text:
    FAILURE TO ESTABLISH DEDICATION OF A SUPPOSED ROADWAY.
    Court of Appeals for Hamilton County.
    John Oberhelman v. Amelia E. Allen.
    Decided, March 29, 1915.

      Dedication — Of a Roadway by Statute, at Common Law and by Prescription — Dedication Not Shown, When — Permissive and Occasional Use of an Enclosed Way Tests no Rights in the Public — Vacation by Council of a Way Marked by Street Signs But Not Found in the Public Records.

    1. Trustees of a township have no jurisdiction to lay out and establish a township road through land lying in another township.
    2. The endorsement by a land pwner of the report of viewers appointed to locate a proposed road, said endorsement reading, “I agree to receive the above damages and open the road when the money is paid,” does not show a statutory dedication in the absence of any evidence that the money was ever paid, or that the report of the viewers was accepted or that the other necessary steps required by statute were taken or that the public ever expended any money on said road, or any reference to such way on the public plats or in deeds to the abutting land subsequently executed.
    3. Vacation by council of a street, planned to follow the line of said supposed road after annexation of the territory to the adjacent municipality, does not estop the land owner from denying the existence of such a way; nor does the fact that street signs had been placed on the said proposed street, or that the name of the street appeared in a street directory made up by the police department for the use of its officers and on a certain tax plat, afford proof of any right of the public therein.
    4. ' Occasional use of a private way, fenced in on both sides and to which admission was had through gates and evidently by permission of the land owner, does not ripen into a prescriptive right or vest any . title in the public for the purpose of a public way.

      Herman P. Goebel and Oliver M. Dock, for plaintiff.

      Matthews & Matthews and Nelson & Hickenlooper, contra
   Jones (Oliver B.), J.

Plaintiff claims he has established the existence of a public road or street thirty feet in width known as Hazard road or lane, and sometimes called Lincoln avenue, which extended from St. Lawrence avenue (or Rapid Run road) southwardly to the Thomas Hazard farm over the east part of the land formerly owned by Robert Goudy, who was defendant’s predecessor in title, and that the east line of said road was the west line of the land of 'William Terry, who was the predecessor in title of the plaintiff. He admits that no part of this road was taken from the land of his predecessor in title, but claims that such land abutted on the east side of said road and'therefore he was entitled to use it. He claims that the council of the city of Cincinnati,, upon the petition of the grantors of defendant, by ordinance vacated Hazard road in the year 1906, and that by reason of such vacation he has an interest as an abutting property owner in the vacated road by way of an easement in the entire road or a fee in the east half of the road.

If, as contended by plaintiff, Hazard road was a dedicated highway in which he had the right of an abutter, the order of council vacáting it would operate as a revocation of its acceptance by the council, and the right of the general public therein would cease, but the right-of-way over it and the easement in it theretofore enjoyed by plaintiff would not be impaired by such vacation, and he would continue to have such easement in its entire width. Section 3729, General Code; McQuigg v. Cullins, 56 O. S., 649; Kinnear Mfg. Co. v. Beatty, 65 O. S., 264; Traction Co. v. Parish, 67 O. S., 190; Stevens v. Shannon, 6 C. C., 142; Price v. Toledo, 4 C.C.(N.S.), 57; Schlemmer v. Furniture Co., 7 C.C.(N.S.), 468.

Plaintiff would not, however, acquire any interest in the fee. It would remain in the original owner and his grantees. When the public right is relinquished, the private rights which have been suspended or subservient to those of the public would revive, and the land would be the property of the owner, disencumbered of the public use. Angell on Highways (3d Ed.), 326. As stated in R. R. Co. v. Williams, 35 O. S., at pp. 171-72:

“As between tbe public and the owner of land upon which a common highway is established * * * the fee of the land remains in the owner; he is taxed upon it; and when the use or easement in the public ceases, it reverts to him free from incumbrance. ’ ’

Usually when a road or street is dedicated it is taken equally from adjoining proprietors'on each side of its center line, and in a plat of a subdivision the owner so plats his streets as to lay out lots on both sides. In such cases on vacation of the road or street it is said to “revert” not to the original owner of the land so dedicated, but to the owners of the abutting lots and land at the time of such vacation. Kinnear Mfg. Co. v. Beatty, 65 O. S., 264; Stevens v. Shannon, 6 C. C., 142 (affirmed, 51 O. S., 593) ; Price v. Toledo, 4 C.C.(N.S.), 57. It has been said to “adhere to the abutting lots by accretion” going there by necessity to preserve to the owners their easement of ingress and egress. Traction Co. v. Parish, 67 O. S., 190.

The rule that proprietors presumptively own the fee of the soil under that half of the road which is contiguous to their lands is founded on the presumption that the land covered by the highway was originally granted by the adjoining owners in equal proportions. When it appears that it was all granted by a single proprietor, the presumption is rebutted. Iiis laying a servitude can not transfer a title to the fee. Seery v. Waterbury, 82 Conn., 567, 570. To the same effect are Watrons v. Southworth, 5 Conn., 305; In re Robbins, 34 Minn., 99; Jose v. Hunter, 101 N. E. (Ind.), 665, 669; McCombs v. Stewart, 40 O. S., 669.

The important question to be determined in this case is whether Hazard road, or lane, ever became a dedicated or public highway. Unless such fact can be established, plaintiff has shown no rights in the land in dispute..

A public road or street is established in one- of three ways: 1. By statutory dedication. 2. By dedication under the common law. 3. By prescription.

To' show a statutory dedication it is necessary to prove that the land was conveyed to the public for road or street purposes by deed or plat duly recorded and accepted by the proper authorities, or that proper proceedings were taken by the township trustees of the proper township, the county commissioners or the council of the city, to appropriate the land for road or street purposes. A failure to comply with the steps made necessary by the statute in any essential particular would show that there was no statutory dedication. Lockland v. Smith, 26 O. S., 94, 99; Drucker v. Home City, 12 C.C.(N.S.), 309 (affirmed, 81 O. S., 507).

Outside of the proof offered as to proceedings had by the trustees of Delhi township looking to the establishment of a township road, no evidence whatever has been offered to establish any statutory dedication in this case. As this land was located in Storrs township and was never located in Delhi township, action taken by the trustees of Delhi township was entirely without authority or effect, as they had no ex-territorial jurisdiction. Such proceedings must be had before the “trustees of the proper township,” i. e., the township in which the land is situated. (G-. 0., 6958.)

To show a common law dedication it must appear not only that the owner intended to give and did give the property to the public, but also that the gift was accepted by the authorities whose duty it would be to care for the road or street if it should be established. Railroad v. Roseville, 76 O. S., 108, 115, 117.

While it must be admitted that the proceedings had before the Delhi township trustees were of no effect to constitute a statutory dedication, it is contended that they were effective as a common law dedication. It is true that the report of the viewers describes the road recommended by them to be laid out from the small Hazard farm two rods (33 feet) in width on the west side of the line between the lands of William Terry and Robert Gowdy until it intersects the county road and assess the damages in favor of Robert Gowdy at $35, and after this report, in the record is the following statement:

“I agree to receive the above damages and open the road when the money is paid.
“Robert Gowdy.”

This statement can not be extended beyond its terms to evidence an intention on Gowdy ’g part to give the property. It merely indicates a willingness on his part to comply with what he evidently considered to be the result of an adversary proceeding had before public authorities. There is, however, an entire absence of proof that these damages were ever paid. Nor does the record of proceedings show that the report of the viewers was ever acted on or approved by the trustees, or that they ever ordered the damages to be paid or the road to be established and opened, or in fact that they took any further action in the matter. The proceedings were faulty and irregular in other respects. There is nothing in the record to show posting of notices or that a bond for costs, etc., was given. No plat is shown accompanying the surveyor’s report, which differs in some respects in the description of the road from that contained in the report0 of the viewers. These irregularities and failures to comply with the law for laying out a township road, then in force, Section 14 of the act of February 26, 1824, 2 Chase’s Statutes, 1393, 1396, now found in General Code, Sections 6958 to 6966, would invalidate the proceedings, even if they had been had by the trustees of Storrs township (Ferris v. Bramble, 5 O. S., 109; Fravert v. Finfrock, 43 O. S., 335).

They must be held ineffective to secure a common law dedication.

Giving the utmost force to the statement of Robert Gowdy, found in the record of the township trustees, as an offer on his part to dedicate, such offer was withdrawn or- revoked by his deed of general warranty, dated November 21, 1829, conveying all of his property, including but not mentioning this road, to his son, Robert Gowdy, Jr. Lockland v. Smith, 26 O. S., 94, 100; Drucker v. Home City, 12 C.C.(N.S.), 309.

• Other than this statement of Robert Gowdy in the Delhi township record there is no evidence of any intention on his part or that of any subsequent owner to give this road to public use, nor of any actual giving of it, nor of any acceptance of it by any public officers having authority over roads or streets.

Deeds have been introduced in evidence showing a complete chain of defendant’s title. None of these deeds show any reference to this road except the quit-claim deed from Ann E. Moore to A. Hickenlooper, dated July 18, 1896. In this deed the grantor quit-claimed her interests to her co-tenant in a tract of land which is described by metes and bounds, and fixed the west line of Hazard road as the east line of the tract quit-claimed. The description used does not define the Hazard road either as a public or a private highway or in any way fix or determine its status. The deed from William White and wife, the previous owner, to Ann E. Moore and A. Hickenlooper jointly, made no mention of the road, but described the tract so as to include the land covered by it.

A deed from Mary A. Plazard to Edward M. Pattison, dated December 31, 1889, conveying part of the Hazard farm including a way out to Rapid Run road, refers to the roadway in question as a “right-of-way belonging to grantor.”

