleasant or agreeable place to stay. The superintendent of the work "house was making use of such a prison as he had been put in charge of by the City of Toledo with its various ’appurtenances. He did mot construct' the prison; he did not construct the dungeon. The prison had been put in his charge and he was using it in the performance of his duties. The dungeon was a part of the building that he was using, and properly so, as a means of punishment of those confined therein. Punishment by whipping, or other corporal .punishments in such institutions, is rather discouraged and discountenanced, and such punishments as keeping men in solitary confinement for a time, or imprisonment in a dungeon for a short period of time, is favored by humanitarians, rather than corporal correction.

Peter Bmslie, for plaintiff in error.

M. B. Braily, Oity Solicitor, for defendant in error.

We are of the opinion that' this petition does mot state a cause of action against Mr. Ritter. He was acting in a public official capacity; what he did at the work house was dome as a public officer; what 'he did was for the public. What he did in the way of punishment of prisoners was for the good of the public and the preservation of order and the carrying out of the purposes of the work house rather than on account of any duty that he owed to Mr. Rose or .any other inmate of the work house. We think the case is fairly within the rule laid.down by the authorities. Fact's might be stated that would be of such a character as would make Ritter liable. There might be such facts stated as of themselves would show malice and an intent to do injury without any positive allegation to that effect', but the facts stated in this petition fall short of that; they are mot sufficient to show malice on the part' of Mr. Ritter, or any intention on his part to do harm to the plaintiff. For these reasons the judgment of the court of common pleas will be affirmed.