In an agreement between Robert Gowdy, Jr., and one John Jett, dated January 6, 1832, in describing a private roadway across Gowdy’s land, mention is made, of a “road granted by Robert Gowdy, Sr., to Thomas Hazard,” thus indicating a private grant to Hazard. Defendant produced evidence that the public records contained no record of any plat or instrument making such a conveyance or making any dedication of said road.

It was shown that at one time, previous to the vacation pro- • ceedings of the city council of Cincinnati, Hazard lane appeared on the tax plat in the office of the county auditor as a public way. These plats are prepared for taxing purposes, and while they are usually instructive they form no part of the public records showing title to land, such records being in the recorder’s office.

Plaintiff also showed that Lincoln avenue was at one time included in a street directory which had been prepared and used by the police department of the city, and urge that as showing a recognition and acceptance of it by the city as a public street. The police department has no authority in regard to the laying out or acceptance of streets. That power is expressly vested in the council or public service department. Its place in the police manual was merely for information of officers as to localities. Nor can the fact that a street sign was placed on Lincoln avenue at the Rapid Run road be deemed of much importance in determining its character as a public highway. Such signs are for the convenience of the public in fixing localities. No showing was made by whose orders or on what authority a sign was placed on this roadway. There is no evidence that any improvement or repairs were ever made upon this roadway at the expense of the public, but on the contrary there is evidence that any repairs made were by the owner of the land, or the owners or tenants of the Hazard farm.

Plaintiff has failed to establish a dedication by common law .

Roads and streets may be established by prescription where, under claim of right, use is shown by the public, adverse to the right of the owner, continued without substantial interruption or change for a period equal to the statutory limitation of actions for the recovery of real estate. Railroad v. Roseville, 76 O. S., 108, 117.

“In order, however, that the enjoyment of an easement in another’s land may be conclusive of the right, it must have been adverse, that is, under a claim of title, with the knowledge and acquiescence of the owner of the land, and uninterrupted; and the burden of proving this is on the party claiming the easement. If he leaves it doubtful, whether the enjoyment was adverse, known to the owner, and uninterrupted, it is not conclusive in his favor. 2 G-reenleaf on Evidence, Sections 38 and 539.”
“Under a different rule, license would grow into grants of the fee, and permissive occupations of land become conveyances of it. ‘It would shock that sense of right,’ Chief Justice Marshall said in Kirk v. Smith, 9 Wheat., 286, ‘which must be felt equally by legislators and judges, if a possession which was permissive and entirely consistent with the title of another should silently bar that title.’ ” District of Columbia v. Robinson, 180 U. S., 100.

A careful consideration of the evidence, leads us to the opinion that this roadway was originally a private way or easement, possibly as a way of necessity,, to furnish access to the Hazard farm. It was for many years kept fenced, with, a gate at the Hazard north line, and another at or near Rapid Run road. Its use was evidently by permission of the owners of the land, from Robert Gowdy down and until the opening and extension of West Eighth street through the cemetery in 1895, and the Hazard property in 1899, the only travel upon it was by those going to and from the Hazard farm and, the Gowdy or Hickenlooper farm, as there were then no cross streets or other outlet. People walked in the grassy lane in summer and brought their children, ate lunches in the shade, picked flowers, and had “sort of picnics” there; some passed through to the cemetery as a short cut; and it appears that plaintiff and the owner of the property south of him, lying east of the roadway, on occasions entered their property from this land. But each had independent entrances from the highway and did not use the lane with any frequency or continuity. Such occasional use without any adverse claims, with the evident permission of the owners, did not ripen into any prescriptive rights or vest any title in the public for the purposes of a public way.

Nor does the fact that the Hickenloopers petitioned council for the vacation of Hazard road create any estoppel against defendant and prevent her from denying that Hazard road was then a public highway. Such vacation was properly sought for the purpose of removing what some purchasers might regard as a cloud on their title, they being then about to plat a subdivision of the property for sale in lots. This has been distinctly decided in Stevens v. Shannon, 6 C. C., at 146.

From all the evidence it must be concluded that Hazard lane, or road, never was a public way. Plaintiff therefore has no right or interest in any part of the land occupied by it. The title of plaintiff is in no way dependent on the vacation proceedings of the city. As stated above, such vacation confers no title but simply disclaims any further interest on the part of the city. General Code, 3729.

The petition of plaintiff will be dismissed and defendant will be granted a decree quieting her title as prayed in her cross-petition.

Jones (E. H.), P. J., and Gorman, J., concur.


source: Caselaw Access Project

author: Gorman, J.

license: Public Domain

text:
    EQUITABLE DIVISION OF PROPERTY BETWEEN HUSBAND AND WIFE.
    Court of Appeals for Hamilton County.
    Annie Fronriter v. John C. Fronriter.

    Decided, March 6, 1916.

      Husband and Wife — Where it is Apparent Their Property Was Acquired by Joint Effort — And Separation Occurs it Will be Equitably Divided — Alimony.
    Where separation is being sought after forty years of married life, and it appears that the wife has beeil a faithful and exemplary helpmate, and has reared seven children who are a credit to her, and whereby the industry and frugality of herself and the children as well as the husband, property has been accumulated which is worth twenty thousand dollars, a reviewing court will order that the property be equitably divided between the husband and wife.

      Galvin & Bauer, for plaintiff in error.

      Charles W. Baker, contra.

      Motion to require the Court of Appeals to certify its record in this case, overruled by the Supreme ’ Court November 21, 1916.

   Gorman, J.

On April 9th, 1913, Annie Fronriter, the plaintiff in error here, filed a petition in the Insolvency Court of Hamilton County, praying for alimony against John C. Fronriter, the defendant in error. The case was heard, the defendant being in default for answer, and the court awarded to plaintiff an allowance of $60 per. month as alimony, and made the same a lien upon defendant’s real estate. The court further enjoined the defendant, during the life of the plaintiff, from disposing of or encumbering said real estate or any part of it.

Thereafter, on March 18th, 1914, the defendant, John C. Fronriter, filed a petition in the Insolvency Court of Hamilton County praying for a divorce from the plaintiff. Issue was made upon this petition by answer, and by way of cross-petition the defendant, Annie Fronriter, asked for an increase in the allowance of alimony theretofore made by the court in the former case. Upon the hearing, the court of insolvency refused the plaintiff a divorce, and continued the matter of the cross-petition for an increased allowance to the defendant. Instead of increasing the defendant’s allowance, the court after holding the case for a short time reduced the allowance to $50- per month.

The wife now prosecutes error to reverse that judgment.

The record discloses that at the time the parties were married, thirty-nine or forty years ago, neither of them possessed any property real or personal; that during the years of their married life the wife was a most faithful and exemplary helpmate. She is the mother of seven children, all of whom are a credit to her and to her husband. She did all her own housework, washing, ironing, mending, taking care of the children and making their clothing. When the children were able to earn money they went out into the world and brought home their earnings and paid to the mother and father more than sufficient for their maintenance, practically supporting the household and enabling the husband to save very much more than he would have otherwise been enabled to do. At the time of the hearing it appears that there are two pieces of property in the name of the husband, valued at about $19,000 or $20,000, located in Avondale. This property is the result of the joint savings of the husband and wife with the assistance which they received from their children.

We can not conceive of a wife who has been more faithful, earnest and zealous for the up-bringing of the family, their education, maintenance and support, and in the desire to accumulate something for her husband and herself and their family. We are of the opinion that the amount allowed by the trial court in the way of alimony for this woman is entirely inadequate. The record discloses that the income from the property is $175 or $180 per month; and in view of the fact that this property represents the joint savings and earnings of the husband and wife'and the family it should be equitably divided between the husband and wife.

The question of an equitable division of this property was not argued to us as fully as it should have been when the ease was submitted. We have therefore concluded that we will give counsel ah opportunity to present further argument as to what would be an equitable division of this property between the parties to this proceeding if so desired, otherwise the court will make such a division as would be just and equitable, taking into consideration the facts and circumstances of the ease.

The power to make this division and modify the judgment of the court below will be found in Section 11998 of the General Code; and under Section 11364 of the General Code this court is authorized to modify the judgment of the trial court in order to do more complete justice to the party complaining.

We have come to this conclusion because it appears to us that there is no immediate prospect of a reconciliation between the parties, and a division of this property would conduce to the happiness and contentment of both. If counsel do not, within ten days, desire to present further arguments upon the equitable division of the property, the court will proceed to make such a modification of the judgment as will do more complete justice to the party complaining.

Jones (E. H.), P. J., and Jones (Oliver B.), j., concur.


author: Jones (E. EL), P. J.

text:
    CONTRACT OF EXEMPTION FROM LIABILITY.
    Court of Appeals for Hamilton County.
    The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Mary Kinney.

    Decided, December 6, 1915.

      Employee of the Pullman Gar Company — Injured by Being Thrown from a Car — Benefit of a Contract of Exemption from Liability . for Inju/ries Held by the Pullman Company — -Can Not be Claimed by the Railway Company.

    A contract between the Pullman Company and an employee, relieving the company from liability in the event of injury to the employee during the course of such employment, can not be pleaded by a railway company in an action for injuries received by such employee while said railway company was handling one of the Pullman cars.

      Mortimer Matthews and Mitchell Wilby, for plaintiff in error.

      John W. Sadlier and Thos. L. Michie. contra.

      Affirmed by the Supreme Court, 95 Ohio State, p. —.

   Jones (E. EL), P. J.

The contract entered into by Mary Kinney and the Pullman Company whereby she assumed all risks is against public policy.

Section 9013, General Code, provides:

"No railroad company, insurance society or association, or other person shall demand, accept or enter into an agreement or stipulation with a person about to enter, or in the employ of a railroad company whereby he stipulates or agrees to surrender or waive any right to damages against a railroad company, thereafter arising for personal injury or death, or whereby he agrees to surrender or waive in case he asserts such right, any other right. ’ ’

And in Railroad Company v. Spangler, 44 O. S., 471, it was decided:

"The liability of railroad ¡companies for injuries caused to their servants by the carelessness of other employees who are placed ip. authority and control over them, is founded upon considerations of public policy, and it is not competent for a railroad company to stipulate with, its employees at the time, and as a part of their' contract of employment, that such liability shall not attach to it.”

True, Mary Kinney did not make her contract with a railroad company, but in this case the railroad company, by answer, seeks to avoid the consequences of its negligence by intrenching itself behind this contract. The General Assembly and tbé Supreme Court of our state have declared that to permit such immunity to a railroad company is against public policy, supra; and we can not see any distinction between permitting the protection by virtue of a contract to which ,the railroad company is directly a party, and permitting same under favor of a contract assigned to it by the Pullman Company.

The nature of the business conducted by the latter company, and its relation to the railroad are se't forth in the defense demurred to. The Pullman ears, whether on a “run” or in the yards, are drawn by the same locomotives, over the same tracks and in the same manner as other railroad coaches are drawn. The movements of both are governed and directed by the same crew, and their occupants, attendants and employees exposed to the same risks and hazards.

Hence, if the contract set out in the fourth defense of the answer, when made by a railroad company is against public policy and void, for like reason it must be contrary to public policy to permit the Pullman Company to make or rely upon said contract.

The contract being void, the assignee acquired nothing by the assignment, and the demurrer was properly sustained.

Judgment affirmed.

Jones (Oliver B.), J., and Gorman, J., concur.


author: Jones (Oliver B.), J.

text:
    ADMISSIBILITY IN A WILL CASE OF PHOTOGRAPH OF TESTATOR..-
    Court of Appeals for Hamilton County.
    Alexander M. Ware v. Anna J. Slocum, Florence E. Cragg, Blanche L. Vorhis and Stephen E. Slocum, as Executor of Charles Henry Ware, Deceased.

    Decided, May 22, 1916.

      Evidence — Action to Contest Will — Photograph of Testator Admissible, When — Exclusion of Testimony Under an Objection Going to Its Weight Only Not Prejudicial, When — Irregularity in Bill of Exceptions.

    1. A photograph of the testator is competent in a will case, where evidence has been introduced as to his slovenly appearance which is denied by the defense, and the authenticity of the photograph has been established and also the fact that it resembled the testator as he appeared at about the time of the execution of the will.
    2. The ruling out of' testimony, under an objection which went to its weight rather than its competency, can not be regarded as prejudicial error.

      J )hn Cr. Hudson and B. H. Stites, for plaintiff in error.

      Bettinger, Schmidt. & Kreis, contra.

      Motion to require the Court of Appeals to certify its record in this ease overruled by the Supreme Court, October 10, 1916.

   Jones (Oliver B.), J.

Plaintiff in error seeks to set aside the judgment of the court below sustaining the will of Charles Henry Ware. But two errors are relied upon:

First, that the court erred in admitting a photograph of testator, taken five years before the execution of the will, by his son-in-law, an amateur photographer. To sustain him in his claim as to this error plaintiff in error relies upon the case of Varner v. Varner, 16 C. C., 386. In that case it was held, properly as we think, that on the trial of an issue of testamentary capacity a photograph of the testator is not competent evidence as tending to prove or disprove testamentary capacity. But the case does not go to the extent of excluding photographs altogether in the trial of a will case.

In will cases, as in other cases, issues may be raised in which photographic evidence is competent. There is no question that photographs of places, persons, machinery and other objects, and maps and drawings, can be received as proper evidence when the circumstances of the case are such as to make them competent. In the Varner case the photograph itself was relied upon, without proper proof of its correctness or authenticity, or as to the ability of the traveling photographer who was said to have taken it. The court says, in its opinion:

“There is no evidence from any source as to the accuracy of the picture, or to what degree it resembled the old gentleman either at the time it was taken or at the date of the will.”

And that court further said:

“Their introduction must be preceded by some proof of the correctness of the map Or the photograph, for there is no legal presumption that they are correct.”

In the instant case, however, there was testimony as to the appearance and slovenly condition of the testator, which the photograph was well calculated to rebut, as well as testimony of his neat dress and good appearance which it would corroborate; and tliere was proper testimony showing that the protograph was a good likeness of the testator and resembled him at about the time of the execution of the will. Among others, his sister, who was one of the principal witnesses for plaintiff, testified to this effect. 'We do not find any error in the admission in evidence of this photograph by the court below.

The other claim was that the court erred in ruling out the testimony of Dr. J. C. Krieger. Dr. Krieger testified that he had practiced medicine since 1888, and had examined lunacy cases in the probate court three times a week for several years; that he made an examination of Dr. Ware in May, 1913, almost two years after the execution of the will, and certified to the probate court that he found him to be an imbecile and unable to attend to any business that might be entrusted to him. He explained, however, in his testimony that he used the term ‘ ‘ imbecile” as indicating that he ought to have a guardian to take care of his property; that he understood that the law in order to justify the appointment of a guardian for a person required that he should be found to be an imbecile, and he so reported it when his condition was such as to render him incapable of attending to his business, using the term “imbecile” in the sense of “incapability.” In answer to the hypothetical question framed by plaintiff, Dr. Krieger testified that he would regard the person referred to in such question as of unsound mind; and on cross-examination he testified: “I- am not a mental expert. I didn’t examine him as such.” He further testified as to how he found the testator when he made this examination which ‘resulted in the certificate that he was an imbecile, and his testimony is contrary to some of the features of the hypothetical question asked by plaintiff. On motion of defendants’ counsel, the answer to plaintiff’s hypothetical question was ruled out, to which plaintiff excepted, and this ruling is urged and relied upon by plaintiff in error as the second reason for reversal.

The court below erred in ruling out this testimony of Dr. Krieger. Any objection to it was in regard to its weight rather than to its competency; but considering the entire testimony given by Dr. Krieger, this error of the court can not be considered as .prejudicial to the plaintiff in error.

The question might be raised as to whether the bill of exceptions which we have treated as being part of the record should be so considered. The original bill of exceptions as prepared by plaintiff contained but four pages and set out but two items of evidence. It was filed as a bill of exceptions, but was never allowed and signed by the trial judge. The defendants, however, prepared certain exceptions and corrections to the bill of exceptions containing some thirty-three pages, and containing in narrative form what purported to be all of the evidence in the case. This so-called bill of exceptions and corrections to the bill of exceptions was allowed and made part of the bill of exceptions by the signature of the trial judge, October 9, 1915. The two are attached together, and we have treated them as together constituting the entire bill of exceptions. But if objection had been urged to the form in which they are drawn and certified, it is doubtful whether they could be sustained as a proper bill of exceptions. This fact is mentioned as an additional reason for the affirmance of the judgment below.

Treating this, however, as a proper bill of exceptions, the court finding upon a review of the whole record that there is no error to the substantial prejudice of plaintiff in error, the judgment will be affirmed.

Jones (E. TL), P. J., and G-orman, J., concur.


text:
    COMPENSATION TO ENGINEERS OF RAPID TRANSIT COMMISSIONS.
    Court of Appeals for Hamilton County.
    John C. Rogers, a Tax-payer, v. City of Cincinnati et al.
    Decided, December 21, 1916.

      Municipal Gorporations — Provisions of the Statutes With Reference to Engineers of Rapid Transit Commissions — Where the Work is Performed by the City Engineer it Must be Without Additional Compensation.

    It is witbin the option of a municipal rapid transit commission created under authority of Sections 4000-16, et seq. (105-6 O. L., p. 286), to place an outside engineer in charge of the work and fix his compensation, or the work may be placed in charge of the city engineer; but where this is done the commission is without authority to allow him additional compensation on account of the services so required of him.

      Powel Crosley and John G. Rogers, for plaintiff in error.

      Chas. A. Groom, City Solicitor, and Saul Zielonka, Assistant City Solicitor, contra.
   Gorman, J.

The plaintiff, as a tax-payer of the city of Cincinnati, requested the solicitor of said city to bring an action against the defendants to enjoin the payment .to Frank S. Krug' of the sum of $9,000 per annum as engineer for the rapid transit commission. The solicitor refused to bring the action, and thereupon plaintiff in error brought suit against all the parties defendant in error.

The petition sets out that Frank S. Krug was on July 1, 1916, chief engineer of the sub-department of engineering of the department of public service of the city of Cincinnati upon a fixed salary of $6,000 per annum; that prior to the 1st day of July, 1916, said Krug had been, appointed to his position as chief engineer by the mayor in the classified service of the city of Cineinnati in accordance with the civil service law of the state. It was further averred that the board of rapid transit commissioners on November 29, 1915, had appointed' or designated said Krug as its engineer, and that he had 'acted as its engineer until July 1, 1916, without compensation other than the salary provided for him as chief engineer of the city; that on July 1, 1916, the said commission appointed or designated said Krug as its chief engineer at a salary of $9,000 in addition to the $6,000 he was then receiving as engineer of the city of Cincinnati in the department of public service, making a total of $15,000 to be paid to him for his services.

The answer of the defendants sets up the appointment of the rapid .transit commission under .the law and the ordinance .and the issuance of bonds aggregating $100,000, the proceeds of which were placed at the disposal of the rapid transit commission; and, further, that the people at a special election voted in favor of the bond issuance of $6,000,000 for the construction of the rapid transit railway system and the loop as .designated by the rapid transit commission, and for purchasing and condemning the necessary land therefor, and set up all the laws and ordinances affecting the rapid transit commission. The answer further admitted the request made of the city solicitor by the plaintiff Rogers to bring suit and the refusal of the solicitor to commence the, action, and admitted practically all the averments of the petition.

The plaintiff filed a demurrer to this answer, on the ground that it presents no defense to the plaintiff’s petition.

This demurrer was overruled by the court below and the plaintiff not desiring to plead further, judgment was entered dismissing the petition at the costs of the plaintiff. To that judgment plaintiff in error prosecutes this proceeding'in error to reverse the judgment of the court o'f common pleas.

Two questions are presented by the record: first, can the rapid transit commission employ engineers, clerks and employees and fix their compensation; and, secondly, can Frank S. Krug, while he is the engineer in the department of public service of the' city of Cincinnati under fixed compensation-of $6,000 per yeár, have his compensation increased by the board of rapid transit commissioners by the sum of $9,000 per year?

The decision in this case must rest upon the construction to be given to the third section of the act providing for the creation of a rapid transit commission, found in 105-106 O. L., 286. That section reads in substance as follows:

“The board of rapid transit commissioners may employ clerks, engineers, superintendents and such other employees as may be necessary, provided, however, that the chief engineer of the suh-department of engineering of the department of public service may be the engineer of said board and that the said sub-department of engineering shall perform such engineering services as may be determined by said board. The superintendents, clerks, engineers, real estate experts, and attorneys of the board shall be in the unclassified service, and all other employees shall be in the classified civil service of the municipality.’’

It is claimed by counsel for plaintiff in error that under this section of the law the rapid transit commissioners have no right to employ the engineer of the sub-department of public service of the city of Cincinnati and to pay him an additional salary. He does not question the right or power of the rapid transit commissioners to appoint or designate this engineer, Mr. Krug, to be the engineer or chief engineer of the rapid transit commission, but he denies the power and authority of the commission to pay him any compensation in addition to that which he is to receive as the engineer of the sub-department of public service of the city of Cincinnati — $6,000.

This court is of the opinion that the contention of the plaintiff in error is sound, and that Mr. Krug can not be compensated by the board of rapid transit commissioners in the sum of $9,000, or any other sum, in addition to the compensation which is paid to him for services rendered by him as engineer of the sub-department of public service of the city of Cincinnati. The plain meaning of this language set out in Section 3 is that the board of rapid transit commissioners are given the option or privilege, or right of employing an engineer who is not in the employ of the city,- or of accepting the services of the city’s engineer. When the services of the city engineer are accepted by this board of rapid transit commissioners by designating or appointing him as their chief engineer, then manifestly the plain intent and meaning of the statute is that .he is to perform his duties additional to those which he had theretofore been performing as engineer in the sub-department of public service in the city of Cincinnati.

The language of the act is that the board “may employ clerks, engineers,” etc., “provided, however, that the chief engineer of the sub-department of engineering of the department of public service may be the engineer of said board.”

This means that the board, if it does not see fit to employ an independent engineer, may call upon and designate the city engineer to be its chief engineer, or its engineer. The act does not provide that the engineer of the sub-department of engineerr ing of the department of public service may be employed by the rapid transit commission, but that he may be the engineer of said board, which clearly indicates the purpose of the Legislature not to permit him to be employed with additional compensation or in an independent capacity, but that the rapid transit commission, finding the engineer of the city at hand, can avail itself of his services.

Manifestly the Legislature in so providing had in mind that the engineer of the city of Cincinnati, because of his position, would be more familiar with the topography of the city and the country through which this system is to be constructed, familiar with the streets and the location of the water-mains, gas-mains, sewers, conduits and other underground utilities of the city; that he had at hand the facilities, the assistants and the means of doing the work perhaps better than any independent engineer; and, furthermore, that because of his position and relation to the city of Cincinnati he could avoid any friction between an outside engineer who might be employed by the rapid transit commission, and the engineer of the city under the department of public service.

Furthermore, the Legislature no doubt had in mind in this provision that it would conduce to economy for the rapid transit commission to call upon the engineer of the city of Cincinnati to perform these services as its engineer and thereby save the compensation of an additional engineer.

- It appears to us that by no stretch of language can this section be construed to mean that the rapid transit commissioners were to employ and allow additional compensation to an officer of the city of Cincinnati who was then under salary under the civil service law, apparently amply paid for the services he was rendering, in the absence of any express language in the statute or some other law which would enable them to pay him an additional salary or compensation.

It is elementary law that municipal corporations have such, powers and only such as are expressly granted by the Legislature, or which are necessarily implied in order to carry into effect the express grants of power. It is the settled law of this state that a public officer elected or appointed can not receive any additional compensation by reason of the fact that additional duties are imposed on him or assuméd by him, unless the Legislature has expressly provided that such additional compensation may be paid. Anderson v. Commissioners, 25 O. S., 13; Jones, Auditor, v. Commissioners, 57 O. S., 189; Schwartz v. Commissioners, 54 O. S., 669; Debolt v. Trustees, 7 O. S., 237;

There is no provision in this act, nor in any other statute brought to our attention, whereby additional compensation may be paid to the engineer of the city of Cincinnati, if he be designated or appointed by the board of rapid transit commissioners as its chief engineer.

In view of the fact that this third section of the act under consideration provides that- the sub-department -of engineering of the city shall perform such engineering services as may be determined by the board of rapid transit commissioners, it would be just as reasonable to claim that this board would have the power and authority to give additional compensation to all the employees of the sub-department of engineering of the city of Cincinnati, as to give additional compensation to the chief engineer, Mr. Krug. Manifestly the Legislature never intended nor contemplated, when this law was passed — and the language will not bear such construction — that all the employees of the engineering department of the city, including the chief engineer, should have additional compensation for services which they might render to the rapid transit commission in addition to the duties they are called upon to perform under their appointment or employment. If the contention of the city solicitor were sustained by this court, it would in effect mean that the rapid transit commission might also give additional compensation to the city solicitor for services which he renders in advising the board and acting as its counsel. The board of rapid transit commission itself placed no such construction upon this third section of the law as is now claimed for it when it appointed Mr. Krug, the first time, as its engi-. neer, in November, 1915. It appointed or designated him as its engineer without compensation, and it was only in July, 1916, more than six months after he had been acting as the engineer of this board that it undertook to fix additional compensation for him.

It is further urged on behalf of the plaintiff in error that even if compensation can be given to the employees. of the. rapid transit commission, provision therefor would have to be made by the council of the city of Cincinnati, inasmuch as under Section 4214, General Code, it is provided that council shall by ordinance or resolution

‘ ‘ determine the number of officers, clerks and employees in each department of the city government and shall fix by ordinance, or resolution their respective salaries and compensation and the amount of bond to be given for each officer, clerk or employee in each department of the government if any be required. Such bond shall be made by such officer, clerk or employee, with surety subject to the approval of the mayor.”

As to this contention the court is of the opinion that the act providing for the rapid transit commission gives it the authority to employ the necessary clerks, engineers, employees,t etc., that it is an exception to Section 4214, General Code, this act (105-106 O. L., 286) having been passed subsequently to the enactment of Section 4214 and being in apparent conflict with it. We would hesitate to construe this law so as t'o hold that the council of the city of Cincinnati could hamper the action of the commission by neglecting or refusing to provide for the compensation of the clerks, employees, etc., who might be employed by this commission, or by providing them with insufficient compensation. We think that the fair construction of the act requires us to hold that the board of rapid transit commissioners has the power and authority to employ the necessary clerks, engineers and employees, and as an incident to their employment to fix their compensation,, without being required to call upon the council of the city of Cincinnati to fix such compensation. In this particular instance it seems to us that Mr. Krug can not be an independent employee of the rapid transit commission, as is claimed by the city solicitor, and at the. same time act as the engineer in the sub-department of public service of the city of Cincinnati. The very objection which the city solicitor urges could be made, if Mr. Krug occupy the dual position of being under the direction and control of the director of public service in the engineering department of the city of Cincinnati at a salary of $6,000 a year, and at the same time under the independent control of the rapid transit commission at a salary of $9,000. He would be, in effect, serving two masters, and perhaps under conflicting orders given by the director of public service and the board of rapid transit commissioners.

We hold that the rational construction to be placed upon the language of Section 3 of the act under construction is, that the board of rapid transit commissioners, at their option, may employ an engineer who' is not holding a position in the public service Of the city of Cincinnati, and fix his compensation; or it may designate the engineer of the city of Cincinnati as its engineer, but in so doing can not allow him any additional compensation.

We do not deem it necessary to cite numerous authorities in support of the conclusions we have reached, but content ourselves with holding that the demurrer filed by the plaintiff in error, to the answer of the defendants, should have been sustained and not overruled; and for this reason the judgment of the court below is reversed, and the cause remanded for further proceedings. ,

Jones, (E. H.), P. J., and Jones (Oliver B.), J., concur.


author: Chittenden, J. Kjnkade, J.

text:
    DECREE OF DIVORCE GRANTED IN ANOTHER. STATE RES ADJUDICATA IN OHIO.
    Court of Appeals for Ottawa County.
    Wilfred H. Cunningham v. Anna B. Cunningham.
    Decided, October 13, 1916.

      Divorce — Decree Granted in a Competent Court of Another State— Precludes an Action by the Defeated Party in Ohio — Jurisdiction-Corroboration — Decree Not Conditional Where Within the Statute.

    Whore a court of >a sister state, having jurisdiction of the subject-matter of the action and of the parties by actual service, grants a divorce to one of the parties thereto, the courts of this state are without power thereafter to grant a divorce to one of the parties to the former action.

      King & Ramsey, for plaintiff in error.

      Graves, Stahl & Duff, contra.
   Chittenden, J.

Error to the court of common pleas.

The plaintiff, Anna B. Cunningham, brought an action in the common pleas court of this county against the defendant, Wilfred H. Cunningham, in which she prayed for a divorce from the defendant upon the ground of extreme cruelty. The defendant filed an answer in which he admitted the marriage of the plaintiff and the defendant at the time set forth in the petition, and that one child had been born of the marriage, and denied each- and every other allegation in the plaintiff’s petition com tained. For a further defense the defendant alleged that in an action brought in the Court of Common Pleas of Montgomery County, in the commonwealth of Pennsylvania, by the defendant against the plaintiff, the plaintiff therein, Wilfred H. Cunningham, prayed for a divorce from the said Anna B. Cunningham, and that on the 6th day of November, 1915, the Court of Common Pleas of Montgomery County, Pennsylvania, rendered its judgment and decree granting to the plaintiff therein, Wilfred H. Cunningham, a divorce for the aggressions of the respondent therein, Anna B. Cunningham. It was further pleaded that such court of common pleas was a court of general jurisdiction and that the judgment of.-divorce granted therein was in full effect. No reply was filed to this answer.

Upon the trial of the ease in the common pleas court of this county the plaintiff was called as a witness and testified in her own behalf, and at the conclusion of her evidence the plaintiff rested. Thereupon the defendant made a motion to dismiss the petition on the ground that the plaintiff had furnished no corroboration of her testimony, such motion being based upon the statutory provision that a divorce shall not be granted upon the uncorroborated testimony of a party to the action. The motion being overruled, the defendant introduced in evidence a complete transcript of the record and papers in the proceedings had in the Court of Common Pleas of Montgomery County, Pennsylvania, in the case referred to in his answer. This transcript of the record of that ease was duly authenticated according to law. It was also conceded that there is a statute in the state of Pennsylvania which provides that where a divorce is granted upon the ground of adultery the party so being found guilty of adultery shall not, during the lifetime of the divorced husband or wife, marry the person with whom the adultery was eom.mitted. The defendant then renewed his motion to dismiss the petition on several grounds, the principal ones among them being that the evidence showed that the plaintiff had not been a resident of the state of Ohio for a year immediately preceding the commencement of the action, and that her testimony had not been corroborated. Thereupon the court overruled the motion of the defendant and proceeded to grant to the plaintiff a deeree of divorce upon the ground of extreme cruelty as charged in her petition. Motion for new trial was filed and overruled by the court, to which action of the court the defendant excepted. The proceeding in this court is for the purpose of reversing the judgment of the common pleas court.

The first question presenting itself is as to whether or not this court has jurisdiction to review the judgment of the common pleas.court on error. It is claimed that, the decision in Parish v. Parish, 9 O. S., 534, is authority against the jurisdiction of this court to make such a review of this ease. The case of Parish v. Parish determined that a decree of divorce, although obtained by fraud and false testimony, could not be set aside on an original bill filed at a subsequent term. This decision was based upon the proposition that sound public policy requires.that a judgment or decree which affects directly the status of married persons by sundering the matrimonial tie and thereby enabling them to contract new matrimonial relations with other and innocent persons should never be reopened. It was said in. the course of the opinion that “such a course would endanger the peace and good order of society, and the happiness and well-being of those who, innocently relying upon the stability of a decree of a court of competent jurisdiction, have formed a connection with the person who wrongfully, perhaps, secured its. promulgation. ’ ’ At the time of this decision there was a statute which provides that, “No appeal shall be obtained from the decree but the same shall be final and conclusive.” This statutory provision was said by the court to be nothing more than a recognition of the principle of public policy just. mentioned. That provision of the statutes no longer remains a part of the statutory law of this state, but since its elimination the Supreme Court, in the case of Mulligan v. Mulligan, 82 O. S., 426, affirmed the doctrines announced in the case of Parish v. Parish, the Supreme Court reversing the decision of the circuit court of the third district reported in 11 C.C.(N.S.),.585.

It is clear that the Supreme Court has steadily adhered to the general principle announced in Parish v. Parish. An examination of the record in the case at bar discloses facts which present an entirely different problem for solution. In the Parish ease the action was directed to the annulling of a decree that had theretofore been granted divorcing the parties to the action. In the case at bar the evidence shows that by the action of the Common Pleas Court of Montgomery County, Pennsyl-, vania, a court of general jurisdiction which had jurisdiction of the subject-matter and of the parties, a decree had been rendered in favor of the plaintiff in that case and against the defendant. The defendant in that ease, plaintiff herein, had filed an answer in which she denied the charges of adultery made against her by the complainant in that action. The exemplified record of the proceedings in that case shows that upon the evidence adduced at the trial, the court found her guilty as charged and a divorce was accordingly granted to the husband. The effect of this decree was to fix positively the legal status of the parties so far as their matrimonial relations are concerned. This status having been fixed by a severing of the matrimonial relation, public policy forbids any court to interfere with the status thus fixed. We think that upon this ground of public policy, as well as upon other grounds, the Court of Common Pleas of Ottawa County was precluded from entering another decree undertaking to fix their legal status so far as their matrimonial relations were concerned.

Another reason most apparent why the Court of Common Pleas of Ottawa County had no jurisdiction to enter a decree in this case is that the question of their marital status had been fully and completely adjudicated in the courts of Pennsylvania and the matter was res adjudicata. The evidence of the decree was before the court in a proper exemplification of the record of that ease, and in no sense disputed, and the court was bound, under the full faith and credit clause of the federal Constitution, to recognize such decree and regard it as a final adjudication of all questions that were or might have been litigated in that action. It follows also from what has been said that, the parties having been theretofore legally divorced, there was no marriage relation existing which the trial court in Ottawa county could by a decree undertake to sever, and its action was a nullity in so far as it attempted to grant an additional divorce. Cooper v. Cooper, 7 Ohio, Part 2, 239.

It is contended that the decree of divorce granted in Pennsylvania was not absolute and that, therefore, the Ohio courts had jurisdiction to hear and determine the question as to whether or not the plaintiff herein was entitled to an absolute divorce. The Pennsylvania decree is conceded to be absolute except for the following provision in the concluding paragraph thereof:

“And the said parties shall be severally at liberty to marry again in like manner as if they had never been married, except as forbidden by the act of Assembly of March 13, 1815.”

The act referred to in the decree is the one which prohibits marriage in the state of Pennsylvania between the adulterous parties during the lifetime of the injured husband or wife. It is not contended that this restriction upon the right to remarry is in force or operation outside of the state of Pennsylvania, nor is it contended that a marriage in contravention of this act entered into legally outside of the state would not thereafter be recognized as a valid marriage if the parties subsequently removed to the state of Pennsylvania. The parties to the action in Pennsylvania having both been in court they were bound by the decree with whatever conditions the court there saw fit to attach, and this condition, to the extent indicated in this opinion, is as valid and binding upon thé parties as any other portion of the judgment or decree and should be so recognized by the courts of sister states. It would seem that the adding of this condition to the decree did not change the situation from what it would have been had it not been added. The statutes of Pennsylvania provide that marriage shall not take place under the conditions heretofore mentioned and it is the statute which expresses the public policy of the state in that respect which precludes the marriage. The condition in the decree is only incorporated into it so that it may not be contended that the court was attempting to make its decree of divorce any broader than the statutes allowed.

■ It is entirely evident that the decree entered by the trial court in the case at bar was also erroneous because of the statutory provisions of this state which preclude the entering of such a decree upon the uncorroborated testimony of a party- to the action. The only corroboration claimed is the answer of the defendant and the exemplification of the record of the Pennsylvania suit filed in the case. The plaintiff testified that one act of extreme cruelty on the part of the defendant was his charging her with the commission of adultery in the suit pending in Pennsylvania, which charge she testified was untrue. The record shows that by an answer filed in the suit in Pennsylvania she denied the truth of the same charges. The trouble with her corroboration is that the record proves too much. It does, indeed, prove that the defendant charged her with adultery in.the action brought by him in the state of Pennsylvania, but it also proves that the adjudication of the issue made up by that charge and the denial thereof by the defendant therein, plaintiff herein, resulted in a finding that she was guilty as charged. So that the very proof which she claims to be corroborative of her testimony is in fact a refutation of her testimony on that point and leaves her without any corroboration upon any material allegation which she is required to prove in order to entitle her to a divorce under the laws of Ohio.

In view of what has been said it is unnecessary to discuss, the evidence relating to the plaintiff having acquired a residence in Ohio. Even assuming that the evidence is sufficient to show that she had established her residence in Ohio, the judgment of the court in entering a decree in this case was entirely erroneous.' The motion of the defendant to dismiss the petition of the plaintiff, made at the close of the plaintiff’s evidence and renewed at the close of all the evidence, should have been granted.

The judgment of the common pleas court will therefore be reversed and this court will proceed to enter the judgment that should have been rendered by the common pleas court, dismissing the petition of the plaintiff at her costs.

Richards, J., concurs.

Kjnkade, J.

I concur in the judgment of reversal' and the entering of final "judgment here,


author: Jones (E. H.), J.

text:
    DEMANDPOR. JURY TRIAL IN THE CINCINNATI MUNICIPAL COURT.
    Court of Appeals for Hamilton County.
    Joseph W. Brodbeck et al v. Frank F. Talley et al.
    Decided, April, 1914.

      Buies of Court — Buie Not in Harmony With Statutory Provision — Construed as Directory Only — Demand for Trial by Jury in the Municipal Court of Cincinnati.

    A rule of the municipal court of Cincinnati, fixing a time for demanding trial by jury other than that provided by the act creating the court, is repugnant to said act, and where demand is made within the time fixed by the statute its refusal is error notwithstanding the rule of court.

      Louis P. Pink, for plaintiffs in error.

      Campbell S. Johnston and James B. Swing, contra.
   Jones (E. H.), J.

The action below was upon a promissory note, and was tried in the municipal court of Cincinnati and resulted in a judgment against the defendants who are plaintiffs in error here..

Several assignments of error are made, but the case was advanced for argument in this court because it involves the validity of Eule 16 of the code of rules of the municipal court of Cincinnati. This rule is one of a code of rules adopted by the judges of that court to govern the procedure therein.

It appears from the record in this case that before the trial the defendant below demanded a jury, which demand was denied by the trial judge on the ground that it had not been made at the time nor in the manner provided by said Eule 16, which reads as follows:

“On the second day after rule day for filing statement.of defense in cases where the same is required, and on appearance day in other cases, at 9 o’clock A. m., the.judge assigned to that duty shall call all cases in which service either by summons or publication has been duly made, and the clerk shall prepare for delivery to said judge a list of all such cases for call, _whether issue has been joined or not. When the cases are called default judgment shall be rendered on the bill of particulars when no appearance is made or statement of defense filed, or leave to plead granted. If the issues are made up, the ease shall then be assigned for trial, as hereinafter provided. Extension of time to plead may be granted by the court in its discretion, in which case the ease shall again be called by the same judge on the second day after the expiration of the leave. A second extension of time to plead will be granted on showing of cause by affidavit. When the claim is for unliquidated damages, default judgment will be rendered, but the case assigned to the trial calendar for assessment of damages.
"Each party desiring a jury shall, upon said call, demand the same in writing. All applications for extension of time to plead must then be made,” etc.

The act creating a municipal court and prescribing its duties is found in 103 O. L., 279. Section 14 of that act authorized a municipal court "to adopt and publish rules governing practices and procedure not otherwise provided for in this act.” Section 15 of the same act provides that "all causes, both civil and otherwise, in the municipal court shall be tried to the court, unless before the court shall proceed to inquire into the merits of the cause a jury shall be demanded by either party to the action.”

A reading of Rule 16 in connection with this general provision of the act shows beyond any question that the rule is repugnant to the provisions of the act in that it fixes a time other than that provided therein when the demand for a jury must be made. The language of Section 14 above quoted only gives a municipal court authority to make rules upon matters which are not specifically provided for in the act. The Legislature has clearly fixed the time within which a demand for a jury may be made, and hence from the language of the law itself any rule of the court in conflict with that provision must he held to be invalid. The demand for a jury in this case was made by defendants below within the time prescribed by the General Assembly, and it was error for this court to refuse such demand.

The bill of exceptions fails to show that this case was “called” at any .time before trial. But counsel in presenting the case proceeded as if a statement to that effect was contained in the bill, and on account of the importance of the question argued, and the certainty that it must eventually be adjudicated, we have complied with the manifest desire of all parties concerned in passing upon the rule in this case.

It will be noticed that the rule imposes no penalty for failure to comply with it, nor does it say that a jury will be deemed waived unless demanded at the time therein fixed. It therefore might well be considered as merely directory and as a guide to counsel and litigants, and if so considered we see no necessity for expunging it from the rules of the court. The request which its words import can and doubtless will be complied with in many cases without inconvenience to the parties or their counsel, and thus it may aid in the dispatch of business and serve to some degree the evident purpose of its authors. But a failure to observe it by a litigant should not bar him from the right to trial by jury demanded within the time fixed by statute.

It is not necessary to pass upon the other errors assigned.

Judgment reversed, and cause remanded for new trial.

Jones (Oliver B.), J., and Ferneding, J., (sitting in place of Swing, J.), concur.


author: Grant, J.

text:
    LIABILITY OF CARRIER FOR SHIPMENT DAMAGED BY A FLOOD.
    Court of Appeals for Cuyahoga County.
    The Erie Railroad Company v. Alice A. Kohler.
    Decided, December 4, 1916.

      Act of'God — Available as a Defense to a Carrier — In an Action for Goods Lost or Damaged in Transit — Notwithstanding the Situation Was Brought About Through Negligence of the Carrier — Proximate Cause.

    Where goods in transit are damaged by a flood, the carrier is' not deprived of the defense of vis major by reason of the fact that, but for its own negligence in permitting the shipment to be delayed, it would have been delivered to the consignee before the occurrence of the' flood. Railway v. Myers £ Patty Co., 25 C.C. (N.S.),204, not followed.

      Gushing, Siddall & Lamb, for plaintiff in error.

      Frank F. Gentsch, contra.
   Grant, J.

Error to the court of common "pleas.

The parties will be designated here as they were below, which is in the reverse order of the caption.

The facts material to the conclusion we have reached are not in dispute.

The plaintiff delivered a lot of household goods to the defendant company — a common carrier — at Ashland, Ohio, on the 20th day of March, 1913, for shipment over its road to Cleveland. The bill of lading was in the customary form — what we suppose to be standard with carriers — and stipulated, among other things, that the company should not be- held to a liability for loss or damage ‘ ‘ caused by the act of God. ’ ’ The goods were loaded at Ashland on the afternoon of the same day they were received, but owing to some defect in the car to which they were assigned the lading was changed to another car, which did not leave the initial point of shipment till'the second day afterwards, and, did not reach Cleveland until the 23d day of March. For these delays the plaintiff was in no way responsible.

In Cleveland the car was stopped at the defendant’s so-called Literary street yard, a place where inbound freight is separated and distributed for routing to the particular team tracks where the owner is expected to receive and take away.his belongings. The latter location in this case was nearby the defendant’s Scranton avenue freight station, and there the ear was placed on the 24th day of March, but after the close of business hours, and the plaintiff was notified. She received this notice the next morning. The rain which culminated in the unprecedented flood of March, 1913, in Ohio, began to fall on the afternoon, or in the evening, of March 23d, which was Sunday. By the afternoon of the next day it had reached formidable proportions, in consequence of which when the plaintiff was informed of the arrival in Cleveland of her property, the Cuyahoga river was already at flood stage, bank-full or more, and was still rising with alarming rapidity, so that even at that time it was impracticable for her seasonably to remove it from the ear. This inability continued and increased during the further heavy rainfall occurring, on the two days next succeeding. The consequence was she was unable to come at her goods until April 3d, by which time they were materially injured through, and physically by, immediate reason of the flood conditions thus narrated.

She accordingly sued the defendant company in this action for the damage then and thus accruing, as she said, imputing it to the company’s negligence in delaying her shipment until the flood overtook it and immediately caused the injury.

The defendant pleaded by answer, among other things, the intervention of the act of God, evidenced by the rain in question, and claimed exemption from liability on that account, in accordance with the reservation in the bill of lading and by the law of the land in that respect. We are not at present concerned with any other matter of defense or mitigation alleged in the answer.

Upon issue joined as to this plea, the cause was put upon its trial in the court below, to a jury.

There was a verdict for the plaintiff, upon which the judgment brought here for review was entered, after a motion for a new trial had been made and denied.

We shall brush aside the matters of inducement leading to the presentation of the main and decisive question in the ease, and come at once to a consideration of that controlling issue, and upon which we purpose to rest our conclusion. We shall assume — for the fact unquestionably is so- — that but for the delays of the car at Ashland, at Cleveland, and in transit, the lading could have been delivered to the plaintiff at the point of destination, seasonably for safe removal before the flood overtook it.

That the flood of March, 1913, in Ohio was of such magnitude and suddenness as to be an act of God, within the meaning of those words on the back of the shipping bill, is not a matter of dispute. It was a manifestation of nature-so extraordinary, and so violent'in its physical visitation, and so destructive in its effects, that courts have taken, and will take judicial notice of it, without other evidence. The trial court so instructed the jury, and told them that if the loss was caused by it alone the plaintiff could not recover in the action.

The question then is, did, in the circumstances of the case, the interposition of this vis major work an exoneration of the defendant from liability, as being the proximate cause of the plaintiff’s loss ?

Or, were the delays named that proximate cause? Because there can be but one cause that really is proximate. To allow two would be a legal solecism and a contradiction in terms.

The position of the plaintiff below is plainly stated in her brief, as follows:

‘ ‘ Our contention is that any delay or negligence of the plaintiff in error which contributed to or caused the goods to be caught in the flood made unavailable the defense of an act of God. ’ ’

This reduction of the issue to its lowest terms and to a mere matter of law, which admits the quality of the storm as being within the class of things which the company interposed by its shipping stipulation as a defense against liability, does away with much curious and useless legal learning as to what an act of God is, even back to Coke, with whom the term was a favorite • — -as was to have been expected — and many evolved distinctions, spun from the inner consciousness of judges into a web as endless as that of Penelope, between it and inevitable accident,- and other names of like import — this shortens the discussion admirably. It even relieves against the risk of the irreverence displayed by the Kansas lawyer who in suing for a loss caused by lightning and the answer pleaded what the answer pleads here, came back in a reply, quite responsively, with the allegation: ‘ ‘ The plaintiff denies that such loss was caused or occasioned by any act of the said God.”

To work an exemption from liability in an otherwise proper case the act of God can be urged only where it is the proximate cause of the loss, the efficient cause, the direct cause, the immediate cause, of course. That it had something to do with bringing about the result, is not enough. Unless it fulfills this condition, it does not excuse. New Brunswick Steamboat and Canal Transportation Co. v. Tiers, 24 N. J. Law, 697; Ferguson v. Brent, 12 Md., 9; Hutchinson v. U. S. Express Co., 63 W. Va., 128; Steele v. McTyler’s Admr., 31 Ala., 667.

It must also be the sole cause. In co-operation'or concurrence with, or contributing to, other moving causes, unless we are to conclude that the co-operation or concurrence in itself amounts to, and is to be deemed to be, really the proximate cause by process of assimilation or absorption, its use as a shield from liability can not be called in function; such seems to be the better opinion. Jones v. Minneapolis and St. L. R. Co., 91 Minn., 229; Wall v. Pittsburgh, C., C. & St. L. R. Co., 162 Ill., 545; Wolf v. American Express Co., 43 Mo., 421; Steele v. Townsend, 37 Ala., 247.

What in any case amounts to such co-operative effect or contributing cause as will constitute in any case the proximate cause,- to the exclusion of them in the classification of them as remote causes, and so work a defeat of the use of the act of God as a weapon of defense, is quite another question; and where this consideration brings in the question of delay and its éfféct in depriving the carrier of the use of his plea, it has given rise to the sharp controversy evidenced by the two lines of decisions presently to be mentioned.

One of these lines makes up- what may be called the Massachusetts, or Pennsylvania rule. It is also the rule of the United States Supreme Court. It is aptly stated in Ruling Case Law, Volume 4, Section 193:

‘ ‘ In several well considered cases decided by courts of high authority it was decided, while the question was still new, that the negligent delay of the carrier in transportation could not be regarded as the proximate cause of an ultimate loss by- a casualty which in itself constituted an act of God, as that term is used in defining the carrier’s exemption from liability, although, had the goods been transported with reasonable diligence, they would not have been subjected to such casualty.”

In support of this statement the editor cites Memphis & Charleston R. R. Co. v. Reeves, 10 Wall., 176; Deaver v. Bedford, 5 Rob. (La.), 245; Denny v. N. Y. Cent. R. R. Co., 13 Gray, 481; McClary v. Sioux City & P. R. R. Co., 3 Neb., 44; Daniels v. Ballantine, 23 O. S., 532; Morrison v. Devis, 20 Pa. St., 171, and 3 Anno. Cases, 453, note.

The text then goes on to say:

“These cases are predicated on the view that if the carrier could not reasonably have foreseen, or anticipated that the goods would be overtaken by such a casualty as a natural and probable result of the delay, then the negligent act was not the proximate cause of the loss, and should be disregarded in determining the liability for such loss. Many later cases have also adopted this viewpoint, so many in fact that from the mere standpoint of weight of authority this view may be said to have slightly the better of. the argument. According to these decisions, the fact that events may subsequently prove that the- catastrophe amounting to actios Dei would not have been encountered if no delay had occurred is, after all, merely a fortuitous result, since it is obvious that the antecedent probabilities are equal that the delay will save the property from, instead of exposing it to, destruction.”

The “later cases” brought forward to uphold the doctrine thus enunciated, are Rodgers v. Missouri Pac. R. Co., 75 Kan., 222; Green-Wheeler Shoe Co. v. Chicago, R. I. & Pac. R. R. Co., 130 Iowa, 123; Yazoo & M. Valley R. Co., v. Millsaps, 76 Miss., 855.

In tké Iowa ease just cited the syllabus is: "Where a carrier negligently delays a shipment of goods, so that it is destroyed by an act of God which would not have destroyed it, except for the delay, the carrier is not liable, ’ ’ which, we take it, is exactly the argument of the plaintiff in error here.

The text-books which allow that the weight of authority is in support of this view are Thompson, Negligence, Section 74; Schouler, Bailments, Edition of 1905, 348; Hale, Bailments and Carriers, 361; 6 Cyc., 382. In monographic notes to Gilson v. Del. & Hudson Canal Co., 36 Am. St. Rep., 839, and Yazoo & M. Valley R. Co. v. Millsaps, supra, the authorities are exhaustively considered, and the annotator sums up the result in the following language:

"Where the negligence of a carrier consists merely in a delay in the forwarding of goods, the larger number of authorities sustain the principle that the carrier can not be held liable, if the goods thus delayed are destroyed by the act of God, though, but for the delay, they would have reached a place of safety, the ground assigned being that the delay becomes a remote cause of the loss, when a calamity which could not have been anticipated intervenes. ’ ’

The opposite contention, which may be called the New York rule, is laid down in the book from which we have already quoted, as follows, Section 194:

* ‘ On the other hand, as has been stated, there is a respectable •authority for the proposition that if a carrier negligently and carelessly delays a shipment, and the goods are overtaken in transit and damaged by an act of God, which would not have caused the damage had there been no delay, he is liable, even though the act of God could not reasonably have been anticipated. In such cases the negligence and unreasonable delay are deemed to be such a proximate or concurring cause as will render the carrier liable. Courts sustaining this view, in analogy to the well settled rule with reference to deviation, assert the principle that as a carrier is only exempted from liability by showing that an injury was caused by an act of God or the public enemy, to avail himself of such exemption he must show that he was himself free from fault at the time, so that if he departs from the line of his duty, and violatés his contract, and while thus in fault, and in consequence of that fault, the goods are injured by an act of God, which would not otherwise have caused the injury, he is not protected. A negligent delay in forwarding goods, they contend, constitutes such a fault or departure from duty, and so is a concurring cause of the loss or injury. Moreover, in opposition to the argument that such a result could not reasonably be anticipated from mere delay, the theory has been advanced that a carrier should, as any reasonable person could, forsee that negligent delay would extend the time during which goods in his hands would be liable to be overtaken by some casualty, and would therefore increase the danger of their being lost to the shipper.”

This extract states, and well states, what must be the contention of the defendant in error in the case at bar, and is, as we understand it, the substance of his reasoning when he says that the defense of an act of God, in this ease, is not available to the carrier.

The cases marshalled in its support need not be mentioned by name. They represent the views of the courts of last resort in Alabama, Georgia, Minnesota, New York, Nebraska, West Virginia, Illinois, and perhaps some others. The text-writers who maintain that this rule has the weight of authority on its side are Hutchinson on Carriers, 361, and Raymond on Negligence of Imposed Duties, 177.

We have tried to thus completely develop both of the lines of view upon this most important question, in order to show that, whatever may be thought of the merits of the conclusion we are to reach as to what is the law of this case, that conclusion has not proceeded upon misinformation in regard to judicial authority.

As applied to the case in hand, the two views are in decisive conflict. If the former states the law for us, then the carrier is exonerated from liability and such should have been the judgment of the court below.

If the latter theory of the law is to control, that, judgment, following upon the jury’s verdict settling the matter of fact, was right and should be upheld, at this point and in this respect.

It will have been observed that the text-writer quoted ranges an Ohio ease, Daniels v. Ballantine, 23 O. S., 532, on the side of the view which, under the circumstances of this ease, would seem to relieve the carrier from liability. If this is a correct classification of that case, it settles the law for us, as we think. If Ohio law is declared, one way or'the other, it becomes immaterial on which side of the question the authority preponderates, or whether the reasoning advanced in support of either view is well or ill founded. We are guided, coercively, by the adjudications of the court of last resort in Ohio; those of other jurisdictions, where' our own has relevantly and undoubtedly spoken, are altogether beside the question.

Let us, therefore, examine Daniels v. Ballantine, to see whether it furnishes the law for us.

The syllabus states both the facts involved and the law applied to them, and so enables us -to compare that ease with this case, for all purposes of a proper conclusion. It is as follows:

“The defendants contracted to tow the plaintiff’s barge, by means of a steam tug, from Bay City, Michigan, to Buffalo, New York. After the voyage had been commenced, and partially performed, it was voluntarily suspended and delayed by defendants, the barge during the delay being exposed to none of the perils peculiar to the voyage. After the voyage was resumed, and while it was being duly prosecuted, a storm was encountered by which the barge was lost. Held: That the defendants, by the mere fact of the delay, did not become responsible for the loss of the barge, although the delay was unreasonable and unnecessary, and although, as the event proved, the barge, but for the delay, would probably have been safely towed to its place of destination. In such case the storm must be regarded as the proximate, and the delay as only the remote cause of the loss.”

In reaching that conclusion the court proceeded along the line of reasoning which upholds the first rule discussed in this opinion and held that the conjunction of the delay with the storm was only a fortuitous thing, involving no agency in bringing anout the loss. It went further and reduced the argument of the plaintiff to an absurdity by the consideration that if the delay had only been long enough it would have tided the shipment over the storm and brought the goods through in safety; in other words, the carrier’s fault had been less if it had been greater. It would be a mere Hibernicism to say that that case is this case, unless there is a distinction between them.

It is our present business to find out whether there is a distinction. .We confess that, according to our own lights, we should be unable to find one — at least one that can fairly be said to be a real distinction, a distinction embodying a difference. We are met, however, by the case of C., H. & D. Ry. Co. v. Myers & Patty Co., 4 Appellate, 493; 25 C.C.(N.S.), 204, decided by the learned Court of Appeals for the Second District, which purports to find a distinction. The loss there was in the same flood, and there was the same delay postponing delivery till the shipment was overtaken by the storm. The court marshals only the cases which support the second view which we have discussed, in most or all of which a common carrier was sued, and then undertakes to distinguish Daniels v. Ballantine on the single consideration, as we understand, that in the latter the delinquent was not a common carrier. This particular question was not decided in that case, although the court was pressed to pass upon it. We are at a loss to understand why' any inference can be deduced from what the court in that case said or omitted to say, favorable to the distinction found by the learned court of appeals, or to justify the effect apparently produced on that court in its going over to the side of the New York rule. On the contrary, we can not well doubt what the holding would have been in Daniels v. Ballantine had the court passed upon the question, or that its decision in that event would still have been the same; its intimation to that effect seems not to be at all obscure. It says in the opinion:

‘ ‘ It has sometimes been said that the policy of the law applicable to common carriers required, as to them, the application of a different rule. The weight of authority seems to be the other way; but however this may be, the exigencies of the present case do not require us to determine. It is not alleged that the defendants were common carriers.”

"What the court was discussing that called forth this remark, was the rule applied in the case, namely, that one in fault is responsible only for the proximate, and not at all for the remote, results or consequences of his wrongdoing. "We consider the observation of the court in this respect as suggestive of a disallowance of the very distinction which the learned court of appeals made, pivotal in its judgment fastening a liability on the carrier, and which the carrier, but for the alleged distinction, admittedly could not have been called upon to bear. It is indeed also said by the learned court in Railway Co. v. Myers & Patty Co., that that case was founded on contract, whereas the Ballantine case was bottomed on negligence. The syllabus in the latter case shows affirmatively that there was a contract. The fact is the claimed right of action in each case arose upon a negligent breach, of a contract. In the sense in which each of the two courts speak, each case was founded on contract and upon negligence in carrying it out. If one was upon contract, so was the other; and the same is the fact in regard to negligence. No difference is observable to us in this further attempted distinction, if indeed such it is intended to be. It is difficult, also, for us to find room for any such distinction upon principle or in the reason of the thing.

The flood by which the damage in this case was immediately wrought was the act of God — confessedly so. God is no respecter of persons. He should not be. He is impartial, even in his disastrous dealings with mankind. Surely, then, the injustice can not be imputed to him of visiting upon common carriers harder blows, or heavier legal consequence, than he deals to individuals or private corporations. It may be, as some scarcely inferior to him in point of wisdom have said, that the managers of some common carriers are “malefactors of great wealth,” and are to be classed as “undesirable.citizens”; still God himself tells us that he sends his rain upon the just and the unjust alike ■ — -including, as we are at liberty to suppose, the great rain of March, 1913. Some of our various agrarian laws do indeed take away defenses from common carriers. But these are the work of legislatures — mere finite things, who hardly pretend to be just or impartial.

■ In view of these considerations — and others — and again according to our lights, we are unable to find,, in the mere fact that we are dealing with a common carrier, the_ distinction which the court in the second district found, and upon which alone, as we conceive, its judgment was allowed to depend — otherwise destructive of the rule applied in Daniels v. Ballantine. On account of this inability, we do not feel justified in adjudging-what in effect would, to our own apprehension, work a substantial reversal of the Supreme Court above us. If that is to be done, it must be done, so far as we are concerned, by that court and not this court. We should have to do this, as we think, in effect, if we were to affirm the judgment before us for review.

. We say this, having the highest regard for the learned court from whom it is- our misfortune but disagreeable duty thus to differ, and with every disposition to save the verdict of the jury now challenged at this bar.

We find, and hold, under the undisputed facts of this case, that the judgment we are reviewing is without support in the law of Ohio, and should have been for the defendant and not for the plaintiff below, as it was.

As this found error is fundamental and goes to the whole ease, that fact obviates the necessity or propriety of a particular consideration of others assigned and argued before us, and the disposition, of which is comprehended in that already made of the whole case. This is said in view of the judgment we are about to render. Specifically, the court should have given in charge to the jury defendant’s request No. 1, made before argument, which directed a verdict to be returned the defendant. It was error to refuse it.

This conclusion, in opposition, as appears, to that reached by, the learned court for the second district, operates, we apprehend, a conflict of decision, .within the meaning of the constitutional provision, which in such cases secures to the parties a review of the case by the Supreme Court. ■ The party defeated by our judgment is entitled to-a certificate of conflict, which will cheerfully be allowed if application is made for it. In that review our error in this decision, if error there is, will be corrected, our only desire being to be right, whether as of first instance or under the coercive operation of a judicial reversal of our work. - ■ • >

The judgment complained of is reversed.

The facts not -being in dispute, we find, upon the matter of law thus alone left in the case, that the judgment should have been for the defendant below and not for the plaintiff • we proceed, therefore, now to render that .judgment, which is that the plaintiff in error, the Erie Railroad Company, go hence without' day, and that it recover its costs in the cause made.


author: Merriman, J.

text:
    AFFIDAVIT IN ATTACHMENT EXECUTED BEFORE PLAINTIFF’S ATTORNEY.
    Court of Appeals for Hamilton County.
    Joslin-Schmidt Co. v. Joseph F. Herrmann.
    Decided, March 9, 1916.

      Attachment and Garnishment — Affidavit Made Before Plaintiff’s Attorney as Notary — Not Given Life by Substituting the Name of Another Attorney.

    The rule that an affidavit in attachment can not be made before a notary public who is the attorney - for one of the parties -to the action has reference to the status of the parties at the time the affidavit is made, and where the affidavit is made before plaintiff’s attorney the substitution thereafter of the name of another attorney does not give life to the action as against a motion to discharge the attachment.

      George 8. Baily and L. D. Oliver, for plaintiff in error.

      Cobb, Howard & Bailey, contra.
   Merriman, J.

The record shows that Mr. D. -S. Oliver had been the attorney for the plaintiff for many years, having general charge of all its legal matters. -Mr. Oliver had been - consulted about bringing this suit, prepared the necessary papers, signed the petition as attorney for the plaintiff, and as a notary public swore Mr. Schmidt, treasurer of - the plaintiff company, to the affidavit in attachment. When Mr. Oliver attempted to file the petition and affidavit in the court of common pleas the clerk suggested that he was disqualified from acting as both attorney ■and notary, and he thereupon substituted the name of his brother, L. D. Oliver, as attorney, and filed the papers.

The court of common pleas discharged the attachment, and plaintiff prosecutes error'to this court.-

In Leavitt v. Rosenberg, 83 Ohio St., 230, the court'held':

■“An affidavit in attachment can not be made before a notary 'public who is the attorney for one of the parties to-the action.”

Mr. Oliver was the attorney for the plaintiff company at the time the affidavit in attachment was made by its treasurer, Mir. Schmidt, and he acted as the attorney in preparing the petition and affidavit. ■

We think the reason for the rule, as laid down In Ward v. Ward, 20 C. C., 136, and Leavitt v. Rosenberg, supra, contemplates the status of the parties at the time the affidavit is made.

The affidavit in question, therefore, never had legal existence, and no subsequent action by Mr. Oliver could give it life.

The judgment of the court of common pleas is affirmed.

Sayre, J., and Walters, J., concur.


text:
    AS TO LIABILITY FOR. THE BITE OF A DOG.
    Court of Appeals for Hamilton County.
    Joseph Mehmert v. Martha Kelso.
    Decided, April 19, 1916.

      Animals — Damages for the Bite of a Dog< — Necessary Allegations to Establish Liability Under the Present Law.

    1; A verdict of $500 as damages for the bite of a dog will not be disturbed, where it is shown that as a consequence the plaintiff was confined to her home for six weeks and was in a highly nervous condition at the time of trial.
    2. The common law rule that "every dog is entitled to one bite” has been supplanted in Ohio by Section 5838, and under this section it is sufficient, in an action for damages on account of the bite, to show that the defendant was the owner or harborer of the dog without regard to knowledge that he was vicious or fierce.

      Cramer & Headley, for plaintiff in error.

      Harry Hess, contra.
   Gorman, J.

The action below in the Superior Court of Cincinnati was brought by defendant in error to recover damages resulting from a dog bite.

Plaintiff averred that she had 'been severely bitten by a large dog, harbored and kept by plaintiff in error; that said dog was fierce and dangerous and accustomed to bite mankind, all of which was well known to plaintiff in error, and was allowed to run at large. She claimed $5,000 general damages and $89.55 special damages in the way of doctor’s bill and expenses of nursing and medicine. A general denial was filed.

On the trial a verdict was rendered in favor of defendant in error in the sum of $500. A special verdict or finding was also returned by the jury at. the request of plaintiff in error as follows :

“The defendant requests the court to instruct the jury to answer in writing the following question: First. Was the defendant Joseph Mehmert the owner or harborer of the dog causing the alleged injury to plaintiff? Answer: Yes.
“Warren Wilder, Foreman.”

A motion for a new trial having been denied, error is prosecuted to this court, and a judgment of reversal is asked. Three grounds of error are set out, viz.:

1. That the damages are excessive.

2. That the verdict is not-sustained by sufficient evidence and is contrary to law.

3. That the court erred in refusing four special charges requested by defendant below.

As to the first ground, it is not seriously claimed that $500 is an excessive verdict under the evidence in the case, which disclosed that Mirs. Kelso was severely bitten, confined to her house for six weeks, obliged to employ a distinguished surgeon and a nurse and was at the time of the trial in a highly nervous condition as the result of the dog bite. If she was entitled to recover at all, the verdict was inadequate rather than excessive.

As to the second ground of error, it may be said that there was sufficient evidence to sustain the verdict. Furthermore, on the main issue in the ease the jury found in its special verdict or finding that the defendant Joseph Mehmert was the owner or harborer of the dog that bit Mrs. Kelso, and there can be no question but that the evidence was sufficient to warrant such a finding. If he was either the owner or the harborer of the dog, and the plaintiff was bitten by it, then regardless of the viciousness or fierceness of the dog the defendant was liable in law for the injuries sustained by plaintiff. . Section 5838, General Code.

The common law rule, sometimes tersely put that “every dog is entitled to one bite,” has no application now when there is afforded a remedy under the above cited statute.

Ignorance of the dog’s vicious, propensities does not relieve the owner or harborer from liability. Job v. Harlan, 13 Ohio St., 485; Gries v. Veck, 24 Ohio St., 329.

As to the third ground of error claimed, the refusal of the court to give special charges 2, 3 and 4, it is sufficient to say that á perusal of these charges as set forth in the record satisfies us that the defendant below was not entitled to have any one of them given.

The second special charge ignores entirely the question of whether or not the defendant harbored the dog, but in a complex, involved and long drawn out charge, based not upon the evidence of the ease, but upon defendant’s theory of what constitutes harboring, the court was asked tp tell the jury that if certain conditions existed then defendant was not the harborer of the dog in question.

The third special charge is open to the same criticism as the second charge asked, in that it asks the court to tell the jury that unless the defendant acted towards the dog as owners usually do, he could not be found to be the harborer of the dog.

The fourth special charge ignores entirely the question of the harboring of the dog by defendant, and further seeks to relieve him from liability if the dog was owned by his son and the biting did not take place on defendant’s premises.

The general charge of the court was as favorable to defendant as he had a right to’ ask. Indeed, it was more favorable than defendant was entitled to have it. The verdict was neither contrary to law nor against the weight of the evidence.

We are of the opinion that no complaint can be fairly made in this case by the defendant, and that substantial justice has been done.

Judgment affirmed.

Jones (E. H.), J., and Jones (Oliver B.), J., concur.